Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd

Court of Appeal (NSW)|2022-04-12|Before: Leeming JA, Mitchelmore JA

Introduction

Ground 3 of the appeal and application for leave to appeal was that "[t]he court below erred in upholding the defence of justification on the basis that there was no significant difference between what the respondents had represented the appellant as having said, and what he in fact said". At all material times, s 25 of the Act made it a defence if the defendant proved that the defamatory imputations carried by the matter of which the plaintiff complains were substantially true. "Substantially true" is defined in s 4 to mean "true in substance or not materially different from the truth".
This was the most elaborately argued ground of the appeal and application for leave to appeal. It is the heart of the appeal.
In part this ground turned upon a challenge to the trial judge's demeanour-based findings of primary fact, and in part it turned upon her Honour's reasoning. An important part turned upon a challenge to the tone of the conversation between Mr Massoud and Mr Warren. As Mr Massoud put it, "[t]he issue involving this conversation is not so much its content, but the way in which the phrase in question was said, and with what intention". He said that it was neither an act of bullying nor a threat, but rather intended "to blow off steam" and was spoken in jest, as an attempt at black humour. The primary judge disbelieved Mr Massoud. Her Honour found that Mr Massoud was angry, made a violent threat designed to provoke fear, and that Mr Warren was in shock and distress after the telephone call. Mr Massoud contends that this Court should overturn that finding and instead find that he was a credible witness.
There were also some more discrete aspects, including a challenge to the rejection of a handful of questions, and a claim that her Honour had relied on material not in evidence.
This section of the judgment addresses (a) her Honour's reasons, (b) the parties' submissions, (c) a challenge to the rejection of some questions, (d) a discrete complaint about the judge conducting "private research", and (e) the factual challenge to Mr Massoud's credibility and the tone of his conversation with Mr Warren.

The reasons of the primary judge

The primary judge addressed the defence of justification in three portions of her judgment.
After noting that it was not necessary to establish that every detail conveyed by the imputation was true by reference to Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 at [105], her Honour considered at some length at [135]-[144] the reasoning in Stocker v Stocker [2020] AC 593; [2019] UKSC 17, which concerned a statement by a wife that her husband had "tried to strangle her". Her Honour said at [138] that: "Stocker v Stocker underscores the defendants' submission that, while the defence of justification focuses on the truth of the imputation, the imputation must be considered in context and the matter complained of be construed as a whole within that context. This is of particular relevance to those publications which convey an imputation along the lines that the plaintiff threatened a young colleague with violence."
Her Honour addressed Mr Massoud's submission that, by reason of the opening words "if you weren't so young", no threat was conveyed. Mr Massoud's submission relied on Tuberville v Savage (1669) 86 ER 684, where the plaintiff put his hand on his sword and said, "[i]f it were not assize time, I would not take such language from you", which was understood not to be an assault (ie a threatened act of violence). Her Honour also referred to the criticism in R v Ireland [1997] 1 All ER 112 of relying on early decisions. She noted the defendants' submissions that the words reported and the words Mr Massoud used were each graphic threats of deadly violence, with no material difference between slitting a throat and ripping off a head, that the qualification or "rider" "if you weren't so young" did not rob what was said of its violent and intimidatory content, the reference to being "so young" being part of the insult, rather than a promise to refrain from the act. Her Honour said at [143]: "The words would cause fear and trepidation and would be intended to do so, as otherwise, Mr Sibtain asks rhetorically, why would they be said? The threat of violence was designed to intimidate Mr Warren and pull him into line, an effect it clearly had on him, given his response to the phone call."
Her Honour also noted that the defendants relied upon the workplace context in which the words were spoken and say that this context of workplace bullying and threats, rather than the literal words spoken (i.e. slitting the throat), is the key to justification of the imputations pleaded by the plaintiff.
Her Honour thereafter addressed at length the evidence bearing upon the defences of justification and contextual truth, before addressing each of the four imputations found to have been conveyed and whether they were substantially true at [474]-[494]. Her Honour's reasoning in relation to the imputation that Mr Massoud threatened to slit the throat of a young colleague is essentially conveyed at [474]-[483]. In order to present the submissions which were made in this Court with a view to undermining that reasoning, it is necessary to set it out in full: "[474] In Sutherland v Stopes [1925] AC 47 at 79, Lord Shaw of Dunfermline gave the following examples of how there is a need for substantial truth rather than complete accuracy: 'If I write that the defendant on March 6 took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail. In the second place, however, the allegation of fact must tell the whole story.' (at 79). [475] Errors of this kind do not rob the statements of the protection of justification. However, a version which was meticulously true in fact, but actually false in substance, would not be protected by the defence. Lord Shaw of Dunfermline continued his hypothetical example to demonstrate this: 'If, for instance, in the illustration given, the facts as elicited show what my writing had not disclosed - namely, that the defendant had a saddle of his own lying in my harness room, and that he took by mistake mine away instead of his own and, still labouring under that mistake, sold it - then the jury would properly declare that the libel was not justified on the double ground that there were facts completely explaining in a non-criminal sense anything that was done, and the jury would disaffirm the truth of the libel because, although meticulously true in fact, it was false in substance.' (at 79) [476] First, the plaintiff points to the difference between 'slitting' a throat and 'ripping off' a head; it is asserted that the slitting of throats is a terrorist activity and thus has a special meaning. Mr Molomby SC notes some references to terrorist murders in tweets following the publications, but these do not refer to specific throat slitting, and may result from the plaintiff's surname. [477] I do not accept that 'slit' and 'rip off' are sufficient[ly] different for the defence to this imputation to fail. The difference between slitting a throat and ripping off a head is exactly the kind of example Lord Shaw of Dunfermline is talking about. It is a distinction without a difference. Even if I were to accept Mr Molomby SC's argument that slitting a throat is easily done, whereas ripping off a head is an impossible task, this would be at best a question of degree; both are still threats of violence. The additional threat of shitting down the plaintiff's decapitated throat reinforces that this is a threat, not a promise, and that it is a conditional threat, designed to provoke fear. [478] The use of the phrase 'if you weren't so young' requires a different kind of analysis. Mr Molomby SC submits that it is not a threat at all, because the use of the phrase 'if you weren't so young' is a promise not to harm at all. He submits that a threat cannot be a threat if the speaker imposes a condition of this kind. [479] I do not accept this interpretation that the conditional nature of the phrase 'if you weren't so young' robs the phrase of its threatening meaning. It is in the very nature of threats that they are usually made conditionally, as Gummow and Hayne JJ pointed out in Coleman v Power (2004) 220 CLR 1 at [192]: 'As pointed out earlier, "threatening" is a word which conveys the possibility of violence. As The Oxford English Dictionary puts it, to threaten is "to declare (usually conditionally) one's intention of inflicting injury upon" someone. Thus, the effect which the use of threatening words may provoke in the hearer is fear: fear that the threat of violence will be carried into effect. Ordinarily, the person uttering the words intends that this be the effect of what is said.' [480] Then there is the question of what act is threatened. Is it the case that what is threatened has to be physically possible? Mr Molomby SC placed great store on the physical impossibility of ripping someone's head off. However, the purpose of the threat is to provoke fear. [481] Another relevant feature is the language and imagery used. What the plaintiff said to Mr Warren about shitting down his neck was particularly repugnant. [482] It is important not to take too legalistic a view of what a threat is. As was noted in Stocker v Stocker, where the matter complained of included the allegation that the defendant's husband had 'tried to strangle' her, too literal an interpretation of meaning in a statement asserted to be defamatory, either in terms of its meaning or its proof in terms of justification, is fatal to the fact-finding exercise. Proof 'is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made' (at [25]) and context is vital (at [39]-[46]). For this reason, despite the failure to prove all the elements of justification, the defence of justification nevertheless succeeded: '[62] Even if all her allegations were considered not to have been established to the letter, there is more than enough to satisfy the provision in s 5 of the 1952 Act that her defence of justification should not fail by reason only that the truth of every charge is not proved, having regard to the truth of what has been proved.' [483] The plaintiff does not dispute that he said the words attributed to him; he asks the court to infer that he was not making a threat because 'if you weren't so young' cancelled the threat out. For the reasons set out above, and conformably with the reasoning set out in Stocker v Stocker, I consider that the defence of justification is made out to this imputation notwithstanding the difference in content between what the plaintiff is said to have said and what he did say."
Her Honour found at [484]-[486] that the imputation that Mr Massoud had made graphic threats to kill a young colleague was also substantially true for substantially the same reasons. Her Honour observed that the inclusion of the words "if you weren't so young" was not a withdrawal of the threat, but part of it, and the graphical aspect of the threat was readily satisfied by the reference to shitting down Mr Warren's throat. Her Honour concluded that the imputation that Mr Massoud had made a graphic threat to kill a young colleague was substantially true. Her Honour also concluded that the lesser imputation that Mr Massoud had threatened a young colleague with violence was substantially true: at [487]-[489].

The appellant's submissions

The appellant said by way of summary: "the assessment of the conversation in the judgment failed fundamentally to understand relevant evidence, failed to take relevant evidence into account, and took into account evidence obtained by private research that should not have been taken into account. In addition, the appellant was deprived of relevant evidence about his experience of use in popular culture of the phrase at issue."
The submissions contained the following themes.
First, it was said that there was no significant disagreement about the sequence of events. After learning that the story had broken, Mr Massoud first phoned Mr Wilson (the sports editor at Seven News Sydney), then a producer (Ms Dallimore), then a Queensland reporter (Mr McGarry) who texted him Mr Warren's number. All three of Mr Wilson, Ms Dallimore and Mr McGarry said that Mr Massoud was exceedingly angry, and Mr Massoud agreed that he had been. Mr Massoud's submissions contrasted the evidence given by Mr Warren and his own evidence that there was a different tone in the conversation between the men. He stressed references in Mr Warren's evidence to the conversation "escalat[ing] a little bit from the kind of agitated, I guess, I'd say angry, frustrated" and that it ended in a perfectly civil manner.
Mr Massoud then submitted that the judgment failed to take into account the striking difference between this conversation with Mr Warren and the three which preceded it, illustrating that Mr Massoud's anger had reduced, and that his attitude to Mr Warren was not vindictive. He said that although mentioned in the narration of the evidence, this had not been accounted for in the analysis.
At [313], the primary judge said: "The plaintiff's explanation for Mr Warren's distress was in part that 'he was made to acknowledge a mistake which is always difficult for people to do' (T 159). However, it is clear even from the plaintiff's version of the conversation that [Mr Warren] had no such problem. Moreover, as to whether it was a 'mistake' by Mr Warren in the first place, the plaintiff had already been told by Mr Wilson that the story was posted because the embargo notation was not on the story; Mr Wilson put the blame on himself. Mr Warren also told the plaintiff that he had checked and said, as part of his apologising to the plaintiff, was that next time he would 'ask more people'."
Against this, Mr Massoud submitted that (a) Mr Warren approached the event on the basis that he had made a mistake, and (b) it was incorrect that Mr Wilson had told Mr Massoud that the embargo notation was not on the story, rather, he said that he would check and find out who was responsible. This latter factual error was said to be "particularly prejudicial" to Mr Massoud. It was submitted: "If the appellant had already been told by Mr Wilson that the embargo notation was not on the story, as the judgment wrongly says, then the whole basis of his account of the genesis of the phone call to Mr Warren would be undermined, leaving only a vindictive purpose as its motivation. His account of the reason for the draining of his anger at the start of the conversation would be undermined. Thus, the error was fundamental and very prejudicial. The erroneous belief that Mr Wilson had explained how the mistake had happened must have completely undermined any chance of the appellant's account of his motive for searching out Mr Warren being accepted. It was obviously in the forefront of her Honour's mind, being used elsewhere in the judgment to condemn the appellant on another basis (at [299])."
Mr Massoud then turned to the words themselves, and contended that while threatening to slit a throat is "unequivocal, direct and real", and implies the use of a weapon, ripping off someone's head and shitting down their neck is "absurd, unreal and impossible" and "has a phantasmagoric character that shows that it is not serious". He reiterated that the words "If you weren't so young" were tantamount to saying that Mr Massoud would not do what was then stated. He criticised the reliance by her Honour on Stocker v Stocker, on the basis that there were no ambiguities about whether slitting a throat, as opposed to trying to strangle someone, amounted to a threat to do a lethal act.
The submissions then engage in a paragraph by paragraph critique of [474]-[485] over some 4½ pages of submissions. They may be summarised thus. 1. It was put that her Honour's reliance on Sutherland v Stopes was not to the point, because what mattered here was whether the substance, not the detail, of what was said was the same as what was published. 2. It was submitted that [476] was wrong, in that the reactionary social media posts were not confined to tweets but extended to facebook posts, and in any event there were specific references to throat slitting (for example "Send this scum back to The Middle East. He will feel more at home there,……and hey he can slit someone's throat over there !!"). 3. It was put that [477] was wrong, because there was a world of difference between an impossible act ("rip off" a head) and a threat which might be carried out (slitting a throat). Further, the shitting down a throat was said to emphasise the absurdity of the threat. 4. It was put that Coleman v Power was misunderstood by the primary judge at [479], and that the phrase "(usually conditionally)" in the definition of "threaten" referred to in that case could not refer to the conditional phrase in the present case. It was said that "if you weren't so young" was "not really a condition at all", and was rather an explanation. Thus it was said that "An extrapolation of the full sense that lies within this compressed phrase is: 'I feel like ripping your head off, but I won't, because you are so young'." 5. It was said that there was a "fundamental misconception" in equating the phrase "if you weren't so young" to "if you don't" or "if this happens again". The latter still involved a threat, but it was put that the words actually used by Mr Massoud did not. 6. It was said that [480] was not clear in reflecting the impossibility of the threat in the purpose of provoking fear. 7. It was said that [481] was unclear, and that the repugnancy of the words reinforced the absurdity of the proposition. 8. It was put, again, that Stocker v Stocker was not to the point, because the issue in the present case was the difference between the substance of the two statements.
The submissions challenging her Honour's conclusion at [483] are best reproduced verbatim: "The judgment does not consider the combined effect of all the features relied on by the appellant to differentiate the two statements. Threatening to slit a throat is stark, unequivocal, direct and lethal. Ripping off a head and shitting down a throat is exaggerated, absurd, impossible and unlikely to be understood by any reasonable person as intended literally. Notably, despite his upset, Mr Warren did not say that he took the statement as a threat, or that he had any apprehension that the acts specified might be done. He said that he felt, 'Not very nice. I guess I felt upset, shocked, yeah, shocked, upset'. Not only is there the difference in substance between the acts specified in the two statements, but 'rip off your head' is prefaced by 'If you weren't so young'. There is no warrant in any of the authorities referred to for ignoring the obvious meaning of these words. If the statement had been 'If you weren't so young, I'd come up there and slit your throat', the opening words would still have operated as a disclaimer, just as in Tuberville v Savage. However, in the present case, the force of the disclaimer is strongly reinforced by the absurdity and unreality of the acts specified. In his account of the conversation to Ms Thatcher, Mr Warren used a different formulation of the same idea: 'The only thing that's stopping me from coming up there is [sic] ripping your throat out and shitting down your neck is your age.' This shows that he had clearly recognised that the appellant was disclaiming any intention to do what was described. The fact that Mr Warren clearly understood the appellant to have no intention of doing the acts specified reinforces that the appellant had no such intention. What he said was not a threat. There is a dimension misunderstood in the judgment. No doubt the reference to shitting down the throat is uncouth and vulgar. Many would be slow to incorporate it into their own repertoire. But its surrealistic quality is evident. The judgment records reactions of repugnance quite beyond what the ordinary reader would feel. The ordinary reader would be very unlikely to arrive at the conclusion that the 'shit down your throat' statement amounted to a suggestion of defiling a corpse (at [76] and [519]), or desecrating a corpse (at [579]). Logically, on analysis, no doubt that meaning can be found. But the ordinary reader is unlikely to pursue analysis to this point because of the obvious absurdity and unreality of what is stated. Such an analysis is premised on taking the statement literally, which is not how it would come across. Given the strong repugnance expressed towards the image seen as desecrating a corpse, there is a risk that the belief that the original words in Stand By Me were 'shoot down your neck' (at [309]), led to the conclusion that the appellant had malevolently changed the words to produce the distasteful image." (references omitted)
There are two further, discrete points which are best explained and resolved immediately, before returning to the main focus of this ground. These points were argued at some length, in written and oral submissions. Not only is there nothing in them, but it will be seen that they reflect an approach to challenging findings of primary fact which departs from well-settled principles respecting the advantage enjoyed by the judge at first instance.

Separate challenge to the rejection of questions asked in chief

A discrete aspect of this challenge was based on the disallowance at trial of questions asked in chief and in re-examination concerning the provenance of the words used by Mr Massoud in popular culture. This was ground 10 of the appeal and proposed ground 8 of the application for leave to appeal.
Mr Massoud gave evidence in chief that he first heard the phrase in the film "Stand By Me", and then added that he had subsequently heard the phrase on many other occasions. He was then asked: "Did you ever see any publicity after this occasion when you used it of someone else using it?"
When objection was taken, counsel said that the answer might refute any suggestion that the use of this phrase was particularly crafted to suit the occasion. The judge said that Mr Massoud had very recently explained why he used the phrase, namely, "it just popped into his head, it was a phrase he was familiar with, a phrase he'd heard used before", and asked what was the relevance of other people's use of the phrase. Counsel responded "Merely to confirm that it is part of the popular culture".
In this Court, it was asserted that the evidence would have included that he was aware of it in other films, and that it had been used by the New South Wales Minister for Police. The films are said to have been Doctor Detroit (Dan Ackroyd), Heartbreak Ridge (Clint Eastwood), and Full Metal Jacket (Stanley Kubrick), the latter in the form "Unfuck yourself or I will unscrew your head and shit down your neck." Indeed, Mr Molomby had opened his case to the primary judge to precisely that effect only shortly before the question was disallowed (transcript, 26 April 2021, p 16).
It was said that Mr Massoud would have given evidence that the phrase was part of popular culture, and its prominence there, which was relevant to the way in which the appellant said that it just popped into his head and was used "to blow off steam" and as an attempt at black humour. Mr Massoud submitted that: "with the passing of time, phrases accepted as part of popular culture tend to lose the sharp edge of their original meaning. Indeed, the original meaning can become completely lost, as in calling someone a 'bastard' or a 'bugger.'"
The point was that evidence establishing that the phrase was familiar in popular culture would lend support to Mr Massoud's claim that despite its crudeness, the words need not have conveyed any threat or intimidation. Mr Molomby referred by way of example to Aunty Jack's "You don't do what I like, I'll come round to your place and I'll rip your bloody arms off" (a submission which proceeded on the basis that the Court could take judicial notice of the 1970's television program The Aunty Jack Show).
Mr Massoud was asked in cross-examination about his understanding of the references to "Shit down your throat" in popular culture. He accepted that the phrase was used at a serious moment in the film, when there was a confrontation between some young boys and a man. He agreed that the words used by one of the boys "If you don't stop, I'll rip off your head and shit down your throat" were used "pretty aggressively" in the film. He then gave this evidence: "Q. So it's your understanding of the popular culture was it's used as an attack? A. That wasn't the only thing that informed me of the way that-- Q. Okay. But that was one of the things, wasn't it? A. It was the first thing, but there were - there were others over the years subsequently. Q. It's not a nice thing to say, is it? A. It's not a nice thing to say, no. Q. It's an aggressive, attacking and abusive thing to say, isn't it? A. Depending on the context in which it's used. Q. Depending upon the context in which it's used? A. (No verbal reply) Q. And in the movie, it was done in a very aggressive way, wasn't it? A. In a fictional movie, yes."
In re-examination, counsel once again sought to adduce evidence of the other times Mr Massoud had heard the phrase, by reference to the cross-examination reproduced above, but objection was taken on the basis that that questioning had been rejected in chief. In support of the challenge to the rejection of the question in re-examination, it was submitted that Mr Massoud's evidence about his understanding of the context in which the phrase was used was "plainly relevant to his own use of the phrase and his intention in doing so".
Let it be assumed, favourably to Mr Massoud, that he has a right of appeal on this ground. (The correctness of that assumption may be doubted. While no submissions were directed to the point, the rulings were interlocutory, and while there is a general rule that an appellant's right of appeal extends to interlocutory decisions which affect the final result: see Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [78], (a) there are exceptions to that rule and (b) it is far from clear that the decision affected the final result. But it is not necessary to take this any further.) The primary judge was correct to reject the question asked in chief. Mr Massoud gave without objection a long answer, on a topic which he must have known would arise when he was preparing for the case, as to his state of mind when he used the words. He was then asked on what occasions he had previously heard the phrase, and gave the answer concerning seeing "Stand By Me" and hearing it on numerous occasions thereafter. The question to which objection was taken was as to whether Mr Massoud had seen publicity after his conversation with Mr Warren of someone using the phrase. But his recollection of what he had heard other people say after the conversation could scarcely be relevant to the words he used, or what was in his mind when he used those words, on 1 May 2018. I think the question was properly rejected.
Concerning the rejected evidence in re-examination, the submission sought to be made on appeal was not made to the primary judge. The question was objected to merely on the basis that it was an attempt to adduce evidence which had been rejected in chief, and counsel for Mr Massoud did not seek to elaborate why that was not so. It is difficult to establish appellable error in rejecting a question when the point sought to be advanced on appeal was not made at first instance.
Thus the short answer to these grounds is that Mr Massoud has not established any error in relation to the rejection of the questions.
But there is also a more fundamental difficulty. It is hard to know with any certainty what was sought to be elicited, although counsel had opened the case earlier that day, presumably in the presence of Mr Massoud, on the basis that the phrase had been used by a Minister. But what Mr Massoud would have said at trial should be established by evidence, not assertion from the Bar table. The fact that Mr Massoud's evidence was led from him in the District Court (and if there was a witness statement or precis of evidence which had previously been served, it was not made available to this Court) does not displace the ordinary obligation to establish what would have occurred. The consequence of not doing so may be, as was said in State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 at [25] (a case where Giles JA regarded cross-examination to have been prematurely stopped) that it remains "at best speculative" whether the line of questioning would have been to the litigant's advantage, such that the court is not persuaded of any substantial wrong or miscarriage. I shall attempt to explain why that is so in the present case.
These grounds, if made out, could only lead to a retrial on different evidence. That requires attention to the restriction in UCPR r 51.53, which provides: "The Court must not order a new trial on any of the following grounds - (a) misdirection, non-direction or other error of law, (b) improper admission or rejection of evidence, (c) that the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury, (d) on any other ground, unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned."
That rule represents the long-delayed introduction into civil appeals in New South Wales of the provision abolishing the Exchequer rule that there was a right to a retrial when evidence was wrongly admitted or rejected. It may be traced to the Judicature legislation (it was r 48 of the rules annexed to the Judicature Act 1873, Order XXXIX r 3 of the 1875 rules and Order XXXIX r 6 of the 1883 rules). Similar wording was applicable to review of criminal convictions: see s 423 of the Criminal Law Amendment Act 1883, which anticipated the "proviso" in s 6 of the Criminal Appeal Act 1912 (NSW). However, the delayed introduction of the Judicature system in this State meant that it first appeared in civil appeals in the form of Pt 51 r 16 of the rules annexed to the Supreme Court Act 1970 (NSW), later renumbered as Pt 51 r 23. As observed in Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 at [39]: "The purpose of the rule was to overturn an entitlement on the part of the losing party to a new trial where evidence had been erroneously admitted or rejected: see Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [13]-[16], Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [15] and Bray v Ford [1896] AC 44 at 52. In the latter, Lord Herschell observed of r 6 of the 1883 rules that the provision was "a very beneficial one", and that "I should be sorry to say anything to narrow its scope further than the language employed seems to me to render necessary'."
Bray v Ford is familiar as a restatement of the obligations of a fiduciary, although the litigation was, as it happens, an action for libel where a retrial was ordered following a misdirection concerning the meaning of the publication. Although the Court of Appeal had declined to order a new trial, all members of the House of Lords allowed an appeal. Lord Shand said at 56 that "the defendant is entitled to have the real case submitted to the jury"; the same point may be seen at 48 (Lord Halsbury), 49 (Lord Watson), 52-53 (Lord Herschell). This Court confirmed the applicability of r 51.53 to a defamation verdict following a jury trial in Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290 at [35] and [59], although it too ordered a retrial, albeit a limited one. But the questions to which objection was taken at Mr Massoud's trial are far removed from these examples, and the time has long since passed the point where an erroneous ruling on evidence entitles a party to a new trial. Before Mr Massoud can have a retrial, it is necessary to consider whether there has been some substantial wrong or miscarriage in the trial being conducted without such evidence as Mr Massoud might have been given and been cross-examined on as to his beliefs of the usage of the terms in popular culture.
Let it be assumed that Mr Massoud would have given evidence that the words he used were similar to words used in other works of popular culture with which he was familiar, and were used more broadly, and that he did not intend them to be threatening or intimidating. I am unpersuaded that the absence of such evidence could have occasioned anything like a substantial wrong or miscarriage.
First, Mr Massoud's evidence would have added little to the record insofar as it would point to the words being used in popular culture. There was already evidence that the words were used in other works of popular culture. The "Defamation Concerns Notices" issued by Mr Massoud's solicitors were in evidence. They stated: "This colourful phrase, which has its origins in the British Royal Navy, is widely known through having been used in the films Stand by Me (based on a Stephen King novel), Clint Eastwood's Heartbreak Ridge and Stanley Kubrick's Full Metal Jacket (although in the latter, the actual quote is "Un-fuck yourself or I will unscrew your head and shit down your neck"). While it is an expression of intense anger and annoyance it cannot be taken literally as a threat to kill."
While the letters were tendered for the purpose of establishing a defence under s 18, they were also capable of being used as evidence to sustain a point which seems never to have been in dispute at trial, namely, that the words used by Mr Massoud had also been used in popular culture. Mr Massoud's evidence about "Stand By Me" was given without objection and he was cross-examined about it. The fact that the words were used by characters in other works as well as "Stand By Me" was both uncontroversial and of very little weight.
Secondly, insofar as it was contended that objections prevented Mr Massoud from giving evidence as to what he had in his mind when he used the phrase when speaking with Mr Warren, I disagree that this amounts to a substantial wrong or miscarriage. All that matters, in determining the substantial truth of the publications, was what and how Mr Massoud communicated with Mr Warren. His uncommunicated intentions are of themselves irrelevant. In principle it might be accepted that if Mr Massoud intended to be humorous, then that might perhaps bear upon whether his voice came across the telephone as humorous as opposed to intimidatory, but there are far better ways to elicit evidence of Mr Massoud's tone, and they were deployed at the trial by eliciting and challenging the recollections of Mr Massoud and Mr Warren and those who were with Mr Warren at the time.
Finally, consideration of whether there has been a substantial miscarriage involved an evaluation of the extent of any error in light of the scale of the trial and any retrial. Retrials should not lightly be granted. Lord Loreburn LC, speaking of an order for a new trial in a libel action after a relatively modest jury verdict had been set aside, said that "[i]n all cases it is a most deplorable result, not to be entertained upon any but the most solid grounds, as the only means of redressing a clear miscarriage": Dakhyl v Labouchere [1908] 2 KB 325n at 327. Windeyer J cautioned against taking those statements too far, emphasising a litigant's entitlement to have a trial in accordance with law in Balenzuela v De Gail (1959) 101 CLR 226 at 243-244; [1959] HCA 1, but a substantial part of that reasoning turned on the role of juries and an appellate court's inability to refuse a new trial just because the court thinks the jury's verdict is right albeit evidence was wrongly rejected. That consideration does not apply in the same way to judge alone trials. Further, the introduction of the requirement now found in UCPR r 51.53 that this Court reach a positive opinion that an error caused a substantial miscarriage of justice (see Balenzuela v De Gail at 235) is now to be approached in light of the provisions of Part 6 of the Civil Procedure Act including the obligation imposed upon this Court to exercise any power under the rules so as to give effect to the overriding purpose, and the object of resolving the issues in a way such that the cost to the parties is proportionate to the importance and complexity of the subject matter.
Nothing in the previous paragraph is novel. In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [96] the difference between a jury's opaque verdict and the reasons following a judge-alone trial was emphasised in this context. In Tory v Megna [2007] NSWCA 13, an appeal from a defamation action tried with a jury, Spigelman CJ with the agreement of Beazley P and Bryson JA gave attention to the significance of the then recently enacted s 56 of the Civil Procedure Act. At that time, r 51.53 was Pt 51 r 23 of the Supreme Court Rules. Spigelman CJ said at [28] that when applying that rule, "this Court must have regard to s 56 of the Civil Procedure Act". He noted at [36] by reference to what had been said in Balenzuela that "the law relating to new trials has continued to 'develop' in the 50 years since Balenzuela, as reflected, for example in the overriding purpose provision in the Rules, reflecting as it does the different contemporary approach to court control of the course of civil litigation." Spigelman CJ also observed that there had been held to be no substantial wrong or miscarriage when: "the error involved a matter that was tangential in the way identified by Herron CJ (with whom Sugerman JA agreed) in Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297 at 300: 'What has to be looked at is the essential justice of the case and for the appellate Court to see whether the error of the judge, if there was one, really bore upon the ultimate result'."
Returning to the facts of the present case, if Mr Massoud is right and the justification defence is not made out, then he has been defamed, and the fact that he used crude language does not of itself deny him a remedy. Yet without any evidence as to the parties' costs, it is clear that a ten day trial and a two day appeal with four counsel briefed must have involved legal costs in excess of the "maximum damages amount" imposed by s 35 of the Defamation Act. Mr Massoud gave evidence for some three days, and it has not been shown that if the objections to two of the questions he was asked were wrongly upheld, he would have given further evidence which was capable of having any appreciable bearing on the outcome of the trial. If the substance of what Mr Massoud would have said was already in evidence, then a new trial could not be justified: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 453; [1985] HCA 12. But even if the objection to the questions should have been overruled, and the answers would contribute in some minor respect to what Mr Massoud had already said in chief and been cross-examined upon, I am unpersuaded that the error "really bore upon the ultimate result" in the sense to which Spigelman CJ and Herron CJ referred above.
For those reasons, I am unpersuaded that there was any error in rejecting the questions. Even if there were error, Mr Massoud has failed to establish any substantial wrong or miscarriage such as to warrant ordering a retrial, and that carries with it the consequence that these grounds go nowhere.

Separate challenge to "private research" by the primary judge

Mr Molomby advanced the following submission, developing what had been said in writing: "Might I just revert to something that I remembered I overlooked? It's a small point. But in relation to the consideration of the merits both ways of that conversation, and this relates really to the source of the controversial phrase. It does appear that her Honour, although it wasn't in evidence, had a look at the film. That's a problem. It's not meant to happen. In the judgment, during the discussion at black 1, 176, where the film was raised, she interposed 1986, it was on last night. Now 1986 had not been mentioned in the evidence up to that time, nor the fact that it was on last night. Then in the judgment at red 2, 257, she gives a version of the words said, and it's not a version that was ever given in the evidence in court, at O to Q of 257. She says that the word used was 'shoot' - 'I'll rip off your head and shoot down your throat' in the film. It was treated universally in the trial otherwise. For her to have had, and it was never suggested by anyone that the word was anything else, for her Honour to have had that understanding can only be because she watched the film at the time at which she acknowledged during the trial that she was aware that it was on, and indeed the date of the film must come from the same watching, 'shoot down your throat'. We've said in our submissions if she believed that the words really were 'shoot down your throat' it is possible that she drew some adverse conclusion to the appellant on the basis that he had changed those words from 'shoot'. She doesn't say so, but my essential point is that if she watched the film, what the defendants put in cross-examination about the severity of the usage of the phrase in the film, might have been amplified, might have been qualified. She might have had an even more severe view of what happened in the film from watching it."
The submission amounts to a muted challenge to the fact finding process at trial. I do not accept that there is anything in it.
The premise of the submission is that her Honour had seen the film "Stand By Me". Two matters suggested that she had. The first was that her Honour disclosed during the trial that the film had been shown on television the previous night (transcript, 27 April 2021, p 173.21), and that she was aware that it had been made in 1986. The second was that in [309] of her judgment, her Honour said: "What is said in the film he mentions, "Stand By Me" (1986), is "if you don't stop, I'll rip off your head and shoot down your throat" (T 173 - 174), in the course of a scene of verbal attack and abuse between a group of boys and a man. It was put to the plaintiff that it was an aggressive threat in the film, and that his use of it on this occasion had similarly been as an aggressive threat, which he denied" (emphasis added).
It was submitted that the word "shoot" could only have come from viewing the film in a version where some of the profanity had been dubbed.
It may be doubted whether the premise of this submission is established. The fact that "Stand By Me" was released in 1986 is information readily available from a television guide. The transcript to which [309] refers records the cross-examiner confirming with Mr Massoud that in the film the boy says "If you don't stop, I'll rip off your head and shit down your throat". Thus the quotation of the transcript in [309], is inaccurate when it refers to "shoot" as opposed to "shit". It is entirely possible that this was a typographical error in a long judgment. It does not follow that her Honour actually saw the film.
Let it be assumed that the premise of Mr Massoud's submission is established, and her Honour had in fact seen a slightly sanitised version of the film. His point was that it was wrong for her Honour to have done so. "LEEMING JA: What's wrong with her Honour seeing the film? MOLOMBY: Because it's not in evidence. All that's in evidence is what the parties have chosen, both sides, to put in evidence about it in the terms which they have chosen, subject to each one contradicting the other and correcting or refining, and seeing the whole film is-- LEEMING JA: But her Honour wouldn't have had to have disqualified herself-- MOLOMBY: I'm sorry? LEEMING JA: Her Honour would not surely have had to disqualify herself if, by chance, she liked this film and saw it a month before the trial before ever knowing there was going to be this hearing before her. MOLOMBY: That's, I think, correct. Although, it might be cautious for a judge in that position to reveal that to the parties but I accept that that wouldn't be an ejector seat problem."
There are multiple reasons for rejecting Mr Massoud's submission, even assuming its factual premise is established. First, there can be no basis for complaint that the judge had personal knowledge of one of the works of popular culture from which Mr Massoud said his language derived. The same would be true if it had not been disclosed. Mr Massoud's point was that the language from the film had passed into popular culture; he could scarcely complain if the judge had personally seen the film a decade ago, or a year ago, or a month ago, or as it happened during the trial itself.
True it is that there is a general rule that a court's decision should be made on the basis of the evidence and argument in the case, and not on the basis of information or knowledge which is independently acquired. That aspect of the rule is directed to the rule against bias: Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (No 2) [1993] HCA 41; 68 ALJR 179 at 182. As the High Court there observed, a cognate rule requires a person be given an opportunity to meet the case against him or her.
But Mr Massoud's complaint was not couched in terms of bias or procedural fairness (and, if it were, it would be necessary to address questions of waiver and materiality). It will be seen that the submission made to this Court falls short of asserting there was an erroneous finding. Instead, it is based merely on a risk ("might have been amplified", "might have been qualified", "might have had an even more severe view"). I fail to see how that could be so. Mr Massoud accepted that the tone when the words were spoken in the film was aggressive and hostile. The primary judge rejected Mr Massoud's denial that he had deployed a similar tone when he said the same words to Mr Warren. How could that be affected by seeing the film or part of the film? Her Honour explained her reasons for her conclusion, the reasons are to be understood as recording the steps that were in fact taken in arriving at that conclusion, and either those reasons disclose error or they do not.
Mr Massoud's submission recalled complaints concerning jurors in criminal trials who are regularly instructed not to do their own "research" and not to rely on matters other than what is in evidence. But the comparison with an inquisitive juror does not hold. There is no counterpart to s 68C of the Jury Act 1977 (NSW), which makes it an offence to make an inquiry for the purpose of obtaining information relevant to the trial. To the contrary, the judge is free subject to requirements of procedural fairness to take judicial notice of a wide range of information which is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned: Evidence Act 1995 (NSW), s 144. Further, the judge presiding at a civil trial is required to give reasons for the outcome, while the jury's verdict is usually opaque, and that fact coupled with the criminal standard of proof results in the need to determine whether there is a risk that the jury may have been influenced by material to which they should not have had regard. But there is ordinarily no occasion to examine whether there was a risk that a finding was influenced by something to which the judge should not have had regard, and ordinarily an appellate court will not intervene in a civil case tried by a judge sitting alone merely on the basis of such a risk in the fact finding process. To the contrary, the judge's reasons will explain why the finding was made. The reasons are to be understood as recording the steps that were in fact taken in arriving at that result: Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130]; Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190 at [47]. So understood, either they will or they will not disclose appellable error.
Mr Massoud's complaint faces further hurdles, because this is an appeal by way of rehearing. Suppose, contrary to all of the above, there was error in her Honour seeing a sanitised version of the film which Mr Massoud said was the source of his language. I do not see how this point could have any material bearing on whether or not error is made out in assessing what was conveyed by Mr Massoud when he said what he said to Mr Warren. Further, to the extent that this is a retrial point, I fail to see how the preconditions in UCPR 51.53 could be satisfied, for substantially the same reasons developed in answer to the submission in support of ground 8 of the appeal.

The challenge to the defence of justification fails

A key aspect of the findings at trial was the tone of voice used by Mr Massoud and his intention in using those words when he spoke with Mr Warren. The primary judge found at [330] that after the call, Mr Warren was upset and shocked, broke down and wept uncontrollably in front of his colleagues, and was sent home early because of his distressed state. The main documentary and testimonial evidence bearing upon what occurred may be summarised as follows.
A colleague in the newsroom who heard Mr Warren's side of the call as it happened saw him crying, shoulders slumped, asked him whether he was okay, at which point he started to cry even more and told her through constant sobbing that Mr Massoud had said "If you weren't so young I'd head up there and slit your throat and shit down it". Her account (which was sent to Human Resources the following day, based on a note she made that evening) added: "Regardless of the fact it's my belief Jack didn't make a mistake what concerns me more is how Josh spoke to Jack. Jack could barely speak after getting off the phone he was so seriously battered. To speak to anyone with that sort of language is completely unacceptable let alone a fellow employee."
Another colleague, who came to see Mr Warren after the call, gave this evidence: "He was broken. You know, we often see parents who have lost kids in crashes or been murdered or whatever and you see them just totally distraught, filled with grief and that's what Jack was like. He was just inconsolable."
She explained in cross-examination that "it's not a normal situation to have a young man so upset". Neither witness was challenged on her recollection of Mr Warren's state.
Mr Massoud himself sent a text message that evening: "Hi Jack. It's Josh Massoud here. I just want to apologise for the way I spoke to you over the phone tonight. The fact I was upset was no excuse and the fact that you took ownership and apologised makes it even worse. I completely understand you might take it further and I'll have to accept the consequences if you do. Regardless of what you decide to do, I just wanted to say sorry directly. Josh."
Mr Warren gave evidence as well. He was 18 years and 2 months at the time of the call. He described Mr Massoud's tone as "agitated" escalating to "angry" and "frustrated", and said that he was shocked at the end of the call and in tears. He gave this evidence: "Q. Why did you cry on this occasion? A. I think I was just shocked; I'd never been spoken to like that before. I also, you know, a little part of me hates making mistakes, and I knew I had made a little bit of a mistake, even though it wasn't, you know, it wasn't 100% my fault, but. So there was a little bit of that and then just to get, you know, spoken to like that afterwards, it really, yeah, had a bit of an impact on me."
The cross-examiner elicited Mr Warren's agreement that part of the call was "perfectly civil", and that he had a "strong reaction" after the call, partly because Mr Warren realised he had made a significant error, and partly because of the way Mr Massoud had spoken to him.
Mr Massoud said, three years after the event, when giving evidence in his own case that he was not angry and was merely letting off steam and engaging in dark humour when he said the words. He denied saying those words in an angry tone. "Q. So your anger had virtually dissipated and then you made this graphically violent comment, is that right? A. That's correct. Q. Okay, and is that a serious answer? A. It is a serious answer. Q. Right. You were saying it in jest. Is that what you're saying? A. More or less. In a very poor choice of words, more or less, yes."
Mr Massoud was squarely confronted that he was not giving truthful evidence, that he wanted to shock and intimidate Mr Warren so that he never repeated the mistake, all of which he denied.
The primary judge did not accept that Mr Massoud was a witness of credit. Her Honour did so in terms, accompanied by substantial reasons. Those reasons warrant extensive reproduction, because Mr Massoud asked this Court to overturn the adverse assessment by the primary judge of his credibility, and to accept his account that in fact his language did not threaten or intimidate Mr Warren. Even if there were substance to Mr Massoud's submissions that her Honour had fallen into appellable error in her assessment of the evidence, this Court could not itself resolve the factual dispute. But the more fundamental difficulty is that Mr Massoud's submissions did not come close to establishing a basis for intervention in relation to a finding based on two days' cross-examination and the evaluation of Mr Massoud's evidence against that of other witnesses, most of whom contradicted his account. The most transparent way of demonstrating the magnitude of the task to overturn those findings, and how Mr Massoud's attack fell short of doing so, is to reproduce the critical passage of her Honour's reasons, despite its length.
Under the heading "Whose evidence should be accepted", her Honour found at [467]-[471]: "467 Challenges to the recollection of all of the witnesses of the events in question were made. It is tempting to rely upon the contemporaneous documentation, but I should not give too much weight to these, as oral testimony is the key to what happened. 468 Nevertheless, the contemporaneous records are important in terms of their evidentiary value. As noted above, and as Exhibit 1 confirms, Mr Warren's recollection of what was said, even the day after the conversation, was limited. As a witness, he readily acknowledged the gaps in his memory and made concessions where appropriate. I accept his evidence as a witness of truth, but acknowledge that there are gaps because he was, to use his own words to the compilers of Exhibit 1, "in shock" for much of the conversation. 469 Mr Warren's side of the conversation was heard by his fellow workers. The care for detail Ms Toney took in preparing the material in her email was apparent from her oral evidence as well. She gave her evidence in an objective and straightforward manner, without embellishment. Her oral evidence and memorandum, where these are inconsistent with the evidence of the plaintiff, are to be preferred. In particular, I accept her evidence as to the level of the plaintiff's anger and his refusal to let Mr Warren speak at times. Her evidence (oral as well as written) paints a vivid picture of an enraged plaintiff shouting abuse and using obscenities. She was not cross-examined about these observations. 470 The credibility of the plaintiff was the subject of sustained attack. Issues on which his evidence was unsatisfactory were the following: (a) Although the plaintiff claims a careful recollection of his conversation with Mr Warren, his recollection of his conversations with other persons he spoke to that evening consisted largely of saying he was unable to recall. In relation to Mr McGarry, for example, he claimed to be unable to recall his demand that the "millennial turd" who breached the embargo should be in the Centrelink queue the following day and it was only after he was shown his answer to an interrogatory that he admitted to having said this (T 129). (b) Another example of inconsistency between an answer to an interrogatory about the conversation he had with Mr Warren occurs at T 232-3, but on this occasion, the plaintiff had said in the interrogatory answer that he did not recall the exact phrases he used, whereas in his evidence to the court he said that he did. (c) The plaintiff admitted he was oblivious to the effect of his angry words on Messrs Wilson, McGarry and Ms Dallimore (T 129.49-T130.2) but claimed to be able not only to produce a carefully structured version of his conversation (set out in Mr Molomby SC's submissions) with Mr Warren, but to say that Mr Warren was not upset and that their parting was almost genial. Mr Molomby SC submits that the plaintiff's evidence about Mr Warren was "the same" (submissions in reply, paragraph 145), in that he was "blowing off steam" and did not turn his mind to what that "steam" would have meant to him. However, the point the defendants make is that the plaintiff's precise evidence as to what he and Mr Warren discussed is at variance with his inability to recall what he said to these other witnesses. (d) The examples in (a) - (c) demonstrate that what the plaintiff said he could or could not recall appears to factor into what he is prepared to say at the time in order to assist his case. The plaintiff used the phrase "can't recall" repeatedly; on 28 April 2021 he used the phrase more than fifty times. (e) The plaintiff was less than frank in his evidence about accusing Mr Warren of stealing. In his evidence in chief, the plaintiff used the word "taken" in relation to the embargoed story, although he later accepted that he had in fact accused Mr Warren of stealing (T 143). It was put to the plaintiff that he tailored his evidence in chief to make it sound less accusatory by using the word "taken", which he denied (T 143). He then volunteered a new word, "dispossessed" (T 143-147) and went on to use that word five times in his answers (as well as "dispossession" twice). This was to water down or avoid the fact that he had accused Mr Warren of stealing. He wanted to suggest that, in his mind at the time, he was intending something more benign. Mr Sibtain submits that as he put to the plaintiff that this evidence was not truthful (T 198), I should make that finding, and I do so. I am satisfied that this evidence is one of several occasions when the plaintiff sought to present his poor conduct in a flattering light. (f) Additionally, the plaintiff refused to accept that his allegation of stealing was intimidatory, volunteering that it was an accusation "with no consequences" (T 153-4). The plaintiff's failure to accept the intimidatory nature of an accusation of stealing, an allegation he also made to others (Mr Mobbs and Mr Kelly) reflects poorly on his credit. (g) The plaintiff's asserted regret at what he had said to Mr Warren (T 156) quickly vanished when, after [it] was put to him by Mr Sibtain that he was still angry, which he denied. To my observation of his demeanour in the witness box, he became angry, and this caused him to let down his guard and tell Mr Sibtain that what he said was simply blowing off steam, a jest, and an attempt at black humour (T 157). I consider this to be a more accurate statement of what the plaintiff believes than his assertions of regret about what he said, which means that I consider his expressions of contrition to the HR investigation (and also his evidence to that effect in this court) to be disingenuous. I also note that Mr Molomby SC continues to use the excusatory term "colourful phrase" in his submissions (see paragraph 147 of the submissions in reply). (h) The plaintiff was not prepared to make concessions where appropriate. For example, he was not prepared to agree that there was any imbalance of power between an 18-year-old cadet and a 40-year-old experienced journalist. To the contrary, he said that the power balance operated the other way, because Mr Warren's father was a senior executive. However, the plaintiff did not discover until later that Mr Warren's father was an executive; he abused and threatened someone he knew nothing about except that they were 18 years of age. (i) Some of the plaintiff's denials, such as his claim that he was unaware Supreme Court decisions such as McClellan CJ at CL's judgment in the Judy Davis defamation action were available online, were frankly implausible. (j) I was troubled by the circumstances in which it was put to Ms Taylor that a conversation she said she had with the plaintiff had not occurred, and a photocopy of what was described as a text message (although Mr Molomby SC thought it might be an email) was shown to her (T 540). Ms Taylor said she had no recollection of it and was surprised by its contents, which displayed a friendliness wholly missing from her other encounters with the plaintiff. Examination of the document by the parties' representatives led to Mr Molomby SC withdrawing his questions and apologising to her for having challenged her recollection of the conversation. Mr Sibtain submits, and I accept, that the attempt to deploy a document of unknown provenance reflects adversely on the credit of the plaintiff with respect to the truth of his answers concerning his interactions with Ms Taylor. (k) Mr Sibtain asks the court to reject the plaintiff's evidence of hurt to feelings, describing the plaintiff's repeated references to the publications concreting the damage caused by the erroneous report of what he actually said as untruthful. I consider the hurt to the plaintiff's feelings in fact came from his correctly (and publicly) reported dismissal, and not from the mistake as to the words for which he was dismissed. Mr Cordner, one of the plaintiff's reputation witnesses, observed that the plaintiff was devastated by his dismissal and did not refer to the matters complained of at all, let alone in terms of misreporting what was said. 471 I do not accept the plaintiff as a witness of credit. I do not accept his evidence as to the conversations he had with Ms Dallimore, Mr McGarry or Mr Warren on the night in question. I do not accept his evidence of his conversations with Mr Wilson or Mr Morrison. The evidence of those witnesses, and of the contemporaneous documentation, is to be preferred to the evidence of the plaintiff, which I only accept where it is corroborated by reliable evidence. Nor do I accept his evidence about hurt to feelings and distress arising from the words erroneously attributed to him in the publication; for reasons set out in more detail below, I consider his real distress was caused by the loss of his job and the publicity accorded to this humiliation. I also do not accept his explanation for taking no steps to correct this error until March 2019."
Mr Massoud's written submissions complained that the judgment failed to take into account "the striking difference between this conversation [with Mr Warren] and the three immediately previous conversations, illustrating that the appellant's anger had indeed substantially reduced, and the tone in which it concluded". Mr Massoud's submissions also complained that there was a "particularly prejudicial" error, in that the primary judge recorded that Mr Wilson told Mr Massoud that the embargo notation was not on the story, whereas his evidence was merely that he told Mr Massoud that he would find out what happened. This was the error which was said to have been "fundamental and very prejudicial" in the submissions reproduced above. Mr Massoud's submission concluded: "Thus, the assessment of the conversation in the judgment failed fundamentally to understand relevant evidence, failed to take relevant evidence into account, and took into account evidence obtained by private research that should not have been taken into account. In addition, the appellant was deprived of relevant evidence about his experience of use in popular culture of the phrase at issue."
In oral address, the submission was encapsulated as follows: "There is no evidence from Mr Warren of any yelling. There was no evidence that he was interrupted in what he was saying. There was no tirade as Mr McGarry said. He was able to say what he wanted. There is no invective. The conversation concluded, he agreed, perfectly civilly with his being commended for the way he handled the thing. That's in extraordinary contrast to what one would have expected with the growing fury and the previous phone calls. In short, it really can be explained only by what he says, that is that on finding out the young man's age his attitude changed radically, he realised this is probably the explanation, he still felt frustrated because his endeavour of the whole day to keep the story tight had failed, but his anger mostly dissipated on the spot when he found out he was 18. That's really the only rational explanation for his account of the call being so different from those previous calls, all of which occurred of course in a whirlwind of probably ten or 15 minutes."
When this Court is asked to make findings of fact not made at first instance, pursuant to s 75A of the Supreme Court Act 1970 (NSW), it is important for the Court and the other party to the appeal to know with precision the findings which are sought, and the evidence on which the submission is based. It would ordinarily be inefficient, as well as being potentially unfair to one or both parties, for the Court to be required to roam over the entirety of the record in the appeal books to identify evidence bearing upon a finding not made by the primary judge for which one party now contends. Hence the mandatory obligation in UCPR r 51.36(2): "Submissions raising any challenges to findings of fact must include a statement in narrative form (not exceeding 2 pages) at the end of the submission setting out only the following - (a) the findings challenged and supporting references to the judgment of the court below, (b) the findings contended for and supporting references to the transcript and other evidence in the court below."
Mr Massoud's written submissions did not comply with that rule, notwithstanding the significance and prominence of the challenge to findings of primary fact. Constructively, when this was pointed out, a document "Factual Findings Challenged" was supplied at the beginning of the second day of the hearing. (To be clear, it ought not be thought that the belated provision of such a document at the hearing will entitle a factual challenge to proceed; the document is not merely for the benefit of the Court, but so as to entitle the other party to ensure that the appeal books have the material relevant to the challenge, and can provide written and oral submissions in response.) The document provided by Mr Massoud identified his request that this Court make findings that: 1. Mr Massoud was a believable witness, and 2. Mr Massoud "did not intentionally threaten or intimidate Warren".
I would not make either finding.
First, even if otherwise satisfied, this Court could never set aside her Honour's findings and itself reach the conclusion that Mr Massoud was a witness of credit whose evidence could be believed. She found that some of his denials were "frankly implausible". Her Honour relied on particular aspects of Mr Massoud's evidence, including the 11 subparagraphs of [470] reproduced above. Even if her Honour were found to have erred in aspects of the reasons she gave for not accepting that Mr Massoud was a witness of credit, this Court could not conclude that he was a witness of credit.
Secondly, Mr Massoud's submissions seized upon some relatively minor aspects of the reasons, maintained that they disclosed error, and then asserted that this Court should intervene. That is not how a challenge to a finding of fact which was, or was likely, influenced by demeanour needs to be advanced if it is to have any prospect of success. In essence, while Mr Massoud acknowledged the restraint in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and the line of authority which preceded and followed that decision, his submissions did not apply that authority. In Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55], it was said in the joint reasons: "Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts."
The issue raised by Mr Massoud is the tone he used when calling Mr Warren, and his intentions in doing so. In accordance with what was confirmed in Fox v Percy and Lee v Lee, analysis commences with two things which are not in dispute: the fact that Mr Massoud used crude insulting language to a work colleague hitherto unknown to him, and the fact that the result was to reduce that colleague to tears.
The words used are not in dispute. Mr Massoud submitted that the phrase had moved into popular parlance, and was not nearly so offensive as her Honour had found. It is true that language changes over time. The (apocryphal) praise of St Paul's Cathedral as "awful, artificial and amusing" (by which was meant awe-inspiring, highly artistic and thought-provoking) is an example: see A Scalia and B Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West 2012), p 78. Words that were once highly offensive may lose their stigma. Conversely, words which were once anodyne may become highly offensive. I would also accept that there could be social situations when the words uttered by Mr Massoud might, given the right tone and context, not be regarded as offensive. Close friends who had just seen the film or played a computer game in which those words or words like them were used, and who were plainly making light of something, would be an example. But that is well removed from the present case.
The immediate context in which Mr Massoud spoke those words is not in dispute. Messrs Massoud and Warren had never met. They were work colleagues, employed by the same organisation but based in different States. This was their first conversation. It was not a social setting. It was a professional setting, involving an older, more senior employee expressing criticism at what was regarded as a mistake made by a teenager. There are many ways in which that criticism could be delivered, some more constructive than others. But inappropriate use of crude expletives to a junior work colleague who was accused of having made a mistake could only sensibly be understood as conveying anger and frustration and dissatisfaction with Mr Warren.
The immediate aftermath of the conversation is not in dispute. This was confirmed during the hearing: "LEEMING JA: I take it, because you're leaving it, there's no challenge in this Court to the evidence of Mr Warren about him being [in] shock, bursting out in tears for five minutes, culminating in a phone call from the head of sport in Sydney saying, 'You should never be spoken to like that', going home early, speaking to his mother and his father. No challenge to any of that? MOLOMBY: No. LEEMING JA: That bears directly upon the findings of fact you're going to be asking us to make-- MOLOMBY: It does. LEEMING JA: --about what was said and how it was said. MOLOMBY: It does, yes it does, I accept that."
To that may be added the unchallenged accounts of people working next to Mr Warren (one of whom witnessed Mr Warren's half of the conversation as it happened, and all of whom saw its effect), and Mr Massoud's own acknowledgement that he had no excuse for the way he had spoken to Mr Warren.
In circumstances where the words are a crude profanity, uttered in a professional context between employees who had never met, in the course of one criticising the work done by the other, and which left the other in tears, can it really be said that the trial judge's finding - rejecting Mr Massoud's evidence to the contrary - that Mr Massoud was angry and intended to intimidate and threaten Mr Warren was glaringly improbable or contrary to compelling inferences? The answer, to my mind close to self-evidently, is that it cannot.
Even so, I shall respond to the particular submissions advanced by Mr Massoud.
Mr Massoud said that he was not angry and was merely letting off steam and engaging in dark humour when he said the words. This evidence was disbelieved. There is no basis for interfering with that conclusion, notwithstanding Mr Massoud's submissions based on the concessions extracted from Mr Warren about Mr Massoud's tone (in stark contrast to the evidence given of Mr Massoud's tone and evident anger in the minutes preceding his conversation with Mr Warren), and the fact that it was Mr Warren who was making statements of apology throughout. Two points may be made here. First, Mr Massoud's heavy emphasis on the contrast between the evidence of the employees with whom Mr Massoud spoke immediately before speaking with Mr Warren, with the evidence from Mr Warren, is nothing like the sort of incontrovertible or glaringly improbable basis upon which a challenge to a demeanour based finding may be based. Secondly, there is a ready explanation for the apologies repeatedly given by Mr Warren which is inconsistent with Mr Massoud's case that he was calmly complaining about Mr Warren's failings. The primary judge addressed it in terms. The primary judge recorded at [325], based on Mr Warren's evidence in chief: "Throughout the conversation, Mr Warren repeatedly said words like: "I'm sorry, I made a mistake" (T 318) and agreed it was plausible that he had also said "I'm sorry it happened because I'm young and inexperienced" (T 328). It is not clear how many times he apologised, but it appears to have been at least four times. This was an effective way for him to deal with the plaintiff, because it gave the plaintiff no further ground for complaint."
Thereafter, at [326], her Honour referred to Mr Warren's evidence of Mr Massoud's tone of voice: "That should have been the end of the call, but it was not. Notwithstanding that Mr Warren had explained and repeatedly apologised to him, the plaintiff then said (T 318): "If you weren't so young, I'd come up there and rip your throat out and shit down it." (On the balance of probabilities, I am satisfied that the plaintiff did not say "probably"). Mr Warren said that by this stage the plaintiff's tone had escalated from agitated to angry and frustrated (T 318), and he was not challenged on that evidence."
Mr Massoud's submission that what he was found to have said was physically impossible, in contrast with a threat to slit Mr Warren's throat, may be accepted. But this is not to the point. Mr Massoud was intimidating Mr Warren. He was not threatening in fact to rip off Mr Warren's head and defecate down his throat. Likewise, if Mr Massoud had said that he would slit Mr Warren's throat, he would not have been understood as in fact threatening to do that.
A hostage taker or a terrorist or a violent criminal might threaten to slit someone's throat, and the threat might in the circumstances convey the actual possibility of being carried out. That might be so whether those words were spoken in an angry tone, or a frustrated tone, or a perfectly calm and controlled tone, and irrespective of whether they were shouted or whispered.
On the other hand, suppose Mr Massoud told Mr Warren that he would slit his throat. No one listening to those words, spoken on the telephone 1000 kilometres away, as one employee in the organisation to another, and obviously extremely annoyed about what he perceived to have been a mistaken post on electronic media, could have thought that he was conveying an actual possibility that he might carry out that threat. The reasoning in Stocker v Stocker [2020] AC 593; [2019] UKSC 17 at [25] is apposite, albeit in a slightly different context, of determining what was meant by "he tried to strangle me": "the danger of the use of dictionary definitions to provide a guide to the meaning of an alleged defamatory statement. That meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made."
Mr Massoud's reliance upon the physical impossibility of what he said he would do as opposed to the physical possibility of slitting someone's throat falls down at this point. The words did not convey their literal meaning. That happens all the time, including in professional contexts. Consider "time slowed down during counsel's address" or "counsel addressed at break-neck speed" or "counsel's cross-examination was deadly accurate, and fatal to the case". Or consider much of the familiar language deployed to describe principles in the law of defamation: bane and antidote; carefully talking about smoke not fire, the "sting" of an imputation, taking the second fence in the same stride as the first, and so on. A great deal of Mr Massoud's submissions understandably focussed upon the literal meaning of the published words that he had threatened to slit Mr Warren's throat. But the ordinary fair-minded reader and viewer not avid for scandal and of ordinary intelligence, experience and education is utterly familiar with the way in which language need not and often does not bear its literal meaning. As the respondents submitted, Mr Massoud's submission failed to grapple with the fact that the language used did not convey its literal meaning but was inherently intimidatory, leading to a profound adverse reaction on the part of the recipient to what was said.
Insofar as Mr Massoud stressed the conditionality of the threat ("if you weren't so young") to emphasise that it could not be carried out, the submission misses the same point. Most threats are conditional. That is an obvious statement about language, independent of what was said in Coleman v Power at [192] to the same effect. The meaning conveyed by Mr Massoud's threat is not the literal meaning of his words. The meaning conveyed is an angry belittling and intimidation of Mr Warren.
It is possible as Mr Massoud submits that there was a minor inaccuracy by the primary judge in recording Mr Wilson's evidence at [313]. The difference lies in Mr Wilson's evidence that he told Mr Massoud that he would look into whether the embargo notation had been placed on the story, as opposed to her Honour's statement that Mr Wilson had told Mr Massoud that the embargo notion had not been placed on the story. It is also true that her Honour did not expressly deal when analysing the evidence with the fact that the evidence adduced from Mr Warren lacked the expressions of anger which accompanied Mr Massoud's immediately preceding telephone calls. But even taking Mr Massoud's case at its highest, these are minor aspects of an assessment of a central issue in the trial, upon which a great deal of evidence bore, and do not come close to entitling this Court to intervene in her Honour's assessment of the primary facts.
It is not to the point that Mr Warren did not say, when giving evidence three years later, that he felt threatened, or that he feared that Mr Massoud would perform the acts he had spoken of. The absence of direct testimonial evidence from Mr Warren to that effect does not mean that Mr Massoud's words were not threatening. The words connoted a threat which would not be carried out in terms, but which nonetheless was intended to intimidate and belittle Mr Warren, and had that effect. There was an abundance of direct testimonial evidence and contemporaneous documents to support the finding that Mr Warren understood Mr Massoud's words to be intimidating and belittling.
At the heart of Mr Massoud's case is the proposition that there is a world of difference between what was published (a threat to slit a colleague's throat) and what Mr Massoud said (a threat to "rip your head off" and to "shit down your throat"). But none of those phrases in the context of a telephone conversation between Mr Massoud and Mr Warren could bear its literal meaning. The sense of the words Mr Massoud in fact used was to convey and reinforce the anger Mr Massoud felt at what Mr Warren had done, to intimidate him and belittle him. That sense was not materially different from the words published by the respondents, that Mr Massoud had threatened to slit his throat.
It follows that no error has been shown in the trial judge upholding the defence of justification in relation to the imputations that Mr Massoud made graphic threats to kill a young colleague or that he threatened a young colleague with violence.
As noted above, Fox Sports' notice of contention did not challenge the rejection of its defence of justification to the further imputation found to have been conveyed by Exhibit F that Mr Massoud was never a respected journalist. That makes it natural to turn immediately to Fox Sports' defence of honest opinion.

Notice of contention - honest opinion

Fox Sports contended that the primary judge should have upheld its defence of honest opinion in respect of its publication of Exhibit F (the broadcast on 21 September 2018 of episode 28 of "The Professor's Farewell Tour 2018").
The statutory defence of honest opinion sits alongside the common law defence of fair comment, as s 24 of the Defamation Act confirms. Section 31(1) of that Act provided: "31 Defences of honest opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material."
By s 31(2)(a), the defence applied otherwise identically to an expression of opinion by the defendant's employee or agent. The defence may be defeated if (speaking broadly) the opinion is not honestly held, but Mr Massoud made no attempt to establish that. Section 31(5) relevantly provided (it has subsequently been amended with the potential of expanding its scope but neither party said that anything turned on the amendment): "For the purposes of this section, an opinion is based on proper material if it is based on material that - (a) is substantially true, or …"
Section 31(6) has at all times provided that: "An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material."
The similarity with the common law defence of fair comment is clear. The common law defence has been said to have been "essentially reproduced" in s 31(1): Fraser v Holmes [2009] NSWCA 36; 253 ALR 538 at [75] (although see [78] where reference is made to "one possible difference"). Section 31 was enacted as part of the "uniform" defamation law reforms (they are not strictly uniform, as is pointed out by D Rolph, "A critique of the national, uniform defamation laws" (2008) 16 Torts Law Journal 207 at 208, although they are much less variegated than the "uniform" evidence law) and in large measure reverses the different approach adopted by Division 7 of Part 3 of the Defamation Act 1974 (NSW).
The parties proceeded on the basis that in construing s 31, which picked up language drawn from earlier judgments such as "expression of opinion", "statement of fact", and "based on proper material", it was open to have regard to decisions on the fair comment defence at common law and statutory variants of that defence (including, as will be seen below, the defence in substantially that form incorporated in the Queensland Criminal Code and the defence in somewhat altered form in Division 7 of Part 3 of the Defamation Act 1974). That accorded with what was said in Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290 at [37]. Statutes are not enacted in a contextual vacuum. Statutes unavoidably fall to be construed in light of the background in judge-made law against which they are enacted.
I shall pass over whether the change from "fair comment" to "honest opinion" connotes a broadening or narrowing of the concept of opinion (see A Kenyon, "Six Years of Australian Uniform Defamation law: Damages, Opinion and Defence Meanings" (2012) 35 UNSWLJ 31 at 50). Even so, regard to authorities on fair comment should be cautious, and on the basis that the source of the defence is statute, not judge-made law formulated in contexts when the statute was not enacted: see Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69 at [69]. I shall also pass over s 6(3), which provides that "the general law as it is from time to time applies for the purposes of this Act as if the following legislation had never been enacted - (a) the Defamation Act 1958, (b) the Defamation Act 1974". Those and other predecessor provisions have the potential for profound complexity, as noted in Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79; [2015] NSWCA 154 at [136]-[144] and Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWCA 155; [2019] NSWCA 172 at [207]-[213]. The only point I would make is that s 6(3) does not prevent reliance upon the principles in decisions such as O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; [1970] HCA 52, even though the reasoning is based upon provisions which s 6(3) deems never to have been enacted.
Of course, the point of the defence of honest opinion is that it is a defence for what would otherwise be actionable defamation. It is an aspect of the balance struck by the law to the effect that sometimes unjustified comment which injures a plaintiff's reputation may be made without liability. When relying on this defence, the defendant needs to establish that the defamatory matter is an opinion, based on proper material, in the public interest, and even if all those are established the defence will not be available if the plaintiff establishes that the opinion was not honestly held.
The controversy at trial and in this Court was as to whether the defamatory matter was an expression of opinion rather than a statement of fact as required by s 31(1)(a), and, if it was, whether that opinion was based on proper material as required by s 31(1)(c). It was not contended before the primary judge or on appeal that any opinion was not related to a matter of public interest, and Mr Massoud did not contend for dishonesty.

The broadcast

The segment took the style of a quiz show in a film studio in front of a live audience, with a pre-recorded sketch interposed. The quiz was between two competing teams, "The Normals" and "The Footballers". The studio portion of the segment commenced with the host welcoming the audience back to a special edition of "The Professor's Farewell Tour" and noting that the "Super Fan Quiz" continued. The host stated that it was "The Normals" team's turn to answer the question. He said "the question goes like this guys", but continued: "Earlier this year, Rugby League Reporter Josh Massoud was dismissed after threatening a young reporter. This show came to his support revealing that the phrase he used is part of everyday vernacular here at Fox League. Let's have a look at that first."
The sketch was then played. It depicted a number of men in different interactions in a workplace. One man greeted another by saying "Hey, slit your throat", to which the other man responded "Shit down your neck". The scene cut to a room with five men on computers and a sixth standing in the doorway. The man in the doorway asked "What's going on boys", to which the response was: "Man: Ah, just slittin' throats, Shervo and - Room in unison: - shitting down necks!"
Finally, the sketch showed a man holding a tray of coffee cups which he handed out to the other men, saying "James, slit your throat", "Greg, shit down your neck", and "Barney - piss in your eye". Until the words "piss in your eye" were said, the tone was universally friendly, cheerful banter, with the speaker smiling warmly. However, after the words "piss in your eye" were spoken, the tone changed dramatically. The speaker was rebuked by the others: "Everyone in the room: Aye, aye, aye, aye! (Whoa, Whoa). Man 2: It's a workplace? Man 4: Talk to me like that again mate, I will slit your throat and shit down your neck. Man 2: Sorry about that, Barney. Man 4: Does anyone have the number for HR? This is - "
The man then took a mobile phone and dialed a number, with the viewer being left to infer that he was calling the Human Resources department to complain of inappropriate language in the workplace.
The sketch ended and the segment returned to the quiz show. The host said "okay, the question goes like this. Is piss in your eye offensive?". Very quickly, before giving the "contestants" an opportunity to answer, the host answered his own question, saying "no, it's not". The host then asked the question: "True or false - Josh Massoud was a respected Rugby League journalist?"
A blurb on the screen then appeared showing the same question. The contestants, with interjections by the host, responded as follows: "Quiz player 1: Is he driving an ice-cream truck now - I heard that - yeah - but false, false. Quiz player 2: He is, yeah - yeah. False. Massively false. Host: Why false? Quiz player 1: Um. Quiz player 2: Why false? Host: Because he was never respected - is that - is that what we're going with? Quiz players: - well yes. That's what we're going with. Host: Okay let's go with that. Okay let's move on."
The segment which was Exhibit F then concluded, with the host asking a question on another topic.
It is important to bear in mind, when considering the submissions based on the fact/opinion distinction, that the publication was not merely the spoken words summarised above, but the performance, including tone and visual cues, all performed in a sequence, and with audible laughter from the audience. In Harbour Radio Pty Ltd v Ahmed at [40] this Court observed that: "The circumstances of the listener will, in practical terms, differ from those of a reader. The reader will ordinarily be better placed to distinguish fact from opinion than a person hearing spoken words."
The first sentence of that passage is unquestionably true. Readers move at their own pace, and can readily skip portions or re-read earlier passages. In many cases that may lead to a reader of a written publication being better placed to distinguish fact from opinion than a person hearing spoken words. But the empirical proposition in the second sentence is not stated to be universal, and the present case is an example where the visual and aural aspects of the publication matter. The reader of the transcript of Exhibit F cannot see the heavy feigned jocularity in the skit-within-the-skit, or the mock horror and distaste after the words "piss in your eye" are spoken, or the way in which the host speeds up his delivery of the first question "is piss in your eye offensive" and denies the "contestants" an opportunity to answer, or the tone with which the question "was [Josh Massoud] a respected journalist" was answered. Those matters bear directly upon whether there is an opinion as opposed to an expression of fact. The mode of delivery of any publication which is not written will always influence what it conveys, and sometimes the non-verbal influence may be decisive. As one work has observed, "[t]one of voice and facial expression will sometimes neutralize words which would, if read in print, convey a defamatory meaning": M Collins, The Law of Defamation and the Internet (2nd ed Oxford University Press, 2005), p 100. Similarly, something as nuanced as whether what is published is a statement of fact or an expression of opinion - the point emphasised in Pervan and O'Shaugnessy considered below - will be affected, sometimes decisively, by the publication's non-verbal aspects.
Exhibit F was episode 28 of a series. It seems plausible that many viewers will have seen one or more of the previous 27 episodes, and will have had expectations concerning the nature of what was to appear. In principle, one might expect that especially in the case of comedy and satire, an understanding of the recurring themes and the characters and personas depicted will inform meaning. Much of the humour in an episode of "Seinfeld" depends on an unstated understanding of the various characters' personalities and predilections; the same is true of much comedy. I have the impression that previous episodes (or an earlier part of episode 28) may have featured attitudes presented by the two teams, which are presumably not by chance named "The Normals" and "The Footballers". Some of these points were considered in Cornes v Ten Group Pty Ltd (2011) 114 SASR 1; [2011] SASC 104 and on appeal (2012) 114 SASR 46; [2012] SASCFC 99, an action for defamation arising out of a not dissimilar broadcast. The trial judge stated at [55] that the ordinary reasonable viewer was not to be considered to be imbued with knowledge of the previous shows. In any event, no evidence as to the nature of the previous episodes or the nature of the audience was adduced at trial, nor were any submissions made on this point, which I take no further.

Pleadings

Mr Massoud in his statement of claim identified "the matter complained of" as the segment which concerned him of episode 28 of the "The Professor's Farewell Tour 2018" broadcast by Fox Sports on 21 September 2018. A transcript of the segment was Schedule A to the statement of claim and a recording of the segment was tendered as Exhibit F. The segment was said to convey the following defamatory imputations of Mr Massoud: "a. That he threatened to slit a young reporter's throat Alternatively b. That he threatened a young reporter with violence c. That he was never a respected journalist."
Fox Sports pleaded that the matter complained of was an expression of honest opinion, rather than a statement of fact. Honest opinion was raised as a complete defence. The following particulars were given as to the proper material upon which the opinions were based: "[30] The expression of opinion in the matter complained of was based on the following facts and matters: (a) The plaintiff threatened a young reporter by using the phrase 'rip your throat out' and 'shit down it'. (b) The plaintiff was dismissed after the threat. (c) The plaintiff was unable to obtain employment as a journalist following his dismissal. [31] The facts and matters referred to in paragraph [30] above were proper material because each of those facts and matters were substantially true."

The reasons of the primary judge

The primary judge rejected the defence because the broadcast did not express an opinion, and because it did not separate any opinion from the facts upon which it was based. Her Honour said at [540]-[541]: "Fox submits that the 'skit' nature of the broadcast and the absurdity of what is portrayed result in this matter being clearly portrayed as an opinion piece about the plaintiff. However, it is possible for a defendant to make a defamatory statement of fact in a matter the general tone of which would otherwise appear to be an opinion: O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 174. In addition, care must be taken to ensure that what is comment is identifiable as such, and is distinguished from the facts. The Fox broadcast fails on both these issues. The plaintiff is asserted to have made the statements attributed to him in circumstances which, despite the general opinion tone of the joking support for him, retain their nature as facts. This is then elided with the claim that the plaintiff, apparently at least partly on this basis, was never a respected journalist. Fact and opinion are hopelessly intertwined."
Her Honour also found that the publication was in the public interest, concerning "issues of workplace behaviour and the treatment of colleagues": at [544]. Her Honour also found, assuming she was wrong about opinion, that there was a proper factual basis, derived from the threat to a young reporter by using the phrase "slit your throat" and "shit down it", his dismissal after the threat and the fact that he was unable to find employment as a journalist following his dismissal: at [546]-[549]. This aspect of the reasons gave rise to a minor aspect of the appeal, and may be addressed immediately.
Mr Massoud pointed to two reasons why there was no proper basis for any opinion. First, by paragraph 38 of Mr Massoud's submissions in reply it was said that insofar as the factual basis included the words "slit your throat" that was not true, and, for the reasons previously articulated, there was no threat. Secondly, in oral address, it was put somewhat differently: "One has to then look at this and say, 'Well, what would the audience think?' let's call it the producer, intended to be the basis for this opinion if it is an opinion? Assume for this it comes across to the public as an opinion. What would they intend to be the basis for it? I submit they wouldn't find a basis. They'd just find the way the script plays out; they're saying it's false he was respected, massively false, and then what's the reason for that? He was never respected. That's the really end of the track. There's nothing suggested to the mind of the viewer on which that is based."
These points are best resolved immediately. For the reasons given in answer to ground 3, there was no substantive difference between "slit your throat" and "shit down your throat", in the context in which Mr Massoud used those words, and the threat and intimidation was nonetheless conveyed notwithstanding there was no real prospect of the actions being carried out in the real world. Further, the words "shit down your neck" were used in the broadcast, as well as "slit your throat", and even if the latter was not proper material on which to base an opinion, s 31(6) provides that it is sufficient if the opinion might reasonably be based on such of the material as is proper material.
Mr Massoud's second point turns on it being inferred that the proper basis for the answers "false" and "massively false" is the subsequent statement of the host, "he was never respected". But that is not how the skit would be understood. The answers "false" and "massively false" follow the statements that Mr Massoud was dismissed after threatening a young reporter and the pre-recorded skit about crude language in the workplace. The questions asked of the contestants immediately follow the skit. Their answers are naturally to be understood as based on what preceded the question. I do not see how any viewer would regard the answers to have been based upon the host's comment after the answers were given.
I now address the main point of the notice of contention, which turned on the fact/opinion distinction.

Submissions on notice of contention

Fox Sports contended that the primary judge "erred in finding that fact and opinion were hopelessly intertwined in the matter complained of" and that her Honour "ought to have found that there was a clear separation of the facts from expressions of opinion".
Fox Sports submitted that this was a clear case in which "fact and opinion are in the same matter and move sequentially from fact, in other words the identification of the proper material, into opinion". Fox Sports pointed to the host's statement that "earlier this year, Rugby League reporter Josh Massoud was dismissed after threatening a young reporter" as a statement of fact, the interposed sketch as a parody but which made it clear that Mr Massoud had used the phrases "slit your throat" and "shit down your neck", and the statement by the quiz player "is he driving an ice-cream truck now" as a further statement of fact. These were said plainly to be statements of fact, being assertions of objectively verifiable matters, which were "put front and centre for the consideration of the ordinary reasonable reader".
By contrast the question "true or false - Josh Massoud was a respected Rugby League journalist?" was said to be an invitation to comment and the answers "false, false", "massively false" and, in response to "why false?", "because he was never respected" were opinions, being conclusions or evaluative judgments based on those facts. It was contended that the word "respected" was "itself a question of judgment", and that notwithstanding the quiz show format, the question that was posed did not call for a right or wrong answer but was "pregnant with an evaluative character, namely the level of respect". The submission was that the question in essence was "is this guy any good? What do we think, yes or no?", and that the men were expressing the estimate they had formed of Mr Massoud.
Mr Massoud submitted that the matter complained of could not be found to be an expression of opinion because the broadcast was in the format of a quiz show "and that is a format quintessentially where people are looking for the right factual answer". This was said to be reinforced by the framing of the question as "true or false". He submitted that whether a person was "respected" was "a factual matter in its nature", involving consideration of other people's value judgments: "Are there, as far as the person knows it, understands it, people out there in the community who respected this person?".

What is the "matter" for the purposes of s 31(1)(a)?

A threshold question is the meaning of "matter" in s 31(1)(a). I shall pass over the history of the complexities introduced by the 2005 legislation, as well as the shifting in the approach taken to the former defence of comment under Pt 3 Div 7 of the Defamation Act 1974 (NSW) noted in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at [81]-[82]. The difficulties and significance of distinguishing whether it is the imputation or part of the published matter which is the "matter" comprising the expression of opinion for the purposes of s 31 are considered by K Gould, "The proper focus of defamation defences and the challenge of inconsistency" (2010) 33 Australian Bar Review 258 at 270-272. No challenge was made to what was held in Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News (2020) 102 NSWLR 733; [2020] NSWCA 56 at [66]: "Accordingly, the first question is not whether the defamatory meaning (that is, the imputation) from the matter published in the first article was opinion rather than a statement of fact, but whether the defamatory matter was a statement of opinion rather than fact."
The issue is thus not whether the defamatory meaning ("Josh Massoud was never a respected journalist") was an expression of opinion rather than a statement of fact, but whether the matter published insofar as it conveys the defamatory imputation is an expression of opinion. Thus when seeking to apply the distinction between fact and opinion, the words that matter are the question "true or false - Josh Massoud was a respected Rugby League journalist?", and the answers "false", "massively false", the further question "why false?" and the further "answer" which was in fact provided by the host: "because he was never respected". However, those words are not assessed in a vacuum. It is necessary also to have regard to the way in which they were used in the publication, including its visual and aural aspects.

Expressions of opinion and statements of fact

The s 31 defence fastens upon a distinction between "expression of opinion" and "statement of fact". The fact that distinguishing expressions of opinion from statements of fact may be difficult has been recognised for many years. The passage from editions of Odgers on Libel and Slander reproduced in Kemsley v Foot [1952] AC 345 at 356 and Manock at [48] is an example: "Sometimes ... it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful', this is merely the expression of his opinion, his comment on the plaintiff's conduct. So, if without setting it out he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment."
No clear line can be drawn. Giles JA explained in John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; [2005] Aust Torts Rep 81-789 at [27] that "Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important". In State of New South Wales v IG Index plc (2007) 17 VR 7; [2007] VSCA 212 at [51], Nettle JA said, by reference to Lord Ackner's speech (dissenting but not on this point) in Telnikoff v Matusevitch [1992] 2 AC 343 at 358: "it is not always easy to draw the distinction between an expression of opinion and an assertion of fact. The very same words may be one or other according to their context."
Two High Court decisions illustrate the approach adopted in this area. A broad approach to what is an opinion may be seen in Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; [1993] HCA 64. The publication was: "Councillors feathering their own nests? Funds being misappropriated? This is doing irreparable damage to the image of our shire. It is now more important than ever to attend the ratepayers and residents meeting at the Grand Central Hotel Tuesday, 12th August at 8 pm."
The joint judgment considered the fact/opinion distinction, for the purposes of a statutory defence based on fair comment under s 377(8) of the Criminal Code (Qld) (where most of the Queensland law of defamation was to be found) at 317-318. Their Honours said at 318 that the Full Court had erred in failing to appreciate that whether the publication was fact or opinion was a matter for the jury, and erred in proceeding on the basis that the two questions were questions of fact. Their Honour proposed an alternative view: "An alternative view is that the author of the advertisement, mindful of the allegations and the subsequent newspaper debate, was seeking to raise for consideration in the public arena the correctness of the allegations. In other words, by the two questions he was asking: 'Are the two allegations true?' And by the next sentence the author was saying: 'The making of these unresolved allegations is causing irreparable damage to the image of the Shire.' Accordingly, attendance at the meeting to be held in the Grand Central Hotel was a matter of great importance to ratepayers and residents."
Their Honours said that, so regarded, the two questions may be characterised as comment, and the issue should have been left to the jury. The appeal would have been allowed on this ground, save that because the case had been conducted on the footing that the issue was for the judge not the jury, there was no ground for a new trial. The decision indicates that even a seemingly factual publication may be understood as comment.
Conversely, something as subjective as a caustic theatre review may nonetheless contain statements of fact which fall outside the operation of cognate defences to that of honest opinion. The critical words in O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; [1970] HCA 52 which were found to be reasonably capable of being taken as an allegation of fact were "the waste and dishonesty of this production, or rather recitation, make me very angry indeed". All members of the High Court found error on the part of the trial judge in treating the whole of the publication as a question of comment. Windeyer J's concurring judgment at 177 captured the reasoning: "The matter published by the respondent in its newspaper was a vigorous, and in parts abusive, criticism of a public performance of 'Othello'. It was I consider capable of being read as not only disparaging comment on the performance, but, along with that, as an assertion that the appellant had produced the play in a dishonest way, in that he had selfishly and deliberately wasted the talents of other actors in order to enhance his own part by taking attention from them. So read, the words 'waste and dishonesty' were a hendiadys. Dishonesty does not necessarily mean cheating or fraud. It may denote other forms of improbity - conduct that is dishonourable because not straightforward but designed to serve an unworthy end. In whatever sense it is used, it is a defamatory word. It is no doubt a judgment upon conduct. It is a judgment that in some contexts is a comment upon facts stated or well known: in other contexts, when the facts on which it is based are not fully stated or known, it is an allegation of a fact. Whether in a given case it is a statement of fact or merely the expression of an opinion, a comment on facts, must depend upon all the circumstances."
The force of the reasoning and result in O'Shaughnessy is heightened when it is appreciated that reviews of books and plays are at the heartland of the defence of fair comment: see for example Carr v Hood (1808) 1 Camp 355n; 170 ER 983 and Stuart v Lovell (1817) 2 Stark 93; 171 ER 583, noted in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215-216; [1996] HCA 47.
Both Pervan and O'Shaughnessy turned on whether a point should have been left for a jury to decide. Of course, the primary judge sat alone, and this Court is in as good a position as her Honour was on this point. Pervan and O'Shaughnessy illustrate that there is a deal of latitude in the distinction, and that it will depend upon all the circumstances.

Three false issues

Some false issues intruded into the analysis in the present case.
First, the statement concerning whether Mr Massoud threatened to slit a young reporter's throat, which is the first imputation alleged to have been conveyed by the publication, is a matter of fact. Whether Mr Massoud was never a respected journalist, which is the third imputation alleged to have been conveyed, is, to say the least, much more contestably an expression of opinion. Yet at trial Fox Sports relied on s 31 in answer to all the imputations conveyed by Exhibit F, and it may be that insufficient attention was given to the different ways in which that defence operated in relation to different defamatory imputations. These reasons address only whether s 31 is a defence to the publication insofar as it conveyed the unjustified imputation that Mr Massoud was never a respected journalist.
Secondly, words which bear upon whether or not Mr Massoud was a respected journalist are of course words which turn upon opinions. "Respected" connotes being held in respect by his peers, and perhaps also by the sportspeople who were the subject of his reports, and his audience. Fox Sports submitted that that was sufficient. Mr Sibtain said that the statements were expressions of the estimate the speakers had formed of Mr Massoud, referring to the 8th edition of Salmond on the Law of Torts, where "comment or criticism" was said to be: "essentially a statement of opinion as to the estimate to be formed of a man's writings or actions. Being therefore a mere matter of opinion, and so incapable of definite proof, he who expresses it is not called upon by the law to justify it as being true, but is allowed to express it, even though others disagree with it, provided that it is fair and honest."
But contrary to this strand of Fox Sports' submission, I do not think that that suffices to conclude that the publication was an expression of opinion. To accept that submission would be to ignore the stricture restated in many cases, including O'Shaughnessy, that it is necessary to look at all of the circumstances.
Thirdly, contrary to Mr Massoud's submission, the quiz show format does not compel the conclusion that the publication was a statement of fact. The skit used a quiz show format to convey humour. The vehicle chosen for comedy does not deny the capacity of the broadcast to amount to an opinion. Examples of comedy which are based on communications which would ordinarily be factual (such as spoofs of news or current affairs programs) may readily be brought to mind.

The opinion was not hopelessly intertwined with the facts

There is no dispute, as Fletcher Moulton LJ said of the common law defence in Hunt v Star Newspaper Company Ltd [1908] 2 KB 309 at 319, in a passage reproduced by the joint judgment in Channel Seven Adelaide Pty Ltd v Manock at [41], that "in order to be justifiable as fair comment must appear as comment, and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment". On this basis the primary judge rejected the defence of honest opinion.
I would accept Mr Sibtain's submission that this is a case where the skit clearly differentiates what it is doing. There are three parts. The first reminds viewers of facts in the past, namely the dismissal of Mr Massoud after threatening a young reporter. The viewer is perhaps presumed to be familiar with the fact that it was because of the language of the threat, but in any event that is implied, when the host states that the show has come to Mr Massoud's support, revealing that the phrase he used was part of everyday vernacular at Fox League. The second part is the pre-recorded skit. The third part is the questions and answers in the quiz show format, in which the question whether Josh Massoud was a respected Rugby League journalist is asked, and answered "false. Massively false", with an explanation from the host "because he was never respected".
The primary judge held at [541] that the statements attributed to Mr Massoud retained their nature as facts despite the general tone of joking support for him. I do not disagree. But in that sentence in [541], her Honour was rejecting Fox Sport's reliance on the defence in relation to the primary imputation that Mr Massoud threatened to slit a young reporter's throat. She was not addressing the secondary imputation that he was never a respected journalist. The only reference to that imputation is in the conclusion, which her Honour regarded as hopelessly intertwined with the factual matter of the language used by Mr Massoud. In fairness to her Honour, Fox Sports' submissions did not seek to address the imputations separately. However, if Mr Massoud's use of crude language threatening a young reporter is treated as the statement of fact which it undoubtedly is, then it is introduced by the host at the outset of the episode, and then brought home to the audience by the pre-recorded skit. The imputation that Mr Massoud was never a respected journalist is derived from statements given in the third portion of the publication. The format of the show, involving the contestants answering a question based on what they have previously seen, confirms the clear demarcation between the factual background and the answer which founds the defamatory imputation they are about to give.

The words carrying the defamatory imputation were expressions of opinion

It is necessary to look to the actual words used which gave rise to the imputation. Those are the words "yeah - but false, false", "false. Massively false" and "because he was never respected". There is a heavy emphasis in the words, conveying not merely the binary true/false answer to the question, but emphatic disagreement.
In response to the question "true or false - Josh Massoud was a respected Rugby League journalist?", the answers "false, false" and "false. Massively false" were given. On one view, the quiz participants were not remarking upon whether they personally respected Mr Massoud, but rather his status in the eyes of his peers or readers. This would tend to be indicative of the remarks having been statements of fact. However, as has been noted, a statement of fact drawn from other facts may be understood by the reasonable viewer to be an expression of opinion.
In Manock the joint judgment emphasised at [35] and [36] the way in which expressions of opinion could be conveyed by words which, taken in isolation, might be thought to be statements of fact: "A 'discussion or comment' is to be distinguished from 'the statement of a fact'. 'It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated.' … [T]he distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of 'comment' as 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc'. It follows that a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts. Thus, in the words of Field J: '[C]omment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room for the inference that it was understood otherwise than as a bare statement of fact'. (emphasis added) The question of construction or characterisation turns on whether the ordinary reasonable 'recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered' - not 'an exceptionally subtle' recipient, or one bringing to the task of 'interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at'."
It is true that the responses from the contestants and the host purported to answer the question whether Mr Massoud "was" a respected journalist. The answer was an emphatic no, which is then amplified by the host stating that "he was never respected". If taken literally, that is a statement that Mr Massoud never enjoyed a reputation as a respected journalist.
However, "[i]nterpreting defamatory language is more difficult than it looks": P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005), p 51. The questions and the responses must be taken in their context. "The Professor's Farewell Tour 2018" was a satirical comedy show about Rugby League clubs, players and games. The episode in question aired on 21 September 2018, a Friday. It was not and would not have appeared to any reasonable viewer to be anything like an investigative journalism program. The statements in question were made at the end of the segment, in which the tone was generally satirical and sarcastic. The words responded to a true or false question, whether Mr Massoud was a respected journalist. The analysis must proceed on the basis that parts of the publication convey the imputation that Mr Massoud was never a respected journalist. Do those parts amount to expressions of opinion or statements of fact? I have concluded that they are the former. They were an emphatic condemnation that a man who used crude language in the workplace, and was dismissed for doing so, was not a respected journalist. The point of the pre-recorded skit was to emphasise, by a scene which normalised the very language Mr Massoud used and was dismissed for, that such language should not be used in the workplace. On one view, the pre-recorded skit was also leaving it to the viewers to form their own views as to the appropriateness of the language. However, the views of the host and the men answering the host's questions were denouncing him, on the basis that they considered that Mr Massoud was not a respected journalist because he used the language in the skit. Their opinions were expressed in strong language ("massively false" and "never") but they remained opinions based on the language he had used and the dismissal for using it.
I would uphold Fox Sports' notice of contention.

The offer of amends by Radio 2GB Sydney (grounds 8 and 9)

The primary judge found that an offer of amends dated 2 April 2019 served by Radio 2GB Sydney was a complete defence to all five of its publications. Ground 8 of the appeal challenged that conclusion in relation to the two radio broadcasts by Mr Hadley (Exhibits C and E). Ground 9 challenged that conclusion in relation to the three website publications (Exhibits A, B and D).
The offer was made following receipt of a "defamation concerns notice" dated 4 March 2019, identifying the five 2GB matters, maintaining that there was no truth defence and then identifying the following matters: "There are three aspects of this that we seek to highlight for the purpose of the defamation proceedings against you; 1. Our client's statement began with the words 'If you weren't so young, I'd come up there...'. This was a clear disclaimer of any intent to do anything. It was in effect saying, 'Because you are so young, I will not do this'. In other words, there was no threat to do anything. 2. In any event, it was obviously unreal because it is impossible, physiologically. One cannot 'rip' someone's head off nor, given the presence of bone and muscle, 'shit down someone's throat'. This colourful phrase, which has its origins in the British Royal Navy, is widely known through having been used in the films Stand by Me (based on a Stephen King novel), Clint Eastwood's Heartbreak Ridge and Stanley Kubrick's Full Metal Jacket (although in the latter, the actual quote is 'Un-fuck yourself or I will unscrew your head and shit down your neck'). While it is an expression of intense anger and annoyance it cannot be taken literally as a threat to kill. A court will accept that our client was merely using a known colourful expression to show the dimension of his anger that the embargo had been breached, and not as an actual threat to kill. 3. That our client threatened to 'cut' or 'slit' the junior colleague's throat is a complete and utter fabrication. 4. No effort was made by you, prior to publishing the story, to establish whether our client agreed with the words attributed to him by you."
The plaintiff's solicitor asked for removal of the matters from the website, an apology published on the website and a further apology to be read by Mr Hadley together with an agreement not to republish the matters and an agreement to pay compensation to be determined by a court.
The response to the notice explicitly maintained that "even if imputations that your client made graphic threats to kill or slit the throat of the cadet are conveyed (which is not admitted), a defence of justification would be available". The offer which was made was in the following terms: "1. A correction published below the headline of each of the Matters Complained Of that are online articles hosted by the Station, as follows: 'Correction: Josh Massoud has denied threatening to "slit" the employee's throat. Rather, he says that he told the employee that "if you weren't so young, I'd rip off your head and shit down your neck". Massoud denies that these words were intended as a threat because it is "impossible, physiologically" to rip a person's head off or "shit down their neck".' 2. Reasonable steps will be taken by the Station to ensure that any person who may have been given the broadcast is made aware that the Matter Complained Of may be defamatory of your client. 3. Your client's reasonable costs incurred before this offer was made and in considering this offer, paid within 28 days of acceptance of this offer. 4. The terms of this offer of amends to remain confidential."
After reproducing a summary of the parties' submissions, her Honour addressed this defence at [566]-[580]. Her Honour was of the view that the sole error in these publications lay in the specific words attributed to Mr Massoud, namely, whether he added "if you weren't so young" and did not say "slit". Her Honour was of the view that that was appropriate for a correction. Her Honour was of the view that while there would be very few cases where the publication of the correction of an error without more (except for payment of costs) would be sufficient, the special characteristics of this case made it such a case. Her Honour added: "[578] If the words spoken by the plaintiff which caused his dismissal were wrong, the readers were entitled to know what he really said. Removal of the matters and/or an apology stating that he did not use those words would not have achieved this. Viewed objectively, all the plaintiff should be entitled to seek is correction of the wrong words by a prominent placement of the right words. [579] Why did the plaintiff not include what he actually said in his proposed Apology? It may be because what the plaintiff actually said was arguably worse, in one way, than what was attributed to him by Exhibits A - E, as in four of the five 2GB matters there is no reference to the second part of the sentence, namely the 'shit down your neck' statement. It is these words, rather than the threat to slit the throat, which reveal the vileness of what the plaintiff actually said. It evokes desecration of a corpse and requires the publication of a swear word. This part of the plaintiff's threat to Mr Warren was described as 'too graphic to publish' in Exhibit A and left out of the others except Exhibit D. [580] Taking into account the factors outlined by McCallum J in Pedavoli at [100], the reasonableness of the correction, including the extent of its reach, coupled with the offer to pay reasonable costs, is sufficiently established to result in an alternative finding upholding the respondent's defence under s 18 of the Act."
It was common ground that this defence fell to be considered on the basis of s 15 of the Act in the form it took in April 2019, when the offer was made. At that time, s 15(1)(d) provided that one of the essential elements of an offer to make amends was that it "must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited". More recently, following the commencement of the Defamation Amendment Act 2020 (NSW), the class of offers capable of satisfying s 15(1)(d) has expanded. The current wording is as follows, with the words inserted in 2020 emphasised: "An offer to make amends … (d) must include an offer to publish, or join in publishing, a reasonable correction of, or a clarification of or additional information about, the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited".
Thus, under the current form of the provision, an offer to make amends need not include an offer to publish a reasonable correction so long as it contains instead "a clarification of or additional information about" the matter in question.
When introducing the bill which proposed the amendment to s 15(1)(d), the Attorney General said the following: "Section 15(1)(d) currently provides that an offer to make amends 'must include an offer to publish, or join in publishing, a reasonable correction of the matter in question'. Some stakeholders submitted that this incorrectly assumes that every matter complained about is capable of a reasonable correction. In some instances the complaint may not relate to a factual inaccuracy but to an omission of contextual information, which cannot be corrected as such. Schedule 1 [13] amends section 15(1)(d) to provide that the mandatory requirement for an offer to make amends may be fulfilled by an offer to publish 'a clarification of or additional information about' the matter in question." (Parliamentary Debates, Hansard (LA), 29 July 2020, p 2869).

The parties' submissions

Mr Molomby's first submission was that the offer was not a "correction". Rather, it would if accepted have produced the result that the inaccurate language was repeated in the online publications, together with Mr Massoud's claim of what he had said. That was not a "correction" but rather presented both the erroneous version and that claimed by Mr Massoud, without saying explicitly whether the publisher accepted Mr Massoud's claim and without saying explicitly whether what had previously been said was incorrect.
Mr Massoud's next submission was that her Honour erred in concluding that what was proffered was a reasonable correction. Thirdly, he submitted that in the absence of any correction relating directly to Mr Hadley's radio program, it could not satisfy s 15(1)(d) in relation to Ex C and E.
Radio 2GB submitted that the first word of what was proposed to be published was "Correction", and that it "would have been plain to any reader of the correction that it was correcting something that was said wrongly, and it was implicit in the fact and content of the correction that 2GB was acknowledging that something had been said wrongly". Counsel then addressed the practical reality of what was proposed, namely, that within the original online publications, directly below the headlines, 2GB would have published the words "Correction: Josh Massoud has denied ….". It was put: "It is true that it does not involve an amendment to the original article to correct the statements of fact. Our submission to that is, firstly, it meets the statutory definition of a correction in that a correction of itself can involve redaction, omission or additional material. … The definition itself doesn't confine it one way or the other. The effect of including the denial and including the specific matters that have been denied in the context of an article that proceeds to tell a sequence of events, effectively is giving the reader the short answer of why some of the material in this article is not correct and we wanted to bring it to your attention, so the offer goes."
It was put that it was not necessary to amend the original online publication, and that if that were done, it would not be drawn so effectively to the reader's attention that the publisher was making a correction. It was also denied that it was necessary for there to be any separate published response to what had been broadcast on air, as opposed to published online, in order to satisfy the definition, and it was submitted that where a great deal of what had been published was already true, the offer was reasonable.

Consideration

Whether an offer is a "correction" for the purposes of s 15(1)(d) turns not on its form but its substance. That is to say, s 15(1)(d) (as enacted at the time) is not engaged merely by an offer to publish the word "Correction:" followed by some further information. A correction involves two elements: acknowledging that an error has been made and stating what the correct position is. Radio 2GB Sydney's letter fell short of acknowledging that it had published something which was incorrect. Nor did it state what the correct position was. Instead, what was proposed was to place further information at the beginning of the original online publications, namely, the word "correction" and a statement of what Mr Massoud denied he had said and what he claimed he had said.
True it is that the first word "correction" would cause the reader to think that the publisher was about to correct something which had previously been said which was incorrect. But a fair reading of what follows fails to fulfil the expectation created by the first word. Instead, what is conveyed is merely a claim and two denials by Mr Massoud: his denial that he said one thing, his claim that he said something else, and his denial that he intended any threat. That falls well short of correcting the publication which was not about what Mr Massoud claimed or denied, but instead was about what was said actually to have occurred. Having read the newly published words, the reader would have a much better understanding of Mr Massoud's position, but not know whether the publisher maintained the accuracy of its original publication, or accepted Mr Massoud's claim and denials, or adopted some intermediate position. The position would have been different if the offer had included an acknowledgement such as "We accept that our articles were not correct".
That conclusion ought not be regarded as turning on a fine distinction of language. It is the ordinary meaning of the proposed publication. It is confirmed by the fact that the letter denied that anything which had been published was not justified.
What 2GB proposed was unquestionably an offer to publish "additional information about" the matter in question, and thus capable of engaging the amended form of s 15(1)(d). But it falls short of being a "correction".
That conclusion is reinforced by the way s 15 operates. As Mr Molomby emphasised, an unaccepted offer to make amends is a complete defence if it is made as soon as reasonably practicable, and was an offer which the publisher was ready and willing to carry out and was in all the circumstances reasonable: s 18(1). One of the matters to which a court must have regard is "the extent to which the correction or apology is brought to the attention of the audience of the matter in question" (s 18(2)); that tends to confirm that the s 15(1)(d) offer should convey that the publisher had previously published something that was incorrect.
Further, the provisions as originally enacted operated on the basis summarised in Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259 at [57]: "As explained by the authors of the Law Reform Commission Report on Defamation which recommended the adoption of Div 8, it proceeded 'on the view that, in the case of defamation which is unintentional and not careless, the defamed person is sufficiently vindicated by the publication of a correction or apology and that, if steps are taken to stop further dissemination of the defamatory matter and the costs and expenses of the defamed person are paid, he ought not to be entitled to damages.'" (footnote omitted)
But merely supplementing a defamatory publication with a further publication which falls short of acknowledging error is unlikely to amount to sufficient vindication so as to engage the purpose which underlies the defence. True it is that the Legislature has more recently broadened the class of offers which may engage this defence, but that is no answer to the purpose which was reflected in the unamended form of the section, which is the form applicable to 2GB's publications.
This submission was made to the primary judge in Mr Massoud's written submissions in reply ("The effect of the 'correction' is merely to record Mr Massoud's version of the conversation without any indication that it is accepted"). So far as I can see, her Honour did not receive oral submissions on the point, which may account for why she did not address it.
I have concluded that this partial defence fails, and that grounds 8 and 9 of the appeal are made out. In light of the failure of ground 3, that does not affect the outcome of the appeal in this Court. It is not necessary to address the remaining aspects of this ground, and it would be artificial to do so when in fact no "correction" such as to engage s 15(1)(d) in its former form was ever proffered.

The challenges to the alternative findings of the primary judge (grounds 4-7)

Assuming that she were wrong about defences already upheld by her, the primary judge determined in the alternative that the respondents made out a defence of contextual truth in answer to each of the (ex hypothesi) unjustified imputations they had published. Further, if her Honour were wrong about that, she also assessed damages at nil. Mr Massoud challenged each contingent finding. It was necessary for him to do so, because otherwise the appeal would have to be dismissed. In relation to contextual truth, the challenge extended to all aspects of the defence. Mr Massoud submitted that her Honour was wrong to find that any of the contextual imputations was conveyed by any of the publications, wrong to find that either of those contextual imputations was substantially true, and wrong to find that there was no further harm to Mr Massoud's reputation because of the substantial truth of the contextual imputations. In relation to damages, Mr Massoud again submitted that this Court should set aside the contingent finding of no damages, and remit the matter to the District Court.
No part of the above had any impact upon the orders made by her Honour, save in relation to the secondary imputation conveyed by Exhibit F. Nor does any of it have any impact on the outcome of the appeal or the application for leave to appeal.

Contextual truth - overview

At relevant times (prior to 1 July 2021) s 26 provided: "26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more imputations that are substantially true (contextual imputations), and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations."
(More recently, the provision has been altered so as to remove the requirement that the contextual imputations be "in addition to" and thereby different in substance from the plaintiff's imputations, overturning the effect of Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174. But nothing turns on this for present purposes.)
The respondents ultimately maintained that each publication carried contextual imputations that: 1. The plaintiff is a bully, and 2. The plaintiff is the type of person who threatens and intimidates his work colleagues.
The primary judge upheld the entirety of this defence.
The primary judge was rightly critical of the parties for declining to consider this defence in respect of each publication. Mr Massoud sued on 16 separate publications. The availability of a defence under s 26 turned on whether each individual publication conveyed the pleaded contextual imputations, and if so whether they were substantially true and as a result of which no further harm was caused to Mr Massoud's reputation. The defendants served 114 pages of written submissions at trial, but devoted merely four paragraphs (paras 241-244) over two pages to whether the contextual imputations were conveyed, none of which descended to the specifics of any publication. Mr Massoud's submissions in reply (of 51 pages) likewise addressed that issue in slightly more than 2 pages, although they did at least address the fact that exhibits B and O referred to bullying in terms. Her Honour undertook the task which was made necessary by the defences but not attended to by the parties, extensively, at [160]-[226].
Grounds 4, 5 and 7 of the appeal and application for leave to appeal challenged the trial judge's findings that the contextual imputations pleaded were conveyed, and proven true, and that the imputations established did not further harm Mr Massoud's reputation because of the substantial truth of the contextual imputations. Ground 6 was generally worded, and was conflated in Mr Massoud's submission with ground 7.
Ground 4 requires an analysis of each publication to determine whether it conveys the contextual imputation. Ground 5 amounts to a challenge to the findings by the primary judge that Mr Massoud was in fact a bully and the type of person who threatens and intimidates his work colleagues. Grounds 6 and 7 challenge the evaluation of whether the substantial truth of the contextual imputations produced the result that the imputation for which Mr Massoud contended did not further harm his reputation.
It is convenient to address these grounds so as to commence with ground 5, which is independent of the 16 individual publications, and because if Mr Massoud is correct on this issue, then the remaining grounds do not arise.

Was it substantially true that Mr Massoud was a bully and the type of person who threatened and intimidated his work colleagues?

A great deal of the trial was devoted to evidence bearing upon whether Mr Massoud was a bully and whether he threatened and intimidated his work colleagues. There was a deal of material to work with. As it was put in paragraph 151 of Mr Massoud's submissions in this Court: "The appellant in a letter he wrote on leaving News Ltd to go to Channel 7 in 2014 spoke of his 'at times appalling conduct'. He has never attempted to resile from that. There is no doubt that at times the appellant's behaviour was objectionable: aggressive and abrasive. The central issue is its correct characterisation, particularly, whether it was bullying, or threatening and intimidating."
The primary judge said there was "abundant evidence" of bullying: at [500]. Her Honour referred to the evidence that employees would "flinch" when Mr Massoud was involved in activities with them, and Mr Massoud's own letter of resignation which said he had been "counselled about this many times". Her Honour observed at [506] that "[t]he general pattern of behaviour shows the plaintiff responding with abuse and bad behaviour whenever he did not get what he wanted, as his behaviour towards taxi drivers, Ms Tepper, Mr Mobbs and [Ms] Taylor demonstrates". The "Legion cabs" incident was addressed at [411]-[422] and involved a pattern of eating in taxis when asked not to and swearing at cab drivers to their faces and over the telephone.
It is not necessary to summarise the entirety of the evidence bearing upon the truth of the contextual imputations, or her Honour's findings. It will suffice to turn to the details of the three people identified in [506] as indicative of Mr Massoud's "general pattern of behaviour".
Her Honour reproduced at [423]-[424] the evidence of Ms Katrina Tepper, who worked on the picture desk when Mr Massoud worked for News Corporation. A different staff member had failed to allocate a photographer to Mr Massoud's story and he rang Ms Tepper to obtain one. She said that: "His voice started raising, and it became so loud it was shouting, and I couldn't get a word in edgeways, I was having trouble sort of concentrating and hearing what he was saying because it was so loud, and it was quite aggressive, and I was starting to feel a bit rattled. I said to him, 'you can't talk to me like that, if you continue to talk to me like that I will hang up'. He continued with that, the tone didn't drop."
Ms Tepper did hang up on him, and said that Mr Massoud had been speaking so loudly in an open floor that other people could hear the exchange, which she said "was a bit humiliating actually". She said "It's not something that I was used to, my other colleagues certainly didn't speak to each other like that, and I hadn't been spoken to like that before. I had to take a moment to compose myself, I walked away, went to the bathroom, came back, composed myself, and sat down." She was very surprised to receive an email from Mr Massoud a few minutes later, sent to her supervisors and copied to her: "I've just tried to sort out an important job with katrina tepper in the pic desk and been hung up on. I want to make an official complaint about her behaviour and unprofessional attitude."
In response, Ms Tepper wrote her own complaint. It was written less than two hours after the conversation (her email was sent at 1.30pm, Mr Massoud's at 12.07pm, and Mr Massoud's was some 15 minutes after the conversation). Her email referred to Mr Massoud's aggressive tone, that he had ceased to listen to her, that "I have never had rude and aggressive treatment from a colleague like that before" and that "I do not speak to my colleagues rudely nor do I expect to be spoke to rudely" and "I believe I do not need to tolerate aggressive or rude behaviour from anyone - especially when I'm trying to find solutions to issues raised".
Mr Massoud was asked whether he disagreed with anything in the letter. He said that his recollection was so poor that he was unable to identify anything in it that was wrong.
The primary judge said at [425]-[427]: "… Ms Tepper had not made any errors, and she was trying to help the plaintiff, not hinder him. It is another example of the plaintiff responding with abuse and threats where the person he was attacking was just trying to do their job. In this case, his attack included a complaint to her boss. The behaviour described by Ms Tepper is a pattern of behaviour seen in the plaintiff's other dealings with staff. He would shout, use abuse and bad language and, if he did not get what he wanted, he would threaten to complain, or complain, as a form of intimidation. Fear of his complaints was also a significant issue for Ms Taylor, and the reason why she had raised his treatment of her with Channel 7 executives. In the case of Ms Tepper, Mr Molomby SC submits that this was an 'isolated incident' and that she 'never had any other incidents with the plaintiff' (submissions, 12 May 2021, paragraph 115). However, this was because her supervisor and the staff in her section made sure she did not have to deal with the plaintiff again, as she said in her evidence (T 584). The evidence of Mr Morrison suggests that this was one of several such arrangements, as staff continued to tell Mr Morrison that they did not want to work with the plaintiff; towards the end, hardly anyone wanted to do so."
Her Honour described the evidence from Mr Mobbs, who worked with Mr Massoud as a journalist just before Mr Massoud left News Corporation, at [433]-[443]. Mr Massoud believed that Mr Mobbs had leaked a story; Mr Mobbs denied this, and said that another journalist had been working independently on the story, and her Honour accepted his account at [441]. Once again, Mr Mobbs' account included his evidence that "he had never been spoken to in that way before, and has never been spoken to in that way since". There was a performance review of Mr Massoud the following day (Friday 30 May 2014), and on the following Monday he received a formal reprimand, in writing, which included: "The fact that you admitted your behaviour was totally unacceptable under any circumstances and the fact that you have withdrawn your accusations against [the other journalist] has been noted. However, I do wish to reiterate that your acknowledgement does not explain, justify or excuse your behaviour. Accordingly we find that your behaviour in this matter is unsatisfactory ….:"
The details of Ms Taylor's evidence need not be reproduced; there is more than enough profanity in these reasons as it is. It is sufficient to reproduce what her Honour said at [386]: "This was a significant attack on Ms Taylor which caused her to consider resigning and which, from her demeanour in the witness box, I am satisfied upsets [her] to this day. The plaintiff's conduct included obscene and abusive language as well as intimidating conduct, notably making these remarks in a public place while standing less than a metre away from her. I am satisfied that this conduct amounts to the conduct addressed in both contextual imputations."
There was a great deal of other evidence bearing upon whether Mr Massoud was a bully and used threatening and intimidating language to his work colleagues. It need not be summarised. What has already been said suffices to disclose the enormity of a challenge to her Honour's findings of fact based on this evidence.
Mr Massoud sought to discharge that burden over paragraphs 150-174 of his submissions in chief. The main theme of those submissions was that the conduct was reprehensible but did not amount to bullying. A letter sent to Mr Mobbs and his superiors, saying that Mr Massoud had lost confidence in them, could not be seen as bullying. Complaints by Mr Massoud that the companies' lawyers were "fucking morons" and "clueless" could not amount to bullying. In relation to Ms Taylor, it was said that "there is no consideration of the difference between abuse and bullying", and in relation to all of the incidents, Mr Massoud submitted "While the first of these incidents is abusive, and the last is insulting, and all involve objectionable behaviour, none is correctly characterised as bullying", contrary to her Honour's finding at [405]. Mr Massoud relied on the fact that the people with whom he worked most closely at Channel 7, while describing him as "aggressive, hot-headed, passionate, a go-getter, prickly, difficult" and "aggressive, abusive, hot-headed" did not describe him as a bully. The submission concluded: "The picture that emerges is of someone driven for the best result who on occasions became irrationally and aggressively intolerant of things that got in the way. His reactions were not personally targeted in the sense of having people he liked to attack, but directed at whoever he saw as the cause of the problem, or a barrier to its resolution. It is notable that the appellant's behaviour, however it is categorised, never included acts or threats of physical violence. The only behaviour in the evidence that can be characterised as threats, apart from the controversy about the conversation with Mr Warren, consists of a threat to resign (to Mr Mobbs) and to complain about the other person (to Ms Taylor about the Dally M awards). These threats are not of the same quality as those to be understood as involved in the second contextual imputation's 'threatens and intimidates his work colleagues'. The evidence supplies no support for the appellant threatening in the way it would be understood in that imputation, bearing in mind that the imputation is said to be conveyed by a reference to threatening to kill or slit a throat. The evidence cannot support the second contextual imputation."
I do not accept Mr Massoud's submissions. A series of former colleagues gave evidence, which the primary judge accepted, that Mr Massoud spoke to them in a way in which they had never been spoken to previously and had never been spoken to subsequently. There was no challenge, nor could there be, to the findings of primary fact to that effect in relation to Ms Tepper, Mr Mobbs and Ms Taylor. There can be no real doubt that it was open to the primary judge to find that each was threatened and intimidated by Mr Massoud. It is true that there is no evidence of Mr Massoud deploying threats involving violence to those people. Contrary to Mr Massoud's submission, that does not mean that the second contextual imputation is not substantially true. The issue is not the precise way in which Mr Massoud used language and conduct to intimidate and threaten colleagues, but whether his language and conduct had that purpose and achieved that effect. There is an abundance of evidence that it did. The challenge to the substantial truth of the second contextual imputation fails.
The first contextual imputation, that Mr Massoud was a bully, is more problematic, because evidently Mr Massoud contends for a narrow definition of bullying, which cannot extend to abusive conduct towards his superiors, or to lawyers when it was not made in their presence, or to Ms Taylor. Mr Massoud's written submissions repeatedly denied that the conduct to which the witnesses deposed amounted to bullying, but did not define what bullying is. This was raised during the hearing: "SIMPSON AJA: What do you say bullying is? It's all very well to say, 'This is not bullying', what is bullying? MOLOMBY: If I might just have a second on that. Bullying - and I'm not saying this from a dictionary, this is my submission - it can mean different things in different contexts. For example, if one speaks of a schoolyard bully relating to a primary school, one will have different things in mind from if one is speaking of adults in a context like this. Just to acknowledge that there can be differences in different contexts. As between adults, it's someone trying to overbear someone else, impose their will in some respect on someone else where the someone else is in a disadvantaged position to resist. That doesn't necessarily mean that the bully is of a higher status and the other person is of a lower status, but that often is the case, because it's that that gives rise to the disadvantaged position to resist. It's an exercise of some degree of personal power. It involves personal power between people and it's one trying to put the other one under the thumb, if I could use a colloquial expression, in some ways exploiting the fact that the other person is in a disadvantaged position to deal with it or resist."
I agree that bullying can mean different things in different contexts, and that the bullying in a primary schoolyard by a child learning to socialise is quite distinct from bullying in a workplace. One definition of workplace bullying, that in s 789FD of the Fair Work Act 2009 (Cth), has as an element that one or more individuals "repeatedly behaves unreasonably towards" one or more workers and that behaviour creates a risk to health and safety. I doubt that a completely satisfactory definition is available, and there will always be forms of conduct which while universally condemned as inappropriate and offensive, might yield a difference of views as to whether they amount to bullying.
But it is sufficient to take the definition on which Mr Massoud relied. Attempting to overbear an inferior, or putting another under one's thumb, is not an inaccurate description of Mr Massoud's exchange with Ms Tepper (evidently he regarded a female member of the picture desk as inferior to a journalist), or his abusive behaviour towards Ms Taylor, or his unjustified blame of Mr Mobbs for being involved in stealing a story. The findings of primary fact are findings that he tried to overbear and subject to his will people he regarded as inferiors. This ground is not made out.

Were the contextual imputations conveyed?

Mr Massoud contended that her Honour was wrong in finding that in every case, both of the contextual imputations were conveyed. The respondents defended the entirety of her Honour's findings.
The reality is somewhere in between. This may be seen by examples. Perhaps the clearest case is Exhibit B. The website post stated "Ray Hadley broke the story about Massoud's bullying". When confronted with this in oral address, Mr Molomby came close to conceding, if he did not concede, that the contextual imputation that Mr Massoud was a bully was, contrary to this aspect of ground 4 of his appeal against Radio 2GB Sydney, conveyed.
Another relatively clear case is Exhibit O, an article in the Daily Telegraph published six months after the event, on 6 November 2018:
The primary judge said at [218] that the ordinary reasonable reader should have no difficulty in understanding that the matter conveyed that Mr Massoud was a bully and that he threatened and intimidated work colleagues, including the producer referred to. In this Court, Mr Massoud accepted that the article referred directly to bullying. After all, its second sentence explicitly refers to his resignation "amid a bullying controversy". Mr Massoud nonetheless said that the issue was "whether it suggests that the appellant behaved in that way on other occasions or that his character was that of a bully". It was submitted that the extreme nature of the conduct suggested it was an atypical incident, and because the conduct was spontaneous, and likely to have occurred at random, there was nothing to suggest it was recurrent or a pattern of behaviour.
I do not agree. The essence of Mr Massoud's submission is that a single incident of bullying was insufficient to convey an imputation that Mr Massoud was a bully, even when that incident is referred to as a "bullying controversy". I think her Honour was correct to find that the article conveyed that Mr Massoud was a bully.
On the other hand, it is much harder to see how the contextual imputation that Mr Massoud was a bully emerges from Exhibit F. Her Honour noted that the host stated that Mr Massoud was "dismissed after threatening a young reporter" and concluded at [191] that "[t]he ordinary reasonable reader would be quick to pick up that the plaintiff's threats were workplace issues of the bullying kind, requiring action by Human Resources". It is tolerably clear that the second contextual imputation, that Mr Massoud is the type of person who threatens and intimidates his work colleagues, is conveyed, but it is much less clear that the imputation that he is a bully is conveyed. If Mr Massoud is correct to proceed on the basis that bullying amounts to an exploitation of power, or placing another under one's thumb, then the only thing that indicates any power imbalance is the description of the reporter who was threatened as "young". On the other hand, on one view all threatening and intimidation of work colleagues may amount to bullying, although in these reasons it is not necessary to express a concluded view on what the reader or viewer or listener to the publications would regard as bullying.
The position is even more artificial in the case of the doubly alternative findings in relation to Exhibits G and H (it will be recalled that the primary judge found that neither conveyed any of Mr Massoud's imputations). Consider the radio broadcast on KIIS that was Exhibit G. It involves interchanges between a sports reporter (SR), the hosts Kyle Sandilands and "Jackie O", and the voice of "Intern Pete". The entirety of the transcript was as follows: "SR: Channel Seven's NRL reporter has been stood down, accused of threatening to slit a colleague's neck, Josh Massoud has been suspended. KS: Is that not allowed? SR: (laughs) and an investigation is pending. Yeah not really. KS: I'm always threatening to slit Intern Pete's neck. SR: Well you don't really say it like that. KS: Yeah I do! JO: I think he does sometimes Roger. KS: Pete I've said some pretty bad things, I've threatened you with many things right? IP: Yeah but I don't take anything seriously. KS: Bashings, whippings, lashings, murder... I've threatened to murder you. IP: Yeah but I'm still here. KS: Here you are like a dirty smell. IP: You gotta take it all with a grain of salt. KS: So but um- so SR: I guess we just run on different rules here. KS: Yeah we run on Kyle rules here. SR: [laughs] exactly. KS: See I'm running the whole joint. It's pretty hard to come and complain to me about me. JO: You are HR. KS: I am HR. JO: You've taken over HR KS: I thought it meant his royal highness. SR: Kyle Sandilands yeah [laughs]. KS: I didn't know. SR: The Kiss-Cast is next."
There is no background music or sound effects. The words are delivered at pace (the entire exchange - more than 170 words - takes place in 54 seconds). The goal was comedy or satire, which is often more difficult on radio, without the benefit of visual cues. Many might think that goal was not achieved, but nothing turns on that for the purpose of the law of defamation. On the assumption - contrary to her finding - that Exhibit G conveyed Mr Massoud's imputation that he threatened to slit a colleague's throat, her Honour found that both contextual imputations were also conveyed: at [195]. With respect, that may be doubted. The inquiry is quite artificial, because it proceeds on the premise that (contrary to her Honour's view) the imputation that Mr Massoud threatened to slit a colleague's throat is conveyed, notwithstanding the obvious exaggeration and attempt at humour. Making that assumption, it is difficult to see how the broadcast also conveyed the respondents' contextual imputation that he was a bully.
It would be possible to follow her Honour's example and address whether each of the publications conveyed each of the contextual imputations. In this Court, Mr Massoud assayed that task in writing. In oral submissions, counsel declined to descend to that level of detail, relying instead on a general submission, formulated as follows: "would the reader not, if you like, settle for the obvious? Meaning without going and looking for others. If the reader was prompted to go somewhere else, the next question is where would the reader go? In our submission these articles or the description of what happened in relation to the threat to slit the throat, don't point the reader in the direction which the respondents urge of bullying. They point the reader in the direction, if the reader goes this far, of violence or craziness."
The submission acknowledged the strength of the finding that the second contextual imputation was conveyed, and focussed upon the difficulties in concluding that the publications conveyed that Mr Massoud was a bully.
There is an attraction in addressing the points at a general level, but enough has already been said, by reference to Exhibits B, F, G, and O, that the outcome will inevitably turn upon an examination of the entire publication, and will vary from publication to publication.
This Court is not obliged to resolve each point that Mr Massoud chooses to raise. No aspect of this ground has any consequence on the outcome of the appeal. Nor does it have any significance for any other contextual truth defence in other litigation. No issue of principle arises.
Litigation such as the present involves a potentially exponential expansion of issues. The plaintiff brought multiple proceedings, claiming multiple imputations across 16 publications. As part of their defence, the defendants asserted multiple contextual imputations, saying that in each case the contextual imputation outweighed each of the plaintiff's primary imputations. The primary judge diligently resolved all of those submissions, although doing so contributed as much as anything else to a judgment of 648 paragraphs, and notwithstanding that (save in the case of one of the secondary imputations conveyed by Exhibit F) the reasoning was entirely in the alternative and not dispositive of the litigation. On appeal, the plaintiff challenged the entirety of her Honour's reasoning, but declined (in relation to the challenge to the contextual imputations) to engage in oral submissions in relation to any particular publication.
This Court should resist any temptation to be drawn into this unnecessary multiplication of arid issues, brought about by the parties' enthusiasm to keep issues in play. I have considered reviewing each of Mr Massoud's submissions in relation to the contextual imputations found in relation to each publication by the primary judge. I decline to do so. It serves no end. In all cases there are separate and independent reasons for dismissing the appeal even if Mr Massoud were wholly successful in challenging the defence of contextual truth. In the case of all publications save for the secondary imputation from Exhibit F, that is because the defence of justification is made out. In the case of the secondary imputation conveyed by Exhibit F, that is because the defence of honest opinion is made out. In accordance with the principle of judicial economy referred to above, these grounds need not, and should not, be determined.

Damages (grounds 11-12)

The final two grounds of the appeal and the application for leave to appeal challenged her Honour's notional assessment of damages of nil. Counsel did not address damages orally, save to confirm that (contrary to what had originally been sought) if the judgments were set aside, it would not be possible for this Court to assess damages. That concession was correctly made.
There are occasions when this Court should determine issues of law which do not alter the result of the appeal, but which have an importance going beyond the dispute between the particular parties. It is plain that the challenge to damages is not such a case, at least in relation to the principal imputations conveyed by the publications. Mr Massoud commenced his written submissions on damages with the following: "There is no dispute about the relevant principles. The issue is their application to the facts of the case, and to an extent what those facts are."
Further, in fairness to her Honour, who produced a very substantial judgment after a two week trial of five separate actions, she acknowledged at [597] that there was a degree of artificiality in making findings in the alternative on the basis that none of the defences she had in fact upheld had been made out, and said that her analysis would be brief. Once again, in accordance with the principle of judicial economy it is inappropriate to address these grounds.
However, there is one aspect that warrants elaboration. The primary judge found that all of the imputations alleged by Mr Massoud were justified, save for the imputation conveyed by Exhibit F that Mr Massoud was never a respected journalist. In this Court, Fox Sports neither disputed that the imputation was conveyed, nor cavilled with the finding that it was not justified. I have concluded that the defence of honest opinion is made out. However, her Honour was not so satisfied, and so let it be assumed that I am wrong about that. Her Honour nonetheless would have found that no damages should be ordered. Was there appellable error in that finding? That question can be answered without any elaborate analysis of the harm to Mr Massoud or the mitigating factors. I do so putting to one side the $75,000 Mr Massoud obtained by way of settlement with two other publishers, because although evidence of this was tendered in accordance with s 38(1)(d), there is nothing to suggest that those publications conveyed any imputation that Mr Massoud was never a respected journalist, and it is at least more likely than not that they did not.
There was evidence that, prior to around 2010, Mr Massoud was a respected sports journalist. However, there were also findings that he had persisted in threatening and abusive conduct over many years, to a wide range of people - including work colleagues, lawyers retained by his employer, and taxi drivers. None of the people who were abused by Mr Massoud would regard him as a respected sports journalist. No one who knew of Mr Massoud's misconduct would regard him as a respected sports journalist. What damages would Mr Massoud have suffered in 2018 for the publication of a skit which conveyed that a man who was not in fact a respected sports journalist and had not been for years was never a respected sports journalist? No submissions were addressed to this permutation, just as no substantive submissions were directed to damages generally. However, my present view is that no error is shown in her Honour's ultimate conclusion that damages would be nil. Her Honour relied on the reasoning in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116, where Neill LJ said: "There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in s 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages."
Of this principle, Lord Hobhouse in Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; 1 WLR 3024 at [54] said that it addressed: "the situation where a plaintiff is entitled to a verdict in his favour on the justification issue but the evidence properly before the jury on the issue of justification has disclosed that the reputation to which he is entitled is so depreciated that the damages which he should be awarded for the damage to his reputation by the (ex hypothesi) defamatory publication should be reduced below the level that would be appropriate for a plaintiff with an impeccable reputation, maybe even to a nominal figure."
The question is whether on the present hypothesis the order for nil damages notionally awarded by the primary judge would be manifestly inadequate or otherwise disclose House v The King error: see for example Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at [75]-[76]. I do not consider that such error would be made out.
For completeness, I note that Mr Massoud devoted no fewer than four pages of his submissions to injunctive relief. His counsel addressed orally on the topic. Mr Molomby's point was that there should be a review of the traditional reticence to grant injunctive relief, because of legislative change. It was put: "As a result of amendments in effect since 1 July 2021, if an unsuccessful defendant repeats or continues publication more than three years after the date of first publication, the successful plaintiff is barred from suing again. The only condition is that the continuing publication be in a form not materially different from the first publication, In relation to a continuing unchanged presence on a website, that condition is obviously satisfied."
The primary judge received a similar submission. Her Honour observed at [646]-[647] that: "Mr Molomby SC also puts before me what he calls some 'novel propositions' as to the asserted inadequacy of the amendments to the Act which became law on 1 July 2021 concerning, inter alia, the asserted impact of the single publication rule on injunctions. They are not in fact novel; he made these same submissions to the Department of Communities and Justice prior to the enactment of those amendments. As I would not be prepared to make any injunctive orders for the reasons set out above, I decline to take part in a discussion of Mr Molomby SC's concerns with these reforms, as I consider this would 'exceed the limits of the judicial role' (Burrows v Macpherson and Kelly [2021] NSWCA 148 at [162])."
I have concluded that the orders dismissing Mr Massoud's actions were correct. There is no need to engage with the change in the law which Mr Massoud has sought to advance at trial and in this Court. The primary judge was, with respect, entirely correct to decline to do so. This Court should follow the same course. The propositions advanced by Mr Molomby should await a case in which their resolution will affect the outcome.

Conclusion and orders

The conclusions reached above may be summarised as follows: 1. Mr Massoud is correct to contend that he was entitled to a trial on the basis of the primary imputations alleged in his pleadings, even if the primary judge were of the view that an imputation only put forward as a fallback better captured what was conveyed by the publication. 2. Mr Massoud has failed to establish error in the defence of justification upheld by the primary judge which is a complete answer to the entirety of his case save for the imputation in Exhibit F that he was never a respected journalist. 3. Fox Sports has established that the primary judge erred in rejecting its defence of honest opinion in respect of the imputation in Exhibit F that Mr Massoud was never a respected journalist. 4. If Radio 2GB Sydney were otherwise liable, its offer of amends would not be a defence, and the primary judge erred in concluding to the contrary. 5. It is unnecessary to engage fully with the other grounds of appeal Mr Massoud has raised, none of which can alter the result in this Court.
For those reasons, while there should be a grant of leave to appeal against Fox Sports, KIIS and Nine Digital, and also a grant of leave to appeal if leave be necessary to appeal against the judgments in favour of Nationwide News and Radio 2GB Sydney, all of the proceedings Mr Massoud has brought should be dismissed.
Mr Massoud has enjoyed some success in relation to the findings of a minority of the imputations, and in relation to the offer of amends. But his appeal and application for leave to appeal were brought with the knowledge that he could only obtain a judgment in his favour if he succeeded on multiple bases. In those circumstances, costs should follow the event being the outcome of the appeal.
I propose these orders: In 2021/240231, grant leave to appeal if leave be necessary, but dismiss the appeal with costs. In 2021/303842, grant leave to appeal, dispense with the requirements of filing and service of a notice of appeal, and dismiss the appeal with costs. In 2021/343783, dismiss the summons with costs.
MITCHELMORE JA: I agree with Leeming JA.
SIMPSON AJA: I agree with Leeming JA.

Annexure The first and second columns in the table below identify each publication by exhibit, publisher, date and headline (or in the case of radio broadcasts, a quote from the broadcast). The third column identifies the imputations which Mr Massoud alleged in the alternative were conveyed, with the finding by the primary judge in bold (in the case of exhibits G and H, no imputation was found to be conveyed, but the primary judge proceeded in the alternative to find that the underlined imputation was conveyed). The fourth column identifies the defences which the primary judge held to have been made out. Exhibit, date and publisher Title or quote Imputations alleged (those found in bold) Defences upheld by primary judge Exhibit A (a) That he threatened to slit a junior colleague's throat Justification; Radio 2GB website "Senior Channel 7 reporter allegedly threatened to slit colleague's throat" (b) That he threatened a young colleague with violence Contextual truth; 3 May 2018 Letter of amends Exhibit B (a) That he made graphic threats to kill a young colleague Justification; Radio 2GB website "Karma's a bitch', Ray Hadley unleashes on 'grub' Josh Massoud" (b) That he threatened a young man with violence Contextual truth; 4 May 2018 Letter of amends Exhibit C (a) That he made graphic threats to kill a young colleague Justification; Radio 2GB broadcast "What a grubby little fellow" (b) That he threatened to cut the throat of a young colleague Contextual truth; 5 November 2018 (c) That he threatened a young man with violence Letter of amends Exhibit D (a) That he made graphic threats to kill a young colleague Justification; Radio 2GB website "Former NRL player confronts rugby league journalist Josh Massoud" (b) That he threatened to cut the throat of a young colleague Contextual truth; 5 November 2018 (c) That he threatened a young man with violence Letter of amends Exhibit E (a) That he wanted to slit someone's throat Justification; Radio 2GB broadcast "that couldn't be a bad thing for the Eels' chances in 2019" (b) That he threatened to slit the throat of an 18-year-old cadet Contextual truth; 21 February 2019 (c) That he threatened a young colleague with violence Letter of amends Exhibit F (a) That he threatened to slit a young reporter's throat Fox Sports "The Professor's Farewell Tour 2018", episode 28 (b) That he threatened a young reporter with violence Justification (only imputation (b)); Contextual truth (both imputations) 21 September 2018 (c) That he was never a respected journalist Exhibit G (a) That he threatened to slit a colleague's throat Justification; Commonwealth Broadcasting Corporation "I'm always threatening to slit Intern Pete's neck" (b) That he threatened a colleague with violence Contextual truth 4 May 2018 Exhibit H (a) That he threatened to slit a colleague's throat Justification; Nationwide News Ltd website "Channel 7 journo Josh Massoud 'threatened to slit colleague's throat'" (b) That he threatened a colleague with violence Contextual truth 3 May 2018 Exhibit J (a) That he threatened to slit a rookie colleague's throat Justification; Daily Telegraph "Out Over Throat Threat" (b) That he threatened a young colleague with violence Contextual truth 4 May 2018 Exhibit K (a) That he threatened to slit the throat of a young colleague Justification; Sunday Telegraph "Six-figure sum sought for Josh 'to go away'" (b) That he threatened a young colleague with violence Contextual truth 13 May 2018 Exhibit L (a) That he threatened to slit the throat of a young colleague Justification; Nationwide News Ltd website "Channel 7's former NRL reporter Josh Massoud seeking six-figure payout after threatening co-worker" (b) That he threatened a young colleague with violence Contextual truth 13 May 2018 Exhibit M (a) That he threatened to slit the throat of a 22-year old cub reporter Justification; Daily Telegraph "Massoud Gone" (b) That he threatened a young colleague with violence Contextual truth 20 May 2018 Exhibit N (a) That he threatened to slit a 22-year-old colleague's neck Justification; Nationwide News website "Former sports journalist Josh Massoud spotted driving ice cream van (b) That he threatened a young colleague with violence Contextual truth 4 November 2018 Exhibit O (a) That he threatened to slit a 22-year-old colleague's neck Justification; Daily Telegraph "New gig is cold comfort for ex-journo" (b) That he threatened a young colleague with violence Contextual truth 6 November 2018 Exhibit P (a) That he threatened to slit a 22-year old colleague's throat Justification; Nationwide News Facebook post "Channel 7 sports reporter Josh Massoud is demanding a six-figure payout from the network after being suspended for allegedly threatening to 'slit' the throat of a young colleague" (b) That he threatened a young colleague with violence Contextual truth 12 May 2018 Exhibit Q (a) That he threatened to slit a junior colleague's throat Justification; Nine Digital "Wide World of Sports" website Seven reporter Josh Massoud threatened to 'slit' colleague's throat" (b) That he threatened a young colleague with violence Contextual truth 3 May 2018

Amendments 27 April 2023 - "6:00pm" amended to "6pm" in [2]

"in" inserted after "issue" in [31] so it reads "the points in issue in that matter"
comma inserted after "slitting his throat" in the quote in [55]
"was" amended to "were" in [88] so it reads "the words 'If you weren't so young' were tantamount"
"disclaimed" amended to "disclaimer" in [90]
"they" amended to "the words" in [109] so it reads "The fact that the words were used"
"refers" inserted before "records" in [119] so it reads "The transcript to which [309] refers records"
MNC corrected from "[1994] HCA 66" to "[1993] HCA 41" in [122]
"and" amended to "at" in [123] so it reads "in arriving at that conclusion"
"he" amended to "[it]" in [136(g)] so it reads "after [it] was put"
"[in]" inserted in [147] so it reads "about him being [in] shock"
"the" amended to "this" in [165] so it reads "For the purposes of this section"
the word "bad" removed in [251] so it reads "pattern of behaviour"
"colleagues'" amended to "colleague's" in [272] so it reads "to slit a colleague's throat" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2023

Common Law Procedure Act 1853(NSW)

Criminal Law Amendment Act 1883(NSW)

Defamation Act 1974(NSW)

Defamation Amendment Act 2020(NSW)

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (2011) 244 CLR 1; [2011] HCA 18 Bailey v WIN Television NSW Pty Ltd (2020) 104 NSWLR 541; [2020] NSWCA 352 Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; [1996] HCA 47 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Bray v Ford [1896] AC 44 Brunner v Greenslade [1971] Ch 993 Carr v Hood (1808) 1 Camp 355n; 170 ER 983 Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190 Chen v State of New South Wales [2016] NSWCA 177 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 Cornes v Ten Group Pty Ltd (2011) 114 SASR 1; [2011] SASC 104 Cornes v Ten Group Pty Ltd (2012) 114 SASR 46; [2012] SASCFC 99 Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 Dakhyl v Labouchere [1908] 2 KB 325n Donoghue v Hayes (1831) Ir Ex 265 Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79; [2015] NSWCA 154 Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News (2020) 102 NSWLR 733; [2020] NSWCA 56 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Fraser v Holmes [2009] NSWCA 36; 253 ALR 538 Gatto v Australian Broadcasting Corporation [2022] VSCA 66 Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; 1 WLR 3024 Gulic v Boral Transport Ltd [2016] NSWCA 269 Gumina v Williams (No 2) (1990) 3 WAR 351 Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290 Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68 Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540 Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hunt v Star Newspaper Company Ltd [1908] 2 KB 309 John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; [2005] Aust Torts Rep 81-789 Kemsley v Foot [1952] AC 345 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Lewis v Daily Telegraph Ltd [1964] AC 234 Massoud v Radio 2GB Sydney Pty Ltd; Massoud v Fox Sports Australia Ltd; Massoud v Commonwealth Broadcasting Corporation Pty Ltd; Massoud v Nine Digital Pty Ltd; Massoud v Nationwide News Pty Ltd [2021] NSWDC 336 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259 NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210 O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; [1970] HCA 52 Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 Paolucci v Makedyn Pty Ltd [2021] NSWCA 215 Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; [1993] HCA 64 PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34 R v Ireland [1997] 1 All ER 112 Radin v The Law Society of New South Wales [1997] NSWCA 257 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (No 2) [1994] HCA 66; 68 ALJR 179 Royal Bank of Canada v IRC [1972] Ch 665 State of New South Wales v IG Index plc (2007) 17 VR 7; [2007] VSCA 212 State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 Stocker v Stocker [2020] AC 593; [2019] UKSC 17 Stuart v Lovell (1817) 2 Stark 93; 171 ER 583 Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69 Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273 Telnikoff v Matusevitch [1992] AC 343 Tory v Megna [2007] NSWCA 13 Tuberville v Savage (1669) 86 ER 684 Un v Chow [2018] NSWCA 287 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 West v Dick [1969] 2 Ch 424 White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; [1985] HCA 12 Zhang v ROC Services (NSW) Pty Ltd; National Transport Insurance by its manager NTI Ltd v Zhang (2016) 93 NSWLR 561; [2016] NSWCA 370 Texts Cited: J Carter, The Construction of Commercial Contracts (Hart Publishing, 2013) M Collins, The Law of Defamation and the Internet (2nd ed Oxford University Press, 2005) N Duxbury, The Intricacies of Dicta and Dissent (Cambridge University Press, 2021) S Gageler, "Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process" (2011) 37(2) Monash University Law Review 1 K Gould, "The proper focus of defamation defences and the challenge of inconsistency" (2010) 33 Australian Bar Review 258 A Kenyon, "Six Years of Australian Uniform Defamation law: Damages, Opinion and Defence Meanings" (2012) 35 UNSWLJ 31 P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005) D Price, K Duodu and N Cain, Defamation: Law, Procedure and Practice (Sweet & Maxwell, 4th ed 2010) D Rolph, "A critique of the national, uniform defamation laws" (2008) 16 Torts Law Journal 207 A Scalia and B Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West 2012) Category: Principal judgment Parties: Josh Massoud (Appellant and Applicant) Nationwide News Pty Ltd (First Respondent in 2021/240231 and 2021/343783) Radio 2GB Sydney Pty Ltd (Second Respondent in 2021/240231 and 2021/343783) Fox Sports Australia Pty Ltd (First Respondent in 2021/303842) Commonwealth Broadcasting Corporation Pty Ltd (Second Respondent in 2021/303842) Nine Digital Pty Ltd (Third Respondent in 2021/303842) Representation: Counsel: T Molomby SC, L Goodchild (Mr Massoud) D Sibtain, T Senior (Respondents)

Solicitors: O'Brien Criminal and Civil Solicitors (Mr Massoud) Grant McAvaney (Nationwide News Pty Ltd) Banki Haddock Fiora (Radio 2GB Sydney and Commonwealth Broadcasting Corporation) Baker McKenzie (Fox Sports Australia Pty Ltd) Thomson Geer Lawyers (Nine Digital Pty Ltd) File Number(s): 2021/240231; 2021/303842; 2021/343783 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWDC 336 Date of Decision: 29 July 2021 Before: Gibson DCJ File Number(s): 2019/133854; 2019/133954; 2019/133979; 2019/134011; 2019/134071

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Josh Massoud was a sports journalist employed by Channel 7 in Sydney. He believed that a colleague had posted an exclusive story on social media, contrary to an embargo, shortly before it went to air. He identified the person who posted the story, a junior colleague working in Queensland, and said to him, "If you weren't so young, I'd come up there and rip your head off and shit down your throat". Mr Massoud was initially suspended and then dismissed from his employment. A number of newspaper, radio, television and online publications covered Mr Massoud's suspension and dismissal. Many stated that he had threatened to "slit" the throat of a young colleague. Mr Massoud brought five actions against five publishers based on 16 publications. The publishers relied on defences of substantial truth, contextual truth, honest opinion and (in the case of Radio 2GB Sydney) an offer of amends. They also said that Mr Massoud had not suffered any damage to his reputation. The District Court entered verdicts for all defendants. The primary judge found that many of the publications conveyed the primary imputation for which Mr Massoud contended, although for some she found that a secondary imputation was conveyed, and for two none of the imputations was conveyed. All of the imputations were found to be substantially true, save for one instance where the publication conveyed the imputation that Mr Massoud was never a respected journalist. Her Honour rejected a defence of honest opinion, but upheld defences of contextual truth for all imputations. Her Honour also found that the offer of amends was a complete defence to the Radio 2GB Sydney publications, and that in any event, Mr Massoud was not entitled to damages or injunctive relief. Mr Massoud appealed from the judgments in favour of Nationwide News and Radio 2GB Sydney, and sought leave to appeal from the judgments in favour of the other three publishers. Fox Sports by notice of contention challenged the rejection of its honest opinion defence. The Court of Appeal (per Leeming JA, with Mitchelmore JA and Simpson AJA agreeing) granted leave to the extent leave was necessary, but dismissed the appeals. The principal issues in the Court of Appeal and their resolution were:

Whether the primary judge had erred in determining whether Mr Massoud's secondary imputation better encapsulated the publication, as opposed to whether the primary imputation he alleged was conveyed. Held that Mr Massoud was entitled to a determination of whether the primary imputation for which he contended was conveyed, and that the appeals should be determined on that basis: at [51]-[55], [65]. Consideration of the "single meaning rule" and Gatto v Australian Broadcasting Corporation [2022] VSCA 66: at [55]-[57], [66].
Whether the primary judge wrongly rejected questions asked in chief and in re-examination. Held that the Court was unpersuaded there was any error in rejecting the questions, and that even if there were, Mr Massoud had failed to establish any substantial wrong or miscarriage so as to warrant a new trial: at [92]-[114]. Consideration of UCPR r 51.53, its antecedents, the significance of the absence of evidence as to Mr Massoud's answers to the questions, the importance of s 56 of the Civil Procedure Act 2005 (NSW) and the trial not being before a jury to r 51.53. Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1, Bray v Ford [1896] AC 44, Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290, State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 and Tory v Megna [2007] NSWCA 13, considered.
Whether the primary judge had erred in having regard to her own viewing of the film "Stand By Me" in which the words "I'll rip off your head and shit down your throat" were used. Held that it was not established that the primary judge had seen the film, but that even if her Honour had, there was no error: at [115]-[125]. Consideration of the differences between judge-alone trial and trial by jury, the significance of s 144 of the Evidence Act 1995 (NSW) and the reasons given by a judge. Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (No 2) [1994] HCA 66; 68 ALJR 179, Jury Act 1977 (NSW), s 68C and Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190, considered.
The words spoken by Mr Massoud, and the words in the imputations conveyed by the defendants' publications did not bear their literal meaning. There was no basis for interfering with the rejection by the primary judge of Mr Massoud as a witness of credit, or her Honour's findings that the words were spoken angrily, with intent to belittle and intimidate, rather than with "black humour". The primary judge correctly held that the imputations were substantially true: at [126]-[162]. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 and Stocker v Stocker [2020] AC 593; [2019] UKSC 17, applied.
The honest opinion defence was made out. The imputation that Mr Massoud was never a respected journalist was, viewed in context, an expression of opinion, properly based on factual material in the publication: at [209]-[217]. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60, O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; [1970] HCA 52 and Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; [1993] HCA 64, considered.
Radio 2GB Sydney's offer of amends was not a "correction" within the meaning of s 18 of the Defamation Act. Although containing the word "correction", it did not acknowledge any error nor did it state what the correct position was. It merely offered to add what Mr Massoud said he had said and what he denied he had said: at [230]-[232].
It was not necessary fully to determine the grounds challenging the findings on contextual truth and no relief: at [275]-[278], [280]-[281], [286]-[288]. Consideration of the principle of judicial economy, the circumstances in which non-dispositive issues should not be determined by an intermediate court of appeal, and the weight to be given to reasons on non-dispositive issues: at [34]-[40]. Radin v The Law Society of New South Wales [1997] NSWCA 257, Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49, Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540 considered and applied.

The imputations alleged and found at trial

Mr Massoud alleged that every publication conveyed at least two, and sometimes three, imputations which were defamatory. Invariably, the pleadings alleged a primary imputation and, in the alternative, one or two secondary imputations by way of fallback. The primary imputation in each case involved explicit extreme violence, such as "that he threatened to slit a junior colleague's throat", "that he made graphic threats to kill a young colleague", "that he threatened to slit the throat of a 22-year-old cub reporter" and so on. The secondary imputations were more general: "that he threatened a young man with violence" and imputations to that general effect. Exceptionally, Exhibit F, the Fox Sports comedy skit, was also alleged to convey the imputation that Mr Massoud "was never a respected journalist".
In relation to two of the publications, her Honour found that neither of the pleaded imputations was conveyed.
One was a radio broadcast (Exhibit G) which sought to elicit humour from the notion that anyone could be offended by a threat to slit a colleague's neck. After a reporter states "Channel Seven's NRL reporter has been stood down, accused of threatening to slit a colleague's neck. Josh Massoud has been suspended", Mr Sandilands states "Is that not allowed?" and says "I'm always threatening to slit Intern Pete's neck", and banter continues between him and the other presenters. Her Honour was conscious of and referred to Smith B's statement in Donoghue v Hayes (1831) Ir Ex 265 at 266 that "If a man in jest conveys a serious imputation, he jests at his peril". Nonetheless, her Honour found at [85] that the use of ridicule would have made it clear to the reasonable listener that the whole situation was some kind of misunderstanding, and that, coupled with words which made it plain that Mr Massoud was "accused" of using the words, and that an investigation was "pending", meant that neither the first nor the second pleaded imputation was conveyed.
The other, an online publication by Nationwide News on the "Daily Telegraph" website which was Exhibit H, used prominent inverted commas and made it clear that it was reporting a claim. The headline read "Channel 7 journo Josh Massoud 'threatened to slit colleague's throat'". Her Honour proceeded on the basis that it was not necessary for the publisher to endorse the claim, and considered that "[t]he question is whether [Nationwide] News has been sufficiently careful to talk about smoke rather than fire": at [92]. Her Honour applied what had been said by Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 and concluded that this was a case where the ordinary reasonable reader would not consider either of the plaintiff's pleaded imputations to be conveyed: at [94]-[96].
However, her Honour also addressed the possibility that she might be wrong about those two publications, and treated them in the alternative as conveying imputations that Mr Massoud threatened to slit a colleague's throat (Exhibit G) and threatened a young colleague with violence (Exhibit H): at [86] and [96].
In relation to seven of the publications, her Honour found the primary imputation for which Mr Massoud contended was conveyed. There is no challenge to those findings. In relation to the remaining seven publications (Exhibits F, J, L, M, N, O and Q), her Honour found that the publication conveyed the secondary imputation propounded by Mr Massoud in the alternative, namely, that he threatened a young colleague with violence. Mr Massoud submits that those findings are erroneous, because her Honour failed to address whether the primary imputation alleged by him was conveyed.
Separately, in respect of Exhibit F (the skit published by Fox Sports), her Honour found that an imputation that Mr Massoud was never a respected journalist was also conveyed.

Procedural background in the Court of Appeal

The five actions in the District Court were heard together, with the primary judge producing a single set of reasons for the five judgments entered in favour of the defendants. Mr Massoud took the view that he had an appeal as of right in relation to the judgments entered in favour of Nationwide News and Radio 2GB Sydney, but needed leave to appeal from the judgments in favour of the other three defendants. Nationwide News and Radio 2GB Sydney took the view that leave was required, on the basis that Mr Massoud did not have a credible claim against Nationwide News and Radio 2GB Sydney for damages of $100,000 or more: District Court Act 1973 (NSW), s 127(2)(c). Mr Massoud then served a back-up summons seeking leave to appeal if leave be required. That was a separate proceeding (2021/343783).
There was very substantial overlap in Mr Massoud's notice of appeal from the judgments entered in favour of Nationwide News and Radio 2GB Sydney, and his draft notice of appeal in his application for leave from the judgments entered in favour of Fox Sports, KIIS and Nine Digital. The only differences are that grounds 8 and 9 of the appeal concern the offer of amends which relates only to the five Radio 2GB Sydney publications. Otherwise, the grounds of the appeal and the proposed appeal deal with separate publications reflecting the different respondents, but rely on substantially the same arguments.
The most efficient course is to pass over Mr Massoud's procedural choices and where possible deal with the points sought to be raised against all respondents collectively, as if there had been a single appeal. (A single appeal may be brought from more than one judgment or order in more than one proceeding; indeed Mr Massoud's appeal against the judgments in favour of Nationwide News and Radio 2GB Sydney proceeded on that basis.) That reflects how the argument was run in this Court, as well as the fact that the respondents made common cause retaining the same counsel to appear on behalf of them all.
Both applications for leave to appeal were heard concurrently with Mr Massoud's purported appeal as of right, the competency of which was challenged. Contrary to the respondents' submissions, the competency of the appeal need not be the first issue for determination. Despite the quantity of pages devoted by both sides to this arid issue, the Court was not directed to the most salient authorities, which are collected in Un v Chow [2018] NSWCA 287 at [14], including what was said at NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210 at [23]-[25] and Chen v State of New South Wales [2016] NSWCA 177 at [13]-[18], to which may be added Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [19]. It is to say the least arguable that the existence and extent of a notice of appeal should not turn on whether the plaintiff brings five separate proceedings, or one consolidated proceeding complaining of the same matters against the same defendants. After all, multiple actions against multiple defendants have been permitted in a single originating process since the enactment of s 37 of the Common Law Procedure Act 1853 (NSW): see Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34 at 45-46. If that is so, then it would appear that whether an appeal lies as of right does not depend upon the amount of Mr Massoud's claims against only Nationwide News and Radio 2GB Sydney. But even if it is not established that the $100,000 threshold in s 127(2)(c) is exceeded, there is a parallel application for leave, and leave cannot be determined without regard to the underlying merits. The respondents conceded, properly, that some of the grounds were reasonably arguable. This is a plain case for granting leave if leave be necessary, especially bearing in mind the obligation upon this Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The fact that the parties' representatives wish to debate every point dividing them does not diminish the force of s 56 of the Civil Procedure Act 2005 (NSW); to the contrary, it highlights the significance of attending to the points in issue in that matter, as was observed in Paolucci v Makedyn Pty Ltd [2021] NSWCA 215 at [8]. As was said in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [57], "[u]nduly technical and costly disputes about non-essential issues are clearly to be avoided". I shall return below to this theme which is an aspect of the principle of judicial economy.

Issues on appeal

Mr Massoud's appeal and application for leave to appeal challenge most of the findings against him. The principles of appellate review applicable to each ground vary depending on the nature of the challenge. Some aspects of Mr Massoud's appeal require him to discharge a very substantial onus. The challenges to the conclusions that the defences under ss 25 and 26 are made out involve a review of her Honour's findings of primary fact, which were expressly influenced by demeanour, to which the restraint in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 applies. Insofar as Mr Massoud also challenges the decision not to admit certain evidence bearing upon the meaning of the words he used; this is the review of a discretionary procedural decision which if made out would result in a new trial, and accordingly involves a heightened burden of a different kind.
On the other hand, other aspects of Mr Massoud's appeal impose a less onerous burden. He challenges the approach taken by the primary judge in declining to find seven of his primary imputations made out, on the basis that imputations relied on in the alternative better captured the publication. On these grounds, this Court is in the same position as the primary judge. As will be seen, the respondents' oral submissions did not strenuously defend the correctness of this aspect of her Honour's approach.
For its part, while Fox Sports does not dispute that the imputation that Mr Massoud was never a respected journalist was conveyed by Exhibit F and was not justified, by a notice of contention it contends that this Court should find that her Honour erred in rejecting its defence of honest opinion under s 31. Once again, this Court is in substantially the same position as the primary judge on the issues raised by that notice of contention.
There is a further distinction in the issues determined by the primary judge which are raised on appeal. Some, notably the defence of justification, were dispositive of the outcome of some of Mr Massoud's actions. Others, including the defences of contextual truth and the assessment of damages, proceeded on an alternative basis, contrary to her Honour's findings, and were not themselves dispositive of most of the actions. Her Honour is not to be criticised for making notional findings on the multitude of issues presented by the parties. Doing so accords with the conventional approach in trial courts. In Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7], the general rule was enunciated that "a judge should determine all issues before him or her to assist the appeal process and obviate recourse to a new trial". See further PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 at [15] and the cases there cited, where it was said that while a litigant is not entitled to insist that a trial court determine non-dispositive issues and give reasons for doing so, nevertheless when a court chooses not to do so it is generally advisable to explain why that course is being taken. The primary judge took an intermediate course. In relation to some non-dispositive aspects, her Honour said that she would be briefer than she would otherwise have been. In a promptly produced judgment which was nonetheless very substantial, no sound criticism could be based on that approach.
The position on appeal is different. This Court need not determine all of the issues raised on appeal. It must determine those which are dispositive, but it will be seen in due course that here there are dozens of non-dispositive issues which have no effect on the outcome whatsoever. And appellate courts are, emphatically, not under the same general obligation as trial courts to determine all issues.
This Court should follow the approach described by Kiefel CJ, Gageler and Keane JJ, with which Bell, Nettle, Gordon and Edelman JJ agreed at [101], as the firmly embedded notion of judicial economy in Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8]: "The principle that an appellate Court should confine itself to determining only those issues which it considers to be dispositive of the justiciable controversy raised by the appeal before it is so much embedded in a common law system of adjudication that we have no name for it. In some other systems, it is known as 'judicial economy'. Judicial economy promotes judicial efficiency in a common law system not only by narrowing the scope of the issues that need to be determined in the individual case but also by ensuring that such pronouncements as are made by appellate Courts on contested issues of law are limited to those that have the status of precedent. Within the integrated Australian legal system, the mere potential for an appeal to be brought, by special leave, to the High Court provides no reason for an intermediate court of appeal to sacrifice those efficiencies. That is not to deny that there will be occasions when departure from judicial economy will enhance the overall efficiency of the system or that the prospect of an appeal being brought, by special leave, to this Court in a particular case can give rise to such an occasion. There is accordingly no reason to deny that, 'although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground'. But a non-universal rule making it important for intermediate courts of appeal to consider whether to deal with all grounds of appeal is quite different from a rule that always or even ordinarily requires those courts to deal with all grounds of appeal. It is important to the efficiency of the system as a whole that intermediate courts of appeal should not feel compelled to treat determination of non-dispositive issues in appeals before them as the norm." (footnotes omitted)
That economical approach is not novel. As this Court said in Radin v The Law Society of New South Wales [1997] NSWCA 257, it is an "almost daily occurrence" for this Court to resolve appeals on a narrower basis than the submissions tendered to it. However, it reflects a departure from the statements in Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 at [105] and Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (2011) 244 CLR 1; [2011] HCA 18 at [56] that it was desirable and important for intermediate courts of appeal to deal with all grounds of appeal, rather than merely those which are decisive. It is quite plain that the High Court in Boensch v Pascoe was departing from its earlier approach, for both those decisions are footnoted. The more restrained approach serves to lessen the risk of conflicts (or perceived conflicts) between non-dispositive dicta of intermediate appellate courts.
The result is that there is a distinction between the approach at first instance and on appeal, but this reflects the feature of the Australian legal system that a litigant generally enjoys an appeal as of right from a final determination, with a second appeal only by way of leave or special leave, and thus the risk of the cost and delay of remitter when a further appeal is allowed from the decision of an intermediate appellate court is much smaller. Recent examples of this Court applying the traditional approach reaffirmed in Boensch v Pascoe may be seen in White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 at [133]-[134], Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273 at [1], [2], [90] and Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65 at [113]-[114].
To be clear, there is no inhibition against an intermediate appellate court resolving a non-dispositive point, and there may be sound reasons for doing so, especially if it is fully argued and may have significance beyond the instant litigation. Such aspects of the reasons have some precedential effect. In Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540 at [26] it was said that "intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them". Of course, the weight to be given would be influenced by whether or not the point was argued, whether the argument was regarded as complete, and whether the court was purporting to resolve the non-dispositive point definitively. If everything in a court's reasons for judgment that is not dispositive is to be regarded as obiter dicta, then there are obiter dicta and there are obiter dicta. There is a line of authority, associated with Sir Robert Megarry VC, identifying and giving precedential weight to what he described as "judicial dicta" - passages which were "neither of the ratio nor merely obiter dicta", which represented "considered judgment[s] on a point fully argued": see Brunner v Greenslade [1971] Ch 993 at 1002-3, West v Dick [1969] 2 Ch 424 at 431-2 and Royal Bank of Canada v IRC [1972] Ch 665 at 682-4, and the discussion in N Duxbury, The Intricacies of Dicta and Dissent (Cambridge University Press, 2021) at pp 93-100. Such judicial dicta warrant the deference identified in Hill v Zuda Pty Ltd. Whether or not to give reasons for determining a non-dispositive point is left to the individual appellate court's judgment in any particular case. The court's decision on whether or not to do so will be informed by a wide range of factors, including the nature of the point, the quality of the parties' submissions, the judges' confidence in the conclusion reached and the likelihood of the point arising in future cases. This is the force of the High Court's emphasis in Boensch v Pascoe that it was for intermediate appellate courts to consider whether to determine non-dispositive points.
But a cautious approach accords with the familiar incremental approach of the common law, which "proceeds by determining those points and only those points necessary to a decision", as explained in Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [225]-[229]. In a developing area, such as the tort of misfeasance in public office, or a novel tortious duty of care, a cautious approach is followed. The same may be seen elsewhere. Indeed, it is so deeply embedded that it may pass without notice. Thus, in construing a contract, a court does not resolve all aspects of the disputed clause. "All that is required is a solution to a particular problem or set of problems. The only relevant purpose lies in resolving the particular dispute": J Carter, The Construction of Commercial Contracts (Hart Publishing, 2013), p 11, cited in Zhang v ROC Services (NSW) Pty Ltd; National Transport Insurance by its manager NTI Ltd v Zhang (2016) 93 NSWLR 561; [2016] NSWCA 370 at [83]. Likewise, the traditional approach to construction of legislation, elaborately articulated in S Gageler, "Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process" (2011) 37(2) Monash University Law Review 1 esp at 3 and 7, where (anticipating the passage in Boensch v Pascoe reproduced above) emphasis was given to the proposition that "a court is justified and obliged authoritatively to determine the meaning of a statutory text only so far as the attribution of meaning to the text is necessary to enable that court to discern the content of the law that must be applied to determine the rights of the parties who are in dispute in the individual case".
Applying those principles, it is convenient to address the issues in a slightly different order from the notices of appeal: 1. Did the primary judge err in approaching seven of the publications by asking which of Mr Massoud's imputations more correctly encapsulated what was said, rather than determining whether the primary imputation was conveyed and, if not, whether the alternative imputation was conveyed? (ground 1) 2. Did the primary judge err in finding that no imputation was conveyed by Exhibits G and H? (ground 2) 3. Did the primary judge err in upholding the defence of justification in relation to all imputations save that Mr Massoud was never a respected journalist? (ground 3, and ground 10 of the appeal and ground 8 of the proposed appeal) 4. Did the primary judge err in dismissing the defence of honest opinion in relation to Exhibit F? (notice of contention) 5. Did the primary judge err in upholding 2GB Sydney's defence based upon its offer of amends? (grounds 8 and 9 of the appeal) 6. Did the primary judge err in determining, in the alternative, that contextual truth was a defence to all imputations? (grounds 4-7) 7. Did the primary judge err in concluding that no damages should be ordered? (grounds 11-12 of the appeal, grounds 9-10 of the proposed appeal)

Challenge to findings for Exhibits F, J, L, M, N, O and Q

Mr Massoud submitted that "the error was to have chosen from the imputations the one that was regarded as best encapsulating what was said in the publication, rather than dealing first with the primary imputation pleaded, and continuing to the alternative only if the primary imputation was found not to have been conveyed". He submitted that it was implicit in the reasons that the primary imputations were conveyed, and that: "Once that was established, there was no cause to move on to consider the alternative imputation. It was no part of the court's task to choose between the imputations. They should have been considered in the order in which they were pleaded".
The respondents' written submissions said: "The determination of the natural and ordinary meaning of words involves the application of the 'single meaning' rule. Although different people might have understood the meanings conveyed by the matters in different ways, the task of the primary Judge was to determine a single objective meaning in respect of each matter: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171-175; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; 237 FCR 33 at [73], ABC v Chau Chak Wing [2019] FCAFC 125 at [32]; Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 at [88]."
Secondly, it was said that there was "no reason to conclude from the judgment that the primary judge adopted a process other than to consider the primary imputation before the alternative imputation". They added that "[t]o the extent that the primary Judge found that a 'fall-back' imputation more accurately encapsulated what was said in a matter, it was implicit that her Honour had considered and rejected the primary imputation posited by the Appellant as representing the single meaning conveyed by the relevant matter." The respondents said that: "In any event, even if the primary Judge had not adopted that linear approach to determining meaning, there was no error in law in her Honour selecting which of the two alternative imputations pleaded by the Appellant in respect of each matter most accurately encapsulated the single meaning of the matter. The Appellant cites no authority to the contrary."
Thirdly, the respondents submitted, very robustly: "the Appellant chose to plead his imputations as alternatives. The Appellant's submissions on this issue evince a fundamental misunderstanding of the role of the tribunal of fact when determining meaning. It was precisely the task of the primary judge to determine the 'one and only meaning' from the primary and alternative imputations pleaded by the Appellant that the ordinary reasonable person would have understood the entirety of the relevant matters to bear".
I disagree with most of the respondents' submissions.
First, the reasons of the primary judge dealing with these publications consistently record her understanding that the task was not to determine whether the imputation which was Mr Massoud's primary case was made out, but which of his imputations better encapsulated what had been published. Thus the reasons proceed (in each case, the emphasis is mine): 1. Exhibit F: "Which of imputations (a) and (b) is conveyed? Unlike the [Nationwide] News publications, the Fox publication gives a very high profile to the 'shit down your neck' part of the threat. That is more than just threatening to slit a person's throat, in that it paints a vivid and disgusting picture of defiling a corpse, as well as the use of a four-letter word. In those circumstances, the imputation that more accurately encapsulates what was said is imputation (b)": at [76]; 2. Exhibit J: "Which of the imputations correctly encapsulates what was said? The plaintiff said more than just threatening to slit the young colleague's throat. In those circumstances, imputation (b) best reflects what was said and is thus conveyed": at [100]; 3. Exhibit L: "The reference is to slitting the throat and shitting down the neck, which is more accurately reflected in imputation (b), and that is the imputation I find to be conveyed": at [110]; 4. Exhibit M: "The content of the threat goes beyond imputation (a) because of the 'shit' reference, and is captured best by imputation (b); that is the imputation I find to be conveyed": at [113]; 5. Exhibit O: "The threat goes beyond the text of imputation (a) and it is imputation (b) I find to be conveyed": at [119]. The reasoning in relation to Exhibit N was to substantially the same effect: at [116]; 6. Exhibit Q: "As the threat goes beyond merely slitting the throat, imputation (b) best encapsulates the meaning, that is the imputation which I find to be conveyed": at [128].
This approach was quite different from the submissions made in closing address. By way of example, in relation to Exhibit M, the following was said: "HER HONOUR: Exhibit M is the fifth matter complained of [published by] Nationwide is it? SIBTAIN: Yes. The first imputation that [is] sued upon is that he threatened to slit the throat of a 22 year old cub reporter and there's a fallback that he threatened a young colleague with violence. HER HONOUR: I'm just taking [it] that Mr Molomby [is] saying that they threatened to slit the throat is the one that he wants. MOLOMBY: Correct, your Honour. HER HONOUR: If I'm satisfied that that's conveyed, I don't need to worry about [the alternative]."
Secondly, contrary to the respondents' submissions, the reasons dealing with these imputations do not implicitly reject the primary imputation for which Mr Massoud contended. Indeed, as Mr Massoud submitted, the reasoning reproduced above amounts to an implicit acknowledgement that the primary imputation was conveyed. Mr Sibtain acknowledged as much when the appeal was heard.
Thirdly, the question is not whether there was an error of law in what occurred. Mr Massoud enjoys a right of appeal by way of rehearing in this Court, and the issue of meaning was determined not by a jury but by a judge who gave reasons. If her Honour was wrong simply as a matter of fact, then this Court will intervene. That is so independently of the standard of review which is applicable (a point to which I shall return), noting that material mistake of fact is a basis for review on the principles stated in House v The King.
Fourthly, in marked contrast with the respondents' written submissions, counsel for the respondents made no real attempt in oral address to defend the strident submissions advanced in support of the "single meaning rule". Mr Sibtain conceded that Mr Molomby had asked the primary judge to consider both imputations proffered in the alternative, and had not been put to an election (T78.24-33). Mr Molomby's submissions in reply contended that the respondents' reliance upon the "single meaning rule" was quite wrong. This was the point conveyed at the beginning of his submissions in reply: "The respondents contradict the appellant's argument about the finding of the alternative imputation by reference to the 'single meaning' rule. They misunderstand and misapply that rule. The 'single meaning' rule is about the fact that the same meaning can often be expressed in multiple ways, and that the court needs to determine which of those ways is its most appropriate expression. It does not mean that a publication cannot convey multiple meanings, as the Full Federal Court noted in one of the authorities cited by the respondents, ABC v Chau Chak Wing [2019] FCAFC 125 at [33]. … In each case, the 'fall-back' imputation was a different imputation from the primary imputation. They could not have stood as alternatives if that was not so. There was no scope for application of the 'single meaning' rule in the circumstances. Its application, if there were any, would have been to adjudicate between, as formulations of the primary meaning, 'he threatened to cut X's throat,' 'he threatened to slit X's throat,' 'he threatened to kill X by slitting his throat', 'he said that he would cut X's neck,' etc. The rule works within the limits of the material giving rise to a single imputation, not across material giving rise to another imputation. The trial judge herself recognised that the 'fall-back' imputation was founded on material beyond that on which the primary imputation was founded. That inescapably acknowledged that the primary imputation was conveyed. Her Honour simply decided that there was other material not encapsulated in the primary imputation, which should be included. To the contrary, the court's task was to adjudicate on the case as put before it by the parties. Her Honour clearly understood what that was. The failure to do that was a procedural error. Her Honour was obliged to consider whether the primary imputation was conveyed exactly as she would have been if no alternative imputation had been pleaded."
When members of this Court then inquired of the respondents how the approach taken was sought to be defended, there was the following exchange: "LEEMING JA: Just before you do, so that I can be clear because I raised this with your opponent, your written submissions say that there is an easy answer. This is just an application of something called the single meaning rule. He says that's just wrong. Are you pressing the submission that what her Honour did was some application of the single meaning rule? SIBTAIN: I press this: the single meaning rule, until it's been dispensed with, it's lost some of its force in the context of where the tribunal of fact is a judge, but the tribunal of fact has to find the meaning that best encapsulates what was said. SIMPSON AJA: No, it doesn't. No, that is not right. The tribunal of fact has to decide whether the imputations propounded by the plaintiff sequentially, if they're alternatives, are conveyed. SIBTAIN: What your Honour Simpson AJA has just put to me I'm not cavilling with that. I'm submitting that the single meaning rule, in the way in which we understand it, is an attempt to avoid the extremities of meaning and to discount the extremities of meaning and find the most appropriate meaning that captures what the ordinary reasonable reader within the appropriate range would find from it. Engaging with what your Honour Simpson AJA has just put to me, what that means is, if there is a range of alternatives presented and the first is too extreme then, in the quest for the single meaning, that imputation is not conveyed and the tribunal of fact goes to the next imputation to see whether or not it falls within the meaning, properly conveyed, to the ordinary reasonable reader and both meanings would not be found to have been conveyed or a range of meaning. The quest is for the single meaning, but your Honour will have [seen from] my submissions I've not cavilled with what your Honour has put to me about the sequential approach."
The "single meaning rule" is rather more nuanced than the respondents contended. It certainly does not mean that a plaintiff is precluded from alleging that a publication conveys more than one imputation. As was noted in the passage from Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125 at [33] to which Mr Massoud referred in his submission in reply, "An applicant may allege that a published matter conveys two or more distinct defamatory imputations, and may allege imputations in the alternative (Federal Court Rules, r 16.06), and subject to any defences, will succeed if one or more of those imputations is found to be conveyed." The position is identical in the District Court, save that the "applicant" is a plaintiff, the general rule authorising inconsistent allegations of fact in the alternative comparable to r 16.06 is UCPR r 14.18 and in addition two or more imputations must not be alleged to have been made by the same publication unless they differ in substance: UCPR r 14.30(3). This is on all fours with the description in D Price, K Duodu and N Cain, Defamation: Law, Procedure and Practice (Sweet & Maxwell, 4th ed 2010) at [2-14]: "The single meaning rule It is often said that there can be only one natural and ordinary meaning and, where appropriate, one innuendo meaning. This is an oversimplification. To say of C that he is a thief, adulterer and drunk does not mean that C can only select one allegation in respect of which to complain, although he may choose to do so. A newspaper or magazine article, for example, can level a number of allegations against a claimant which will be listed in his particulars of claim. The effect of the 'single meaning rule' is that where there are legitimate but contradictory interpretations of the words, the court cannot recognise the reality, which is that a number of reasonable readers would have interpreted the words in one way and the remainder in the alternative. The court must determine one 'correct' meaning out of the conflicting interpretations."
Consistently with that approach, the respondents made no challenge to the finding that Exhibit F, whatever it conveyed about any threats made by Mr Massoud, also conveyed the imputation that Mr Massoud was never a respected journalist.
When once the respondents' attention was focussed upon the process employed by the primary judge in choosing the alternative imputation rather than the primary imputation for which Mr Massoud had contended, in substance the respondents conceded that the primary judge had erred, in deciding seven of the imputations without considering Mr Massoud's primary case.
This may be seen, by way of example, in Exhibit J, a short item in the Daily Telegraph published by Nationwide News on 4 May 2018. The entirety of the article was as follows:
The primary judge addressed this publication at [97]-[100]. The pleaded imputations were "[t]hat he threatened to slit a rookie colleague's throat" or alternatively, "[t]hat he threatened a young colleague with violence". Her Honour noted the references to "claimed" and "allegation" and the inverted commas around the language ascribed to Mr Massoud, and the reference to a pending internal investigation, all of which suggested that there had as yet not been a conclusive finding. However, her Honour observed that the headline "Out Over Throat Threat" was the real difficulty, which conveyed an imputation that Mr Massoud was out because he made a threat. Her Honour regarded the headline as outweighing the careful language of the publication. Her Honour then continued at [100]: "Which of the imputations correctly encapsulates what was said? The plaintiff said more than just threatening to slit the young colleague's throat. In those circumstances, imputation (b) best reflects what was said and is thus conveyed."
I respectfully disagree with this reasoning. Mr Massoud was entitled to an adjudication on the basis which was pleaded and clearly enunciated during the closing submissions, namely, for the Court to determine whether the primary imputation was conveyed, and if not, whether the fall-back imputation was conveyed. Even if that was not always the case in all jurisdictions, that is the settled approach in New South Wales: see Australian Broadcasting Corporation v Chau Chak Wing at [16]-[18] (explaining why what was said in Gumina v Williams (No 2) (1990) 3 WAR 351 at 364 did "not reflect modern pleading and trial practice in defamation proceedings"). That process did not occur. It is clear that the imputation that Mr Massoud threatened to slit a rookie colleague's throat is conveyed. That is the natural reading of the opening sentence, nothing in what follows detracts from it, and the "ordinary reasonable people" who are "of ordinary intelligence, experience and education" and who are "not avid for scandal" and "fair-minded" (the traditional formulations of the mythical reader or listener or viewer are collected in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at [6]) would not regard what was conveyed as merely a contested claim that such a threat had been made. Indeed, Mr Sibtain accepted as much, in the event this Court concluded that the process of determining which imputation was conveyed was flawed.
The question as to what this Court should do was then constructively addressed by Mr Sibtain: "SIBTAIN: To answer then the question at the end of yesterday from Simpson AJA what happens if this Court is of the view that her Honour erred in finding that the second meaning was conveyed? For the reasons we've just been discussing, I cannot submit, and I do not submit, that imputation A was not conveyed. My submission is that it is sufficiently clear from the process engaged in by the primary judge where her Honour found that it was the inclusion of additional material that led to her Honour's finding on imputation B in each of those relevant matters, that she understood that the material or elements of imputation A were conveyed. So I don't make the submission that imputation A was not conveyed and I don't think I'm able to make that submission. As a matter of practicality, which is also what I understand your Honour Simpson AJA's question to be addressed to, my submission is that if this Court is ordering a retrial, of course, it's a matter that should be determined at the retrial, but if this Court is not ordering a retrial, then this Court is in an equally good position to determine the question of meaning. SIMPSON AJA: I just want to be sure I understand, if we take the view that the approach was wrong, the process was wrong, then we make the finding that in each case imputation A was conveyed? You're not putting any argument that, because of the use of words alleged and claimed and so on imputation A was not conveyed? SIBTAIN: I don't think I'm able to do that because at trial below, in relation to - I might just turn up the submissions I made. I don't know if I conducted it in relation to each of those matters in the same way below and I don't think I can put a submission that's inconsistent with that."
The stance taken by Mr Sibtain was an appropriate one. For that reason, and another addressed below, there is no need to go through each of the seven publications which are the subject of ground 1 of the appeal and application for leave to appeal. Ground 1 is made out.
It may be noted that there is no dispute that seven other publications (Exhibits A, B, C, D, E, K and P) conveyed Mr Massoud's primary alleged imputation that Mr Massoud threated to slit the throat of a colleague or made graphic threats to kill a colleague. If the seven additional publications which are the subject of ground 1 convey the primary imputation too, then they will be answered or not answered by the other defences, notably justification. The challenge in ground 3 to the finding of justification arises in relation to unchallenged findings by the primary judge that the primary imputation was conveyed in those publications, and must be determined in any event, and until and unless that finding on justification is set aside, ground 1 will have no impact upon the outcome of the appeal or the application for leave to appeal. In short, while ground 1 is a logical starting point, it is immaterial to the outcome of the appeal and application for leave to appeal until and unless Mr Massoud succeeds in overturning later aspects of the analysis. That is another reason for not addressing each of the seven publications found to convey a secondary imputation.
There is one final complexity. On the day after this appeal was heard, the Victorian Court of Appeal delivered judgment in Gatto v Australian Broadcasting Corporation [2022] VSCA 66. The joint judgment of Beach, Walker and Macaulay JJA addressed the single meaning rule, and the nature of the appeal when complaint was made as to the imputation found by a judge sitting alone. By reference to the analysis by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [48]-[49], their Honours asked whether in light of the single meaning rule appellate review engaged the principles in House v The King. Their Honours' conclusion on this issue is found at [52]: "On the other hand, as Gageler J observed, there may be categories of cases where other considerations affect the standard of judicial review. In our opinion, defamation law is such a category, by reason of its unique and somewhat artificial mode of analysis. The ultimate conclusion as to the single meaning conveyed by the publication is derived as a matter of impression, by choosing an answer between or among a range of legitimate and reasonable answers (being those imputations the publication is capable of conveying). Thus, the legal criterion applied has features that tolerate a range of outcomes. For that reason, we consider that, while we have not had the benefit of full argument, the better view is that in a defamation trial by judge alone, the appropriate standard of review by an appellate court of the trial judge's determination of the single meaning of the publication is to be approached by reference to the House v The King standard. In that context, the question is not whether this Court has formed a different view from that of the trial judge, but whether the trial judge's determination was reasonably open." (footnote omitted)
Needless to say, neither side in the present appeal had addressed this. I was assisted by receiving a joint note from the parties drawing attention to this decision (and another) and indicating a preparedness to make further submissions if required. It is possible to resolve these appeals without determining the impact of that passage from Gatto. It is with respect difficult to reconcile that approach with the "real review" which, axiomatically, is to be conducted on an appeal by way of rehearing involving a challenge to whether or not an imputation has been conveyed by a publication which is in writing or on electronic media. Further, what was said, tentatively, in that obiter passage of Gatto would in any event need to be assessed against what was held as a matter of ratio in Bailey v WIN Television NSW Pty Ltd (2020) 104 NSWLR 541; [2020] NSWCA 352 (a decision to which the Victorian Court of Appeal may not have been referred, consistently with their Honours' acknowledgement that they had not heard full argument and the absence of any reference to it). There Simpson AJA, with whom Meagher JA agreed, identified at [46] the test applicable to appellate review of whether an imputation was conveyed by a publication which was a telecast news item and a Facebook posting which did not in any sense depend on impressions about the credibility or reliability of witnesses formed by the trial judge as one governed by Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9. White JA dissented on this issue and upheld the finding by the primary judge that the relevant imputation was not conveyed. However, there is nothing in his Honour's reasons to suggest that he was doing other than applying a real review of a finding of fact not dependent in any way upon the advantages of the trial judge, in accordance with Warren v Coombes. The same may be said of the reasoning in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68 at [19]-[84] (delivered just over a fortnight after Gatto), overturning some of the findings of the primary judge that the imputations alleged by the plaintiffs were not made out.
In light of my conclusions on justification, it is unnecessary to take this ground any further. Nor was there any need to trouble the parties with further time and expense in making submissions based on Gatto. It is sufficient to proceed, favourably to Mr Massoud, on the basis that in each of Exhibits F, J, L, M, N, O and Q the primary imputation to the effect that Mr Massoud threated to slit a colleague's throat was conveyed.

Ground 2 - the imputations in Exhibits G and H

This ground is quite distinct from ground 1 but should be resolved in the same way. Ground 2 of each of the appeal and application for leave to appeal was that "the court below erred in law in finding that no imputation was conveyed by [Exhibits G and H]". Exhibit G was a comedic piece broadcast on KIIS; Exhibit H was a website publication by Nationwide News. But once again, nothing whatsoever turns upon this ground until and unless the findings upholding the publishers' defences are set aside. If the defences of justification and contextual truth and the conclusion that no damages should be awarded are all set aside, then this ground would potentially matter, because if made out they would impact upon the relief to which Mr Massoud is entitled. In principle, Mr Massoud might be entitled to seek slightly more damages if there were 16 defamatory publications of substantially the same imputation than if there were 14, although that is more controversial than one might first think, having regard to the need to avoid double compensation: see for example the reasoning in Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 at [159]-[162]. More substantially, if Mr Massoud were entitled to injunctive relief, that would only extend to Exhibits G and H if these grounds were made out.
But on the view I have taken, nothing turns on these grounds, because KIIS and Nationwide News have other defences which are complete answers to them, even if they convey the imputations for which Mr Massoud contends. There is no suggestion that there is any broader principle involved in determining whether these two exhibits conveyed the imputations pleaded by Mr Massoud, and there are ample issues in this appeal and application for leave to appeal which more directly bear upon the outcome and which need to be determined in any event. In those circumstances, I decline to deal with them, in accordance with Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8] and [101].

(2020) 104 NSWLR 541

(2020) 102 NSWLR 714

(2019) 100 NSWLR 155

(2020) 102 NSWLR 733

(2020) 102 NSWLR 123

(2020) 102 NSWLR 269

At a glance

Court

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Judgment (27 paragraphs)

Legislation Cited (14)

Cases Cited (103)