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

y Ltd & Ors [2012] SASCFC 99 Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd [2018] NSWCA 325 Customs and Excise Commissioners v A & Another [2003] 2 All ER 736 at 754 Dank v Nationwide News Pty Ltd [2016] NSWSC 295 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 De Kauwe v Cohen [2021] WASC 25 Digi-Tech (Australia) Ltd v Brand & Ors (2004) 62 IPR 184 Donoghue v Hayes (1831) Exch of Pleas 265 Eatock v Bolt [2011] FCA 1103 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] NSWCA 172 Fairfax Media Publications v Zeccola [2015] NSWCA 329 Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838 Giani v Queensland Television Ltd & Ors [2015] QDC 286 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Green v Fairfax Media Publications Pty Ltd [2020] WASC 250 Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 Hill v Westfield & Anor [2003] NSWSC 437 Hobbs v C T Tinling & Co; Hobbs v Nottingham Journal Ltd [1929] 2 KB 1 Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 Humphries v TWT Ltd [1993] ACTSC 24; 113 FLR 402 Humphries v TWT Ltd [1993] FCA 577; 120 ALR 693 Hutley v Cosco [2021] NSWCA 17 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Jones v Sutton (No 2) [2005] NSWCA 203 Lewis v Daily Telegraph [1964] AC 234 Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 Maisel v Financial Times Ltd [1915] 3 KB 336 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 520 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Mohareb v Booth [2020] NSWCA 49 Nail v News Group Newspapers Ltd and others; Nail v Jones and Another [2005] 1 All ER 1040 O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 O'Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655 O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 Oyston v St Patrick's College [2013] NSWCA 135 Palmer v McGowan [2021] FCA 430 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 Pearse v Viva Energy Refining Pty Ltd [2017] FWC 3817 Pedavoli v John Fairfax Publications Pty Ltd [2014] NSWSC 1476 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Plato Films Ltd v Speidel [1961] AC 1090 R v Ireland [1997] 1 All ER 112 Rochfort v John Fairfax &Sons Ltd [1972] 1 NSWLR 16 Sands v Channel Seven Adelaide Pty Ltd and Anor (2009) 104 SASR 452 State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 160 ALR 588 Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 Stocker v Stocker [2019] UKSC 17 Sutherland v Stopes [1925] AC 47 Tauafaga v TCN Channel 9 Pty Ltd [2013] NSWSC 8 Thornton v Telegraph Media Group Limited (No.2) [2011] EWHC 1884 Tuberville v Savage (1669) 86 ER 684 V'Landys v Australian Broadcasting Corporation (No.3) [2021] FCA 500 Watson v Foxman (1995) 49 NSWLR 315 Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 Texts Cited: "A Comparative Study of Defamation Costs Across Europe", Oxford University, 2008 (http://pcmlp.socleg.ox.ac.uk/sites/pcmlp.socleg.ox.ac.uk/files/defamationreport.pdf) D. Rolph, Defamation Law (Thomson Reuters (Professional) Australia, 2015) J G Fleming, "Retraction and Reply: Alternative Remedies for Defamation" (1978) 12 U Col L Rev 15 New South Wales Government Gazette, No 132, 26 June 2020, at p. 3045 New South Wales Government Gazette, No 247, 11 June 2021 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005, at p. 17636 Category: Principal judgment Parties: Plaintiff: Josh Massoud

The capacity of the matters complained of to convey the imputations

1. As noted above, each of the sixteen matters complained of is pleaded to give rise to one imputation, but that imputation is expressed, for each publication, as a series of variants (as to this rather unusual pleading practice, which seems to have found favour in the Federal Court, see Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [14] - [15] per Lee J).
2. The test for defamatory imputations at trial is whether, on the balance of probabilities, the meaning contended for by the plaintiff was conveyed to the ordinary reasonable reader, a person "of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal", who "does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs" and who does not engage in over-elaborate analysis in search for hidden meanings, nor adopt a strained or forced interpretation (O'Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655 at [48] per McCallum J).
3. In general terms, the defendants submit that that no imputations are conveyed in any of the publications because the words are reported only as allegations of what was said. Additionally, the context is a work dispute, whether the matters complained of refer to the plaintiff's dismissal or not, and the plaintiff's words would not have been construed as a real threat to kill.
4. Mr Molomby SC makes a similarly broad submission that in each publication "the allegation against the plaintiff is formulated in a very small number of precise and clear words, with minimal context" (submissions, p. 1) and that, regardless of context, the imputation is therefore conveyed.
5. Both these submissions are too broad, and do not take into account either the role of context in determining meaning or the wider applicability of the Mirror Newspapers Ltd v Harrison principles to civil allegations as explained in Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd [2018] NSWCA 325. Both these issues are discussed at length in Cummings, where the issue was whether a report of civil proceedings conveyed imputations as allegations of fact "or, as the appellants describe them, "guilt imputations"" (at [105]).
6. Mr Molomby SC submitted that the principles enunciated in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300 applied only to reports of a person being charged with a criminal offence and was inapt in the context of reports of civil allegations, adding that, as Lord Devlin stated in Lewis v Daily Telegraph [1964] AC 234 at 294, "[f]or the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it." In other words, the republication of defamatory hearsay is sufficient for the imputation to arise regardless of what else is contained in the publication. For the reasons set out below, neither of these submissions is correct.

The ordinary reasonable reader/listener/viewer

1. The relevant principles are helpfully set out by Flick J in Bellino v Queensland Newspapers Pty Ltd [2019] FCA 1380 at [13] - [16]. As Flick J notes, the "ordinary reasonable reader" is variously said to be of fair, average intelligence, experience and education; he or she is also fair-minded and neither perverse, morbid nor suspicious of mind, nor avid for scandal.
2. When applying the "ordinary reasonable reader" test in determining what implications or inferences would be drawn from a publication, it is important to note that the ordinary reasonable reader is not a lawyer who parses and analyses the publication, but that the publication is being read by someone who views the publication casually and is prone to a degree of "loose thinking", particularly in the case of transient publications such as radio broadcasts.
3. "The ordinary reasonable reader" does not live in an "ivory tower", but can, and does, read between the lines, in the light of general knowledge and experience of worldly affairs. While such a reader does not search for hidden meanings or adopt strained or forced interpretations, he or she would nevertheless draw implications, especially derogatory implications, more freely than a lawyer would.
4. The facts in this case also raise an interesting question of the ordinary reasonable reader's understanding of community standards of conduct, in terms of how a media report of the use of a "four-letter word" such as the word "shit" (specifically, a threat to shit down the throat of someone) should be presented to readers. I have carefully preserved the use of asterisks and dots (where these are used) in order to ensure that this aspect of the publication is not overlooked.
5. The imputations must arise in their natural and ordinary meaning. The role of context is vital here, as publications of the kind the subject of these proceedings assume that their readers are taking into account their general knowledge and experience, which would include some understanding of workplace conduct and what amounts to bullying, unlike more esoteric areas of asserted misconduct, such as insider trading (Hill v Westfield & Anor [2003] NSWSC 437 at [10] - [14].
6. The entire publication must be considered to have been read, and such a reader would consider the context as a whole, although taking into account emphasis that may be given by conspicuous headlines or captions.

Exhibit H: 3 May 2018 website publication

1. Exhibit H is headed "Channel 7 journo Josh Massoud 'threated to slit colleague's throat'". The imputations pleaded are: 1. That he threatened to slit a rookie colleague's throat Alternatively 1. That he threatened a young colleague with violence
2. Does the matter complained of convey that the plaintiff has in fact threatened to slit a rookie reporter's throat, or merely been accused of saying this? The following passages are relevant to the consideration of what the ordinary reasonable reader would make of this article and the meanings which would be conveyed: 1. The publication uses inverted commas in the heading ("threatened to slit colleague's throat") and the first paragraph ("slit" and "shit down") to identify what was claimed to have been said. The use of the inverted commas, particularly in the heading, suggests that the headline is intended as a quotation from a person who has accused him of it. 2. The publication uses the word "claimed" in line 5, "claims: in-line 10 and "allegedly" in line 15. 3. The context is clearly identified as being a workplace dispute between the Seven's Human Resources representatives and Seven Sydney News director, Mr Morrison on the one hand, and the plaintiff and his lawyer. The matter states that the plaintiff "had a lawyer present" as he "addressed" the claims. The plaintiff is described as having been "stood down pending an internal investigation by Seven". 4. The two parties to the dispute, the plaintiff and Mr Morrison, are shown in photographs. This underlines the description of there being a pending investigation where facts are in dispute, claims are being "addressed" and no final determination has been made. 5. The story ends by stating that the plaintiff "did not return the Daily Telegraph's call" and that Channel 7 "was yet to respond to questions this afternoon". This reinforces the general impression of an ongoing dispute.
3. Mr Molomby SC submitted, in relation to each of the matters complained of, that merely republishing the allegation was sufficient to convey the imputation. It made no difference that words such as "claimed" and "alleged" were used; mere repetition was enough.
4. I agree with Mr Molomby SC that it is not necessary for the publisher to endorse the claim. However, the context in which the words conveying the imputation are published must be given its proper weight: Lewis v Daily Telegraph Ltd. Each imputation has to be considered in the context of the entire matter complained of. It does not follow, however, that each part of the publication must be given equal significance. The opening words of an article may set the tone, but this does not necessarily negate contrary statements in the following paragraphs. In particular, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements.

Exhibit P: 12 May 2018 social media post

1. This is a social media post, the entirety of which reads: "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."
2. There is no reference in the matter complained of to the "young colleague" being 22 years old. The copy of the post does not suggest that any article is attached, and I was not addressed as to whether any link was included or, if it were, what the consequences were (as to which, see Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [204] - [213] per White J). I assume the reference to the 22-year-old is an error by the pleader. Given that the post refers to the colleague as "young", it makes no difference to capacity issues.
3. The imputations pleaded are: 1. That he threatened to slit a 22-year old colleague's throat Alternatively 1. That he threatened a young colleague with violence
4. The fact that the plaintiff is demanding a substantial amount of compensation for being suspended for what he is alleged to have said does cast some shadow, but not sufficient to prevent the imputation from being conveyed.
5. As Mr Molomby SC preferred the first imputation, and it accurately encapsulates what was asserted to have been said, that is the imputation which I find to be conveyed and defamatory.

The defence of justification

1. The defence of justification pursuant to s 25 of the Act is pleaded by the defendants in all five proceedings.
2. In s 4 of the Act, the phrase "substantially true" is defined as "true in substance or not materially different from the truth". In Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981, White J explained this definition as follows: "[105] The s 4 definition means that a respondent is not required to establish the truth of every detail conveyed by the imputation. Instead, a respondent must prove that the imputations conveyed were true in substance or were not materially different from the truth. If the substance of the imputation is true, then the defence will not be defeated by some error in detail. The Court of Appeal in New South Wales explained the position in relation to the defence of substantial truth when considering s 15 of the Defamation Act 1974 (NSW) in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [138] (Spigelman CJ, Beazley JA, McColl JA, McClellan CJ at CL and Bergin CJ in Eq): In order to establish imputation 12 was substantially true, the appellant had to establish that every material part of it was true: Howden v Truth & Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416 (at 419) per Starke J; (at 420) per Dixon J; (at 424 - 425) per Evatt J. However this does not mean the appellant had to prove the truth of every detail of the words established as defamatory (Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 (at [85]) per Gillard J), rather the defence of substantial truth is concerned with meeting the sting of the defamation: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 (at [274]) per Gillard AJA (Winneke ACJ generally agreeing and Warren AJA agreeing). As Lord Shaw of Dunfermline explained in Sutherland v Stopes [1925] AC 47 (at 79): "It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out. To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it." [Emphasis in the original removed] See also Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 at [104] ‑ [105]."
3. In Stocker v Stocker [2019] UKSC 17, the Supreme Court stressed the importance of the justification defence meeting the sting of the libel without taking an unduly legalistic approach to the elements of proof. The facts in Stocker v Stocker are of relevance to these proceedings, given Mr Molomby SC's reference to slitting throats as a serious criminal act, as the defamation claim was brought by a husband against his wife for her statement that he had "tried to strangle" her. The husband argued at trial that the meaning to be given to the words "tried to strangle me" was that he tried to kill her, whereas the defendant argued that, "in the context of domestic violence, the words do not impute an intention to kill" (at [5] per Lord Kerr).

The defence of contextual justification

1. The elements of the defence of contextual truth are helpfully set out by Professor David Rolph in Defamation Law (Thomson Reuters (Professional) Australia, 2015) ("Professor Rolph") at [9.140]. Essentially, a defendant is permitted to identify and justify meanings arising from the defamatory matter not relied upon by the plaintiff. If the injury done by the publication of one or more of these substantially true imputations outweighs that done by publication of the false imputations, the defendant has a complete defence.
2. The defence has a narrow scope of operation, in that it can only operate effectively where the plaintiff has not elected to sue upon serious allegations conveyed by the defamatory matter. The facts of this case are a good example of such a defence. The plaintiff's claim for damages is a narrow and precise one of the wrong words being attributed to him in circumstances where he was suspended and dismissed for conduct which the defendants say is encapsulated in each of the contextual imputations pleaded.
3. In terms of proof, the contextual imputations, unlike the plaintiff's imputations, are cast in general terms and, in those circumstances, the defendants must establish an adequate number of substantially accurate and relevant examples in order to justify the imputation as a whole: Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 (imputations of shoddy and incompetent building practices established on the basis of four proven circumstances).

The defence of contextual justification: capacity issues

1. The plaintiff challenges the capacity of the contextual imputations to arise in relation to each of the publications as well as each of the relevant elements of the defence.
2. The principles to apply when determining whether a contextual imputation is capable of arising in addition to the a plaintiff's imputations are explained (albeit as a capacity rather than a trial issue) by McCallum J in Tauafaga v TCN Channel 9 Pty Ltd [2013] NSWSC 8 at [6] - [7] and by the Court of Appeal in Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [30] - [40].
3. Although I propose to deal with the challenge to capacity in relation to each of the matters complained of, several issues of law, in relation to form and capacity, may be dealt with in a rolled-up fashion by reason of the similarity of the imputations pleaded.
4. First, the plaintiff challenges each of the contextual imputations pleaded in terms of their generalised form. The defendants have pleaded general imputations of a Maisel v Financial Times Ltd [1915] 3 KB 336 nature, whereas the plaintiff has pleaded a specific and narrow act which, in substance, is that he threatened to slit the throat of a young colleague. Mr Molomby SC submits that a general imputation cannot be pleaded contextually to a specific imputation.
5. This is incorrect. In Fairfax Media Publications v Zeccola [2015] NSWCA 329, McColl JA, with whom Macfarlan JA and Sackville AJA agreed, held that a general contextual imputation of a Maisel nature could be pleaded in defence to a specific imputation, even though it relates the same subject matter, as long as it differs in substance, citing Allen v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 2 December 1988). The correctness of this approach was endorsed by White J in Palmer v McGowan [2021] FCA 430 at [21] - [22]. While his Honour went on to state that such a question must be approached with care, to avoid unduly opening up areas of evidence which would otherwise be barred, the overlap between the specific act pleaded (namely the threat) and the conditions giving rise to the conduct as framed in each of the contextual imputations pleaded is sufficiently demonstrated to warrant the pleading of these imputations in the manner adopted here.
6. In addition, I note the imputation pleaded by the plaintiff that I have found to be conveyed in 11 of the 16 publications (one of these is an alternative finding) is not the imputation of slitting a throat but one of making graphic threats to kill or threatening a young colleague with violence. These are not specific or narrow imputations.
7. Second, as to the issue of capacity, Mr Molomby SC submits that a single alleged incidents of behaviour asserted to be bullying cannot be sufficient to convey a general charge against the plaintiff that he is a bully.

The evidence concerning the justification defences

1. Before setting out the evidence called by the parties, I set out the plaintiff's explanation of how he was merely using what his Concerns Notice describes as a "colourful" expression when he said to Mr Warren: "if you weren't so young and inexperienced, I'd [probably] come up there and rip your head off and shit down your throat".
2. First, as the Concerns Notice goes on to state and as Mr Molomby SC stated in his opening (T 16), ripping off someone's head and shitting down their throat is absurd, unreal and impossible, whereas a threat to slit someone's throat was, Mr Molomby SC asserted, "real, violent and lethal" (T 16). This latter statement was tantamount to saying (even though the plaintiff and Mr Warren were on an interstate phone call at the time) that the plaintiff was going to come to Queensland to commit a violent and criminal act comparable to extremist terrorist violence (in that slitting throats, as opposed to ripping off heads, is asserted to be conduct of Middle Eastern extremists).
3. Second, because this phrase was prefaced by the words "if you weren't so young" (or "if you weren't so young and inexperienced"), the words "I'd probably come up there and rip your head off and shit down your throat" were robbed of any threat content at all. The statement, "if you weren't so young" is as anodyne as, for example, "if I weren't so tired" in phrases which went on to say "I'd carry your books" or some other innocuous activity.
4. In other words, the plaintiff says that he did not threaten to do anything at all, and that the "colourful" acts he refers to are a physical impossibility. He complains that the defendants have accused him of saying he would do something that is not merely violent but lethal.
5. The plaintiff denies that he was angry at the time of the call, or alternatively that any anger dissipated after he discovered that Mr Warren was only an 18-year-old cadet. He says that the "colourful" language was used in the course of accepting Mr Warren's apologies for his wrongdoing and giving him some helpful guidance on how to be a good journalist in the future.
6. The defendants' case is that the plaintiff angrily delivered a coercive and threatening statement of a graphic and violent act as part of an abusive phone call which his supervisors, familiar with the plaintiff's anger problems, had warned him not to make, and that it was made with the objective of frightening and intimidating Mr Warren, who was reduced to tears and had to be sent home. Far from being a promise not to act, the phrase "if you weren't so young" was part of the insult, and did not detract either from the force or effect of the threat, or the description of the act.

The credit of witnesses

1. In Thornton v Telegraph Media Group Limited (No.2) [2011] EWHC 1884, Tugendhat J stated at [73] - [74]: [73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" … Lord Bingham cited Sir Richard Eggleston SC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not: (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. [74] Lord Bingham then added these observations: "In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented … so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such."
2. The reliability of the memory of each of the witnesses called by the defendants, as well as the plaintiff, was the subject of challenge.
3. Contemporaneous documents setting out versions of the telephone call are in evidence. The accuracy and objectivity of these records (notably the Human Resources report and Katie Toney's email) have not been challenged. These documents play an important role in the determination of disputed issues of fact. In Watson v Foxman (1995) 49 NSWLR 315 McLelland CJ in Eq., describing the need for certainty where words are asserted to be spoken (in the context of misleading or deceptive conduct), said at 318-319: "In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

Emma Dallimore

1. The plaintiff rang Ms Dallimore, currently the Deputy News Director at Channel 7, who was the Supervising Producer at the time of these events and, in that capacity, had regularly worked with the plaintiff during his time at Channel 7. She described the minutes before the news went to air at 6 pm as particularly busy.
2. Ms Dallimore gave the following evidence about the call: "Q. Do you recall what he said during that phone call? A. Not particular sentences. He was very angry and he was yelling. Q. He was angry and he was yelling. Do you recall phrases that he used? A. Not verbatim. This is - words to the effect of, "This is bullshit. How the fuck does this happen?" I was trying to get to the bottom of what he was talking about. I think Josh had called in the assumption that I knew what he was angry about, but I didn't. Q. Right. What did you say to him during the course of this conversation, if anything? A. I recall just attempting to sort of get a word in to figure out what had made him so angry, what had happened. I don't recall being particularly successful in getting to the bottom of it before the conversation ended. Q. How did it end? A. I don't recall if I hung up or if Josh hung up or if we ended it, but I raised my voice back at him, told him not to speak to me like that and that I was too busy to deal with this." (T 393)
3. Although the anger was not directed at her, and she was used to colourful language in news rooms, Ms Dallimore agreed that she could not recall anyone speaking to her in such a way before (T 345). She went into Mr Morrison's office and said to him, "I don't know what the hell is wrong with Josh, but he's just been screaming at me on the phone. That's not okay. I'm sick of this shit. I don't have time for this" (T 394).
4. Ms Dallimore's conversation with Mr Morrison was clearly by way of complaint. However, during her evidence, she was candid about her reluctance to "throw your colleague under a bus" for the phone call in question, and her statements to this effect led to Ms Thatcher noting (Exhibit 1) that the complaint about the plaintiff's conversation with Ms Dallimore was not made out. Is this sufficient for me to disregard this call as evidence of bullying conduct or making some form of threat?
5. The difficulty with bullying conduct and threats in the workplace is what has been referred to as the "ripple effect" (Pearse v Viva Energy Refining Pty Ltd [2017] FWC 3817 at [108]) that leads to one statement, or document, permeating through the workplace and upsetting other workers, even those unrelated to, or unconcerned by, the actual dispute. This helps the bad behaviour of the bully to be successful, whether the recipients of his abuse feel intimidated or not.

The defendants' application to amend the particulars of justification

1. I briefly note my reasons for refusing (T 188) the defendants' application for leave to amend the particulars of justification.
2. On the second day after the commencement of the hearing, and at a time when the plaintiff was in cross-examination (T 187), Mr Sibtain made an application to amend the particulars of justification to include additional evidence of the plaintiff's conduct at Channel 7. He told the court that the new information was obtained from witnesses who had been called by the defendants on subpoena, and that the explanation for the delay was that this information could not be obtained prior to the witnesses being interviewed after the subpoenae were issued.
3. For many years, late amendment of justification particulars shortly before or during trials was common in defamation actions. The courts' willingness to permit such amendments reached its high point in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 520, where an application to amend the particulars, made during the trial, occupied 38 days. Such conduct would not be permitted today, as the potential loss of public confidence in the legal system which arises where courts are seen to accede to such applications made without adequate explanation or justification is now recognised by the application of case management legislation such as ss 56 - 58 of the Civil Procedure Act 2005 (NSW). That explanation must include all of the circumstances (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [102] and [106] and the potential for prejudice to the other party is a key factor: s 58(2)(vi) of the Civil Procedure Act. The quality of the evidence (or lack thereof) is also a relevant factor. Courts are particularly careful where the litigation is at an advanced level: De Kauwe v Cohen [2021] WASC 25.
4. The proposed new evidence failed all these tests. The defendants already knew the identity of the witnesses in question and inquiries could have been made at an earlier stage. The prejudice to the plaintiff of meeting such evidence after the trial had started was considerable. The quality of the evidence was difficult to ascertain as its contents were described only in general terms. Accordingly, I refused the defendants' application to amend the particulars of justification.

Ruling on admissibility of cross-examination concerning the Judy Davis defamation proceedings

1. Evidence was also led about the circumstances in which the plaintiff's honesty in giving evidence under oath had been the subject of adverse findings in other defamation proceedings.
2. In Davis v Nationwide News Pty Ltd [2008] NSWSC 693, McClellan CJ at CL made the following findings about the credibility of Mr Massoud's evidence in that case: "21 Section 36 of the Act provides that the court is to disregard the malice or other state of mind of the defendant at the time of publication "except to the extent that [it] affects the harm sustained by the plaintiff." The jury found that the defendant was actuated by malice in publishing the article in The Daily Telegraph and made the same finding with respect to the article in The Sunday Mail. The jury also found that the defendant had failed to prove that Mr Massoud believed the imputations to be true at the time they were published. This involved a rejection of his evidence to the contrary. … 24 The jury rejected Mr Massoud's account and in my view was right to do so. Mr Massoud did not impress me as a witness of truth. 25 Ms Davis believed that The Daily Telegraph would not be fair to her in any article it wrote. She had this view before the first publication on 22 February 2006. That publication confirmed her view that the newspaper "would isolate her and use her in some way." When the article was published the following day Ms Davis' sense of grievance was significantly enhanced by her belief that the newspaper was setting out to humiliate her, using her name and reputation to excite reader interest in the story. She believed, and her belief was borne out by the article that the newspaper would not fairly represent her position on the issue. 26 I am entirely satisfied that Ms Davis was not opposed to young children playing sport or using Birchgrove Oval for that purpose. Her concern was to ensure that it was used in a manner which was compatible with the safety of other users of the parkland. Her views were seriously misrepresented by the article in The Daily Telegraph which included both the headline, "Meet the kids movie star Judy's dark about" and the photograph of young soccer players. 27 Apart from the misrepresentation to Ms Davis, Mr Massoud also misled the President of the Balmain and District Football Club, Mr Thomson. In order to pursue the story which he had in mind he arranged with Mr Thomson for a group of young children dressed in soccer uniforms to be present at Birchgrove Oval that afternoon so that they could be photographed. Mr Massoud falsely represented to Mr Thomson that he was intending to write a story in which the main theme would be the shortage of facilities for youngsters playing sport in Sydney. He did not suggest that the article would concentrate on Ms Davis. Mr Thomson gave evidence that if this had been suggested to him he would not have cooperated. Mr Massoud then wrote the story intending to convey the defamatory imputations with respect to Ms Davis. Although I am satisfied that Mr Massoud was aware prior to publication that Ms Davis' daughter played soccer and had spoken about that matter and the use of Birchgrove Oval at the council meeting, the article made no reference to these matters. 28 In these circumstances I am satisfied that the malice of the defendant increased the harm sustained by Ms Davis and this should be reflected in the award of damages. … 37 …There was a later article (annexure "E") written by Mr Massoud which, in my opinion, falsely asserted that Ms Davis was against or sour on sport and wanted all sport stopped at Birchgrove Oval. This article omitted any reference to Ms Davis' daughter playing soccer at the oval."

Imputations that the plaintiff threatened to slit the throat of a young colleague

1. 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).
2. 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)
3. 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.
4. I do not accept that "slit" and "rip off" are sufficient 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.

Contextual imputations and the Fox imputation

1. As noted above, I found that the truth of imputation (b) in the Fox publication, that the plaintiff was never a respected journalist, has not been made out.
2. Can imputations of being a bully and being the type of person who threatens and intimidates work colleagues "swamp" a false imputation that the plaintiff was never a respected journalist?
3. It is important not to conflate the requirement for similarity, in terms of mitigation evidence, with the entitlement of a defendant to point to evidence wholly outside the area of falsity which is the subject of the plaintiff's imputation. In Plato Films Ltd v Speidel [1961] AC 1090 (at 1140), Lord Denning, speaking of mitigation, explained that, "if the libel imputes theft, the relevant sector is [the plaintiff's] character for honesty, not his character as a motorist." However, as Hunt J sets out in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39, a false allegation that a plaintiff was a share swindler could be put against a true allegation that the same plaintiff was a rapist (Hunt J gave this as an example of a finely balanced plea, and did not indicate what the result would be).
4. It is clear from the terms of the matters complained of that the plaintiff's conduct as a bully and as a person who uses threats and intimidation against work colleagues have led not only to his dismissal but to the end of his career as a journalist. The plaintiff is referred to as a "disgraced former journalist" in several of the publications.
5. Although an imputation that the plaintiff was never a respected journalist is serious, it is not in the same category as being a bully or using threats and intimidation in the workplace, especially where the net result of that conduct is the loss of his career.
6. Accordingly I am satisfied that the defence of contextual justification must also succeed in relation to the imputation that the plaintiff was never a respected journalist.
7. The defence of contextual justification accordingly would succeed in relation to all of the publications.
8. Two additional defences remain to be considered: the defence of honest opinion pursuant to s 31 of the Act for the Fox publication and the defence of offer to make amends for the 2GB publications. These are by way of alternate findings.

Fact or opinion?

1. The matter must an expression of opinion of the defendant (s 31(1)(a) of the Act), or of an employee or agent of the defendant (s 31(2)(a)), rather than a statement of fact. Professor Rolph notes (at [13.40]) the important distinction between a fact and a comment as described by Cussen J in Clark v Norton [1910] VLR 494.
2. The distinction between an expression of opinion and a statement of fact is a question of characterisation, turning on whether the ordinary reasonable viewer would have understood that a statement of fact was being made, or an opinion was offered. It is the matter, and not the imputations or imputations conveyed, that must be the opinion; the imputations, although relevant, are not determinative of the characterisation enquiry as to whether the statement is an opinion.
3. The broadcast is a satirical skit showing an imaginary quiz show, with laughter and applause from the audience as the host of the show puts questions to 2 teams as part of "the Super Fan Quiz". The teams are shown a parody skit of an office situation where the workers greet each other with the salutation "slit your throat" or "shit down your neck", with the situation changes abruptly when one of the workers uses the phrase "piss in your eye", for which he is reprimanded for using such language in the workplace and results in "HR" (Human Resources) being called in.
4. The first question for the team is whether "piss in your eye" is offensive, a question the host answers for himself before putting the question to one team of whether it was true or false that Josh Massoud was a respected Rugby League journalist. It is in this context that one of the team members asks whether the plaintiff is driving an ice cream truck now, which is answered in the affirmative (line 49), following which the answers "false" and "massively false" are given. It is in this context that the host asks the team members "why false" before entering this for himself as "because he was never respected".
5. 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.
6. 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.

The defence of offer of amends

1. This defence is pleaded only in relation to the proceedings against 2GB.
2. The unsatisfactory nature of damages as a remedy for defamation has long been the subject of academic commentary and law reform initiatives (see, for example, J G Fleming, "Retraction and Reply: Alternative Remedies for Defamation" (1978) 12 U Col L Rev 15). Courts have acknowledged that a settlement may be more effective than a trial in terms of protecting a plaintiff's reputation: Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 499 - 500 per Scarman LJ. This is for a number of reasons, including high legal costs of defamation actions ("A Comparative Study of Defamation Costs Across Europe", Oxford University, 2008 (http://pcmlp.socleg.ox.ac.uk/sites/pcmlp. socleg.ox.ac.uk/files/defamationreport.pdf) and the undesirability of delay (Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [37] per Fraser J), as well as the limits on efficacy of a monetary award in terms of reputation damage.
3. One of the most significant impacts of modern technology has been to give new life to previously limited alternatives of this kind where the matter complained of is online. Even in 2005, when the uniform legislation was introduced, the impact of online technology on defamation actions was still a dream in the future. Mr Debus MLA, the Attorney General for New South Wales, in his Second Reading Speech, described "the most astounding developments in information technology" which "completely revolutionised the way we communicate" (Parliamentary Debates (Hansard), 13 September 2005, at p. 17636) and which would do so in unimaginable ways in the future. It is now increasingly accepted that technology offers new remedies in a range of actions, such as online corrections (Australian Competition and Consumer Commission v Social-Lites Pty Ltd [2017] FCA 398 at [38]), takedown orders (Agustin-Bunch v Smith [2021] VSC 158 at [3] and archive management (Eatock v Bolt [2011] FCA 1103).
4. Do these new approaches to remedies mean that greater consideration should be given to the offer of amends procedure contained in the Act? The impact of technological innovation aside, as Professor Rolph notes (at [17.10]), legislators and law reformers had long sought to displace the centrality of damages as the principal remedy for defamation by the promotion of speedy and non-litigious methods of resolving disputes. The most significant way that this has been effected in the Act is through the streamlined "offer of amends" regime which replaced the little-used and complicated legislation previously in place in States and Territories (Professor Rolph at [17.10 fn 7]).

The relevant statutory provisions

1. Section 14 sets out the time requirements for an offer to make amends. Section 15 sets out the contents of the offer. Section 18 of the Act provides: "18 Effect of failure to accept reasonable offer to make amends (1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if - (a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and (b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer, and (c) in all the circumstances the offer was reasonable. (2) In determining whether an offer to make amends is reasonable, a court - (a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account - (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and (b) may have regard to - (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and (ii) any other matter that the court considers relevant."
2. The Concerns Notice received by the defendant from the plaintiff's solicitor was dated 6 March 2019 (the date on this document in Exhibit W, 4 March 2019, is not pressed) and the defendant made an offer within the 28 days for doing so pursuant to s 14(1)(1) of the Act on 2 April 2019 (which I note would have been the case if the Concerns Notice had in fact been sent on 4 March 2019).
3. The defendant's offer was not accepted by the plaintiff (defendant's written submissions, para 394).
4. This was an offer made in response to a Concerns Notice. The contents of the Concerns Notice include identification of the defamatory publications as well as the remedies sought by the plaintiff in relation to each of them
5. Another relevant provision is the requirement, under s 3 of the Act, for the promotion of speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. The desirability of early resolution means that the adequacy of an offer to make amends is not judged in the same way as an offer of compromise, in terms of the need to do better at trial

2GB's submissions

1. Mr Sibtain submits that the terms of the offer were reasonable, for the following reasons: 1. The correction included the plaintiff's denial that he had threatened to slit his fellow employee's throat, and not only set out the text of what he did say he had said "if you weren't so young, I'd rip off your head and shit down your neck" with the important addition that the plaintiff denied these words were a threat, because they are physically impossible. This is the sole factual error in the matters identified by the plaintiff. 2. The correction would be published below the headline of each of the matters complained of, which would mean these would be read before the text of the matter complained of. This would give the apology greater prominence: cf Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [67]. 3. 2GB offered to take reasonable steps to ensure any persons who may have heard or been given the broadcast was made aware of the matters may be defamatory of the plaintiff. 4. There was an offer to pay reasonable costs before the offer was made and in considering the offer within 28 days. 5. The plaintiff's Concerns Notice did not seek to correct the matters by including the words the plaintiff agreed that he had said; the apology he sought painted a picture that no offending statement of significance had been made at all. Neither the Concerns Notice nor the proposed apology revealed that his employment had been terminated, not only for the statement he admitted to making but for his conduct towards other employees, details of which are set out in Exhibit 1. Rather than identify the precise words the plaintiff agreed that he had used (and which had resulted in his dismissal, as correctly stated in some of the matters), the plaintiff sought "a wide ranging apology was sought about matters that were not the subject of the proposed litigation": Jones v Sutton (No 2) [2005] NSWCA 203 at [47]. Where a plaintiff provides selective information in this fashion, a defendant ought to be entitled to rely upon the resultant offer to make amends in defence of the plaintiff's action.

The relevant principles

1. Although the principles to be applied in assessing general compensatory damages for defamation (prior to as well as after the Act was enacted) were the subject of extensive submissions from Mr Molomby SC, these are not in dispute. McCallum J, in Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838 at [22], helpfully summarises these in one sentence, stating that the purposes of an award of damages for defamation are "consolation for the personal distress and hurt caused to [the plaintiff] by the publication, reparation for the harm done to [the plaintiff's] personal and (if relevant) business reputation and vindication of [the plaintiff's] reputation", citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60.
2. McCallum J's method of application of those principles to the damages sought by the plaintiff is also helpful in the present case, as Gayle (where a total of 28 publications were sued upon) required assessment of damages for a range of publications. There are, however, significant factual differences in the present case: 1. There are five separate defendants in these proceedings, whereas in Gayle there were three related media corporations. 2. There are three "waves" of separate publication times, over a period of about 8 months, over which the publications were made, whereas in Gayle the publications were all made over a 5-day period. 3. There are significant and very different issues of mitigation of damages to take into account, ranging from two prior settlements to the truth of the imputations and contextual imputations.
3. As McCallum J sets out in Gayle at [23], the court's task, in assessing the amount to be awarded for the purposes identified by the High Court in Carson, is to identify all of the relevant factors, to assess their significance and to make an evaluative judgement as to the appropriate award, guided by the provisions of the Act in general and s 34 in particular, to ensure there is an appropriate and rational relationship between the harm are sustained and the quantum of damages awarded.
4. In doing so it is necessary to take into account (unless the cap is lifted by the award of aggravated damages) the statutory maximum damages to be awarded. During the trial that figure was $ 421,000 (Gazette No 132 of 26 June 2020 p. 3045) but it was increased to $432,500 (Gazette No 247 of 11 June 2021).
5. The proportionality required by s 34 should reflect the high value accorded to a person's reputation. The reputation in question was long considered to be the reputation the plaintiff had up to the time of publication: Rochfort v John Fairfax &Sons Ltd [1972] 1 NSWLR 16 at 22 per Sugerman ACJ. Rochfort was overruled in Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, where McColl JA noted the continuing nature of damage to reputation done by defamatory publications. Evidence of post-publication material that goes to a plaintiff's reputation is therefore admissible to ensure that the damages awarded accurately reflect the plaintiff's reputation at the time the damages are awarded. Its admission should, however, be approached with caution and must be carefully confined (at [245]).

Mitigation

1. The starting point for any consideration of damages must be to give full weight to the hurt to feelings suffered by the plaintiff. In Ali v Nationwide News Pty Ltd [2008] NSWCA 183, Tobias and McColl JJA endorsed (at [77]) the observation of Miles CJ in Humphries v TWT Ltd [1993] ACTSC 24; 113 FLR 402 at 418 - 19, that the defendant in a defamation action must take the plaintiff as it finds him or her, including any particular sensitivities the plaintiff may possess (a finding not disturbed on appeal: Humphries v TWT Ltd [1993] FCA 577; 120 ALR 693). As Sackville AJA noted in Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [94], it must be the evidence adduced by the defendants in mitigation of the plaintiff's damages that persuades a court to award only a modest or derisory sum as damages.
2. The defendants have all particularised mitigation in the defence. The following is taken from the Fox proceedings: "10. If (which is denied) the plaintiff is found to have suffered any damage as a result of the publication of any of the matters complained of and/or any of the imputations particularised in the Statement of Claim (which is denied), then the defendant intends to rely upon the following facts and matters in mitigation of such damage: (a) the substantial truth of the Plaintiff's Imputations and the Contextual Imputations (or so many of them as are established by the defendant to be substantially true); (b) the plaintiff's general bad reputation within the media and sports industries, being that of: (i) a bully; (ii) rude; (iii) aggressive; (iv) disrespectful; (v) a person who intimidates his colleagues; (vi) a journalist who makes errors in stories, embellishes stories and makes up stories. (c) the facts, matters and circumstances proven in evidence in support of the defences pleaded in this Defence; (d) the circumstances in which it is proved the matters complained of were published; (e) the background context to which (a) to (d) above comprised; (f) any damages or compensation payable to the plaintiff as a result of proceedings brought by the plaintiff for damages in relation to the publication of matter having the same meaning or effect as the matters complained of, including NSW District Court proceedings brought against: (i) The Misfits Media Company Pty Ltd; (ii) Australian Radio Network Pty Limited; (iii) Nine Digital Pty Ltd; (iv) Nationwide News Pty Limited; (v) 2GB Sydney Pty Limited; and (vi) DAZN Group; (g) any compensation payable to the plaintiffs as a result of the issue of a concerns notice by or on behalf of the plaintiff in relation to the publication of matter having the same meaning or effect as the matters complained of."
3. The above list demonstrates that there is a wide range of substantial mitigating factors to be taken into account in any consideration of damages for these publications.

Mitigating factors: the truth defence

1. The plaintiff has failed in relation to justification and contextual truth.
2. The similarity of the remaining imputations to each other make it a difficult exercise to speculate as to what damages would be awarded if some part of those findings were wrong. In practical terms, however, the evidence of truth is such that either derisory damages (Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 at [179]- [180] and [49]-[52] citing Pamplin v Express Newspapers Ltd [1988] 1 WLR 116) or no damages at all (Dank v Nationwide News Pty Ltd [2016] NSWSC 295) should be awarded.
3. In Pamplin, where damages of a halfpenny were awarded, 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."
4. In Dank, McCallum J commented (at [75]) on the halfpenny award as follows: "The need to nominate a nominal sum in this jurisdiction may be doubted. The Defamation Act 2005 expressly contemplates the possibility that, even where no defence to a defamatory publication has been established, the judicial officer may determine that no amount of damages should be awarded. So much is explicit in the requirement to determine "the amount of damages (if any) that should be awarded to the plaintiff."
5. These observations were cited with approval in Charan v Nationwide News Pty Ltd [2018] VSC 3 at [765] - [768], where a defence of justification succeeded. As to the assessment of damages for imputations where the plaintiff failed, I note the observation of the trial judge that alternative findings as to damages in such cases are particularly difficult.
6. An appeal in Charan was dismissed ([2019] VSCA 36), with the Court merely noting (at [3]) the trial judge's observations as to damages.
7. As was the case in Charan, Mr Massoud has failed in all claims. The question, if he had succeeded, would have been whether the evidence of his conduct, including his prior conduct as a journalist as well as his conduct on 1 May 2018, should reduce an award of damages to a vanishing point.
8. I reject Mr Molomby SC's submission that the conduct leading to such a vanishing point has to consist of other conduct at the same level. It is not necessary for the defendants to establish that threats of a similar nature were made to other persons. What must be established is conduct capable of responding to the imputation pleaded.

Mitigating factors: whether evidence of particular acts of misconduct may be relied upon

1. In O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at 91, Meagher JA stated: "The reputation evidence is subject to two fundamental rules. The first is that the evidence must relate to 'the relevant sector' of the plaintiff's reputation. Fast, if the plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation as a good golfer. Similarly if the libel is that he is dishonest, it is not to the point for the defendant to demonstrate that he is a reckless motorist….The other is that evidence of bad reputation must be limited to general reputation, evidence of specific incidents being inadmissible.
2. The rule that evidence of particular acts of misconduct are not admissible in mitigation of damages has two important qualifications.
3. The first of these is that evidence of particular acts of misconduct will be admissible in mitigation of damages where they are relevant to prove in support of a plea of justification. That has been the case here.
4. The second, and perhaps the more controversial, is that some courts have said that evidence of particular acts will be admissible where they are "directly relevant to the context in which a defamatory publication came to be made" (Burstein v Times Newspapers Ltd (2001) 1 WLR 579 at 596 per May LJ). This is to overcome the injustice of a plaintiff who has misconducted himself in the same sector of his life as that to which the libel relates recovering damages on the same generous basis as one who has an unblemished record in the relevant area of activity.
5. The status of Burstein in Australia is controversial but Saunders J, in the British Columbia Court of Appeal, in Ager v Canjex Publishing Ltd (2005) 259 DLR (4th) 77 at [60], embraced the reasoning of May LJ and stated: "In my view, the reasoning in Burstein is persuasive. To the extent that the factors relied upon in mitigation of damages were otherwise particularised in the statement of defence, that they were supported by evidence and that they are directly connected to the subject matter of the defamatory publication, they were factors to be considered in an assessment of damages."
6. The Supreme Court of Ireland has also permitted specific acts of misconduct relevant to the issue of a plaintiff's reputation which had already been admitted for other purposes to be considered in the context of mitigation of damages: Cooper-Flynn v Radio Telefis Eireann [2004] IESC 27.
7. In the present proceedings, the particular acts of misconduct are admissible because they are relevant to prove in support of a plea of justification, so these observations would only be relevant if my findings in relation to some or all of the imputations were in error.

Knowledge of falsity

1. In V'Landys v Australian Broadcasting Corporation (No.3) [2021] FCA 500 ("V'Landys"), Wigney J stated at [187]: "The first of the additional particulars was that he knew that the pleaded imputations were false. It is at best questionable whether an applicant's knowledge that the defamatory imputations were false provides a proper basis for the award of aggravated damages. Though it is unnecessary to decide the matter, the better view would appear to be that knowledge of the falsity of the imputations is a matter that goes to general compensatory damages and would not alone be sufficient to justify an award of aggravated damages. Indeed it has, in relatively recent times, been held that "mere knowledge by the [applicant] that an imputation was false cannot (without more) found an entitlement to aggravated damages": Barrow v Bolt [2013] VSC 226 at [10]-[24]; Flegg v Hallett [2015] QSC 167 at [243]-[245]; see also Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [778]-[779]; Wagner v Nine Network Australia Pty Ltd [2019] QSC 284 at [217]-[228], [224]-[228] (appeal ground two, which related to the trial judge's reasoning concerning the relevance of the knowledge of the falsity of the imputations to the question of aggravated damages was rejected on appeal in Nine Network Australia Pty Ltd v Wagner (2020) 385 ALR 328; [2020] QCA 221 at [175]-[179])."
2. I agree with these observations. No such grounds have been made out in these proceedings.

The cap

1. If aggravated damages are awarded, the construction of s 35(2) of the Act and the issue of lifting of the cap on damages (Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 at [249]) do not arise.
2. Given that the issue of the applicability of aggravated damages and potential lifting of the cap are relevant as to quantum, it is preferable to defer the calculation of damages until after the findings concerning aggravated damages are made.
3. I set out my observations as to the approach to damages to take in cases such as the present, where there are five different defendants and two damages payments.

Calculation of the damages: the holistic approach

1. Although I would not award damages to the plaintiff, I should note that, in Gayle, the defendants submitted that the correct approach was for the court to assess damages holistically, as though there were a single dispute involving the publication of a single series of articles within three geographical areas.
2. In Gayle, McCallum J set out her calculation of the sum to be awarded in each case as follows: "Had that been the task, having regard to the factors discussed above, I would have assessed the damages against The Age Company Pty Ltd in the amount of $250,000; against Fairfax Media Publications Pty Ltd in the amount of $200,000 and against The Federal Capital Press of Australia Pty Ltd in the amount of $100,000. However, it is necessary to stand back from the sum of those amounts so as to avoid double or triple compensation, while also bearing in mind that the syndicated publication of the articles by each defendant did increase the scope of publication and cause some separate hurt and harm to Mr Gayle. Taking the holistic approach contended for by the defendants, I consider the appropriate total award to be an amount of $300,000."
3. This approach was endorsed on appeal: 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] NSWCA 172 at [159] - [162].
4. In the present case, there are five very different media companies publishing at very different times, and the number of publications is also a factor to take into account.
5. As was the case in Charan, I see little point in embarking on an exercise posited on a series of alternatives. As was the case in Dank, the plaintiff's reputation is so damaged by the truth (not only of the imputations he pleads but also of those he does not plead) that any award should be reduced to a vanishing point.
6. Taking all of the above into account, I consider that the mitigating factors, including evidence of the plaintiff's conduct that was accurately reported (save for the words he spoke and for which he was dismissed), is so overwhelming that no damages should be awarded, even on the Gayle principles.

[2021] VSC 158

[2018] VSC 3

[2021] WASC 25

[2015] QDC 286

[2020] WASC 250

[1993] ACTSC 24

[1993] FCA 577

[2014] NSWSC 1476

[2007] VSC 109

[2003] VSCA 161

[1999] HCA 3

[2019] VSCA 36

[2013] VSC 226

[2015] QSC 167

[2019] QSC 284

[2020] QCA 221

(2009) 239 CLR 175

(1986) 12 FCR 510

(2013) 45 VR 22

(1993) 178 CLR 44

(2010) 278 ALR 232

(2004) 220 CLR 1

(2004) 62 IPR 184

(2017) 95 NSWLR 612

(2005) 64 NSWLR 485

(2003) 77 ALJR 1657

(2006) 154 FCR 293

(1982) 149 CLR 293

(2001) 53 NSWLR 89

(1970) 125 CLR 166

(2009) 104 SASR 452

(1999) 160 ALR 588

(1995) 49 NSWLR 315

(1937) 58 CLR 416

(2003) 9 VR 1

(1938) 60 CLR 336

(2003) 214 CLR 118

(1990) 171 CLR 167

(1999) 73 ALJR 306

(2020) 385 ALR 328

(1951) 82 CLR 497

[2016] NSWCA 228

[2009] NSWCA 60

[2021] NSWCA 148

[2017] NSWSC 351

[2018] NSWCA 325

[2011] FCA 1103

[2015] NSWCA 329

[2014] NSWCA 90

[2005] NSWCA 203

[2019] NSWSC 655

[2021] FCA 430

[1937] HCA 74

[2011] NSWCA 362

[2003] HCA 22

[2005] NSWCA 174

[2017] FCA 398

[2016] NSWCA 255

[2016] NSWSC 295

[2003] NSWSC 437

[2013] NSWCA 135

[2010] NSWCA 335

[1990] HCA 47

[2019] FCA 496

[1938] HCA 34