Zoe is a legal information platform. Always consult the official source for authoritative text.
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 - NSWDC 2021 case summary — Zoe
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
The Age Company Pty Ltd v Gayle113 FLR 402
Humphries v TWT Ltd [1993] FCA 577
Judgment (4 paragraphs)
[1]
The application for a permanent injunction
The plaintiff also seeks an injunction restraining all of the defendants from publishing the imputations.
I would not have been prepared to make such an order. First, such orders are not ordinarily made against the proprietor of a mainstream media publisher, for the reasons explained by McCallum J in Carolan v Fairfax Media Publications Pty Ltd (no 7) [2017] NSWSC 351 at [13] - [15]:
"So far as I am aware, the proposition that a permanent injunction should ordinarily accompany an award of damages following the unsuccessful defence of a common law claim is unknown in any other field. The court would not, without more, make an order restraining the unsuccessful defendant in a professional negligence or motor vehicle accident claim from acting negligently in the future. I accept that the analogy is imperfect but it is appropriate to test what appears to be a premise of the plaintiff's argument. I do not think it can be said, without qualification, that the restraint of speech - even indefensible speech - necessarily or ordinarily serves the public interest.
Nor can it be said, without qualification, that the public interest is "not offended" by the restraint of indefensible defamation. The public interest is offended by any court-imposed restraint that is not reasonably necessary in the circumstances. It is tempting to think that is particularly so in the case of injunctions to restrain publication, since such orders necessarily impair or take away a person's freedom of speech. Upon reflection, however, it is difficult to articulate any principled basis for placing defamation in a special category in this context; any restraint of ordinary freedom imposed by order of the court warrants the same caution.
In my view, as a matter of principle, the critical factor in determining whether to grant a final prohibitory injunction in aid of a claim for defamation should be an assessment of the existence and degree of any threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings. Such an order should only be made where the court is satisfied that the order is reasonably necessary to address that threat or risk."
The question is whether the existence of an ongoing risk of sufficient magnitude to overcome the force of the considerations set out by McCallum J has been made out. That is not the case here.
Second, these otherwise wholly correct publications are the subject of a narrow and precise complaint. The best the plaintiff could expect is the correction of what was said to set out what he did say. The plaintiff never sought such a correction and does not do so now.
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]).
[2]
Costs
Costs should follow the event. I have granted liberty to apply.
[3]
Orders:
1. Judgment for the defendant in Massoud v Radio 2GB Sydney Pty Ltd (2019/00133854).
2. Judgment for the defendant in Massoud v Fox Sports Australia Pty Ltd (2019/00134071).
3. Judgment for the defendant in Massoud v Commonwealth Broadcasting Corporation Pty Ltd (2019/001333079).
4. Judgment for the defendant in Massoud v Nine Digital Pty Ltd (2019/00134011).
5. Judgment for the defendant in Massoud v Nationwide News Pty Ltd (2019/00134071).
6. The plaintiff to pay the defendants' costs, with liberty to apply.
7. Exhibits retained until further order.
[4]
Clearer Version of the Exhibit K & M
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: 29 July 2021
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
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).
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).
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.
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.
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]).
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
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.
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.
"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.
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.
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].
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
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
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.
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.
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
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."
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.
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
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.
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
The defence of justification pursuant to s 25 of the Act is pleaded by the defendants in all five proceedings.
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]."
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
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.
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.
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
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.
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].
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.
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.
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.
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.
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
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".
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).
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.
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.
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.
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
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."
The reliability of the memory of each of the witnesses called by the defendants, as well as the plaintiff, was the subject of challenge.
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
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.
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)
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).
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?
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
I briefly note my reasons for refusing (T 188) the defendants' application for leave to amend the particulars of justification.
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.
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.
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
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.
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
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).
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)
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.
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
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.
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?
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).
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.
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.
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.
The defence of contextual justification accordingly would succeed in relation to all of the publications.
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?
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.
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.
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.
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".
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.
The defence of offer of amends
This defence is pleaded only in relation to the proceedings against 2GB.
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.
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).
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
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."
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).
The defendant's offer was not accepted by the plaintiff (defendant's written submissions, para 394).
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
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
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
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.
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.
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.
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).
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
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.
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."
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
The plaintiff has failed in relation to justification and contextual truth.
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.
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."
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."
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.
An appeal in Charan was dismissed ([2019] VSCA 36), with the Court merely noting (at [3]) the trial judge's observations as to damages.
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.
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
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.
The rule that evidence of particular acts of misconduct are not admissible in mitigation of damages has two important qualifications.
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.
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.
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."
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.
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
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])."
I agree with these observations. No such grounds have been made out in these proceedings.
The cap
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.
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.
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
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.
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."
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].
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.
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.
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.
Dealing first with the importance of context, where the defamatory hearsay forms only part of the matter complained of, the rule that the publication must be read as a whole is "particularly important", because it is the context that shows whether the statement "is refuted or undermined by other parts of the publication" (John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [27] per McHugh J). (That examination may also, of course, determine whether the defamatory hearsay was in fact adopted by the republisher, as McHugh J goes on to point out.)
The same point was made by McColl JA in John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 at [96], where her Honour stated that, while the re-publisher of defamatory hearsay is liable for its repetition, the nature of that liability turns upon the context in which the publication occurred, namely what defamatory imputations were conveyed having regard to the publication as a whole. It is in this context that the court embarks on factual considerations of the kind set out in Cummings at [134], namely whether greater prominence to the allegations and to the denial is given, headlines, the order in which the matters are dealt with and the language used.
The question of whether, in the context of civil proceedings, someone has been accused of certain conduct conveys an imputation that the person is guilty of the conduct, is discussed in Cummings at [113] to [130]. It has long been recognised that, where a publication does no more than state that a person has been charged with a criminal offence, a recognised exception, known as the Harrison principle, applies. Mr Molomby SC's submission is that the Harrison principle is only applicable in the context of reports of criminal charges. However, McColl JA concluded, after careful examination of the many cases where the Harrison principle has been applied "analogously" in the context of civil proceedings (Cummings at [121]), that it applied to reports of civil proceedings as well.
The rationale for this extension is that, where there is a report of an allegation made in civil proceedings, the truth of which was yet to be determined, the context in which the defamatory hearsay was published is not one of guilt but of reasonable suspicion. In Cummings at [126], McColl JA cites, in support of this extension, observations by Rares J in Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 at 108. These were not defamation proceedings, but a media application for access to the court file in Federal Court proceedings in order to obtain the applicants' statement of claim. There was concern that repetition of their contents would amount to "guilt imputations" (to use the appellant's terminology in Cummings). Rares J held that it would be contrary to the principle of open justice to restrict public access to pleadings in civil proceedings, stating (at [108]), that members of the public understood that it was fundamental to the open administration of justice that courts have allegations made in them which were untested at various stages of the proceedings leading up to judgment.
McColl JA also referred to the observations of Bleby J in Sands v Channel Seven Adelaide Pty Ltd and Anor (2009) 104 SASR 452 at [301]:
"There was certainly no adoption of the allegation. I accept the submission of the ABC that reasonable listeners and readers of the publications must be taken to understand that Court proceedings involve the resolution of competing claims by opposing litigants, and that it is not until judgement that one or other of those versions is found to be true. A reasonable listener and reader would not assume that all allegations made in court proceedings have a reasonable basis. Rather, the reasonable listener and reader will approach allegations made in court on a somewhat sceptical basis, aware that the allegations represent only one side of the story."
The appellant in Cummings sought to argue that police charges should be dealt with differently because the allegations came from an official source, namely the police service, adding that in Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 589, Pincus J observed that the High Court in Harrison had not suggested that the same rule would apply to allegations "published as having an unofficial source". The Court of Appeal in Cummings nevertheless accepted, for the reasons set out above, that the principle could be applied analogously to civil proceedings, by reason of the ordinary reasonable reader or listener approaching allegations made in court in a similar fashion.
However, the real difficulty is whether the Harrison principle should be applied analogously to descriptions of disputes between parties which have not been commenced in court, but which involve the investigation a dispute such as workplace conduct. As to matters complained of published in May 2018 in particular, the defendants submit that, in the context of a workplace dispute, the ordinary reasonable reader or listener, hearing of the dispute and understanding that there was an investigation which was ongoing, would not find that "guilt imputations" were conveyed.
The correct way to determine whether the "guilt imputations" are conveyed is set out by McColl JA in Cummings at [134]. The relevant features are as follows:
1. Whether the matter complained of gives greater prominence to the allegations than they do to the denials.
2. Whether there is use of a headline designed to catch the eye and give the reader a predisposition as to what follows, in which circumstances the headline may assume more importance than what follows.
3. The significance of the order in which matters are dealt with, such as the placing of more exciting material in the introductory paragraphs.
4. Use of "vivid language". I would add that, in addition, language used to suggest uncertainty, such as the use of the word "alleged" or putting the statements made in inverted commas to indicate what the allegation is, should be taken into account.
5. The prominence given to the story (for example, a story on the first page, as was the case in Cummings).
The context and contents of the matters complained of are as McColl JA notes at [138] - [140], today's ordinary reasonable readers and listeners are exposed on almost a daily basis to accounts, not only of criminal or civil proceedings, but even "more run-of-the-mill disputes", and expect there to be two sides to the story. However, McColl JA restricts the generosity of the analogy to proceedings brought within the structure of the courts. Her Honour does not suggest that disputes outside the court system would be viewed as being the same. For these reasons, the references to an investigation into workplace conduct in which the plaintiff is represented by a lawyer does not provide sufficient context for the defendants' arguments to succeed.
It is arguable that in today's Internet world, the ordinary reasonable reader and listener would be not merely "somewhat sceptical" of what they read, as Bleby J stated in Sands at 301, but actively sceptical, when reading allegations of a dispute where the word "alleged" is liberally applied. However, to draw inferences of the kind suggested by the defendants in relation to a publication describing a dispute outside the court system is going too far. The question of context arising from the matters complained of describing a work dispute must be determined on the content and presentation of each article, and not by inference to the reader or listener being "well sensitised to the legal process of making allegations" (Cummings at [139]).
The question is whether News has been sufficiently careful to talk about smoke rather than fire. In Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185, Wigney J observed at [1]:
"As long ago as 1963, Lord Devlin warned, in the context of an appeal in a defamation action, that: "[a] man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire". His Lordship also observed that "loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded": Lewis v Daily Telegraph Ltd [1964] AC 234 at 285."
In Chau, Wigney J found that an imputation of bribery had been conveyed by reason of the manner of presentation of the matter complained of, in that the language, tone and content of the article went well beyond imputing mere suspicion. His Honour added that, as Lord Devlin pointed out in Lewis v Daily Telegraph at 285, "loose talk" about investigations, allegations or suspicions can very easily convey the impression of guilt, and that was essentially what had occurred. The publisher's language was not only imprecise, ambiguous and loose, but also sensational and derisory. The language used was also, for the most part, not the language of mere allegation or suspicion, but rather the language of assertion or uncontroverted fact.
Three features of the story are important. First, the ordinary reasonable reader would note the statement is referred to as a claim which was being "addressed" (both "claimed" and "addressed" are used twice at the beginning of the story) by the plaintiff in an investigation where he had a lawyer present. Second, the plaintiff is not referred to in any critical way, but described as a "rugby league expert", whereas the young man making the allegation is a "cub reporter" whose mistake with one of the plaintiff's stories led to the discussion in which the words were spoken. This creates a picture of an experienced journalist being accused by a cub reporter who has made a mistake. Third, the story concludes by noting that neither side responded to calls from the journalist, which adds to the impression created by the uses of the word "addressed" (at the beginning of the story), namely that the plaintiff was challenging the version of the conversation given by the cub reporter.
The ordinary reasonable reader would assume, from the description of the dispute, that there was an investigation into whether or not the plaintiff had said these words and that the plaintiff was addressing these matters, in the sense that he did not accept the words attributed to him.
Viewing the matter complained of as a whole, given the facts as set out and the context of the dispute, in circumstances where the plaintiff is addressing the allegations made against him with the assistance of a lawyer, the ordinary reasonable reader would not consider either of the alternative imputations pleaded by the plaintiff to be conveyed. No lesser imputation of being reasonably suspected is pleaded and accordingly the plaintiff's claim for this publication fails on the threshold of absence of defamatory meaning. Alternative findings (as to imputation (b), which more correctly encapsulates what the plaintiff said) have, however, been made in relation to this judgment in the event that this finding is in error.
Similarly to some of the submissions in these proceedings, the trial judge was asked by counsel for the plaintiff to consider how the words "tried to strangle" had been used in different contexts. The trial judge accepted that the most likely explanation for the husband placing his hands around his wife's neck was that he was attempting to silence her rather than kill her, which meant that the husband's conduct in placing his hands around her neck with such force is to leave red marks did not amount to proof of the imputation pleaded by the plaintiff. The trial judge also rejected the plea of justification to the imputation that the plaintiff was a dangerous man, although he had been arrested three times, including for 'gun issues' (at [21]) and made threats, though not of immediate violence against her.
The vice in this finding (as well as in the judgment of the Court of Appeal, which upheld it) was that the word "strangle" was "removed from its context" (at [26]) and the court accordingly had failed to "conduct a realistic exploration of how the ordinary reader of the post would have understood it" (at [47]). When applied to the evidence in support of the plea of justification, the fact that the husband grasped his wife's throat so tightly as to leave red marks visible to police officers two hours later was capable, in the context of domestic violence (breach of a non-molestation order), of establishing justification to an imputation that the husband had tried to strangle his wife. In addition, The Supreme Court was satisfied (at [61]) that, coupled with the statements amounting to future threats that he made on this occasion, this was sufficient to establish the defence of justification to an imputation that he was a dangerous and disreputable man, which was the justification the wife sought to establish. The defence of justification was accordingly made out and the appeal was accordingly allowed.
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.
As to both s 25 and s 26 issues, the approach taken by the plaintiff is similar to that taken in Stocker v Stocker, namely that the defendant made no threat at all. What the plaintiff admits he said, namely that if Mr Warren was not so young he would rip off his head and shit down his neck, is simply the use of a common formulation in everyday language, similar to, for example, "If you weren't so tired, I'd ask you to carry my bag" (submissions, paragraph 30). The language (which the plaintiff described the following day as "dark humour" and a quote from an old movie) was not that of a threat or of bullying, or indeed far removed from Aunty Jack's threat to "rip your bloody arms off".
Mr Molomby SC draws my attention to Tuberville v Savage (1669) 86 ER 684, where the plaintiff put his hand on his sword and said, "If it were not assize time, I would not take such language from you". The court held that this was a declaration by the plaintiff that he would not assault the person to whom he addressed these words.
However, the danger of relying upon such old authority in general (and Tuberville v Savage in particular) was stressed by the Court of Appeal (Criminal Division) in R v Ireland [1997] 1 All ER 112:
"Our attention was drawn to a number of cases concerning the definition of assault, some of them of some antiquity. It is of importance that an assault does not necessarily include a battery, and the distinction is important in this case. It has been recognised for many centuries that putting a person in fear may amount to an assault. The early cases pre-date the invention of the telephone. We must apply the law to conditions as they are in the twentieth century. In Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684 T laid his hand upon his sword saying, 'If it were not assize-time, I would not take such language'. It was held that the act could have amounted to an assault but for 'the declaration … that he would not assault him, the Judges being in town'. Pointing an imitation or toy gun at the victim, dangerous driving and kidnapping have all been held to be capable of amounting to an assault."
The Court went on to add (at 117 - 8) that making a threat over the telephone (which was the case in these proceedings, as well as in R v Ireland) could just as easily "in the world in which we live" be received as a threat as words spoken face to face.
The defendants submit that the words they reported and the words the plaintiff agreed he said were both a graphic threat of deadly violence, with no material difference between slitting a throat and ripping off a head. In particular, the rider "if you weren't so young" does not rob what was said of its disgustingly violent and intimidatory content; the reference to being "so young" is part of the insult, not a promise to refrain from the act. 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.
The defendants rely 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.
This is incorrect. In Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [59] - [63], Gleeson JA explained that, while a collection of instances may amount to misconduct, in some cases, a single alleged instance of misconduct will be so serious that it may, at the same time, convey a general charge against the plaintiff. These remarks were endorsed in Palmer v McGowan [2021] FCA 430 at [21] by White J and in Green v Fairfax Media Publications Pty Ltd [2020] WASC 250 at [61] and [73] per Le Miere J. While these judgments must be approached with some caution as they relate to interlocutory rulings where the court will err on the side of generosity, the basic statement of principle remains good.
Having noted these general matters, I now consider the capacity issue in relation to each of the contextual imputations pleaded as a rising in each of the publications. Having determined that issue, I then consider whether the defendant in each case, in relation to each publication where applicable, has established the defence in terms of satisfying the elements of s 26. I have carried out this exercise in relation to each of the publications, including those where I have held that the publication is not capable of conveying the imputations pleaded by the plaintiff; these findings should be regarded as alternative findings.
The exercise of looking at capacity in relation to each of the matters complained of was not one which was carried out by the parties and, in particular, by the plaintiff. The plaintiff's submissions as to capacity dated 11 June 2021, for example, were that "having regard to the nature of the publications sued upon - most short articles, with scant detail, including radio broadcasts - nothing about the "character of the man" is conveyed to the ordinary reasonable reader" because "the ordinary reasonable reader does not consider that one incident reflects the character of a person" and "ignores the reality that humans often do things in the heat of the moment that are contrary to their character" (paragraph 20(6)).
Two other matters should be noted. The first is that some of the defences used numbering and others used letters of the alphabet for contextual imputations. In the interests of consistency, I have used numbering.
The second is that the plaintiff, after the defendants' submissions on all issues were provided, has challenged the form of imputation (3) pleaded by 2GB on the basis that it does not differ in substance from the plaintiff's imputation pleaded in each of the 2GB publications. That third contextual imputation has now been withdrawn.
Similarly, the plaintiff argues that his behaviour towards others in the workplace, while at times "appalling", is not bullying. He is driven by his passion for his job and becomes angry at the incompetence of others, and claims that his bad behaviour occurred when "something really had gone wrong" and others had made mistakes (plaintiff's submissions, paragraph 139). In a busy and stressful workplace like a newsroom, there is a greater degree of tolerance of bad behaviour, swearing and arguments than would otherwise be the case, and Mr Molomby SC submits that the plaintiff's behaviour should be seen in this context.
What is bullying conduct and, given the workplace context, what amounts to evidence of workplace bullying?
Mr Molomby SC relied on the failure of most of the witnesses to call the plaintiff a bully or give evidence of threats, adding that only Mr Hadley really used the adjective, submitting that these fatal admissions meant that there was no evidence of bullying or threats of any kind, even in the conversation with Mr Warren. (Mr Molomby SC did not characterise that conversation as bullying; as noted above, he submits that the plaintiff merely used a colourful expression while giving Mr Warren a talk about how to be a good journalist.)
Mr Molomby SC did not explain to me what to make of Exhibit 1, which sets out that the plaintiff had his employment terminated because of his conduct not only to Mr Warren but also to other employees such as Mr McGarry, as well as to an outsider, Ms Taylor. Nor did he explain what I was to make of the allegations in Exhibits J, N, O and Q of references to the plaintiff having "abused" a Sydney producer over the same incident, although this was a further defamatory allegation which could have been pleaded by the plaintiff.
Mr Sibtain drew my attention to examples of bullying conduct in other defamation actions such as Hutley v Cosco [2021] NSWCA 17 (but cf Bennette v Cohen [2009] NSWCA 60 at [55] - [71]). The correct approach to take when determining whether conduct amounting to bullying has been established in a defence of justification was explained by Basten JA in Hutley v Cosco at [49]:
"49 The simple proposition that the plaintiff bullied the appellant and her family does not invite or permit precise semantic analysis. Bullying can occur in a number of ways, including by acts of physical coercion or oppression, or by aggressive language. As the trial judge correctly noted, it does not require a power imbalance, at least in some abstract sense such as financial resources, social status or level of education. However, although words can be used as a weapon, it does not follow that exchanges of verbal abuse and insults necessarily involve bullying, even mutual bullying."
I accept Mr Sibtain's submissions. The "precise semantic analysis" Mr Molomby SC is asking me to make, in terms of requiring use of words such as "bully" and "threat" by witnesses, is contrary to this approach. It is also contrary to the approach taken in proceedings for wrongful dismissal where findings of fact in relation to bullying and threats are sought. In Brown v Maurice Blackburn Cashman (2013) 45 VR 22 at [12] - [13], under the heading "The Concept of Bullying", Osborn JA noted and accepted that a reasonable working definition of workplace bullying against which to objectively analyse the allegations made could be obtained from workplace safety guidance notes, which provided a helpful definition.
There is no mystery as to what bullying conduct is; in Oyston v St Patrick's College [2013] NSWCA 135, expert evidence was given as to the system in place for the detection of the bullying, but expert opinion as to whether the conduct was in fact bullying was not required.
Bullying conduct can occur in a number of ways, as Basten JA has stated, and the language of a threat is not something requiring parsing and analysing, for the reasons explained in Stocker v Stocker as well as the observations to this effect by Basten JA. I have been guided by Basten JA's approach to the facts of this case.
Evidence from witnesses, including statements from them as to their ability to remember, need to be seen in context of the evidence as a whole, and in particular in relation to evidence provided from less artificial circumstances than the courtroom, such as contemporaneous documentation. In State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 160 ALR 588 at 617, Kirby J warned judges of "the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom", noting the observations of Atkin LJ that "the value of the comparison of evidence with known fact is worth pounds of demeanour".
The credit and reliability of witnesses, including, most relevantly, the plaintiff and Mr Warren, form an essential part of the findings of fact in these proceedings. However credibility determinations should not be conflated with factual findings. In particular, disbelief of a witness is not proof of the opposite; to paraphrase Scrutton LJ in Hobbs v C T Tinling & Co; Hobbs v Nottingham Journal Ltd [1929] 2 KB 1 at 21, if a man testifies he did not go to Rome and is disbelieved, that is not evidence that he went to Rome.
Ms Dallimore's evidence was corroborated by the evidence given by Mr Morrison about his observations of her call with the plaintiff. The "ripple" effect of seeing her on the phone to Mr Massoud impacted on Mr Morrison. That is how bullying works.
The plaintiff, however, described the appropriateness of the way in which he spoke to Ms Dallimore as being "on the line," in the context of the robust exchanges that took place in the newsroom (T 126):
"Q. Speaking in a very deliberate monologue; do you accept that?
A. I don't accept that it was a monologue, I recall it as a conversation.
Q. Well it's not a conversation if two people aren't engaged in it, is it?
A. That's not the definition of a conversation, no, generally, but what I engaged in with Emma was a conversation because both participants were contributing to it.
Q. She was saying to you not to talk to her in the way that you were, wasn't she?
A. I don't recall her saying that, no.
Q. She was saying "you can't talk to me like this"?
A. I don't recall her saying that.
Q. And you had said to her "someone's fucked up my day"?
A. I don't recall saying that.
Q. But you accept that you were still angry at this stage?
A. Yes.
Q. Do you think it was appropriate to talk to her in the way in which you spoke to her?
A. In the context of the robust exchanges that went on a daily basis at Channel 7, it would have been on the line.
Q. Robust exchanges at Channel 7; is that your explanation?
A. Explanation for how I spoke to Ms Dallimore?
Q. Yes, is that your justification?
A. I'm not using it as a justification, I am using it to answer your question as to whether or not it was appropriate." (T 125 - 6)
I do not accept that this was merely a "robust exchange". I accept Ms Dallimore's version of the conversation, namely that the plaintiff was shouting abuse and swearing so much that she could not understand what he was talking about. She immediately complained to Mr Morrison, because the call had disrupted her from doing her job at a vital moment. That kind of abusive language and conduct in the workplace is a classic example of bullying in the workplace.
Mr Molomby SC submits that, conformably with s 91 of the Evidence Act 1995 (NSW), not only should the tender of that judgment be rejected, but all of the cross-examination on it should also be excluded.
Given the store apparently placed by persons in the news on the value of evidentiary findings in defamation actions, it may surprise laypersons to hear that finding of fact about the honesty of a witness in a defamation case (or indeed in any civil case) would be of such limited use. Mr Sibtain, in his submissions in reply, commented:
"The plaintiff did not identify any authority to support that proposition and, to the best of the defendants' counsels' understanding, there is no authority that precludes such cross-examination.
The plaintiff also submitted at [38] that s 91 precluded both the tendering of a judgment as proof of particular facts and the adducing of oral evidence about the content of the judgment. Again, the plaintiff made no reference to authority."
(Submissions, 4 June 20221, paragraph 41)
Although not referred to by the parties, the use of findings in civil proceedings, as opposed to criminal proceedings (which are the subject of a separate regime in defamation actions) has been the subject of careful consideration, determined to be permissible, although subject to limitations: Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232. Even more helpfully, this decision specifically dealt with admissibility of such material in defamation proceedings.
In Channel Seven Sydney Pty Ltd v Mahommed (at [3] - [10]), Beazley JA explains the limitations to be placed on evidence: in civil proceedings and, in particular, credit findings:
"3 As McColl JA has rightly pointed out, at [253], there are self-evident distinctions between a criminal conviction and judicial findings, including the difference in the standard of proof. Her Honour also refers, appropriately, to another possible distinction, namely, the question whether findings are of an intermediate or final nature.
4 A criminal conviction, by its nature, is an ultimate finding, not only of wrongdoing but of wrongdoing which constitutes a crime. Its strength lies both in the nature of the crime and in the standard of proof that applies in the finding of guilt. Its use as evidence of reputation, in the sense explained by McColl JA, is understandable.
5 Findings in a civil case, both of intermediate facts, including credit findings, and of ultimate facts, are made on the civil standard. Even within the civil standard, the degree of satisfaction that a court must have before reaching a conclusion varies, depending upon the seriousness of the matter in issue. Fraud is the classic example: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. That a finding is made on the civil standard, whether on a Briginshaw basis or not, does not diminish the cogency of such a finding. There is, however, a significant difference in a finding made on the civil standard from a finding made on the criminal standard.
6 So far as questions of reputation are concerned, a demeanour-based credit finding, may be problematic. Although credit findings are an integral part of the fact finding function of a trial judge, a demeanour-based credit finding, which is often critical in the determination of a case, is far from scientific. It is a finding based upon the experience of the trial judge having seen and heard the individual in person: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [65]; see also Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at [178]. Ipp JA, in "Problems with Fact-Finding" (2006) 80 Australian Law Journal 667, said that a demeanour-based finding is "determined by a judge's subjective experience, intuition and common sense".
7 It is unremarkable to observe, therefore, that a demeanour-based credit finding in respect of an individual may vary as between judges. This is undoubtedly why Atkin LJ observed in Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 at 152: "… I think that one ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of the evidence with known facts, is worth pounds of demeanour."
8 The problematic nature of a demeanour-based credit finding was examined by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306. His Honour stated, at [88]:
"There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom … Apart from all else, demeanour is, in part, driven by culture … Distaste or prejudice can cloud evaluation …"
9 A credit finding can be devastating, both personally upon the individual whose credit has been impugned, and in respect of that person's reputation. Hence the importance, where available, of confirmatory or corroborative evidence to assist or support a demeanour finding.
10 As McColl JA has pointed out, the differences between a criminal conviction and findings in a civil proceeding and, I would add, the effect of those differences on the reputational use that ought to be made of such findings, were not debated on appeal. Accordingly, whilst I agree that findings made in other proceedings which, by virtue of the publication of a judgment are in the public domain, may be used by a defendant in defamation proceedings in respect of reputation, the nature of the effect which may be given to such findings, particularly if they involve a demeanour-based credit finding, will require careful consideration."
McColl JA took a rather more broad view as to when such evidence should be admissible:
"253 Insofar as the Steele-Smith adverse findings are concerned, however, Marsden supports the proposition that judicial findings which are in the public domain - even if made post-publication, may be admissible. The Court did not elaborate on the distinction it perceived between convictions and judicial findings - although some distinctions are self-evident: at the most elemental level the standard of proof required before the requisite conclusion is reached. Another distinction may be whether the findings are of an intermediate or ultimate nature. These issues were not debated on appeal. The respondent did not contend that the Steele-Smith adverse findings were inadmissible on any basis other than their post-publication status.
254 In my view, such findings, if relevant in the senses already discussed, should be admissible. Save as to the standard of proof, they appear otherwise to stand on much the same footing as convictions: they took place in open court and can be regarded, accordingly, as matters of public knowledge. The tribunal of fact should not be kept in the dark about the plaintiff's reputation at the time it comes to consider the award of damages
255 In my view Rochfort was wrongly decided. It did not recognise the continuing nature of damage in a defamation action - a position well established at the time it was decided. Moreover the developments in the principles governing the award of damages I have discussed also require the Court to consider "actual facts".
There can be no doubt that the Judy Davis judgments are in the public domain and matters of public knowledge, thanks to the general availability of judgments on court websites, a facility which would have been unimaginable at the time of Rochfort (or even, I suspect, at the time when s 91 was enacted; the availability of Supreme Court judgments online did not occur until after 1995).
I accept and follow the observations of McColl JA on this issue. The Judy Davis judgment was pre-publication and, additionally, a final finding, made by a trial judge after jury findings on meaning. It is part of the "actual facts" that the decision in question is online and thus publicly available.
Mr Sibtain referred me to the discussion of admissibility in terms of s 91 by Hunt AJA in Ainsworth v Burden [2005] NSWCA 174 at [49] and [109] (which, conveniently for this argument, were also defamation proceedings), where the contents of a Licensing Court judgment were tendered to prove the defendant's state of mind, in terms of evidence of malice. Hunt AJA stressed (at [109]) that s 91 did not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they were tendered; they merely prevent the judgment from being tendered for the purpose of proving the existence of those facts. What s 91 did was to prevent the impact of tender for such an admissible purpose resulting in the judgment then being able to be used (as a consequence of s 60 of the Evidence Act 1995 (NSW)) for this impermissible purpose as well.
Where there have been proceedings of the kind described by McColl JA, the admissibility of such evidence has been accepted by other courts (see Giani v Queensland Television Ltd & Ors [2015] QDC 286 at [66] - [70]). In an online world where judgments are readily available through links in the media and online searches ae well as online court judgment collections, pre-internet judgments may need to be read with the same care as that advocated by the Court of Appeal in R v Ireland (in relation to old authority being applied to modern technological means of communication of threats).
While the cross-examination of the plaintiff is thus admissible, it is of limited probative value, both in terms of its weight as well as its accessibility. The pressures of writing stories to capture public attention and the consequential stresses on journalists are well-known (indeed, the impact of stresses of this kind on the workplace was the subject of evidence in these proceedings). With great respect to McClellan CJ at CL, his Honour's findings as to Mr Massoud's credit (or lack thereof) have been given no weight by me, either in relation to justification evidence or in relation to mitigation of damages (as to the latter, in that very few readers or listeners are likely to be familiar with the judgment sufficiently to read and recall these criticisms a decade later).
There is one issue, however, which I consider to be relevant to the plaintiff's credit. I was unimpressed by the plaintiff's claim, when asked about this judgment, that he had not read it because he did not know court judgments were publicly available online. The Supreme Court judgment website was online at the time he was studying for his law degree and working in his first job for a legal publisher. I find his denials of knowing about the contents of this judgment and about the availability of online judgments implausible.
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.
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."
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.
Another relevant feature is the language and imagery used. What the plaintiff said to Mr Warren about shitting down his neck was particularly repugnant.
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."
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.
Professor Rolph notes some of the features of the content of the offer to make amends (at [17.30]). I summarise these, referring to more recent decisions, as follows:
1. An offer must not only be in writing but also be readily identifiable as such (unlike a Concerns Notice, the provisions of which may be satisfied by service of a statement of claim containing no reference to its contents amounting to a Concerns Notice: Mohareb v Booth [2020] NSWCA 49).
2. An offer may relate to one or more particular imputations or asserted errors and need not relate to the whole of the matter, or to all of the persons referred to in the matter, provided that the offer states this and identifies the imputations to which it is limited: s 15(1)(c). Where a Concerns Notice has been sent, the plaintiff is obliged to plead the full substance for which he or she will seek redress: Nail v News Group Newspapers Ltd and others; Nail v Jones and Another [2005] 1 All ER 1040. The Concerns Notice makes it clear that the sole objections are the omission of the words "if you weren't so young" and the use of the word "slit".
3. The reasonableness of an offer of amends is determined objectively: Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [62].
4. The offer must be to publish a reasonable correction in respect of the defamatory imputations to which it is addressed (s 15(1)(d)) as well as an offer to pay the expenses reasonably incurred by the aggrieved person prior to the offer of amends being made, and by the aggrieved person considering the adequacy of the offer of amends (s 15(1)(f)). Although an apology may additionally be offered (s 15(1)(g)(i)), as may an offer to pay damages (s 15(2)), failure to offer an apology and/or removal of the matter complained of and/or a payment of damages does not render the offer invalid: Zoef v Nationwide News Pty Ltd at [81] - [84]. The absence of these factors is generally, however, relevant to the adequacy of the offer.
5. There are requirements to satisfy in terms of making the correction known to recipients of the matter. Where there has been publication to a wide range of persons, the offer must include reasonable steps to inform those persons and, to the extent possible in the circumstances, to the same audience as the publication of the defamatory matter: s 15(1)(e); Pedavoli v John Fairfax Publications Pty Ltd at [42] - [45] per McCallum J.
The findings I have made in favour of the defendants for justification and contextual truth relate to all the publications. In relation to Exhibit F (the Fox publication), I have found that the defences of justification failed in relation to the imputation that the plaintiff was never a respected journalist. However, the defence of contextual justification succeeded. There is a degree of artificiality in making alternative findings in those circumstances, and my observations will accordingly be brief.
If I have erred in any or all of my findings as to justification and/or contextual truth, I would not have awarded damages to the plaintiff for any of the publications given the evidence led in support of them.
I consider that there is another circumstance in which evidence of a particular act of misconduct would be admissible, and this would be if the particular act or acts of misconduct are specifically identified in the matter complained of. This would apply to publications of the kind seen in Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612, where the plaintiff's involvement in drugs and prostitution, leading to her conviction for drug offences, were discussed at length in the matter complained of, which also wrongly accused of improper conduct with a prison officer. It is hard to imagine a court not permitting evidence of the conduct referred to in the matter complained of in circumstances where no imputation could be pleaded because (as Basten JA notes) to do so would amount to an abuse of process.
In the present case, that includes the circumstances of his dismissal and statements that he is a disgraced former journalist. On this basis, it would be relevant, in terms of mitigation, to take into account, in relation to certain of the publications, that they record the plaintiff as having been investigated and dismissed from his employment by reason of his conduct in the workplace in circumstances where the overwhelming truth of what was published would crush the falsity of the wrong statement attributed to the plaintiff.
The overwhelming nature of that accuracy is what distinguishes these proceedings from other defamation awards, apart from Mr Dank and Mr Charan.