DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE
TRIAL – SEPARATE DECISIONS OF QUESTIONS – where
an order was made
under r 483 of the Uniform Civil Procedure Rules 1999 (Qld) that four
Source
Original judgment source is linked above.
Catchwords
DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORETRIAL – SEPARATE DECISIONS OF QUESTIONS – wherean order was madeunder r 483 of the Uniform Civil Procedure Rules 1999 (Qld) that fourquestions be determined separately from, and in advance of, any other issue inthe proceeding – where the plaintiffclaims that the defendant publishedthree publications on its websites which were defamatory of him – wherethe plaintiff claimsdamages for the damage to his reputation and emotional harm– where the defendant defends the claim on the basis that it carriedoutthe terms of an offer to make amends which was accepted by the plaintiff and,consequently, s 17 of the Defamation Act 2005 (Qld) prevents theplaintiff from asserting or continuing an action for defamation – whetherthe offer accepted by the plaintiffwas an offer to make amends within themeaning of the Defamation Act 2005 – consideration of the scope ofthe defendant’s obligations under the agreement – whether the
defendant carried
out the obligations
Defamation Act 2005 (Qld), s
14, s 17(1)
Uniform Civil Procedure Rules 1999 (Qld), r 483
Codelfa
Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
[1982]
HCA 24, applied
Hafertepen v Network Ten Pty Ltd [2020] FCA 1456,
cited
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015)
256 CLR 104
[2015] HCA 37, cited
Nationwide News Pty Ltd v Vass
(2018) 98 NSWLR 672
[2018] NSWCA 259, considered
Judgment (89 paragraphs)
[1]
P J McCafferty KC and P Morreau KC for the defendant
[2]
[1] The plaintiff, Mr McVicker, claims that the defendant, Nine Digital, published three publications on its websites known as 9Finance and A Current Affair which were defamatory of him. By this proceeding, he seeks to recover damages for the damage to his reputation and emotional harm alleged to have been caused. Nine Digital defends the claim, in part, on the basis that it carried out the terms of an offer to make amends which was accepted by Mr McVicker and, consequently, by s 17 of the Defamation Act 2005 (Qld), Mr McVicker is prevented from asserting or continuing an action for defamation.
[2] On 5 June 2024, an order was made under r 483 of the Uniform Civil Procedure Rules 1999 (Qld) for the following questions to be determined separately from, and in advance of, any other issue in the proceeding:
[3]
(a) whether the settlement offer accepted by the plaintiff was an offer to make amends within the meaning of division 1, part 3 of the Defamation Act;
(b) what were the defendant's obligations under the offer to make amends or, alternatively, the compromise agreement reached between the parties regarding publishing the correction or apology on the relevant websites (correction obligation);
(c) whether the defendant carried out the correction obligation;
(d) alternatively, whether the defendant repudiated the compromise agreement.
[4]
[3] For the following reasons, I answer the questions as follows:
[5]
(a) Yes.
(b) The defendant's obligations under the offer to make amends are set out in the email of 6 May 2020. The obligations relevantly included publication of a notice headed "correction", in the agreed form of words, on the 9Finance and A Current Affair websites (as distinct from the homepage for each website) for no less than 60 days. In light of the answer to question (a), it is not necessary to address the alternative argument concerning a "compromise agreement".
(c) Yes.
(d) In light of the answer to question (c), it is not necessary to address this question.
[6]
The pleaded context of the separate questions
[7]
[4] The separate questions arise from part of Nine Digital's defence of Mr McVicker's claim, relying on s 17(1) of the Defamation Act, which provides:
[8]
"If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person can not assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations."
[9]
[5] In paragraph 2 of its defence, Nine Digital pleaded that:
[10]
"The plaintiff is precluded by operation of s 17(1) of the Defamation Act ... from asserting, continuing or enforcing his action for defamation against the defendant in relation to the matters in question, as alleged in paragraphs 2, 3 and 5 of the statement of claim ('the matters complained of'), because:
[11]
(a) on or about 20 December 2019 the defendant made an offer to make amends in accordance with s 15 of the Defamation Act ('OTMA') ...;
(b) on 7 January 2020 the OTMA was accepted by the plaintiff ...;
(c) the terms of the written correction were agreed between the parties on 6 May 2020...;
(d) the defendant has carried out the terms of the OTMA:
[12]
(i) the defendant has removed the matters complained of from the websites identified by the plaintiff;
(ii) on 11 May 2020 the defendant published the written correction, as agreed between the parties, and in the manner agreed;
(iii) on 19 May 2020 the defendant paid to the plaintiff's solicitor the agreed amount representing the plaintiff's reasonably incurred legal costs as agreed between the parties; and
(iv) to the extent the matters complained of were given by the defendant to someone else the defendant has taken reasonable steps to tell the other person(s) that the matters are or may be defamatory of the plaintiff.
(e) in the premises of subparagraphs (a) to (d):
(i) the defendant publisher has carried out the terms of the OTMA that was accepted by the plaintiff;
(ii) by operation of s 17 of the Defamation Act the plaintiff cannot assert, continue or enforce this action for defamation against the defendant publisher in relation to the matters in question; and
(iii) the proceeding should be dismissed or, alternatively, permanently stayed."
[13]
[6] In response, Mr McVicker said this, in his reply:
[14]
"1. The [plaintiff] admits the allegations in paragraphs 2(a), (b) and (c) of the defence.
[15]
2. The [plaintiff] denies the allegations in paragraph 2(d) of the defence because:
the agreed apology or correction was not published on the ACA Website;
if the correction or apology was published on the ACA Website it was published in such a way to make it impossible for any reasonable reader or viewer of the website to find such correction or apology;
the correction or apology published on the Finance Nine Website was published in such a way to make it impossible for any reasonable reader or viewer of the website to find such correction or apology;
of the matters pleaded in paragraphs 6-12 herein.
The [plaintiff] says the legal conclusion pleaded in paragraph 2(e) is wrong."
[16]
[7] In paragraph 6 of the reply, Mr McVicker pleaded that the following terms were implied by law into the "compromise agreement" reflected by the accepted offer to make amends:
[17]
(a) "the parties would do all things necessary to enable each other to secure the benefit of the compromise agreement";
(b) "the parties would not hinder or prevent the fulfilment of the purpose of the express promises made in the compromise agreement".
[18]
[8] By paragraph 7 of the reply, Mr McVicker pleaded that Nine Digital's conduct, as pleaded in paragraph 2 (set out above) constituted a breach of those implied terms.
[19]
Question (a) - the settlement offer was an "offer to make amends"
[20]
[9] The first publication was made available on the 9Finance website (www.finance.nine.com.au) on about 5 January 2019 and remained available until 13 December 2019. The link to the article on the homepage included the words "bestjet founder breaks silence on shock collapse of online travel agency" which reflected the title of the article.[1]
[10] The second publication was made available on the A Current Affair website (www.9now.com.au/a-current-affair) on about 8 January 2019 and remained available until 24 February 2020. The link to the article on the homepage included the words "company crash", which reflected the title of the article.[2]
[11] The third publication was made available on the 9Finance website on about 26 January 2019 and remained available until 13 December 2019. The link to the article on the homepage included the words "bestjet australia news michael james robert mcvicker jr". The title of the article was "Doomed Bestjet: Inside the operators' 20-year friendship".[3]
[12] In relation to these three publications, Mr McVicker says:
[21]
"Each of the publications were accessed via a link on the homepages of 9Finance and A Current Affair. Whilst I have not retained copies of the homepages of 9Finance and A Current Affair on the dates the publications were made available I recall that the respective homepages contained the heading to each publication in the words set out by Mr Cashen in paragraph 4, 5 and 6 of his affidavit which he describes as the title of the article. When you clicked on the title on the homepages you were then referred to the publications."[4]
[22]
[13] On 18 November 2019, Mr McVicker, by his solicitors, sent a concerns notice under s 14 of the Defamation Act to Nine Network Australia Pty Ltd (a different entity from the defendant, Nine Digital).
[14] On 13 December 2019, Nine Digital permanently removed the three publications from its websites, on a "without admissions" basis.[5]
[15] On 20 December 2019, Nine Digital wrote to Mr McVicker's solicitor, outlining an "offer to make amends" under part 3, division 1 of the Defamation Act,[6] as follows:
[23]
In the circumstances, and in accordance with Division 1 of Part 3 of the Act, in full and final settlement of all matters in dispute between the parties, Nine Digital Pty Limited (Nine) offers the following:
[24]
Nine will remove from its websites the matters complained of that are particularised in your client's Concerns Notice dated 18 November 2019.
Nine will publish a written correction on its website in terms to be agreed between the parties, to be retained on that website for a continuous period of not less than 7 days from the date of first publication of the correction.
Nine will pay the total amount of AUD $2,500 in respect of your client's reasonably incurred legal costs (inclusive of GST) in this matter, as required by the Act, including the consideration of this offer of amends.
If the matter complained of was given to somebody else, Nine will tell the other person that the matter complained of is or may be defamatory of your client."
[25]
[16] That offer was accepted by Mr McVicker on 7 January 2020.[7]
[17] Further correspondence was exchanged between 15 January and 6 May 2020, in relation to the wording of the proposed online correction. Wording was proposed in an email from Nine Digital's corporate counsel sent on 15 January 2020. Mr McVicker's solicitor responded, on 28 January 2020, with revised wording. This email also said:
[26]
a. is to be published in the same medium as the original articles in question;
b. accessible via the various homepages for 24 hours; and
c. otherwise, accessible online for twelve (12) months."[8]
[27]
[18] Nine Digital's corporate counsel responded on 31 January 2020, with a further version of the wording of the correction. In relation to "publication", this email said "it will be accessible on the 9Finance website and will be live for a period of not less than 60 days".[9]
[19] In a further response from Mr McVicker's solicitor sent on 22 February 2020, another version of the correction was proposed, and it was said that the correction should be published on both the 9Finance and A Current Affair websites, and be accessible for 12 months.[10] In a further email dated 20 March 2020, Nine Digital said it would be prepared to make the correction available on both websites, but only for a period of "no less than 60 days".[11]
[20] The terms on which the parties ultimately agreed are set out in an email from corporate counsel for Nine Digital dated 6 May 2020, which was accepted by Mr McVicker's solicitor on the same date, as follows:
[28]
"1. Nine will remove from its websites the matters complained of that are particularised in [Mr McVicker's] Concerns' Notice dated 18 November 2019.
[29]
2. Nine will publish a written correction on the 9Finance and A Current Affair websites for no less than 60 days. Nine will also provide your client with links to these articles so that he can forward them to anyone he may wish to. The written correction will be in the following terms (please note that 'and A Current Affair' has been added to paragraph three for stylistic purposes):
[30]
On 5 and 26 January 2019, 9Finance published articles about the collapse of the online travel agency, Bestjet. A Current Affair also broadcast a report about the Bestjet collapse on 8 January 2019. These included public statements from the former director and owner of Bestjet, Rachel James, and from the owner of Bestjet for 39 days, Robert McVicker Jr.
[31]
Ms James made claims that during her time as director Bestjet had been profitable and followed stringent operational, financial and industry protocols, yet had since failed and owed money to people, including her family, following the actions and inactions of Mr McVicker Jr. All of those claims are unsubstantiated.
[32]
9Finance and A Current Affair apologise to Mr McVicker Jnr for any embarrassment or distress that may have been caused to Mr McVicker Jnr or his family by publishing Ms James' claims.
[33]
3. Nine will pay the total amount of AUD$2,500 in respect of your client's reasonably incurred legal costs (inclusive of GST) in this matter. The payment will be made into the following account ....
4. If the matter complained of was given to somebody else. Nine will tell the other person that the matter complained of is or may be defamatory of your client."[12]
[34]
[21] Sensibly, given this factual context, there was no dispute that the settlement offer accepted by Mr McVicker was an offer to make amends within the meaning of ss 14 and 15 of the Defamation Act. So much was admitted in paragraph 1 of the reply.
[35]
Question (b) - Nine Digital's obligations under the agreement formed by acceptance of the offer to make amends
[36]
[22] Nine Digital's obligations under the agreement formed by acceptance of the offer to make amends are in the terms set out in paragraph [20] above, namely:
[37]
(a) to remove from "its websites" the matters complained of;
(b) to publish a written correction, in the terms agreed, on the 9Finance and A Current Affair websites for no less than 60 days (and provide Mr McVicker with links to these articles, so that he could forward them to anyone he wished to);
(c) to pay the agreed amount for Mr McVicker's legal costs; and
(d) if the matter complained of was given to somebody else, to tell the other person the matter complained of is or may be defamatory of Mr McVicker.
[38]
[23] The issue on the hearing of the separate questions, as to whether Nine Digital carried out its obligations, concerns the meaning of (b) - publishing a written correction, in the terms agreed, on the two websites for no less than 60 days.
[24] Before addressing Mr McVicker's arguments about that, I will deal with the evidence as to what Nine Digital actually did in giving effect to the accepted offer to make amends.
[39]
What Nine Digital did to carry out its obligations under the agreement
[40]
[25] The three publications were removed on about 13 December 2019.[13]
[26] The agreed form of correction was published on the 9Finance and A Current Affair websites on 11 May 2020.
[27] The evidence about this was given by Mr Dodd, an editor with Nine Digital, and Mr Morrow, the corporate counsel for Nine Digital.
[28] On 11 May 2020, Mr Morrow sent an email to Mr Dodd (and others) requesting that the correction be published on both the 9Finance and A Current Affair websites, to remain there for no less than 60 days, saying "to be safe, please make it live until 15 July 2020".
[29] Mr Dodd says that, on 11 May 2020, after receiving that email, he caused the text of the correction to be published in full at unique URL's on the 9Finance website and the A Current Affair website.
[30] Mr Dodd says that he is responsible for managing the A Current Affair homepage, and content across the A Current Affair website more generally. Mr Dodd describes his general practice in relation to placement of content, as follows:
(b) When a new story is published at a unique URL, a link to that story is always be [sic] placed on the ACA Homepage. These links often take the form of a 'tile', which is a rectangular item appearing on the Homepage with an image and a small number of words describing the story. When users click on a tile or a link, it takes them to the story at the unique URL on the ACA Website.
(c) The ACA homepage is curated so that my colleagues and I can decide where links appear on the page. However, the usual practice is that the newest tile or link will usually appear towards the top of the ACA Homepage, and will move down the page over time as newer tiles or links are placed above it.
(d) Eventually, tiles and links drop off the ACA homepage as newer content is added. This usually occurs approximately 24 - 48 hours after it first appears.
(e) Tiles and links to a story will also appear across other parts of the ACA Website, the 9Now.com.au, and nine.com.au websites. The tiles or links usually appear next to or underneath other stories as promoted content, particularly if the story has related content. There is no time limit on when links can appear in this way."[14]
[43]
[31] Mr Dodd says, in addition to causing the text of the correction to be published in full at unique URLs on both websites, he also instructed a digital producer to publish a link to the correction on the A Current Affair homepage. Mr Dodd says:
[44]
"9. The page was structured so that there was a main story at the top of the page, and text items to the left hand side. I instructed [the digital producer] to publish a link to Correction as the top left text item.
[45]
10. I expect a tile linking to the ACA Correction would have initially appeared at or near the very top left of the ACA Homepage shortly after it was published at the unique URL, and that it would have stayed on the homepage for 24 - 48 hours until it dropped off. However, links to the ACA Correction would have continued to appear across the ACA Website after that."
[46]
[32] In relation to the 9Finance homepage, Mr Dodd says:
[47]
"11. The 9Finance homepage at the time took the form of a feed, where links to news stories appeared in a list under the heading 'Top stories'. Links to stories published in 9Finance were automatically published in the feed by the Nine system. I recall that a link to the 9Finance Correction was published in this way."
[48]
[33] In both respects, the publication was done by 3.56 pm on 11 May 2020. At that time, Mr Dodd sent Mr Morrow an email with four links, being links to the 9Finance and A Current Affair homepages where the correction tiles were published, and links to the unique URLs within the 9Finance and A Current Affair websites where the full text of the corrections were published.[15] Mr Morrow looked at the links and noticed an advertisement appeared in the middle of the text of the correction. He called Mr Dodd and asked if he could fix it. Mr Dodd said he would, and confirmed this had been done at 4.33 pm on 11 May 2020.[16]
[34] Mr Morrow's evidence is that sometime after receiving the email(s) on 11 May 2020, he clicked on the links as sent by Mr Dodd, and he observed:
[49]
(a) a webpage containing the 9Finance correction in the terms he had requested;
(b) the 9Finance homepage with a tile linking to the 9Finance correction webpage;
(c) a webpage containing the A Current Affair correction in the terms he had requested; and
(d) the A Current Affair homepage with a tile linking to the A Current Affair correction webpage.[17]
[50]
[35] According to Mr Morrow, the 9Finance correction remained online at the unique URL until about March 2023, when the 9Finance website was decommissioned. The A Current Affair correction was still online at the unique URL at the time Mr Morrow affirmed his affidavit on 19 July 2024.[18]
[36] Although Mr Dodd did not himself see the "tile" on the A Current Affair homepage - and refers in his affidavit to his expectation that a tile would have appeared initially at the very top left of the homepage - Mr Morrow's evidence establishes that the tile did appear on the A Current Affair homepage on 11 May 2020.
[37] In relation to the 9Finance website, there is some additional evidence about publication in the form of data produced from an internet archive service known as the "Wayback Machine". Mr Dodd explains that the Wayback Machine offers an internet service which keeps an archive of occasional point-in-time snapshots of webpages as they appeared on the date the snapshot was taken. He says it provides an accurate representation of how a website appeared on the particular date recorded. Mr Dodd exhibits to his affidavit a snapshot of the 9Finance homepage as at 11 May 2020, obtained from the Wayback Machine. This shows a heading "Top Stories", under which there are a number of links. The first link, beneath the heading, is "Correction", followed by the words "By 9Finance 7 hours ago // Read more Business News".[19]
[38] Mr Dodd explains that he also searched for an archive of the A Current Affair website on 11 May 2020, but was not able to identify one. He says "[t]hat is not unusual because the Wayback Machine takes only occasional snapshots of websites. It does not take snapshots of every webpage every day".[20]
[39] There is also evidence of how many times the webpages containing the A Current Affair and 9Finance corrections were viewed and how many "unique visitors" there were to those pages. The "page views" records the total number of times the webpage at a particular URL is viewed on a device. The "unique visitors" is a subset of page views, which attempts to avoid double counting where a particular device accesses the relevant URL more than once. This data also shows the webpage the user was on immediately prior to accessing the relevant webpage.
[51]
Mr McVicker's complaints about what Nine Digital did to carry out the agreement
[52]
[49] The only response initially received from Mr McVicker's solicitor to the email of 11 May 2020 providing the links to the published corrections, was an email of 14 May 2020, which said:
[53]
"In paragraph 4 of the settlement terms, Nine agreed that anybody told about the matter complained of would be informed that such matter is or may be defamatory of our client.
[54]
That said, we anticipate Nine will advise the audience of A Current Affair via the program of that, given that is how the matter complained of was communicated to that audience. Please confirm that this will occur and on what date.
[55]
Furthermore, we are instructed that the matter complained of is still contained in articles accessible and/or referred to in ... [various social media accounts referred to, and a screen shot provided].
[56]
Please confirm that these publications will also be removed."[31]
[57]
[50] The articles complained of had been removed in December 2019. Between 19 and 20 May 2020, Nine Digital also removed from its social media and other State websites, material relating to Mr McVicker.[32]
[51] On 19 May 2020, the legal costs were paid, in accordance with paragraph 3 of the offer to make amends.[33]
[52] On 21 May 2020, Mr Morrow responded to Mr McVicker's solicitor, saying:
[58]
"Nine has published the agreed online correction and has notified its licensees and affiliates that the matters complained of particularised in your Concerns Notice dated 18 November 2019 may be defamatory of your client. There is no requirement in the offer of amends accepted by your client obligating Nine to broadcast an on-air correction. At no stage of negotiations in this matter has Nine offered such an on-air broadcast and no such on-air broadcast will be made by Nine."
[59]
[53] The next correspondence from Mr McVicker's solicitor came on 29 July 2020 - 79 days after the corrections had been published - in the following terms:
[60]
"Our client maintains that he understood the offer to make amends made by your client involved an apology being published with equal prominence to the publication of the offending material.
[61]
You will of course be aware of the reference to the that [sic] expression in section 18(2)(i) of the Defamation Act 2005 (Qld), which deal with the reasonableness of an offer to make amends.
[62]
We are instructed that our client is wholly dissatisfied with the apology published by Channel 9 for the following reasons:
[63]
The apology is in effect hidden on the Channel 9 webpages. That is a search of your webpages for the name 'BestJet' does not reveal the apology or a link to the apology with the various news reports referencing our client. It should do so. There is also no mechanism to search the ACA page where the apology should appear. The apology cannot be found at all on the ACA webpage.
The Nine Finance page published the apology under title of 'Correction' in their newsfeed. The document is not a correction but is in fact properly described as an apology. That publication is therefore wholly inadequate.
[64]
The publication of the written apology by Nine in the current form is not of equal prominence to the Nine broadcast of the defamatory remarks on ACA.
[65]
We contend that our client therefore has a reasonable basis to say that the current written apologies published on Nine's websites are wholly inadequate, in circumstances where the matter complained of was published and distributed to a significantly wider audience including through ACA. For that reason Nine has breached the terms of settlement.
[66]
We invite your client to publish the apology on air at a time convenient to your client on the ACA program and to make the apology prominent on the various Nine webpages and social media on or before Friday, 14 August 2020.
[67]
In the event that the prominence of the online apologies is not improved and an apology is not broadcast on air on ACA, we are instructed to issue proceedings in the District Court in Queensland without further reference to you."[34]
[68]
[54] Legal proceedings were, in due course, commenced.
[69]
Question (c): Nine Digital carried out its obligations under the agreement formed by acceptance of the offer to make amends
[70]
[55] As can be seen from the pleadings referred to at paragraphs [5] to [8] above, the initial complaint, that there ought to have been a broadcast of the correction, was not persisted with. The complaint as pleaded is that the correction was not published on the A Current Affair website at all or, if it was, it was published in such a way to make it impossible for any reasonable reader or viewer of the website to find it. The same complaint, of impossibility to find, is made in the case of the correction as published on the 9Finance website.
[56] As articulated in submissions on behalf of Mr McVicker, the argument that Nine Digital did not carry out its obligations under the agreement formed by acceptance of the offer to make amends is put on the basis that it was implicit in that agreement that the correction would be published on the websites "with equal prominence" to the publication of the material the subject of the initial complaint, and that was not done.
[57] There was some time spent in argument at the hearing about whether it is permissible to imply terms into an agreement formed by acceptance of an "offer to make amends" under the Defamation Act, on the basis that the "equal prominence" point involved implication of a term to that effect. Counsel for Nine Digital submitted that it was not permissible, because such an agreement is a creature of statute (although it was accepted the general terms pleaded in paragraph [6] of the reply would be implied as a matter of law[35]). In this regard, reliance was placed, by extrapolation, on the decision of the New South Wales Court of Appeal in Nationwide News Pty Ltd v Vass(2018) 98 NSWLR 672; [2018] NSWCA 259, in particular, the reasons of McColl JA at [110] where it was held that "the legislature did not intend the amends provisions to be construed by reference to ordinary contractual principles". I say "by extrapolation" because the issue in was not concerned with the approach to construction of an agreement formed by acceptance of an offer to make amends; but rather was concerned with the principles of formation of an agreement.
[71]
"... [w]hen the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting."[37]
[72]
[62] Counsel for Mr McVicker submitted that the construction he contends be given to the word "websites" in the agreement is supported having regard to the way in which the allegedly defamatory articles were published. That is, as the argument for Mr McVicker evolved, what he expected is that the "correction" would be published in the same way that the allegedly defamatory articles were published - the "equal prominence" point.
[63] The construction of the word "websites" contended for by Mr McVicker is not maintainable when one considers the objective framework of facts within which the agreement formed by acceptance of the offer to make amends came into existence:
[73]
(a) The articles complained of were not published in full on the homepage of either the A Current Affair website or the 9Finance website. They were published on the websites at unique URLs, accessible from a link (or tile) published on the homepage.
(b) It is clear from Mr McVicker's evidence (referred to in paragraph [12] above) and the lawyers' correspondence preceding the making of the agreement, that the parties had a shared and clear understanding of the distinction between the homepages and the websites more generally. That is apparent from the email from Mr McVicker's solicitor of 28 January 2020, and the response from Nine Digital on 31 January 2020 (referred to in paragraphs [17] and [18] above). What was first requested, on behalf of Mr McVicker, was publication of the correction "in the same medium as the original articles in question", "accessible via the various homepages for 24 hours", and "otherwise, accessible online for twelve (12) months". That was not accepted by Nine Digital, which initially offered publication only on the 9Finance website, although ultimately agreed to publication on both the 9Finance and A Current Affair websites. There is no reference to the "homepages" in the subsequent correspondence, including the final email of 6 May 2020, which reflects the ultimate agreement between the parties.
(c) The initial request from Mr McVicker's solicitor, for the correction to be "accessible via the various homepages for 24 hours" is consistent with Mr Dodd's evidence, about the period of time that links, or tiles, are accessible on the homepage (about 24 to 48 hours, as they are gradually moved down over time, as newer tiles or links are placed above them), and reflects a common understanding about that process as well.
[74]
[64] In that context, the word "websites" cannot be read as "homepages", nor as "homepages and websites", as that is inconsistent with the objective framework of facts within which the agreement came into existence. The suggestion that the agreement contemplated publication of a link to the correction on the homepage for no less than 60 days, or publication of the whole of the correction on the homepage for that period of time, is inconsistent with the language used in the agreement, as properly understood within the objective framework of facts referred to.
[65] In any event, in terms of the contended expectation that the correction would be published in the same way that the allegedly defamatory articles were published (and putting to one side the fact that this is not what was pleaded in the reply, as opposed to the "impossible to find" point), as a matter of fact that is precisely what occurred. The articles Mr McVicker complained about were published in the same way as the agreed correction. That is, by a unique URL on one or other of the websites, with a "tile" providing a link to the article[38] published on the homepage of the relevant website which would have remained there for about 24 to 48 hours.[39]
[66] Ultimately, the submission as to "equal prominence" was put on the basis that, since the articles complained about had a more descriptive title (in the link which appeared on the homepage), the correction ought also have had a more descriptive title. The short point about this is that what was agreed was that Nine Digital would publish a written correction, bearing the title "correction", and in the form of words as agreed and recorded in the email of 6 May 2020. There was no requirement, under the agreement formed by acceptance of the offer to make amends, to include additional words in the title of the link to the correction, or the correction itself.
[67] In so far as the pleaded arguments are concerned (paragraph 2 of the reply, set out at paragraph [6] above):
[75]
(a) First, as already noted, the evidence establishes that the agreed form of correction was published on both the 9Finance and A Current Affair websites.
(b) Second, the agreed form of correction was not "published in such a way to make it impossible for any reasonable reader or viewer of the website to find" the correction. It was published in the same way as the allegedly defamatory articles themselves and, as a matter of fact, was able to be found by a substantial number of viewers, on both websites, as evidenced by the viewership reports. This case is clearly distinguishable from the facts in Hafertepen v Network Ten Pty Ltd[2020] FCA 1456, in which the agreed "clarification" was published in an obscure location, on the "terms of use" page at the bottom of the relevant website (see at [90]-[108]).
[76]
[68] In answer to question (c), I find that, by publishing the agreed form of correction, in the manner that it did, Nine Digital did carry out its obligations under the agreement formed by acceptance of the offer to make amends.
[69] It is unnecessary to consider question (d).
[77]
[70] It follows, from the answer to question (c), that s 17(1) of the Defamation Act applies to prevent Mr McVicker from asserting, continuing or enforcing an action for defamation against Nine Digital in relation to the articles complained of.
[71] I anticipate, from an exchange with counsel at the end of the hearing of the separate questions, that the appropriate consequential order is that the proceeding is dismissed. However, I will hear from the parties before making any orders, including as to costs.
[78]
[6] Cashen at [11] and JPC-7. Although there is a strict time limit under s 14 of the Defamation Act within which an offer to make amends may be made, no issue about the time limit arose in this case, because the concerns notice had been sent to another entity, not the publishing entity, Nine Digital.
[36]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd[2015] HCA 37; (2015) 256 CLR 104 at [46]- [50]. See also Hafertepen v Network Ten Pty Ltd[2020] FCA 1456 at [69]- [78], albeit in relation to construction of a settlement agreement in an equivalent context, as opposed to an agreement formed by acceptance of an offer to make amends under Defamation legislation.
[89]
[39] See the transcript of the hearing at page 1-35 lines 1-5, page 1-44 lines 33-40 and page 1-46 lines 15-20.
[40] The evidence of viewership of the A Current Affair correction is contained in exhibit CJM-4 to Mr Morrow's affidavit. The report covers the period from 11 May 2020 to 8 April 2022. As explained by Mr Dodd, and as can be seen from CJM-4, in that period the A Current Affair correction received 381 page views, of which 293 were unique visitors. Most of those visitors (85%) were during May 2020, with another 7% during June and July 2020. The "previous page" data shows that 84 users accessed the correction from the A Current Affair homepage. The data shows that users also accessed the correction from other webpages on nine.com.au websites.[22]
[41] The evidence of viewership of the 9Finance correction is contained in exhibit CJM-5 to Mr Morrow's affidavit. The report covers the same period (11 May 2020 to 8 April 2022). As explained by Mr Dodd, and as can be seen in CJM-5, in that period the 9Finance correction received 3,583 page views, of which 3,227 were unique visitors. Many of the unique visitors (about 40%) were during May 2020, but there continued to be a number of visitors spread across the whole period. The "previous page", or "referrer" data shows that 1,368 visitors accessed the 9Finance correction through the "typed bookmarked" channel, which Mr Dodd says includes by a user clicking on a link sent to them by email. The data shows that 783 of the unique visitors accessed the 9Finance correction from the 9Finance homepage. The data shows that users also accessed the correction from other nine.com.au webpages.[23]
[42] As for why there were many more views of the 9Finance correction than the A Current Affair correction, Mr Dodd expresses the view that this is explained by two things. First, the 9Finance correction received significantly more views from the "typed/bookmarked channel", which includes users clicking on a link they have received by email. Second, the 9Finance correction received more views from Google searches. Mr Dodd says it is possible the 9Finance correction appeared above the A Current Affair correction in the Google search results, resulting in more traffic being directed to the 9Finance correction.[24]
[43] Mr Morrow sent an email to the solicitor for the plaintiff on 11 May 2020, providing him with the links to the online corrections on the 9Finance and A Current Affair websites.[25]
[44] It appears that Mr McVicker's solicitor did not provide those links to Mr McVicker until 14 May 2020.[26] However, Mr McVicker independently looked at the 9Finance homepage late in the day on 12 May 2020 and saw the link entitled "Correction" near the top of the page, under "Top Stories". Clicking that link took Mr McVicker to the full text of the agreed correction.[27] He can remember this timing because he sent an email to his solicitor at 5.55 pm on 12 May 2020.[28]
[45] In his affidavit, Mr McVicker says that he searched the website of A Current Affair "on and from 11 May 2020" and could find no reference to a similar correction on its website or homepage.[29] That date is inconsistent with Mr McVicker's evidence, as refreshed by reference to his email to his solicitor, of the date that he first looked at the 9Finance website. In resolving this conflict, I find it more probable that Mr McVicker looked for the correction on both websites at the same time, that is, late in the day, around 5.55 pm, on 12 May 2020. Mr McVicker also exhibits to his affidavit snapshots from the A Current Affair website homepage obtained using the Wayback Machine. The snapshots are for various dates, commencing on 23 May 2020 and up to 9 July 2020. Mr McVicker says these snapshots of the homepage do not show the correction.[30]
[46] In so far as publication of the correction is concerned, on the basis of the evidence I find that Nine Digital published the correction, in the words agreed, on the 9Finance and A Current Affair websites on 11 May 2020 at the unique URLs on each of those websites. The correction continued to be available at the unique URLs until March 2023 (in the case of the 9Finance website) and at least July 2024 (in the case of the A Current Affair website) - well in excess of 60 days. I also find that a link to the correction was published on the homepage of each of the 9Finance and A Current Affair websites on 11 May 2020, via a "tile" bearing the word "Correction", which would have remained visible on the homepage for at least 24 hours, but possibly longer. The fact that Mr McVicker says he did not see the link on the A Current Affair homepage, when he looked for it (late in the day on 12 May 2020, as I have found) is not inconsistent with this, because this would have been more than 24 hours after the link was published on the homepage. The evidence of the snapshots from the Wayback Machine referred to by Mr McVicker is also not inconsistent with this, as the snapshots commence on 23 May 2020.
[47] Apart from the evidence of Mr Dodd, that he caused the correction to be published on the websites, with a link on each homepage, there is direct evidence from Mr Morrow that he was able to see the tile linking to the correction on the homepage of each website, and see the correction itself, by clicking on the links provided to him (see paragraph [34] above). Neither Mr Dodd nor Mr Morrow were cross-examined on their evidence, and there is no reason not to accept their evidence as truthful.
[48] In addition, the viewership reports for the corrections published on the 9Finance and A Current Affair websites are also clear evidence of that publication, including of the link on the homepage of each website (because it can be seen, from the "previous page" data, that many viewers navigated to the correction from the homepage).
Vass
[58] It is not necessary to resolve that legal point in the context of this dispute. The issue raised by Mr McVicker's reply to Nine Digital's reliance upon s 17 of the Defamation Act does not depend upon the implication of a term into the agreement formed by acceptance of the offer to make amends; it concerns the construction of the agreement itself. As counsel for Nine Digital accepted, there must be some principle that applies to that construction task. The principles of statutory construction, as at first suggested by Mr McCafferty KC, do not seem apt. The general principles of contractual construction do seem apt - relevantly, that the agreement is to be construed objectively, by reference to text, context and purpose.[36]
[59] The agreement formed by Mr McVicker's acceptance of Nine Digital's offer to make amends contemplated publication of a written correction "on the 9Finance and A Current Affair websites".
[60] On behalf of Mr McVicker, it was submitted that the reference in the agreement to "websites" should be read as "homepages", or "homepages and websites". Therefore, it was submitted, what was required was that a link to the correction be published on the homepages for not less than 60 days, with the link incorporating the title of the allegedly defamatory articles or, alternatively, that the correction be published in full on the homepages (rather than only a link appearing on the homepages).
[61] As articulated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW)(1982) 149 CLR 337 at 352: