Molan v Dailymail.com Australia Pty Ltd

AGREED BACKGROUND FACTS 9 The parties cooperated by furnishing a statement of agreed background facts, and a statement of agreed factual and legal issues. The key aspects of what has been agreed are as follows, supplemented at [13] by the segment of the broadcast on 30 May 2020 that is the subject of the three publications sued upon, and also supplemented by the addition of the words of the two texts that it is agreed were sent and are in evidence. 10 At the time of the publication of the 5 June online article, the 5 June tweet and the 6 June tweet, Ms Molan was a sports presenter and commentator employed by Nine Entertainment Co Holdings Limited. In that role, among other things, she was part of the Nine Network's Wide World of Sports team for their NRL coverage and one of the hosts of the Continuous Call Team program on Radio 2GB. 11 Dailymail.com has been at all material times the publisher of material on its website with the URL https://www.dailymail.co.uk/auhome/index.html (Daily Mail Australia Website) and material published to Twitter using the account with Twitter handle @DailyMailAU (Daily Mail Twitter Account). 12 The following subset of Continuous Call Team program broadcasts involving Ms Molan took place on Radio 2GB between March 2017 and May 2020: Broadcast date Speakers included Transcript location in Defence 18 March 2017 Ms Molan Particular (c) Mr Darryl Brohman Mr Ray Hadley Mr Ray Warren 1 April 2017 Ms Molan Particular (d) Mr Brohman Mr Bob Fulton Mr Hadley 13 May 2017 Ms Molan Particular (e) Mr Brohman Mr Hadley 1 July 2017 Ms Molan Particular (f) Mr Mark Levy Mr Fulton 19 August 2017 Ms Molan Particular (g) Mr Brohman Mr Fulton Mr Hadley 2 September 2017 Ms Molan Particular (h) Mr Levy Mr Brohman Mr Fulton 17 March 2018 Ms Molan Particular (i) Mr Brohman Mr Fulton Mr Hadley 7 April 2018 Ms Molan Particular (j) Mr Levy Mr Brohman Mr Fulton 18 August 2018 (1/2) Ms Molan Particular (k) Mr Fulton Mr Levy 18 August 2018 (2/2) Ms Molan Particular (l) Mr Brohman Ray Warren 8 September 2018 Ms Molan Particular (m) Mr Brohman Mr Hadley Mr Fulton 29 September 2018 Ms Molan Particular (n) Mr Brohman Mr Fulton Mr Hadley 18 May 2019 Ms Molan Particular (o) Mr Brohman Mr Hadley "Boze" 13 July 2019 Mr Brohman Particular (p) Ms Molan Mr Fulton Mr Hadley 10 August 2019 (1/2) Ms Molan Particular (q) Mr Brohman Mr Fulton Mr Hadley 10 August 2019 (2/2) Ms Molan Particular (r) Mr Brohman Mr Fulton Mr Levy 24 August 2019 Ms Molan Particular (s) Mr Brohman Mr Levy Mr Fulton 5 October 2019 (1/2) Ms Molan Particular (t) Mr Brohman Mr Fulton, Ray Mr Hadley Mr Levy 5 October 2019 (2/2) Ms Molan Particular (u) Mr Brohman Mr Fulton Mr Hadley 5 April 2020 Ms Molan Particular (v) Mr Levy Mr Brohman Mr Chris Warren 12 April 2020 (1/3) Ms Molan Mr Hadley Particular (w) Mr Brohman, Another person 12 April 2020 (2/3) Ms Molan Particular (x) Mr Ray Warren Mr Brohman 12 April 2020 (3/3) Ms Molan Particular (x) Mr Brohman Mr Levy 30 May 2020 Ms Molan Particular (z), in the context of the rest of the broadcast Mr Levy Mr Brohman

13 The thrust of the 5 June online article deals with Ms Molan, according to that article, attempting the pronunciation of a Pacific Islander player's name in the course of the following exchange during the Continuous Call Team program broadcast on 30 May 2020, a characterisation that is disputed. This segment and some contextual material demonstrating the nature of the program was played in open court. The following excerpt includes a few seconds or so more than the 14 seconds played in court, by including slightly more from the beginning and end of the transcribed segment for additional context: Mark Levy: … Chris [Warren], he'll be sitting there getting ready for the football and running through all the pronunciations like he does … Erin Molan: Dad Mark Levy: … on a regular basis Erin Molan: Dad Erin Molan: Hooka, Looka, Mooka, Hooka, Fooka Darryl Brohman: What? I'm not sure what you said then. Erin Molan: What was the name you had to check? … The 5 June online article describes Mr Brohman's response to have been "What? I'm not sure what she said there" but upon reviewing the recording, I consider the above to be a more accurate transcription of what was said. 14 On 4 June 2020: (a) Ms Molan and Mr Nic White of Dailymail.com exchanged a series of text messages relating to the 30 May 2020 broadcast. (b) Mr White exchanged emails with Mr Evans of Radio 2GB relating to the 30 May 2020 broadcast. 15 At about 8.30pm on 4 June 2020, Dailymail.com published an article about Ms Molan on the Daily Mail Australia Website, titled "Erin Molan denies mocking the names of Pacific Islanders on live radio and claims her 'hooka looka' jibe was an 'inside joke' between her co­ hosts - but NONE of them are laughing". That article is not sued upon. 16 On 5 June 2020, Dailymail.com published an article about Ms Molan on the Daily Mail Australia Website, titled "Erin Molan refuses to apologise for her 'hooka looka mooka' jibe on live radio - as Pacific Islander women slam her for being 'complicit in racism' by mocking their names". This 5 June online article is the first matter complained of. A printed version of the 5 June online article appears as Schedules A1 and A2 to the amended statement of claim. Schedule A2 includes an additional link to the 5 April 2020 broadcast. 17 The number of Australian unique visitors for the first matter complained of (that is, people apparently from Australia who accessed the 5 June online article) up to 23 October 2020 was 59,543. 18 The 5 June online article has remained accessible online since 5 June 2020. 19 On 5 June 2020, at about 1.03pm, Ms Zoe Zaczek of Dailymail.com sent a text message to Ms Molan: Hi Erin, My name is Zoe and I'm a news reporter for Daily Mail Australia. I am writing a follow - up on yesterday's story. There has been quite a bit of backlash over the audio, with many labelling it 'racist'. Would you be willing to comment on the allegations of racism? Are you going to apologise? Cheers, Zoe 20 On 5 June 2020, at about 4.42 pm, Ms Molan took part in a broadcast with Mr Levy on Radio 2GB [the Drive Show], during which the following words were broadcast: Mr Levy: Now Erin, we've worked together for many, many years and the Continuous Call team of a Saturday and Sunday is predicated on having some fun and sitting around with some mates and having a laugh but there were some comments on the weekend that today have caused a bit of a stir. Ms Molan: Yeah they have, haven't they Levy, which is never a good thing. Look, as you said, and you know me very well, I would never, ever intentionally offend anybody or hurt anyone's feelings and if I've done that then I am very, very sorry for it. You know, we love to have a laugh and we love to have fun but in the current climate [you know] things are very different. So I'll see you tomorrow, my friend, and we'll hopefully try to have some fun of a different nature. 21 I interrupt this narrative to note that I have, as urged by Ms Molan's senior counsel, listened to the sound recording of the above and accept the submission that the apology given by Ms Molan was sincere. As discussed in some detail in these reasons, this recording is of some importance because all three publications sued upon allege that she refused to apologise, rather than taking issue with the scope or content of the apology that was broadcast. The recording, by her saying with apparent sincerity that she did not intend to offend, necessarily corroborates her contention that she did not, as also alleged about the 30 May 2020 broadcast, intend to mock anyone other than perhaps the well-known father and son rugby league commentators in fact being referenced in the impugned segment, Ray Warren and Chris Warren, and therefore did not deliberately mock Pacific Islanders. While it is difficult to see how mocking could be other than deliberate, the word "deliberately" serves to emphasise this. 22 On 5 June 2020, Dailymail.com posted material on the Daily Mail Twitter Account about Ms Molan on the Daily Mail Australia Website comprising the 5 June tweet, which is the second matter complained of. A printed version of the 5 June tweet appears as Schedule B to the amended statement of claim. 23 On 6 June 2020, Dailymail.com posted material on the Daily Mail Twitter Account about Ms Molan on the Daily Mail Australia Website comprising the 6 June tweet, being the third matter complained of. A printed version of the 6 June tweet appears as Schedule C to the amended statement of claim. 24 The number of people who followed the Daily Mail Twitter account as at 5 and 6 June 2020 was about 24,400. 25 On 10 June 2020 the applicant tweeted a statement to her Twitter followers, which numbered over 95,000. 26 NRL players having a Polynesian heritage represent a significant proportion of players in the NRL competition. 27 Ms Molan said the words "Hooka, Looka, Mooka, Hooka, Fooka" on the radio whilst hosting the Continuous Call Team on 2GB on 30 May 2020 shortly after the death of George Floyd in police custody. 28 On or about 3 June 2020, Ms Molan put a post on Instagram concerning George Floyd. 29 Ms Molan was a host of The Footy Show, a television program broadcast by the Nine Television Network during the period from about 2014 to 2018.

THE THREE MATTERS COMPLAINED OF, THE PLEADED IMPUTATIONS AND PUBLICATION 30 It is convenient to turn now to the three publications comprising the matters complained of (prefaced by the 4 June 2020 online article that is not sued upon), the pleaded imputations, and whether, objectively, those imputations are conveyed. The outcome of that process determines what remains to be considered.

4 June online article - not sued upon 31 As noted above, on 4 June 2020, the Dailymail.com published an online article, which is not sued upon. It apparently provoked some of the responses that were published as additional material in the 5 June online article published the next day that is sued upon, and is a subset of that article. A printed copy of that article is Annexure A to these reasons because of the important context it provides to the three publications that are sued upon. Although the way in which this article should be considered as the precursor to the 5 June online article is disputed, it undoubtedly was causally related to the additional material in that later article, including the particular aspects sued upon.

First matter complained of: 5 June online article 32 The thrust of the 5 June online article deals with Ms Molan, according to that article, attempting the pronunciation of a Pacific Islander player's name in the course of the following exchange during the Continuous Call Team program broadcast on 30 May 2020. This segment and some contextual material demonstrating the nature of the program was played in open court. The following excerpt includes one second more than the 14 seconds played, by including more from the beginning and end of the transcribed segment for additional context: Mark Levy: … Chris [Warren], he'll be sitting there getting ready for the football and running through all the pronunciations like he does … Erin Molan: Dad Mark Levy: … on a regular basis Erin Molan: Dad Erin Molan: Hooka, Looka, Mooka, Hooka, Fooka Darryl Brohman: What? I'm not sure what you said then. Erin Molan: What was the name you had to check? … 33 This proceeding principally turns on Ms Molan's use of the words "Hooka, Looka, Mooka, Hooka, Fooka". The 5 June online article includes adverse reactions to what she was perceived to have said and done by using those words, as reported in the 4 June online article. The 5 June online article included comments reported to have been made by Dr Jemaima Tiatia-Seath, a Pacific Islander academic in New Zealand; by Ms Talia Aualiitia, a Pacific Islander presenter on the Australian Broadcasting Corporation's Radio Australia; by others apparently from the Pacific Islander community in Australia; and by other members of the public. The evidence in relation to the segment and its historical context has revealed that the perception conveyed by the 4 June online article was not an entirely accurate reflection of what had in fact taken place when regard was had to context and events prior to that publication. This matter was brought to the attention of Dailymail.com both by text from Ms Molan and by email from a Nine Publicist, Mr Jason Evans, before publication took place. 34 The 5 June online article published on Dailymail.com's website is best viewed, in the first instance, in its printed format rather than by way of a summary or reproduction of the text alone. That is because a summary or the text alone does not properly enable the Court to do justice to the competing arguments. A summary or text alone tends to decontextualise what was published as to accompanying images, captions, reproduced tweets and a link to the 14 second segment. 35 Annexure B to these reasons is Schedule A2 to the amended statement of claim. The statement of claim originally only included Schedule A as the first matter complained of. That was renumbered Schedule A1 and Schedule A2 was added without dispute when the amended statement of claim dated 13 October 2021 was prepared, and leave was granted to amend the statement of claim. The only significant difference between Schedules A1 and A2 is that Schedule A2 includes, between the line numbering added [40] and [41], an embedded link to play audio from the Continuous Call Team program on 5 April 2020, which corresponds to the transcript for Particular (v) of Dailymail.com's defence. 36 It must still be kept steadily in mind that the printed version of the 5 June online article is not a precise or even necessarily very accurate representation of what a reader would observe reading or perusing the online article on a computer screen, tablet or mobile telephone handset, each such viewing in turn being likely to be affected by the size of the screen and the settings used on such a device by the individual user. 37 Ms Molan points to particular features of the 5 June online article as comprising a headline and four summary bullet points, followed by a description of the 14 second segment of the 30 May 2020 broadcast (including certain background to that broadcast segment attributed in part to her and to her employer as the ultimate owner of 2GB), statements attributed to Dr Tiatia-Seath, a link to an audio recording of that segment of the broadcast with a caption, matters related to the death of George Floyd, including an Instagram post attributed to Ms Molan about that murder, tweets attributed to Ms Talia Aualiitia, various tweets attributed to other people, the background of certain NRL players, claims about her racial comments about a musical group and photographs of her. 38 For ease of reference, the text alone of the 5 June online article (identical as between Schedule A2, but with an additional link in the latter inserted between [40] and [41]) is as follows, retaining the line or paragraph numbers inserted into the copy annexed to the amended statement of claim for ease of reference: [1] Erin Molan refuses to apologise for her 'hooka looka mooka' jibe on live radio - as Pacific Islander women slam her for being 'complicit in racism' by mocking their names [2] • Erin Molan has been slammed after offensive outburst on Radio 2GB's NRL show • Panel was discussing pronouncing NRL player names during broadcasts • The 36-year-old put on an accent and said 'hooka looka mooka hooka fooka' • She claimed it was a reference to a story previously told on the show in April [3] By Zoe Zacek and Nic White for Daily Mail Australia Published: 13:34 AEST, 5 June 2020 | UPDATED: 15:12 AEST, 5 June 2020 [4] Erin Molan has been accused of being 'complicit to racism' by mocking the names of Pacific Islander NRL players on radio. [5] Molan, 36, put on on accent as she said 'hooka looka mooka hooka fooka' during a discussion about how to pronounce players' names before a game on Saturday's 'Continuous Call' football show on 2GB. [6] Molan claimed the statement was an 'in-joke' between the commentators - despite fellow hosts Darryl Brohman and Mark Levy remaining silent after her comments. [7] 'What? I'm not sure what she said there,' a confused Brohman said about Molan's comments, before Levy quickly moved on to an unrelated topic. [8] However, Jemaima Tiatia-Seath, the co-head of the University of Auckland's Māori Studies and Pacific Studies department, said Molan's 'hooka looka mooka fooka' jibe should not be excused as a joke. [9] She said commentators not being able to pronounce the names of Polynesians - who now represent about 45 per cent of players in the National Rugby League competition - was unacceptable. [10] 'It is the role of any commentator to owe respect to a name,' Dr Tiatia-Seath told Daily Mail Australia. [11] 'To some it was "only just a joke, don't take yourself too seriously"' but to us, it's a sign of disrespect. [12] 'The fact that it was joked about in the public sphere, it shows we have a long way to go in changing attitudes and beliefs. It's being complicit towards racism. Enough is enough.' [13] [IMAGE OF ERIN MOLAN AND MARK LEVY WEARING HEADPHONES] [14] Erin Molan (pictured left) appeared to mock the names of Pacific Islander NRL players live on 2GB radio's The Continuous Call on Saturday [15] Erin Molan mocks the names of Pacific Islanders live on radio [IMAGE OF ERIN MOLAN AND FOUR MEN HEADED "THE CONTINUOUS CALL TEAM", WITH A LINK TO AN EMBEDDED 14 SECOND VIDEO MARKED "Watch the full video"] [16] Dr Tiatia-Seath added an individual's name carries 'Mana', which is regarded as a spiritual force to Polynesian people. [17] 'In a name, an individual carries with them their family, their histories, and their memories,' she said. [18] Molan faced backlash on Twitter for her comments, which come at a time of heightened awareness about race and inequality following the death George Floyd, a 46-year-old black man, in Minneapolis police custody. [19] His death has led to series of Black Lives Matter protests across the U.S. and the globe. [20] [IMAGE OF JEMAIMA TIATIA-SEATH] [21] Jemaima Tiatia-Seath (pictured), from the school of Māori Studies and Pacific Studies at the University of Auckland, said Molan's mispronunciation could not be excused as a joke. 'To some "it was only just a joke, don't take yourself too seriously"' but to us it's a sign of disrespect,' she told Daily Mail Australia [22] [IMAGE OF TALI AUALIITIA] [23] ABC Radio Australia presenter Tali Aualiitia also criticised Molan for her 'white privilege' [24] [IMAGE OF A THREAD OF THREE TWEETS FROM TALI AUALIITIA] with the following text: "Erin Molan works in rugby league and, there are a bloody lot of Pacific players. It's literally her job to say these names and, to do the work to same [sic] them right" "What she fails to understand, is that a Pacific name is not just a surname. It's your ancestors, your village, your people, your country. We wear our names with pride and they are there to be made a mockery of - even as a joke with your co-worker" "Respect people's names. It's not that bloody hard. And, it's not just Pacific names. Respect all names. Do the work to try and get them right. Especially if you work in the media because it's literally your bloody job" [25] 'It's literally her [Molan's] job to say these names,' Aualiitia wrote in a Twitter thread [26] [IMAGE OF A TWEET FROM SCOTTY STEVENSON] with the text "Family names throughout the pacific tell stories, carry memories, and hold histories. They're not jokes." to a nzherald tweet stating that "NRL personality and commentator Erin Molan has refuted claims that she mocked the names of Pacific Island players in a live radio slip up" [27] Journalist Scotty Stevenson also criticised Molan for mocking players' names [28] One Twitter user wrote: 'Don't post an Instagram story for George Floyd but then go and mock Pacific Islanders names. [29] 'YOU ARE THE PROBLEM BABE. False morality.' [30] ABC Radio Australia presenter Tali Aualiitia also criticised Molan for her 'white privilege'. [31] 'Erin Molan works in rugby league and there are a bloody lot of Pacific players. It's literally her job to say these names and, to do the work to same them right,' she wrote. [32] 'What she fails to understand, is that a Pacific name is not just a surname. [33] 'It's your ancestors, your village, your people, your country. We wear our names with pride and they are not there to be made a mockery of - even as a joke with your coworker.' [34] [IMAGE OF TWEETS FROM HARVEY SPECTER AND FROM TOMMY STUCKY] with the text "Okay first you kill off the footy show single handedly now you pull this bs [short hand for bullshit] [face palm emoji] don't try to sweep it under the rug own up to it and apologise @Erin_Molan" "#NoToRacism" [35] Molan was slammed on Twitter after the story was published on Thursday [36] Another Twitter user described Molan's mispronunciation as 'peak white privilege'. [37] 'Women like Erin Molan like to use their proximity to Brown bodies specifically Brown NRL bodies as an excuse to joke 'with' us ... no,' they wrote. [38] 'You don't get to make fun of our names and pretend its all in good fun. Not now not ever. [39] 'It's f***ing 2020 and if you're not doing better now you shouldn't be doing it at all. Peak white privilege.' [40] Daily Mail Australia has attempted to contact Molan and Nine Entertainment to ask whether she would apologise. [IMAGE OF ERIN MOLAN AND FOUR MEN HEADED "THE CONTINUOUS CALL TEAM", WITH A LINK TO AN EMBEDDED 2:02 MINUTE VIDEO MARKED "Watch the full video"] [41] When contacted about the audio on Thursday, Molan said she had 'no idea' why no-one laughed, and suggested they were distracted by the busy studio. [42] Both Nine Entertainment, owner of 2GB, and Molan herself said she was referencing a story Brohman told on an April 5 broadcast, about a debate between father and son commentators, Ray and Chris Warren. [43] The pair were debating how to pronounce the name of reserve Manly forward of Tongan decent, Haumole Olakau'atu. [44] 'His name had about 30 letters in it and I had trouble pronouncing it so I asked Chris 'how do you pronounce this bloke's name?' Brohman said. [45] 'He said 'well dad and I have been discussing this today... and dad thought his name was Chuka-lala-lulu. [46] 'And I said, 'well, dad, I think it's Chuka-lala-lulu-lulu, and he says, Chris, that's incorrect - It's Chukaka-lulalulalo'. [47] [IMAGE OF ERIN MOLAN] [48] Molan is pictured at the Dally M Awards in Sydney in 2018 [49] The story continued along those with the names getting increasingly complicated until Brohman suggested 'let's just call him Sevi'. [50] Brohman relayed the story in a voice that mocked the speech of both Ray and Chris Warren, which Molan said she imitated on Saturday. [51] He appeared to be exaggerating a serious discussion between the Warrens for comedic value and not recounting it word for word. [52] On Saturday, Levy said Warren would 'run through all the pronunciations' of players before Saturday night's match. [53] Molan then interjected by twice saying 'Dad!' in a strange voice, before launching into the nonsensical phrase. [54] Nine told Daily Mail Australia any perceived racial insensitivity was a misunderstanding as Molan was just referencing a story regular listeners would be familiar with. [55] [IMAGE OF ERIN MOLAN'S INSTAGRAM POST WITH EMOJIS, THE WORDS "I understand that I will never understand. However I stand with you.' AND AN IMAGE OF A BLACK HAND AND A WHITE HAND INTERTWINED] [56] ] Molan on Wednesday night made an Instagram in solidarity with the protests over George Floyd's death, showing white and black hands intertwined [57] 'Erin was was jokingly mocking the difficulty Chris and his father had, going back and forth figuring out how to pronounce a complex name,' it said. [58] 'The Big Marn (Brohman) retelling the story in his very best Ray and Chris Warren voice.' [59] Molan's repeated interjections of 'Dad!' were referring to this dynamic, Nine said. [60] Molan on Wednesday night made an Instagram post in solidarity with the protests over George Floyd's death, showing white and black hands intertwined. [61] 'I understand that I will never understand. However, I stand with you,' her caption stated. [62] Forty-five per cent of NRL players have Pacific Island heritage, swelling from 30 per cent in 2011. [63] League players come from 116 different countries, and have family ties to 145 through their parents and grandparents. [64] [IMAGE OF ERIN MOLAN] [65] Molan said she had 'no idea' why no-one laughed, and suggested they were distracted by the busy studio [66] This is not the first time Molan has used questionable dialogue during a broadcast. [67] On TV show, 20-to-One, she was widely condemned for mocking K-Pop group BTS. [68] Molan expressed surprise at the group's chart-topping success in America, because 'only one band member actually speaks English'. [69] She and co-host Nick Cody took things even further by mocking the group's work with the United Nations Children's Fund (UNICEF). [70] While playing a clip of BTS discussing their philanthropic work in a speech to the UN last year, the pair remarked that they must have been speaking about 'hair products'. 39 The asserted background or context for this segment, as provided by email by the radio program to Dailymail.com at 5.25 pm on 4 June 2020, prior to the publication of the 5 June online article, is as follows: Hi Nic, Nic C passed on the below, I look after the NRL publicity at Nine. Below all for background only for you and not for direct quoting, but this appears to be a misunderstanding - the context for that segment links back to this - https://www.2gb.com/history-made-as-chris-and-ray-warren-go-headto-head/ I've asked our team at 2GB to pull the audio for me when they can for you to hear, but it was just a story that regular listeners would be familiar with as it comes up often on the show. It was an occasion last year where Ray Warren was calling a game for Nine and his son Chris was calling the same game for 2GB at Brookvale Oval. Ray came into the 2GB box and father and son debated the pronunciation of Manly forward Haumole Olakau'atu off-air. That's why Erin says "Dad....Dad...." and then creates a fictional player name - she was jokingly mocking the difficulty Chris and his father had, going back and forth figuring out how to pronounce a complex name. If you'd like any further context or the audio from the original story, just let me know. 40 The substance of Ms Molan's case is that the Dailymail.com has distorted and misrepresented what she said in the 14 second segment so as defame her in the way of the following six imputations, each of which rely upon the whole of the 5 June online article, and also focus on specific paragraphs of that article for the first five imputations, as refined in her opening written submissions: 1st imputation: The applicant, having deliberately mocked the names of Pacific Islanders on air, then lied about it by falsely claiming she was referring to an "in-joke" between her and her co-hosts on the commentary team. 2nd imputation: The applicant is so callous that, having deliberately mocked the names of Pacific Islanders on air, she then refused to apologise despite the offence she had caused the Polynesian NRL community and their cultural history. 3rd imputation: The applicant's inability to pronounce the names of Polynesian NRL players is so disrespectful and incompetent that she is unfit to be an NRL commentator. 4th imputation: The applicant is such an arrogant woman of white privilege that she has refused not only to learn how to pronounce the names of Polynesian NRL players but also to apologise for deliberately mocking them on air. 5th imputation: The applicant cynically used George Floyd's death to promote herself as sympathetic to Black Lives Matter protests against racism and inequality even though she had deliberately mocked the names of Pacific Islanders on air. 6th imputation: The applicant is a racist. 41 Thus, Ms Molan's pleaded case for the article starts with the 1st imputation that follows relatively closely what was expressly stated, relying upon only a small measure of implication, and builds up to the concluding 6th imputation of her being "a racist", being something that is never expressly said in the article. She therefore relies heavily upon the article carrying the implication not just that she has engaged in racist behaviour, but that she has that adverse personal characteristic. 42 By contrast, Dailymail.com's case is run heavily on the justification for the last and most serious of these imputations, endeavouring to make the 6th imputation the issue in the proceeding, paying relatively less attention to the other more limited imputations. The strategy behind this is clear enough - if the 6th imputation is found to be conveyed, but is also found to be substantially true or contextually true, the scope for any damages arising from the first five imputations, if conveyed, is greatly reduced, if not eliminated. 43 As there cannot be defamation without publication, that is a necessary fact to be proved. In the case of the 5 June online article there is no dispute that this was published to readers, and I formally find that was so.

Second matter complained of: 5 June tweet 44 The second matter complained of, being the first tweet sued upon, published the same day as the principal online article on 5 June 2020, is also best viewed in its printed format. The same caveat applies as to how each tweet would be seen by a reader on the range of possible devices used to view it. For convenience, the version which is Schedule B to the amended statement of claim is Annexure C to these reasons, unaltered. 45 When the amended statement of claim was prepared, Ms Molan also sought to amend to include alternate versions of the second and third matter complained of which reflected the alternative formatting which could occur when viewing a tweet on a mobile device. These alternate formats were in fact tendered by the respondent as Exhibit 2R in the course of cross-examination of Ms Molan. Ms Molan sought to make this amendment on the basis that it was likely that more people would have viewed the tweets on a mobile device, being the format which was tendered by the respondent, than in the desktop formats which were annexed to the statement of claim. It emerged in the course of submissions in support of the amendment that the relevance or significance of the differences in the formats only became apparent in the course of the cross-examination of Ms Molan. However, counsel further submitted that it simply did not occur to either Ms Molan's previous or current solicitors that there was a difference between the two formats when the statement of claim was lodged. 46 Conversely, Dailymail.com argued that owing to the significant difference in wording which appeared between the formats, where the desktop version had almost double the amount of text as the mobile version, that the alternate version of the tweets essentially constituted a different publication and should not now be allowed to be annexed to the statement of claim. Given that it unfortunately seemed to be nothing more than a mistake that the alternate versions were not put as matters complained of by Ms Molan initially, and the compelling argument by Dailymail.com about the material differences between the versions, I did not grant leave to amend the statement of claim in respect of the 5 June tweet (or in respect of 6 June tweet). In the end result, nothing turned on this outcome. 47 The image of the 5 June tweet is as follows: 48 Ms Molan pleads the following further imputation based on the 5 June tweet: 7th imputation: The applicant is so callous that, having deliberately used an accent to mock the names of Pacific Islanders on air, she then refused to apologise. 49 The respondent puts the applicant to proof both as to the fact of publication of the 5 June tweet and as to the extent of such publication, noting the concession as to number of people who followed the Daily Mail Twitter account. Had it been necessary to do so, I would have found that publication did take place, leaving only the vexed question of the extent of publication because following an account is not necessarily the same as actually reading it so as to constitute publication. However, no concluded view is necessary because the firm conclusion I reach below is that the 7th imputation has not been established as having been conveyed. This is because two essential elements of the pleaded imputation were not conveyed. I note for completeness that, had that imputation been conveyed, there is no doubt that it would have been defamatory.

Third matter complained of: 6 June tweet 50 The third matter complained of, the 6 June tweet (being the second tweet sued upon and published the day after the 5 June online article and the 5 June tweet) is also best viewed in its printed format for the reasons already expressed above. Again, the same caveat applies as to how each tweet would be seen by a reader on the range of possible devices used to view it. Again, for convenience the version which is Schedule C to the amended statement of claim is Annexure D to these reasons, unaltered. 51 The image of the 6 June tweet is as follows: 52 Ms Molan pleads the following further imputation based on the 6 June tweet: 8th imputation: The applicant is so callous that, having deliberately used an accent to mock the names of Pacific Islanders on air, she then refused to apologise. 53 Again, the respondent puts the applicant to proof both as to the fact of publication of the 6 June tweet and as to the extent of such publication, again noting the concession as to number of people who followed the Daily Mail Twitter account. Again, had it been necessary to do so, I would have found that publication did take place, leaving only the leaving only the vexed question of the extent of publication because, again, following an account is not necessarily the same as actually reading it so as to constitute publication. However, no concluded view is necessary, because the firm conclusion I reach below is that the 8th imputation has not been established as having been conveyed because an essential element was not conveyed. As with the other tweet, I note for completeness that had that imputation been conveyed there is no doubt that it would have been defamatory.

Defamatory meaning and pleading imputations 54 Defamation occurs when "a publication, without justification or lawful excuse… [injures] the reputation of another, by exposing [them] to hatred, contempt or ridicule": Parmiter v Coupland (1840) 151 ER 340 at 342. Defamation is carried through imputations which an ordinary reasonable reader would find were conveyed when applying their general knowledge and their knowledge of standards held by the general community: JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467 at [387]. While these general statements seem to indicate a broad remit to seek relief for any number of matters, an applicant must take care in what they plead to have been conveyed to the ordinary reasonable person to vindicate the claim successfully. 55 In Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361, I observed: [38] The forensic choice in pleading imputations by a person bringing a proceeding for defamation may be a difficult one. If the direct assertions in a publication are pleaded as the imputations, there may be a danger that a successful defence will be able to be mounted, because that is what a publisher is most likely to have considered in framing the story by reference to the information available. Moreover, the direct assertions may not properly capture the real slur, or at least the more serious slur being conveyed by implication, such as guilt rather than mere suspicion of guilt. But the ever-present risk is that the implication relied upon, rather than the direct slur available to be relied upon, is not in fact there to be found. That is, if the bar set by the pleaded imputation is too high, it may not be successfully cleared. [39] The issue of the meaning conveyed to be determined arises out of the imputation alleged, not some other imputation that could have been pleaded, but was not: see Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; 271 FCR 632], especially at [31]-[32]; see also the advice of the Privy Council in Truth (New Zealand) Ltd v Holloway [1961] NZLR 22; [1960] 1 WLR 997, reproduced in the New Zealand Court of Appeal decision of Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234, and further reproduced in Chau at [73]. 56 Of course, the publisher must also be careful as to what may be implied beyond what is expressly stated, with the exemplar expression of that danger being stated with clarity in the following much cited passage from Lord Devlin in Lewis v Daily Telegraph [1964] AC 234 at 277: My Lords, the natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyer's first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory. 57 The topic was further considered by Lord Devlin in Lewis at 285: It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. 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; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded. 58 The concern at the stage of considering whether a pleaded imputation has been conveyed is not with what the person the subject of the publication actually did, but what they are said to have done. The meaning to be derived from the present three publications sued upon, and measured against the disputed imputations, is that of the hypothetical ordinary reasonable reader: Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; 150 CLR 500 at 506. The High Court in Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 observed at [31]-[32] (omitting footnotes): The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd [[1964] AC 234 at 259], "[s]ome are unusually suspicious and some are unusually naive". So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole. As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc [[2001] EMLR 45 at 1040 [16]], that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to "read between the lines in the light of his general knowledge and experience of worldly affairs", but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574 [134], "[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject". 59 In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (Rush No 7), Wigney J summarised the burden of the authorities on the meaning of the ordinary reasonable person and the "natural and ordinary" meaning of a publication at [72]-[85]. In particular, his Honour observed, as to the approach towards comprehending how the hypothetical ordinary reasonable person reading the publication in question would derive the meaning: [77] … in determining what implications or imputations the ordinary reasonable reader would understand or draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways. The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of "loose thinking". The ordinary reasonable reader also apparently does not live in an "ivory tower" but can and does "read between the lines" in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions. [78] … the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual. 60 If a publisher chooses to create news based upon something that has been discovered, rather than report carefully on an event which itself is already news, particular caution may be required to ensure that there has not been a mistake made, or something important has not been misunderstood. In this case, there was little room for any misunderstanding of the asserted background or context for the segment reported upon, because the radio program provided that information in writing to Dailymail.com prior to any publication taking place. Dailymail.com published with that risk firmly in place. 61 I am required to arrive at a single meaning, being the only natural and ordinary meaning conveyed by the words used in the publication: Slim v Daily Telegraph Ltd [1968] 2 QB 157 per Diplock LJ (as Lord Diplock then was) at 172-175. Lord Justice Diplock commenced his reasons at 171-172 by explaining evocatively both the artificiality, and the indispensability, of the single meaning rule: In the spring of 1964 two short letters appeared in the correspondence columns of the "Daily Telegraph." Written by Mr. Herbert, they formed part of a robust though desultory controversy about the prospective use by motor vehicles of a public footpath forming part of Upper Mall in Hammersmith. Neither letter can have taken a literate reader of that newspaper more than 60 seconds to read before passing on to some other, and perhaps more interesting, item. Any unfavourable inference about the plaintiffs' characters or conduct which he might have drawn from what he read would have been one of first impression. Yet in this court three lords justices and four counsel have spent the best part of three days upon a minute linguistic analysis of every phrase used in each of the letters. If this protracted exercise in logical positivism has resulted in our reaching a conclusion as to the meaning of either letter different from the first impression which we formed on reading it, the conclusion reached is unlikely to reflect the impression of the plaintiffs' character or conduct which was actually formed by those who read the letters in their morning newspaper in 1964. Nevertheless, the artificial and archaic character of the tort of libel makes the exercise necessary in this appeal, even though in the end we return to the first impression with which we began. Libel is concerned with the meaning of words. Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words should bear different meanings to different men and that more than one meaning should be "right" conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the "right" meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the "right" meaning by the adjudicator to whom the law confides the responsibility of determining it. That is what makes the meaning ascribed to words for the purposes of the tort of libel so artificial. 62 Lord Justice Diplock further observed in Slim v Daily Telegraph at 173: Where as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is "the natural and ordinary meaning" of words in an action for libel. 63 This single meaning rule is also entrenched by High Court authority: see Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 per Brennan J at 506, Gibbs CJ, Stephen and Wilson JJ agreeing. The rule is a deeply rooted principle of defamation law, reflecting the fact that the tort is complete upon publication. Disparagement of reputation is the essence of an action for defamation: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 per French CJ, Gummow, Kiefel and Bell JJ at [32]. No proof is required that any person subjectively understood the defamatory meaning alleged. Rather, the tort is founded upon the meaning of a publication by reference to the objective standards discussed in the authorities, comprehending all aspects of a person's standing in the community: Radio 2UE at [36], [39]-[40]. Defences of truth, both at common law and in the Defamation Act, are of confession and avoidance. They proceed upon the basis that the Court has first made findings as to what defamatory imputations were conveyed by a publication. At that point, the onus is on the publisher to prove the substantial truth of each pleaded meaning found to have been conveyed. Section 25 of the Defamation Act makes this explicit by attaching the justification defence of truth to the defamatory imputations complained about. 64 The single meaning rule has also been characterised as being necessary in order to balance the competing interests of freedom of expression and protection from damage to reputation: Ten Group Pty Ltd v Cornes [2012] SASCFC 99; 114 SASR 46 per Kourakis CJ at [45-[46], [49]-[50]. That balance is to be struck in the putative shoes of an ordinary reasonable person as a reader, viewer or listener, which encourages avoidance of the lawyer's fondness for precision and careful reasons in favour of a general impression and understanding gleaned from the words used. The phrase "ordinary reasonable person" will be used in these reasons to refer to the putative person used to gauge whether a pleaded imputation has been conveyed: see Trkulja at [32] as reproduced above. 65 It is therefore important that a judge as the tribunal of fact keeps steadily in mind the content of the obligation to consider imputations from the perspective of the ordinary reasonable person, eschewing the training and practice as a lawyer and the ordinary application of those skills. 66 In aid of how best to carry out the task of ascertaining the single meaning of a publication that has the diverse characteristics of being both online and of some length, in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 77 ALJR 1657, McHugh J (in dissent in the result as to whether a jury erred in finding imputations conveyed, but not as to principle) observed at [26] (footnotes omitted): However, although a reasonable reader may engage in some loose thinking, he or she is not a person "avid for scandal". A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If "[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together." But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. 67 In Rivkin, Callinan J observed in part of [187]: It is true that an article has to be read as a whole. But that does not mean that matters that have been emphasized should be treated as if they have only the same impact or significance as matters which are treated differently. A headline, for example, expressed pithily and necessarily incompletely, but designed to catch the eye and give the reader a predisposition about what follows may well assume more importance than the latter. 68 The weight to be given to headings and subheadings, especially at the commencement of an article, may be seen to have somewhat greater force in an online article, being more likely to be read on a portable device of some kind than on a desktop computer and being more likely to be given greater weight and attention. 69 While the need to read the publication as a whole remains as a matter of law, as a matter of common sense, the level of consideration and absorption of detail is likely to be less as the reader progresses further into an article. That is especially so when there is the visual attraction, and interruption, of both photographs and images that form part of the article, and advertising and other images distracting from it. 70 Thus, the single meaning rule precludes relying upon a meaning that some ordinary reasonable persons, but not others, would perceive as being conveyed. The necessary and indispensable fiction required by the law is to arrive at only one "right" meaning. If that single meaning does not accord with the pleaded imputation, that imputation is not conveyed. Thus, it is possible for a part of a publication taken in isolation to convey a defamatory meaning in accordance with a pleaded imputation, but for that imputation not to be conveyed by the overall effect of that publication as a single meaning. 71 That does not mean that inconsistent meanings cannot be pleaded, but they may overtly or in practical terms be in the alternative. In Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; 271 FCR 632, the Full Court set out the following formulation of how the single meaning of a publication may impact if a pleaded imputation is thereby conveyed (citations included): [32] … The issue at trial is the single meaning that an objective audience composed of ordinary decent persons should have collectively understood the matter to bear. [33] What we have said above in relation to a single meaning should not be understood as saying that an applicant is precluded from alleging more than one imputation. An applicant may allege that a published matter conveys two or more distinct defamatory imputations, and may allege imputations in the alternative (Federal Court Rules, r 16.06), and subject to any defences, will succeed if one or more of those imputations is found to be conveyed. But in evaluating whether any individual imputation is conveyed, an applicant is precluded from succeeding merely because a substantial number or proportion of persons in the audience would have understood the words to have that defamatory meaning: Ten Group Pty Ltd v Cornes [(2012) 114 SASR 46] at [193] (Blue J). 72 Ms Molan adopted this formulation in her written submissions, and added that the effect of this was that her "pleaded imputations fix the meaning of the matter for the purposes of the defence of justification, because if the Court is required to consider the defence it will have already found that the applicant's imputations are conveyed". 73 Dailymail.com also adopted this formulation in their written closing submissions, but sought to use it to demonstrate how this rule as applied to the current facts meant that certain imputations from the 5 June online article could not be made out. It also submits that "truly inconsistent meanings cannot both be found to be conveyed by the same matter".

Truth defence 74 Section 25 of the Defamation Act provides: It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. 75 That defence must fail unless all defamatory imputations carried by the matter complained of are proved to be substantially true, because the defence operates on an all or nothing basis: Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547 per Meagher JA at [38] and per Gleeson JA at [96]. As Dailymail.com does not plead a defence of truth for the 1st imputation, and does not press the pleaded defence of truth for either the 3rd imputation or the 4th imputation, truth cannot be a defence to the 5 June online article. However, substantial truth established for an imputation that has been conveyed and is not otherwise the subject of a successful defence may be relied upon in mitigation of damages.

Contextual truth defence 76 Section 26 of the Defamation Act provided as at June 2020 and until 30 June 2021: It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 77 I note for completeness, although having no bearing on this case except to limit its future application, that the wording of s 26 changed on 1 July 2021 to read as follows: (1) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter carried one or more imputations that are substantially true (contextual imputations), and (b) any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. (2) The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains. 78 As was stated in Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; 91 NSWLR 341 per McColl JA (with whom Macfarlan JJA and Sackville AJA agreed): "the purpose of the contextual truth defence is better expressed more broadly, namely that a plaintiff should 'not be able to avoid serious stings in defamatory matter by selective pleading' " (quoting from Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157 at [85]). This does not require the pleading of contextual imputations that not only differ in substance, which is required, but also that they differ in kind, which is not required: see [70]-[71], [112], [114]. 79 The requirement that a contextual imputation be different in substance to a pleaded imputation has a lineage traced back to the former Defamation Act 1974 (NSW), but is also supported by the phrase "in addition to the defamatory imputations of which the plaintiff complains" forming part of s 26 until 1 July 2021: see Zeccola at [43]-[47]. In Domican v Pan Macmillan [2019] FCA 1384, Wigney J observed at [33]: One way of testing whether two imputations differ in substance is to consider whether different evidence would be required to justify the different imputations: Singleton v John Fairfax & Sons Ltd (unreported, Supreme Court of New South Wales, Hunt J, 20 February 1980); Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312 at [11]-[12]; Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [45]. The evidence that would be required to prove the substantial truth of an imputation that the applicant was a violent criminal who took part in gang wars would be different to the evidence that would be necessary to prove the substantial truth of the imputation that a person was a violent criminal. To use the example given earlier, while evidence which proved that the person had committed offences of affray or domestic violence would be capable of proving the substantial proof of the latter, it would not be capable of proving the substantial truth of the former.

Honest opinion defence 80 Section 31 of the Defamation Act provided as at June 2020 and until 30 June 2021 (with presently immaterial additions being made to subsection (5) on 1 July 2021, widening the scope of "proper material"): (1) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (3) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (4) A defence established under this section is defeated if, and only if, the plaintiff proves that - (a) in the case of a defence under subsection (1) - the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2) - the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) in the case of a defence under subsection (3) - the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. (5) For the purposes of this section, an opinion is based on proper material if it is based on material that - (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material. 81 While s 31 is directed to the matter complained of - here the 5 June online article - it nonetheless falls to be considered from the perspective of the defamatory imputations found to have been conveyed: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245 per Gummow, Hayne and Heydon JJ at [83]; see also Feldman v Polaris Media Pty Ltd (as trustee of Polaris Media Trust (t/as Australian Jewish News)) (No 2) [2018] NSWSC 1035; (2018) Aust Torts Reports 82-395 per McCallum J at [43] and Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; 387 ALR 123 per Lee J at [130]. Even with the benefit of the prism of the pleaded imputations to identify the aspects that are defamatory and found not to be substantially true, the defence is directed to the substance of what has been conveyed by the publication in the context of the whole, rather than the choice of words pleaded which may not accurately reflect the published language: Harbour Radio v Ahmed [2015] NSWCA 290; 90 NSWLR 290 at [44]. 82 There is no definition in the Defamation Act as to what constitutes an opinion. That is left to the authorities, reflecting established principles of long standing. In John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789, Giles JA observed (emphasis added to the quotation at [25]): [25] The common law position is explained in Gatley, para 12.6 - "12.6 The Distinction. The fundamental rule is that, subject to what is said below, the defence applies to comment but not to imputations of fact. If the imputation is one of fact the defence must be justification or privilege. However, the matter is complicated for two reasons: first, there may be difficulty in distinguishing comment and fact; secondly, a statement of fact which is an inference from other facts stated or referred to may be a comment for the purposes of the defence. Though 'comment' is often equated with 'opinion' this is an over-simplification. More accurately it has been said that the sense of comment is 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.'" (citations omitted) [26] The quotation at the end of this passage is from the judgment of Cussen J in Clarke v Norton [1910] VLR 494 at 499, and his Honour's statement has long commanded acceptance. The learned editors also cite in a footnote to this passage from Mitchell v Sprout [2002] 1 NZLR 766 at [19], "The defence applies where the words appear to a reasonable reader to be conclusionary". [27] There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important. … [30] As can be seen from the illustrations, it will be important to the response of the ordinary reasonable reader whether what is said to be comment is supported by facts presented or indicated in the published matter. In Kemsley v Foot [1952] AC 345 at 356-7 Lord Porter endorsed Odgers on Libel and Slander, 6th ed, 1929 at 166 - "Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful,' this is merely the expression of his opinion, his comment on the plaintiff's conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact." 83 The perspective of the ordinary reasonable person must thus be applied to determine whether the defamatory meaning conveyed is not a statement of fact, but rather an expression of opinion, in the sense of being, or being akin to, "a deduction, inference, conclusion, criticism, remark, [or] observation". As Gummow, Hayne and Heydon JJ observed in Manock at [36] (omitting footnotes): The question of construction or characterisation turns on whether the ordinary reasonable "recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered" - not "an exceptionally subtle" recipient, or one bringing to the task of "interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at". 84 The easiest way to distinguish between facts and opinion is if the former is stated and the latter overtly follows. However, that conventional case is not necessarily required by the law, and the dividing line between the two may not be easy to discern. What matters is that the defamatory matter is capable as being "recognisable as comment and not as a statement of fact": Manock per Gleeson CJ at [9]. As Gummow, Hayne and Heydon JJ pointed out in Manock at [49]: asufficient linkage between the comment alleged and the factual material relied on can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (ie by "setting it out"); the factual material commented on, while not set out in the material, can be referred to (ie by being identified "by a clear reference"); and the factual material can be "notorious". 85 Just as opinion is not defined, nor is public interest. In a given situation, there may be an important distinction between something that is merely interesting to the public, and something that rises to the level of being "related to a matter of public interest", with only the latter being what is contemplated by s 31(3)(b). As Lee J pointed out in Stead at [141]: Public interest is also not defined in the Act and the parties accepted that it is not a concept susceptible to comprehensive definition, and may constitute an infinite variety of matters: John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 (at [8] per Ipp JA). Given there is no bright line, it amounts to an evaluative assessment; but in making the assessment there are, at least, some guideposts. In Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; 135 ALR 368, Dawson, McHugh and Gummow JJ suggested (at CLR 221; ALR 397) that the question was whether the claimant was engaged in conduct which "inherently, expressly or inferentially, invites public criticism or discussion". But Brennan CJ and Gaudron J considered that this formulation was too narrow (at CLR 193, 240-2; ALR 375, 412-14) and referred to the statement by Lord Denning MR in London Artists Ltd v Littler [1969] 2 QB 375 at 391; [1969] 2 All ER 193 at 198 that the concept of the public interest should not be confined within narrow limits, and that anything which is "such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on" is a matter of public interest. 86 Section 31(5) reproduced above relevantly defines the "proper material" upon which an opinion must be based (noting the scope of such material has since been enlarged with effect from 1 July 2021). In this case, that is confined to whether the material relied upon as proper material is "substantially true" per s 31(5)(a), in turn defined in s 4 as "true in substance or not materially different from the truth". 87 Hunt J observed in Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 492A: the material upon which a comment is based is that upon which it purports to be based, in the sense of that which the ordinary reasonable reader would have understood from the matter complained of to have been intended by the author to be considered as the basis of [the] comment. 88 There is no test of reasonableness or rationality in basing the opinion upon proper material. All that matters is that the comment be fair, in the sense of being honest, rather than necessarily being reasonable. As Hunt J pointed out earlier in Bickel at 487: The law does not require such comments when published to be fair to the author or to be objectively correct. The law permits comments to be published which have been written by people who are biased and by those who are prejudiced, provided only that they honestly hold the opinions expressed or, to use the words of the statute, provided that the comment represents the opinion of the defendant. The justification for this law is that the book is within the public domain and theoretically the readers of the published criticism may purchase the book in order to judge for themselves how far the critic's opinion is well founded: Kemsley v Foot [1952] AC 345, at p 356, per Lord Porter, quoting from Odgers on Libel and Slander (1929) 6th ed, at p 166. 89 However, if any expressions of opinion otherwise demonstrated cannot be shown to be only based upon proper material, then reasonableness is required in relation to partial reliance upon such material: s 31(6). That is, the effect of s 31(6) when relied upon is that the opinion does not have to be based upon facts that are true, provided it might reasonably be based on proper material. As Hunt J observed in relation to the distinction between a comment based wholly on proper material, and a comment not shown to be so in Sims v Wran [1984] 1 NSWLR 317 at 325B-D (emphasis in original): The difference between an opinion which might honestly be held upon certain material and that which might reasonably be held upon more circumscribed material may be substantial indeed. Despite a perhaps unwise choice of language in some of the older cases (of which some are quoted in Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 715, 716), the emphasis in relation to the common law defence of fair comment has always been that a commentator is entitled to express his honest opinion, whether or not that opinion is one which would reasonably have been based upon the same material: Turner's case (at 461). The same distinction between a particular person's subjective belief and the objective standard of reasonableness has been drawn in other fields of endeavour - notably in the criminal law, in relation to the issue of self-defence: Viro v The Queen (1978) 141 CLR 88 at 140. The introduction of the concept of reasonableness in lieu of that of honesty as the test to determine whether a particular statement is a comment places a far greater burden upon the defendant in establishing his defence. That greater burden was no doubt intended by the legislature to offset the advantage which the statutory variant gives to the defendant by permitting the continued availability of the defence of comment notwithstanding the defendant's failure to establish the truth or the existence of the whole of the material upon which his comment was based. 90 It should be noted for completeness that the Defamation Act 1974 (NSW) in force at the time that both Bickel and Sims were decided did not have a definition of "proper material" and also made the imputation, rather than the matter complained of, the basis of the cause of action. 91 If the defence is successfully engaged, Ms Molan can defeat it by proving Dailymail.com had reasonable grounds to believe that the opinion was not honestly held by a commentator it relies upon: s 31(4)(c).

1st imputation: The applicant, having deliberately mocked the names of Pacific Islanders on air, then lied about it by falsely claiming she was referring to an "in-joke" between her and her co-hosts on the commentary team 92 Ms Molan breaks the 1st imputation into two elements in order to identify the particular paragraphs relied upon in addition to the article being read as a whole, slightly recasting the language of the pleaded imputation for this purpose: (a) deliberate mocking of the names of Pacific Islanders on air: [1]-[2], [4]-[5], [8], [12], [14]-[15], [24], [27], [28]-[29], [33], [67]-[69]; and (b) lying about this by falsely claiming it was a reference to an "in joke": [2], [6]-[8], [11]-[12], [21], [34], [38], [41], [65]. 93 Ms Molan acknowledges there is an element of tautology in the mocking aspect as pleaded, because it is difficult to see how mocking can be other than deliberate. Her point is that the effect of the individual paragraphs identified, as well as the effect of the article overall, is to portray her as having mocked the names of Pacific Islanders during the 14 second segment and that this mocking was not inadvertent on her part. The article was attributing this to the "Hooka, Looka, Mooka, Hooka, Fooka" statement in the context of her co-host, Mr Levy, referring to the rugby league commentator Mr Chris Warren getting ready for the football game by "running through all the pronunciations", in context, of the names of rugby league players. 94 Dailymail.com takes the position that the 1st imputation is not conveyed, and does not plead the defences of justification by reason of substantial truth. However, Dailymail.com does plead a defence of contextual truth in answer to all eight imputations. Dailymail.com raises the question of whether the imputation goes further than what is able to be found in the express words used and implications and inferences reasonably able to be found. The express words in the 5 June online article clearly and expressly convey that Ms Molan mocked the names of Pacific Islanders on air, and also that this was deliberate. Dailymail.com does not deny this and in fact asks the Court to find that this occurred as a matter of fact, an issue to which I return below. The contentious aspect is how the article is said to have conveyed that she lied about having mocked the names by making a false claim about the joke. Dailymail.com contends that such a meaning is not there to be found. 95 The express words also convey that Ms Molan was making a claim that she was referring to a joke between her and her co-hosts on the commentary team, which is set out in detail in the 5 June online article at [42]-[59], and to that extent that it was not just a joke, but an "in" joke. 96 Ms Molan's argument for it being implied that she had lied about what she had said being part of a joke specifically relies upon: (a) the use of the word "claimed" in the fourth dot point after the heading at [2] and again at [6]; (b) the references to that claim being made despite the other co-hosts remaining silent, also at [6]; and (c) the description of the reaction of the other co-host, Mr Brohman, in saying "What? I'm not sure what she said there", recorded at [7]. 97 Ms Molan's argument also relies specifically upon [8], [11]-[12], [21], [34], [38], [41], [65] and more generally upon effect of the entire article. 98 A number of those specific paragraphs might be seen to cut both ways. They may tend to suggest that the explanation was untrue. They may also suggest that it was an insufficient explanation to say it was a joke, in that it does not excuse such behaviour; and that there was nothing funny about engaging in such behaviour: see in particular [8], [11]-[12] and [21]; see also [24] (second tweet reproduced) and [33] and perhaps also [38]-[39]. At least some of the persons whose reactions were reported upon did not in terms dispute that the explanation given was genuine, but rather considered it not to be a good enough reason to engage in such behaviour. 99 The further passages that support the implication that Ms Molan relies upon are as follows: (a) [34] describes Ms Molan's explanation as "now you pull this bs", that is "bullshit", the overall phrase constituting a colloquialism for something that is emphatically regarded as not telling the truth (ie, "that is complete bullshit", as opposed to merely spinning a yarn or some lesser implication, ie, "you are a bullshit artist"). It is a phrase that is likely, if read even casually, as being at the less benign end of the colloquial spectrum. (b) [38] records a comment (verbatim) "You don't get to make fun of our names and pretend its all in good fun", with the word "pretend" tending to imply falsity, not just inadequacy. (c) [41] records Ms Molan having "no idea why no-one laughed, and suggested that they were distracted by the busy studio", clearly enough referring to her co-hosts' supposed lack of a humorous reaction, and clearly enough tending to imply that the explanation given of a joke was not true because of the reason being implicitly lame given the lack of such a reaction. (d) [65] repeats the substance of [41], but as a caption to a photograph of Ms Molan. 100 While there are factors which point in other directions to that asserted by Ms Molan, I must arrive at a single meaning. I consider that the way in which an ordinary reader would most likely comprehend the story being told, being more ready to read between the lines and draw more damaging inferences than a lawyer closely analysing the twists and turns of language, was that Ms Molan was deliberately giving a false explanation for what she had said. I also conclude, even assuming (rather than accepting at this stage) that it was true, that the article conveyed that this was not a good enough reason for engaging in such conduct. This does not involve two different meanings about the same aspect, but rather two different aspects with different meanings. As a deliberately false explanation is not in substance different from a lie, I am satisfied that the 1st imputation is in substance conveyed.

2nd imputation: The applicant is so callous that, having deliberately mocked the names of Pacific Islanders on air, she then refused to apologise despite the offence she had caused the Polynesian NRL community and their cultural history

7th imputation: The applicant is so callous that, having deliberately used an accent to mock the names of Pacific Islanders on air, she then refused to apologise

8th imputation: The applicant is so callous that, having deliberately used an accent to mock the names of Pacific Islanders on air, she then refused to apologise 101 Ms Molan breaks these parallel imputations into three elements in order to identify the particular paragraphs relied upon in addition to the 5 June online article being read as a whole, again slightly recasting the language of the pleaded imputation for this purpose: (a) deliberate mocking of the names of Pacific Islanders on air: [1]-[5], [8], [12], [14]-[15], [24], [27], [28]-[29], [33], [67]-[69]; (b) so callous she refused to apologise: [1], [34], [40]-[42]; and (c) offence she had caused to Polynesian NRL community and their cultural history: [1], [2], [4], [8]-[12], [16]-[17], [21], [24], [26], [31]-[33], [62]-[63]. 102 As for the 1st imputation (having deliberately mocked the names of Pacific Islanders on air, then lied about it etc), Ms Molan argues the phrase "having deliberately mocked the names of Pacific Islanders on air" was conveyed by the 5 June online article, the 5 June tweet and the 6 June tweet. Dailymail.com does not seriously contend otherwise given that is the burden of what was expressly stated. Dailymail.com also does not take issue with those three publications conveying that "she then refused to apologise", that also being expressly stated. However, Dailymail.com denies that any of those three publications conveyed that Ms Molan was "so callous". It argues instead that the thrust of the strong criticism set out in the 5 June online article did not suggest she was callous, and that it only conveyed than that she failed to understand the gravity of what she had done and the hurt that she had caused. Expressed in this way, the live issue is the implication to be drawn about her attitude or stance as to what she was accused of doing, and concerning the reported refusal to apologise. 103 Dailymail.com correspondingly submits that the 5 June tweet and the 6 June tweet would not cause a reasonable reader to make what it characterises as an unreasonable leap that Ms Molan's motivation in refusing to apologise was callousness. 104 The burden of Ms Molan's counter argument is that the "callous" aspect is not a wholly separate element, but rather flows from the whole meaning to be given to all three publications, especially the 5 June online article. She argues that this is to be derived from the asserted refusal to apologise in circumstances in which there has been a deliberate mocking. Put another way, Ms Molan argues that once the balance of the imputation is conveyed, this impression or implication arises out of the composite meaning conveyed by the whole of the publication. It may immediately be observed that this way of approaching the 5 June online article is helpful for Ms Molan's case, but falls flat when it comes to the 5 June tweet and the 6 June tweet due to the absence of additional published material to rely upon. 105 There is not much of a composite meaning of this kind to be derived from either of the tweets, neither of which contain much, if anything, beyond the balance of the imputation pleaded for the 7th imputation and the 8th imputation. Ms Molan contends the balance of the imputation is enough. However, even taking Ms Molan's argument at its highest, taking into account the likely weight of the word "refused", and having regard to the further discussion about "callous" below, I am unable to be satisfied that an ordinary reasonable reader of either tweet would draw an implication of her having any such state of mind, such as being callous, in refusing to apologise arising from no more than the balance of the imputation. More is needed. Those pleaded imputations go further than is reasonably possible for the two tweets to convey as to this indispensable aspect of the sting alleged. 106 Further, there is an additional indispensable aspect of the 7th imputation that cannot be sustained, being that the mocking was of the names of Pacific Islanders. That additional aspect was expressly present in the 6 June tweet, but wholly absent in the 5 June tweet. Accordingly an ordinary decent reader of the 5 June tweet could not reasonably form the view that the mocking concerned the names of Pacific Islanders among the other NRL players being at least implicitly referred to, such that this imputation cannot be said to have been conveyed, that being a difference in substance. No such problem exists for the 8th imputation arising from the 6 June tweet because it is an express component of that publication. 107 For the above reasons, I am not satisfied that either the 7th imputation or the 8th imputation were or are conveyed. 108 Returning to the 2nd imputation, there is more work to be done in considering the impact of the 5 June online article, while being careful not to fall into the lawyer's trap of overworking things in the search for a single meaning in a way that no reasonable ordinary person would be likely to do. 109 The Macquarie Dictionary defines callous as meaning "hardened" and "hardened in mind, feelings, etc". Keeping steadily in mind the limitations on the use of a dictionary to determine whether an imputation has in fact been conveyed, I would comprehend the ordinary meaning of "callous" as being slightly extended beyond that defined meaning to include being insensitive, not caring, or having a cruel disregard for the effect of behaviour on others. While this all suggests a lack of sympathy it does not necessarily import an intention to have such an effect. It suggests that someone has done something wrong, and despite being aware of that, does not care or is not willing to make amends. To say someone is callous is therefore in the nature of an adverse reflection on an attitude to the impact of one's own conduct. In this case, Ms Molan says that the imputation of callousness in the 5 June online article comes from the description of using an accent to mispronounce names, and a strong emphasis on the refusal to apologise. 110 The refusal to apologise is raised in the headline to the article at [1], and is contrasted against the assertion that this has taken place "as Pacific Islander women slam her for being 'complicit in racism' by mocking their names". This immediately conveys an attitude accompanying that asserted refusal, and at least insensitivity in refusing to apologise. It therefore does tend to convey at least a degree of callousness. I note that this is stronger language than contained in the 5 June tweet or 6 June tweet. 111 The paragraphs which reinforce this impression are: (a) [34], as considered above in relation to the 1st imputation, which describes Ms Molan's explanation as "now you pull this [bullshit]", which in this context not only casts doubt on the truthfulness of the explanation but also her insensitive attitude to her conduct; (b) [41], which records Ms Molan as having " 'no idea' why no-one laughed, and suggested that they were distracted by the busy studio", which in this context again not only casts doubt on the truthfulness of the explanation but the insensitivity of her attitude to her conduct; and (c) [54]-[55], which juxtaposes Ms Molan conveying support for the protesters about the murder of George Floyd with the asserted refusal to apologise, implying awareness of "racial insensitivity" when it suits her and therefore insensitivity when it did not suit her. 112 I am therefore satisfied that 2nd imputation is conveyed, but at the lower end of the spectrum of callousness identified above, being more in the nature of accused of being insensitive than anything more serious. It is a less damaging imputation than the alternative, but I accept that it is encompassed within the scope of callousness.

3rd imputation: The applicant's inability to pronounce the names of Polynesian NRL players is so disrespectful and incompetent that she is unfit to be an NRL commentator 113 Ms Molan breaks the 3rd imputation into two elements in order to identify the particular paragraphs relied upon in addition to the article being read as a whole, again slightly recasting the language of the pleaded imputation for this purpose: (a) the inability to pronounce the names of Polynesian NRL players: [9]-[10], [21],[24]-[25], [31]-[33], [36]; and (b) being so disrespectful and incompetent that she is unfit to be an NRL commentator: [9]-[10], [24]-[25], [31]-[33]. 114 Dailymail.com submits that the 5 June online article does not convey that Ms Molan had an inability to pronounce the names of Polynesian NRL players, but rather that she made a jibe relying upon a conscious mispronunciation. Put another way, the burden of this submission is that what is conveyed is not that she cannot pronounce the names, but rather that she mocked them by merely pretending not being able to do so. In closing written submissions for this, and the following 4th imputation, Dailymail.com enlarges upon that argument by reinforcing the obligation imposed upon the Court of arriving at a single meaning derived from reading the entire article in the shoes of an objective audience comprising ordinary decent persons and their collective understanding. Thus, truly inconsistent meanings cannot both stand. 115 As this argument is developed, Dailymail.com points out that Dr Tiatia-Seath at [9] is recorded as saying that commentators not being able to pronounce Polynesian names when they comprise about 45% of NRL players was unacceptable. This was in the context of the mispronunciation being excused as a joke. Dailymail.com submits that it would be a strained and unreasonable interpretation to view that statement as conveying any actual inability to pronounce the names. Dailymail.com also submits that references to "jibe", "outburst" and "mocking" are also inconsistent with any genuine inability to pronounce the names. 116 It is not apparent to me why such an inconsistency arises, or would arise in the mind of an ordinary reasonable person. I am unable to accept that a person may not mock or make a jibe about the pronouncing a name from both the position of in fact being able to do so, and in fact being unable to do so. If anything, the latter is more likely, being a deflective response to an inability to pronounce it, perhaps to justify a personal failing. 117 A further problem with Dailymail.com's argument is that it calls for a more sophisticated and lawyer-like binary interpretation of what is being conveyed by the 5 June online article. An ordinary reasonable reader could fairly comprehend that what is being conveyed is that either Ms Molan cannot pronounce the names, can pronounce the names but chooses not to do so by instead mocking them, or both cannot pronounce the names and is mocking or making a jibe about the difficulty in doing so. In my view, the first and second interpretations are the most complicated and therefore least likely for an ordinary reasonable person, whereas the most readily available imputation is the last: both an inability to pronounce and a mocking of the difficulty in doing so. Understood in that way, this part of the pleaded imputation is part of what is conveyed, with the wider context not being essential. 118 There is no serious dispute that the second aspect of being so disrespectful and incompetent as to be unfit to be an NRL commentator is conveyed, given that it is very close to several statements from the article, including: (a) Dr Tiatia-Seath being reported as saying it was unacceptable that an NRL commentator not to be able to pronounce the names of Polynesian players, and was part of their role ([9]-[10]); and (b) Ms Aualiitia's tweets being reproduced in which she states in part that Ms Molan works in rugby league, there was a lot of Pacific players, and it was part of her job to say these names and to do the work to get this right ([24]-[25], repeated at [31]). 119 It follows that I am satisfied that the 3rd imputation is conveyed.

4th imputation: The applicant is such an arrogant woman of white privilege that she has refused not only to learn how to pronounce the names of Polynesian NRL players but also to apologise for deliberately mocking them on air 120 Ms Molan breaks this imputation into four elements in order to identify the particular paragraphs relied upon in addition to the article being read as a whole, again slightly recasting the language of the imputation for this purpose: (a) arrogant woman of white privilege: [23], [30], [36]-[39]; (b) refused to learn how to pronounce the names of Polynesian NRL players: [9]-[10], [21],[24]-[25], [31]-[33], [36]; (c) deliberately mocked those names on air: [1], [2], [4], [5],[8], [12], [14], [15], [24], [27], [28]-[29], [33], [67]-[69] (d) refusal to apologise for that mockery: [1], [34], [40]-[42] 121 Dailymail.com takes issue with the 5 June online article conveying either that Ms Molan was arrogant or that she refused to learn how to pronounce the names of Polynesian NRL players, being (a) and (b) above, apparently not taking issue with (c) or (d) being conveyed. As to the latter two aspects, both are conveyed for the same reasons set out in relation to the 1st imputation and the 2nd imputation. 122 The argument that it was not conveyed that Ms Molan was arrogant depends upon there being no overt or express statement to that effect, and there being an insufficient basis for that to have been implied. It is advanced by Ms Molan that this is conveyed as a logical extension to the overt references to white privilege, in the context of the rest of the article. 123 There were no substantive submissions on how "arrogant" should be understood. I am satisfied that the ordinary meaning when describing someone as arrogant is that they in some way express or convey an excessively high opinion of themselves, and may also convey that such an opinion is beyond what is justified. The question is whether that is part of the sense of what is conveyed about Ms Molan by the 5 June online article. 124 Ms Molan submits that, within the context of the 4th imputation, that privilege "doesn't seem to mean simply fortuity but some sort of misuse of that position". Later, in relation to the 6th imputation, but also relevant to this imputation, Ms Molan further submits that what the article was saying is that Ms Molan "is a woman who with this unshakeable privilege from her whiteness, [who says] she's able to emphasise with the people, but not really". 125 Saying that someone is privileged is different from an assertion that they are arrogant. Further, I do not accept that an ordinary person would understand that saying that someone is privileged is inherently a slight which implies misuse of that position. Context is all important. An ordinary person can understand that someone (or even themselves) may or may not be privileged for any number of reasons without necessarily taking that next step of attaching some negative or positive characteristic to that objective fact. It is true a person may be criticised for a state of mind, or actions or omissions which may be rooted in privilege. I also accept that in the modern era there is a greater understanding amongst the general populace of structural societal matters which either grant or withhold privilege. But privilege is not of itself a positive or negative term, and is only a prism through which to understand a person's life experience, derived from the factual circumstances of their life. Any negative connotations can only be achieved with further elaboration. This necessary further elaboration has occurred in the 5 June online article. It is clear that Dailymail.com has sought to attach matters in the article to the term "white privilege" which would convey the imputation of arrogance. 126 This is particularly clear in the paragraphs where Dailymail.com refers to the tweets of Ms Aualiitia, saying that she "criticised Molan for her 'white privilege'." At least in the tweets extracted in the article, Ms Aualiitia herself never uses the words 'white privilege'. Her criticisms of Ms Molan seem purely directed at questions of her professional competence and a lack of understanding of the importance of names in Pacific Islander culture. So it is clear that the 5 June online article has sought to cast these statements in a particular light and convey that these criticisms of Ms Molan are rooted in her white privilege, and that she is so arrogant that she does not consider she needs to perform adequately in this respect in her employment. 127 The other tweets quoted in the article set out similar criticisms to Ms Aualiitia's. The tweets say, among other things, that Ms Molan should apologise for her statement; that there is no excuse for making fun of Pacific Islander names; that in the current era a person should know better than to do so; that Ms Molan should not be employed as a football commentator if she makes fun of Pacific Islander names; and, that doing so is "peak white privilege". Once again, by the listing of actions which may fall within the spectrum of behaviour which an ordinary person would consider to be arrogant, and that arrogance being linked to Ms Molan's white privilege, the imputation is clearly conveyed. 128 I therefore consider that these aspects of the imputation are conveyed by the references to white privilege, in the context of that being said to be the reason behind Ms Molan mocking and refusing to apologise. 129 As to whether the 5 June online article also conveys that Ms Molan refused to learn how to pronounce the names of Polynesian NRL players, the reasoning on this topic in the above consideration of the 4th imputation in relation to the parallel concept of inability to pronounce the names of Polynesian NRL players. While refusal to learn is a step further, it is a small step, especially given the reproduction of Ms Aualiitia's tweets at [24]-[25] and [31] about Ms Molan needing to do the work to get the correct pronunciation. I am satisfied that a refusal to learn how to pronounce the names of Polynesian NRL players is also conveyed. 130 It follows from the above conclusions that I am satisfied that the 4th imputation is conveyed.

5th imputation: The applicant cynically used George Floyd's death to promote herself as sympathetic to Black Lives Matter protests against racism and inequality even though she had deliberately mocked the names of Pacific Islanders on air 131 Ms Molan breaks this imputation into two elements in order to identify the particular paragraphs relied upon in addition to the article being read as a whole, again slightly recasting the language of the pleaded imputation for this purpose: (a) Ms Molan had used George Floyd's death to promote herself as sympathetic to Black Lives Mater protests against racism and inequality: [18]-[19], [28]-[29], [55]-[56], [60]-[61]; (b) even though she had deliberately mocked the names of Pacific Islanders on air: [1], [2], [4], [5],[8], [12], [14], [15], [24], [27], [28]-[29], [33], [67]-[69] 132 The above summary omits the word "cynically", used to elevate substantially the sting of the imputation, yet that is the key element in dispute. Dailymail.com submits that cynicism does not arise from the 5 June online article, but hypocrisy does. A part of the argument for this is that any inconsistency between the sentiment expressed by an Instagram post in support of those protesting about the murder of George Floyd (that is, the Black Lives Matter protests), and the description of what Ms Molan said in the segment during the course of the radio program, cannot be taken to be cynicism because the 5 June online article is referring to the broadcast on Saturday, 30 May 2020, while the Instagram post is later, on Wednesday, 3 June 2020. Thus, it is argued that there is absent a temporal connection between the two that is necessary to convey cynicism. 133 I am unable accept that argument. It suggests a degree of analysis that is too much to attribute to the ordinary readers of an online article, necessarily read on a screen of some kind. In any event, the juxtaposition does not have to be strictly temporal in order to convey such a degree of inconsistency of behaviour as to constitute cynicism. What matters is inconsistency. That is reinforced by the placement of Ms Molan's Instagram post in the 5 June online article, appearing as it does immediately after the detailed account of the joke explanation said to have been given by her. This has the immediate effect of the explanation of a joke being juxtaposed with the Instagram post, contrasting the two unfavourably, and to that extent adding to the impression of inconsistency that can be taken to amount to cynicism. This reading is aided by the prior references at [28], [29] and [37] to the same contrast, to false morality, and to using proximity to "Brown NRL bodies" as an excuse to make a joke at their expense. While the 5 June online article also conveys hypocrisy, the two concepts are not necessarily inherently incompatible or inconsistent, and are not inconsistent in this context. In my view the 5 June online article conveys both, and therefore necessarily conveys cynicism. 134 The second aspect of having deliberately mocked the names of Pacific Islanders on air has been dealt with in some detail above and is plainly conveyed for the reasons already given. 135 It follows that I am satisfied that the 5th imputation is conveyed.

6th imputation: The applicant is a racist 136 In order to address this imputation, the parties presented conflicting arguments as to how the Court should arrive at the meaning of the word "racist", and thereby its effect on the competing cases overall, rather than being confined to the 6th imputation. However, I am presently concerned with the application of those arguments to the sole question of whether the pleaded imputation was conveyed, even if the conclusions I reach are also relevant beyond that if that state of satisfaction is reached. 137 The first issue raised by the competing submissions concerns the appropriate general approach to be given to the meaning of an imputation of being "a racist". Ms Molan contends that this calls for an evaluative assessment, raising the question of contemporary general community standards, not sectional standards, citing the trial judgment in Trad v Harbour Radio Pty Ltd [2009] NSWSC 750 (Trad Trial Judgment) at [14], [16] and [20]. The trial judge, McClellan CJ at CL, applied Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506-7 in reaching that conclusion, but only after a jury had found certain imputations had been conveyed. McClellan CJ at CL made the following detailed observations of general application and of considerable utility to the present issue: [12] In most cases where a court is required to determine questions of fact, including whether or not an imputation is true, the answer will be reached by consideration of relatively uncomplicated issues of primary fact. Where a defendant pleads that a plaintiff has committed a crime the court will be required to determine whether the alleged event occurred. Where the imputation consists of conduct which can be measured against an identifiable social or professional standard, for example, whether the plaintiff was negligent, the court will apply its understanding of the appropriate standard to resolve that issue. [13] A number of the imputations pleaded in the present case raise relatively straight forward factual questions. However, imputation (g), that "the plaintiff is a disgraceful individual" raises questions of some complexity. [14] The Macquarie Dictionary meanings of the word "disgraceful" include "shameful", "dishonourable" and "disreputable". In the present context the plaintiff's conduct must be assessed having regard to general community standards which exist in the Australian community. It will be immediately obvious that conduct which would lead the ordinary person to describe an individual as "disgraceful" at some point in history may not make that person disgraceful at some other time in history or in a different society. It is not difficult to identify conduct which illustrates this proposition. No doubt in the 19th century a woman who had a child out of wedlock would have been considered disgraceful. This would not be the case today. A woman wearing a bikini in public before World War 2 would have been considered disgraceful but such costumes are generally worn by women on beaches today. Standards of dress which would have been considered disgraceful in the 19th century, such as women wearing trousers, have become accepted as the norm in the present day. Family or living arrangements which would have been considered disgraceful in the past, such as inter-racial or same sex relationships, and the cohabitation of unmarried couples are no longer perceived as dishonourable. The content of certain literature or films which was considered to be disgraceful in the early 20th century including D H Lawrence's novel, Lady Chatterley's Lover, would not be generally described in that manner today. [15] The question whether a plaintiff is a disgraceful person raises issues which are analogous to those that arise when the question is whether a particular imputation is defamatory. In Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506-507B the High Court, Brennan J with whom Gibbs CJ and Murphy, Wilson and Stephen JJ agreed that the defamatory character of an imputation was to be determined by "hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation that they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation." Brennan J with the agreement of Gibbs CJ and Stephen, Murphy and Wilson JJ said that: "the moral or social standard by which the defamatory character of an imputation is determined is not amenable to evidentiary proof; it is pre-eminently a matter for the jury to give effect to the standard which they consider to accord with the attitude of society generally." [16] Importantly the court emphasised that the "defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes." In Radio 2UE Pty Ltd v Chesterton [2009] 8 HCA 16 French CJ, Gummow, Kiefel and Bell JJ confirmed at [43] the point made in Lamb that any standards to be applied must be those of the general community. (However, see also the observations with respect to sectional attitudes in countries such as Australia with an accepted cultural diversity). [17] The defendant submitted that it would be anomalous if the principles governing the question of whether an imputation is defamatory differed from those governing the analogous question of whether an imputation which required an evaluation of the qualities of a person was true. Where, as in the present case, the imputation is that "the plaintiff is a disgraceful individual", the approach of a court should be the same when determining whether the imputation is defamatory and whether it is true. Both questions require the application of general community standards. To my mind this submission should be accepted. 138 Thus, as indicated in [17] of the Trad Trial Judgment reproduced above, the question of whether an imputation is conveyed, and whether that imputation is true, will ordinarily be governed by the same principles when the tribunal of fact is called upon to make an evaluative judgment by reference to community standards. The same is not so readily applicable when the evaluative dimension is absent, such as whether or not an event of a particular kind did or did not occur as imputed, whether on the occasion reported upon, or on another occasion relevantly and admissibly bearing on the imputation in some way, as sought to be proven by a publisher. 139 Ms Molan further relies upon the statement in Harbour Radio Pty Ltd v Trad [2012] HCA 31; 247 CLR 31 (Trad HCA) at [54] and [56], observing that whether the substantial truth of an imputation has been established, which may be seen for present purposes to be somewhat akin to whether an imputation was conveyed when the determination of both questions is evaluative in nature, may depend upon more than primary fact finding. It may require an evaluative assessment, looking to the reaction of an audience "composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who brought to the question their general knowledge and experience of worldly affairs". 140 Dailymail.com submits that this is not an apt approach because the imputation in question in the Trad defamation proceeding was whether certain conduct was disgraceful, whereas, it is said, the imputation closest to this case of inciting racist attitudes was found at trial not to be evaluative in nature. However, that characterisation is apt to mislead. McClellan CJ at CL's reasoning in the Trad Trial Judgment on that imputation was that his Honour was satisfied that Mr Trad, by what he had said as published, held views that were racist and that he encouraged others to hold those views. The published words were overtly racist in nature, such that there was no need for any evaluative process to determine, relevantly, whether the imputation was true. Had the language or conduct proven been less stark, there may well have been a need for an evaluative process. 141 I consider that the 6th imputation of being "a racist" is unavoidably evaluative in this case, because it entails assessing whether the 5 June online article was conveying to an ordinary reasonable person reading that article that Ms Molan had the nature or characteristic of being "a racist", not only that she had said or done something that was able to be perceived as racist behaviour on that occasion. Because that word is not used, because the article is both online and quite lengthy and detailed with a number of themes, because the presumption is that the putative ordinary reasonable person would read all of it, and because of the operation of the single meaning rule, that evaluative exercise, required to be done without the lawyer's penchant for only finding things that are necessary. This exercise, conducted as though I am such a person, is not easy without the discipline of not reading too much or too little into it. 142 At the stage of considering whether any of the pleaded imputations are conveyed, the assessment is confined to the publication sued upon, whereas at the stage of considering the justification defence of truth, the assessment is directed to what is proven about Ms Molan's nature or character. In this case, the latter, if reached, would encompass, but not be confined to, the segment which is the subject of the publication in contest. For its truth defence, Dailymail.com relies upon a range of antecedent conduct in prior broadcasts. However, this conclusion still leaves for determination the benchmarks or standards by which to carry out that evaluation in relation to only the 5 June online article, by putting myself in the shoes of putative ordinary decent persons with their associated characteristics as identified by in Trad HCA. 143 The overall approach Dailymail.com takes is to characterise the case as turning on whether or not Ms Molan's conduct, both as reported upon in the 5 June online article and as established by evidence adduced in relation to prior events, was racist in nature, or involved racism, so as to make her have the characteristic of being an "actual racist", whether or conveyed by one or more acts or utterances, or something more than that. The use of the word "actual" focuses the imputation towards Ms Molan being, not just by words or deeds, but by her very nature or character, "a racist". 144 Perhaps perversely, this approach may be seen to have the practical effect of depending upon the 6th imputation being made out, but being justified, rather than not being made out and the question of justification by way of truth not being reached, as happened in Taylor v Nationwide News Pty Limited (No 2) [2022] FCA 149 at [105] (now under appeal). As that argument is advanced by relying upon the truth defence evidence adduced by Dailymail.com, it is not reached unless and until the 6th imputation is conveyed in the first place. 145 In Dailymail.com's closing written submissions, which were furnished first in time, before answering the question of how the Court may approach the term "a racist", it submits that there are several matters at the core of the determination of this proceeding. Dailymail.com says the Court must: • Consider a core question: was Ms Molan's conduct, as revealed in the evidence, of imitating the manner of speech of minority groups in our society, mocking Polynesian names and retailing stereotypes of Asian women as prostitutes (amongst others), racist? • Consider racism as a broad concept, where an act of racism can harm the social standing or well being that another person or group of persons enjoy, and that any decision on what particular conduct is "racist" is a signal to the wider community about what is acceptable and what is unacceptable; • Consider that racism is not only conduct which is founded on a belief of racial superiority or racial hatred. It may extend to conduct which has the effect of denigrating or humiliating others because of their race. It can be the produc[t] of ignorance or arrogance, and can involve a withholding of sympathy or compassion from those who are subjected to racist behaviour. 146 At least part of the above, especially the first dot point, goes beyond the objective and evaluative assessment of the 5 June online article and what it conveyed, crossing over to material directed to issue of substantial truth if the imputation is conveyed. I therefore presently confine myself to that article. 147 Dailymail.com submits that objectively viewed Ms Molan's conduct was racist, which again blurs the distinction between what she actually did, and what she was reported to have done. It is only the latter with which I am presently concerned for the purposes of determining whether the 6th imputation is conveyed. 148 Dailymail.com places weight on the fact that Ms Molan did not concede any personal wrongdoing in response to evidence which it says would be considered racist by an ordinary reasonable person. It submits that the Court should not hesitate to find that her actions were out of step with community standards. This too goes beyond the publication itself. 149 More directly in response to the question of the definition of "a racist", Dailymail.com suggests that an appropriate benchmark for the purposes of the defence of justification by way of truth is s 18C(1) of the Racial Discrimination Act 1975 (Cth), which refers to it being unlawful to do an act (otherwise than in private) if it is reasonably likely to offend, insult, humiliate or intimidate another person or group of people, and is carried out because of the race, colour, or national or ethnic origin of that person or group of persons. I am unable to accept that such a description of unlawful conduct for the purposes of such a statute, which is not even a definition, can provide any useful guidance in this entirely different context. Even if it did, it would have to apply not just to the defence, but to whether the imputation was conveyed in the first place, with any other approach to such an evaluative exercise being inherently anomalous: see Trad Trial Judgement [17], reproduced above. This reality makes such an approach even less tenable. 150 However, one aspect of Dailymail.com's submissions that I do accept, addressed in their closing submissions in reply, is that racism can occur without intent and can range from being overt, unconscious, or casual. Dailymail.com says that s 18C "acknowledges" this, but I consider that the point more usefully stands on its own as contributing to the modern understanding of how a person may be considered and found to be "a racist", but again bringing that back to what was conveyed, rather than what was actually done. 151 Ms Molan submits that the Court should have regard to appropriate dictionary definitions in considering the formulation of what is "a racist", with the caveat that such definitions are no more than a guide, and cannot constitute anything akin to a binding definition or legal meaning. I prefer the formulation derived by this approach to the approach suggested by Dailymail.com, although it still falls somewhat short of being a course that the Court can readily adopt in any conclusive way, especially in the limited sense submitted by Ms Molan which only considers one dictionary definition. However, I accept that such definitions serve to provide some assistance in grappling with applying the concept embodied in the 6th imputation alleged to have been conveyed by the 5 June online article, and working out what was in fact conveyed as the necessary single meaning. The definition that she advances is as follows, from the Third Edition of the Oxford English Dictionary (for the noun): A person who is prejudiced, antagonistic or discriminatory towards a person or people on the basis of their membership of a particular racial or ethnic group, typically one that is a minority or marginalized; a person who subscribes to the belief that members of a particular racial or ethnic group possess innate characteristics or qualities, or that some racial or ethnic groups are superior to others. 152 Adopting the definition above, Ms Molan says that nothing from her testimony - again departing from the publication - could convey that that she holds beliefs that particular racial or ethnic groups possess innate characteristics or qualities or that some such groups are superior to others. To the contrary, she says that because she spent parts of her childhood in Indonesia, spoke the local language, regarded that country positively, and currently supports charities with a focus on supporting people from different backgrounds, there is positive evidence that she is not a racist. This again is addressing the truth defence, not what was conveyed. 153 The definition relied upon by Ms Molan has been updated in the online version to add the following additional sentence after the text reproduced above, as at March 2022: Also (esp. in early use): a person who is prejudiced, antagonistic, or discriminatory towards a person or people of another nationality. Cf. racialist n. 154 This update highlights the sometimes transient meaning of a word. As Leeming JA pointed out recently in Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 in part of [145]: The words used are not in dispute. Mr Massoud submitted that the phrase had moved into popular parlance, and was not nearly so offensive as her Honour had found. It is true that language changes over time. The (apocryphal) praise of St Paul's Cathedral as "awful, artificial and amusing" (by which was meant awe-inspiring, highly artistic and thought-provoking) is an example: see A Scalia and B Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West 2012), p 78. Words that were once highly offensive may lose their stigma. Conversely, words which were once anodyne may become highly offensive. 155 Words that in one point in time have a particular meaning may evolve to have a very different meaning, a wider or narrower meaning, or even an opposite meaning. The roots of a word may become less important or even lost altogether. By way of further example, the complimentary adjective or verb "sophisticated" is no longer read as having any connection, let alone a connection rooted in meaning, with the pejorative "sophistry", being or akin to being clever but false, yet apparently before the 1800s to describe someone as sophisticated was not to praise them. Many other examples abound, such as "fulsome" originally being pejorative, but now used in Australia as a compliment. 156 Ms Molan relies solely on the Oxford English Dictionary definition above, and says that "other dictionaries have similar definitions". This appears to be largely true, but differences in definitions in mainstream dictionaries do exist. For example, the Macquarie Dictionary online as at 2022 does not have a definition of "racist", but has a definition for "racism" which is then cross-referenced to "racist" as both a noun and as an adjective as follows: noun 1. the belief that human races have distinctive characteristics which determine their respective cultures, usually involving the idea that one's own race is superior and has the right to rule or dominate others. 2. a policy or system of government and society based upon such a belief. 3. behaviour or language based on this kind of belief in relation to a person or persons of a particular race, colour, descent, or ethnic origin, either demonstrating an inherent prejudice without specific hostile intent or, alternatively, intended to offend, insult, humiliate, or intimidate. 4. such behaviour or language used against people of a different nationality. Also, racialism. -racist, noun -racist, adjective 157 The content of both definitions reveals their limitations in relation to this case. However, the Macquarie Dictionary online definition is more nuanced and therefore comes closer to the meaning that I would attribute being given to the word "racist" and the phrase "a racist" by the putative ordinary reasonable reader these days. It goes somewhat beyond the blunter and more obvious forms of adverse differentiation based on race described by the older or more traditional dictionary definitions, but still falls short of capturing the essence of a more modern understanding of the term "racist", and thereby the phrase "a racist", as I would comprehend it. 158 The term "racist", applied both to conduct and to character, may now be understood in general parlance to encompass a wider range of attitudes and behaviours than was commonly the case a generation ago, with a wider range of seriousness and therefore a broader reach. It also allows for greater degrees of gradation of seriousness and the presence or absence of a state of mind, which in turn may have a bearing on the extent of damage to reputation for the purposes of defamation. The practical effect in a given case may mean that an imputation of being "a racist" is both easier to establish, but also is easier to show that it is substantially true. 159 I therefore conclude, adopting aspects of what has been submitted to me by both parties, that to be defamed as being "a racist" may now be considered by the ordinary reasonable person to include it being conveyed, as the single meaning of a publication read as a whole, the attributes of treating or regarding or describing someone, or something about or related to them, differently, generally adversely and in a way that is offensive or otherwise objectionable, because of their race or some feature attributed to their race. As there is no necessity for any particular state of mind, this does not necessarily need to be conveyed, although it may be inherent in what is published and also make it easier for that conclusion to be reached. 160 The question to be determined is whether the 5 June online article conveys the meaning asserted by the 6th imputation, namely that she is "a racist". The application of the single meaning rule means that the 5 June online article must not just be legally capable of conveying that she is a racist - that has never been contested. Rather, that must be the single meaning that it in fact conveys, rather than something less than that, or in some material way different from that. Put another way, it will not suffice if individual parts of the 5 June online article, taken in isolation, convey the imputation pleaded, unless that is also the single meaning conveyed by the article as a whole, from the perspective of an ordinary reasonable person reading it. 161 Ms Molan relies upon the whole of the first matter complained of as conveying this imputation, including in particular [1], [2], [4], [8], [12], [21], [23], [30], [34], [36], [39]. She specifically expounded upon this claim in the following terms: (a) Ms Molan relies on principles summarised in Rush No 7, and notably referred to the propensity of readers to form a predisposition from a headline of an article as to the imputation that could be conveyed. Relevantly the headline and first sentence of the 5 June online article ([1] and [4] of the 5 June online article) contains the words "complicit in racism" and "complicit to racism" respectively. This submission depends upon an ordinary reasonable person reading the word "complicit" beyond its literal meaning of in some way helping or lending support or contributing to, someone else engaging in racism, and meaning that she was "a racist", in the context of the rest of the 5 June online article. Notably, Ms Molan does not place specific reliance on [2] of that article, which provides a prominent overall summary, in bold text dot points, of what she was said to have done, describing her as being slammed for an offensive outburst, the panel discussing pronouncing NRL player names during broadcasts, her having put on an accent and saying "Hooka, Looka, Mooka, Hooka, Fooka", and her claiming this was a reference to a story previously told in April 2020. (b) Ms Molan submits that a tweet quoted in the article at [35] containing the hashtag "#notoracism" also supports the conclusion that the imputation is conveyed. She submits that while the word "racist" is itself not used in the hashtag, and that this may weaken such an imputation, in the context of the whole article this is part of what conveys the imputation. This skips over much of the discussion in the 5 June online article of pronunciation and of the requirements of Ms Molan's job. (c) Ms Molan submits that while a careful reading of the matter would lead a careful reader to conclude that the conduct set out in the article was not actually "very bad", that was not the nature of the article, and that it was not written in the tenor of setting out a cultural debate such that an ordinary person would take that more limited meaning away. I have reservations about describing this impression as being one that would only be arrived at by a careful reading, at least implying it would not be also arrived at by a more impressionistic reading of the 5 June online article. (d) Ms Molan submits that construction of the article was such that it portrayed an unreasonable construction of the broadcasts in relation to the "Warren story" (and also those elsewhere raised in the defence) that would not have occurred to an ordinary reasonable person. It is not clear to me that the construction of the broadcasts, when reporting on Nine Entertainment's explanation, was inherently unreasonable or that this was beyond the scope of the comprehension of an ordinary reasonable person. (e) Ms Molan says that, but for the way in which the 5 June online article is constructed, the imputation that she was "a racist" based on her conduct or her co-commentators' conduct would have only occurred to "someone with an unduly suspicious mind, or someone who has an office of advocacy to discharge". That submission may also be a reason why the 6th imputation may not be conveyed to an ordinary reasonable person. 162 Dailymail.com submits that the imputation of being "a racist" does not arise. It submits that Ms Molan is accused of no more than being "complicit to racism", which is not the same as being an actual racist. It says that the tweets quoted in the article which reference a hashtag "#notoracism" are also insufficient basis to support the imputation that she is an actual racist. This was the extent of the submissions on this point as Dailymail.com focused in large part on the defences to the 6th imputation. 163 The interpretation of the 5 June online article necessarily affects which of the competing public interests of protection of reputation and freedom of speech ultimately prevails, keeping in mind the fact that the first five imputations pleaded have already been found to be conveyed. As noted in several places above, this is not an exercise in assessing or characterising the original conduct by Ms Molan, but rather ascertaining the meaning of what has been said about it in the 5 June online article. 164 The following is an attempt to get a general and impressionistic sense of how the 5 June online article would be perceived by an ordinary reasonable reader who is not overanalysing the words used, having the attributes identified in the authorities. The tone is clearly highly critical of Ms Molan's conduct on 30 May 2020 from the outset. It starts with the heading that says that she "refuses to apologise" for a "jibe" which is reproduced, and that she is being "slammed" for being "complicit in racism" by "mocking" Pacific Islander names. As Ms Molan points out in closing written submissions, a jibe and mocking have much the same meaning: that of taunting and of being cruel and insulting. 165 The 5 June online article heading is clearly saying Ms Molan has done something wrong by mocking those names by refusing to apologise, and that doing this makes her complicit in racism by others. Following on from this headline, the overall narrative of the article as it would be read by an ordinary reasonable reader can be summarised as follows: (a) the relevant segment of the 30 May 2020 episode of the Continuous Call Team is summarised in more detail as to how Ms Molan had mocked the names of Pacific Islander NRL players by putting on an accent and saying "Hooka, Looka, Mooka, Hooka, Fooka", and how she had claimed this was an in-joke between commentators: [2] and [4]-[7]; (b) this is followed by just over 20 paragraphs of text about, or accompanied by, several tweets containing criticisms from various commentators of Ms Molan's conduct in mocking names being unacceptable in that she could not or would not make the effort to pronounce Pacific Islander names correctly, about the nature of her job and how she was performing it and about her privileged life, with a statement about how this had taken place at a time of "heightened awareness about race and inequality" in the wake of the death of George Floyd: [8] - [39]; (c) this is followed by statements about how Daily Mail Australia contacted Ms Molan to ask if she would apologise, a quote from Ms Molan that she had "no idea" why no-one laughed at the segment, and then details of the original segment upon which Ms Molan says her comment was based, followed by an explanation for the 30 May 2000 Continuous Call Team segment provided by Nine Entertainment, the owner of 2GB, and by her, which characterised perceived racial insensitivity as a misunderstanding: [40] - [54], [57] - [59]; (d) the portion described immediately above is interrupted and followed by details of an Instagram post by Ms Molan on Wednesday 3 June, after the 30 May 2020 Continuous Call Team broadcast, expressing solidarity with the protests over George Floyd's death, including a screenshot of that post: [55]-[56], [60]-[61]; (e) this is followed by a further reference to Nine's explanation for what had taken place: [58]-[59]; (f) next are statistics about the rising representation of Pacific Island players in the NRL: [62]-[63]; (g) the article concludes with a further image of Ms Molan, followed by a statement that she had used "questionable dialogue" previously, detailing an incident where she was "widely condemned" for "mocking" Korean Pop group BTS, including by expressing surprise at their success because only one member of the group spoke English, and mocking the group's work with UNICEF: [66] - [70]. 166 Having conducted that general survey of the article in the manner designed to approximate the perspective of a putative ordinary reasonable reader, it is understandable why Ms Molan's basis for asserting that the 6th imputation was conveyed is quite narrowly and selectively focused. The parts that she relies upon certainly tend to convey that impression, but only if read out of context. The greater weight and overall burden of the article, after explaining what she had done during the broadcast, is to focus on the criticism of that behaviour as understood by commentators by reproducing their social media reactions, apparently based on the prior 4 June online article and its focus on her use of the words "Hooka, Looka, Mooka, Hooka, Fooka". The gist of those comments are: (a) why doing this was not a joke and should not be excused as such because it is disrespectful, fails to appreciate the importance of names in Polynesian and Pacific Islander culture and is complicit in racism; and (b) the responsibility of sports commentators, especially for the NRL with its substantial proportion of Pacific Islander players, not to mispronounce their names, whether as a matter of inability or insufficient effort. 167 The somewhat weaker antidote to the bane above is the explanation given by Nine Entertainment that no offence was intended, but rather that it was a play on the theme of Mr Ray Warren and his son making substantial efforts to get the pronunciation of Pacific Islander names right which had been misunderstood. That antidote must still be taken into account. 168 I consider that the ordinary reasonable reader would most likely conclude that the 5 June online article was saying: (a) that Ms Molan had in fact mocked Pacific Islander names by using the words "Hooka, Looka, Mooka, Hooka, Fooka" and that pointed to a substantial degree of cultural insensitivity on her part; (b) that she had tried to excuse this as a rerun of a joke between commentators and had refused to apologise despite the offence she had caused; (c) that this explanation was either untrue or otherwise unacceptable because it was disrespectful and not good enough for a sports commentator; (d) that this behaviour in some way supported or was involved in racism by others (being what I would understand as being a common enough ordinary sense or meaning of the word "complicit"), namely in some way helping or lending support or contributing to, other people engaging in racism; (e) that Ms Molan had misused her position of white privilege by behaving this way, especially in the context of her behaving this way while having the benefit of proximity to prominent or otherwise successful people of colour; (f) that her subsequent conduct in posting about George Floyd was cynical or hypocritical and that she had engaged in similar insensitive behaviour in the past. 169 The 5 June online article was not, in my view, one that was "tinged with, or even pregnant with, insinuation or suggestion" going much beyond what was overtly stated, or such as to implicitly "invite the reader to adopt a suspicious approach", as Wigney J noted about the influence of tone or tenor in Rush No 7 at [80]. It is quite unlike Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186, a legal capacity case, in which a newspaper article referred to a house burning down, a prior planning dispute about the owner's application to demolish the house, a scheduled neighbourhood meeting about the demolition no longer being necessary because the house had gone, and a police statement that the cause of the fire was not known and that all fires were treated as suspicious until proved not to be. The plurality in Favell said that the article could be taken to imply that the destruction of the house by fire in fact facilitated the redevelopment, and thwarted local opposition to it, and thereby was capable of implying arson. It that case, the capacity argument could be seen to be closely aligned to the question of what was actually conveyed. 170 The 5 June online article was blunter and more directly critical. It stated what Ms Molan was said to have done, as had also been stated the previous day in the 4 June online article, and reported on the reaction to that reported behaviour. The ordinary reasonable person, even with the propensity to loose thinking, would not, in my view, make the substantial leap of equating the use of the phrases "complicit in racism" and "complicit to racism" about what she was said to have done as conveying that Ms Molan was "a racist". This is largely because the complicit phrases are then robbed of context. The bulk of the rest of the 5 June online article addresses what she was said to have done, including her saying "Hooka, Looka, Mooka, Hooka, Fooka", and why commentators thought that was unacceptable. Such a reader would understand that she was being severely criticised for what she was said to have done, but there was no real implication of more than what was being overtly said. The 6th imputation is not conveyed and must fail. 171 The above lay interpretation of the 5 June online article also substantially accords with the 1st to 5th imputations that I have found to be conveyed, and thereby advances the objective of reaching a uniform meaning, albeit with different but related aspects as reflected in those five imputations, in keeping with the single meaning rule. Those imputations deal with the severity of what Ms Molan was said to have done as it related to her job as a commentator and status as a media personality, including, in parts, how that reflected on her character. I repeat the successfully made out imputations for convenience and ease of reading: 1st imputation: Ms Molan, having deliberately mocked the names of Pacific Islanders on air, then lied about it by falsely claiming she was referring to an "in-joke" between her and her co-hosts on the commentary team 2nd imputation: Ms Molan is so callous that, having deliberately mocked the names of Pacific Islanders on air, she then refused to apologise despite the offence she had caused the Polynesian NRL community and their cultural history 3rd imputation: Ms Molan's inability to pronounce the names of Polynesian NRL players is so disrespectful and incompetent that she is unfit to be an NRL commentator 4th imputation: Ms Molan is such an arrogant woman of white privilege that she has refused not only to learn how to pronounce the names of Polynesian NRL players but also to apologise for deliberately mocking them on air 5th imputation: Ms Molan cynically used George Floyd's death to promote herself as sympathetic to Black Lives Matter protests against racism and inequality even though she had deliberately mocked the names of Pacific Islanders on air 172 Repetition of those five imputations provides a useful segue into the next topic of contextual imputations by which the 5 June online article, and thereby the pleaded imputations found to have been conveyed, are sought to be defended. However, before doing so, the issue of justification by way of substantial truth needs to be succinctly addressed. 173 Much of the evidence in the trial was directed to the asserted substantial truth of the 6th imputation as part of Dailymail.com's defence of justification. That evidence included prior broadcasts during which Ms Molan said and did things alleged to prove that she was, as said to be imputed, "a racist", and Ms Molan's evidence, especially her oral evidence, endeavouring to explain those prior broadcasts. 174 Given that the 6th imputation has been found not to be conveyed, there is no need, and it is not appropriate, to make any determination on that particular issue of substantial truth. However, I note that if that had been necessary, Ms Molan was at some peril of an adverse conclusion being reached because of her intemperate behaviour in those prior broadcasts, including by faking several accents, and arguably attributing characteristics or advancing stereotypes by reason of race in her on-air comments. 175 A smaller part of the trial evidence was directed to the issue of the substantial truth of the 1st to 5th imputations, and the substantial truth of the pleaded contextual imputations to the extent that they are permissible, as having been conveyed and went in a material way to those five imputations.

WHETHER IMPUTATIONS THAT WERE CONVEYED HAVE BEEN PROVEN TO BE SUBSTANTIALLY TRUE 176 Substantial truth is only a justification defence to the 5 June online article if all the imputations pleaded and conveyed are proven to be substantially true, because it is an all or nothing defence: Kazal at [38], [96]. Given that Dailymail.com does not plead the substantial truth justification defence for the 1st imputation, and does not press that pleading for the 3rd and 4th imputations, proof of the truth of the 2nd and 5th imputations can only go to mitigation of damages, but can also have a bearing on viable contextual imputations to which those two imputations relate.

Whether the 2nd imputation has been proven to be substantially true 177 As to the 2nd imputation, Dailymail.com breaks up that imputation that Ms Molan "is so callous that, having deliberately mocked the names of Pacific Islanders on air, she then refused to apologise despite the offence she had caused the Polynesian NRL community and their cultural history", into parts, and submits that the following factual findings should be made, with evidence references, which would then establish the substantial truth of those parts and thus of the necessary whole: (a) so callous: this is said to be established by inference by the asserted fact that she repeatedly made fun of, and encouraged others to make fun of, Pacific Islander names, being in substance an inference to be drawn from the next part and the facts said to be established by the evidence; (b) deliberately mocked the names of Pacific Islanders on air: this is said to be established by the following facts proven by the evidence referred to: (i) a substantial part of the humour in each re-telling of the story involving Ray and Chris Warren trying to get the pronunciation of names right derives from the repeated mispronunciation of a name; (ii) the name involved in each re-telling of the story involving Ray and Chris Warren was obviously Polynesian; (iii) the original name that was the subject of the conversation between Ray and Chris Warren, later retold by Mr Brohman and Ms Molan, was Haumole Olakau'atu; (iv) Ms Molan knew this by, at the latest, 5 April 2020; (v) Each re-telling of the story involving Ray and Chris Warren involved the mocking of a Polynesian name, whether Mr Olakau'atu's name or a 'generic' Polynesian name, and Ms Molan was complicit or actively involved on each occasion; (vi) Ms Molan also mocked Polynesian names on air on the Continuous Call Team (CCT) on 19 August 2017 and 8 September 2018. (c) she then refused to apologise: this is said to be established by the following facts proven by the evidence referred to: (i) Ms Molan has never apologised for mocking Polynesian names and refuses to do so; and (ii) Ms Molan admits no moral culpability for her part in any of the re-telling of the story involving Ray and Chris Warren. (d) despite the offence she had caused the Polynesian NRL community and their cultural history: this is said to be established by inference from: (i) the fact of the mockery of Pacific Islander names on air; (ii) Ms Molan's acceptance that such names are particularly important to people of Polynesian ancestry; (iii) the social media posts reproduced in the 5 June online article, including from Mr Olakau'atu's management company; and (iv) Ms Molan's acknowledgement of the existence of offence and hurt, although she attributed that to Dailymail.com's publications, not what she had in fact done. 178 As recorded above, Ms Molan submits in relation to the 1st imputation that the pleading of the word "deliberately" in relation to the word "mocked" was something of a tautology, because it was difficult to see how mocking could be other than intentional, requiring a state of mind of or akin to being deliberate on the part of the person said to have done that. I accept that this is so, and that this reasoning equally applies to the use of the phrase "deliberately mocked" in the 2nd imputation. In any event, the use of the word "deliberately" makes that explicit, emphasising that part of the sting, and making this an indispensable part of the imputation required to be proven to be substantially true. 179 It is in the context of this understanding of the 2nd imputation that Ms Molan takes issue with Dailymail.com having proved the substantial truth of the essential elements of the imputation that either she "deliberately mocked the names of Pacific Islanders on air" or that "she then refused to apologise". She points out, correctly in my view, that prior broadcasts cannot prove an intention to mock such names on the occasion of the impugned portion of the 30 May 2020 broadcast that is the subject of the 5 June online article. There is no dispute that Ms Molan was referring to a running story about Ray and Chris Warren as first told by Ms Molan's co-commentator, Mr Brohman. The dispute lies in the characterisation of that story. 180 Ms Molan notes, and I accept, that the evidence establishes that Ray and Chris Warren have a similar and distinctive voice which is regarded as iconic, that she was familiar with that voice, that the Warren story had been told on air a number of times, and that Ray Warren is (perhaps now more accurately, was, given his recent retirement from NRL commentary) notoriously fastidious in preparing to call an NRL game, including his preparation of surname pronunciation. 181 Ms Molan also correctly characterises a key issue in dispute as to whether the Warren story was referrable to a particular player, upon the basis that this is an indispensable element of the facts asserted to have been proven, described at 177(ii) and (iii) above. Her evidence, which I accept, was that the Warren story was not about any particular NRL player, with the "name" the subject of each retelling being different each time, and bearing no resemblance to any actual NRL player's name. She also deposed to not being aware, as at the time of the retellings of the Warren story, that it could be traced back to the NRL debut of Mr Olakau'atu, and was not certain that the Warren story was a true story or had been embellished, a point corroborated by the recording on 5 April 2020 addressed below of her directly asking Ray Warren about the accuracy of one of the retellings given in his presence by Mr Brohman. Ms Molan was repeatedly emphatic that the impugned segment was not referrable to any Pacific Islander, but rather to the broader Warren story about the father and son trying to pronounce difficult names correctly, and one correcting the efforts of the other. She said that "Hooka, Looka, Mooka, Hooka, Fooka" was an entirely made up name for that purpose. 182 A number of recordings of earlier Continuous Call Team programs in evidence are relied upon to support Ms Molan's account: (a) the broadcast on 5 October 2019 from about counter 1:55, where Mr Brohman is recounting the Warren story, and made up names are used; (b) the broadcast on 5 April 2020 from about counter 3:22:25 (being the segment of just over 2 minutes which the reader of the 5 June online article could access by clicking the link between [40] and [41] of the 5 June online article), where Mr Brohman again recounts the Warren story, using made up names, and is unable to say who the player is whose name had caused the difficulty in pronunciation. However, it is apparent that this is not the point of the story (this segment also includes Ray Warren listening to the account, and saying when asked about its accuracy "you can divide the story by about ten", indicating factual inaccuracy in Mr Brohman's retelling of the Warren story); (c) the broadcast on 12 April 2020 from about counter 53:30 where Ray Warren is asked to listen to Mr Brohmen's account of the Warren story and comment upon it, whereupon where Mr Brohman again recounts the Warren story (no comment is reproduced in the defence pleading particulars). 183 Ms Molan submits that this is also consistent with her evidentiary account that the focal point of the Warren story was the dynamic between the father and son, and with the humour derived from Ray Warren correcting Chris Warren in his efforts to pronounce names. Based upon the foregoing, Ms Molan describes it as "inapt" to characterise the Warren story as being about the pronunciation of names of any particular ethnicity. 184 A difficulty I have with an aspect of Ms Molan's submissions is the suggestion that the Warren story was not originally based upon the pronunciation of Pacific Islander names. It could not be understood in that way because of the nature of the made up names, which seem to be generally based upon the length and complexity of at least some of those names (such as, for example, Mr Olakau'atu), at least for a person unfamiliar with Pacific Island names. However, even resolving that aspect in Dailymail.com's favour, I am unable to be satisfied that the "deliberately mocked the names of Pacific Islanders on air" aspect of the 2nd imputation has been proven to be substantially true. I am willing to accept that the initial reference point for the Warren story was a difficulty encountered and addressed by Ray Warren and Chris Warren in pronouncing the name of a particular debut Pacific Island NRL player, most likely Mr Olakau'atu, not least because this is expressly stated in Mr Evans' email sent to Mr White at 5.25 pm on 4 June 2020, reproduced at [39] above. However, I am not satisfied that this origin was what Ms Molan was in fact referring to by the time of the impugned segment of the broadcast on 30 May 2020. By then, the focus and attention of the Warren story had shifted to the dynamic between Ray Warren and Chris Warren working on correct pronunciation. 185 That is so even though the words "Hooka, Looka, Mooka, Hooka, Fooka", were, in the context of an NRL-based radio show, readily able to be attributed to the class of NRL players having Pacific Islander names, especially given that any listener would likely know of the prominence of such players in that competition. Such a listener would also likely know that the pronunciation of some Pacific Islander names may not be easy to the unfamiliar. To that extent, what Ms Molan said was easily able to be misunderstood and thereby cause offence to such players and other members of that diaspora. Ms Molan bears responsibility for that being at least thoughtless as to how someone else might interpret what she was saying without the context of the Warren story being clear. It was an incorrect inference once all the background facts are appreciated to better understand what was really taking place, but one that was able to be fairly easily drawn by a reasonable ordinary person listening who did not have the benefit of that historical context. However, I am not satisfied that it has been proven that Ms Molan had in fact mocked the names of Pacific Islanders on air, with or without the addition of the tautology word "deliberately". 186 It follows from the above conclusion that the imputation that Ms Molan "refused to apologise" for the pleaded conduct necessarily cannot be proved to be substantially true, noting additionally that prior to publication she had in any event at most failed to apologise and had not refused to do so, as discussed further below. The apology that she made post the publication of the 5 June online article did not address the mocking aspect, but it did address the lesser aspect of apologising ("I'm very, very sorry") for anyone taking offence at how she had been portrayed as behaving. In any event, I accept Ms Molan's submission that there is a fundamental difference between criticising someone refusing to apologise at all, and a criticism of the nature and extent of an apology, or its adequacy. 187 It follows that the 2nd imputation has not been proven to be substantially true.

Whether the 5th imputation has been proven to be substantially true 188 As to the 5th imputation that Ms Molan "cynically used George Floyd's death to promote herself as sympathetic to Black Lives Matter protests against racism and inequality even though she had deliberately mocked the names of Pacific Islanders on air", the finding above about the first aspect of 2nd imputation necessarily applies to the same phrase concluding this imputation, namely, "deliberately mocked the names of Pacific Islanders on air". In those circumstances, the substantial truth of this imputation cannot be proven either. Had I reached a different conclusion about that aspect, it would have substantially changed the complexion of Ms Molan's Instagram post about the death of George Floyd. However, without that critical context, the post and Ms Molan's comments on air the same day about the importance and value of the journalism emerging from that death mean that no such pejorative conclusion about making that post can be sustained. 189 It follows that the 5th imputation has not been proven to be substantially true.

THE ALLEGED CONTEXTUAL IMPUTATIONS 190 In relation to the 5 June online article, Dailymail.com pleads the following contextual imputations: 1st contextual imputation The Applicant, during The Continuous Call Team program on 2GB radio, engaged in racist behaviour 2nd contextual imputation The Applicant, during The Continuous Call Team program on 2GB radio, engaged in conduct that was likely to offend persons because of their race or ethnic origin 3rd contextual imputation The Applicant mocked Pacific Islander names on air 4th contextual imputation The Applicant, having mocked Pacific Islander names on air, then refused to apologise for mocking those names 5th contextual imputation The Applicant having mocked Pacific Islander names on air, then lied about it 6th contextual imputation The Applicant having mocked Pacific Islander names on air hypocritically made an Instagram post in solidarity with protests over George Floyd's death 7th contextual imputation The Applicant's mocking of Polynesian names of NRL players is so disrespectful and incompetent that she is unfit to be an NRL commentator 8th contextual imputation The Applicant is such an arrogant woman of white privilege that she has refused to apologise for mocking Polynesian names of NRL players on air 191 Ms Molan contends that the 3rd to 8th contextual imputations do not differ in substance from the pleaded imputations, now relevantly the 1st, 2nd, 4th and 5th imputations, because it does not expressly refer to mocking. She also submits that none of the eight contextual imputations were carried. The removal of the word "deliberately" is not a change of substance due to it being no more than the removal of a tautology. It is not necessary to determine whether the 3rd to 8th contextual imputations do in fact differ in substance from at least the 1st, 2nd, 4th and 5th imputations, although I would be inclined to the view that they are not different in substance. That is because a finding as to the substantial truth of each depends upon a factual finding that Ms Molan mocked Pacific Islander names, which I am not satisfied has been shown to be substantially true, as addressed above in relation to the justification of substantial truth. That conclusion must also flow over to the 1st contextual imputation, because without the element of mocking which permeates the 5 June online article, there is no reasonable foundation for a contextual imputation that she has engaged in racist behaviour. It follows that Dailymail.com has not proven that any of the 1st contextual imputation or the 3rd to 8th contextual imputations have been proven to be true. 192 The 2nd contextual imputation that Ms Molan "during The Continuous Call Team program on 2GB radio, engaged in conduct that was likely to offend persons because of their race or ethnic origin", is more problematic. It does differ in substance from any of the pleaded imputations, and most particularly the 1st to 6th imputations. That is because this imputation is looking at the conduct from the perspective of a listener, rather than from the perspective of Ms Molan's intention, such that her state of mind is irrelevant. Applying the reasoning at [185] above, I am satisfied that the truth of the 2nd contextual imputation has been proven. In the impugned segment of the 5 June online article, Ms Molan did engage in conduct that was likely to offend persons because of their race or ethnic origin, by putting on an accent and saying "Hooka, Looka, Mooka, Hooka, Fooka". That said, I accept that this was ignorant or thoughtless conduct, rather than deliberate, as reflected in the genuine apology that she gave. I dare say she has been more careful since then. 193 This finding is available to Dailymail.com to mitigate damages.

The pleaded defence of honest opinion 194 In relation to the 5 June online article, Dailymail.com pleads that: (a) it consisted of its expressions of opinion and/or those of an employee or agent and/or those of another person, being Ms Tiatia-Seath, Ms Aualiitia and other third parties whose social media posts were reproduced in that article; (b) such opinions: (i) related to matters of public opinion; and (ii) were based on proper material and on no other material, or were based on proper material even if some of the material was not proper material and were opinions such as might reasonably be based on such of the material that was proper material. 195 While (a) above engages each of the distinct defences in subsections (1), (2) and (3) of s 31 referrable to the opinion of, respectively, Dailymail.com, Dailymail.com's employee or agent, or a commentator, as Dailymail.com's case is argued in closing written submissions, only the opinion of commentators, rather than a statement of fact, related to a matter of public opinion and based on "proper material", is ultimately relied upon, i.e., s 31(3). 196 None of the authorities go as far as Dailymail.com suggests in submitting that the imputations, while relevant, are only a secondary consideration. Rather, the s 31(3) defence is necessarily confined to the aspects of the 5 June online article reflected in the 1st to 5th imputations that have been found to be conveyed and not found to be substantially true. It is the content of the aspects of the 5 June online article identified by, but not limited to, the 1st to 5th imputations that must be proven by Dailymail.com: (a) to be the opinion of a commentator rather than a statement of fact; (b) to relate to a matter of public interest; and (c) to be based on "proper material".

The competing arguments and their resolution 197 It is convenient to address first the question of whether the 5 June online article related to a matter of public interest. Dailymail.com pleads and relies upon Ms Molan's conduct as a "prominent media personality associated with the NRL" and in particular on the Continuous Call Team program on radio 2GB radio and her alleged use of "racist epithets, racist accents, racial stereotypes and other racially offensive conduct" on that program by her and other hosts. It also pleads and relies upon the NRL, rugby league and "specifically the widespread participation of significant numbers of Pacific Islander players in the game at the elite level", and her public response to allegations of racist conduct by her as a host on the Continuous Call Team on 2GB radio and racism in the Australian community. 198 Dailymail.com submits that it is sufficient to meet the test of being related to a matter of public interest that the conduct which is the subject of the 5 June online article was itself a public radio broadcast, aided by the subject matter of issues of race, racism, ethnicity, the position of Pacific Island players within the NRL and the importance of names to some ethnic groups. Dailymail.com therefore contends that there can be no serious argument against the proposition that the public interest element of the defence is satisfied. In response to Ms Molan's argument below as to how the story in the 5 June online article came about, Dailymail.com submits that it makes no difference to this aspect of the honest opinion defence that it had introduced the topic into the public arena by the 4 June online article, and that this subject matter is inherently a matter of public interest. 199 While Ms Molan accepts that topics such as racism are matters of public interest, she characterises the issue raised by Dailymail.com in this regard as being narrower than that, being in substance whether the opinions relied upon related to such matters, as opposed to relating to its own prior news story, which is not a matter of public interest. The reasoning is that the 5 June online article was substantially assembled from the 14 second clip of the 30 May 2020 broadcast, the obtaining of views from Dr Tiatia-Seath for inclusion in the 5 June online article, and the inclusion of Twitter reactions in that article. Ms Molan therefore submits that the opinions that were expressed did not relate to racism or any other public topics, but rather related to Dailymail.com's attempts to generate a story. 200 I am unable to accept Ms Molan's basis for denying the subject matter of the 5 June online article as being related to a matter of public interest. The metes and bounds of racism and racist behaviour and supporting or lending comfort to such conduct, and even of conduct said to be offensive falling short of racism, are legitimate topics of public discourse and thus of public interest. That interest is not to be denied by the fact that a media organisation takes steps to generate a story on such a topic, but as I observed at [60] above, Dailymail.com took a conscious risk in light of the explanation provided to it by Ms Molan and by Nine and Radio 2GB, that those efforts may not produce a defendable criticism of Ms Molan in defamation. But if the other elements are made out, absence of public interest is not of itself a proper basis for denying the defence. 201 As to the proper material that the asserted opinions were based upon, Dailymail.com pleads and relies upon facts said to be set out in the 5 June online article, namely (paragraph references are to those added to the 5 June 2020 online article): (a) that Ms Molan said the words "Hooka, Looka, Mooka, Hooka, Fooka": [1], [5]. (b) that in saying those words she was referencing Pacific Islander surnames: [1], [4]. (c) after she said those words, Mr Brohman said "What I'm not sure what she said there" and another host Mark Levy changed the subject: [7]. (d) NRL players having a Polynesian heritage represent a significant proportion of players in the NRL competition: [9], [62]. (e) After Ms Molan said "Hooka, Looka, Mooka, Hooka, Fooka", Twitter users criticised her, including in tweets that were reproduced: [24-28], [30-35], [36-39]. (f) Ms Molan said the above shortly after the death of George Floyd in police custody and at a time of heightened awareness about race: [18]. (g) Dailymail.com contacted Ms Molan and Nine Entertainment to ask whether she would apologise: [40]. (h) Ms Molan told Dailymail.com that she had "no idea" why her co-hosts had not laughed [40-41] - Dailymail.com also relies upon her subsequent text message at 5.52 pm on or about 4 June 2020 in which, responding to a question from Mr White "Ok I get what you're referring to. Why did no one laugh when you referenced it on Saturday?", she replied "No idea! People talking in our ears. Games going on. Thousands of things happening at once.", and relies upon the fact that this communication was made. (i) Ms Molan and Nine Entertainment claimed in answer to Dailymail.com's inquiries that she was referencing a story Mr Brohman told on 5 April 2020 about a debate between Ray and Chris Warren: [42]. Dailymail.com also again relies upon the text message reproduced immediately above and emails from Mr Jason Evans, a publicists at Nine, to Dailymail.com on 4 June 2020 explaining the background to the Warren story referenced in the impugned segment of the 30 May 2020 broadcast, and upon the fact of those communications being made. (j) On 5 April 2020, Mr Brohman during the Continuous Call Team broadcast recounted a discussion between the Warrens concerning the pronunciation of Polynesian surnames: [43-49]. (k) Nine told Dailymail.com that Ms Molan was referencing a story that regular listeners would be familiar with and conveyed the other statements [57-59]. Dailymail.com relies on the fact the communications were made, referring again to the email from Jason Evans to Dailymail.com of 4 June 2020 at 5.25 pm. (l) On or about 3 June 2020, Ms Molan posted on Instagram a post concerning George Floyd: [55-56], [60-61]. 202 Dailymail.com submits in the alternative that the immediately preceding subparagraphs of [201], as pleaded in the defence above, arise from the following proper material: (a) in the case of (a), (b), (c) and (j), from the recounting of the 5 April 2020 and 30 May 2020 broadcasts; (b) in the case of (d), as an agreed fact and also Ms Molan's evidence where she agreed that 45-50% of players in the NRL had Polynesian ancestry; (c) in the case of (e), the existence of tweets criticising Ms Molan, appearing in the 5 June online article, and themselves consisting of expressions of opinion, noting that Ms Molan attributes this to the 4 June online article, while Dailymail.com attributes it to her underlying conduct that was merely reported upon; (d) in the case of (f), this relies upon the timing of the 30 May 2020 remarks and the death of Mr George Floyd five days earlier, which Ms Molan agreed in evidence had taken place on that date; (e) in the case of (g), three requests made to Ms Molan and to Nine on 5 June 2020 which including asking whether she would apologise: (i) an email sent at 11.09 am from Mr Barclay Crawford, an editor at Dailymail.com, to Mr Jason Evans, a publicist at Nine, and Ms Amanda Poulos also at Nine; (ii) an email sent at 12.23 pm by Ms Zaczek to Mr Evans and Ms Poulos; and (iii) a text message sent at 1:03 pm by Ms Zaczek to Ms Molan; (f) in the case of (h), (i), and (k): (i) a chain of text messages between Mr Nic White, a journalist with Dailymail.com, and Ms Molan; (ii) an email chain between Mr White and Mr Evans. (g) in the case of (l), Ms Molan's Instagram post reproduced in the 5 June online article at [55]. 203 On the topic of proper material, Dailymail.com submits that all that was necessary was the embedded link to the impugned 14 second segment of the broadcast on 30 May 2020, because any reader was able to listen to Ms Molan's words and be put in a position to be able to assess whether to agree or not with the opinions expressed. Dailymail.com submits that the most critical aspects of the proper material include the actual reporting of Ms Molan's remarks and her involvement in the Continuous Call Team discussion, as well as the two links to the actual audio of the 30 May 2020 and 5 April 2020 broadcasts embedded in the 5 June online article. 204 Ms Molan submits that the problem with Dailymail.com relying upon her own words in the impugned segment of the 30 May 2020 broadcast, and the prior 5 April 2020 broadcast, is that it fails to deal with matters extraneous to the former, such as her supposed refusal to apologise, her supposed inability to pronounce player's names, or the supposed false claim of an in-joke (or joke for that matter). She submits that if any of those features are sought to be protected by the honest opinion defence, a reasonable ordinary person hearing them and reading the 5 June online article must be able to form a view as to what is fact and what is opinion, which cannot be done by merely listening to either, but especially not by listening to the impugned segment of the 30 May 2020 broadcast. 205 Ms Molan further submits that Dailymail.com's approach is incapable of enabling the putative ordinary reasonable person to conclude that the opinions that were expressed were based on the impugned segment of the 30 May 2020 broadcast, rather than claims made about what had taken place in that broadcast. While she accepts that the sound recording of that segment was available as a link, it was not clear that the putative reasonable ordinary person would understand that Dr Tiatia-Seath was basing her comments upon that, rather than upon the 4 June online article to which she had responded by a tweet, giving rise to her being approached for comment by Ms Zaczek. She submits that the same reasoning applies to the views expressed by Ms Aualiitia. 206 Ms Molan's response to Dailymail.com's alternative to the primary position of listening to the 5 April 2020 and 30 May 2020 segments linked to the 5 June online article, being the articulation of the proper material listed at [202] above, runs into the problem created by the way in which the defence operates as explained by Gummow, Hayne and Heydon JJ in Manock at [83], namely that the defence is only reached upon an adverse conclusion being reached as to meaning, so that the 5 June online article needs to be considered through the perspective of the defamatory imputations found to have been conveyed. 207 In Dailymail.com's closing written submissions, it asserts by reference to the same numbering of the 5 June online article annexed to the amended statement of claim, that the divide between fact and opinion can be understood in this way: [1]: the assertion of refusal to apologise is fact but the remainder of this paragraph is opinion, being a summary of the opinions expressed later by Ms Tiatia-Seath and Ms Aualiitia; [2]: this is fact and each of the material set out in the bullet points is a matter of substantial truth; [3] this is the byline and irrelevant to the defence; [4] this is again opinion being also a summary of the opinions expressed later in the matter complained of; [5] this is fact and substantially true. The dispute about whether the Applicant put on an accent does not affect that substantial truth; [6]: the words "Molan claimed ... commentators" is fact and accurate. The prefix "in" does not affect the substantial truth - the key fact is that Ms Molan said that it was a joke; [7] this is factual material; [8-12], [16-17] this material is an expression of opinion of [Dr] Tiatia-Seath; [13] the photo is irrelevant to this defence; [14] this is opinion; [15] this is factual material. For reasons developed below, this link, leading as it did, to a recording of the Applicant's words onto 2GB on 30 May 2020 is, of itself, and without more, sufficient to support the honest opinion defence. Indeed, every other fact stated could be wrong (although they are not) and the defence should still succeed because of the inclusion of this material; [18-19] this is factual material [21] this is opinion of [Dr] Tiatia-Seath; [23-25] this is opinion of Ms Aualiitia; [26-27] this is opinion of Mr Stevenson; [28-39] this is entirely expression of opinion; [40-70] this is factual material. A second recording is available between [40-41] (the link is to the 5 April 2020 CCT excerpt containing Mr Chris Warren) and the Respondent repeats the remarks made [about [15] above in respect of the availability of that recording. 208 I consider Ms Molan's response to aspects of the above in some detail below at [220]. 209 Dailymail.com submits that the above is sufficient to establish that the critical defamatory elements of the 5 June online article are expressed as opinions of the commentators quoted, namely: mocked/mockery: Source [4], [8],[14], [21], [26], [28]; racist/racism: Source so much of [1] as refers to what was said by Pacific Islander women, [4], [11], [12]; unfit to be NRL commentator: Source [9], [24], [31]; hypocrisy/cynicism concerning death of George Floyd: Source [28], [29]; arrogant/ white privilege: Source [36]-[39]. 210 Dailymail.com ultimately identifies the persons who expressed the asserted opinions as the overtly recorded commentators Dr Tiatia-Seath, Ms Aualiitia, Mr Scotty Stevenson (described as a journalist; @sumostevenson), and those with the twitter accounts @AjVaimoso and @stuckyonthenose. 211 Dailymail.com submits that inaccuracies in the 5 June online article that Ms Molan complains of can be excused, namely as to the issue of the inside joke, the issue of the refusal to apologise, and the issue of putting on an accent. 212 While Dailymail.com does not allege that Ms Molan actually said "inside joke", this is argued to be a fair characterisation of the Warren story concerning the debate between Ray Warren and Chris Warren, and unless listeners to the program had heard previous iterations they would not have known that this was what was being discussed, but if that is incorrect, it is not an error of substance, because there is no moral difference between a joke and an "in" joke. 213 I am satisfied that there is no material error by reason of the addition of "in-" to the word "joke", because that was necessarily implicit in the banter between Mr Brohman and Ms Molan and other hosts. What mattered was the words "Hooka, Looka, Mooka, Hooka, Fooka" were being explained as a joke based upon the Warren story. This issue is therefore resolved in Dailymail.com's favour. However, that does not avail Dailymail.com much at all, because an important aspect of the sting of the 1st imputation is that she was falsely referring to a joke, or in-joke, between her and her co-hosts, when it is apparent on the evidence, and upon a proper contextual understanding of the impugned segment drawn from that evidence, that this was indeed what she was referring to. 214 Dailymail.com maintains that there was no mistake in referring to Ms Molan as refusing to apologise, because she never apologised for what she has said in the manner in which it was characterised. Ms Molan maintains that the objection is to the form of the apology that was ultimately given and that she never refused to apologise for what she had in fact done. 215 This is resolved in Ms Molan's favour, as also noted earlier in these reasons. The ordinary reasonable reader would understand that it was being alleged that Ms Molan had refused to apologise at all, when in fact, at the time of the publication of the 5 June online article she had not been given time to accede or refuse, and subsequently she did apologise, albeit for what I have found that she actually did, which was to cause offence, not for what she did not do, which was to mock the names of Pacific Islander NRL players. There had been no refusal to apologise by the time of the publication of the 5 June online article. 216 Dailymail.com maintains that Ms Molan not just put on an accent, but did so using a Polynesian accent, while she maintains that the accent she used was intended to impersonate the Warrens - or more precisely, given the use of the word "Dad" - intended to imitate the son, Chris Warren. 217 I have listened carefully to the impugned 14 second segment of the broadcast on 30 May 2020. As I heard and perceived it, Ms Molan did put on an accent when using the word "Dad", apparently a version of Mr Chris Warren's voice, and a slightly different accent when saying "Hooka, Looka, Mooka, Hooka, Fooka", so that the bare reference to putting on some kind of accent is substantially true. However, context is important here, because at [2] of the 5 June online article the reference to putting on an accent immediately follows a reference to the panel discussing pronouncing NRL player names, so the clear implication, when read with the heading at [1], is that of putting on an accent of a Pacific Islander. 218 I conclude that Ms Molan was trying to put on two different accents: she was trying to put on an accent of Ray Warren as though it was him who was saying "Hooka, Looka, Mooka, Hooka, Fooka", rather than putting on a Polynesian or Pacific Islander accent; and putting on the accent of Chris Warren as saying "Dad" in response, reflecting the interplay between the two which is inherent in the Warren story. However, a listener deprived of the benefit of context could well have thought that she was putting on such an accent, especially given the likely association between the made up name reflected in "Hooka, Looka, Mooka, Hooka, Fooka" in the context of listeners being likely to be aware of Polynesian or Pacific Islander participants in the NRL sometimes having lengthy names, sometimes with punctuation, that may be hard to pronounce for those who are unfamiliar with them. This conclusion reflects the distinction between Ms Molan not mocking those names, because, based on the reasoning in some detail below, that was not what she was intending and thus in fact doing, and her nonetheless causing offence because of what she chose to say, which could be readily misunderstood as some kind of slur or even an intention to mock. 219 Dailymail.com submits that properly construed, the 5 June online article meets the description of being an expression of opinion based on proper material, especially given that readers could not only read what Ms Molan and her host colleagues said, but could also listen both to a recording of the segment of the broadcast on 30 May 2020, and to the prior discussion on 5 April 2020 which includes one of Mr Brohman's accounts of the Warren story. Dailymail.com therefore asserts that the 5 June online article contains expressions of opinion from commentators based on that material, including opinions that Ms Molan mocked a Polynesian name and the characterisation given to that conduct. As will be seen, Ms Molan disputes that the allegation of mocking repeated in the 5 June online article in numerous places would be regarded by an ordinary reasonable person as an opinion of any of the commentators. 220 Ms Molan submits that while there is no inherent conceptual difficulty with Dailymail.com relying upon multiple commentators, in this case, Dr Tiatia-Seath, Ms Aualiitia, Mr Stevenson, and the twitter users identified at various parts of [28]-[39] in the 5 June online article, the defence applies separately in relation to each. The facts upon which their asserted opinion is based has to be sufficiently identified to the reader so as to permit the distinction between fact and opinion to be made, and the opinion must meet the sting of an imputation (as used to identify the salient part of the article. While Ms Molan acknowledges that Dailymail.com has carried out that exercise, at least to some extent, in its closing submissions (as summarised at [207] above), she makes the following qualifying submissions. 221 Ms Molan submits that while Dailymail.com concedes that the refusal to apologise part of [1] of the 5 June online article is a fact rather than an opinion, that is not a fact that is relied upon as part of the basis for any of the opinions relied upon, with the pleaded defence particulars going no further than Ms Molan being asked to apologise. The consequence of that is submitted to be that if it is concluded that any opinion was in part based upon the "fact" that Ms Molan had refused to apologise, Dailymail.com would be forced to rely upon the defence in s 31(6) if the 2nd imputation or the 4th imputation is conveyed, and surmount the practically impossible task of showing that the opinion, although not based entirely upon proper material, might reasonably be based on proper material as to this aspect. 222 That is because Dailymail.com had asked if Ms Molan would apologise a short time before publication and there is no evidence of it ever having received a response that she would not. At worst, she had failed to answer, and in fact had not apologised, up to the time of publication. Because of that, I have already concluded above that there was no refusal on the part of Ms Molan to apologise prior to publication of the 5 June online article, and that Dailymail.com's case in any event, despite submissions to the contrary, does not rise higher than having a basis to criticise the nature and quality of the apology that was given post publication. The failure to apologise in a short period between being asked to do so, and publication, cannot support the allegation of refusing to apologise. It follows that Dailymail.com should have known full well that there was no reasonable factual basis for any allegation that, by the time of publication of the 5 June online article, Ms Molan had refused to apologise. It follows that this cannot support any opinion relied upon as a defence, which in turn means that there is no honest opinion defence available for that aspect of that part of the 5 June online article identified by the 4th imputation for this reason alone, noting that the deliberately mocking aspect of that part of the 5 June online article identified by this imputation and also by the 1st, 2nd and 5th imputations is addressed next. 223 The characterisation of the references to Ms Molan mocking the names of Pacific Islanders as being an aspect of the opinions expressed, as opposed to being facts or assumed facts, is a hotly contested issue, which is critical to the aspects of the 5 June online article identified by the 1st, 2nd, 4th and 5th imputations. The aspects of the 5 June online article identified by the 3rd imputation closely interact with the aspects identified by the 1st, 2nd, 4th and 5th imputations, because Ms Molan's asserted inability to pronounce the names of Polynesian NRL players is an aspect apparently derived from the characterisation of what she had done as mocking, said possibly to arise from that inability (along with the asserted alternative explanation of not trying to do so, rather than inability). 224 In relation to the balance of [1] of the 5 June online article going beyond the refusal to apologise part, and by parity of reasoning, Dailymail.com's submissions in relation to [4], [14], [15], [26]-[27] and [28]-[39] of the 5 June online article addressing Dailymail.com's implicit submission in closing written submissions in chief, then made explicit, that the assertion that she mocked the names of Pacific Islanders was a statement of opinion, Ms Molan submits in substance that the problem with this is that an ordinary reasonable reader would regard this assertion of mockery as a fact, or at least not clearly an opinion. She submits that the way that the 5 June online article reads is that while it is accepted that some opinions are expressed, the mockery of Pacific Islander names is a given, or an assumed fact, or at the very least, not clearly an opinion being expressed by any of the commentators. 225 The logical starting point is the heading itself at [1] of the 5 June online article: "Erin Molan refuses to apologise for her 'hooka looka mooka' jibe on live radio - as Pacific Islander women slam her for being 'complicit in racism' by mocking their names". There is nothing in this heading to suggest that "mocking their names" is anything other than a fact, there being no reference to anything from which it could be read as being an opinion of anyone. The same is true of each of the following, each of which refers to mocking in a factual way, not as an opinion: [4]: "Erin Molan has been accused of being 'complicit to racism' by mocking the names of Pacific Islander NRL players on radio." [14]: "Erin Molan (pictured left) appeared to mock the names of Pacific Islander NRL players live on 2GB radio's The Continuous Call on Saturday" beneath an image of Ms Molan and Mr Levy wearing headphones [15]: "Erin Molan mocks the names of Pacific Islanders live on radio" above an image of Ms Molan and four men, headed "THE CONTINUOUS CALL TEAM", with a link to an embedded 14 second video marked "Watch the full video". [26-27]: being Mr Scotty Stevenson tweeting "Family names throughout the pacific tell stories, carry memories, and hold histories. They're not jokes." in response to a nzherald tweet stating that "NRL personality and commentator Erin Molan has refuted claims that she mocked the names of Pacific Island players in a live radio slip up"; followed by a caption "Journalist Scotty Stevenson also criticised Molan for mocking players' names" [28-39]: reproduced at [38] above, being a more general commentary about pronunciation, with the word "mock" appearing at [28] and the word "mockery" appearing at [33]. 226 I am therefore not satisfied that any of the overt references to "mocking", or "mock" or "mockery" would be understood by any ordinary reasonable person as other than a fact being commented upon, and opinions being expressed, rather than them being the product of an opinion. It follows that for this reason alone, the honest opinion defence cannot apply to this aspect of the 5 June online article identified by the 1st, 2nd, 4th and 5th imputations. 227 This conclusion, formed from a likely perusal by an ordinary reasonable person, is reinforced by looking more closely at what is attributed to Dr Tiatia-Seath, which is that the views she expresses are based upon the fact that Ms Molan had made a jibe at Polynesians, which she opined as being something that should not be excused as a joke. This led into the assumed view that this was due to an inability to pronounce those names, in turn leading to the view that commentators owed respect to such names. All of this springboards from the jibe, which in context is indistinguishable from mocking. The opinions expressed flow from a fact, namely mocking, that did not exist and which Dailymail.com could not reasonably have concluded did exist in light of the explanations given both by Ms Molan herself by text, and by Mr Evans, the Nine publicist, by email. 228 For completeness, I also conclude that Dailymail.com did not have any proper basis for reliance on the opinion defence in relation to the aspect of the 5 June online article identified by the balance of the 1st imputation, namely the implication that Ms Molan lied about not having mocked the names of Pacific Islanders on air by falsely claiming she was referring to an in-joke, or joke, between her and her co-hosts. I am satisfied that this explanation by Ms Molan was substantially true, and that no aspect of the opinions expressed that could be regarded as contrary to this can be allowed to stand in light of information provided pre-publication to Dailymail.com. 229 Similarly: (a) the aspect of the 5 June online article of refusing to apologise identified by the 2nd and 4th imputations is not covered by any opinion that would be discerned by any ordinary reasonable person - this was presented as a fact which both was not true, and which Dailymail.com did not have any reasonable basis for concluding was true; (b) the aspect of the 5 June online article of an inability to pronounce the names of Polynesian NRL players, and also the aspect of this being disrespectful and incompetent, both identified by the 3rd imputation, are not covered by any opinion that would be discerned by any ordinary reasonable person. This is because both were facts that were apparently inferred by some of those commenting based upon the mocking that was presented as a fact. The inference forming part of this aspect of the opinion expressed by several of the commentators is incurably contaminated by those unsustainable and objectively unreasonable asserted facts; (c) the aspect of the 5 June online article of a refusal to learn how to pronounce the names of Polynesian NRL players identified by the 4th imputation is in the same position as an inability to pronounce those names, and so is also not covered by any opinion that would be discerned by any ordinary reasonable person because that is a fact that was apparently inferred by others of those commenting based upon the mocking that was presented as a fact. The inference forming part of this aspect of the opinion expressed by several of the commentators is also incurably contaminated by that unsustainable and objectively unreasonable asserted fact; (d) the aspect of the 5 June online article of a cynical use of George Floyd's death identified by the 5th imputation is arrived at by a contrast between mocking and Ms Molan's Instagram post, so is intrinsically tied up with the mocking aspect, so as also to be beyond the honest opinion defence. 230 For the foregoing reasons, Dailymail.com has not established any basis for the application of the defence of honest opinion.

DAMAGES INCLUDING MITIGATION 231 Section 34 of the Defamation Act provides: In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. 232 Although aggravated damages are, for proceedings commenced from 1 July 2021, to be awarded separately from damages for non-economic loss, as this proceeding commenced well before then, aggravated damages can be used to exceed the cap that otherwise applies of $432,500 (s 35 and NSW Government Gazette no 247 - Other, 11 June 2021). The statutory cap is a jurisdictional limit rather than a maximum requiring scaling: see Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [671] and the cases there cited. 233 The three purposes of an award of damages in defamation are consolation for hurt to feelings, recompense for damages to reputation and vindication of reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60, confirmed in Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at [60] (see also [34]-[35], endorsing [60]; and the statement of the applicable principles to be applied in fixing an award of damages in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 per Tobias and McColl JA at [70]-[78], especially at [75], and at [78]-[95] in relation to aggravated damages. 234 As to the key aspects, hurt and reparation of reputation focus on the wrong done, while vindication looks to the attitude of others and the need to signal the gravity of what has been wrongly said and its impact on social standing, requiring a sum sufficient to convince a bystander of the baselessness of the allegation made in the publication. As Ms Molan has succeeded on only one publication, and thus a single matter, there is no need to have resort to the power bestowed by s 39 of the Defamation Act to assess damages for more than one cause of action, but had there been success on the 5 June tweet and 5 June tweet that would have been appropriate in any event. 235 The amount awarded must go so far as money can to right the wrong, but in this assessment, identification of the wrong in question is critical, especially given the mixed outcome on liability arrived at. It is important to confine the award to the 5 June online article as to the aspect reflected in the five imputations successfully sued upon, allowing for the presumption of damage to reputation. That is made more difficult in this case because the 6th imputation has been found not to be conveyed, yet evidence going to hurt, damage to reputation and vindication did not, quite understandably, separate this out. To the contrary, key parts of the evidence that Ms Molan gave, and evidence given by her mother, Mrs Anne Molan, and by Mr Phil Gould, place express or implied substantial weight to the imputation of her being a racist. Nor, again understandably, did Ms Molan's submissions give account to the component of the hurt that was attributable to reactions to her saying "Hooka, Looka, Mooka, Hooka, Fooka", including as reported in the 4 June online article that is not sued upon: see Hayson at [39]. 236 Moreover, Ms Molan's evidence summarised below by reference to the aspects she relies upon in closing submissions, does not separate out reactions to the aspects of the 5 June online article that were not reflected in the first five imputations. Nor does her evidence separate out reactions to the 5 June tweet or the 6 June tweet in relation to which her case did not succeed. 237 A useful approximation of what was in part likely to be a source of strident reaction which upset Ms Molan was the 2nd contextual imputation, namely that she "during The Continuous Call Team program on 2GB radio, engaged in conduct that was likely to offend persons because of their race or ethnic origin", being saying with an accent "Hooka, Looka, Mooka, Hooka, Fooka", that I have found to be true, namely that what she said was legitimately able to be regarded as offensive to Pacific Islanders. She is not entitled to damages for being hurt by proportionate reactions to her causing such offence, because they are true and therefore justified. 238 A further factor is Ms Molan's reliance on her reaction to the defence being filed, which annexed particulars of prior broadcasts of the Continuous Call Team program involving Ms Molan on Radio 2GB between March 2017 and May 2020, culminating in the 30 May 2020 broadcast. As noted below, her evidence was that the filing of the defence was a particularly distressing occasion, which I infer was due to the aspect of that material was intended to be relied upon to prove the substantial truth of the 6th imputation that she was a racist. I did not need to decide whether that defence was made out or not, because I found that this imputation was not conveyed. It is not appropriate to make any further comment about that material in relation to the purpose for which it was relied upon by Dailymail.com in response to the 6th imputation. However, given Ms Molan's reliance upon that material being filed in her case for damages, I need to address it in a more limited way to address that use. 239 I do not accept that it was improper for Dailymail.com to have sought to meet the 6th imputation in this way. Further, irrespective of whether that material might have been enough to prove the substantial truth of the 6th imputation, there is no doubt in my mind that the behaviour exhibited in the segments that were relied upon, to which Ms Molan was an active participant, were considerably more offensive, in terms of, for example, perpetuating racial stereotypes, than the uttering the words "Hooka, Looka, Mooka, Hooka, Fooka". It follows that I am unwilling to give any weight to the hurt Ms Molan deposes to, summarised below, arising from the filing of that defence. 240 Finally, there was no evidence of any actual economic loss arising out of the publication of the 5 June online article, with prediction of a potential future loss anchored firmly on the 6th imputation of being a racist, which I have found was not conveyed. I am unable to accept that the significantly less serious 1st to 5th imputations, are likely to have had any long lasting impact on her reputation beyond that which is presumed, not least because they concern allegations of intemperate conduct over a narrow period of time over a few days, rather than any enduring characteristic. 241 With the above qualifications in mind, I turn to Ms Molan's submissions on damages. She relies upon the following in seeking a substantial award of damages, including aggravated damages: (a) she gave honest and forthright evidence, including that she suffered what is described as extreme hurt as a result of the 5 June online article, including that when it was published she felt sick, angry and very upset and did not sleep that night; (b) she suffered an onslaught of social media responses constituting a barrage of abuse and felt almost incapable of functioning; (c) this was substantially worsened by the publication of the 5 June tweet and the 6 June tweet (which she has not succeeded on), such that she felt sick, angry, hurt, upset and confused upon becoming aware of the 5 June tweet; (d) as at 10 June 2020, she was in a very bad place, was inconsolable, had received multiple death threats, and that it was hard for her to think back to that time because it was so traumatic; (e) during the months following the publication of the 5 June online article, the 5 June tweet and the 6 June tweet, she felt sick all the time, was very anxious before NRL broadcasts, was nervous whenever she left the house and frequently was incapable of functioning; (f) a particularly distressing occasion was when Dailymail.com filed its defence, describing it as probably the lowest she had been and probably has ever been, that she has not recovered to how she was prior to 4 June 2020 (that is, before the 4 June online article which is not sued upon) and is not sure that she will ever recover; 242 Ms Molan also relies upon it being, she submits, plain throughout her evidence in chief and cross-examination that the hearing caused her further hurt, and that she was visibly distressed when giving evidence as to the importance of her reputation to her job, when discussing the hurt she felt as a result of Dailymail.com's three publications, in responding to Dailymail.com's imputations (understandably referred to without differentiation between them) and at the close of the second date of the trial. While it was certainly the case that Ms Molan found giving evidence difficult, a number of observations need to be made. The main and most substantial part of that difficulty related to the evidence in cross-examination directed to the defence of substantial truth of the 6th imputation and also went to the 2nd contextual imputation of causing offence which has been found to be substantially true. Thus, the greater part of the hurt described arises from the defence of an imputation that was not conveyed. It follows that I am unable to give substantial weight to her evidence of hurt, which I accept was corroborated by her mother's evidence. However, I do take this evidence and the related submissions into account insofar as I am able to attribute it to the first five imputations, offset by the truth of the 2nd contextual imputation. 243 To the extent that Ms Molan relies upon the publication of the much shorter 4 June online article in the calculation of damages, I am unable to accept that is appropriate. It is clear that this was not an article that would likely have been able to be successfully sued upon, not least because it was much more balanced and made more prominent Ms Molan's denials and explanations. That article most closely reflects the reality of the situation, as reflected in the substance of the 2nd contextual imputation. 244 Ms Molan also relies upon the evidence of Mr Francis Owusu, the founder and CEO of a charitable organisation focussed on young people called Kulture Break, who had known her since 2010 as a journalist. He gave evidence of her becoming an ambassador of Kulture Break in 2017, and since that time using her influence to support and promote the organisation. In large measure, his evidence was directed to rebutting the defence of the 6th imputation, as well as giving positive evidence of her reputation for integrity, empathy and compassion, which aligned with Kulture Break and led to her becoming an ambassador. His evidence is that as at the start of 2020, Ms Molan had a reputation of being considerate and looking out for the wellbeing of others. 245 On the topic of aggravation of damages, Ms Molan relies upon: (a) the circumstances of publication, including that it is ongoing; (b) Dailymail.com's conduct in conducting a campaign against her, starting with the 4 June online article, the 5 June online article, the 5 June tweet, the 6 June tweet, and a further article published on 6 June 2020 (also not sued upon); (c) the conduct in attributing to her the phrase an "in-joke" (which I have already found was not in substance different to a joke between commentators, albeit shared with the Radio 2GB audience, and not in any event materially different to a joke, as both occur in the context of an issue of at least racial insensitivity); (d) the conduct in asserting that she had refused to apologise, which has been addressed in some detail earlier in these reasons. 246 Ms Molan's reference above to a campaign by Dailymail.com tends to suggest that the sequence of publications was in some way pre-planned. Whether or not that was intended to be submitted, I do not accept that is so on the evidence before me. The better way to understand what happened was that Dailymail.com found out about her saying "Hooka, Looka, Mooka, Hooka, Fooka" during the course of the 30 May 2020 broadcast, ran an initial story about it, and then ran with the reaction which that had engendered. They obtained an explanation for what had happened by reference to the Warren story, but decided to persist. They went too far, were not careful enough, and made a number of material and defamatory errors which were not able to be justified, but did not go as far as Ms Molan's case and arguments depict. 247 The reference in the email from Mr Crawford to Ms Zaczek, both at Dailymail.com, "Let's rip into this sheila" was a private, revealing, unsavoury and erroneous reflection of the extent of the error in overstating and erroneously characterising what Ms Molan had in fact done. It seems significantly based upon the views expressed by Dr Tiatia-Seath, themselves based on an incorrect understanding of what had taken place. Dr Tiatia-Seath was, it seems, similarly mistaken at least as to the extent of what had in fact taken place. 248 The overall conduct of Dailymail.com warrants some measure of aggravation, but Ms Molan's submissions overstate the situation, and in the process, fail to acknowledge or accept that she had done even the slightest thing wrong, capable of causing real offence. 249 I ultimately conclude the following: (a) A substantial part of the hurt that Ms Molan deposed to, and evidence adduced at trial, was based upon her perception that she had been accused of being a racist, when this was not in fact conveyed. (b) The presumed damage to reputation must be confined to the aspects of the 5 June online article that are identified in the 1st to 5th imputations, which have both overlapping and separate features, and can be summarised as defaming her and thereby traducing her reputation, causing her harm, and warranting vindication by, wrongly and without justification of any kind beyond the truth of one contextual imputation, alleging in the impugned segment of the 30 May 2020 broadcast that: (i) she had callously and deliberately mocked the names of Pacific Islanders on air and lied about having done so by falsely claiming she was referring to a joke (or an in-joke) between her and her co-hosts on the commentary team; (ii) she had refused to apologise despite the offence that she had caused the Polynesian NRL community and their cultural history, noting that this aspect is offset to some extent because I have found that the contextual imputation that she caused such offence is substantially true; (iii) she had a disrespectful and incompetent inability to pronounce the names of Polynesian NRL players to the point of being unfit to be an NRL commentator; (iv) she is an arrogant woman of white privilege in behaving in this way; (v) she had cynically used George Floyd's death to promote herself as sympathetic to Black Lives Matter protests against racism and inequality despite her conduct on air. (c) The above defamatory allegations, while hurtful, are not at the higher levels of seriousness and despite remaining online have not been demonstrated to be of an enduring nature, especially as they amount to unfounded allegations about transient conduct rather than more serious conduct such as illegality, or about her character. They are about a limited sequence of events over a short period of time. There is a need to maintain a dispassionate perspective about what has, and has not, taken place. While the imputations established do go to Ms Molan's professionalism and ethics as a journalist and media commentator, they do not have the consequence that she is unlikely to continue to be successful in her career. (d) The audience, while substantial in number, being almost 60,000 people as at 23 October 2020, was only in the transient and evanescent medium of an online publication which is most unlikely to have been printed or otherwise retained by any reader. (e) There is a basis for some degree of aggravation of damages, but not to a substantial extent. (f) There is a slightly more substantial basis for mitigation of damages than aggravation of damages based on the truth of the 2nd contextual imputation, because the simple fact is that, however unwittingly or carelessly, Ms Molan was not only likely to cause offence by saying "Hooka, Looka, Mooka, Hooka, Fooka", but I am comfortably satisfied that she did in fact cause offence for that reason alone, independently of the unwarranted allegations made that went beyond that as alleged in the 5 June online article in the manner identified by the 1st to 5th imputations. (g) There is nonetheless a sufficient gap between what Ms Molan was shown to have done as reflected in the truth of the 2nd contextual imputation and what she did not do, as reflected in the unjustified and indefensible 1st to 5th imputations to warrant a substantial, but not excessive award of damages. (h) While there must be an award of damages, I am obliged by s 34 of the Defamation Act to ensure that the amount of damages awarded bears an appropriate and rational relationship to the harm sustained. (i) Taking all of those considerations into account, and noting that although no comparative awards of damages were advanced by either party to act as any yardstick, I am aware of and have taken into account a number of awards going to the conduct of an occupation. (j) I conclude that the appropriate award of damages bearing a rational relationship to what has been wrongly said about Ms Molan is $150,000 with interest at half the pre-judgment rate at the time of the publication of these reasons to reflect the change in interest rates between June 2020 and now. (k) By any standard this is a substantial sum of money for closely interrelated and unwarranted online slurs, sufficient for any ordinary person to be well and truly satisfied that they were untrue and should never have been published. I consider this sufficiently meets the sting of the 5 June online article as reflected in the imputations that have succeeded. (l) Dailymail.com needs to substantially improve the care that it takes, or face further and greater awards of damages. Freedom of expression must be balanced with responsibility and basic professionalism which was sadly lacking in this case.

INJUNCTION 250 Ms Molan asks to be heard on the question of an injunction to take down the 5 June online article if it is still up, after considering these reasons. That is a reasonable request, and I accede to it. It may be that Dailymail.com sensibly and promptly elects to take down the 5 June online article if it has not already done so.

COSTS 251 Costs should follow the event, but I will hear from the parties before making any costs order. I certify that the preceding two hundred and fifty-one (251) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.