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.