Obeid v Australian Broadcasting Corporation

District Court of NSW|2007-03-09|Before: Tobias JA

CITATION: Obeid v Australian Broadcasting Corporation [2007] NSWDC 26

HEARING DATE(S): 27/11/06-30/11/06, 1/12/06, 4/12/06 and 8/12/06, 2/02/07 and 16/02/07

DECISION: 1. Judgment for the plaintiff against the defendant for $150,000; 2.Interest at 2% per annum from the date of publication (30 August 2002) to the date of judgment (8 March 2007); 3.The plaintiff and defendant have liberty to apply in relation to order 2 or, in the alternative, to file short minutes of order reflecting the total judgment sum inclusive of interest; 4.Defendant to pay plaintiff's costs; 5.Liberty to restore in relation to any costs or interest argument; 6. Exhibits retained for 28 days

CATCHWORDS: Defamation - statutory defence of qualified privilege, common law qualified privilege for discussion of government and political matters - common law qualified privilege and Reynolds v Times Newspapers Limited - defence of "responsible journalism" - reasonableness - seriousness of imputations - failure to enquire before publication - accuracy of publication - general damages - aggravated compensatory damages - impact of damages awarded in proceedings against other defendants.

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Austin v Mirror Newspapers (1985) 3 NSWLR 354 Australian Broadcasting Corporation v Obeid [2006] NSWCA 231 Australian Broadcasting Corporation v O'Neill (2006) 229 ALR 257 Bonnick v Morris [2003] 1 AC 300 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 Crampton v Nugawela (1996) 41 NSWLR 176 Evatt v Nationwide News Pty Ltd (1999) NSWCA 19 Jameel Co Ltd v Wall Street Journal Europe SPRL [2004] EWHC 37 (QB) Jameel v Wall Street Journal Europe SPRL (No. 2) [2005] EWLA Civ 74 Jameel & Anor v Wall Street Journal [2006] UKHL 44 Jarrett v John Fairfax Publications Pty Ltd [2001] NSWSC 739 CASES CITED: John Fairfax & Sons Pty Ltd v Kelly (1987) 8 NSWLR 131 John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 John Fairfax & Sons Pty Ltd & Anor v Vilo [2001] NSWCA 290 John Fairfax & Sons Pty Ltd & Anor v Zunter [2006] NSWCA 227 Konstantinidis v Foreign Media Pty Ltd & Ors [2003] NSWSC 1135 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 MPB (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059 Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 State of New South Wales v Riley (2002-3) 57 NSWLR 496

PARTIES: Edward Obeid (Plaintiff) Australian Broadcasting Corporation (Defendant)

COUNSEL: Bruce McClintock SC; M Richardson (Plaintiff) T C Blackburn SC; E Raper (Defendant)

SOLICITORS: Johnson Winter & Slattery (Plaintiff) ABC Legal Services (Defendant)

1 HER HONOUR ... Mr Obeid, a member of the Upper House of the State Parliament of New South Wales since 1991, brings proceedings for defamation against the defendant arising out of the broadcast of the ABC Radio 702 morning programme conducted by Sally Loane on 30 August 2002. The matter complained of is a broadcast published throughout the New South Wales metropolitan and country areas over a period between 9.00 and 9.30 am. The subject matter was also referred to on several occasions during the rest of the morning programme, a matter which can be taken into account when determining, for the purpose of the defence of statutory qualified privilege, whether the defendant's conduct was reasonable (Australian Broadcasting Corporation v Obeid [2006] NSWCA 231 at [76] per Tobias JA).

2 On 5 October 2005 a jury empanelled pursuant to the provisions of s.7A Defamation Act 1974 decided that the matter complained of, the text of which is set out as an annexure to this judgment, conveyed the following three defamatory imputations:

(a) The plaintiff corruptly (dishonestly) offered to assist in resolving problems with the Oasis Development if the Bulldogs Leagues Club made a $1m payment to the Australian Labor Party ("ALP"); (b) The plaintiff attempted to obtain a bribe, that is, a payment of $1m for the ALP, in return for facilitating the completion of the Oasis Development; (c) The plaintiff lied when he denied that he had sought a bribe for the ALP in return for facilitating the completion of the Oasis Development.

3 The background to this radio programme is as follows. Earlier, on the same day as this radio programme, an article appeared on the front page of The Sydney Morning Herald ("the Herald"). This newspaper story alleged the plaintiff had solicited a bribe for the ALP of up to $2 million from the Canterbury Bankstown ("Bulldogs") Rugby League Club. In return for this bribe, the State Government would provide land for the construction of the Oasis Recreational Development ("Oasis") at Liverpool. Troubles at the Oasis had been the subject of numerous newspaper reports over the previous two weeks. The Bulldogs were also in the news over allegations of breach of salary caps for Bulldogs players. The NRL was holding talks with the Bulldogs about salary cap breach allegations but the central story to all of this was linked to a $900 million development at Liverpool, which journalists were calling "the Pokie Palace Oasis", a joint venture partnership between Liverpool Council and the Canterbury Bankstown Leagues Club.

4 The connection between the Oasis Development and the salary cap issue was that some of the funds used to breach the salary cap for the players had originated from developers associated with the Oasis project (T-72). Sally Loane had interviewed a Mr Constantinidis about these interlocking stories on 19 and 28 August 2002. He told her that Oasis was his brainchild. However, he and the other parties had a falling out and he left the project a matter of weeks before the radio broadcast about Mr Obeid. He was also not on good terms with the NSW Labor Government. In fact, the Premier of New South Wales, Mr Bob Carr, told Sally Loane on her radio programme only days before the broadcast about Mr Obeid that: "Anyone in my government would have reservations about any proposal with which Mr Al Constantinidis is associated." (Exhibit J).

5 It is against this background that on the morning of 30 August 2002 the Herald published its front page article. The Herald claimed that Mr Gary McIntyre (the President of the Bulldogs at the relevant time), as the Oasis representative, had discussions with Mr Obeid in which Mr Obeid solicited a bribe of $1 million or $2 million in return for assistance in transferring Crown Land for the Oasis Development. The Herald article identified two sources for this story. One source, Mr Wells, was named but the other was not named. Both sources said Mr McIntyre had told then about a conversation he had with Mr Obeid. The unnamed source said Mr McIntyre had told him about it 18 months ago. The Herald then set out the responses of Mr Obeid and Mr McIntyre. Mr McIntyre, when asked whether the Bulldogs had been pressured into making a donation to the ALP in return for a waiver on the poker machine freeze said "That's absolute garbage" and that he had never had a meeting with Eddie Obeid (although he had met him recently). He declined to comment further because he was "just giving oxygen to something that doesn't have legs at all". Mr Obeid denied the allegations and said he had met Mr McIntyre on only a handful of occasions, most recently at a Bulldogs function earlier that month.

6 Mr Carr, the Premier of New South Wales, immediately emphatically denied the story in the strongest language in a radio interview the same morning. He called the claims "totally false" and "hugely defamatory", saying Mr Obeid would be able to take legal action against the Herald because of this article. It was a sensational development in events that were already front page news that allegations of such a serious nature were made against the plaintiff.

7 The morning programme on Radio 702 was a current affairs programme headed by one of the most experienced journalists in Australia, Ms Sally Loane. She had been following the Bulldogs saga closely and had conducted two very skilled interviews with Mr Al Constantinidis earlier the same month in which she put a number of perceptive and skilful questions. The allegations against the plaintiff were a new development in a matter that she had already been following closely (T-130, 132-135).

8 On the day of the broadcast, Ms Loane arrived at work between 5.30 and 6.00 am and looked through all four newspapers, making notes and thinking about stories of the day. Between 7.00 am and 7.30 am Ms Loane and her three producers usually had an editorial conference to talk about the stories of the day to pursue. The programme consisted of live interviews and in preparation for these, Ms Loane would prepare notes. In particular, her attention was caught by the ABC's own radio interview with Bob Carr, the Premier of New South Wales, on the breakfast programme earlier that morning. Ms Loane explained:

"He was the Premier of New South Wales. He was a man of, you know, a lot of authority. This was clearly something about which he felt very, very strongly and it was very newsworthy. The fact that Mr Carr had injected himself into this story, quite unusual and newsworthy." (T-138.29-34).

9 At the conference, which was attended by John Morrison, Peter Hand and Yuskay Aso, the tasks were split up for preparation of the morning programme. It was the job of the producers to go straight to the phones and start calling (T-138-139). These calls commenced after 7.30 am. They contacted Mr McIntyre, the person who was alleged to have had the conversation with Mr Obeid, but a member of his family said he did not want to come on the programme. Contact was made with the plaintiff's office but it became clear from these calls that the plaintiff was going to give a press conference in Parliament House for all journalists, and any kind of exclusive interview was unlikely.

10 Fairly soon after 7.30 am, the ABC's most senior producer, Mr John Morrison, made a telephone call to Mr Al Constantinidis, who had appeared on the morning programme on 28 August and whose phone number Mr Morrison had. According to his statement (Exhibit K) Mr Morrison tried to find Mr Wells' company and background on the Internet without much luck, telephoned an unrelated person named John Wells with a PR company and made a few "dead calls" to persons surnamed Wells in the White Pages, and only then telephoned Al Constantinidis. However, in his evidence to the Court, Mr Morrison said he rang Mr Constantinidis first (T-240) and that he looked in the telephone book (not the internet) for Mr Wells' name and number while waiting to hear back from Mr Constantinidis.

11 During his telephone discussion Mr Morrison asked Mr Constantinidis if he was aware of the story that was running, if he knew Mr Wells, and if so whether he had a contact number for him. Mr Constantinidis said he did know Mr Wells and according to Mr Morrison's statement "volunteered to call him for me and ask Mr Wells to get in contact with me". At this stage, Mr Constantinidis provided Mr Morrison with a little bit of background on Mr Wells, which was that he had been brought in to do the public relations for the Oasis Development.

12 Although Mr Constantinidis had been interviewed twice on the programme that month (the second time only two days beforehand) about the Oasis development, Mr Morrison did not ask Mr Constantinidis anything else about the allegations in the Herald. He did, however, ascertain that Mr Constantinidis had introduced Mr Wells as a consultant on the project, and it was in this capacity that Mr Wells had the discussion with Mr McIntyre when the comments made by Mr Obeid were allegedly related by Mr McIntyre to Mr Wells.

13 When Mr Wells had not called by 8.45 am, Mr Morrison called Mr Constantinidis again and asked if he had been able to contact him. Mr Constantinidis said he had, that Mr Wells had agreed to talk, and that he was surprised he had not called him. According to Mr Morrison's statement, he understood that Mr Constantinidis followed up that conversation with Mr Wells after that call. At about 3 minutes to 9 Mr Wells rang the radio station and said he was willing to talk about the story. Mr Morrison asked him whether the contents of the Herald article were correct and Mr Wells replied that they were. Mr Morrison asked Mr Wells his name and title and how he wished to he addressed, what work he had done as a PR and which firms he had worked for, whether he had attended the dinner referred to in the Herald article and whether he would be happy to talk about it on air. According to his statement (which I find is a more reliable document than his evidence) this conversation lasted less than a minute. Mr Morrison did not put it directly to Mr Wells whether he could confirm the conversation referred to in the Herald article and only asked whether Mr Wells would be happy to talk about his involvement in the story.

14 Ms Loane's evidence was that Mr Morrison told her nothing about the involvement of Mr Constantinidis in arranging for Mr Wells to speak to the ABC, nor did he give her any other information of significance apart from how Mr Wells wished to be addressed and a thumbnail sketch of his work history. I do not accept Mr Morrison's evidence that he did tell Ms Loane about the involvement of Mr Constantinidis (T-248-249; paragraph 17 of Exhibit K). Ms Loane's evidence was that if she had known of this she would have asked about it (T-195-6) and she did not know he had an association with Mr Constantinidis (T-197.56-57) until Mr Wells told her this. A careful reading of her questions to Mr Wells at lines 132-159 of the transcript shows Ms Loane did not realise the Constantinidis connection until in response to her question (lines 132-4) Mr Wells started praising him as a man "with a vision" (line 138). This was only one of several pieces of Mr Morrison's evidence which I find he failed to pass on to Ms Loane.

15 Mr Morrison said that because Mr Wells became available only suddenly, there was no time to obtain legal advice. In his statement, at paragraph 27 (Exhibit K) Mr Morrison said that:

"This was the decision I was faced with. If I were overly cautious it was highly likely that we would have lost the story. Ideally, we would have pre-recorded the interview with Wells and had it legalled by our lawyers but ... developments of the story were happening every half hour."

16 It is clear from this statement that Mr Morrison, not Ms Loane, made the decision not to contact the ABC lawyers. He offered no plausible explanation as to why it was "highly likely" that the story would have been lost if the ABC's lawyers (who provide a 24 hour legal service for such circumstances) had been consulted.

17 In addition to not telling Ms Loane about the involvement of Mr Constantinidis, and making a decision not to consult the ABC lawyers, there was another matter which I find Mr Morrison did not tell Ms Loane about, and this was that he had had some kind of advance notice, however slight, of this breaking story as a result of his contact with Mr Constantinidis when Mr Constantinidis appeared on the morning programme two days beforehand. It was put to Mr Morrison in cross-examination that he had a conversation with Mr Constantinidis on 28 August in which Mr Constantinidis told him in broad terms the outline of the story as it actually appeared in the Herald on 30 August. Mr Morrison denied this (T-244.34). However, Mr Morrison knew enough to get straight on to Mr Constantinidis to ask for Mr Wells' telephone number as soon as there had been a decision to go ahead with the story. What is more, his conduct in not telling Ms Loane about the involvement of Mr Constantinidis, his failure to make any enquiries about Mr Wells and the somewhat inconsistent claim of what other research (if any) he did to find Mr Wells, are all matters that are corroborative of Mr Morrison having some expectation, even if it was no more than a mysterious hint, that Mr Constantinidis could be of assistance to him. This would also explain why Mr Morrison was prepared to wait patiently for Mr Constantinidis to contact Mr Wells rather than taking other steps that would have put him in touch with Mr Wells, such as the obvious step of contacting the Herald journalist who had written the story. Mr Morrison agreed in cross-examination that it was not uncommon to interview journalists who wrote breaking stories of this sort on the morning programme.

18 By permitting himself to be manipulated in this fashion by Mr Constantinidis, and by withholding vital information from Ms Loane, Mr Morrison made it extremely difficult for Ms Loane to interview Mr Wells with the skill and insight that made her one of Australia's top journalists. Ms Loane did the best she could, but the damage was already done before Mr Wells came on the air.

19 The defendant pleads defences of qualified privilege as follows: (a)a defence pursuant to s.22 Defamation Act 1974 (NSW) (paragraphs 4(b) and 14 of the amended defence); (b)a defence of common law qualified privilege arising from the discussion of government and political matters (paragraphs 4(b) and 6-13 of the amended defence); (c)a defence relying on Reynolds v Times Newspapers Limited (2001) 2 AC 127 and Jameel and Ors v Wall Street Journal Europe SPRL [2004] EWHC 37 (QB) (paragraph 14A of the amended defence).

20 The plaintiff does not contest that the listeners to the matter complained of had an interest or apparent interest in receiving the information contained in the broadcast and that the broadcast was published to listeners in the course of giving information on that subject (ss.22(a) and (b) Defamation Act 1974), that the matter complained of related to political or government matters and that the matter complained of and the imputations arising therefrom each related to matters of public interest.

21 The defendant also drew my attention to the provisions of s.22(2A), an amendment which was introduced as part of the substantial changes to the Defamation Act 1974 when legislation introducing this section was proclaimed on 17 February 2003. While the provision about s.7A relating to juries, which are procedural in nature, are retrospective, Part 4, which contains the savings provisions, makes it clear that amendments made by this Act do not apply to defamatory imputations published before the commencement of the amendment. (The full text of these provisions is set out in my judgment in these proceedings of 28 March 2003). Accordingly, I propose to treat the provisions of s.22(2A) as providing no more than "a useful but not exhaustive checklist" of the concept of reasonableness, to quote Hoeben J, who treated similar submissions made by the plaintiff in this fashion in Obeid v John Fairfax Publications Pty Limited [2006] NSWSC 1059 at paragraph [63].

22 The decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 extended the defence of common law qualified privilege to publications concerning government and political affairs so long as the publisher acted reasonably in publishing. The language used by the High Court indicates an extension of a category of common law qualified privilege so that it would conform to the s.22 defence in New South Wales (at 569-571). The Court of Appeal in John Fairfax Publications Pty Limited v O'Shane [2005] NSWCA 164 at [83] similarly noted that decisions on the subject of reasonableness for the purpose of s.22 are of assistance when determining issues under the Lange defence.

23 The High Court in Lange explained reasonableness as follows (at 574): "Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond."

24 In Obeid v John Fairfax Publications Pty Limited at paragraph [61] Hoeben J notes:

"It follows that the requirement of reasonableness is no less onerous under Lange than it is under s.22 and that the authorities concerning a requirement for a defence under s.22 to be made out are equally applicable to the Lange defence."

25 His Honour went on to hold (at [64]-[66]) that the reasonableness requirement is not lessened or altered by reason of the fact that the publication relates to government or political matters.

26 My attention is drawn by the defendant's submissions to statements by the High Court in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 that the requirements set out by Hunt AJA in Morgan v John Fairfax & Sons Limited (No 2) (1991) 23 NSWLR 374 at 387-388 are not to be treated as the statutory prescription, but rather as being "some considerations of common relevance" because "reasonableness is not a concept that can be subjected to inflexible categorisation" (at [30]).

27 While the statements of Hunt A-JA in Morgan should not be treated as a statutory prescription, his Honour's careful analysis of the elements of the defence has nevertheless been endorsed by the Court of Appeal in a number of decisions (Evatt v Nationwide News Pty Ltd [1999] NSWCA 99 at [18]; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [22]; John Fairfax & Sons Pty Limited & Anor v Vilo [2001] NSWCA 290 at [124]). The plaintiff, in his counsels' helpful written submissions, draws my attention to the following three particular characteristics of reasonableness from Hunt A-JA's checklist: 1. The conduct must have been reasonable in relation to the publication of each imputation. The more serious the imputation, the greater the obligation on the defendant to ensure the conduct was reasonable.

If a defendant does not intend to convey a particular imputation that is found by the jury to be conveyed, then it must establish that its conduct was reasonable in the circumstances in which the imputation was in fact conveyed. If it is reasonably foreseeable an imputation can be conveyed, then the Court will consider whether the defendant gave any consideration to the possibility the imputation would be conveyed and, in particular, to what steps the defendant took to prevent the matter complained of from conveying such an imputation and being so understood.

The defendant must establish that it exercised reasonable care by ensuring the conclusions were right and, where appropriate, making proper enquiries and checking the accuracy of sources. The nature and source of the information obtained by the defendant and the defendant's perception of the position, standing, character and opportunities of knowledge of the informant are of relevance.

28 In relation to this third requirement, I should note the statements by the Privy Council in Austin v Mirror Newspapers (1985) 3 NSWLR 354 at 364-5:

"When a journalist wishes to make such a trenchant and potentially damaging attack it is in the interest of society that he should be expected to take all reasonable steps to ensure he got his facts right. The media has enormous power both for good and ill and it would be a sorry day if newspapers were encouraged to believe that under the shield of qualified privilege the reputation of individuals could be attacked by slipshod journalism that would provide no defence of comment because the facts on which the attach was based were not true.

There would of course be cases in which despite all reasonable care the journalist gets the facts wrong, but a member of the public is at least entitled to expect that a journalist will take reasonable care to get his facts right before he launches an attack him in a daily newspaper. If on enquiry it is found that the facts are not true and that reasonable care has not been taken to establish them, the Court should be very slow to hold that the newspaper is protected by qualified privilege. The public deserves to be protected against irresponsible journalism."

29 I note similar warnings in Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 at 797.

30 The defendant in written submissions (at paragraph 24) submitted that the plaintiff's attack in relation to reasonableness came down to the following factors: 1. The ABC was repeating a serious allegation of which it had no independent knowledge, and in respect of which it had not had any opportunity to carry out its own research into the truth or falsity of it; 2. Neither Mr Morrison nor Ms Loane effectively "proofed" Mr Wells before he went to air; 3. Mr Morrison and Ms Loane should have dismissed Mr Wells' assertions, apparently on the basis that he had been introduced to the project by Mr Constantinidis, who by that stage (but not at the stage of Mr Wells' involvement in the project) was said by the plaintiff to have a grudge against the State Government by reason of his exclusion from dealing with the government; 4. The defendant did not seek legal advice before broadcasting; 5. The interview by Ms Loane failed to be sufficiently hostile to Mr Wells or sceptical of his claims; 6. The ABC "gave oxygen" to the Wells allegation.

31 While a number of these matters were referred to by the plaintiff, they are peripheral to the issues to be considered when determining the issues relevant to reasonableness. The issues that were raised by the plaintiff were as follows:

The failure to adequately consider whether the imputations found by the jury would be conveyed to ordinary reasonable listeners; 2. The failure to refer to Mr McIntyre's denial; 3. The unreliability of Mr Wells and Mr Constantinidis; 4. The failure to make proper enquiries to verify Mr Wells' information and the decision to broadcast a live interview with him in those circumstances; 5. The failure of the defendant to delay the broadcast of the interview in circumstances where it knew the plaintiff was about to hold a press conference; 6. The failure to do more than play brief excerpts of the plaintiff's parliamentary press conference and the admitted serious defectiveness of the research by the defendant's researchers, including failing to pass on essential information to Ms Loane.

32 The defendant in written submissions did not address many of the issues raised by the plaintiff in the plaintiff's written submissions and as a result an additional day of oral submissions by the defendant, followed by further written submissions on the issue of the failure to include any reference to Mr McIntyre's comments and other issues, was necessary. Particulars (a) - (d) in the defendant's list relate essentially to failure to inquire, which is well down the list of the plaintiff's complaints, and particulars (e) and (f) are an attempt to deal with the failure of the defendant to broadcast any reference whatsoever to Mr McIntyre's response to Mr Wells' allegations. I have nevertheless, addressed these issues when considering whether the defences of qualified privilege are made out.

(i) Failure to consider whether the imputations would be conveyed

33 The first issue for consideration is the failure to consider, either adequately or at all, whether the imputations found by the jury to have been conveyed would be conveyed to ordinary reasonable listeners.

34 The defendant has admitted that it had no intention to convey the imputations found by the jury (Exhibit G).

35 The following was evidence concerning the possibility of the imputations being conveyed: 1. Ms Loane gave evidence that she did consider imputations (a) and (b) could be conveyed (T-161-162) and said that to prevent the imputations being conveyed she tried to make the interview balanced by trying to get interviews with the plaintiff as well as Mr Wells, by playing the denial of Mr Carr and "testing" the bona fides of Mr Wells. Ms Loane said at transcript page 162, lines 25 and following:

"What I was trying to do with Mr Wells was to, I suppose, test his bona fides … I did not know what sort of person he was. I wanted to get him on air to talk to him about a lot of things, not just about the imputations - in fact, I wanted to, I guess, not direct him so much as to those. I wanted to make sure or to try and find out his knowledge about the entire Bulldogs story and the Bulldogs issue because that, to me, would I guess test his bona fides to see how long he'd been there, and also to - so I could get a handle on perhaps his knowledge and what sort of a person that he may have been. So I didn't go back and back and back to those imputations because I also wanted to make sure that he wasn't some sort of ratbag, you know, using the programme to dump, or if he had an axe to grind, I wanted to really find out about his knowledge about other things."

The defendant could have and should have made further checks about the "bona fides" of Mr Wells, particularly any connection with Mr Constantinidis, before broadcasting the interview. Such enquiries would have armed the defendant with information it could have used to present a balanced interview. The defendant did not do anything to change the structure of the broadcast although it should have been obvious before the interview even started that the effect of a lengthy live interview following two comparatively brief denials could water down the effect of those denials and allow the imputations to be conveyed. Ms Loane must have foreseen that Mr Wells was likely to repeat and expand upon the allegations contained in the Herald (T-203.34, 246.38) because she asked him to "confirm" what was in the Herald . 3. Ms Loane did not "test" Mr Wells in the interview. At one point when Ms Loane put part of the substance of the plaintiff's denial to Mr Wells (lines 185-194) he replied it was a "smokescreen" and a "form of defence by not offering any defence at all". Ms Loane then immediately says "So you believe that Mr McIntyre had the conversation with Eddie Obeid". Whether or not Ms Loane used the 'dump' button (T-202.22-.36) (which I accept was really for use in emergencies), she did nothing to challenge or question this attack on Mr Obeid, although it substantially raised the likelihood that the imputation could be conveyed. 4. At another point (Exhibit A, line 168) Mr Wells refers to the ALP being renowned for using the Courts to shut people up. Ms Loane agreed in cross-examination at T-199.2 that this remark showed that Wells' state of mind meant that he may at some point have been angry with the Labor Party. Ms Loane did not ask him anything at all about that remark, although it was clearly his response to Mr Carr's intervention and its effect was to water down or negate the impact of starting the programme with Mr Carr's strong words. In addition, such a statement is scurrilous, and by allowing it to go unchecked the defendant ran the risk of appearing to confirm what is essentially an urban myth. 5. At lines 154-157 of Exhibit A Ms Loane asks whether Mr Constantinidis brought Mr Wells into the project and Mr Wells replies in the affirmative. The 28 August 2002 interview shows Ms Loane was aware that Mr Constantinidis had had a complete rupture with the NSW State Government and she also knew he had left Oasis (and thus broken with Mr McIntyre). Yet, informed of an association between Mr Wells and Constantinidis, she did nothing to question him to determine whether their association is close or continuing and asks nothing to "test" Mr Wells at all. At no stage did Ms Loane "test" Mr Wells on the responses of Gary McIntyre as published in the Herald . Not only did she not refer to them, but she appeared by her questioning (especially her question about whether Mr Wells believed Mr McIntyre had the conversation with Mr Obeid) to be confirming that Mr McIntyre had said these things, not that he had called this allegation "garbage".

36 While the defendant did attempt to reduce the possibility of the imputations being conveyed by broadcasting the denial of Mr Carr, this was substantially undermined not only by the lengthy interview with Mr Wells but also by his attack on Mr Obeid and the ALP (and by inference Mr Carr) by responding to the possibility of being sued by saying "this is simply an example of the ALP using the Courts to shut people up" (line 167) and by describing Mr Obeid's denials as being "a smokescreen" and adding "this is one form of defence by not offering any defence at all" (lines 190-194).

37 Finally, the denial of the plaintiff read at the commencement of the broadcast was undercut by the misleading reference to the plaintiff's unwillingness to come on air. What Ms Loane said about this was as follows:

"Now, we contacted Gary McIntyre this morning, he doesn't want to talk about it, Mr Obeid has released a statement, which I will read in a moment." (lines 11-12)

"And that was Bob Carr earlier this morning on Breakfast. Now, Eddie Obeid doesn't want to come on air this morning. We've put in calls to him, of course. He has denied the allegations. He's just released a statement." [Ms Loane then read the statement] (lines 34-36)

" Now, we - as we said, we put in a call to Eddie Obeid, we put in a call to Gary McIntyre, because the assertions were made by this man, Mark Wells, and he says he was told of this conversation between Gary McIntyre and Eddie Obeid. Now, we've just put in a call, as I said, to Mark Wells, and he joins me on the line." (lines 45-48)

38 The following can be noted from these excerpts. First of all there is the comparison between the willingness of Mr Carr and Mr Wells to go public with the unwillingness of Mr Obeid and Mr McIntyre, who are the two people who allegedly had this conversation. Secondly, there is the faint sarcasm in the way in which Mr Obeid is presented as not wanting to come on air in circumstances where the defendant had "put in calls to him, of course". In fact, as the defendant's researcher Mr Morrison well knew, Mr Obeid was being besieged by reporters and intended to put out a press statement.

39 Ms Loane agreed she knew he was unavailable and could not come on air, as opposed to would not come on air (T-142, 143) and that there were obvious reasons why this was the case (T-206). However, the way that this information was put to the listener was capable of misleading listeners into thinking that Mr Obeid had something to hide. It reduced the credibility of the denial she read out, as did the implicit comparison of his conduct with the willingness of Mr Wells and Mr Carr to go public.

(ii) Failure to refer to the statements of Mr McIntyre

40 The Herald journalists put the allegation to Mr McIntyre that the ALP had sought a donation to the ALP in return for solving the Bulldogs' problems with the poker machine freeze (the Herald article dates Mr McIntyre's statements to this effect as "18 months" before publication of the Herald article in August 2002). Mr McIntyre's response was "That's absolute garbage".

41 The Herald then asked: "so there wasn't a meeting with Eddie Obeid where he had suggested that?" Mr McIntyre replied: "I have never had a meeting with Eddie Obeid. Oh, sorry, I have recently. Look, I don't want to comment on this because I am just giving oxygen to something that doesn't have legs at all. Look, this club has never been involved in any impropriety at all."

42 This was never referred to by Ms Loane during her opening remarks, nor did she ask Mr Wells about it. Ms Loane's references to Mr McIntyre and his alleged conversations with Mr Obeid and Mr Wells were as follows: 1.After describing the allegation that Mr Obeid is alleged to have told Mr McIntyre that if the Bulldogs made a donation to the ALP the Oasis project would go straight through, she says "we contacted Gary McIntyre this morning, he doesn't want to talk about it." (lines 9 - 11)

Mr McIntyre allegedly told Mr Wells about a conversation he allegedly had with Mr Obeid (lines 16 - 17). Mr Carr's statement (lines 22 - 31) does not refer Mr McIntyre.

Ms Loane then said Mr Obeid had released a statement denying the allegations and saying that as the Minister for Fisheries he had no role in assessing club matters. Ms Loane then said: "We put in a call to Eddie Obeid, we put in a call to Gary McIntyre, because the assertions were made by this man, Mark Wells, and he says he was told of this conversation between Gary McIntyre and Eddie Obeid" (lines 45 - 47)

Ms Loane then asked Mr Wells, who came on the line, to "confirm the allegations" of a conversation he had with Gary McIntyre, which Mr Wells did, and she then asked what Gary McIntyre "actually said to you" and "what other things did Gary McIntyre say about this meeting". Mr Wells described the rest of what Gary McIntyre said and when on to say "you have to ask the question, Sally, why the government would be so recalcitrant in giving over a very small piece of land…[T]he government aren't selling it for whatever reason, whether it's Al Constantinidis or the Oasis development hasn't paid up the money that the ALP want or whatever." (lines 52 - 83).

Mr Wells then said he was called in to work on the project to say "look, what's going on here" but that "all of this stuff about the money had come in a long time before we were ever involved with the project" and that this suggestion had come from Mr Obeid. (lines 101 - 114).

Mr Wells then said that he had "heard the story related to me twice" but that according to the newspaper "other people have confirmed that the conversation took place with McIntyre at various times over the previous few years" (lines 116 - 122).

Mr Wells, when asked if Mr McIntyre said he wished that he had paid the money, said the conversation was a little more involved than that, but that these words had been said (lines 124 - 130).

There was then a discussion about whether the involvement of Al Constantinidis had been an obstacle and that it was no secret that the Labor Government wanted him removed, adding that the State Government had said "we'll give you this block of land if you get rid of [Constantinidis] although he had been the man with the vision to create the project." (lines 132 - 148)

After asking who hired Mr Wells (he said Gary McIntyre did) and finding out his contract finished about four months ago, Ms Loane then put to Mr Wells that both Bob Carr and Mr Obeid said that the allegations are defamatory and asked if he was concerned that "you may be the brunt of some legal action" (lines 163 - 165). Mr Wells said the story had been "cleared" by the Herald 's lawyers and went on to say that the ALP was renowned for using the courts to shut people up when they did not get their own way so if he was going to do this kind of work this was a risk he had to accept (lines 167 - 171)

Mr Wells was then asked if it had come through, in what Mr McIntyre said to him, that the pokie cap would be smoothed over if the million dollars was paid and asked what his response was to hearing Mr Obeid was the minister who was allegedly talking to Mr McIntyre because fisheries had nothing to do with poker machines. Mr Wells dismissed this as a "smokescreen", "some form of defence by not offering any defence at all" (lines 185 - 194)

Critically, Ms Loane then asked: "so you believe that Mr McIntyre had this conversation with Eddie Obeid? You believe that?" and Mr Wells said "I've got no reason to believe that he didn't" and confirmed the sum the ALP wanted had "always been around a million [dollars]". The interview then ended with Ms Loane saying "Hmm" (lines 196 - 210).

43 The defendant did not address Ms Loane's failure to refer to Mr McIntyre's statements in its senior counsel's first written submissions. In response to inquiries about the defendant's position on this, Mr Blackburn SC, in oral submissions, described this asserted omission as irrelevant or at best "something the defendant has to live with".

44 The defendant then reconsidered its position and provided further written submissions on this issue, which can be summarised as follows: 1. Ms Loane told her listeners that the ABC had tried unsuccessfully to contact Mr McIntyre, and this would have alerted the listeners to the fact that he "may have something to say about the matter" (submissions, paragraphs 8(b), (c));

The broadcast was live-to-air and Mr Wells' availability was known "seconds before the broadcast" (paragraphs 8(a), (d));

The defendant broadcast the strenuous denials of the plaintiff and Mr Carr (paragraph 8 (e));

Mr McIntyre's denial in the Herald was not unequivocal and in particular he had not said that what Mr Wells said had happened was wrong (paragraphs 8(f),(g),(i). A later ICAC inquiry finding is relied upon to demonstrate this: (paragraphs (j),(k));

These denials were matters outside Mr Wells' knowledge, so far as the defendant could have been aware from the Herald , and it was an entirely false issue to say that not only should they have been raised but Mr Wells should have been asked about them (paragraph 8(h)); and

Finally, the defendant never asserted that Mr McIntyre had in fact said the things alleged, and did test Mr Wells about his association with Mr McIntyre.

45 The fact that Mr McIntyre could not or would not come on the air does not relieve the defendant of the obligation to refer to Mr McIntyre's dismissal of the claims that a $1M bribe was sought from him as "absolute garbage". The obligation on a publisher seeking to establish reasonableness includes, as Hunt A-JA pointed in Morgan v John Fairfax & Sons Pty Ltd [1991] 23 NSWLR 374 at 387, an obligation to ensure that there were efforts to get the conclusions right and that these conclusions followed logically, fairly and reasonably from the information which had been obtained.

46 Nor was it sufficient for the defendant to put the listeners on notice that there might be more to the story by telling them that Mr McIntyre "doesn't want to talk about it". Quite apart from the fact that such a statement does not indicate that Mr McIntyre's views are that this allegation is "absolute rubbish" - if anything, it connotes the reverse - the fact that Mr McIntyre did not want to be interviewed by the ABC assumes an entirely different complexion if the listener learns that Mr McIntyre has rejected the allegations as absolute rubbish and does not want to give these allegations further "oxygen" by discussing them.

47 The fact that the matter was a live-to-air broadcast or that Mr Wells' availability was not known until seconds before he came on the line does not excuse the defendant's "significant oversight" (to quote Ms Loane at T181 line 53) in not referring to Mr McIntyre's dismissal of the allegations as "absolute rubbish".

48 The denials by Mr Obeid and Mr Carr do not obviate the need to include material about what Mr McIntyre said when the allegation was put to him. The portions of their statements put to air contain no information about Mr McIntyre. This is a "curate's egg" argument.

49 The assertion that Mr McIntyre's denial was not unequivocal is disingenuous. The cumulative effect of a person being asked if he said something responding that the allegation is "absolute garbage", his unwillingness to discuss it further on the basis that it was "something that doesn't have legs at all" and his denials of any meeting (he said he had only met Mr Obeid recently, and it is clear the allegations were at least 18 months old) amount to a dismissal of the claim in contemptuous terms. Even if the denial was not unequivocal, it should still have been included in the story. This was a hearsay allegation by Mr Wells and the effect of any denial, even a partial one, by the person alleged to have said it was a matter of significance.

50 The claim that Mr Wells should not have raised the denial because it concerned matters outside the knowledge of Mr Wells is fanciful. Mr Wells was not a witness as to the truth or falsity of these matters; he was a person to whom it was alleged Mr McIntyre repeated the substance of the alleged attempt by Mr Obeid to seek $1 million in exchange for smoothing over problems in the Oasis development.

51 The denial by Mr McIntyre was pivotal to the Herald publication. Mr Obeid had denied it publicly and Mr Carr supported his denial. Publication of a denial by the person who was alleged to have accused Mr Obeid of this conduct was not only corroboration of these denials, but severely weakened the claims made concerning Mr Obeid.

52 The defendant's purported reliance on the material in the ICAC report is troubling. The defendant concedes this has no bearing on the reasonableness (paragraph 8(k)), which would be the case even if the test were "responsible journalism": see Jameel Co Ltd v Wall Street Journal Europe SPRL [2004] EWHC 37 (QB) at [28] per Eady J. This report totally exonerates Mr Obeid and makes it clear that at best these allegations were distorted dinner party chat or at worst (in the case of one of the perpetrators) grounds for the recommendation of criminal charges. Mr Wells admitted to the ICAC that Mr McIntyre had never told him he had a conversation with Mr Obeid. As counsel for the plaintiff point out in their written submissions, the ICAC report suggests that a minimum of extra inquiry would have alerted the defendant to the potential unreliability of the accuser and his accusations. Unfortunately, the defendant preferred to adopt the easier mode of 'informant' journalism to investigative journalism and never made any inquiries, as the ABC's production staff conceded.

53 The defendant complains of comparison to the Channel 7 and Channel 10 broadcasts, which did publicise Mr McIntyre's denial. It is asserted that the ABC did not have Mr McIntyre's denial in the terms that they had. However, even if the denial given by Mr McIntyre to the Herald was capable of ambiguity, it was still an essential part of the factual matrix and the defendant's failure to broadcast any material at all about it is inexcusable.

54 The final submissions of the defendant, that Ms Loane did in fact test Mr Wells about his alleged conversation with Mr McIntyre, and that the defendant never asserted Mr McIntyre in fact said the statements attributed to him, are demonstrably incorrect. Not only did the defendant not test Mr Wells on these matters before he went to air, but the defendant did not include this material in the summary before Mr Wells was interviewed, nor did Ms Loane ask Mr Wells if he was sure he actually heard this very serious accusation. All she did was to ask him to "confirm" that he had the conversation in question (and she did not question him further when he said he did), and to ask whether he believed that Mr McIntyre had the conversation with Mr Obeid (line 196). She never tested whether he had the conversation at all. More importantly, she asked questions about what Mr McIntyre said (see lines 59 - 60, 70, 118, 124, 173 - 4, 178, 196 and 205) in such terms as made it clear there was no challenge to the fact that Mr McIntyre had indeed had this conversation with Mr Wells. The questions were whether Mr McIntyre said this more than once, or how much money did Mr Obeid want.

55 The failure of the defendant to include any reference to Mr McIntyre's response to the questions from the Herald is enough by itself to defeat any defence under section 22, including any purported extension for "responsible journalism" of the kind defined in Jameel. Mr McIntyre's response to the allegations - to deny them - was as crucial to the story as the denials of Mr Obeid. Instead of reporting these denials, the defendant treated allegations of a conversation denied by both parties as a proven fact. The failure to test Mr Wells on these issues prior to publication meant that Mr Wells was able to vent his hostility towards not only the plaintiff but also the ALP, which reinforced his allegations.

56 A final matter for consideration is whether, by reason of statements in Australian Broadcasting Corporation v O'Neill (2006) 229 ALR 257 at [26] per Gleeson CJ and Crennan J, the bar has been lowered for media exposure of wrongdoing where the story concerns the "breaking" of a story containing criminal allegations.

57 These statements were made "subject to the law of …defamation" (at [26]) and there was no discussion of the qualified privilege defence, or any extension thereof, in that case. In fact Heydon J (at [287]) and Kirby J (at [155]) appear to have been concerned about the greater need for the protection of individual reputation from trial by media. These statements do not lower the requirement for the test of reasonableness in the qualified privilege defence.

(iii) The unreliability of Mr Wells and Mr Constantinidis

58 Although Mr Morrison denied in cross-examination that he already knew Mr Constantinidis had introduced Mr Wells to the Oasis project, I accept the submissions of the Plaintiff that paragraphs 13 and 17 of Exhibit K (Mr Morrison's statement) makes it clear, and I should not accept Mr Morrison's denial in cross-examination (at T-225, 228 and 248). In fact, Mr Morrison said in examination in chief that he called Mr Constantinidis to try to track down Mr Wells because he was aware that Mr Constantinidis "had brought Mr Wells into this project" (T-213.2). And I note the submission that this is consistent with the answers to interrogatories (plaintiff's written submissions, page 22). Mr Morrison's attempts to evade the statements by saying that he learned this from the Herald article, which makes no reference to this fact (T-243) are implausible. The plaintiff, in written submissions, draws my attention to an apparent concession to this effect by senior counsel for the defendant in re-examination (written submissions, page 22), but I am inclined to think that this was an oversight on his part. I do, however, accept the submission that this is a serious matter because Mr Wells had never appeared in the media coverage prior to 30 August 2002. It was apparent from the Herald article that Mr Wells was no longer associated with the Oasis project, and it was public knowledge that Mr Constantinidis and Oasis had parted company on poor terms. Why then did Mr Morrison ring Mr Constantinidis? I accept the submission that the only logical conclusion to draw is that Mr Constantinidis mentioned Mr Wells (either expressly or perhaps by inference), to Mr Morrison prior to this time in the context of a discussion about allegations to be made. I further accept the submission that Mr Morrison has lied about this conversation and that the fact that he has lied suggests that the contents of any conversation he would have had with Mr Constantinidis would not have assisted the defendant's case.

59 It was Ms Loane's evidence (T-207-208) that had she known about a prior association between Mr Wells and Mr Constantinidis of this kind, she may not have interviewed Mr Wells at all. Her skilful and objective interviews of Mr Constantinidis on two occasions earlier in the same month are an indication of how she might have interviewed Mr Wells had she been apprised of this information.

60 It should have occurred to Mr Morrison that there was a possibility that Mr Wells and Mr Constantinidis were either working in concert in relation to the publication of the allegations or that Mr Constantinidis, by reason of actually securing the agreement of Mr Wells to be interviewed rather than merely passing on his telephone number, was seeking to manipulate and control events. Again, Ms Loane gave evidence that if she had known Mr Constantinidis had arranged for Mr Wells to come on the programme, it would have made a difference to the manner in which she conducted her interview (T-206-207, T-194-195).

61 It was a matter of common knowledge that Mr Constantinidis had the poorest of relationships with two of the targets of Mr Wells' allegations, namely the New South Wales Labor Government and Mr McIntyre. The defendant had the following information in its possession at the time of the broadcast: 1. Mr Carr, the Premier, had said in the clearest possible terms that no-one in the Labor Government would have anything to do with Mr Constantinidis.

Mr Constantinidis had previous difficulties with the former Labor Prime Minister, Paul Keating, over a piggery (Exhibit J, both interviews, T-188).

The New South Wales Labor Government did not want Mr Constantinidis to have any involvement with the Oasis project and Mr Constantinidis knew this (Exhibit J).

Mr Constantinidis and Mr McIntyre had fallen out to the extent that Mr McIntyre had sent letters to people asking them not to deal with Mr Constantinidis (Exhibit J; T-192, T-222).

As the person in charge, clearly Mr McIntyre had had something to do with Mr Constantinidis's departure from the Oasis project (Exhibit J; T-193-194; T-221).

Mr Constantinidis had participated in the salary cap scandal, and then exposed it (Exhibit J).

Mr Constantinidis made some very pregnant hints about Mr McIntyre in the 28 August interview (Exhibit J, pp.8-9). While Mr Morrison denied he interpreted these passages in the way put to him by senior counsel for the plaintiff, the only sensible way to read these hints is that Mr Constantinidis knew what was coming and while Mr Morrison may not have known about this, it is an indication that Mr Constantinidis was the kind of person who liked to drop hints. 62 I have already indicated that I accept Ms Loane's evidence that Mr Morrison told her nothing about the involvement of Mr Constantinidis in delivering Mr Wells to the ABC. I reject the claims that Mr Morrison told her. However, if Mr Morrison did inform Ms Loane, that would of course have put her on notice that Mr Wells was being brought to the programme by a man with every reason to attack not only the plaintiff as a member of the New South Wales Labor Government, but also Mr McIntyre in circumstances where it would have been clear thereby that both Mr Wells and Mr Constantinidis were, to the defendant's own knowledge, unreliable or biased (or at least likely to be unreliable or biased). There was a failure to make enquiries about this, or to inform the listeners to the broadcast of this. There was also a failure to challenge or quiz or "test" Mr Wells about his allegations and in particular, a failure to link these two men and their enmity with the New South Wales ALP, although Ms Loane did attempt to do this at the end of the broadcast when she realised that Mr Constantinidis was in some way involved.

63 If Ms Loane had had the information, I accept her evidence that she would have acted very differently. As she did not, the options that she could then have considered (which included not putting the interview to air at all, taping the interview but having it checked either by the ABC Legal and Copyright team or by a researcher, or broadcasting the allegations with reference to the association to Mr Constantinidis and his known hostility to the ALP) were never given the serious consideration required by reason of Mr Carr's warnings that Mr Obeid would sue for defamation.

64 By reason of Mr Morrison's conduct, the defendant was manipulated into giving an interview which gave most of the air time to Mr Wells. Not only was Mr Wells not asked about Mr McIntyre's response to the allegations, but he was able to attack both Mr Obeid and Mr Carr's defence of Mr Obeid.

65 Mr Morrison agreed that his research was "very defective" (T-257.43). He agreed that it was his job to establish the credibility of the allegations, that Ms Loane depended on his research, and that she was only as good in relation to the story as the information passed on to her by him. On any analysis of the facts, Mr Morrison let Ms Loane down badly.

66 There are a number of obvious enquiries which were not made. In addition to those already stated about Mr Wells' links with Mr Constantinidis, there were a number of questions Mr Morrison could have asked Mr Wells, ranging from who else was present when the allegations were allegedly made, what he made of Mr McIntyre's comments as reported in the Herald, or why he had waited so long before speaking out. Mr Morrison agreed it would be logical to ask questions about who else had been present when Mr McIntyre had made these allegations (T-252) because this answer would have been relevant to the credibility of Mr Wells. In addition, Mr Morrison made no enquiry of Mr Constantinidis (T-236) although he agreed that Mr Constantinidis was in a position to know about the allegations. Nor did he make any enquiry as to the prior relationship between Mr McIntyre and Mr Wells, or Mr Wells' attitude to the New South Wales ALP. For all he knew, Mr McIntyre could have terminated his relationship with Oasis in terms of acrimony. All he asked Mr Wells was how he wanted to be addressed and who were his most important public relations clients, in the course of a conversation that lasted less than one minute. Mr Morrison agreed that he took no steps to test the credibility of Mr Wells' allegations and accepted that his failure to do so was responsible for allowing the seriously defamatory allegations concerning the plaintiff to be broadcast (T-253). In addition, Mr Morrison agreed he did not tell Ms Loane that his research was "seriously deficient". (T-257).

67 Finally, it was Mr Morrison, not Ms Loane, who decided that the Wells interview should go ahead at 9.00 am even though Mr Wells had just telephoned and it was he who was responsible for the timing of the interview (T-250; T-258; T-267) on the basis that it was "then or never" (T-259). However, he had no reason to suspect Mr Wells would not want to be interviewed. He did not ask Mr Wells whether he was available to be interviewed later in the morning and did not know whether the interview could have been delayed (T-251). Given the warning Mr Carr gave about the likelihood that Mr Obeid could and would sue for defamation, this was unwise. In particular, the failure to seek legal advice in such circumstances was both irresponsible and unreasonable. The defendant knew by about 8.15 or 8.20 am that Mr Constantinidis said Mr Wells had agreed to come on air (T-214), and arrangements could have been made to speak with ABC Legal at that time. This was particularly the case where a total stranger was coming onto the air to make allegations of corruption of a most serious kind about a minister in the New South Wales Government, allegations that were, moreover, hearsay allegations, the strength of which had been substantially weakened by the response of Mr McIntyre.

(v) Failure to delay the broadcast and the significance of the broadcasts subsequent to the matter complained of

68 The defendant submits that the broadcasts subsequent to the matter complained of (Exhibit 3) assist in relation to the issue of reasonableness because the repetitions of Mr Obeid's denial, and the references to his press statement would go a long way towards achieving the balance and would make it clear to the ordinary reasonable listener that there were two sides to the story.

69 The degree to which the defendant could rely upon these subsequent broadcasts needs to be seen in context. Helpful remarks were made in the course of the appeal in Australian Broadcasting Corporation v Obeid [2006] NSWCA 231, where the Court noted that the broadcast was at the time of the ABC's choosing in circumstances where if there had been a delay for approximately two hours it could have been broadcast in circumstances where it was clear that Mr Obeid was proposing to hold a press conference. The Court noted that it would not be unreasonable to infer that the defendant broadcast the matter complained of at the time it did in order to achieve maximum effect, when a short delay would have enabled the substance of Mr Obeid's press conference to be included.

70 Furthermore, the defendant knew that a substantial number of its listeners were likely to have tuned out of the broadcast prior to this additional material: see Exhibit H and Exhibit 13. There are significant drops in the number of listeners to the morning programme after 9.30 am.

71 In fact, what the defendant later broadcast was only a brief segment of the press conference. The questions that were asked of the plaintiff were not broadcast. Even a listener who heard the whole of the broadcast would hardly be in a much better position to appreciate that the allegations, which were of a hearsay nature, had been substantially refuted not only by Mr Obeid but also by Mr McIntyre. The ABC asked no questions at the press conference (T-42) and essentially what the defendant did was to play a brief excerpt at 11.50 am. It was Mr Obeid's evidence that he was aware in general terms of what the defendant's broadcast was about, and if he had been asked what he thought of the programme, and invited to comment by an ABC journalist at the press conference, that would have been a matter of some significance. However, although evidence was given that a senior ABC journalist worked at the State Parliament, and that she could have attended the press conference, there was no evidence that she did so.

An extension of the defence of reasonableness to "responsible journalism"

72 The defendant formally submits that the decision of the House of Lords in Jameel and Anor v Wall Street Journal Europe SPRL [2006] UKHL 44 forms part of the law of Australia. However, the defendant acknowledges that to the extent that Jameel furthers the privilege espouse in Reynolds v Times Newspapers Limited [2001] 2 AC 127, I am bound by the decisions of the Court of Appeal in Vilo v John Fairfax & Sons Limited [2000] NSWSC 937 and Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at paras 1165 - 1170 (24 December 2002) to the effect that Reynolds v Times Newspapers Limited is not part of Australian law insofar as it extends the common law beyond Lange.

73 I note in passing that this leads to the rather curious situation that s.22(2A), which introduces a check-list which the learned authors of Australian Defamation Law and Practice describe (at page 9090) as "a considerable - but not a complete - degree of overlap" with the checklist in Reynolds v Time Newspapers may in fact take the statutory defence of qualified privilege further than a Lange defence.

74 The further extension in Jameel is that the majority judgment in Reynolds created a new defence based on the notion of "responsible journalism". However, as Lord Nicholls noted in Bonnick v Morris [2003] 1 AC 300 at [23]-[25], responsible journalism had to do with practical realities in that a journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views. However, such a defence should not be pressed too far and questions of degree arise. The more obvious the defamatory meaning and the more serious the defamation, the less weight the Court will attach to other possible meanings when considering the conduct to be expected of a responsible journalist in the circumstances.

75 In Jameel v Wall Street Journal Europe SPRL (No 2) [2005] EWLA Civ 74 the phrase "responsible journalism" was considered to be insufficiently precise to constitute the sole test for a Reynolds privilege. "Responsible" journalism was "the degree of care that a journalist should exercise before publishing a defamatory statement". The requirements of responsible journalism would vary according to the particular circumstances and in particular the gravity of the defamation. Responsible journalism needs to be established before a Reynolds privilege can be claimed.

76 The facts in the present case could never attract a defence of responsible journalism. The research by Mr Morrison was conceded to be seriously defective, and as a result partly of a failure to enquire and partly due to the total failure to give any indication of Mr McIntyre's response to the allegations, a substantially one-sided story was broadcast, with those few points in the defendant's favour (i.e. the denials by Mr Obeid and the response of Mr Carr) being completely negated by the context and, in the case of Mr Obeid, by misleading statements being made about his preparedness to come onto the radio station to tell his side of the full story.

77 By way of passing comment, if any defence of responsible journalism did exist it ought in my view to be applicable to "investigative" journalism, rather than to "informant" journalism. The first kind of journalism involves an actual investigation of the kind seen in the responsible and carefully researched investigative programmes for which the defendant is renowned. Informant journalism consists of putting allegations into the public arena and then expecting the subject of these investigations to respond by telling what is sometimes called "his side of the story". The kind of care and responsibility that the House of Lords is describing as going into responsible journalism would be present in the first, but not the second, kind of journalism. To use a simple example to differentiate between the two types of journalism, an investigative journalist's response to an allegation "Mother Teresa is a paedophile" would be to investigate the allegation and make enquiries before considering whether to air the story at all, whereas "informant" journalism would consist of putting the person making the allegations into the public arena and then leaving it up to Mother Teresa to tell her side of the story. However, these are matters which, if they fall for consideration at all, only fall for consideration at appellate level as there is no defence of "responsible journalism" available in New South Wales.

78 The defendant has not discharged its onus of establishing it acted reasonably in publishing the matter complained of. As to imputations (a) and (b), whilst the defendant's employees considered the possibility of these imputations being conveyed, they took no or no adequate steps to prevent either of those imputations being conveyed, despite their extreme seriousness, in circumstances where there was a good chance that imputations along these lines would be conveyed. As to imputation (c) the defendant did not intend to convey this imputation and did not even consider the possibility that it was conveyed. Further, in relation to each of the imputations, the research was seriously defective in that no enquiries of any substance were made, including any enquiries to determine whether or not the allegations were true, in circumstances where those allegations were of a hearsay nature and had been denied by the person alleged to have said them, as well as by Mr Obeid. In addition, the defendant had information about the unreliability not only of Mr Wells but also of Mr Constantinidis, the person who made him available to the defendant for interview.

79 Finally, the defendant made misleading statements concerning the response of Mr Obeid to requests for an interview. Mr Obeid was, on the evidence before me, a hard-working Minister in the State Government, and there had not been a scintilla of evidence suggesting any connection between him and any of these events prior to the hearsay allegations in the Herald, a matter of hours before the matter complained of was broadcast. The allegations were made by someone about whom the defendant knew nothing at all, other than that his conduct seemed to be within the control of Mr Constantinidis, whose relationship with the New South Wales Labor Government in general could hardly have been worse.

80 Accordingly, I find for the plaintiff on the issue of liability and I now consider the issue of the damages which it is appropriate to award.

81 The plaintiff and his wife both gave evidence and were cross-examined. The defendant draws to my attention that the plaintiff accepted the entitlement of the media to take up and report allegations made in the Herald. However, the defendant did not merely "take up and report allegations made in the Herald". By reason of the failure to report the response of Mr McIntyre and by reason of the misleading statements made about the plaintiff's availability to respond to the allegations, the impact of the imputations in the matter complained of was significantly worse.

82 Allegations of bribery and corruption made against a serving Minister of the New South Wales Government go to the very heart of the plaintiff's profession, which can often be a person's whole life: Crampton v Nugawela (1996) 41 NSWLR 176 at 192-194. Mr Obeid said that only an imputation of being a paedophile could be worse or more hurtful.

83 The plaintiff and his wife both gave evidence of their activities in the Lebanese community in Australia. It was clear from the plaintiff's evidence that the proudest day of his life was the day he became a politician.

84 Prior to publication the plaintiff had a good reputation according to the evidence of Mr Anwar, not only in the general community but in particular in the Lebanese community. He helped to set up a welfare organisation to assist people during the war in Lebanon and helped in attempts to free Lebanese Australian hostages during the Gulf War. A Mr Gadiel gave evidence of the plaintiff being well-regarded as a self-made man who had decided to move into politics so he could give something back to the community, including the Lebanese community, and he said that the plaintiff had a reputation for integrity.

85 The plaintiff described his early life in unemotional terms. He is clearly not a person of morbid sensitivity. He described his successful business career and a move into politics and his activities as the Minister for Fisheries, in comparatively neutral terms. It was left to his wife to give a more three-dimensional picture of him, and Mrs Obeid painted a very vivid picture indeed of the impact of these allegations upon her husband, including his fear that she would believe them.

86 There was evidence that the plaintiff suffered a significant decline in the number of invitations to political, business and community functions and appears to have been left well out of the picture for the 2003 election campaign (T-49). Other Ministers in the Government appear to have had some reluctance to see him and he had difficulties making appointments (T-80). The plaintiff, his wife and other family members suffered a series of instances of people avoiding speaking to them at functions. His daughter had the matter raised with her when she went for a job interview, things were said in the schoolyard, and questions were raised in a business environment where his sons worked.

87 Mr Gadiel gave evidence about the impact of the allegations on Mr Obeid's ministerial office. When people rang up, statements were made about the allegations, including calling the plaintiff a crook or dishonest. There was concern amongst persons both inside and outside parliament, on the organisational end of the Labor Party that the allegations might turn out to be true (T-102-103). Mr Anwar, who edited a community newspaper, said that he received letters to the newspaper questioning the plaintiff's honesty and he thought the plaintiff's reputation had been damaged over the long term (T-111).

88 There is evidence that the plaintiff resigned from the Ministry. No submission is made that this results from the publication. There may well be many explanations for this. However, it is not in dispute that the plaintiff was effectively sidelined in the 2003 election and the damage to his reputation from imputations of corruption figured in this decision by his colleagues.

89 Substantial parts of the above evidence of hurt to feeling were unchallenged.

90 The defendant submits that the plaintiff ought not to receive substantial compensation for the publication of imputations (a) and (b) as they were a necessary product of reporting the Herald allegations, which it is submitted is "something which the plaintiff appears to accept was not improper" (written submissions, paragraph 63).

91 The defendant did not take me to any authority on this point. In any event, the plaintiff cannot, and did not, consent to being defamed. The imputations were not a necessary product of reporting the Herald allegations. What was in the Herald was substantially distorted by the Defendant. It was perfectly possible to report what was in the Herald in a responsible way which balanced Mr Wells' statements with the denials not only of Mr Obeid but Mr McIntyre.

92 As to imputation (c), it is submitted by the defendant that this imputation is in substantially the same terms as imputation (c) sued upon in the plaintiff's action against John Fairfax & Sons Pty Ltd: see [2006] NSWSC 1059, where Hoeben J awarded $150,000. I have dealt with this issue in more detail when considering the provisions of s.48 Defamation Act 1974 below.

93 The plaintiff's evidence concerning hurt to feelings was that he learned of the publication some time on the morning of 30 August 2002 (T-41). He was shocked and angry that the ABC, whom he regarded as a respected media organisation, had broadcast this one-sided interview with Mr Wells and when he read a transcript of the interview one or more days later, he could not believe that the ABC would put someone on air to make such serious allegations in such a manner (T-42). He gave evidence of the impact upon himself, of the distress to his wife and family, and said he was told about telephone calls he received from aunts of his wife in the Armidale area, raising the issue of the broadcasts on the ABC (T-43-44).

94 It is conceded by the plaintiff that a significant amount of the damage to hurt feelings evidence relates to the Herald article as well as to the ABC broadcast. I have dealt with this issue in more detail below.

95 The plaintiff caused letters of demand to be sent speedily and commenced legal proceedings quickly (T-42-43). He was disgusted that he had to bring proceedings in circumstances where the defendant knew the allegations were false (T-55). I have dealt with this matter further under the issue of aggravated compensatory damages.

96 Where a publication contains grave allegations, the seriousness of the libel and the manner extent of publication are elements to be considered when awarding damages. It is often stated that the greater the libel, the greater the damages (see John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 per McHugh JA at 142). The seriousness of the imputations is not disputed by the defendant.

97 The defendant also claims aggravated compensatory damages. This is sought on the basis of the defendant's wrongful failure to apologise when an apology was requested on 13 September 2002, a matter of weeks after the publication (see Exhibit D). Not only did the defendant decline to apologise in its response (Exhibit E), but it did not apologise after ICAC exonerated the plaintiff on 27 February 2003 (T-43), after a jury in October 2005 held that the imputations pleaded by the plaintiff were conveyed (T-53) and, for that matter, after the filing of a defence and answering interrogatories in which the defendant conceded there was no intention to convey any of the imputations.

98 The plaintiff gave evidence of his hurt feelings by reason of the continuing failure to apologise (T-54, 78, 82 and 86). He said at T-53: "All I wanted was these reputable media outlets - the Herald and the ABC - to apologise. That would have satisfied me … but after an ICAC hearing, a lengthy ICAC hearing, facing up to all the scrutiny in Parliament and all the questions, I didn't even get an apology from them."

99 The plaintiff in oral submissions indicated that in addition to failure to apologise, the plaintiff's hurt to feelings was increased by reason of his knowledge of the falsity of the imputations. What particularly upset the plaintiff, as I understand from his evidence, is the concentration of the defendant upon Mr Wells, from which I infer that the failure to refer to the response of Mr McIntyre or to put questions about this to Mr Wells was what was upsetting the plaintiff.

100 The correct approach to the awarding of aggravated compensatory damages is that having first ascertained the general range of damages for the purposes of s.46A Defamation Act 1974, damages should be awarded at or towards the top of the range where the Court is of the view that aggravated compensatory damages should be awarded: State of New South Wales v Riley (2002 - 3) 57 NSWLR 496 at [133]. It is important not to 'double count' matters that are general damages as being matters for aggravated compensatory damages: Riley at [131].

101 On the subject of general damages, I must have regard to the provisions of s46A Defamation Act 1974 to ensure that there is an appropriate and rational relationship between the damages awarded and the evidence, and I must have greater regard to the particular facts of the case rather than to comparable verdicts for the reasons explained by Hayne J in Rogers v Nationwide News Pty Ltd , supra, at [354].

102 I respectfully borrow, from the decision of Hoeben J in Obeid (at [96] - [98]) the correct method of approach to the assessment of general damages in defamation proceedings. However, in the present case I must have regard to different factors in relation to the seriousness of the imputations and also the extent of publication. By reason of the failure to include the material in relation to Mr McIntyre and the misleading statements about Mr Obeid's availability to respond to the imputations by coming on air, the publication and the imputations arising therefrom, even in the context of the later broadcast of the denials of Mr Obeid by the defendant, are objectively more serious than the imputations about Mr Obeid which arose from the publication in the Herald, which gave some prominence to the response of Mr McIntyre.

103 The question arises as to the degree of overlap between the Herald publication and the ABC. In Obeid v John Fairfax Publications Pty Ltd (at [111]- [113]) Hoeben J indicated that the damages he awarded to the plaintiff in those proceedings related solely to the publication of the Herald article and the evidence led in the proceeding as to its effect on him.

104 There are two issues for me to consider in this regard. The first is the extent of publication and the second is the overlap between the two publications.

105 Section 48 Defamation Act 1974 provides that evidence is admissible on behalf of the defendant in mitigation of damages that the plaintiff has already recovered damages, brought proceedings for damages or has received or agreed to receive compensation for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of.

106 It is hardly surprising that there is a considerable overlap since both publications were made on the same day conveying almost identical imputations. The plaintiff himself said he did not ask people whether they had relied on the Herald or the radio broadcast in relation to the damage to his reputation.

107 On the one hand, the Herald had a broader publication and was the originator of the story. However, the radio broadcast had a significant impact in country regions. The plaintiff gave evidence that as the Minister for Fisheries he spent a substantial amount of time in country regions and in addition that he had relatives in Armidale who telephoned after hearing material on the defendant's radio station.

108 The defendant in its defence (including an amended defence filed on the first day of these proceedings) and in answers to interrogatories admitted that the matter complained of had been broadcast in country parts of New South Wales. However, on the first day of the hearing, the defendant sought to withdraw these admissions. Whilst that application was abandoned, and evidence was led as to the limited extent of publication in the countryside, I am conscious of the fact that the plaintiff was at some disadvantage by reason of coming to court to find that a matter he had thought was the subject of admissions was now the subject of contest. Had this matter been raised earlier, it would have been open to the plaintiff to call relatives who live in the country as witnesses so that this issue could have been the subject of evidence and cross-examination to determine whether it was the matter complained of or some other programme broadcast by the defendant.

109 The listenership to ABC morning radio between 9.00 and 9.30am in the Sydney Metropolitan area during July to September 2002 was between 62,000 and 101,000 listeners (Exhibit H, Exhibit 13). The estimate of the defendant's expert witness, Ms Walsh, was that the State-wide listenership was between 99,000 and 144,000, based on the assumption that the same proportion of non-metropolitan residents listen to the ABC as they do in Sydney. The plaintiff submits that this evidence is likely to produce something of an underestimate. Nevertheless, these numbers are still significant. In addition, I note the plaintiff's evidence that he regularly travelled within the New South Wales region and his portfolio as Minister for Fisheries and Mineral Resources meant he was heavily involved in regional areas (T-34). The defendant's radio network was an important medium for him in these areas (T-79).

110 While in the Sydney area there is probably a relatively high overlap between people who listen to the ABC morning radio and read the newspapers, this would be much lower in the country. In addition, the matter complained of in these proceedings went further than the ABC broadcast in that it did not include any material as to Mr McIntyre's response. It may be that as a result of hearing the broadcast, listeners who read the article in the Herald thought less of or even disregarded the response of Mr McIntyre to the allegations.

111 I should formally note the principle that other publications should not be tendered to establish either bad reputation or that damage to the plaintiff's reputation could have come from other sources: see Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,951-68,955. The Herald article, and for that matter the Channel 7 and Channel 10 television broadcasts, were in very different form to the lengthy live interview with Mr Wells in which scorn was poured by him upon the plaintiff's denial of his allegations and also upon the support given by the Premier, Mr Carr. Similarly, any submission that the damage to the plaintiff's reputation was minimised when he was vindicated by the ICAC finding should be disregarded.

112 The plaintiff draws my attention to other defamation verdicts, including notably Jarrett v John Fairfax Publications Pty Ltd [2001] NSWSC 739 where allegations of corrupt conduct were made about the Deputy Police Commissioner and Konstantinidis v Foreign Media Pty Ltd & Ors [2003] NSWSC 1135 where a plaintiff was awarded $475,000 for three programmes on a narrow band radio broadcast in the Greek language where those allegations related to corrupt conduct.

113 These imputations of corrupt conduct are about the most serious allegations that could be made about a politician. The plaintiff said that only an allegation of paedophilia would be regarded by him as being more serious. There are some allegations which by reason of a plaintiff's profession are particularly serious. It was to this principle that Mahony JA was referring in Crampton v Nugawela when he said that a solicitor's reputation for honesty was so important. An allegation of paedophilia might similarly be regarded if a plaintiff was a priest. Similarly, an allegation that a politician is corrupt is of particular gravity.

114 In Crampton v Nugawela Mahony JA considered that it would be not unreasonable to award $500,000 to a responsible professional such as a solicitor or doctor accused of allegations which went to the heart of his or her professional responsibilities. The imputations in Crampton, like the imputations in Jarrett, were matters of the utmost gravity about respected professionals at the top of their profession. I must exercise caution when having regard to these other decisions, just as I must do so when considering personal injury verdicts, and I note and accept the explanation by Hayne J in Rogers v Nationwide News Pty Ltd as to how to go about this task.

115 In the present circumstances, taking into account the finding I make that the plaintiff is entitled to aggravated compensatory damages, any award for damages must be of a very substantial nature reflecting the seriousness of the imputations as well as the quite extensive broadcast of these allegations, particularly in regional New South Wales. It should be comparable in size to the verdicts that I have referred to above.

116 However, I must also give very substantial weight indeed to the fact that the plaintiff has been awarded $150,000 in relation to the Herald article, which was not only the original article, but which had a much wider circulation and readership than the radio broadcast. The damage done by this publication was the principal source of the plaintiff's hurt to feelings.

117 Two problems arise from this. First, the Herald article was not only published to a wider readership but it was published throughout the States and Territories of Australia, whereas the radio broadcast the subject of these proceedings was broadcast only in New South Wales. However, that is something of a circular argument, since the plaintiff is a member of the New South Wales Government, and this was very much a publication which hit him where he lived.

118 Accordingly, while I have given the factor of absence of interstate publication some weight, it has not been as significant as the other factors that I have considered, and I note that I have received no submissions on this point from either the plaintiff or the defendant.

119 Secondly, and more significantly, I have to determine how to deal with Hoeben J's assessment of $150,000 general damages and the refusal to award aggravated compensatory damages. The second component is straightforward, because there are factors in these proceedings which warrant the award of aggravated compensatory damages which may not have been either present, or considered, in the proceedings before Hoeben J. The other issue is the degree to which I should have regard to Hoeben J's assessment of an appropriate range of damage for imputations of this kind. The plaintiff's senior counsel submitted that Hoeben J's award was at the bottom of the range.

120 To use a personal injury analogy concerning these two publications, the plaintiff finds himself in a position not dissimilar to the victim of a an accident who, whilst lying in the roadway injured by one motor vehicle, is run over by a second vehicle. Damages in defamation are to a degree a matter of impression based on an assessment of the plaintiff's evidence and the evidence of his witnesses. I have already set much of this evidence out, but I found the evidence of Mrs Obeid particularly compelling in painting a picture of Mr Obeid as a man who whilst appearing stoic had suffered immense humiliation from the defendant's broadcast, humiliation that he had trouble articulating in his own evidence.

121 Taking all of the above matters into account, I conclude that an appropriate sum to compensate Mr Obeid for publication of these extremely serious imputations is $150,000.

122 I did not receive any submissions concerning interest. I am conscious of the usual procedure of awarding an annual rate of interest of 2% in accordance with the reasoning in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. Unless one or both of the parties wishes to bring submissions (for example in relation to any perceived delay in prosecuting the proceedings, although from my examination of the file any delay appears to lie solely at the feet of the defendant) such an application can be made pursuant to the liberty to apply that I have granted. Otherwise, the parties may mathematically agree upon interest from the date of publication to the date of judgment and I have granted a liberty to hand up short minutes reflecting the addition of that sum to the judgment sum of $150,000.

ORDERS 1. Judgment for the plaintiff against the defendant for $150,000. 2.Interest at 2% per annum from the date of publication (30 August 2002) to the date of judgment (8 March 2007). 3.The plaintiff and defendant have liberty to apply in relation to order 2 or, in the alternative, to file short minutes of order reflecting the total judgment sum inclusive of interest. 4.Defendant to pay plaintiff's costs. 5.Liberty to restore in relation to any costs or interest argument. 6. Exhibits retained for 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Defamation Act 1974(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (171 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (18)

Cited By (2)