Ray Chesterton v Radio 2UE Sydney Pty Ltd

(a) that Mr Chesterton is a creep in that he is an unpleasant and repellent person.

(b) that Mr Chesterton is a bombastic, beer bellied buffoon.

(c) that, as a journalist, Mr Chesterton is not to be taken seriously.

(e) that Mr Chesterton falsely accuses John Laws for his dismissal from Radio 2UE.

(f) that Mr Chesterton is an ungrateful person in that he accepted the hospitality of John Laws and then attacked him.

(g) that Mr Chesterton is a liar in that he says he is a teetotaller when in fact he has consumed sufficient alcohol to make him overweight.

(h) that Mr Chesterton is a despicable person. 14 It must be explained that imputation (h), that Mr Chesterton is a despicable person, was said to arise from Mr Laws' statement that Mr Chesterton was "called Ankles, and for very good reason". The trial before the jury was conducted on the basis that the term "Ankles" is a colloquial term meaning "a despicable person (lower than a cunt)". Evidently, the jury accepted that Mr Laws' broadcast was heard by people who understood the term "Ankles" in that sense. It will be necessary to return to the significance of that determination.

Reply to attack 15 As I have already indicated, the only defence relied upon by 2UE is the defence of qualified privilege at common law based specifically on the contention that the matter complained of was a public response to a public attack. The relevant principle was stated in Gatley on Libel and Slander, 2nd ed. (1929), p. 293 (cited with approval in Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 514) as follows: "A person whose character or conduct has been attacked in the public press is entitled to appeal to the same tribunal in his defence and vindication, and if, in answering such attack, he makes relevant defamatory statements about the person who has attacked him, such statements are prima facie privileged." 16 If the forum in which the person has been attacked is the mass media, the party attacked is given the privilege to reply in the same forum. In that instance, the mass media publisher enjoys an ancillary or derivative privilege in respect of its publication of the reply. The rationale for the derivative privilege is that a privilege to reply to an attack addressed to the public at large would be of no avail to the person who was the object of the attack if the means of exercising it were not also protected: Adam v Ward [1917] AC 309 at 343.7; Loveday at 519.3 per Dixon J; cited with approval in Bass v TCN Channel Nine (2003) 60 NSWLR 251 at [15] per Spigelman CJ and at [60] per Handley JA; Wood CJ at CL agreeing at [151]. 17 It is not necessary for the defendant to establish that each individual imputation was published on an occasion of qualified privilege. The test is whether the matter complained of was published on such an occasion and was relevant to the privileged occasion: see Aktas v Westpac Banking Corporation [2009] NSWCA 9 at [71] and [79] to [85] per McClellan CJ at CL; Ipp and Basten JJA agreeing. The High Court recently overturned the decision of the Court of Appeal but not on any ground relating to that proposition: Aktas v Westpac Banking Corporation [2010] HCA 25. 18 Mr Evatt formally submitted that the decision of the Court of Appeal in that respect is wrong and contrary to earlier authority (T444.39). I consider that, since the judgment was unanimous and has not been overturned on that issue, I am bound to follow it.

Estoppel 19 Before turning to consider the defence, it is necessary to deal with an argument raised by Mr Evatt, who appeared with Mr Rasmussen for Mr Chesterton. Mr Evatt submitted that 2UE is estopped from pursuing the qualified privilege defence because a similar argument was put to the jury by counsel for 2UE at the trial under section 7A(3) of the Defamation Act over which Simpson J presided. The jury was invited to consider the fact that Mr Laws was responding to the attack on him by Mr Chesterton and to conclude that the ordinary reasonable reader would have understood the exchange as a trade of insults with no lasting defamatory meaning. Mr Evatt submitted that it was implicit in the jury's determinations as to defamatory meaning that they had rejected that submission. 20 The estoppel argument was not put with any great enthusiasm by Mr Evatt. Having raised the point, he said "I would caution your Honour about upholding my submission on this point. I only wanted to mention what he had done. Whether it is a clear case of estoppel or not, I would say it is probably not" (T437.19). Notwithstanding that frank concession, Mr Evatt declined, on my invitation, to withdraw the submission because he said it must have been a factor in the jury's decision. 21 In my view, the estoppel argument was without merit and should not have been put. It was no part of the jury's function to determine whether the matter complained of was defensible on the grounds that it was a reply to an attack. That was made clear to the jury by Simpson J at paragraphs 48 to 53 of her Honour's summing up. Not only is there is no impediment to the defence being raised in the present hearing, this is indeed the hearing in which it must be raised and determined in accordance with the statute.

Elements of the defence of reply to attack 22 Radio 2UE contends that the words published by Mr Chesterton in his column in the Daily Telegraph amounted to an attack on Mr Laws and that Mr Laws was entitled, under qualified privilege, to vindicate himself by responding in the same forum. Since the alleged attack was addressed to the public at large, 2UE contends that it enjoyed derivative privilege in respect of the broadcast of that response on the John Laws programme in accordance with the principles stated above. 23 In considering that defence, I can begin with the uncontroversial proposition that the first issue to be determined is whether 2UE has established the existence of an occasion of qualified privilege. 24 The parties disagreed, however, as to the proper formulation of the next issue raised by the defence. Mr McHugh SC, who appeared with Ms Amato for 2UE, submitted that, once it is established that there is an attack such as to give rise to an occasion of qualified privilege, all the defendant need establish is that the publication sued on is a response to the attack. He conceded the need for the defendant to establish that the reply has the "requisite connection to the attack" as stated in Bass at [3] per Spigelman CJ. He submitted, however, that questions as to the kind of language used and the proportionality of the response to the attack arise only in considering the question of malice. 25 That contention assumed particular significance in the present case. There can be no doubt, in my view, that Mr Laws expressed his response in strong language. Mr Chesterton could well complain that the language used was out of proportion to the so-called attack. Mr Chesterton referred to Mr Laws as a 70-year old disc-jockey. The import of Mr Laws' response was that Mr Chesterton probably has no friends and rightly goes (among such friends as he does have) by a name that means "lower than a cunt". 26 A difficulty for Mr Chesterton, however, is that Mr Laws was not joined as a defendant to the proceedings. The only publisher sued was the proprietor of the radio station. Had Mr Chesterton also sued Mr Laws, he might properly have relied on the language adopted in the broadcast and its disproportion to Mr Chesterton's original remarks to seek to establish malice on the part of Mr Laws. 27 However, there is no basis for attributing any such malice to 2UE. It is well established that, where there is more than one publisher, assuming the existence of an occasion of qualified privilege, the purpose of each publisher in publishing the matter complained of is to be judged individually. The malice of one does not infect the others: Bass at [77] per Handley JA. 28 Mr Evatt submitted that, on the principles stated in Webb v Bloch (1928) 41 CLR 331, the malice of Mr Laws is to be brought home to 2UE in the present case, presumably on the basis that their liability is joint. Upon analysis, that submission is plainly wrong. The principles stated in Webb v Bloch speak only to the issue of participation in the act of publication. A deliberate liar and an honest reporter of the lie could each fall within those principles. Their doing so would say nothing of their purpose in publishing.

Is "proportionality" an element of the defence? 29 Mr McHugh submitted that there is no separate requirement of the defence of reply to attack that the reply should be "proportionate" to the attack. He submitted that, provided the publication sued on is a response to the attack, questions of the language used and the "proportionality" of the response go only to the question of malice. Thus in Adam v Ward at 330, Lord Dunedin said: "I would particularly cite the words of the judgment of the Privy Council of the latter case (3): "Some expressions here used undoubtedly go beyond what was necessary for self-defence, but it does not, therefore, follow that they afford evidence of malice for a jury. To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications." This disposes of the first passage pointed out as defamatory." 30 Mr McHugh also relied on the statement of Starke J in Penton v Calwell (1945) 70 CLR 219 at 250, which he submitted was consistent with the analysis that any excess of language is a matter going to malice: "In the main, the words used by the defendant cannot, as a matter of law, be classed as irrelevant to the accusations made. Great latitude must be allowed to a person defending himself, his interests and rights against attacks and accusations made against him, and, however violent or strong his language may be, still it is for the jury to determine whether he could not honestly and reasonably have believed them to be necessary for the vindication of himself, his rights and interests [citations omitted]." 31 As to the permissible content of the response, Mr McHugh submitted that the following principles apply. First, as acknowledged in the passage from Penton v Calwell just cited, the person attacked may couch his response in broad terms. 32 Secondly, Mr McHugh submitted that the response can extend to a counter-attack. In support of that contention, Mr McHugh cited the judgment of Dixon J (as his Honour then was) in Penton v Calwell at 233 where his Honour stated that the purpose of the privilege is to enable the defendant on his part "freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant". 33 The judgment of Dixon J was the judgment at first instance in Penton v Calwell. Mr McHugh did not suggest that the passage relied upon had been approved on appeal, but noted that it was recently cited (with apparent approval) in Bass by Spigelman CJ at [14]. 34 Of course, any counter-attack would be protected only if it were germane to the rebuttal of the attack. Mr McHugh did not suggest otherwise. 35 Separately, Mr McHugh relied on the following extract from the speech of Lord Oaksey in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 471: "If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize-fighter you are not bound to adhere to the Queensbury rules in your defence". 36 As noted by Mr Evatt, that proposition must be read with the qualification expressed at the outset of the relevant paragraph, where his Lordship drew an analogy between the criminal law of self-defence and a man's right to defend himself against written or verbal attacks. His Lordship said "in both cases he is entitled, if he can, to defend himself effectively, and he only loses the protection of the law if he goes beyond defence and proceeds to offence" (my emphasis). 37 Mr Evatt submitted that Mr McHugh's analysis is contrary to common sense and authority. He contended that there is authority which establishes, as an element of the defence, that the reply must bear some proportionality to the attack. I return to consider the cases relied upon by Mr Evatt below. 38 A difficulty in resolving those competing contentions is that "proportionality" is a term of indeterminate content and reference. It may be understood to refer to the content of the response, which would stray into notions of reasonableness, relevance and the distinction between defence, counter-attack and offence. Equally, it may be understood to comprehend tone or choice of words. 39 To the extent that it refers to the tone or language of the relevant communication, Mr McHugh's analysis finds some support in the recent decision of this Court in Megna v Marshall [2010] NSWSC 686 (decided after the hearing of these proceedings). However, the approach contended for by Mr McHugh is not entirely consistent with that decision. 40 In Megna, Simpson J undertook a careful analysis of the elements of the defence of qualified privilege. On the strength of a detailed consideration of the relevant authorities, her Honour concluded (at [50]) that the determination of the defence at common law involves three strands of inquiry. The first two relate to matters which must be established by the defendant. They are, first, whether an occasion of qualified privilege exists and, secondly, whether the content of the particular communication in question was "relevant, germane, or sufficiently connected to that occasion" or to the subject matter of the communication. 41 The relevance requirement was expressly acknowledged in the context of a discussion of reply to attack in the joint judgment of Latham CJ and Williams J in Penton v Calwell at 242.7 as follows: "This defence depends upon proof of the existence of a privileged occasion. If the occasion exists, the communication, though defamatory, is protected if it is relevant to the matter which gives rise to the privileged occasion " (my emphasis). 42 The third strand of inquiry identified by Simpson J in Megna relates to a matter in respect of which the plaintiff bears the onus of proof, namely whether the defendant misused the occasion for an improper purpose (malice). 43 Mr McHugh's identification of the issues for my determination differed to the extent that he characterised the notion of "requisite connection" (the expression used by Spigelman CJ in Bass at [3]) as an aspect of the determination whether an occasion exists (defendant's outline of argument at paragraph 31). Simpson J would characterise that as a separate question, namely whether the particular communication had the requisite connection or degree of relevance to the subject matter giving rise to the occasion so as to enjoy its protection. Lest it be thought the distinction is excessively subtle, her Honour's conclusions as to the different publications sued on in Megna (some defensible, some not) illustrate the practical importance of identifying, first, the occasion for granting protection and, separately, whether a particular communication was made within the scope of that occasion. 44 Importantly for present purposes, Simpson J considered, against the "three strands of inquiry" analysis, whether the privilege may be lost (apart from by reason of malice) as a result of the nature of the language used. Her Honour concluded (at [129]) that the tone of a publication is not relevant to the first two strands of the inquiry; that is to say, the tone is "a matter not available to be taken into account in determining whether a communication was published on an occasion of qualified privilege, or was relevant to a privileged occasion". 45 However, her Honour noted at [118] (in the context of a consideration of the decisions at first instance and in the Court of Appeal in Assaf v Skalkos: [2000] NSWSC 418, Carruthers AJ; Skalkos v Assaf [2002] NSWCA 14): "It must be remembered that a communication, to have the protection of the defence, must have some content - either factual information or opinion. There may be cases in which the vituperative tone so masks or clouds or overrides any real communication of fact or opinion that there is no communication other than of vitriol, abuse, or vituperation. It may be that that is what Carruthers AJ had in mind, what Giles JA had in mind at [130], and what Mason P had in mind." 46 The reference to "what Giles JA had in mind at [130]" is to the following passage of his Honour's judgment in the appeal in Skalkos v Assaf: "It must be remembered that the inquiry into relevance of the defamatory imputation to the occasion, whether expressed in those terms or in the various other ways to be found in the cases, is intended to distinguish between an imputation which should not bring liability for defamation and one which should. As in so many other areas of the law, the function of attribution of legal responsibility necessarily affects the inquiry … The inquiry is not a mechanical application of a form of words. Something may be privileged although untrue, irrational, or intemperately expressed. But that it is untrue, irrational or intemperately expressed may warrant the conclusion, or contribute to the conclusion, that the protection of the privilege should not be afforded. Absence of malice does not mean that all that is published is within the occasion of privilege." 47 As submitted by Mr Evatt, however, there is some authority for importing a requirement of reasonableness or "proportionality" at the second stage of the inquiry. Thus in Trad v Harbour Radio Pty Limited [2009] NSWSC 750, McClellan CJ at CL said (at [135]): "there must be some proportionality between the attack and the response". 48 The chapter on qualified privilege at common law in Gatley, 11th ed. at 14.1, p. 437 opens with a statement that assumes the existence of such a requirement. There it is stated that a defamatory statement published on an occasion of qualified privilege is protected if the statement was "fairly warranted by the occasion (that is to say, was reasonably necessary to achieve the purpose for which the law grants the privilege)". 49 The origin of the formulation "fairly warranted by the occasion" is found in the well-known statement of Baron Parke in Toogood v Spyring (1834) 1 Cr M & R 181 at 193, which is traditionally acknowledged to be the starting point in any attempt to understand the defence of qualified privilege at common law: "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made , such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits" (my emphasis). 50 The words "fairly warranted by any reasonable occasion or exigency" have been echoed on many occasions, but perhaps not used in a consistent sense. One theme that does emerge is that, in the context of reply to attack, there is greater latitude as to what is permissible, as demonstrated by the authorities relied upon by Mr McHugh. 51 Mr Evatt referred me to two English decisions that touch on this question. The first was the decision of the Court of Appeal in Nigel Watts v Times Newspapers Ltd [1995] EWCA Civ 45. That was a case in which an article alleging plagiarism against an author, Mr Nigel Watts, was accompanied by a photograph of a different Mr Nigel Watts, a property developer. The newspaper later published an apology to the property developer which repeated the terms of the original defamation. The other Mr Nigel Watts (the author) sued on the apology. The Court of Appeal dismissed an appeal by the newspaper against a preliminary ruling that the apology was not protected by qualified privilege. The basis for the ruling was that the publication of an apology that repeated the initial defamation was not "fairly warranted by any reasonable occasion or exigency" (at [55] per Lord Justice Hirst). 52 The decision in Watts did not turn on any question of "proportionality" and did not ultimately support Mr Evatt's submission. I accept that it provides some support for a test (derived from Toogood v Spyring) which asks whether the publication was "fairly warranted by any reasonable occasion or exigency". However, the decision ultimately turned on the fundamental difference between the position of Mr Watts the property developer (who was entitled to demand the publication of an apology in response to the unwarranted attack on him) and the position of the newspaper (which was not the victim but indeed the perpetrator of the original attack, by reason of its mistaken use of the wrong photograph). Separately, the judgment acknowledged the entitlement of Mr Watts to rebut the original attack "with ample scope to defend himself if necessary by a counter attack on his accuser, so long as he did not include wholly unconnected and extraneous matter". 53 The second decision relied upon by Mr Evatt was more helpful. It was the decision of the Queen's Bench Division in Hamilton v Clifford [2004] EWHC 1542 QB. Mr Hamilton was a former Member of Parliament. He and his wife became embroiled in "a flurry of journalistic activity" when they were accused of having encouraged and perhaps participated in the rape of a woman. It subsequently emerged that the whole event was fantasy. The woman in question was ultimately convicted in respect of her false complaint and sentenced to three years imprisonment. 54 A publicist who made a series of statements about the matter, including reference to the alleged involvement of Mr and Mrs Hamilton, sought to defend their defamation action against him on a number of grounds including the defence of reply to attack. The alleged attacks were statements made by Mr and Mrs Hamilton as they left Barkingside Police Station after having been questioned by police in relation to the rape allegations. Mr Hamilton allegedly said: "the whole thing is a monstrous lie…as the name of Max Clifford has been mentioned, this is the man that brought us 'Freddy Star ate my Hamster'. There is absolutely no truth in it". Mrs Hamilton was alleged to have said: "the allegations are a fabrication…can I remind you that Mr Clifford is employed by Mr Mohamed Fayed?" [whom Mr Hamilton had previously sued]. 55 Although Mr Justice Eady declined to strike out the defence, the significance of the judgment for present purposes is that his Honour clearly considered it would be necessary for Mr Clifford to establish that his response was "necessary and proportionate" to the allegations made against him in the remarks of Mr and Mrs Hamilton (at [69]). 56 The fact that cogent authority can be found to support such opposed statements of principle is unsettling. I remain in some doubt as to whether (malice aside) a response that is wholly disproportionate to an attack by reason of the tone and language used is a communication that should properly enjoy the protection of the relevant occasion (the occasion of qualified privilege created by the launching of the original attack). It is difficult to see how the requirement for the defendant to establish that the response was "fairly warranted" by the attack could be satisfied in that circumstance. 57 However, the analysis of Simpson J in Megna provides compelling support for the contrary view; that excessive language and intemperance of tone should not ordinarily be brought to bear in determining the second strand of the inquiry unless they inform the issue of relevance. It is convenient, for present purposes, to proceed on that premise. 58 As Simpson J explained, however, there must be a communication that is sufficiently connected to the occasion or the subject matter in question. If vituperation and invective are really all there is in the matter complained of, there may be no relevant communication of fact or opinion on the privileged occasion in question. 59 Assuming the correctness of the analysis of Simpson J in Megna, the success of the defence raised in the present proceedings should be determined in accordance with the following principles. 60 There are two matters that must be established by 2UE. The first is that Mr Chesterton's remarks amounted to an attack upon Mr Laws such as to warrant recognising the existence of an occasion of qualified privilege. The second is that the particular communication made by Mr Laws (the broadcast of the matter complained of) was "relevant, germane, or sufficiently connected to that occasion" (adopting the words of Simpson J in Megna). 61 I do not think there is any difference in substance between that formulation and the term "requisite connection" adopted by Spigelman CJ in Bass favoured by Mr McHugh. The whole of the relevant passage from Bass is as follows: "2 As to the first issue, concerning the existence of qualified privilege in the form of a reply to an attack, I agree with Handley JA. Mr T Molomby SC, who appeared for the Appellant, identified two matters which he submitted were such as to deprive the Respondent of the ability to rely on this form of privilege about which I wish to make additional observations. 3 The first was that the interviewee who replied to the attack, and whose reply was published, did not at the time of the reply have available to him the full contents of the attack to which he purported to reply. In my opinion, this does not deprive a defendant of the ability to rely on the defence where the reply has the requisite connection to the attack, e.g. that it was 'relevant' to the attack (see e.g. Loveday v Sun Newspapers Limited [1938] HCA 28; (1938) 59 CLR 503 at 516.1 per Starke J), or where the reply could 'justify or explain the course taken or remove or mitigate the effect of the attack'" (at 519.2 per Dixon J).

Was there a privileged occasion? 62 It is convenient to repeat the passage from Mr Chesterton's column said to constitute the attack: "Meanwhile, the Johns saga is starting to run out of motivation. You know that when 70-year-old disc jockeys are drawn into the fray to support the argument resources are short and the end, thankfully, is near." 63 It must first be observed that Mr Laws is not referred to by name in those remarks. In those circumstances, although neither party addressed me on this issue, it seems to me that it must first be established (as a premise of the defence) that Mr Chesterton's article in fact identified Mr Laws as the object of any relevant remark. 64 Mr Chesterton conceded in evidence that the reference to "70-year-old disk jockeys" was a reference to Mr Laws but I think he must be taken to have been acknowledging his own subjective intention. That is not the test. In my view, this question should be determined in much the same way as the issue of identification of a plaintiff in defamation proceedings where he or she is not named in the matter complained of. 65 However, since the point was not taken on behalf of Mr Chesterton at the trial, and in light of his concession referred to above, it would not be appropriate to determine the proceedings adversely to the defendant on that basis. In any event, there is probably a sufficient basis in the evidence for an inference that Mr Chesterton's article was published to people who knew enough about Mr Laws (such as his occupation and the fact that he had turned 70 that day) to understand that the reference in the last paragraph was a reference to him. 66 The critical task is to determine whether what Mr Chesterton wrote in his column amounted to an attack on Mr Laws such as to give rise to a privileged occasion for response in the same forum. 67 Neither party referred me to any authority as to the test to be applied in determining that question. Mr McHugh submitted that the test is objective but that context is relevant. A common sense approach dictates acceptance of that contention. Mr Evatt submitted there is a subjective component to the test. I do not think that can be correct. The protection of a defamatory communication in response to a perceived attack that did not warrant that description on any objective test could hardly be said to be "for the common convenience and welfare of society". 68 On that basis, although I accept, as asserted by Mr Chesterton, that he did not intend his remarks as an attack, that is irrelevant, in my view. It is equally irrelevant to take into account the consideration, as appears to be the case, that Mr Laws perceived Mr Chesterton's remarks as a scathing attack on him. 69 The question of what amounts to an attack for the purpose of the defence has not been the subject of any great attention in any of the cases regularly cited in this area of the law, perhaps because those cases have been concerned with circumstances where the words relied upon as the relevant attack plainly did amount to an attack and the success or otherwise of the defence turned on other issues. 70 Some guidance may be derived from a consideration of the attacks relied on in those cases. In Adam v Ward, the matter complained of was a letter signed by the secretary of the Army Council in response to the following statement made in the House of Commons by Major Adam (at 311 - 312): "That Major-General H. J. Scobell, Royal Irish Lancers, did render to superior authority a confidential report or confidential reports on an officer or officers under his command, which report or reports contained wilful and deliberate misstatements of fact, thereby deceiving those in authority to whom the report or reports were rendered, and causing injustice to be done to one of the regiments under his command. Major-General Scobell is on his way home at the present time from South Africa. He arrives in England at the end of this week, and I hope that he sees the report of this in the paper, as I intend he shall do, he will appreciate the meaning of the words "wilful deliberate misstatement of facts". I have tried to make it clear, and I hope he will turn up that paragraph in the King's Regulations which compels an officer in a case like this to refer the matter to his superior authority, the superior authority in this case being the army Council. I hope sincerely that the Army Council will see that justice is done to Capt Wilson and that the penalties are meted out to those officers who deserve it." 71 In Loveday, the matter complained of repeated, and responded to, the following attack on Canterbury Council (at 508 - 509): "In a letter to the Sun the secretary of the Canterbury District Unemployed Council claimed that although the man concerned had been a satisfactory relief worker for the past 16 months he had recently been refused the right to register for further work, no reasons had been given and because of his non-registration food relief had been refused him. 'This is a definite case of victimization, due to the man's activities in attempting to win better conditions for relief workers' added the letter." 72 In Penton v Calwell, Arthur Calwell, a member of the House of Representatives in Federal Parliament, had made a series of statements in Parliament (under the cloak of absolute parliamentary privilege) described in the judgment of Latham CJ and Williams J as "attacks by the plaintiff upon the personal character of the defendant (the editor of a newspaper) and upon him in his capacity of editor" (at 243.4). 73 One of the statements relied upon as an attack, which was repeated in the matter complained of, was (at 253.4): "…'even still we find some of the Sydney newspaper proprietors disregarding entirely the safety of this country and trying to jeopardise the fate not only of the people of this country but also of prisoners of war in the hands of the Japanese' said Mr Calwell". 74 In Bass, the plaintiff had alleged that there had been a vendetta by the Building Workers Industrial Union to drive him out of business as a builder. The matter complained of included that allegation and the response of the BWIU that Mr Bass was a shonky operator who could not be relied upon to pay his workers what they were due. 75 Each of those statements may readily be seen to be an attack upon the reputation of a person such as to warrant the court's being satisfied as to the existence of a right and interest in the person attacked in repelling or refuting the attack. Each had an identifiable subject matter that entailed cogent criticism of the person who was the object of the attack. 76 What was the subject matter of Mr Chesterton's statement to the effect that the end of an argument must be near when 70 year old disc-jockeys are brought into the fray? Mr McHugh submitted that any reading of the column shows that it was an attack on Mr Laws. He emphasised the importance of understanding the article in the way in which a reader of Mr Chesterton's column would have read it, which involves an appreciation of, at least, "the importance of Rugby League to such a reader, the history of the Super League split and Mr Andrew Johns' place in the pantheon of League greats". 77 Mr McHugh submitted that the core contention of Mr Chesterton's article was that those heralding the demise of international Rugby League in the wake of the "Johns saga" were wrong. He submitted Mr Chesterton's column was to be understood as a statement in defence of the game of Rugby League and an attack against its critics. In that context, the description of Mr Laws as a "70 year old disc-jockey" was either entirely gratuitous or else directed to denigrating Mr Laws' part as one of the "resources" opposed to Mr Chesterton's side of the argument. On either reading, Mr McHugh submitted, it was a direct attack on Mr Laws. 78 I have given careful consideration to Mr Chesterton's column and the context in which it was published, as described in the evidence. Considering the terms of the article objectively, I do not think it had the meaning contended for on behalf of 2UE. In my view, the article was not to be understood as being an attack upon the reputation of Mr Laws but, rather, as an acknowledgment of his popular standing. 79 Critical to the submissions put on behalf of 2UE was the contention that the description of Mr Laws as a "70 year old disc-jockey" was an ageist remark that was diminishing and belittling. I do not think that is how those words are to be read. In my view, they would be understood by the reader as nothing more than an oblique way of referring to a well-known person other than by name. Mr Laws had in fact turned 70 that day. 80 It was submitted, further, that the description of Mr Laws as a "disc-jockey" was calculated to belittle. Mr McHugh said that the connotations of a disc-jockey are of a lightweight who simply plays music and that this was, therefore, plainly an attack on Mr Laws' reputation as "one of Australia's greatest broadcasters". For my part, I struggle to see anything derogatory in that term. I do not accept that radio presenters who only play music are necessarily regarded as "lightweights". 81 Emphasis was also placed on the words "resources are short". It was submitted that the point of that description was to say that Mr Laws' involvement was a sign of desperation in the camp of those opposed to Mr Chesterton's view in the "Johns saga". I do not think it follows that the remark was an attack on Mr Laws. On the contrary, the sense to be drawn from a fair reading of the column as a whole is that, in their desperation to breathe life into a dying argument, those on the other side of the debate had seen fit to bring in the big artillery, the ever-authoritative Mr Laws. 82 It has long been accepted that the identification of an occasion of qualified privilege is informed by reference to all of the circumstances in which the communication is published including, in particular, the subject matter of the communication. The subject matter of Mr Chesterton's communication (so far as it is alleged to be an attack on Mr Laws) was the fact that Mr Laws had been brought into what Mr Chesterton regarded as a debate that was running out of steam. In my view, to the extent that the remark was directed to Mr Laws' age and station in life, or suggested he is the champion of dying causes, it could perhaps be characterised as a quip, a taunt or a gibe, but hardly an attack upon the reputation of Mr Laws. 83 As stated by Giles JA in the passage from Skalkos cited above, the function of attribution of legal responsibility necessarily affects the inquiry. I do not think the function of the law of qualified privilege is to afford protection to defamatory statements made in response to such innocuous remarks. I am not satisfied that the reference to Mr Laws in Mr Chesterton's column was such as to warrant recognising the existence of a privileged occasion for a defamatory response by Mr Laws.

Was the response relevant to the attack? 84 In case my conclusion on that issue is wrong, it is appropriate to consider whether the particular communication was relevant, germane, or sufficiently connected to the occasion or to the subject matter of the communication. 85 As already stated, the subject matter of the relevant remarks was the fact that Mr Laws had been brought into what Mr Chesterton evidently regarded as a debate that was running out of steam. If (contrary to my conclusion) it is an attack on a person's reputation to accuse him of permitting himself to be dragged into a dying debate, what was Mr Laws' response? 86 The only part of the matter complained of that served to explain or mitigate Mr Chesterton's remarks was the statement "I talked to Joey Johns because I wanted to, because he's a friend of mine". The balance of the matter complained of, in my view, was no more than splenetic invective. If there was insult in what Mr Chesterton said, Mr Laws responded in kind but the response was devoid of any sensible content. Beyond the statement identified, Mr Laws said nothing that was relevant or germane to the subject of why he had entered the debate surrounding Mr Johns. Accordingly, I am not satisfied that the matter broadcast by 2UE was protected by any occasion of qualified privilege. Damages 87 It follows that Mr Chesterton is entitled to an award of damages. The purposes of such an award (which overlap) are consolation for the personal distress and hurt caused to Mr Chesterton by the publication, reparation for the harm done to his reputation and vindication of his reputation: Carson v John Fairfax & Sons Limited [1993] HCA 31; 178 CLR 44 at 60.6 per Mason CJ, Deane, Dawson and Gaudron JJ. 88 The assessment of the appropriate award is governed in this case by s 46A of the Defamation Act 1974, which provided: (1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.

(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages). 89 Mr Evatt complained of the difficulty in this jurisdiction of discerning a standard or range of awards in defamation cases, notwithstanding the guidance of the statute. He submitted that if, by comparison with awards of general damages in personal injury cases, the range is up to around $300,000, it would be appropriate to regard $150,000 as the median (presumably for the putative "mid-range" defamation). On that basis, he submitted, the proper approach would be to assess damages according to where the particular case stood by reference to the median. 90 Mr McHugh submitted that such an approach would be undisciplined and contrary to the Defamation Act. I am not sure that I would dismiss Mr Evatt's approach in those terms, but I think the linear algorithm he proposes would be of little assistance in what is ultimately "the product of a mixture of inextricable considerations": Uren v John Fairfax (1966) 117 CLR 118 at 150, cited in Carson at 60.8. 91 The assessment must be informed by a consideration of the circumstances of the publication and the imputations conveyed. As to the circumstances of the publication, I take into account the fact that it was a radio broadcast, which is more transitory in nature than a printed publication. I have listened to the broadcast (Ex C) and accept, as noted by Mr McHugh, that the words were spoken relatively quickly by Mr Laws and without undue repetition. That factor lessens their lasting impact. There was some evidence during the hearing as to Mr Laws' good standing as a radio presenter. That is a counter-veiling consideration in determining the likely impact of the broadcast. 92 As to the extent of publication, the evidence was limited to the tender of an answer to interrogatories (Ex J) in which 2UE estimated the number of Sydney listeners for the publication sued upon to be 81,000. Mr Evatt submitted that the number throughout New South Wales would be considerably greater, but 2UE did not admit that it was responsible for such broader publication and there was no evidence on that issue. In any event, publication to a potential audience of 81,000 is in itself a broad-ranging publication. 93 The defamatory meanings found by the jury (set out above) are serious imputations on Mr Chesterton's reputation. As I was reminded, however, two of the imputations ((g) and (h)) were pleaded as true innuendoes and there was no evidence as to the extent of publication of the broadcast to people who knew the extrinsic facts relied upon. 94 A substantial amount of the hearing time was devoted to evidence as to the use of the term "Ankles" in reference to Mr Chesterton, both before and after publication of the matter complained of, and argument as to the impact of that evidence on the assessment of damages. The reason so much time was spent on that issue was that, as submitted by Mr McHugh, the plaintiff himself identified that particular aspect of the defamatory broadcast as the cause of hurt to feelings and harm to reputation. I must bear in mind, however, that the imputation conveyed by the use of that term (that Mr Chesterton is a despicable person) is only one of eight defamatory meanings found by the jury. In accordance with the determinations made by the jury, damages must be assessed on the basis that the broadcast conveyed the additional meanings, that Mr Chesterton is a creep, a bombastic beer-bellied buffoon, a journalist who is not to be taken seriously; that he was fired from Radio 2UE; that he falsely accuses John Laws for that dismissal and that he is an ungrateful person and a liar. 95 Although short and pithy, the broadcast mounted a comprehensive assault on Mr Chesterton's reputation. It came from an influential broadcaster on a commercial radio station in a programme with an estimated audience of 81,000 (with the qualification already stated as to the two true innuendoes). At the same time, it may be observed that Mr Chesterton is himself an experienced journalist who could not have operated in that industry for as long as he has without becoming seasoned to the harsh climate of the mass media to some extent. He himself acknowledged that, particularly in the field of sports journalism, one had to be thick-skinned. Hurt to feelings 96 It is necessary to resolve a number of factual disputes raised by the parties as to the imputation relied upon as a true innuendo based on the meaning of the term "Ankles". It is important in that context to remember that the defendant is not sued for coining or perpetuating a nickname. The task is to identify the extent to which Mr Chesterton suffered hurt to his feelings and harm to his reputation by reason of the publication of the defamatory imputations found by the jury. 97 Mr Chesterton gave evidence that, when he heard the words "and those friends that you do have call you "Ankles", and for very good reason", he was overwhelmed by "the violence" of what was being said. He said it was a devastating feeling to be castigated like that in front of his colleagues by someone he "thought was a friend and who was a big name in Australian radio". Significantly, he denied ever having been called "Ankles" before the broadcast of the matter complained of (T81.10; T140). He also denied being aware, prior to the broadcast, that he had that nickname (T232.34). 98 Mr Chesterton sought to attribute a great deal of harm to that single aspect of the broadcast and squarely blamed Mr Laws for deploying the nickname "Ankles" in reference to him (T232.43). He said (T85.46 - 86.14): "A. As a consequence of what occurred in that broadcast, I decided that I would have to get out of journalism and retire. The stress of constantly being pin-pointed and looked at; going to matches, having people call me "ankles" in the grandstand as you walk up to the grandstand to the back of these stadiums where the press box is, you walk past row after row of people, and I was hearing people just whispering "ankles" as I went past; you turn back and of course no-one is there. Maybe the final straw or the clincher was late in 2008 when I was at a game at Parramatta Stadium - not Parramatta Stadium, Homebush stadium at the Olympic ground, and there was always a press conference after each game where the two rival captains and a couple of players are called along and the media en masse sit down. It is usually about 30 media, 40 media, but also about another 20 or 30 officials, and club members, people associated with both teams - and I was sitting up the front waiting for the interviews to start, and I heard from the back of the hall "Hello ankles" at the top of their voice and I spun around, but I - it was impossible to see who it was: I was just confronted by a mass of faces looking back at me. And although I may have had my suspicions, there was nothing that you could possibly pin-point about who it was, and I thought then I can't go on like this, this is foolish." 99 However, two witnesses called on behalf of 2UE contradicted Mr Chesterton's evidence that he had not previously been called "Ankles" (to his face). The first was Mr Denis Fitzgerald, who was the Chief Executive officer of the Parramatta District Rugby League Club for many years. He had known Mr Chesterton since around 1970 in that context. He had heard Mr Chesterton referred to as "Ankles" in the early eighties and said the use of that name was common among Mr Chesterton's workmates at News Limited. 100 Mr Fitzgerald said he had discussed the nickname with Mr Chesterton (T300.17): "A. It would have been in the early eighties, or even late seventies, and I asked him about his nickname "ankles", how did it come about, and he replied that it was because he was a low tackler when he was playing Rugby League in the Journalists Cup, where he tackled people around the ankles." 101 Mr Fitzgerald and Mr Chesterton had a falling out in the mid 1980's. Mr Fitzgerald gave evidence that, since that time, he himself has called Mr Chesterton "Ankles" and has used the name "Ankles Chesterton" on radio (T278.21; T306). He also disclosed that it was he who called out the nickname in the incident at Homebush Stadium described in Mr Chesterton's evidence set out above (T301.11). 102 Mr Fitzgerald's evidence was supported by the existence of a file kept by Mr Fitzgerald over many years of articles written by Mr Chesterton. Mr Fitzgerald wrote the title on the file "Ray 'Ankles' Chesterton" at the time he began keeping it (in the mid-1980's, well before the events giving rise to these proceedings). 103 Mr Ray Warren, a sports commentator, also gave evidence that he had heard others refer to Mr Chesterton as "Ankles" and had himself called Mr Chesterton by that name during an incident at Parramatta Stadium in the early 1980's, prompting "a bit of a scuffle" (T319.47). Another journalist, Mr Tony Adams, also gave evidence as to the use of the term in reference to Mr Chesterton prior to the publication of the matter complained of, although he did not suggest he had heard it used in Mr Chesterton's presence. 104 I accept, as submitted on behalf of 2UE, that the evidence of those witnesses was credible. Mr Fitzgerald was plainly no friend of Mr Chesterton's, and makes no secret of that fact. He appeared to take some pleasure in re-telling the story of the incident at Parramatta Stadium involving Mr Warren as follows (at T291.6): "Someone said to me, an official, "Denis, Denis, come quickly. Ray Warren is choking Ray Chesterton" and I replied, "I'll be there in half an hour." That's what I said. I then moved, probably slowly, towards where the media area was…" 105 His evidence as to the nickname was nonetheless credible, in my view. As I have already stated, it was consistent with a contemporaneous document kept by him. I am satisfied on the strength of his evidence and that of Mr Warren and Mr Adams that Mr Chesterton had acquired the nickname "Ankles" well before the broadcast of the matter complained of and had been called by that name to his face more than once. Mr Chesterton called a number of witnesses in reply to rebut that evidence but they did not persuade me that I should reject the evidence of the witnesses called by 2UE. 106 It does not necessarily follow that Mr Chesterton's feelings were not hurt by what Mr Laws said. There was evidence from Mrs Chesterton of her observation that he was "terribly upset" after he heard the broadcast (T255.23). Mr Chesterton's own words were that he felt he was being "castigated" in front of his colleagues by someone he thought was a friend. I can readily accept that evidence. It is one thing to have been called a derogatory nickname at the football. It is another to hear it embraced epithetically on talkback radio. 107 For that reason, I do not think the fact that Mr Chesterton had been called "Ankles" to his face before, as clearly established by the evidence of Mr Fitzgerald and Mr Warren, is fatal to Mr Chesterton's case on hurt to feelings, as contended on behalf of 2UE. Further, as already indicated, there were other aspects of the broadcast which in my view would have been hurtful to Mr Chesterton. It was a nasty, vituperative attack the terms of which were calculated to humiliate. I am satisfied that Mr Chesterton was hurt by the broadcast when he heard it and that he probably continued to feel that way for a time thereafter. 108 I do not accept, however, that Mr Chesterton was unaware, or did not recall, that he had ever been called "Ankles" previously. Mr McHugh submitted that his evidence on that issue must have been a deliberate lie calculated to increase his damages in this case. On that basis, he submitted that damages should be awarded at the very bottom of the range. 109 With some reluctance, I have concluded that Mr Chesterton's evidence on that issue was false to his knowledge. I doubt whether his purpose was to increase his damages. Mr Chesterton's refusal to acknowledge his unpleasant nickname was more likely due to his being too ashamed or embarrassed to concede the point. In any event, the evidence to the contrary was convincing and cannot be reconciled with Mr Chesterton's denials. It follows that the measure of the hurt to feelings suffered by him must be tempered by the fact that his reaction was probably due in part to the re-opening of older sensitivities. I do not think it follows, however, that the award must be at the bottom of the range.

Harm to reputation 110 The evidence of the witnesses called on behalf of 2UE on the issue of the "Ankles" nickname (and the witnesses called in reply by Mr Chesterton) was also relevant to the question of causation of harm to reputation. As already indicated, it was a premise of Mr Chesterton's case on damages that the nickname "Ankles" originated with the broadcast sued on in these proceedings. 111 Mr Chesterton pointed, in particular, to the incident at Homebush Stadium when a person called out the name "Ankles" (set out above). Later evidence established that it was Mr Fitzgerald who did so, and not because he had heard it said by Mr Laws. 112 Mr Chesterton also tendered a series of blogs posted on a website associated with South Sydney Football Club (Ex G), in which he is referred to as "Ankles" and otherwise in derogatory terms. There was overwhelming evidence, however, to establish that Mr Chesterton had been called "Ankles" by other people (although not always in his hearing) well before the broadcast of the matter complained of. Some of the blogs are very nasty, apparently using the nickname "Ankles" for Mr Chesterton in the sense put to the jury at the earlier hearing. One of the vices of blogs, however, is that their authors do not provide citations. I am not satisfied that the blogs tendered by Mr Chesterton establish harm to his reputation caused by Mr Laws' broadcast. 113 As pointed out by Mr Evatt, I should not assume that all of those who used or heard the nickname in reference to Mr Chesterton understood it to convey the meaning accepted by the jury (that Mr Chesterton is a despicable person). Mr Warren did not (T321.38). I have already referred to Mr Fitzgerald's evidence as to Mr Chesterton's own explanation that it was a term coined in reference to his style of tackling on the football field. Another witness, Mr Adams, thought it meant "lower than a snake" (T341.7). 114 Nonetheless, I am satisfied that, just as some of the people who heard the matter complained of understood the term in a derogatory sense (as the jury found), so some of the people who heard and used that term in reference to Mr Chesterton prior to the publication understood it in that same sense. Accordingly, I do not think that I should rely on the evidence as to the use of the nickname "Ankles" in reference to Mr Chesterton as evidence of harm to his reputation caused by Mr Laws.

Other evidence as to reputation 115 Radio 2UE did not put a case that Mr Chesterton had a bad reputation before publication of the broadcast. 116 Mr Chesterton tendered a collection of testimonials (Ex G), which speak particularly to his reputation as a good journalist (both before and after the broadcast). The testimonials also reveal that Mr Chesterton is held in high regard for the many ways in which he has supported various communities and made other positive contributions to society. 117 Mr Chesterton also called evidence from three of his former colleagues at the Daily Telegraph, Mr Roger Coombs, Mr Mark Morri and Ms Lisa Power. They each gave evidence of Mr Chesterton's good reputation prior to the broadcast and of the negative impact of the broadcast on that reputation. The matter was put poignantly by Mr Coombs, who said (at T112.45): "So, you hear these things about a colleague, things which are adverse, things which reflect on him, and it makes you question your opinions. You think perhaps I did not know this person as well as I thought I did." 118 On the strength of that evidence and having regard to the terms of the broadcast and the circumstances of its publication, I am satisfied that there was some harm to Mr Chesterton's reputation caused by the broadcast.

Aggravated damages 119 The pleadings included a claim for aggravated damages on a number of grounds, but the only matters maintained at the hearing were the plaintiff's knowledge of the falsity of the imputations and the defendant's failure to apologise. As to the second matter, no request for an apology was put into evidence. Accordingly, I cannot assess that claim. 120 Mr Chesterton gave evidence as to his knowledge of the falsity of the imputations. I accept that the harm actually suffered by him may have been slightly increased by that factor. As already explained, however, it appears that the primary cause of Mr Chesterton's hurt to feelings was the wider circulation given to the nickname "Ankles". The amount of compensatory damages I propose to award will include a slight increase on that basis, in accordance with the principles stated by Hunt J in Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74G to 75D.

Conclusion 121 In all the circumstances, I have concluded that the appropriate award of damages is $90,000. I order that there be a verdict and judgment for the plaintiff in that sum. As requested on behalf of the defendant, I will hear the parties as to costs. **********

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