Visscher v Maritime Union of Australia - [2014] NSWSC 350 - NSWSC 2013 case summary — Zoe

NSWNSWSC

Visscher v Maritime Union of Australia

[2014] NSWSC 350

Supreme Court of NSW|2013-11-06|Before: Beech-Jones J

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Source facts

Court

Supreme Court of NSW

Decision date

2013-11-06

Before

Beech-Jones J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

Introduction 1As at February 2011 the plaintiff, Mr Timothy Visscher, was the master in command of the ocean tugboat, the Hako Esteem. On 18 February 2011 the vessel was anchored in Shark Bay on the west coast of Australia. On that day an article appeared on the website of the defendant, the Maritime Union of Australia (the "MUA article" and the "MUA" respectively). The MUA article expressed grave concerns about the conduct of the master of the Hako Esteem in choosing to remain anchored in Shark Bay in the face of Cyclone Dianne, which the article suggested was proximate. The MUA article contained a "hyperlink" to a more detailed article found on the website of the Cootamundra Herald (the "Cootamundra Herald article") which expanded upon the concerns raised. 2Mr Visscher sues the MUA in defamation. He claims that it published the MUA article and such copies of the Cootamundra Herald article as were downloaded by clicking on the hyperlink on the MUA's website. He says both articles defamed him by accusing him of incompetence as a master and placing the safety of his crew and vessel at risk. He also claims that one of the articles defamed him by suggesting he was succumbing to commercial pressure by deciding to remain in Shark Bay. 3The MUA admitted that it published the MUA article, but denied that it published such copies of the Cootamundra Herald article as were downloaded by clicking on the hyperlink found within the MUA article on the MUA's web site. It denied that aspects of the imputations pleaded by Mr Visscher were conveyed by those articles. It also raised a suite of affirmative defences, including that the imputations as conveyed were true, published on an occasion of qualified privilege, protected by the statutory defence of qualified privilege provided for in s 30 of the Defamation Act 2005 (NSW), and otherwise were expressions of opinion protected by s 31. 4For the reasons that follow I uphold all the relevant aspects of Mr Visscher's claim and reject each of the MUA's defences. I find that certain aspects of the MUA's conduct aggravated the damages to which Mr Visscher is entitled. I do not accept that the MUA has demonstrated that the damages to be awarded to Mr Visscher should be reduced by reason that he has apparently settled related proceedings with a media organisation. I have assessed the damages recoverable by Mr Visscher as $90,000.00. I will hear the parties as to costs. 5The balance of these reasons is structured as follows: [6] to [10] The publications [11] to [16] Identification of the Plaintiff [17] to [31] Publication by the MUA [32] to [43] What imputations, if any, were conveyed by the MUA article? [44] to [50] What imputations, if any, were conveyed by the Cootamundra Herald article? [51] to [52] Are the imputations defamatory? [53] to [126] The Voyage of the Hako Esteem

[2]

The publications 6On the evening of 17 February 2011 a journalist employed by "WA Today", Ms Lee-Maree Gallo, spoke to a safety officer working within the Western Australian Branch of the MUA, Mr Noel Nielsen. The next morning the Cootamundra Herald article was placed onto the website www.cootamundraherald.com.au which, as its name indicates, was operated by the entity that published the newspaper, the "Cootamundra Herald". The article stated: "Fears for sailors caught in a cyclonic storm LEE-MAREE GALLO 18 Feb, 2011 10:46 AM The lives of 11 Australians are in danger as they try to ride out tropical Cyclone Dianne off the north-west coast of Western Australia, the Maritime Union of Australia says. MUA safety officer Noel Nielsen said he held grave fears for all on board the Singaporean-registered tugboat Hako Esteem, which is in the Indian Ocean tucked behind Dirk Hartog Island, near Shark Bay. The boat, which measures 57 metres long and is 14 metres wide, is towing a heavy barge and is assigned to work on the Gorgon gas project. Mr Nielsen said the crew's best chance of surviving the cyclone - which is now a category 2 and is expected to strengthen to a category 3 by the time it reaches the vessel - was to unhook the barge and flee the extreme weather conditions. He said the vessel was in seas no more than 14 metres deep, which could prove disastrous as the Bureau of Meteorology forecast that tides along the entire west coast were likely to exceed the high-water mark over the next few days. Mr Nielsen, who has spoken to crew members on the boat, said that, even though the crew wanted to unhook the load and run away from the storm, the master had chosen to ride it out. 'The crew is extremely upset with the master and the fact he doesn't seem to have a contingency plan in place if something goes wrong,' Mr Nielsen said. 'He refuses to speak to the crew collectively and has only agreed to address crew's individual concerns. 'We have advised he either needs to unhook the barge and run away from the cyclone or anchor up somewhere and get the people off.' Mr Nielsen said that, adding to the problem, was the fact no one was willing to take responsibility for the vessel. The tugboat is registered to Singaporean company Hako Shipping, chartered by Boskalis Australia and overseen by American company Chevron and Kellog Joint Venture. The crew are employed by Total Marine Services, a company based in Australia. Mr Nielsen was concerned the master was feeling pressured to hold on to the barge even though Chevron's own cyclone plan suggested running away from approaching storms. A Chevron spokesman was contacted but declined to comment on the situation. Total Marine Services could not be contacted for comment, but its website states that the company prides itself on putting safety first. Mr Nielsen said Total Marine Services was trying its hardest to remedy the situation to ensure its crew was safe, but this was proving difficult as the company had no control of the vessel. Mr Nielsen called on all parties responsible to work together to ensure the crew were not put in any danger and to make sure no lives were at risk. 'Hope is not good enough ... it's essentially playing Russian roulette with these people's lives,' he said. 'Everybody wants to blame everybody else and if people die out there this is what's going to happen. No one is willing to take responsibility.' Neither Boskalis Australia nor Hako Shipping could be reached for comment." (emphasis added) 7A snapshot of the web page containing the article reveals that next to the typed words of the article were two images. One image was a satellite photo of Australia depicting a large cyclonic shape of cloud to the north west of Exmouth in Western Australia. The outside edge of the cloud just touched the Australian mainland at Exmouth. The other image was underneath that photo. It was a map that showed what was said to be the actual position and likely path of Cyclone Dianne. It depicts a projected area of affectation to the west of Carnarvon in Western Australia at around 5:00am on 20 February 2011. The position of Carnarvon vis à vis the position of the Hako Esteem in Shark Bay is described below (at [58]ff). 8The time at which this article was posted is difficult to determine. Even though Ms Gallo appears to have been based in Western Australia, the time of posting is more likely to be a reference to eastern standard daylight savings time ("EDST") given that Cootamundra is in western New South Wales. As at February 2011, New South Wales was three hours ahead of Western Standard Time ("WST"). To add to the confusion, another copy of the Cootamundra Herald article that was tendered lists the posting time as 09:46am. (Unless otherwise stated, all time references are to WST.) 9Later on 18 February 2011, Ms Zoe Reynolds received a "Google alert" drawing her attention to the Cootamundra Herald article. Ms Reynolds was a journalist engaged by the MUA. She was based in Sydney. She said she saw the article "mid-morning or early afternoon" (EDST) on 18 February 2011. She then prepared the MUA article and placed it on the MUA's website for publication. This article stated: "Maritime Union of Australia MUA crew caught in cyclonic storm 18 FEB 2011 11 Australian seafarers lives are in peril after the master of a Singaporean registered tugboat Hako Esteem refuses to flee cyclone and, once again, Boskalis safety on the Gorgon LNG project comes under question. [picture depicting cyclone near Western Australian coast] The lives of 11 Australians are in danger as they try to ride out tropical Cyclone Dianne off the north-west coast of Western Australia, MUA WA branch report. Branch safety officer Noel Nielsen told the Cootamundra Herald he held grave fears for all on board the Singaporean-registered tugboat Hako Esteem, working the Gorgon gas project near Shark Bay. 'The crew is extremely upset with the master and the fact he doesn't seem to have a contingency plan in place if something goes wrong,' Noel Nielsen said. 'He refuses to speak to the crew collectively and has only agreed to address crew's individual concerns. 'We have advised he either needs to unhook the barge and run away from the cyclone or anchor up somewhere and get the people off.' The tugboat is registered to Singaporean company Hako Shipping, chartered by Boskalis Australia and overseen by American company Chevron and Kellog Joint Venture. The crew are employed by Total Marine Services, a company based in Australia. READ FULL STORY" 10The words "Read Full Story" were a hyperlink, in that if a person browsing the article clicked on the link they were taken to the article in the Cootamundra Herald. The picture in this article was the same satellite image as appeared under the Cootamundra Herald article described at [7] above.

[3]

Identification of the plaintiff 11Mr Visscher was not named in these articles, but he was the master of the Hako Esteem at the time these articles were first published. 12Mr Visscher called another qualified master, James Munro. Mr Munro has known Mr Visscher since the late 1970s. In February 2011 Mr Munro was working on the Gorgon project at Barrow Island (see [57]). He knew that Mr Visscher was the master of the Hako Esteem. Mr Munro saw the MUA article and clicked on the hyperlink to read the Cootamundra Herald article. Mr Munro said he realised that the articles were referring to Mr Visscher. He telephoned Mr Visscher. I accept that evidence. 13Mr Visscher called Ryan Dagnall who was the second officer on the Hako Esteem on its voyage in February 2011. Mr Dagnall recalled coming across the MUA article on the internet on 18 February 2011, reading it, and bringing it to Mr Visscher's attention. He also recalled looking over Mr Visscher's shoulder while Mr Visscher clicked on the hyperlink. Mr Dagnall said he read the Cootamundra Herald article over Mr Visscher's shoulder. In his evidence Mr Visscher stated that this occurred in the afternoon of 18 February 2011. I accept that evidence. 14Mr Visscher also called Andrew Phillips. Mr Phillips is a Chief Officer. He has held a Master Class 1 Certificate for two years and has worked in the maritime industry since 1991. He first worked with Mr Visscher in 2006 on the "Lwek Swift" and then later on the "Geobay". Mr Visscher was the master of both vessels. Mr Phillips recalled reading an article on the MUA website in February 2011. He said he rang Mr Visscher. He said he was not sure if he rang Mr Visscher straight after reading it but the phone call was made at least within two weeks of his reading the article. He recalled asking Mr Visscher "Oh, I just read this on the MUA website. Is this you?" and that Mr Visscher said that "yes, he was on board". In cross examination Mr Phillips initially nominated the Cootamundra Herald article as the one he viewed, but he later stated that it was the MUA article. He was pressed on this but adhered to his evidence that he viewed the MUA article. I accept that this is so. Mr Phillips said that he had bookmarked the MUA website on his web browser. I would expect that he would recall if he had clicked on a hyperlink through to the Cootamundra Herald article. Otherwise Mr Phillips would have no reason to directly access the Cootamundra Herald article via the Cootamundra Herald website. 15In light of Mr Munro's and Mr Dagnall's evidence, the MUA accepted that the MUA article was published "of and concerning" Mr Visscher. I assume the concession was made on the basis that it was accepted that it was proved that the MUA article was published to persons with the requisite knowledge of Mr Visscher's position as master such that they would reasonably believe it was referable to him (David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234, at 238 per Isaacs J), although it is not necessary to prove that such a person in fact concluded it was the plaintiff. The MUA's concession is also supported by Mr Phillip's evidence. 16Mr Munro's and Mr Dagnall's evidence also demonstrates that the Cootamundra Herald article was published of and concerning Mr Visscher.

[4]

Publication by the MUA 17The MUA admitted that it bore responsibility for the publication of the MUA article by the placement of the article on its website and its subsequent downloading and viewing by readers. However it denied publication of the Cootamundra Herald article. 18The Amended Statement of Claim (the "ASOC") particularised the basis for attributing responsibility for the publication of the Cootamundra Herald article as being the placement of the hyperlink within the MUA article on the MUA's website. The plaintiff's written submissions in chief also sought to attribute responsibility by reason of the hyperlink and the conversation between Mr Nielsen and Ms Gallo that I have noted above. The MUA objected to Mr Visscher relying on the latter basis as it was neither pleaded nor particularised. This led to an application to amend to broaden the particulars of publication. The application was refused (Visscher v Maritime Union of Australia (No 5) [2013] NSWSC 1640 (Visscher (No 5)). Accordingly the responsibility of the MUA for the Cootamundra Herald article falls to be determined by reference to the basis originally particularised. 19With the tort of defamation the actionable wrong is the publication of the libel and not its composition (Lee v Wilson (1934) 51 CLR 276 at 287). The concept of publication has a "bilateral" nature in that the relevant utterance must be comprehended by the reader, the listener or the observer (Dow Jones & Co Inc v Gutnick (2002) 77 ALJR 255; 210 CLR 575 at [26] to [27]). In Webb v Bloch (1928) 41 CLR 331 at 363 to 365, Isaacs J approved a passage from the judgment of the Court of Kings Bench in R v Paine (1696) 5 Mod Rep 163 at 167; 87 ER 584 at 587, to the effect that if one person repeats, another writes, and a third person approves a libel then "... they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty". In Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 at 69,192 to 69,193 ("Urbanchich"), Hunt J noted that this passage was stated in the context of a criminal defamation which, unlike its civil counterpart, did not require publication to a person other than the person defamed. His Honour nevertheless considered that it was still applicable to civil proceedings provided that each person was "instrumental in some degree in communicating the defamatory material to a person other than the plaintiff" (id). 20In Urbanchich, Hunt J addresses the circumstances in which a person might be found to be the publisher of someone else's defamatory statement which was attached to their property. After reviewing the authorities, his Honour concluded: "In a case where the plaintiff seeks to make the defendant responsible for the publication of someone else's defamatory statement which is physically attached to the defendant's property, he must establish more than mere knowledge on the part of the defendant of the existence of that statement and the opportunity to remove it. According to the authorities, the plaintiff must establish that the defendant consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement on his property so that persons other than the plaintiff may continue to read it - in other words, the plaintiff must establish in one way or another an acceptance by the defendant of a responsibility for the continued publication of that statement." 21Although this passage was cited in the context of attributing responsibility to an owner of property for someone else's defamatory statement, his Honour's reference to a publisher being a person who accepts a responsibility for the publication of a statement of another has been adopted in other contexts (see A-S v Statewide Roads Ltd [2007] NSWSC 1472 at [17], and on appeal Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 at [20] per Tobias JA). 22Senior Counsel for Mr Visscher, Mr Molomby SC, with whom Ms Goodchild of Counsel appeared, placed particular emphasis on the decision in Hird v Wood (1894) 38 Sol J 234, cited by Hunt J in Urbanchich at 69,192. In Hird v Wood a placard containing material defamatory of the plaintiff was suspended between two poles on the side of the road by someone unknown. The defendant was reported to have sat for a long time on a stool near the placard, smoking his pipe and continually pointing at the placard with his finger so as to attract the attention of passers by. This was held to be sufficient evidence to go to the jury of the publication of the placard by the defendant. In terms of the test posed by Hunt J in Urbanchich extracted above, Hird v Wood can be seen as an example of a person approving, adopting or promoting the defamatory statement of another and thereby accepting responsibility for it. Mr Molomby SC submitted that the MUA's conduct in publishing a hyperlink that referred readers to the Cootamundra Herald article was simply a 21st century manifestation of the type of conduct engaged in by the defendant in Hird v Wood. 23Counsel for the MUA, Mr Weaver, referred to the decision of the Supreme Court of Canada in Crookes v Newton [2011] 3 SCR 269. The plaintiff, Mr Crookes, brought defamation proceedings against Mr Newton who operated a website that contained commentary on various issues including free speech. One of the articles on that website contained two hyperlinks to a website operated by a third person that was said to contain three articles defamatory of Mr Crookes. The first hyperlink was a so called "shallow" hyperlink that took a browser to the third person's website where they could search for the three articles in question. The second hyperlink was a so called "deep" hyperlink that took a browser directly to one of the articles in question. Mr Crookes contended that by creating the hyperlinks and refusing to remove them when requested to do so Mr Newton became the publisher of the articles (at [10]). This argument was rejected at trial and by the Court of Appeal of British Columbia. He appealed to the Canadian Supreme Court. 24Justice Abella dismissed the appeal. Justices Binnie, LeBel, Charron, Rothstein and Cromwell JJ concurred in her Honour's reasons. Justice Abella considered that hyperlinks bear the same relationship to the content of the impugned publication as references (at [30]) in that: "... [b]oth communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral - it expresses no opinion, nor does it have any control over, the content to which it refers." (emphasis added) 25Her Honour added (at [33]) that interpreting the "publication rule" to exclude "mere references" was in accordance with the values in the Canadian Charter of Rights and Freedoms as well as advances in communication technology. Her Honour ultimately concluded (at [42]): "Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be 'published' by the hyperlinker." 26McLachlin CJ and Fish J agreed that the appeal should be dismissed but disagreed with Abella J's statement as to the circumstances in which the inclusion of a hyperlink would amount to publication of the material found at the end of the link. Their Honours stated (at [48]): "In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus, defendants linking approvingly to an innocent Web site that later become defamatory would not be liable." (emphasis added) 27Justice Deschamps posited a test for publication that required that the publisher engaged in "deliberate acts" which made "defamatory material available to third parties" (at [60]). Her Honour concluded that the posting of the "shallow" link did not make the defamatory material readily available to third parties but the posting of the "deep" link did and amounted to publication of the defamatory articles. However her Honour still dismissed the appeal, not being satisfied that the material was brought to the attention of any third person (at [124] to [127]). 28Mr Weaver submitted that I should adopt the approach of the majority in Crookes v Newton. Implicit in his submissions is a contention that the MUA article did not "present content from the hyperlink material in a way that actually repeats the defamatory content", which I consider to be highly doubtful. In any event I do not regard Abella J's formulation as consistent with Australian authority. As noted, her Honour's judgment was, at least in part, informed by the Canadian Charter of Rights and Freedoms which has no relevant equivalent in this country. Further, and with respect to her Honour, while one might accept that "by itself" the mere posting of a hyperlink might not amount to publication of the linked or referenced material, it is difficult to follow why it is necessary for the hyperlink to present content from the hyperlinked material in a way that actually repeats the defamatory content before it can amount to publication. This formulation would appear to exclude the circumstance in which the hyperlink or reference is prefaced by words that make it clear that the hyperlinked or referenced material is being endorsed by the alleged publisher. Thus, for example, if a hyperlink was prefaced by the words "for a true and terrible story about [the plaintiff] please click here", which then refers the reader to an article on a website which was clearly defamatory then that would appear not to be sufficient to meet her Honour's test of publication. Generally, any attempt to a craft a legal principle specific to the internet or world wide web should be undertaken with caution. It runs a significant risk of having the principle undermined by changes to the manner in which users conform with the internet or the web's protocols. 29In any event, the approach of McLachlin CJ and Fish J appears to accord more with the approach stated by Hunt J in Urbanchich which was derived from a review of the relevant Australian and United Kingdom case law. Stripped of its references to the position of the owner of a property, Hunt J's approach can be readily adopted to circumstances in which a person is alleged to be the publisher of material by inserting a hyperlink directing viewers to its web location. In particular, the question is whether, by the inclusion of the hyperlink, the defendant accepted responsibility for the publication of the hyperlinked material. This could be answered in the affirmative if, amongst other ways, it was concluded that there was an approval, adoption, promotion or some form of ratification of the content of the hyperlinked material. 30By publishing the MUA article with its hyperlink to the Cootamundra Herald article, the MUA clearly accepted responsibility for the continued publication of the Cootamundra Herald article. Its actions amounted to, at the very least, an adoption or promotion of the content of the Cootamundra Herald article. The MUA article introduced the reader to the danger faced by the MUA crew. It provided details about their plight and then invited a viewing of the "full story" by having the reader click on a hyperlink. In context, it conveyed that the details published in the MUA article were part of a more complete version (the "full story") which was to be found by clicking the hyperlink. 31Accordingly, to the extent that a reader downloaded and read the Cootamundra Herald article by viewing the MUA article and then clicking on the hyperlink in the MUA article, I am satisfied that the MUA published the Cootamundra Herald article.

[5]

What imputations, if any, were conveyed by the MUA article? 32Paragraph 5 of the ASOC pleads that the following imputations were conveyed by the MUA article: a) that as master of a vessel at sea caught in a cyclone he had no due regard for the safety of his crew ... alternatively: (aa) that as master of a vessel at sea facing a potential cyclone threat caught [sic] he had no due regard for the safety of his crew ... (b) that as master of a vessel at sea caught in a cyclone he had no due regard for the safety of his vessel ... alternatively: (bb) that as master of a vessel at sea facing a potential cyclone threat he had no due regard for the safety of his vessel ... (c) that as master of a vessel at sea caught in a cyclone he acted incompetently in the way he reacted to the danger ... alternatively: (cc) that as master of a vessel at sea facing a potential cyclone threat he acted incompetently in the way he reacted to the danger ... (d) that as master of a vessel at sea caught in a cyclone he put the lives of his crew in danger ... alternatively: (dd) that as master of a vessel at sea facing a potential cyclone threat he put the lives of his crew in danger ... (e) that as master of a vessel at sea caught in a cyclone he put his vessel in danger ... alternatively: (ee) that as master of a vessel at sea facing a potential cyclone threat he put his vessel in danger ... (f) that as master of a vessel at sea caught in a cyclone he reacted inadequately to the danger ... alternatively: (ff) that as master of a vessel at sea facing a potential cyclone threat he reacted inadequately to the danger ..." 33The MUA conceded that, with one exception being imputation 5(cc), the alternative formulation of the imputations were conveyed by the MUA article; ie the MUA conceded that 5(aa), 5(bb), 5(dd), 5(ee) and 5(ff) were conveyed. However, it disputed that the article conveyed that part of 5(a), 5(b), 5(c), 5(d), 5(e), 5(e) and 5(f) (the "primary imputations") which refers to Mr Visscher as the "master of a vessel at sea caught in a cyclone". Accordingly, only two issues need to be addressed, namely whether the article conveys that Mr Visscher was the "master of a vessel at sea caught in a cyclone" or only that he was the "master of a vessel at sea facing a potential cyclone threat" and whether it conveyed imputation 5(c) or 5(cc) (depending on the outcome of the first issue). 34Whether the articles conveyed the pleaded imputations is assessed objectively by reference to the position of the ordinary reasonable reader. A number of cases describe the characteristics of, and approach that is imputed to be adopted by, the ordinary reasonable reader (although some of these cases address these matters in the context of considering the anterior question of whether the publication was capable of conveying the alleged imputation and not whether it did in fact convey the imputation). Thus in Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [19] Tobias JA described the ordinary reasonable reader as a "person of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal". However, his Honour added that such a person "does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs" (id; see also Lewis v Daily Telegraph Ltd [1964] AC 234 at 258; [1963] 2 All ER 151). His Honour also described the ordinary reasonable person as someone "understandably prone to a certain amount of loose thinking", although it is necessary to distinguish between what "the reader's understanding of what [a] newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices" (see Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 at 300 per Mason J). 35In Griffith at [19] Tobias JA also noted that the mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. Thus: "... for example, [the ordinary reasonable reader] is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader." 36The MUA article addresses a serious topic, namely the safety of a tugboat crew. Its title and content suggest that they are in real danger. The article is relatively brief. Although in a sense it has a sensational quality the serious nature of the topic and its relative brevity would suggest that the ordinary reasonable reader was likely to read it reasonably closely. 37As noted, the first issue is whether it conveys so much of the primary imputations as refer to the vessel being "caught in a storm". 38Mr Weaver accepted that a literal reading of the headline to the MUA article conveyed the idea of at least the crew being "caught" in the cyclonic storm. However he contended that when read in context the ordinary reasonable reader would understand the headline to be a journalistic flourish which alluded to both the potential danger they faced and the suggestion of a conflict between their interests, the master who had apparently refused to speak to them and the various corporate interests referred to. Mr Weaver submitted that the words of the article in referring to the vessel "refus[ing] to flee [the] cyclone", "ride out [the] ... cyclone" or "run away from the cyclone" overall would convey that the vessel was not caught in the storm in that they suggest that the vessel "at that time was not directly affected by the cyclone". He also noted that the MUA article refers to options presently available to the master prior to becoming directly affected by the cyclone. 39The difficulty with these submissions is that I interpret the word "caught" in the imputation as referable to not just a situation where the cyclone is currently at or near the position of the vessel and imposing its force upon it and the crew, but also as including the circumstance that it is bearing down on them, and thus they are caught or entrapped in its path even if they are not in its midst. According to the Macquarie Dictionary "caught" can mean "ensnared", "fastened" or "entangled" (Macquarie Dictionary Online (2013)). 40It follows that I do not accept Mr Weaver's submission on this point. Once the phrase "caught" is understood in the manner that I have just identified, then it follows that the MUA article conveys that the vessel is "caught in a cyclone". The headline clearly does suggest that the crew were "caught in a cyclonic storm" and their fate was bound up with that of the vessel, the Hako Esteem. I doubt that the ordinary reasonable reader would conclude that the author had engaged in the form of journalistic nuance that Mr Weaver suggested however, even if they did, they would still conclude the crew and vessel were "caught" in the way I have described. The balance of the article conveys that the cyclone is bearing down on the vessel and they are caught in its path unless they attempt to flee. Further, the article only suggests two options, riding out the storm or attempting to flee. The idea that if the vessel stays where it is it might avoid the storm does not appear to be contemplated. 41The second issue concerns that part of imputation 5(c) which contends that the article conveyed that Mr Visscher "acted incompetently in the way he reacted to the danger". Mr Weaver submitted that the mere refusal of the master to flee the cyclone does not, of itself, suggest incompetence. I agree, but there is more to the MUA article than that. The latter part of the article refers to advice having been given to unhook the barge "and run away" and the opening part of the article suggests that the master has refused to do so. The article clearly suggests that running away is an appropriate step but the master refuses to take it. 42The article includes a quote from Mr Nielsen stating that the crew are upset with the master and the alleged fact "that he doesn't seem to have a contingency plan in place if something goes wrong". The clear implication is that the crew's distress is justified and the existence of a contingency plan is something that was required. Mr Weaver pointed out that it only quoted Mr Nielsen as stating that the master does not "seem" to have a contingency plan, which does not necessarily mean he does not have such a plan. That may be so, but I do not accept that the ordinary reasonable reader would be likely to draw any such distinction. The reader would understand that the crew of a tugboat would be likely to have a reasonable idea of the existence of such a plan even if the master was refusing to meet them collectively. Otherwise his refusal to speak to the crew collectively is suggestive of a master who is incompetent and unable to discharge his duties by allaying the crew's fears. I am satisfied that imputation 5(c) was conveyed by the MUA article. 43Accordingly, I am satisfied that the MUA article conveys the primary imputations.

[6]

What imputations, if any, were conveyed by the Cootamundra Herald article? 44The considerations I have outlined above at [34] to [36] apply with equal and perhaps more force to the Cootamundra Herald article. It must be remembered that the relevant reader in this context is a person who has first viewed the MUA article and then, via the hyperlink, read the Cootamundra Herald article. 45The primary imputations that are said by Mr Visscher to be conveyed by the MUA article are also said by him to be conveyed by the Cootamundra Herald article. Thus imputations 5(a), 5(aa), 5(b), 5(bb), 5(c) and 5(cc) are repleaded in subparagraphs 7(a), 7(aa), 7(b), 7(bb), 7(c) and 7(cc) of the Amended Statement of Claim respectively. However, imputations 5(d), 5(dd), 5(e), 5(ee), 5(f) and 5(ff)) are to be found in paragraphs 7(e), (ee), (f), (ff), (g) and (gg) of the Amended Statement of Claim respectively because an additional imputation was pleaded in paragraph 7(d) and (dd) as follows: "(d) that as a master of a vessel at sea caught in a cyclone he put commercial interests ahead of the safety of the crew ... alternatively: (dd) that as master of a vessel at sea facing a potential cyclone threat he put commercial interests ahead of the safety of the crew ..." 46Mr Molomby SC submitted that this imputation arises from the whole article, but pointed in particular to the statement that quoted Mr Nielsen as stating that he was "concerned the master was feeling pressured to hold on to the barge even though Chevron's own cyclone management plan suggested running away from approaching storms". The next part of the article refers to a spokesman for the overseer company, Chevron, declining to comment and the crew's employer, Total Marine Services ("TMS"), being unable to be contacted. This juxtaposition suggests that the "pressure" on the master originated from some corporate interest or another. Subject to considering the points raised next, I am satisfied that this imputation is made out. 47Otherwise Mr Weaver only took the same two points in relation to these imputations as those raised in relation to the MUA article. The first was that the article does not convey that the vessel is "caught in a cyclone". Mr Weaver pointed to those parts of the Cootamundra Herald article which were relevantly identical to the MUA article, namely the reference in the headline to "'caught in a cyclonic storm" and the supposed contrast with "try to ride out tropical cyclone" and "run away from the cyclone". However he also noted that in addition the Cootamundra Herald article stated that the cyclone is now a "category 2" cyclone and "is expected to strengthen to a category 3 by the time it reaches the vessel". This latter phrase, in particular, was said to suggest that the cyclone is not yet directly affecting the vessel. 48However, once the phrase "caught in a cyclone" is understood in the manner outlined above, then I am satisfied that the article clearly conveys that the vessel is relevantly "caught". The phrase "by the time it [the cyclone] reaches the vessel" does suggest that the cyclone has not reached the vessel, but also suggests that there is no doubt that the cyclone will reach the vessel. The relevant reader would understand that the vessel was directly in the path of the cyclone which was bearing down. In that sense the article suggests that the vessel was "caught" in its path. 49Mr Weaver also contended that imputation 7(c), which is to the effect that the master acted "incompetently in the way he reacted to the danger", was not made out in relation to the Cootamundra Herald article. To the extent that this article repeated the comments in the MUA article that supported imputation 5(c), Mr Weaver made the same arguments as he did with the MUA article which I have addressed above (at [41]ff). Four additional parts of the Cootamundra Herald article are relevant to this imputation namely the quote from Mr Nielsen concerning the crew's "best chance" of surviving the cyclone, the information provided by Mr Nielsen as to the depth of the water in Shark Bay, the statement that the master had chosen to "ride out" the storm contrary to the crew's wishes, and the reference to the master being under pressure to hold onto the barge "even though Chevron's own cyclone plan suggested running away from approaching storms". 50Mr Weaver submitted that the reference to the crew's "best chance" being to unhook the barge and flee does not of itself suggest incompetence. He submitted that merely stating that a master has failed to adopt what one observer states is the measure with the highest likelihood of success does not convey that they are incompetent. He also submitted that the discussion of the depth of the water does not add to that. I do not agree. It bolsters the opinion provided by Mr Nielsen and undermines the wisdom of the master's decision. Mr Weaver also submitted that references to the master being under pressure did not reflect upon his competence and the same applies to the suggestion that he ignored the crew's wishes. These points have some validity, but it is the overall effect of these four comments and the other passages that must be considered. The reader is presented with a picture of a master inexplicably ignoring Mr Nielsen's and the crew's suggestions that he flee the cyclone. This is said to be contrary to Chevron's own cyclone plan. The overall impression is that the master's actions do not appear to have any rationale or support, other than a desire not to lose the barge. The master is under pressure and refusing to discuss his decisions with his crew as a whole, presumably because he cannot justify it to them collectively. The fact that he may be under commercial pressure is not inconsistent with him being incompetent. I consider that imputation 7(c) was conveyed to the ordinary reasonable reader who clicked on the hyperlink and viewed the Cootamundra Herald article.

[8]

The Voyage of the Hako Esteem 53In its defence the MUA pleaded, amongst other matters, that the imputations were substantially true and, in the alternative, were published under an occasion of qualified privilege. To consider these defences it is first necessary to traverse the evidence concerning the voyage of the Hako Esteem and the communications by the crew with the MUA safety officer, Mr Nielsen, that led to the publication of the two articles complained of. 54As at January 2011 Mr Visscher was aged sixty-four. He had been a mariner for just under fifty years. He held a "Master Unlimited Certificate" which had previously been known as a "Master Class 1 Certificate". Leaving aside tankers and some other specialist vessels, Mr Visscher stated that this certificate enabled him to operate as the master of vessels with "unlimited tonnage and [in] an unlimited area of operation". Mr Visscher explained that the master is the person with the highest authority on a vessel. He explained that the word "captain" was a military rank which had no civilian equivalent. 55Mr Visscher was contacted in either late 2010 or early 2011 and asked to take command of the Hako Esteem. Mr Visscher was employed by TMS which also employed the other crew on the Hako Esteem. He was asked to retrieve a barge that it was feared would wreck on Dirk Hartog Island. Mr Visscher explained that the Hako Esteem was an "anchor handling, towing and supply vessel" which in lay terms would be better described as an "ocean going tug". Unlike harbour based tugboats, it was capable of towing over very long distances. It had a crew of eleven. The official logbook for the Hako Esteem records that Mr Visscher assumed responsibility for the vessel on 31 January 2011 when he boarded at Henderson, just south of Fremantle. 56As noted in the MUA article, the Hako Esteem was owned by Hako Shipping ("Hako") based in Singapore. The vessel was chartered by Boskalis Australia Pty Ltd ("Boskalis") for use in the "Gorgon project". The Gorgon project involves the construction of a liquefied natural gas processing facility on Barrow Island. Boskalis was a major constructor for the Gorgon project. The documentation in evidence describes Chevron Australia Pty Ltd as the "owner" of the project. 57The barge that the Hako Esteem was required to recover had foundered while being towed to Barrow Island. Barrow Island lies off the north-west coast of Western Australia. The port of Dampier is approximately 80 nautical miles ("nm") (148 km) east-north-east of Barrow Island. The port of Exmouth is approximately 110 nm (204 km) south-west of Barrow Island. However, contrary to what is stated in the MUA article, the Gorgon gas project is not "near" Shark Bay. Point Quobba, which is at the northern tip of Shark Bay, is approximately 250 nm (463 km) south west of Barrow Island as the crow flies. Such a crow would fly across a significant piece of land. If it was minded to travel by sea, the distance would be much greater as it would have to veer around the Australian mainland at Exmouth. The Naturaliste Channel, at the mouth of Shark Bay, is a further 60 nm (111 km) or so south-west of Point Quobba. 58No doubt the description of the process by which Shark Bay came to be named as set out in Ben Elton's book "Stark" (at p 359) does not bear any resemblance to the truth. Regardless of how many sharks it contains, Shark Bay is an impressive geographical feature. It is approximately 140 nm (259 km) from Point Quobba to the southern end of Shark Bay (at the southern portion of Henri Freycinet Harbour). Shark Bay is approximately 70 nm (130 km) across at its widest point. The town of Carnarvon is 25 nm (46 km) south-east of Point Quobba. Jutting out from the south of Shark Bay is the Peron Peninsula. On the western side of Shark Bay are three long and relatively thin islands which appear in alignment with the rest of the Western Australian coastline, namely Bernier Island, Dorre Island and Dirk Hartog Island. They form a barrier between Shark Bay and the Indian Ocean. 59The Hako Esteem's official logbook indicates that the Hako Esteem reached the distressed barge, the Blue Fin II, on 3 February 2011. The Blue Fin II was located approximately 30 nm (55.6 km) east of Dirk Hartog Island and 40 nm (74 km) south-west of Cape Inscription, which is at the north-westerly tip of Dirk Hartog Island. 60The Blue Fin II was originally being towed by the Hako Fortress, a similar vessel to the Hako Esteem. The Blue Fin II's tow wire had broken. It is unnecessary to describe the details of the rescue operation but, after various attempts, its tow wire was grappled. The barge was eventually towed at very slow speed by a third vessel that had joined them, the Cape Don, with the Hako Esteem following the Cape Don and the Hako Fortress into Shark Bay. This small flotilla travelled north-east up to the Naturaliste Channel between Cape Inscription and Cape St Cricq which is at the southern end of Dorre Island. They then travelled south-east into Denham Sound. 61On 5 February 2011 at about 6:00pm the Hako Esteem took custody of the Blue Fin II. By this time the Cape Don had already left and returned to Barrow Island and the Hako Fortress had been ordered to travel south. The barge was not anchored. Instead it was secured to the Hako Esteem with mooring lines and the Hako Esteem had dropped its port anchor. Mr Visscher arranged for an inspection of the Blue Fin II which revealed that it needed significant repairs to its anchor and towing machinery. When the Cape Don left, the remaining vessels were moored approximately 8 nm (14.8 km) south-east of Cape Levillain at the north-easterly tip of Dirk Hartog Island. They travelled a further 7 nm (13 km) to the south-east before the Hako Fortress left the Hako Esteem and the Blue Fin II.

[9]

Cyclone Dianne 62Before recounting the events aboard the Hako Esteem after it assumed responsibility for the Blue Fin II in Shark Bay, it is first necessary to describe the evidence concerning Cyclone Dianne. It is important to distinguish between what is now known about the strength and path taken by the cyclone and what was being forecast at the time. There were tendered various forecasts that Mr Visscher collected on board the Hako Esteem after he became aware of the publication of the MUA article on its website on 18 February 2011. These reports consist of Bureau of Meteorology ("BOM") forecasts prepared specifically for Boskalis. They spanned the period 3:30pm on 15 February 2011 to 9:00am on 21 February 2011, although it is likely the Hako Esteem received reports extending beyond this period. Amongst other matters, these forecasts showed the current locations of Cyclone Dianne and provided projections over 24, 48 and 72 hour periods. 63This exhibit also included a BOM report concerning the actual track taken by Cyclone Dianne. It appears to have been prepared on 22 February 2011. The exhibit also contained a BOM report referable to Barrow Island issued at 3:00pm on Monday, 14 February 2011 and a report issued at 6:00pm on 11 February 2011. The latter does not appear to have been specifically prepared for Boskalis or referable to Barrow Island. 64The MUA tendered a report from an expert meteorologist, Mr Gary Foley. Available to Mr Foley in preparing his report were BOM forecasts and warnings issued between 2:00am on 13 February 2011 and 8:00pm on 22 February 2011 in relation to both Cyclone Dianne and tropical Cyclone Carlos which was in force after Cyclone Dianne. 65There is little material amongst these exhibits concerning what was known about Cyclone Dianne prior to 14 February 2011. It appears that it was first identified as a severe low to the north-west of Port Hedland on or around 11 or 12 February 2011. On 12 February 2011 Mr Visscher received an email from the Hako representative referring to a "cyclone warning". He responded to the email by noting that the information "to hand is of a further developing low northward of Broome and predicted to cross the coast north of Shark Bay". 66In the events that transpired this low remained well offshore. It drifted west-south-west and intensified. It was designated as Tropical Cyclone Dianne at 8:00pm on 16 February 2011 when it was approximately four hundred kilometres north-west of Exmouth. Exmouth is at least 250 kilometres north-north-west of Carnarvon. Over the next 24 hours Cyclone Dianne barely moved, although it intensified into a Category 2 cyclone. From late on 17 February 2011 it moved south-west, and intensified into a severe tropical cyclone Category 3 at 8:00am on 19 February 2011. It moved southward over the next 24 hours and then turned south-west away from the mainland. It weakened and was measured as being below cyclone intensity at 8:00am on 22 February 2011 when it was 1,200 kilometres west of Geraldton. 67Mr Foley explained that the closest distance the cyclone centre came to the Hako Esteem was around 380 nm (704 km) between 8:00pm on 18 February 2011 and 8:00am on 20 February 2011. The radius of gales around the cyclone was said to be 90 nm (167 km). Mr Foley stated that the possible uncertainty error in fixing the centre of a cyclone by satellite was 30 nm (55.6 km). Allowing for these margins, Mr Foley stated that there was never any current risk of gale force winds or anything stronger being encountered by the Hako Esteem as a result of direct interaction with the cyclone at that distance. 68Mr Foley also addressed what was the risk faced by the Hako Esteem assessed prospectively during this period based on forecasts for the 24, 48, 60 and 72 hour lead time. As there is no evidence that the Hako Esteem had access to forecasts with a 60 hour lead time, they can be put aside. Otherwise, Mr Foley's summary of the effect of the forecasts in the period 13 February 2011 to 20 February 2011 was not disputed: "5.1 Tropical Cyclone Dianne 5.1.1 Forecasts with a 72 hour lead-time. Eleven out of the 20 forecasts issued with this lead-time predicted a separation distance between the centre of the cyclone and vessel greater than 300 nm, a distance at which the risk of MV Hako Esteem encountering threshold gale force winds would be low. However there was a period of 51 hours between 0300 WST 16 February (the time that the forecast was issued) and 0600 WST 18 February when the forecast separation distance was less than 290 nm and as small at 96 nm (at 0800 WST 20 February - forecast issued 0900 WST 17 February). Given the stated radius of gales around the cyclone of 90 nm and the stated forecast uncertainty (250 nm), there was a risk within 72 hours of a close encounter of the cyclone with the vessel at its given location. This is consistent with the forecast uncertainty envelop graphics supplied. ... 5.1.3 Forecasts with a 48 hour lead time Eighteen of the 20 forecasts issued maintained a separation distance between the cyclone centre and the vessel of more than 250 nm. However there was a period of 9 hours between 0900 WST 17 February (when the forecast was issued) until 1800 WST 17 February when the forecast separation distance was less than 250 nm and as small as 209 nm (at 1400 WST 19 February - forecast issued 1500 WST 17 February). Given the stated radius of gales around the cyclone of 90 nm and the possible track error inherent in the forecast (155 nm), had the cyclone centre been located near to the edge of the uncertainty envelope rather than on or near the near the forecast track there was a risk of gales or stronger being encountered by the vessel within this forecast lead time. This is consistent with the forecast graphics supplied for the period even though the vessel's position is separated from the 48 hour uncertainty envelope. 5.1.4 Forecasts with a 24 hour lead-time All forecasts maintained a separation distance between the cyclone centre and the vessel of more than 320 nm. Given the stated radius of gales around the cyclone of 90 nm and the stated forecast uncertainty (90 nm), there was virtually no risk of gales or stronger being encountered with this forecast lead time. This is consistent with the forecast graphics supplied for the period that excludes the vessel's position from the 24 hour uncertainty envelope." 69In summary, the centre of Cyclone Dianne never came closer than 380 nm (704 km) to the Hako Esteem. At no point in the relevant period was it predicted to come sufficiently close to the Hako Esteem within a 24 hour period to have any possible material effect. There was a nine hour period on 17 February 2011 when there was a risk of gale force winds or stronger being encountered by the Hako Esteem within 48 hours. The risk appears to have been very small given that it could only have materialised if there was a tracking error in the forecast of 145 nm (268.5 km), which would have been a very significant error. There was a 51 hour period between 3:00am on 16 February 2011 and 6:00am on 18 February 2011 during which there was a risk of a relatively "close encounter" between the cyclone and the Hako Esteem at its location in Shark Bay occurring between 48 and 72 hours into the future.

[10]

5 February 2011 to 14 February 2011 70Mr Visscher explained that after taking custody of the Blue Fin II from the Hako Fortress on the evening of 5 February 2011, the Hako Esteem "steamed all night up and down Shark Bay at slow speed keeping the barge ... astern of us". Nevertheless the Hako Esteem remained in the area south-east of Cape Levillain. 71Pasted into the official logbook of the Hako Esteem, for the date 8 February 2011, is a copy of part of an email that Mr Visscher says he sent to the harbour master at Carnarvon immediately after the harbour master called him on that day. The email recites that it records the effect of the "salient points" they had discussed and the harbour master's direction. The email notes that the Hako Esteem was near Louisa Bay, that the main towing arrangement on the Blue Fin II had been restored, but the emergency towing arrangement had not, and that the Hako Esteem was tethered to the Blue Fin II's tow wire at a very short length. The email, as pasted into the official logbook, recorded the directions given as: "6. The HakoEsteem [sic] will not relocate in Shark Bay, save for re-laying anchor in the present general location, without your approval. 7. The HakoEsteem will not proceed to sea with the [Blue Fin II] in tow without the appropriate regulatory approval (AMSA etc) and without your approval. 8. You will contact vessel's principals re 'what next'." 72At this point it is necessary to note that the next entry in the official logbook is dated 21 February 2011 and is in Mr Visscher's handwriting. It records advice from the harbour master that he had rescinded items 6 and 7 in the above "notwithstanding [that] item 4 still remains". Item 4 was a reference to the emergency towing arrangement on the Blue Fin II not having been restored. Mr Visscher said that he made this entry after he telephoned the harbour master. 73It was put to Mr Visscher in cross examination that at some time around 21 February 2011 he had created a "self-serving email" and pasted it in the official logbook and dated it 8 February 2011 in order to "cover [his] tracks". The proposition that the email was concocted and placed in the official logbook was said to be supported by the fact that there are no other entries in the official logbook between 8 February 2011 and 21 February 2011, notwithstanding that various events were said to have taken place in the meantime. Mr Visscher explained that nothing that had occurred in that period warranted an entry in the official logbook. The Hako Esteem also maintained a deck logbook which contained much more information concerning the day to day operations of the vessel. 74I am not persuaded that Mr Visscher falsified the email and placed it into the official logbook. It would be a very serious breach of duty for a master of a ship to act in that way. The balance of the entries in the official logbook appear to be relatively brief and are confined to semi official events that occurred during voyages conducted by the vessel, such as the handing over of command to a different master or the assumption of responsibility for the custody of the Blue Fin II by the Hako Esteem. Otherwise, it would have been an extremely risky type of fraud to perpetrate given that a check could always be made with the harbour master. 75I have already noted that on 12 February 2011 there was an email exchange between Mr Visscher and the representative of Hako regarding the "cyclone warning". The Hako representative requested that Mr Visscher advise as to any "contingency plan that [he] might be thinking of, as we need to submit the plan made ... to Boskalis". The Hako representative added that "[l]ooking at the predicted track of [the] cyclone and given that [Shark Bay] is [considered to be] a safe sheltered area, it will be safe enough to remain there rather than proceeding to sea in any direction". He added that Mr Visscher's decision as master would nevertheless be final and would be supported. 76Mr Visscher responded to this email almost immediately. It is necessary to set out the text of the email in full: "Many thanks for your email; in reply: 1. The information to hand is that of a 'developing low' northward of Broome and predicted to cross the coast north of Shark Bay. 2. With regard to our present location, strong winds of concern should be easterly veering to southerly. 3. If the system were to cross the coast to the south of our present location significant northerly wind would be present. 4. The characteristics of the [Blue Fin II] are not amenable to encounter open sea storm conditions. 5. With regard to 2 (above) our present location affords good protection. However, with regard to 3 (above) room to kedge anchor is desirable. 6. Accordingly, the vessel and tow will remain in Shark Bay relocating from our present position [...] to a new location of [...] 7. Two ship's anchors will be deployed with long scope. Measures being taken to facilitate recovery of same. 8. Heavy weather vessel management will include the use of main engines to advantage. 9. Heavy poly lines will be laid out fore and aft on the [Blue Fin II] and bucketed [sic] along the sides of the barge in a way to assist their development should that be necessary. 10. The [Blue Fin II] will remain attached with the main towing arrangement, that arrangement is now configured for heavy weather conditions. 11. The tow will be severed if necessary. 12. Comprehensive reporting procedure to be agreed. ..." 77Thus by this time Mr Visscher was proposing to deal with the potential for a cyclone by remaining attached to the Blue Fin II and taking shelter in Shark Bay, although the Blue Fin II would be "severed if necessary". At this point the status of the Blue Fin II was that it was "not amenable" to "open sea storm conditions". Amongst other matters its emergency towing equipment was unusable. Arrangements were in place for a repair crew to be flown to Shark Bay and transported to the Hako Esteem via the vessel, the Territory Commander.

[11]

The JHA meeting 78The deck logbook records that at 4:00pm on 14 February 2011 there was a meeting to discuss a "Job Hazard Analysis" for "heavy weather management" (the "JHA meeting"). Some of the witnesses gave estimates of the meeting having occupied half an hour. The deck logbook records that it took 45 minutes. I accept that it occurred for that period. Mr Visscher's recollection is that all the members of the crew attended the meeting. However, James Braithwaite, the first engineer, stated that he was not present. I discuss Mr Braithwaite's evidence further below. I accept that Mr Braithwaite was not present at the meeting, but otherwise find that Mr Visscher and the nine other crew members were in attendance. 79Mr Visscher took a draft Job Hazard Analysis worksheet to the meeting. The purpose of the worksheet is to record a co-ordinated action plan either agreed to, or at least acknowledged by, all the members of the crew as to the approach to be taken in respect of a specified task or hazard, in this case dealing with heavy weather. 80A final worksheet was produced which all the members of the crew, including Mr Braithwaite, signed (the "JHA"). There was a discrepancy between the witnesses as to when the JHA was signed. Mr Visscher stated that he took a draft to the JHA meeting but various matters raised in the meeting warranted amendments being made, which he arranged after the meeting. He said that it was signed some hours later. The cook, Mr Robert Wyllie, and an Integrated Rating (able seaman), Roy Anderson, both could not recall when they signed it. Mr Dagnall recalled that all the crew had signed the document before they left the meeting and went to the mess room. Another Integrated Rating, Mr Jason Kemp, who was also the MUA delegate, had the same recollection. 81I am satisfied that the JHA was completed and signed before the end of the JHA meeting. The steps proposed in the JHA were similar to the proposal set out by Mr Visscher in his email of 12 February 2011. In the days before the meeting he had the opportunity to prepare the JHA. Mr Visscher recalled that at the meeting he received input from members of the crew which warranted various changes. I describe what occurred during the meeting below. However, Mr Dagnall's evidence left me with the impression that the crew effectively accepted Mr Visscher's proposal and did not provide much input on their own part. Any input they provided was minimal such that there would have been time in the meeting for Mr Visscher to make any amendments and print the document out ready for signature. 82The fourth page of the JHA is headed "Emergency action/rescue plan". It includes a table specifying the sequence of a number of job steps. For each step the JHA lists a potential safety and environmental hazard, the initial risk rating of that hazard, the recommended corrective action, the person responsible for taking it and the residual risk rating after that corrective or preventive action is taken. The plan reflected what Mr Visscher stated in his email of 12 February 2011, ie the maintenance of the Blue Fin II under tow in Shark Bay, with the option of severing the tow if necessary. 83Step 7 of the JHA addressed the task of letting go of the tow wire to the Blue Fin II. It identified the potential safety hazard as "flaying wire". It gave it an initial risk rating of "three". The relevant risk prioritisation matrix identified a risk of "one" as being a catastrophic event that was likely to occur, whereas "ten" concerned insignificant or minor events that had only a remote or rare chance of occurring. The recommended corrective or preventative action for step 7 was described as "[d]irect crew-less operation ... [t]ow wire to be all run off and the bitter end let pull out from the end block". The responsible persons for this risk were designated to be the master and chief engineer. The residual risk rating was said to be "eight". Mr Visscher explained that what this step envisaged was that, if it was necessary to let go of the Blue Fin II, it would not be done by the crew but by instead allowing the tow wire to run to its end and the master applying the engines of the Hako Esteem to pull the bitter end of the tow rope off from its attachment point to the vessel. 84There were two places on the JHA for signature by the crew. In the first place each crew member "acknowledge[d] by [their] signature that [he or she] was involved in the creation of this JHA and understand both its content and their responsibilities". In the second place each of the crew members was stated to confirm by their signature that "I have attended a briefing on the requirements of the attached Job Hazard Analysis and agreed to perform the work as recorded on the JHA", and they also confirmed that "copies of the relevant permits ... have been reviewed". 85Mr Visscher stated that he had explained to the JHA meeting that the best approach was to remain in Shark Bay if the cyclone approached. He said that his experience was that if the wind became cyclonic it was nevertheless predictable, and if that happened the Hako Esteem could deploy its second anchor and keep its engines running while at the same time taking advantage of what he described as its "good position fixing equipment". 86Mr Visscher recalled the crew had a number of suggestions which included covering the fuel tank breathers to prevent ingress of water and the securing of various items. He recalled also saying to the meeting that "if you're not happy with your safety here you are entitled to get off the ship, tell me and I'll arrange that". Mr Visscher stated that no one in the meeting expressed any opposition to the strategy of staying in Shark Bay and letting the Blue Fin II go if that became necessary. He recalled that some members of the crew did not say anything, but that he observed "lots of nods of heads and eye contact, things of that nature". He also agreed that he told the meeting that with two anchors deployed as the cyclone approached, the Hako Esteem might drag on the anchors and spin. He stated that the officer on watch would need to monitor the turn of the ship for the purpose of making it possible to unwind afterwards. He also recalled that one member of the crew raised the need to have an oxy-torch to assist in cutting the tow to the Blue Fin II, although he did not consider that would be required. Mr Visscher said he had read from the draft JHA and made alterations to it as the meeting progressed. He recalled outlining his experience and qualifications in dealing with cyclonic weather. 87Mr Dagnall recalled reading the JHA at the meeting before he signed it, but accepted that the other persons at the meeting did not have the opportunity of reading it before they signed it. He recalled Mr Kemp raising concerns about the presence of the cyclone during the JHA meeting, but he did not recall any opposition being voiced to Mr Visscher's proposal, much less anyone suggesting that the barge be let go and the Hako Esteem leave Shark Bay and go out to sea. He agreed that Mr Visscher said that, if any member of the crew wanted to leave the vessel, that could be organised. He recalled Mr Visscher stating that his last resort would be to let go of the barge. 88Mr Anderson's recollection of the meeting was unclear. He recalled Mr Visscher leading the meeting and explaining the procedures that would be undertaken if the cyclone approached. He recalled that he was satisfied with what was proposed and that Mr Visscher offered the crew members the opportunity to leave the vessel if they were concerned. Mr Wyllie had a similar recollection. 89Mr Kemp also recalled Mr Visscher offering to put ashore anyone who had concerns during the JHA meeting. He accepted that suggestions were raised by crew during the meeting and that they were incorporated into the JHA. He said that he signed the JHA as confirmation that he had attended, but it did not allay his concerns. There was no suggestion he raised those concerns at the meeting. 90As stated, Mr Braithwaite denied that he had attended the JHA meeting. He said that instead, some time after the meeting concluded, the JHA was placed on a table in the chart room in his presence. He said that he scanned it and told Tom Burland, the chief officer, that he was not signing it. However, he was told by Mr Burland to sign it and he did "rather than make a fuss". Mr Braithwaite stated that he regarded the JHA as a "nonsense" because it was designed for the undertaking of a specific task and was not designed for the overall securing of the safety of the ship which he said was the master's responsibility. 91Thus, other than the dispute as to when the JHA was signed and whether Mr Braithwaite attended, there was little dispute in the evidence as to what occurred during the JHA meeting. Mr Visscher's strategy was outlined to the meeting and accepted without debate but, it must be said, without much opportunity for debate. Instead the focus of the meeting was the steps necessary to implement it.

[12]

14 February 2011 to 16 February 2011 92After the JHA meeting there was an informal gathering of some members of the crew which at least involved Mr Anderson, Mr Kemp, Mr Braithwaite, Mr Burland, Mr Wyllie and Mr Skilton. Mr Anderson recalled Mr Braithwaite protesting about the proposal to stay in Shark Bay. Mr Braithwaite referred to the concept of "storm surge" and raised the possibility of the vessel ending up on shore from the surge coming into the bay, or possibly the vessel "hit[ting] the bottom of the ocean floor" if there was great volatility in water depth from wild waves. Mr Kemp recalled Mr Skilton also rasing concerns about the proposal to stay in Shark Bay. 93Either in this meeting or during the course of subsequent conversations across a number of shifts, Mr Kemp was asked to contact the MUA and Mr Visscher. However, the evidence of Mr Kemp as to the conversations that he had with Mr Visscher in response to the crew's concerns was confusing. In his evidence in chief Mr Kemp said that he spoke to Mr Visscher and asked him if it would be possible to hold some form of meeting on the bridge with all the members to "put their minds at ease". He said that Mr Visscher's response was that a "committee does not run this vessel" and that it was his, that is Mr Visscher's, decision. Mr Kemp then said he made a further approach to Mr Visscher. He recalled stating that the low pressure system had "developed into a cyclone and obviously no one wanted to be there". He said he asked him "[a]re we going to be moving?" and "[w]hy are we stationary?" He said that he told Mr Visscher he was expressing the views of the entire crew and not just himself. Mr Kemp explained that this conversation occurred after the earlier conversation, but before the JHA meeting. However, Mr Kemp then said that this second conversation took place on 16 February 2011, just before he rang Mr Nielsen from the MUA at 2:00pm that day. The JHA meeting had taken place on 14 February 2011. 94Mr Kemp said that he rang Mr Nielsen and "explained to him our location, the latitude and the longitude, the current depth that we were in and the barge that we had attached to us that was fully loaded and that the Cyclone Dianne [was] above us". He recalled Mr Nielsen becoming quite concerned, and suggesting that there needed to be some "contingency plan" in place. Mr Kemp said that he then took this information he had obtained from Mr Nielsen and approached Mr Visscher. He said that he said to Mr Visscher "I've been advised [to ask] ... do we have a contingency [plan] in place?" He said he queried what the arrangements were for moving people ashore. He recalled that Mr Visscher reiterated his statement that a committee did not run the vessel and his determination to keep the Hako Esteem in Shark Bay. 95In cross examination Mr Kemp reiterated that he had two conversations with Mr Visscher prior to telephoning Mr Nielsen, but stated that one occurred on 15 February 2011 and another on the morning of 16 February 2011, ie both were after the JHA meeting and not before, as he stated in chief. Later, when it was pointed out to him that the JHA meeting occurred on 14 February 2011, he accepted that before he rang Mr Nielsen he had only had one conversation with Mr Visscher about having a meeting with the crew. 96Earlier in the cross examination the following was put to Mr Kemp about what Mr Visscher said to him when he approached Mr Visscher about talking to the crew: "Q. And didn't Mr Visscher say to you 'I'll talk to a collective. I'll talk to individuals. I'll talk to anybody. But don't you have any doubt about who is running this ship'? A. His exact words to me was that 'a committee does not run this vessel'. Q. 'A committee does not run this vessel', but he did say, didn't he, that he would nevertheless talk to people? A. That did eventually occur, yes. ... Q. I suggest to you that what his response to you was along these lines: 'I'll talk to a collective, I'll talk to individuals, I'll talk to anybody you like, but let's not mistake the point, let's be clear, I won't have the tail wagging the dog, I am not going to run around the ship and ask people do they have concerns or whatever the case may be. If you have got concerns, collective, individual, you come to me, come to me and voice your concerns.' A. Would have been a conversation along those lines probably in our second conversation. Q. You do recall him saying something of the nature that I have just put to you? A. In that nature, yeah, about our second conversation." (emphasis added) 97At this point of the cross examination Mr Kemp was still adhering to his evidence that he had had two conversations with Mr Visscher on his own prior to ringing Mr Nielsen. As I have stated, he later conceded that he had only had one such conversation prior to speaking to Mr Visscher. His confusion is further evident by the answer he gave "that did eventually occur, yes" which could only be a reference to the JHA meeting. Thus, at this point Mr Kemp was still asserting that he had approached Mr Visscher prior to the JHA meeting. In the end result I found Mr Kemp's evidence unsatisfactory. His recollection of his conversations with Mr Visscher was obviously poor. 98The evidence of Mr Visscher was consistent with what was put to Mr Kemp in the above extract. I am satisfied that, following the JHA meeting, a sub-group of the crew became concerned about Mr Visscher's proposed strategy. Mr Kemp was asked to approach Mr Visscher. I am satisfied that Mr Kemp did ask him to talk to a collective and that Mr Visscher's response was as indicated, namely that he would talk to any group or individual, but he would not chase them and instead they would have to come and approach him. He was clearly annoyed and frustrated that the crew were reagitating a matter he thought was addressed during the JHA meeting, but he was not refusing to talk to the crew individually or as a group. For whatever reason, Mr Kemp became confused. He told Mr Nielsen and the crew that Mr Visscher was refusing to talk to them when that was not the case.

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17 February 2011 99The BOM forecasts issued on 17 February 2011 still indicated that Cyclone Dianne was located north-west of Exmouth. However, they were projecting it would reach a location that could affect Shark Bay in the next 48 to 72 hours. The forecasts issued from 3:00pm were forecasting that the cyclone would reduce to force 2 after 72 hours. 100Mr Kemp said that he recalled having three phone calls with Mr Nielsen while he was aboard the Hako Esteem. As stated, he nominated the first as having occurred on the afternoon of 16 February 2011. I have recounted his recollection of that conversation. Mr Kemp did not address the other two conversations. 101Mr Nielsen recalled being first contacted by Mr Kemp between 9.30am and 10.00am on 17 February 2011. I accept that as more accurate than Mr Kemp's evidence of when they first spoke. He recalled Mr Kemp being concerned about the vessel being in the path of an oncoming cyclone and that they were not able to get information from the master "in relation to what the contingency plan was for that vessel if the cyclone travelled towards them". He recalled being told that the Hako Esteem was attached to a barge laden with rock and was sitting in 12 to 14 metres of water. Mr Nielsen recalled asking Mr Kemp a number of questions in relation to the contingency plan and the discussions that had been had at that time with the master of the vessel. He recalled Mr Kemp telling him that the "master of the vessel did not give him advice in relation to the contingency plan" and that he, that is Mr Kemp, "believed that the master intended to ride out any cyclone or heavy weather at anchor in Shark Bay". Mr Nielsen recalled Mr Kemp stating that a significant number of the crew were concerned and "extremely worried". 102In cross examination Mr Nielsen stated that he was not told by Mr Kemp that there had previously been a JHA meeting, or that the master had offered each of the members of the crew the opportunity to leave the vessel. Mr Nielsen recalled that he told Mr Kemp that "he should go back to speak to the master and he should ask the master to provide a contingency plan to him in relation to what the proposed arrangements were ... if that cyclone tracked further back towards the coast". Mr Nielsen records that Mr Kemp rang him approximately 20 minutes later. Mr Kemp told him that "he couldn't get any further information from the master of the vessel, he was not providing that information to him in relation to the cyclone contingency plan or any arrangements to demobilise the vessel or deman the vessel". Mr Nielsen stated that he told Mr Kemp that he had undertaken the first part of the grievance dispute procedure by speaking directly to the master, and that he, Mr Nielsen, would now contact the employer. Mr Nielsen stated that he did not consider it appropriate for him to contact the master direct. 103Mr Nielsen said that he then rang Mr Del Rosso from TMS. He recalled raising with Mr Del Rosso the absence of a cyclone contingency plan which needed to be in accordance with the cyclone contingency plans for the Gorgon project. He recalled Mr Del Rosso being sympathetic and stating that if the crew wanted to leave the vessel he would "facilitate people to be picked up and taken to shelter" but that the decision was not his. He recommended that Mr Nielsen contact Boskalis. 104Mr Nielsen said that he then rang Boskalis' Senior Industrial Relations Officer, Lawrence Rob. He stated that Mr Rob was dismissive stating that the decision rested with the master of the vessel. Mr Nielsen said that he also left a message with Hako but received no response. 105Mr Nielsen said that he contacted the Western Australian Marine and Harbour Department based in Fremantle and made some enquiries, a matter to which I will return. 106Eventually Mr Nielsen recalled ringing Mr Kemp back at around 1:00pm on 17 February 2011 advising him that he had been unable to obtain assistance. He recalled that Mr Kemp said that he was due to go to sleep because he would be on watch again in five hours. Mr Kemp asked him if there were any developments to still ring his number but the phone would be passed on to other members of the crew. Mr Nielsen claimed that he received three or four phone calls from other members of the crew asking about progress and expressing their concern. This aspect of his evidence was challenged as none of the witnesses called by the MUA, other than Mr Kemp, said that they rang Mr Nielsen. Nevertheless, I accept Mr Nielsen's evidence that he received calls expressing concern. It seems consistent with the attention he was giving to this issue on the afternoon of 17 February 2011. 107At around 5:00pm Mr Nielsen sent a follow up email to Mr Rob, copied to Mr Del Rosso and others, reiterating his concerns. 108Mr Nielsen stated that he decided to prepare a press release to alert the project proponents that there was a "situation" and that they were "not following their own procedures, and calling upon them publicly ... for them to determine whether or not their own procedures were being complied with". Mr Nielsen said he prepared a press release which he provided to the Information Officer of the Trades and Labour Council of Western Australia to distribute. He said that, after he prepared the press release and handed it to the Information Officer, he received a telephone call from Ms Gallo who identified herself as a reporter employed "under WA Today". He knew that "WA Today" was a "media-based or internet-based web newspaper". He provided her with information that was subsequently used in her story. Mr Nielsen stated that he spoke to Ms Gallo at around 6:00pm on 17 February 2011. 109It only emerged during Mr Nielsen's cross examination that the press release that Mr Nielsen stated that he prepared was not the MUA article sued upon by Mr Visscher. Mr Nielsen stated that he had never seen the MUA article until it was first shown to him in the witness box. 110It seems that Mr Nielsen's efforts resulted in various emails being sent to Mr Visscher. At 1:15pm on 17 February 2011 a Hako representative asked him to note that he had to comply with the "Cyclone Response/Contingency plan as per Boskalis". I discuss the terms of Boskalis' Cyclone Response Plan below. An email at 4:22pm on 17 February 2011 from the general manager of TMS to Mr Visscher referred to Hako and TMS being pressed by "Boskalis, AIMPE and MUA with regard to cyclone avoidance plans". At 5:48pm on 17 February 2011, the general manager of Fleet Management from TMA, Mr Walker, emailed Mr Visscher stating as follows: "Afternoon Capt. I am sure you are aware of the existence of the Boskalis Cyclone Avoidance plan which should be observed if at all possible. However, you as Master are the one who must decide [the] best course of action. It goes without saying safety of crew is paramount at all times. However, we would support [you] in your decision that would be in [the] best interests of crew and vessel safety. Pls let me know your intended course of action. Also inform [Commonwealth and State regulatory authorities] once you have made your decision." 111At 6:58pm on 17 February 2011, Mr Visscher responded to Mr Walker's email. He copied his response to a number of senior staff at TMS. He stated: "Hi Geoff, Many thanks for your email. In reply: 1. The BKA [Boskalis] plan generally calls for 'secure de-manning' of assets to cyclone moorings. In the alternative, vessel and tow such as the [Hako Esteem] and [BF II] are instructed to proceed to sea and keep well clear of the cyclone. 2. Those instructions are directed towards operations in the Dampier region, an open area very exposed to the north and west. 3. Shark Bay affords protection from the east, south and west; with partial protection from the north. We have a good holding bottom and room to dredge anchor. In the worst case, heavy northerly weather, we have as much as 20 miles unobstructed room to southward. 4. I compiled a cyclone contingency plan several days ago, it [is] being circulated to, amongst others, BKA. The plan outlined remaining in Shark Bay. 5. It is difficult to predict the path of a cyclone. The recommended action being to gain the safe semi-circle, that is to the west and to the north, and to avoid the dangerous quadrant, this is, the SE sector. In the normal sense a vessel with a turn of speed of +12 kts can manage this without too much difficulty. We have in custody a laden rock barge, towage of which would render us subject to the movement of the cyclone. 6. Present indications have the cyclone passing our position about 100 miles to the west, thus placing the vessel outside the gale radius. However, no [solace] should be taken. The progress of the cyclone must be continuously monitored. 7. One possible scenario, in line with the original prediction, is for the cyclone to cross the coast north of our present location. That being the case, the wind will be easterly and abate southerly and accord us the best possible protection. In the alternative, should the system cross the coast to the [sic] close to the southward, northerly wind will result. 8. A JHA 'Heavy Weather Management - Vessel and Barge In Tow" has been prepared with regard to the present situation. Therein all risks have been assessed and [the] ship's resources properly prepared and applied. 9. Given the current plan it is unlikely that we will abandon the [BF II]; however, that will be done if necessary. 10. In addition to the above, the vessel Territory Commander is in attendance for repair work. I have instructed her Master to adjourn work in ample time should the work not be completed prior to the onset of heavy weather. As she also intends to remain in Shark Bay, I have offered to accommodate as many of her personnel on the Hako Esteem should they wish. 11. The Hako Esteem is a well founded vessel and in a fit state to encounter the predicted weather in this location. I will send to you by separate cover a copy of the abovementioned JHA, CC to Robert Vuurens of BKA. ..." 112This explanation satisfied Mr Walker. At around 7:39pm on 17 February 2011 he forwarded the email to other Hako staff stating: "I believe [Mr Visscher's] explanation is sound. Pls forward together with [JHA] and Cyclone plan circulated a few days ago to Peter Boerre and Robert Vuurens, [and the Commonwealth and State regulatory authorities]." 113Mr Visscher forwarded another copy of the JHA to the Hako executives at around 11:44pm on 17 February 2011. 114The Hako Esteem's deck logbook records that the Territory Commander arrived with stores and a repair crew for the Blue Fin II at 11:00am on 17 February 2011.

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18 February 2011 115The BOM forecasts issued in the early hours of 18 February 2011 indicated that Cyclone Dianne was maintaining its position to the north-west of Exmouth. However, they still showed a projected path for the cyclone that suggested it would reach a location that would affect the Hako Esteem in the next 48 to 72 hours. However, consistent with the report issued on and after 3:00pm on 17 February 2011, the reports also forecast a weakening in Cyclone Dianne by that time. The forecast issued at 9:00am on 18 February 2011 projected a path for Cyclone Dianne that was well to the west of Shark Bay. The balance of the forecasts issued on 18 February 2011 predicted Cyclone Dianne would move away from and not towards Shark Bay. 116It seems that the Hako representatives forwarded Mr Visscher's explanation extracted above to the Boskalis representative on the evening of 17 February 2011. At 9:24am on 18 February 2011 Mr Vuurens from Boskalis replied as follows: "Could you clarify the following: 1. The JHA was prepared for 'Heavy weather conditions'. Does this incorporate the possibility that a cyclone is going straight over Shark Bay? 2. What would be the specific course of action if the cyclone would come straight over Shark Bay? 3. Is sailing away considered an option? Sailing away with or without barge? In what direction? 4. What is the current position of Esteem? The latest forecast indicates a [south-south-west] course of Dianna [sic]. Nevertheless we need answers to those questions. Appreciate your swift response. ..." 117As I will explain, it is not clear when this email was provided to Mr Visscher. At about 9:56am on 18 February Mr Triggs from TMS emailed Mr Visscher noting that the position seemed to be improving in light of Cyclone Dianne's direction, but added that they were getting pressure from the MUA "and the local media re the safety of our crew". He asked to be told the position of the Hako Esteem, and how far Cyclone Dianne was from their location. Mr Del Rosso from TMS followed up this email at 10:30am requesting an update on the latest "Boskalis report" and noting that "unfortunately" it appeared as though the MUA "have also gone to the press". Mr Visscher responded immediately noting that he was "unaware of the BKA report". Although it is not clear and was not explored in the oral evidence, this email exchange appears to relate to Mr Vuurens' email sent at 9:24am. Mr Del Rosso may have assumed that Mr Visscher had already received the request to respond, but Mr Visscher may not have. 118Mr Visscher stated that after he received Mr Del Rosso's email he spoke to Mr Kemp and asked him if he was aware of the MUA "going to the press". Mr Kemp denied any knowledge of such an approach. He said that he sought to explain to Mr Kemp that his approach was the preferable one. He said he told Mr Kemp that if the Hako Esteem had left Shark Bay it would have travelled much closer to both the actual and the projected path of the cyclone. 119Mr Visscher responded to Mr Trigg's request noted in [117] above at 1:12pm on 18 February 2011. Amongst other matters, he noted that Cyclone Dianne was then about 450 miles to the north-north-west of the Hako Esteem, and at "latest predicted track has the system passing over 350 miles to seaward". 120At 2:03pm a representative of Hako emailed Mr Visscher seeking an urgent response to Mr Vuurens' email of 9:24am. 121I have earlier referred to the evidence of Mr Dagnall that during the afternoon of 18 February 2011 he became aware of the MUA article and brought it to Mr Visscher's attention. Mr Visscher's evidence was that Mr Dagnall told him that "there's something on the internet about you and the Hako Esteem" and that he told Mr Dagnall to print it out and get him to look at it, which he did. He said he read it and then later read the Cootamundra Herald article "on the computer". He said about an hour or two later he spoke to Mr Kemp again. He said he asked Mr Kemp what he knew about the article, but Mr Kemp said: "I know nothing about it", and that Mr Kemp stated that "none of our guys" have been ringing the MUA. This was not taken up with Mr Kemp. 122At 4:42pm on 18 February 2011 Mr Visscher sent an email to the various representatives of Hako and TMS referring to "publications in the national press [that] have cast aspersions upon my good name". This email refers to him being "incensed" and seeking permission to "copy all information held on this vessel for the purpose of legal proceedings". 123None of the emails that were tendered contained any response to the questions from Mr Vuurens set out in his email sent at 9:24am. When pressed about his failure to respond, Mr Visscher said there was "a lot going on" during this period.

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Particulars of Truth 128The first particular concerned Mr Visscher's status as master of the Hako Esteem and the task it was performing as at 18 February 2011. The second particular was that the Hako Esteem had approximately eleven crew on board and the fourth particular was that it was in Shark Bay behind Dirk Hartog Island on 18 February 2011. None of these are in doubt. 129Particular 3 was that "[o]n 18 February 2011, the vessel was in the path of Cyclone Dianne". I have already described the evidence concerning the actual and projected path of Cyclone Dianne. At its highest, there was a risk that, at some point in 48 to 72 hours, it might affect the vessel at Shark Bay. Further, some of the projections suggested the cyclone might cross at Shark Bay. Thus the Hako Esteem was not in "the" path of Cyclone Dianne, but only in "a" possible path. 130Particular 5 was that "Shark Bay has an overall average depth of 10 metres, to a maximum depth of 15 metres". The MUA conceded that this was not correct. The charts in evidence suggest the average depth of many areas of Shark Bay is around fifteen metres and in a number of areas it exceeds twenty metres. 131Particular 6 was that "[n]umerous shallow regions exist in Shark Bay as a result of seagrass enhanced sedimentation". There is no evidence of this. 132Particular 7 is that "Bureau of Meteorology forecasts at 18 February 2011 predicted that tides along the coast of Western Australia, including in Shark Bay, were likely to exceed the high water mark over the next few days". There is no evidence of this. The forecasts that are in evidence do not address this topic. 133Particular 8 is that "[i]n addition to normal tidal variations, a rise above the normal water level along the shore (storm surge) results from strong onshore winds and/or reduced atmospheric pressure during a cyclone". Mr Visscher accepted that this was the case. 134Particular 9 is that "[t]he combination of storm surge and normal (astronomical) tide is known as a storm tide. The worst impacts occur when the storm surge arrives on top of a high tide". Again, Mr Visscher accepted that this was the case. 135Particular 10 is that "[s]torm tides pose a grave risk of running ships aground, particularly in shallow waters". Mr Visscher did not accept this assertion. The MUA relies on a passage from Mr Foley's report that addresses the scenario of the centre of Cyclone Dianne passing within 30 nm (55.6 km) to the west of the Hako Esteem. In relation to that Mr Foley stated: "The presence of a hurricane force tropical cyclone in the shallow, enclosed waters of Shark Bay, with its attendant storm tide, wave action and destructive winds, would cause elevated sea levels and very rough seas within the bay area suggesting dangerous conditions for seafarers and shore-based operations. It is noted that these 70 knot maximum winds were revised to decrease to below hurricane force in 72 hours (forecasts of 60 knots and then 55 knots) by the 1500 WST 17 February forecast issue as the cyclone recurved and was forecast to track more southeast. The forecast weakening would have lessened the overall impact but even with storm force winds (48-63 knots) within Shark Bay, the effects can be very damaging (as observed in Cyclone Herbie in 1988 that generated storm force winds in this area, beaching many fishing vessels and causing widespread wind damage. See Annexure E for the Bureau of Meteorology Report)." 136The attached Bureau of Meteorology report refers to fishing vessels being left stranded in main streets when a storm surge subsided. However, the Hako Esteem was a tugboat with two anchors. The possibility that it might be taken by a storm surge over the foreshore seems very unlikely. Mr Visscher was proposing to set both anchors down many nautical miles into Shark Bay and not near the shore like fishing boats. I accept that the material in Mr Foley's report suggests that storm surge runs a risk of grounding ships that are moored near the shore. To that extent I accept that particular 10 is made out. However, the material does not suggest that storm surge materially increased the risk of grounding the Hako Esteem if it was anchored in 15 to 20 metres of water many nautical miles into Shark Bay. 137Particular 11 is that "[s]torm surge is a major threat around Shark Bay, and the semi-enclosed bays exposed to strong winds increase the risk of Shark Bay to storm surge". The real issue posed by this particular is ascertaining the "risk" of what? As noted, the discussion of "storm surge" in Mr Foley's report of the risks posed by storm surge is principally to land based facilities and "fishing vessels" which are presumably anchored or moored near the coast. There is nothing in his reports or the materials he relies on to suggest the contrary. Beyond causing "very rough seas" within Shark Bay, his report does not suggest that it poses any significant threat to vessels moored many nautical miles into Shark Bay. 138Particular 12 is that "[t]he paths of cyclones, including Cyclone Dianne, are erratic". Mr Visscher accepted this particular was true. 139Particular 13 was that "[a]s a consequence [of the erratic path of cyclones] it is difficult to forecast: (a) whether and, if so, when and where, the cyclone will cross the coast; (b) how high the astronomical tide will be when the storm surge strikes, since the time difference between high and low tide is only a few hours." 140Mr Visscher accepted that these matters were true, although he took issue with the suggestion that a storm surge "strikes". He submitted that conveys the false idea "that a storm surge is something akin to a tidal wave", whereas it is a rise in water level that occurs "no more dramatically than a high tide". I agree, but the more fundamental difficulty with the MUA's reliance on storm surge is that the evidence it relies on goes no further than establishing a risk to shore based operations and vessels moored very close to land from storm surge. 141Particular 14 was that "[i]n the north-west of Australia, cyclones generally move in a south-westerly direction before curving towards the south or south-east". The MUA accepted that there was no evidence of this. 142Particular 15 was that "[a]s at 18 February 2011, tropical Cyclone Dianne: (a) which had formerly been moving in a south-westerly direction, parallel to the coast, had ceased moving in that direction and had completed two distinct loops; (b) was almost stationary, to the north-west of Shark Bay; (c) was predicted to intensify into a severe tropical cyclone (category 3)". 143I have already addressed the evidence concerning the actual and predicted paths of Cyclone Dianne. This particular appears to reflect the forecasts issued at 3:00am and 6:00am on 18 February 2011, although they also predicted the cyclone would weaken "later in the weekend" which was the time it was projected to be closest to Shark Bay. 144Particular 16 is to the effect that "[t]he dangerous semi-circle of a cyclone in the southern hemisphere is on its south-eastern side, being the area which has the strongest winds and the direction in which the cyclone is expected to move". There was no evidence to this effect. 145Particular 17 is to the effect that "[a]s a consequence of the facts, matters and circumstances particularised above, as at 18 February 2011, the presence of tropical Cyclone Dianne created a grave danger to the vessel". As at 18 February 2011, Cyclone Dianne presented no immediate danger to the Hako Esteem. At a minimum it was 48 hours before it would affect the vessel. However, even though the MUA's reliance on storm surge does not advance its case, Cyclone Dianne still represented a potential risk to the Hako Esteem and its crew. 146Particular 18 concerns the alleged contents of "[t]he Australian Seafarer's Handbook". The document was not tendered. 147Particular 19 is that "[a]s at 18 February 2011, the vessel's best chance of surviving tropical Cyclone Dianne was to unhook the barge being towed, and flee the approaching extreme weather conditions". 148Mr Visscher disputed this particular. He contended that to determine what the vessel's "best chance" of survival was could only be made by reference to "refined calculations of probabilities, which are most likely indeterminable, given the wide array of possible paths the cyclone could taken, and the different risks attached to them". I do not agree. The lowest risk option for the vessel and the crew was to abandon the Blue Finn II, leave Shark Bay, and head south. However, ultimately this may not assist the MUA's defence much as there is a substantial difference between not taking the "best chance" and not having "due regard" for the safety of the crew or vessel, or acting incompetently, etc. The "best chance" of the Hako Esteem avoiding any damage was for it never to have left Henderson port. All misadventures at sea could be avoided by never going to sea in the first place. As discussed below, Mr Visscher had a number of competing demands, one of which was the undesirability of leaving a barge without a functional anchor carrying 9,000 tonnes of rock floating in Shark Bay. 149Particular 20 is to the effect that "[n]otwithstanding the approaching extreme weather conditions, the plaintiff as master of the vessel had chosen to ride out the weather conditions and accompanying storm surge whilst still having the barge attached". This particular does not reflect Mr Visscher's approach. Although he proposed to hold onto the Blue Fin II for as long as possible, he repeatedly indicated he would let the Blue Fin II go if necessary. 150Particular 21 is to the effect that "[t]he plaintiff's decision, particularised above, was contrary to the charterer's cyclone plan". 151The MUA tendered the Boskalis Cyclone Response Plan (the "Cyclone Response Plan"). Its introduction section describes the plan as "specifically detailed for the dredging fleet". Section 8.2 specifies that various types of vessels were to demobilise by travelling to designated cyclone moorings at Dampier, Point Samson, Exmouth and Geraldton. Section 8.2.5 provides: "Seagoing tugs associated with rock transport will be sailing to sea for cyclone avoidance during any demobilisation. A tug which may be located at [Barrow Island] will upon the order to prepare or demobilise, tow their allocated rock transport barge in the direction away from the cyclones predicted path. The large tugs have the ability to develop towing speeds to stay and remain clear from any cyclone threat. Seagoing tugs that are in transit between Fremantle and [Barrow Island] shall through normal maritime communication methods monitor any threat and take avoidance action at the master's discretion, by turning around and return in the direction of Fremantle." (emphasis added) Annexure 1 to the Cyclone Response Plan lists the cyclone mooring allocations. For various vessels including "Tug Rock barge" and "Rock barge 1", it states "sail to open sea". 152In cross examination Mr Visscher stated that he understood this plan to be referable to "vessels in the Gorgon area [or] to a vessel towing a rock barge towards the project site" and not applicable to the Hako Esteem sitting in Shark Bay, although he later accepted that the Blue Fin II was intended to be taken to Barrow Island for use by Boskalis. 153As noted, the question as to whether Mr Visscher's approach was inconsistent with the Cyclone Response Plan was raised by Mr Nielsen in the various telephone calls he made on 17 February 2011 and in the emails sent to and from Mr Visscher during the voyage. Mr Visscher addressed its applicability in his email of 17 February 2011 sent at 6:58pm noted above (see [111]). He noted that the Cyclone Response Plan was directed to operations around Barrow Island although, as noted, part of it deals with rock towing barges in transit. 154At point 5 of his email sent at 6.58pm on 17 February 2011, Mr Visscher pointed to the difficulties they faced in towing a rock barge away from the cyclone. In his email of 12 February 2011 he had referred to the Blue Fin II not then being amenable to "open sea storm conditions" (see [76]). 155The principal difficulty in applying the Cyclone Response Plan to the Hako Esteem's circumstances is that it contemplated that rock barges could be safely towed by their tugs out of the path of the oncoming cyclone. The Cyclone Response Plan did not address the position of a master dealing with a damaged barge. The Cyclone Response Plan did not envisage a master of a tugboat letting go of a rock barge, and especially one that was in a position like the Blue Fin II. The Cyclone Response Plan did not specify the approach to be adopted in the case of a cyclone threatening a rescue and repair mission of the kind being undertaken by the Hako Esteem. Otherwise, the emphasised words from the above extract from the Cyclone Response Plan acknowledge that it was ultimately the master's decision. In the end result, I am not satisfied that this particular has been made out. 156Particular 22 states that Mr Visscher "refused to speak to the crew collectively in connection with the approaching severe weather conditions and the action he had taken". It follows from the findings that I have already made that I do not accept that this particular is made out. Mr Visscher spoke to the crew "collectively" on 14 February 2011. Although he was annoyed when Mr Kemp approached him after the JHA meeting, he was not unwilling and did not refuse to speak to the crew as a whole (or individually). However, having organised the JHA meeting he was not prepared to organise another meeting himself. The crew would have to do that themselves. 157Particular 23 states that Mr Visscher "did not divulge a contingency plan in the event that the vessel were to become in danger of sinking". Mr Visscher accepts that is so. However, it only begs the question: what contingency plan is possible for a ship that is sinking? None was suggested in evidence. The Cyclone Response Plan does not address the contingency of a ship sinking. Presumably there are emergency procedures for crews to follow, but they were not explained in the evidence. 158Particular 24 states that Mr Visscher "did not divulge a contingency plan to the crew as a whole, either directly or through an intermediary". Mr Visscher disputed this. He pointed to the JHA as a contingency plan. The MUA submitted that it was only a "heavy weather plan" and that, according to Mr Braithwaite, "there is no way that a plan can be followed in the middle of a cyclone". Instead the MUA submitted that the only contingency plan available was the Cyclone Response Plan which, as I have stated, it contended Mr Visscher ignored. 159When read with particular 23, this particular only begs the question of what "contingency" was meant to be addressed. Particular 23 suggests that the contingency sought to be addressed by a contingency plan was the vessel sinking, a topic which is not addressed by either the JHA or the Cyclone Response Plan. In the case of a vessel outside the area of Barrow Island, the Cyclone Response Plan addresses the "contingency" of a cyclone by suggesting avoidance. However, the Cyclone Response Plan does not address the contingency of a vessel finding itself in cyclonic weather. The JHA addresses the contingency of heavy weather from a cyclone affecting the vessel. It also contemplated the possibility of the weather becoming so severe that the barge would need to be let go, and set out a method for that to occur. The JHA addressed a more advanced stage of a vessel being affected by a cyclone than the Cyclone Response Plan. It answered the description of a "contingency plan". Whether it was a good or bad plan is a different matter. Particular 24 is not made out. 160Particular 25 states that Mr Visscher "failed to address the concerns of the crew at any time". For the reasons noted in relation to particular 22, I do not accept that this is made out. Mr Visscher sought to "address" the crew's concerns in the JHA and the JHA meeting. After that the only concerns that were raised with him were those raised by Mr Kemp. 161Particular 26 states that Mr Visscher "appeared to members of the crew to place the interests of the charterers ahead of the safety of the crew". None of the crew members who gave evidence testified to holding this precise opinion, although it might be inferred that they did so. Even so, how Mr Visscher "appeared" to them is irrelevant. In any event, there is no doubt that Mr Visscher considered it his responsibility to hold onto the Blue Fin II as long as possible. I address this further below. 162Particular 27 states that "[i]t can be inferred that the plaintiff, as master of the vessel, felt pressure to hold onto the barge, even though to do so was contrary to the charterer's cyclone plan". Mr Visscher's submissions denied this, but I accept that Mr Visscher felt under some form of "pressure" in the sense of a responsibility to hold onto the barge. However, his actions in doing so were not contrary to the Cyclone Response Plan. 163Particular 28 states that "[o]n 18 February [2011], members of the vessel's crew spoke to a safety officer with the MUA, Noel Nielsen". I have already found that Mr Kemp and others spoke to Mr Nielsen on 17 February 2011. 164Particular 29 contends that the "crew members advised the MUA, through Mr Nielsen, that: (a) the crew wanted to unhook the barge and run away from the storm; (b) the plaintiff, as master of the vessel, had chosen to ride the storm out; (c) the plaintiff, as master of the vessel, did not appear to have a contingency plan in place; (d) the plaintiff, as master of the vessel, had refused to speak to the crew collectively". 165Mr Visscher accepted that one crew member spoke to Mr Nielsen, namely Mr Kemp. I accept that Mr Kemp told Mr Nielsen matters (a) to (d). I accept that other crew members also spoke to Mr Nielsen and expressed their concern (see [106]). However, there is no satisfactory evidence that they stated matters (a) to (d). 166Particular 30 contended that "[t]he MUA, through Mr Nielsen, advised the vessel's crew that the plaintiff, as master of the vessel, either needed to: (a) unhook the barge and run away from the cyclone; or (b) anchor up and get the crew off the vessel". 167Mr Visscher accepts that this is true. 168Particular 31 contends that "[t]he plaintiff, as master of the vessel, took neither of the courses identified in particular 30 above". Mr Visscher accepts that this is true.

[18]

"Due regard" for Safety 169Each of imputations 5(a), 5(b), 7(a) and 7(b) refer to Mr Visscher not having "due regard" to either the safety of the vessel or the crew. The phrase "due regard" embraces the potentially competing responsibilities that a master of any vessel may be subject to when making decisions about a vessel which have the potential to affect the safety of the vessel or its crew. The imputation as conveyed appears to contemplate that the safety of the vessel and the crew, while undoubtedly being extremely serious matters that the master must consider, are not the exclusive determinant by which all decisions are to be made. 170As I have stated, if the safety of the crew and the vessel were the only matters guiding Mr Visscher, then the vessel and the crew would never have left the safety of Henderson port at any time. A less absurd illustration is the not uncommon situation in which a vessel undertakes a rescue mission. The decision to embark upon the rescue is the responsibility of the master. To do so will often increase the risk to the safety of the crew or the vessel, but nevertheless the master takes into account the competing interests of those who are to be rescued. 171In this case, two significant and related obstacles stand in the way of the MUA's attempts to justify imputations that are expressed by reference to the failure of the master to have "due regard" to the safety of the vessel or the crew, or that he otherwise acted incompetently. The first is that it carries the onus of proof. The second is the absence of any material placed before the Court which would enable it to make an assessment of whether the decisions that were made by Mr Visscher demonstrate that in addressing the various competing considerations he did not have due or proper regard for the safety of the crew and the vessel. Thus, for example, there was no expert evidence from an experienced master of a vessel. The only other master that was called, Mr Munro, stated that he agreed with Mr Visscher's approach. Otherwise there was no exploration of any regulatory regime or other source of objective standards that would facilitate an assessment of Mr Visscher's response to the risk faced by Cyclone Dianne. 172This is best illustrated by considering one matter that was clearly at the forefront of Mr Visscher's mind in the period 12 to 18 February 2011, namely what to do with the Blue Fin II. Mr Visscher's uncontested evidence was that the anchor of the Blue Fin II was not operational throughout this period. His emails dated 12 February and 17 February 2011 reveal a concern about leaving it untethered in Shark Bay. 173In debating the wisdom of Mr Visscher's decisions, the parties compared his strategy of staying in Shark Bay with the Blue Fin II attached and only letting it go if the weather and sea conditions became severe, with the option of cutting the Blue Fin II loose immediately, setting sail for the open sea and heading south. As noted, the feasibility of him taking the Blue Fin II outside Shark Bay and turning south to avoid the oncoming cyclone, as he appears to have done in response to Cyclone Carlos, was not explored. 174I will pass over the question of whether to leave Shark Bay without the Blue Fin II would have been contrary to the harbour master's direction, given that it may have been possible to have that direction varied. Leaving that aside, it follows that a significant downside to the response suggested by Mr Nielsen and the MUA is that it would leave an untethered 9,000 tonne rock barge floating in Shark Bay. Based on the forecasts in the period 16 to 18 February 2011 the Blue Fin II would be floating for at least two days before the cyclone arrived. Clearly such a vessel had the potential to cause significant environmental damage and to otherwise be a danger, especially if the cyclone arrived after the Blue Fin II had a number of days to float toward shipping, shore or local infrastructure. 175Although it was more directed to the defence of qualified privilege, the MUA led evidence from Mr Nielsen as to what he genuinely believed was the appropriate response. Thus, he stated that he believed that the "Hako Esteem could have sailed to sea without the barge and been [able] to make enough speed to get out of the way of the cyclone". 176Prior to taking up employment with the MUA, Mr Nielsen was a safety inspector employed by the relevant State government instrumentality. Yet it was clear that there were significant limits upon his qualification to opine about what a master of a vessel in Mr Visscher's position should do. I have already noted that, in his evidence, Mr Nielsen recounted the various enquiries he made on the afternoon of 17 February 2011 when making his assessment of the risks faced by the Hako Esteem. He gave the following description of the inquiries he made of the Western Australian Department of Transport: "A. ... I contacted the Fremantle Branch of the Marine and Harbours to ask them whether or not there was any possibility that the master of the vessel, should he choose to do so, could chop the mooring line between the barge and the vessel and leave the barge to the elements and see whether or not he had the capacity to be able to run away from the cyclone if he chose to do so. Q. Do you recall who you spoke to? I take it this is the West Australian [G]overnment Marine and Harbour Department? A. That's correct, and I don't recall who I spoke to. I spoke to a duty inspector. Normally when you ring them they put you through to whichever inspector is available to answer your query. Q. What response did you get from the duty inspector then? A. Nothing really. The inspector said 'Whatever happens will happen'. Whatever - I was seeking guidance and advice as to whether or not that was a possibility and received virtually no answer from that inspector. He said 'Whatever happens it will happen. Whatever the master does, the master does'." 177In the end, the Court is in the same position as Mr Nielsen in that it has not received any guidance as to the legitimacy or otherwise of Mr Visscher adopting the course of abandoning a 9,000 tonne rock barge in Shark Bay without an anchor. In those circumstances it is very difficult for this Court to find that Mr Visscher acted "without due regard" to the safety of his crew and the vessel when he also had regard to the fate of the Blue Fin II if he left it in Shark Bay. 178The MUA's criticism of Mr Visscher's decision to stay in Shark Bay with the Blue Fin II in tow as long as possible appeared to have seven main aspects, namely (i) his alleged departure from the Cyclone Response Plan; (ii) the alleged absence of a contingency plan; (iii) his alleged refusal to communicate with the crew as a whole; (iv) the effect of storm surge on conditions in Shark Bay; (v) the depth of Shark Bay; (vi) his not taking the safest course and abandoning the barge and travelling to sea; and (vii) the difficulties with the approach set out in the JHA in dealing with severe weather from Cyclone Dianne if it affected conditions in Shark Bay. 179The first six of these matters were encompassed by the particulars of truth that I have already addressed. It follows from my consideration of them that (i) I am not satisfied that Mr Visscher's actions were contrary to the Cyclone Response Plan; (ii) he did have a contingency plan in the form of the JHA; (iii) I am not satisfied that storm surge had any significant potential to affect the Hako Esteem if it was anchored many nautical miles into Shark Bay; (iv) Shark Bay was undoubtedly shallower than the open ocean, but it was deeper than suggested by the particulars; (v) the safest course was to take the Hako Esteem to sea after unhooking the barge, although the barge was a significant competing responsibility; and (vi) Mr Visscher did not refuse to talk to the crew collectively. 180It is perhaps debatable whether the seventh matter, namely the supposed difficulties with the JHA in the event that cyclone weather affected the Hako Esteem in Shark Bay, was encompassed by the particulars of truth, but it was the subject of argument and I will address it. 181Two particular criticisms were made. First, in the cross examination of Mr Visscher it was suggested that the means of letting go the tow wires to the Blue Fin II suggested in the JHA was completely impractical. As stated, step 7 in the JHA addressed the circumstance in which the weather became so adverse that it would be necessary to let go of the Blue Fin II in Shark Bay. Step 7 proposed to deal with that by what was said to be a "crew-less operation". A crew-less operation was to be preferred because, in circumstances of heavy or extreme weather a taut tow wire attached to a 9,000 tonne rock barge that was stretched across the bow of the Hako Esteem would represent a significant danger to any member of the crew who was on deck trying to cut it loose. The suggested crew-less method was to let the tow wire out fully and apply thrust to the Hako Esteem's engines to force the bitter end of the tow wire to pull away from its attachment point to the Hako Esteem. Mr Braithwaite was sceptical of this approach, but Mr Visscher was adamant that it was feasible. 182The second criticism concerned Mr Visscher's proposal to drop two anchors from the Hako Esteem to secure its position in Shark Bay as the weather worsened. Mr Visscher accepted that this might lead to the anchors' lines becoming twisted as the boat was turned around in the cyclone. He suggested that an officer on watch could count the number of times that the boat twisted with a view to the boat later untwisting itself in the reverse direction. 183At first blush both of these measures seem risky. It is difficult to envisage the letting go of the bitter end of a tow wire being effected smoothly. Equally the prospect of a tug boat twisting around two anchor lines during extremely heavy weather and then safely unwinding later sounds hopeful. However, these are lay impressions. Mr Visscher stated that he had experienced severe weather conditions. There was considerable evidence about the Hako Esteem towing a barge in very severe weather in 2012 while under Mr Visscher's command. Mr Visscher stated that a vessel such as the Hako Esteem could comfortably cope with cyclonic conditions and ultimately there was nothing to prove the contrary. While I have misgivings about these aspects of his plans, these misgivings are not reinforced by any expert evidence or other material. In the end, although the criticisms appear to have some force, they were not developed to the point that I could come close to being satisfied that any of the relevant parts of the imputations were justified.

[19]

Are the imputations justified? 184Each of these imputations conveyed by the MUA article and the Cootamundra Herald article describe the Hako Esteem as being "caught in a storm". I have discussed this aspect of the imputations above (at [37]ff). The imputation does not necessarily mean that as at or near 18 February 2011 the vessel was in the midst of Cyclone Dianne. It included a circumstance in which the cyclone was bearing down on the vessel. However, it follows from the discussion at [62] to [69] that this was not true or even close to being true. Both articles significantly overstated the proximity of Cyclone Dianne to the Hako Esteem. In circumstances where both articles conveyed real urgency about the safety situation that was a matter of some significance. 185As noted, imputations 5(a), 5(b), 7(a) and 7(b) refer to the failure of Mr Visscher to have "due regard" to the safety or either the vessel or the crew. It follows from the discussion at [169] to [183] that I am not satisfied of the substantial truth of these aspects of the imputations either. 186Imputations 5(c) and 7(c) refer to Mr Visscher acting "incompetently in the way he reacted to the danger [from Cyclone Dianne]". The discussion at [169] to [183] in relation to "due regard" applies equally to this aspect of the imputations. In the absence of expert evidence or similar material, I am not persuaded that he failed to reach the appropriate level of competence for a master of a tugboat in formulating a strategy for dealing with the threat or potential threat posed by Cyclone Dianne. The same reasoning applies in respect of those aspects of imputations 5(f) and 7(g) that refer to Mr Visscher reacting "inadequately" to the danger faced by the Hako Esteem. 187Imputation 7(d) refers to Mr Visscher putting "commercial interests ahead of the safety of his crew". I have already discussed how Mr Visscher was influenced by his concern over letting go the Blue Fin II untethered in Shark Bay. However, I do not accept that consideration amounts to a "commercial interest" as there were potential safety and environmental consequences if the barge was let go. Otherwise there was nothing to support this aspect of imputation 7(d). To the contrary, to the extent there was pressure from "commercial interests", it was tending towards asking him to leave Shark Bay. 188Imputations 5(d), 5(e), 7(e) and (f) refer to Mr Visscher having put the "lives of his crew [and the vessel] in danger". This aspect of the imputations has been established in that it follows from [148] that by remaining in Shark Bay he adopted a more dangerous course than was available. However the balance of these imputations is not justified for the reason noted at [184]. 189It follows that the MUA's defence of justification fails.

[20]

Contextual Truth 190Section 26 of the Defamation Act 2005 (NSW) provides: "26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations." 191The MUA pleaded three "contextual imputations" namely: "(A) The plaintiff so conducted himself as the master of a vessel at risk from a tropical cyclone as to cause the Maritime Union of Australia to hold grave fears for all on board. (B) The plaintiff so conducted himself as the master of a vessel at risk from a tropical cyclone as to cause members of his crew to fear for their lives. (C) The plaintiff as the master of a vessel at risk from a tropical cyclone, acted with callous disregard in refusing to meet with his vessel's crew to inform it of his contingency plan in the event that something went wrong." 192Mr Molomby SC conceded that each of imputations (A) and (B) arose but contended that they were not defamatory because they do not identify any aspect of Mr Visscher's conduct that was blameworthy. He submitted that Mr Visscher's conduct could have been justified but still have raised those fears. I agree. To be defamatory the imputations would have to assert, for example, that he "misconducted" himself or that he "incompetently conducted himself". 193For the sake of completeness I note that I am satisfied that imputations (A) and (B) are substantially true, however I am not satisfied that their effect is such that the defamatory imputations that Mr Visscher complains of do not further harm his reputation. 194Mr Molomby SC contended that imputation (C) was not conveyed by the articles, because a refusal to meet the crew collectively does not display "callous disregard" in circumstances where the article accepts that Mr Visscher agreed to meet individual members of the crew. It is unnecessary to consider this because it follows from my findings that the MUA has not established the substantial truth of the allegation that Mr Visscher "refus[ed] to meet the vessel's crew [collectively or individually] to inform it of his contingency plan in the event that something went wrong".

[22]

Qualified Privilege at common law 199Section 22 of the Defamation Act 2005 (NSW) preserves the defence recognised by the common law of publication on an occasion of qualified privilege. The debate between the parties focussed upon whether the MUA could establish the requisite "reciprocity of duty or interest" between the MUA and the recipients of its publications (see Bashford v Information Australia Pty Ltd (2004) 218 CLR 366 at [9] per Gleeson CJ, Hayne and Heydon JJ ("Bashford")). The MUA sought to draw an analogy between this case and the subscription service considered in Bashford by arguing that the "recipients of the [MUA article] were, by the nature of the forum, involved directly or indirectly in the maritime industry". They submitted that this was supported by the category of persons who gave evidence of having viewed the article, all being persons who were involved in the maritime industry. 200Mr Molomby SC submitted that both publications were made to an unrestricted audience and the common law defence can never apply to such publications. Certainly the MUA's attempt to confine the description of the audience to either those who gave evidence or people similar to them, was misconceived (see Daily Examiner Ltd v Mundine [2012] NSWCA 195 at [72] to [73] per McColl JA). Otherwise the analogy with Bashford fails. Both articles were freely available on the internet. There is no basis for concluding that the articles were only downloaded and viewed by a limited class of persons with an interest in maritime safety or maritime affairs. Even though the act of publication of both articles was a "bilateral" act (Dow Jones), there was no reason to conclude that it is anything other than a publication to the general public. 201In Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 at [20] ("Trad") Gummow, Hayne and Bell JJ observed that "... it is only in exceptional cases that the common law has recognised an interest or duty to publish defamatory matter to the general public" (see also Marshall v Megna [2013] NSWCA 30 at [75] to [94] per Beazley JA). In doing so their Honours cited Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 ("Lange"). In Lange the High Court declared that the common law of Australia relating to qualified privilege would henceforth reflect the Court's declaration that "each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia" (at 577). Presumably there may be some matters of public safety that might be one of the "exceptional cases" noted in Trad, but the MUA did not contend that this was one of them. In this case the unrestricted nature of the publication of the MUA article and the Cootamundra Herald article means that the defence of qualified privilege at common law fails.

[23]

Statutory Qualified Privilege 202The MUA also sought to rely on the statutory defence of qualified privilege created by s 30(1) of the Defamation Act 2005 (NSW). It provides: "30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the 'recipient') if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances." 203On behalf of Mr Visscher it was conceded that s 30(1)(a) and s 30(1)(b) were established, however, it was not accepted that the MUA's conduct was reasonable in the circumstances. It was not suggested that there was any inconsistency in Mr Visscher conceding that s 30(1)(a) was established, but denying that there existed the requisite reciprocal duty or interest for the purpose of the common law defence of qualified privilege. 204The concept of reasonableness for the purposes of s 30(1)(c) is addressed by s 30(3) which provides: "(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant." 205The MUA's first round of written submissions addressed these criteria in some detail. Thus, it was submitted that each of the articles concerned matters of "public interest" being the "safety at sea of MUA members" (s 30(3)(a)); that the publication related to the performance of public functions or activities by Mr Visscher (s 30(3)(b)); that it was in the public interest that the matter be published expeditiously as time was becoming critical in relation to the threat posed by Cyclone Dianne (s 30(3)(e)); and that the concept of the nature of "the business environment in which the defendant operates" as referred to in s 30(3)(f) in this context embraces the obligations and role assumed by the MUA towards its members (and other seafarers). All these points may be accepted, although I do not accept that the matter had the urgency contended for, given the state of the weather projections on the evening of 17 February 2011 and throughout 18 February 2011. Further the MUA accepted that the imputations were serious (s 30(3)(c)), but contended that only reinforced the "seriousness of the issues at stake" being matters of safety. 206The balance of the points raised in the first round of the MUA's submissions all addressed the position of Mr Nielsen, and appeared to be predicated on the assumption that he was the "author" of the MUA article and responsible for placing the hyperlink to the Cootamundra Herald article. As noted, it only emerged during his evidence that he was not the author of the MUA article and that his only responsibility for the publication of the Cootamundra Herald article was that he spoke to Ms Gallo before she published it. The MUA's first round of written submissions were prepared before Mr Visscher gave evidence. Thus they referred to Mr Nielsen having acted on apparently credible sources of information, being the crew members, and having appropriately consulted BOM reports (s 30(3)(g)), the inappropriateness of him having attempted to contact the master and the attempts he made to seek redress from TMS and Boskalis (s 30(3)(h) and (i)). I accept that Mr Nielsen so acted and that it would not have been appropriate for him to contact the master direct. 207However, the evidence that Mr Nielsen did not prepare the MUA article or place the hyperlink on the MUA's website proved to be fortuitous for the MUA. Mr Nielsen agreed that the MUA article very much overstated the risk faced by the Hako Esteem: "Q. And you've said already in your evidence that you did not write the headline that is on this document [ie the MUA article]? A. That's correct. Q. That is 'MUA crew caught in cyclonic storm'? A. That's correct. Q. A very good reason why you would not have written that headline is that you knew that the statement made in it was not true, didn't you? A. That's correct. Q. You knew that the crew was not caught at that time in a cyclonic storm? A. That's correct. Q. You had a concern that at some time in the future they might be? A. Very much so. ... Q. And then in the start of the text it says, 'Eleven Australian seafarers' lives are in peril', and you have said already you didn't write that? A. No, I did not. Q. And again you didn't write that for the very same reason, that you knew that that was not correct? A. That's correct. Q. And then it goes on under the diagram reproduced to say, 'The lives of 11 Australians are in danger as they try to ride out tropical Cyclone Dianne', do you have that sentence? A. I do, yes. I can see that. Q. And to your knowledge at that time that also was wrong, wasn't it? A. I agree now that it is incorrect. Q. And you say you didn't write that? A. No, I did not. Q. And your reason for not writing that is that it did not accord with what you understood to be the facts at the time? A. That's correct. Q. And in particular, you understood that they were not trying to ride out the cyclone at the time? A. That's correct. Q. Your concern was that some time in the future that might be the case? A. Yes, I agree with that." 208If Mr Nielsen had prepared the MUA article (or the hyperlink to the Cootamundra Herald article) then, having regard to this exchange, I would not have been satisfied that the publication of either article by the MUA was reasonable in the circumstances. 209In any event, once it emerged that Ms Reynolds prepared the MUA article and the hyperlink to the Cootamundra Herald article, the MUA contended that a consideration of whether its conduct was reasonable was confined to addressing only her conduct. Mr Weaver submitted: "I would have to say that the person who was solely responsible for the publication of the material in the sense of the one who put it on the website and who composed the story, admittedly with attribution to the Herald article was Ms Reynolds and therefore would be the publisher, and it is in her mind that reasonableness has to lie ..." 210On this approach Mr Nielsen's knowledge of the level of risk faced by the crew from the cyclone was largely irrelevant. It was said that Ms Reynolds was entitled to draw comfort from the fact that Mr Nielsen, being an MUA safety officer, was quoted in the Cootamundra Herald article. The MUA accepted that Ms Reynolds was probably obliged to attempt to make inquiries of Mr Nielsen. However, as explained below, her evidence was that she unsuccessfully tried to contact him on 18 February 2011. 211During argument I raised with the parties the proposition that, as the MUA and not Ms Reynolds was the defendant, a consideration of the reasonableness of its conduct would extend beyond Ms Reynolds' conduct and embrace knowledge held by other members of its staff such as Mr Nielsen. Mr Weaver resisted the proposition. Mr Molomby SC did not embrace it, preferring to take what he described as the "safer course" of relying on "Ms Reynolds and her [alleged] failure[s]". Accordingly, I will adopt that approach. 212As noted at [9] Ms Reynolds said she became aware of the Cootamundra Herald article between mid-morning and early afternoon on 18 February 2011. She said that when she saw it she became "most alarmed" as "there had been a spate of deaths and fatalities and near misses in the [maritime] industry". She said she attempted to contact Mr Nielsen but could not contact him. She could not recall whether she left a message for him. 213Ms Reynolds stated that she then wrote the MUA article by "summaris[ing] a few paragraphs [from the Cootamundra Herald article] mainly relying on the quotes of one of our officials and referred the readers on to the full story". She stated that she was confident relying on the Cootamundra Herald article in that it "sounded fairly detailed". She also said that she had seen a "lot of reports about the cyclone" and was "checking with the Bureau of Meteorology". She said that she posted it on the web site. She felt that the story was "immediate" and the cyclone was "imminent" such that she should not "wait around for two or three days". Like Mr Nielsen she also believed that those people who read the articles via the MUA website had a genuine interest in reading the material. 214At the conclusion of her evidence in chief Ms Reynolds was asked a series of questions as to whether she honestly held the opinion and believed to be true various matters that reflected imputations 5(a) to 5(f) concerning the MUA article, and imputations 7(a) to (c) and 7(e) to (g) of the Cootamundra Herald article. She stated that she did. Ms Reynolds was not asked whether she held the opinion and believed to be true the matter stated in imputation 7(d), namely that the master of the vessel had put "commercial interests ahead of the safety of the crew". 215Three points should be noted about Ms Reynolds evidence. 216First, the inquiries made by Ms Reynolds were very limited. In the end result she relied exclusively on the Cootamundra Herald article. I have already noted Ms Reynolds' evidence that she unsuccessfully attempted to contact Mr Nielsen. She did not make any inquiries of Ms Gallo. She stated that her preferred course would have been to speak to the MUA members amongst the crew. However, she made no attempt to contact the crew other than via Mr Nielsen, although she agreed that there were other means available to contact them. She stated she would "have taken [that step] had the story evolved further and I was writing for the magazine". Ms Reynolds also agreed that she could have contacted the crew's employer, TMS, as well as Boskalis and Hako, but she did not. 217Secondly, a difficulty for Ms Reynolds in relying solely on the Cootamundra Herald article was that she had almost no understanding of the relevant geography. She assumed that Cootamundra was on the west coast of Australia and the Cootamundra Herald was a "local paper". (In fact, Cootamundra is in New South Wales). She did not know where Dirk Hartog Island was, nor did she know where Shark Bay was. She stated that she thought Shark Bay was in the "the vicinity of the Gorgon site", but even then she could not really identify the location of the Gorgon site. This is all illustrated by the reference she included in the MUA article to the "Gorgon gas project near Shark Bay". As noted, Shark Bay is not near the Gorgon gas project. 218Third, the combination of Ms Reynolds' inadequate understanding of the geography and failure to make further inquiries, including consulting a map, meant that she completely misunderstood the imminence of the threat posed to the Hako Esteem. Thus, Ms Reynolds stated that she "didn't think the cyclone had already hit the vessel" but "assumed that it was in the path of the cyclone and in imminent danger of being hit by the cyclone". Later she stated: "Well, having looked at the map and it was on YouTube and everything, there were very dark clouds already right over - they would have been - the picture I had was not that they were sitting on a sunny day on this vessel with a cyclone several hundred kilometres away. The picture I had was that it was very - it looked to me from the map from the Bureau of Meteorology that they were already in a dark, stormy atmosphere ..." (emphasis added) 219The evidence does not reveal whether the Hako Esteem was experiencing sunny weather on 18 February 2011, but Cyclone Dianne was many hundreds of kilometres away and it was not having any direct effect on the Hako Esteem. If Ms Reynolds had possessed a reasonable understanding of the geography of the region, then a review of the images accompanying the Cootamundra Herald article would have revealed to her that the cyclone was a long way from the vessel. Instead, she wrongly assumed that the cyclone threat was imminent. 220Sub-section 30(3) casts an onus upon a publisher to demonstrate that their conduct was reasonable in the circumstances. In another context and with a different publisher it may be that a simple adoption of the Cootamundra Herald article by a publisher and the use of a hyperlink to that article might constitute reasonable conduct. However, that is of no assistance to the MUA and Ms Reynolds. The Cootamundra Herald article referred to an MUA officer and concerned the crew of a vessel that included MUA members. By preparing an article of their own and referring people on their website to the Cootamundra Herald article the MUA and Ms Reynolds were giving it the MUA's imprimatur. There was some minimum level of scrutiny that was warranted before Ms Reynolds published both articles. Had she consulted a map she would have realised that the danger was not as imminent as suggested and some further inquiries were warranted. In those circumstances she would have had more time to contact Mr Nielsen or the crew or TMS. In the end result she published one article and adopted another that on any view significantly overstated the threat posed. 221I am not satisfied that the MUA's conduct was reasonable in all the circumstances. The MUA's defence of statutory qualified privilege fails.

[24]

Honest Opinion 222The MUA also pleaded a defence of honest opinion that invoked s 31(2) of the Defamation Act 2005 which, together with s 31(4) and (5), provide: "31 Defences of honest opinion ... (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. ... (4) A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1) - the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2) - the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) in the case of a defence under subsection (3) - the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. (5) For the purposes of this section, an opinion is based on proper material if it is based on material that: (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29." 223It is not clear from s 31(2) whether the reference to "defamatory matter" is to the publications themselves or to the imputations pleaded by the plaintiff. In Fraser v Holmes [2009] NSWCA 36 at [89] Tobias JA stated that in addressing the common law defence of comment "the relevant question is whether the ordinary reasonable viewer, reader or listener would have understood that the meaning found to have been conveyed by the matter complained of was conveyed as fact or comment" (citing Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245 at [80] to [84] per Gummow, Hayne and Heydon JJ ("Manock")). I will adopt the same approach. I note that the MUA did the same. Mr Weaver's written submissions identified the person who held the relevant opinion for the purposes of s 31(2) to be Ms Reynolds, and he relied on her recitation of her belief in the imputations pleaded in relation to the MUA article that I have already noted (at [214]). His written submissions appeared to restrict the assertion of this defence to only the MUA article, which may explain why Ms Reynolds was not asked to state her belief in imputation 7(d) (see [214]). 224Mr Molomby SC submitted that neither s 31(2)(a) nor s 31(2)(c) was made out, but conceded that if the defamatory matter was an opinion then it "related to a matter of public interest" (s 31(2)(b)). He did not attempt to defeat this defence by proving the matter identified in s 31(4)(b). 225In relation to s 31(2)(a), the precise form of the imputations is to be ignored in determining whether or not they constituted an expression of opinion or an assertion of fact (Fraser v Holmes at [84]). One commonly accepted formulation of what constitutes a "comment" is "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark [or] observation" (see John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 at [25] per Giles JA, citing Clarke v Norton [1910] VLR 494 at 499). 226In my view those parts of the imputations pleaded in relation to the MUA article that refer to Mr Visscher not having "due regard" for safety, acting "incompetently" or reacting "inadequately" constitute the expression of an opinion about his performance as master of the Hako Esteem. As I have explained, each of those statements appears to involve assessments of Mr Visscher's performance. They would commonly be proved by opinion evidence and ordinarily are matters in respect of which minds may differ. While these imputations also include a factual contention that the vessel is "caught at sea", it is the substance of the imputation that must be considered not the form (Fraser v Holmes at [84]). However, it follows from the discussion in [188] that imputations 5(d), 5(e), 7(e) and 7(f), which refer to Mr Visscher putting the lives of his crew or the vessel "in danger", and which reflect the statement that their best chance of survival was to the cut the Blue Fin II loose and leave Shark Bay, are not expressions of opinion. 227However I do not accept that so much of the defamatory matter in the MUA article (or the Cootamundra Herald article) that constituted the expression of an opinion was based on "proper" material. 228In Manock it was held that to establish the common law defence of fair comment it was necessary that the facts on which the comment is based were expressly stated or referred to in the matter complained of, or were notorious (at [5] per Gleeson CJ citing Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; 178 CLR 309 at 327; Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33 at 44). It is not clear whether that applies to a defence under s 31. To the extent that it is said that the material that support the opinion are substantially true, then on its face s 31(5)(a) does not suggest that the material must be set out in the publication that contains the allegedly defamatory matter. However, the position is left uncertain because s 31(5)(b) and (c) refer to material that was "published", which appears to be a reference to the publication of the defamatory matter although an argument to the contrary was suggested but not resolved in Fraser v Holmes (at [92]). 229It is not necessary to address this further because the entirety of the "material" relied on by Ms Gallagher is contained in the Cootamundra Herald article. It follows from the above findings that it was not published on an occasion of absolute or qualified privilege. It also follows that it was not published in circumstances that attracted a defence under ss 28 or 29 of the Defamation Act 2005 in favour of the MUA. It was not argued that s 31(5)(b) could extend to material that was published in circumstances that might attract a defence if raised by another person, namely the Cootamundra Herald. 230In relation to substantial truth, I have addressed each of the particulars of truth concerning that material above. To the extent that the articles referred to or suggested the urgency of the situation confronting the Hako Esteem, the proximity of the cyclone, the depth of the water in Shark Bay, the proximity of Shark Bay to Gorgon Island (in relation to the MUA article), the absence of a contingency plan, the requirements of the Cyclone Response Plan and the refusal of the master to speak to the crew collectively, then the truth of the material has not been established. In those circumstances I am not persuaded that any of the opinions as to Mr Visscher's competency expressed in the articles were based on proper material. 231It follows that the MUA has failed to establish a defence under s 31.

[25]

Damages 232Mr Visscher seeks both compensatory and aggravated damages in respect of the publication. The MUA disputes that he has established any entitlement to aggravated damages, and further contends that his damages should be reduced by reason of the amount he received for recovering an amount in separate proceedings concerning the Cootamundra Herald article. 233In Aktas v Westpac Banking Corp Ltd [2009] NSWCA 9 ("Aktas") at [89] to [91] McClellan CJ at CL (with whom Ipp and Basten JJA agreed) summarised the principles governing an award of compensatory damages. His Honour's summary included the following: "[89] An award of damages in defamation serves three purposes. It provides reparation for the harm done to the plaintiff's reputation; consolation for distress or hurt to the plaintiff's feelings; and vindication of the plaintiff's reputation: Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 (at 60). The first two purposes are frequently considered together. ... [91] The assessment of damages in defamation is necessarily imprecise. Damages are 'at large' in the sense that they cannot be arrived at through calculation or the application of a formula: Carson (at 115) per McHugh J; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 (at 348-349) per Hayne J. This is because much of the harm done to the plaintiff is loss that cannot be quantified in monetary terms: Rogers (at 349) per Hayne J. Consequently, assessing damages is a matter of impression and not addition: Cassell & Co Ltd v Broome [1972] AC 1027 (at 1072). Juries have found it helpful to consider what the defendant, as opposed to the plaintiff, should be liable for in the circumstances to aid this impressionistic task. 'It became ... indisputable that a jury could consider not only what the plaintiff should receive, but what the defendant should pay': Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 (at 151) per Windeyer J; Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 (at 228) per Toohey J." 234The decision in Aktas was successfully appealed to the High Court (Aktas v Westpac Banking Corporation [2010] HCA 25; 241 CLR 79), however the appeal only concerned qualified privilege. There is no reason to doubt any part of the above summary. 235In addition, it is necessary to note four points concerning the Defamation Act. First, s 34 requires the Court when assessing damages to "ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded". Second, s 35(1) specifies a maximum amount that can be awarded for damages for non-economic loss in "defamation proceedings" unless the Court is satisfied that the "circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages" (s 35(2)). This "cap" is adjusted from time to time. The cap was increased to $355,500 by a declaration published in the Government Gazette on 31 May 2013. In Davis v Nationwide News Pty Ltd [2008] NSWSC 693 ("Davis") at [9] McClellan CJ at CL held that the cap in s 35(1) applies to the entire proceedings regardless of how many defamatory publications are sued upon. Otherwise, the significance of the cap was outlined by Bell J in Attrill v Christie [2007] NSWSC 1386 at [44] to [45]. Third, s 36 requires the Court to disregard any malice or other state of mind on the part of the defendant, except to the extent that the malice or other state of mind "affects the harm sustained by the plaintiff". Fourth, s 39 provides that, even though the proceedings concern more than one cause of action, the Court may nevertheless assess "damages in a single sum". 236In applying these principles it is first necessary to describe the evidence as to the extent of publication of the matters complained of. In doing so it is important to recall that the MUA is not responsible for any publication of the Cootamundra Herald article that occurred by reason of someone downloading it other than via accessing it through the MUA's website. 237I have already noted that Mr Munro downloaded and viewed both articles in February 2011 (at [12]), Mr Dagnall downloaded and viewed the MUA articles while aboard the Hako Esteem and read the Cootamundra Herald article over Mr Visscher's shoulder (at [13]). Mr Phillips downloaded and viewed the MUA article (at [14]). In addition, in his evidence Mr Visscher mentioned that a number of members of the crew mentioned that they had viewed the MUA article, namely Mr Kemp, Mr Skilton, Mr Burland and Mr Cox. Mr Visscher identified another person who joined the crew at a later time, Mr Graham Gallagher, as having stated he had read the MUA article. I accept that evidence. Given the controversy that the vessel found itself in, it would be surprising if the crew members did not view at least the MUA article. 238Mr Visscher also stated that upon his return to Henderson he had a meeting with Mr Del Rosso from TMS and Mr Mitchell from Hako. He said both mentioned the "publication", which I understand to be a reference to at least the MUA article. He also nominated Mr Paul Nunn from TMS as someone who mentioned to him that he had seen the MUA article. I accept that evidence. Again it would be surprising if the relevant personnel from TMS, Hako and Boskalis did not view at least the MUA article given the emails that were exchanged in February 2011. 239Ms Reynolds stated that records were kept of the number of hits on particular articles on the MUA's website, however, they were not tendered. Nevertheless, there is reason to consider that it was downloaded and viewed by a significant number of people many of whom were in the maritime industry, but also some from a wider audience as well. The MUA article with its hyperlink to the Cootamundra Herald article remained on the MUA's website from February 2011 until at least the commencement of the hearing of these proceedings in late October 2013. It had the capacity to be shared by social media such as "Facebook". Ms Reynolds stated that she would often refer journalists seeking information to the website. 240Mr Munro's evidence as to how he came across the MUA article is suggestive of the MUA website being one that is regularly consulted by people in the maritime industry, or people who keep abreast of, or are interested in maritime affairs. Thus, Mr Munro said that he used the MUA website: "... to keep abreast of what happens with the unions that can affect me as well, you just click on it, you just follow what's going on through to keep an eye on what's the latest things that are happening throughout that maritime side of things." Similarly, Mr Phillips said that he used the website to "keep in touch with the goings on". This is consistent with Mr Visscher's evidence. He stated that he had been told by people in the industry that "they just read [the website] as a matter of course". 241Further, Ms Reynolds stated that each month, and sometimes more frequently, an "e-bulletin" was distributed by email to several thousand people which provided a paragraph from stories on the website and then a link to the story. She described it as a means of "redirecting people to the website". She had "no recollection" as to whether the MUA article was included in such a bulletin. Given its serious subject matter and the length of time it remained on the website, it is difficult to see why it would not have been included. I am satisfied that it did and it is most likely that a substantial proportion of recipients responded as envisaged by accessing the website and viewing the MUA article. 242Overall I am satisfied that the MUA article was likely to be downloaded and viewed by most of those persons who were members of the crew or engaged by TMS, Boskalis or Hako, and had some knowledge of the controversy that the Hako Esteem was embroiled in. Such persons were likely to have also downloaded and viewed the Cootamundra Herald article and been able to identify Mr Visscher as the master of the vessel. Further, either because they consulted the website regularly or they may have received an e-bulletin, I am satisfied that a reasonably large group of people, most of whom had some connection with or interest in maritime affairs, would have downloaded and viewed the MUA article. Of this group many are likely to have known or at least been able to identify Mr Visscher as the master of the vessel. Further, given the seriousness of the topic, a sizable proportion of this group was likely to have downloaded and viewed the Cootamundra Herald article. This description does not exhaust the people who may have downloaded and viewed the MUA article or identified Mr Visscher, but the more tenuous their connection with the maritime industry (or the individuals involved), the less likely that they would have viewed the article or been capable of recognising that it concerned Mr Visscher. 243I accept that prior to the publication of the MUA article Mr Visscher had an excellent reputation as a seafarer and commander of a vessel. I have briefly described his qualifications and experience already. 244Mr Andrew Phillips was asked how he regarded Mr Visscher as a seaman. He replied: "Very highly. I will, you know, never second-thought the chance to work with him again, and he's - I believe he makes very good decisions on board for the safety of the vessel, and he's always been very fair with the crew and I rate him very highly." As to how others regarded Mr Visscher, Mr Phillips stated: "Tim is highly regarded among all the deck officers I've worked with. I believe that other people who have worked with him would hold the same opinion." 245Mr Munro held a similarly high opinion of Mr Visscher's qualities as a seaman. He said that: "[h]is reputation is very good concerning safety and the management of a vessel". Similarly, Mr Dagnall stated that Mr Visscher "... has a strong safety awareness of the industry. I believe a lot of people hold him in high regard for that safety concern". 246The imputations conveyed by the articles in question were undoubtedly serious, especially for someone who had devoted almost half a century to being a seafarer. Mr Visscher was not just accused of incompetence, but of placing his crew and vessel at risk from his incompetence and his succumbing to "commercial pressures". The findings that I have made concerning the extent of the publication have the consequence that his reputation was inevitably diminished in a sector in which he was held in high regard. True it is that he has kept working in the industry and it does not appear that the articles caused TMS to lose confidence in his ability to command a vessel. However, they are just one operator and there is a significant difference between ceasing to engage someone and maintaining reservations about their abilities. 247As is to be expected, Mr Visscher gave evidence of his response to viewing the publications. He stated: "... I couldn't believe what I was reading. And in this thing on the first line, it accuses me of the worst thing that you could accuse me of. Any - worse thing you could accuse any mariner of, that I have put - I put the lives of the crew in peril. In peril. That's - I don't know the words to say, how do I react to that? I was incensed by it. I couldn't believe I was reading something like this." 248Mr Visscher stated that he was "uncontrollable" and felt "like someone punched me in the face". He felt it "could destroy [his] career". Mr Dagnall recalled Mr Visscher "look[ing] visibly angry, quite enraged by the [MUA] article" when he saw it on the bridge of the Hako Esteem on 18 February 2011. I accept this evidence. I have already noted that Mr Visscher commenced collating evidence for proceedings on the very day that he became aware of the publication. I do not regard that as inconsistent with his evidence as to how upset he was. To the contrary, he was so angry he was planning his vindication from the beginning. 249In his evidence Mr Visscher described how concerned he was that the articles could be shared on social media such as Facebook, although and perhaps because he had little understanding of how such services operated. He frankly stated that the effect of the articles on "every day of my life" had "diminished over time", although he found the litigation traumatic especially as he had a high regard for the MUA. I understand the effect of this evidence to be that, while as time passes the upsetting effect of the publications intrudes less into his thoughts and mood, the stress of litigating over them has increased. 250My impression of Mr Visscher is that he could be difficult to work with, even abrasive. These may merely be the concomitant qualities of being decisive and tough. Presumably being popular is not necessarily a prerequisite to being a good master. However, likeability is not the same as reputation or regard. With Mr Visscher I discerned that his self perception is very much bound up in his work in the maritime industry, the persons he encounters within it and what he understands is their regard for his capacities. He wishes to be respected even if not necessarily liked by all. These publications damaged his reputation and his self perception of his reputation.

[26]

Aggravated Damages 251Mr Visscher seeks "aggravated damages". He contends that by reason of various matters the Court would, in assessing compensatory damages, be "justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified" (State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 at [131] per Hodgson JA). The type of conduct that justifies this approach must be lacking in bona fides, improper or unjustifiable (Triggell v Pheeney (1951) 82 CLR 497 at 514), and can include conduct from the "time of publication to the eventual verdict" (Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44 at 69 per Brennan J ("Carson")). 252Mr Visscher identified five matters that were said to justify "aggravated damages". The first two were as follows and can be addressed together, namely: "(a) the defendant's failure to apologise as requested by the plaintiff's solicitors in a letter dated 14 March 2011; (b) the defendant's maintenance of the first matter complained of on the website after receiving the letter dated 14 March 2011 from the plaintiff's solicitors." 253On 14 March 2011, Mr Visscher's solicitor sent a letter of complaint to the MUA about the MUA article and the Cootamundra Herald article. It sought the removal of both and the placement of an apology on the website. No apology was forthcoming and, as noted, the articles remained on the website. A failure to apologise can be included as a component of a claim for aggravated damages (Clark v Ainsworth (1996) 40 NSWLR 463) although whether by itself it could justify such an award requires that it satisfies one of the three criteria in Triggell (see Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [82] per Tobias and McColl JJA). 254As at 14 March 2011, Mr Nielsen was still employed by the MUA. He left sometime in 2012. He was extensively quoted in the article, yet his evidence was that it was not shown to him. When it was shown to him in cross examination, he disowned its accuracy. There is nothing to suggest that upon receipt of the letter of 14 March 2011 any attempt was made to verify the articles with Mr Nielsen. In those circumstances I consider that the maintenance of the articles on the web site, and the refusal to offer even some form of limited apology to Mr Visscher after a reasonable time elapsed after receipt of the letter of 14 March 2011, was unjustifiable conduct on the part of the MUA. 255The third and fourth matters said to justify aggravated damages were: "(c) the defendant's on-going invitation to readers, by way of providing facilities on the website page complained of by mouse-clicking on the word "SHARE", to transmit the matter complained of to others by email, Twitter, Facebook and other forms of social media; (d) the defendant's on-going invitation to readers of the second matter complained of, by way of facilities on the [Cootamundra] website page complained of by mouse-clicking on the "send, save and share" icons, to transmit the matter complained of to others by email, Twitter, Facebook and other forms of social media." 256One difficulty with (d) is that it is hard to see why the MUA should bear a responsibility for the sharing facility offered by the Cootamundra Herald in respect of the Cootamundra Herald article. Simply because the MUA is responsible for the publication of the article to users who download and view it through its website does not mean that it assumes responsibility for all the features associated with the article, especially as it presumably has no control over them. In any event, I do not regard either of these matters as warranting any aggravation of the compensatory damages to be awarded to Mr Visscher. They are merely an aspect of its electronic publication via the internet and world wide web. 257The fifth matter relied on was particularised as follows: "(e) The defendant's conduct of these proceedings: (i) The baseless suggestion to the plaintiff that he had falsified an entry in the official logbook ... of the Hako Esteem ... (ii) Cross examining the plaintiff about previous representations alleged to have been made by third parties, contrary to section 44 Evidence Act (NSW) 1995 ..." 258This particular was notified in Mr Molomby SC's first round of written submissions. The submissions foreshadowed an application for leave to amend to rely on the particular. During oral argument I granted Mr Visscher leave to file a further amended statement of claim containing it (T577). To date no such pleading has been filed. It is a matter that will need to be rectified and I will make an order to enable that to occur. (Subsequently, I refused a further application by Mr Visscher for leave to amend: Visscher (No 5).) 259There is no doubt that the conduct of a defendant's case can aggravate a plaintiff's damages (Davis at [32]). I have already described the suggestion that was put to Mr Visscher in cross examination about the logbook (at [72]ff). I do not consider that the suggestion that was put to him was justifiable. 260In relation to the other matter, the reference to "representations made by other parties" is to findings referred to in a judgment of an industrial tribunal that are discussed in Visscher v Maritime Union of Australia (No 3) [2013] NSWSC 1565 ("Visscher (No 3)"). In summary, Mr Visscher was cross examined about these findings in a manner which was in some respects consistent with s 44(3) of the Evidence Act 2005 (NSW), but in others went beyond it. When objection was taken, Mr Weaver sought leave to amend his defence to include a plea of bad reputation based on the judgment in question. This application was refused in Visscher (No 3). There the matter rested. I do not consider that this constitutes some form of unjustifiable behaviour that aggravates Mr Visscher's damages.

[28]

Mitigation 262In its defence the MUA pleaded as follows: "The defendant relies in mitigation of damages on: (a) The substantial truth of each of the imputations, contextual imputations and common sting as is proved to be substantially true. (b) The contextual background in which the matters complained of came to be published. (c) The defendant's conduct in publishing the matters complained of, in that the defendant honestly believed, and had reasonable grounds for believing, that what it published was true and relied upon the accuracy of the source material on which the matters complained of were based." 263There were no submissions directed to establishing how these matters might operate to reduce the amount of damages that may be awarded (although in relation to (a) see McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933 at [108] to [122] per McCallum J). In any event, it does not matter as none of these matters were established by the MUA. 264In oral argument Mr Weaver also sought to rely on s 38 of the Defamation Act 2005 which provides: "38 Factors in mitigation of damages (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that: (a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter, or (b) the defendant has published a correction of the defamatory matter, or (c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or (d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or (e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter. (2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages." 265This is not a particularly helpful section in that all it states is that the evidence on the various topics is "admissible", but otherwise provides no guidance as to what use is to be made of it. In Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059; 68 NSWLR 150 ("Obeid") at [112] Hoeben J (as his Honour then was) held that the equivalent provision of the Defamation Act 1974 (NSW) (s 48) reflected the principle discussed in Mirror Newspapers v Jools (1985) 5 FCR 507 at 512, namely that the "tribunal of fact [should] consider to what extent damage to the plaintiff's reputation is the joint result of similar publications or is solely the result of one of the publications" and "[w]here there is a joint effect, the tribunal must ensure that the plaintiff is not doubly compensated". 266In this case there was no evidence about any settlement, except that in submissions Mr Weaver stated that Mr Visscher conducted proceedings against "Fairfax", that the proceedings were settled on terms providing for a payment to Mr Visscher of the sum of $135,000.00 inclusive of costs, and that the proceedings were "about the Cootamundra Herald article". Mr Molomby SC appeared to be content to accept those matters. In light of that, I have not considered the material to be found on file 2011/00339961 which relates to the proceedings between Mr Visscher and Fairfax Media Limited, other than to note that those proceedings have been discontinued. 267Mr Molomby SC submitted that a literal reading of s 38 was of no assistance to the MUA because any compensation that Mr Visscher would or had received in respect of the Cootamundra Herald article did not concern "[an]other publication", but was in fact the same publication (cf s 38(1)(c), (d) and (e)). He submitted that, in respect of a person who downloaded and viewed the Cootamundra Herald article by clicking on the hyperlink on the MUA website, there is only one publication but two publishers, namely the MUA and Fairfax as the entity responsible for placing articles on the Cootamundra Herald website. This argument has no relevance to that part of the MUA's case in mitigation which concerned the MUA article, which on any view is "[an]other publication". 268On its face this seems to be an unlikely construction, but it has an underlying rationale. In the ordinary course, two publishers of the same defamatory publication are jointly liable. If the plaintiff sues only one of the tortfeasors and enters judgment against one or releases one, then he releases all (Bryanston Finance Ltd v de Vries [1975] QB 703; [1975] 2 All ER 703 at 722). Thus, s 38 is directed to different publications because it does not countenance the possibility of two separate recoveries (from joint tortfeasors) in respect of the same publication. 269However, in this case the MUA has not placed sufficient material before me to conclude that the "settlement" with Fairfax amounted to a release of the MUA in respect of its liability for the publication of the Cootamundra Herald article. It could, for example, have effected a settlement with "Fairfax" via a covenant not to sue (Carr v Thomas [2009] NSWCA 208 at [34]). 270Nevertheless, the MUA can still invoke s 38 in respect of the downloading and viewing of the Cootamundra Herald article that did not occur as a result of readers clicking on the hyperlink on the MUA website. Such downloads would not be the same publications as the MUA is sued in respect of, but would each be "[an]other publication". 271However, the MUA bears the onus of proof. There is no evidence as to how much of the settlement relates to Mr Visscher's legal costs. Further, as between the downloading and viewing of the MUA article and the Cootamundra Herald article via the MUA website on the one hand, and the downloading and viewing of the Cootamundra Herald article from a source other than the MUA website on the other, there is no evidence to enable a determination of how the latter may have affected Mr Visscher's reputation (Obeid at [113]). The findings I have made above are directed to the former and are principally directed to the class of persons who consult the MUA website from time to time. 272In the circumstances the MUA has failed to establish a basis for reducing the damages awarded.

Parties

Applicant/Plaintiff:

Visscher

Respondent/Defendant:

Maritime Union of Australia

Legislation Cited (6)

Defamation Act 1974(NSW)s 48

(Defamation Act 2005(NSW)

Evidence Act 2005(NSW)

Defamation Act 2005(NSW)s 30, s 31, s 34, s 38, s 21, s

Evidence Act 1995(NSW)s 44, s

Uniform Civil Procedure Rules 2005(NSW)r 14.30, r 14.30(3)).

Cases Cited (42)

DEFAMATION - damages - mitigation of damages - Defamation Act 2005 (NSW) s 38 - no evidence regarding "Fairfax settlement" and whether it released MUA from liability - basis for reducing damages awarded fails. Legislation Cited: - Defamation Act 1974 (NSW) s 48 - Defamation Act 2005 (NSW) s 21, s 22, s 25, s 26, s 28, s 29, s 30, s 31, s 34, s 35, s 36, s 38, s 39 - Evidence Act 1995 (NSW) s 44, s 136 - Uniform Civil Procedure Rules 2005 (NSW) r 14.30 Cases Cited: - Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 - Aktas v Westpac Banking Corp Ltd [2009] NSWCA 9 - Aktas v Westpac Banking Corporation [2010] HCA 25; 241 CLR 79 - Ali v Nationwide News Pty Ltd [2008] NSWCA 183 - Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 - A-S v Statewide Roads Ltd [2007] NSWSC 1472 - Attrill v Christie [2007] NSWSC 1386 - Bashford v Information Australia Pty Ltd (2004) 218 CLR 366 - Brent Walker Group PLC v Time Out Ltd [1991] 2 QB 33 - Bryanston Finance Ltd v de Vries [1975] QB 703; [1975] 2 All ER 703 - Carr v Thomas [2009] NSWCA 208 - Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44 - Cassell & Co Ltd v Broome [1972] AC 1027 - Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245 - Clark v Ainsworth (1996) 40 NSWLR 463 - Clarke v Norton [1910] VLR 494 - Crookes v Newton [2011] 3 SCR 269 - Daily Examiner Ltd v Mundine [2012] NSWCA 195 - David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234 - David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; 1 VR 667 - Davis v Nationwide News Pty Ltd [2008] NSWSC 693 - Dow Jones & Co Inc v Gutnick (2002) 77 ALJR 255, 210 CLR 575 - Fraser v Holmes [2009] NSWCA 36 - Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 - Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 - Hird v Wood (1894) 38 Sol J 234 - John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 - Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 - Lee v Wilson (1934) 51 CLR 276 - Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151 - McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933 - Marshall v Megna [2013] NSWCA 30 - Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 - Mirror Newspapers v Jools (1985) 5 FCR 507 - Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059; 68 NSWLR 150 - Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; 178 CLR 309 - Polly Peck (Holdings) PLC v Telford [1986] 2 WLR 845 - Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 - R v Paine (1696) 5 Mod Rep 163; 87 ER 584 - Sim v Stretch [1936] 2 All ER 1237 - State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 - Triggell v Pheeney (1951) 82 CLR 497 - Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 - Visscher v Maritime Union of Australia (No 3) [2013] NSWSC 1565 - Visscher v Maritime Union of Australia (No 5) [2013] NSWSC 1640 - Webb v Bloch (1928) 41 CLR 331 Texts Cited: - Ben Elton, Stark (1989, Black Swan) - Macquarie Dictionary Online (2013) - New South Wales, Government Gazette, No 65, 31 May 2013 Category: Principal judgment Parties: Timothy Visscher (Plaintiff) Maritime Union of Australia (Defendant) Representation: Counsel: T. Molomby SC, Ms L. Goodchild (Plaintiff) R.K. Weaver (Defendant) Solicitors: Roderick Storie Solicitors (Plaintiff) Slater & Gordon (Defendant) File Number(s): 2011/339947

[2009] NSWCA 9

[2000] VSCA 24

(2004) 218 CLR 366

(1996) 40 NSWLR 463

(2002) 77 ALJR 255

(1934) 51 CLR 276

(1985) 5 FCR 507

(1951) 82 CLR 497

(1928) 41 CLR 331

(1993) 178 CLR 44

(2003) 216 CLR 327

(1966) 117 CLR 118