Zunter v John Fairfax Publications Pty Ltd

Supreme Court of NSW|2005-07-21|Before: Simpson J

background 3 It is necessary to recount some background material. The publication of which Mr Zunter complains appeared on page four of the newspaper. Under a headline that read: "Illegal backburn that went wrong ruined our strategy, firefighters say"

and under the byline of a journalist, Stephanie Peatling, Fairfax published a face and shoulders colour photograph of Mr Zunter. Behind him is, apparently, a bushfire. The photograph bore the caption: "Caravan park owner John Zunter ... lost control of a backburn." 4 The remainder of the article is relatively short and can conveniently be set out here: "4 Police are waiting for conditions to clear in the Bendalong area on the South Coast so they can interview a caravan park owner who carried out an illegal backburning operation on Thursday night. 5 The Shoalhaven fire control officer, Brian Parry, said yesterday that the owner of the Rustic Caravan Park, John Zunter, had repeatedly refused to evacuate the premises on Thursday when police were ordering people to leave. 'He did his own backburning and indicated that he'd lost control of the backburn,' Mr Parry said. 6 Firefighters were unable to bring the blaze back under control and, as a result, the fire 'tore through and wrecked the main strategy', he said. 7 'It came into the Manyana fire we were trying to control.' 8 Yesterday morning police were trying to work out how to send an investigator to speak to the man, whose property is at the end of a long dirt road with heavy bushland on both sides. 9 Mr Zunter told the Herald he started the backburn out of desperation because the fire was getting closer and the authorities were not going to come and help. Now he was worried about being prosecuted. 10 Elsewhere in the Shoalhaven area, fires continued to burn but mainly away from residential areas. Residents from the village of Berringer Lake were evacuated to the Manyana sporting field while people in Manyana, Fishermans Paradise and Conjola were put on alert. 11 It is not yet safe for people in Wreck Bay and Jervis Bay village to return to their homes. 12 Food and other supplies were ferried to the affected areas from Sussex Inlet by Waterways and Surf Life Saving crews. 13 Favourable winds resulted in a relatively good day for firefighters yesterday and conditions are expected to remain positive today. 14 Gusty winds and high temperatures are expected to return tomorrow, with operation organisers concerned about which direction the fires would take early next week, although rain is forecast for Tuesday. 15 The NSW Fire Commissioner, Phil Koperberg, made his first visit to the Shoalhaven area since the fires began on Christmas Day. 'We understand the pressure and appalling conditions under which they are working,' he said."

(The paragraph numbers do not appear in the original publication. They have been added for ease of reference, as they appear in the statement of claim. The headline was given the number "1", the photograph caption the number "2", and the photograph itself the number "3".) 5 It was common ground that the article was published at a time when the state of NSW was being (and had been for some time) ravaged by bushfires. Indeed, the area of factual dispute in the proceedings was remarkably narrow. 6 From time to time the Commissioner for the Rural Fire Service ("the RFS"), Mr Phil Koperberg, acting on powers conferred on him by s99 of the Rural Fires Act, 1997, declared a total fire ban prohibiting, in identified areas, the lighting, maintenance and use of fires in the open air. Such a ban was in force in the Shoalhaven area at relevant times. Mr Zunter was the manager of a caravan park called the Rustic Caravan Park in the Bendalong area in the Shoalhaven area of the south coast of NSW. Photographic and cartographic evidence show that the caravan park is located to the south of Bendalong, on the edge of Berringer Lake, in an area bounded by Bendalong and Berringer Roads and Inyada Drive. Road access appears to be only via a long road through bushland, running off Bendalong Road. The property was, in the early days of January 2002, immediately and seriously threatened by a large bushfire, which was sometimes known as "the Manyana fire". The RFS was working to bring the fire under control. On 2 January officers of the RFS entered the caravan park. This provoked a conflict with Mr Zunter, apparently because the officer in charge, Mr Alan Barter, did not announce his presence or seek Mr Zunter's consent to enter the caravan park. A dispute between Mr Zunter and Mr Barter arose, culminating in Mr Barter saying to Mr Zunter: "If this place catches on fire we will not be back to assist ... the Rustic Caravan Park can burn to the fucking ground." 7 Later that day police and/or the RFS ordered the evacuation of the caravan park. Not all patrons complied with the order. The following day, 3 January, police and the RFS again ordered the evacuation of the caravan park, and again some individuals refused to leave. RFS officers inspected the caravan park, gave some instructions to Mr Zunter, and left. Mr Zunter made what preparations he could. He had on site a variety of fire fighting equipment which he made ready for use. 8 In mid afternoon he saw that the fire was burning on each side of the access road. He estimated that it would reach the caravan park within an hour. 9 Police established a road block at the intersection of a nearby road, and the access road, or driveway, to the caravan park. 10 By 5.00 pm the fire was about 50 or 60 metres away, approaching the caravan park at an angle and burning to as high as 20 to 40 metres in the tops of the tall trees that form the bushland. At one point Mr Zunter estimated the nearest fire front to be within five metres of the boundary of the caravan park. 11 Six men who had been resident in the caravan park remained to assist Mr Zunter, in defiance of the evacuation orders. One of these was Mr Alan Osborne, who gave evidence in the proceedings. 12 Acting on the advice, and with the assistance, of Mr Osborne, who had RFS training, and also with the assistance of the five others, Mr Zunter ignited a series of fires designed to remove the fuel that the bushfire would otherwise have consumed, and starve it of oxygen. This was the backburn mentioned in the headline and the subject of the article. By the time the men did this, the wind direction was such as to drive the newly lit fires into the main fire. The backburn achieved its purpose and the main fire (the Manyana fire) did not reach the caravan park or cause any damage to it. Indeed, on Mr Zunter's (unchallenged) evidence the backburn self-extinguished within twenty minutes. 13 There was extensive media coverage of the bushfires. Ms Peatling was a reporter then employed by Fairfax on the Sydney Morning Herald, based in Sydney. 14 She had been so engaged since 1999. During the second half of 2001, as part of her employment, she was required to undertake a one-day course conducted by RFS, the purpose of which was to equip her to report on bushfires which were then anticipated, and which included safety and first aid aspects. On New Year's Eve, 2001, she was assigned to cover the fires in the Shoalhaven district and drove to Nowra on the following morning. She attended at the local fire control centre where she met Brian Parry, who was the fire control officer in charge of the entire operation in the region. At times he was known by the title "incident controller". 15 It was Mr Parry's practice to conduct regular briefings, each morning, afternoon and evening. These briefings were intended for the personnel involved in fire fighting and fire control, but they served the dual purpose of informing members of the media, who were permitted to attend and report on what they learned. 16 By the evening of 1 January, Ms Peatling's first day in the area, she was aware of the main fire (the Manyana fire) and that it was threatening several small towns south of Nowra. She attended three briefings on the morning of 2 January, and thereafter, in company with a photographer, travelled to various locations where fire fighting was in progress. The following morning, 3 January, she and another photographer (Mr Paul Harris) visited a number of locations, spoke to local residents, and she began compiling a report. Early in the afternoon Ms Peatling and Mr Harris returned to Nowra and to the main fire control centre, where they attended a briefing. There they learned that the fire situation was considered likely to be severe in the Bendalong area. 17 At 8.00 am the following morning, 4 January, Ms Peatling, with Mr Harris, attended a further briefing which was, again, conducted by Mr Parry. Ms Peatling recorded, in shorthand, much of what was said by him. Her notes, which have been transcribed, indicate that Mr Parry advised that, at that time, the Bendalong fire was behind containment lines but that the weather was such that he anticipated a very awkward day. "The Bendalong fire" appears to be another way of referring to the Manyana fire. Mr Parry said that the fire had worsened during the night and the weather had produced very erratic conditions. Backburning was difficult. It is as well to quote verbatim, from the typescript of Ms Peatling's notes, what follows. The notes read: "near Bendalong Highway can't control it spread over the highway and can't control it caravan park owner refused to evacuate he did his own backburning and indicated he lost control of backburn he lit can't put firefighters too close to main front it tore through and wrecked the main strategy came into the Manyana fire we were trying to control that's not to say it would not have done that (but) how we're going to stop it now I can't say." 18 In oral evidence Ms Peatling recounted what Mr Parry had said as follows: "Mr Parry said that near the Bendalong Highway they couldn't control the fire. It had spread over the highway and they couldn't control it. There was a caravan park owner who refused to evacuate. He had done his own backburning and indicated he lost control of the backburn he lit. They couldn't put fire fighters in because it was too close to the main fire front, that fire had torn through, wrecked their main strategy and had come into the Manyana fire they were trying to control." (t 129) 19 After the briefing Ms Peatling, with Mr Harris, approached Mr Parry to ask for some expansion on what he had said about the caravan park owner. She did not record any answers given by Mr Parry to these questions. 20 After this, and after consultation with the news desk, Ms Peatling and Mr Harris decided to attempt to find the caravan park and the caravan park owner, in Ms Peatling's words: "...and to see if we could corroborate what we had been told in the briefing with whoever that person was." (t 132)

They decided to make their way to Bendalong. They had to do this by boat because the only road to the area was closed. A local fisherman transported them in his boat to Bendalong where they were able to borrow a car. However, en route to the caravan park they were turned back by a road block established either by police or special emergency services. They returned to Nowra. Ms Peatling travelled to Sydney that night to attend the funeral of a friend's mother. Mr Harris stayed in the area. 21 Before leaving Nowra, Ms Peatling wrote a story which she submitted to the news desk for publication. It was not in precisely the same form as that which appeared in the Sydney Morning Herald. Of significance in this respect are two passages in the article as published. Firstly, in Ms Peatling's draft, she did not identify either the caravan park in question, or its owner. Mr Zunter's name did not appear. Secondly, what appears in the paragraph numbered 9 did not appear. That is the paragraph in which Mr Zunter is said to have told "the Herald" he had started the backburn out of desperation because the fire was getting closer and the authorities were not going to come and help and that he was worried about being prosecuted. Just who decided to make those additions to the article is not known. But it was accepted that it was certainly an employee of Fairfax, either a sub-editor or a person employed on the news desk. 22 The source of that additional information was almost certainly Mr Harris. After Ms Peatling returned to Sydney, Mr Harris again travelled to the Rustic Caravan Park, and on this occasion he was successful in reaching his destination. There he met Mr Zunter and introduced himself. Mr Harris had a conversation with Mr Zunter which he related as: "We have heard this has happened, what's your side of the story?" (t 178)

to which Mr Zunter replied: "Yes, I did, but out of desperation. No-one was coming to help. I am all on my own here."

Not being a reporter, Mr Harris did not take notes of the conversation he had with Mr Zunter. 23 Mr Harris then, with the consent of Mr Zunter, took a number of photographs. Mr Zunter showed Mr Harris over the property, including the area where the backburn had been conducted. The photograph which accompanied the article was one of these. 24 Mr Harris made a note of Ms Peatling's name and mobile telephone number and handed this to Mr Zunter with the suggestion that he contact her. He said to Mr Zunter: "It is quite important that you tell your side of the story." (t 180)

He then departed, anxious to file his photographs. 25 The account given by Mr Harris is largely consistent with that given of the meeting by Mr Zunter, except for one matter, which gave rise to one of the few areas of factual dispute in the proceedings. During the course of re-examination, Mr Zunter said Mr Harris told him: "... that there was not a hurry to have the article printed." (t 73)

He said that he asked Mr Harris if the article would be published the following day, which Mr Harris said he doubted. 26 As to this, Mr Harris, when asked if he had stated anything to that effect, answered: "Far from that, actually. I would have said, 'I need to go, I am in a hurry, we are close to deadline. We are filing for tomorrow's paper.' We always file for the next day's paper and always tell people that's what we are doing." (t 180)

To the extent that this factual issue needs to be resolved, I think Mr Harris' version is more likely to be correct. 27 At about 9.30 am on 5 January (the Saturday, the day the article was printed, although that, apparently, was not then known to Mr Zunter) Mr Zunter telephoned Ms Peatling's mobile number that he had been given by Mr Harris. He explained to her who he was, and that Mr Harris had given him the telephone number. Ms Peatling said that she was driving, was en route to a funeral, and suggested that he might call back. Mr Zunter asked her to return his call, saying that his number would be recorded in her mobile phone. She did not ring back. There was no substantial discrepancy between the account of this contact given by Mr Zunter and the account given by Ms Peatling. 28 The foregoing is, I think, a sufficient outline of the factual material relevant to an assessment of the defences advanced on behalf of Fairfax. I turn now to a consideration of those defences.

qualified privilege: Defamation Act, s22 29 S22 of the Defamation Act provides for a defence of qualified privilege, relevantly in the following terms: "(1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (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 publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication.

(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.

(2A) In determining for the purposes of subsection (1) whether the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances, a court may take into account the following matters and such other matters as the court considers relevant: (a) the extent to which the matter published is of public concern, (b) the extent to which the matter published concerns the performance of the public functions or activities of the person, (c) the seriousness of any defamatory imputation carried by the matter published, (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (e) whether it was necessary in the circumstances for the matter published to be published expeditiously, (f) the sources of the information in the matter published and the integrity of those sources, (g) 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 publisher to obtain and publish a response from the person, (h) any other steps taken to verify the information in the matter published.

(3) ..." 30 There are three limbs to the defence of qualified privilege pursuant to s22, the onus of proving each of which lies upon the defendant. In this case it is not in issue that the article was published by Fairfax in circumstances where its intended and anticipated recipients had an interest, or apparent interest, in having information on its subject matter, that is, the general subject of the savage NSW bushfires of early 2002; nor that the article was published by Fairfax in the course of giving that information to those intended or anticipated recipients. The area of dispute is whether Fairfax's conduct in publishing those imputations was reasonable in the circumstances. If so, then Fairfax succeeds in its defence of qualified privilege.

the reasonableness of Fairfax' conduct: 31 I was referred to the decision of the Court of Appeal in Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374. At 387 Hunt AJA identified a series of propositions concerning the s22(1)(c) requirement of reasonableness. These were: "(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. ... (2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro 's case (1989) 20 NSWLR 493 and perhaps also that discussed in Collins v Ryan [(1991) 6 VR 229]) have believed in the truth of that imputation. (3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish: (a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and (b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed. If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s22(1)(c) as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood [ internal references omitted ]. (4) The defendant must also establish: (a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources; (b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained; (c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and (d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers. The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one: [ internal references omitted ]. It is necessary to keep in mind that each of the matters referred to in par (4) are relevant to the reasonableness of the defendant's conduct; they do not raise questions independently of that issue. ..." (pp 387 - 388) 32 Although Hunt AJA's statement of principle and the statutory guidelines catalogued in s22(2A) are not entirely co-extensive, Morgan was decided before sub-s(2A) found its way into the Defamation Act (which it did with effect from 17 February 2003). I do not discern any tension between the two. The latter is, perhaps, more expansive than the statement made by Hunt AJA, but is not, in my opinion, in any way in conflict with it. 33 One matter considered relevant in Hunt AJA's analysis, but not replicated in sub-s(2A), concerns the defendant's intention (or otherwise) to convey the imputation(s) and his/her/its belief in the truth of the imputation. Where the defendant is a corporation sought to be made vicariously liable for the publication of defamatory imputations by its agents, the relevant state of mind is that of the agent who in fact was responsible for the publication. In respect of the intention to convey either of the imputations here under consideration, the evidence is contradictory. In answers to interrogatories administered to Fairfax on behalf of Mr Zunter, Fairfax denied intending to convey either of the imputations found by the jury in fact to have been conveyed. However, Ms Peatling, in her evidence, said clearly that she had intended to convey both imputations; and that she had no reason to doubt that each was true. This answer has to be seen in the context of evidence otherwise given by Ms Peatling, that, at the time she wrote the story, she did not know the name of the owner or manager of the caravan park. (Even the latter, that is, her knowledge of the name of the caravan park, is not unambiguous in the evidence. Just when she became aware of that fact is not clear. It is probably of very little moment.) The fact is, what Ms Peatling intended to convey were imputations concerning a then unidentified (in her mind) person. As she said, the information she was given came from a reputable source (Mr Parry) and one who, she was entitled to assume, was well informed. Thus, to the extent that it can reasonably be held that Ms Peatling intended to convey either imputation of Mr Zunter, I accept that she did believe in its truth. 34 In relation to the assessment of the reasonableness of Fairfax's conduct in publishing the imputations, senior counsel pointed to the dramatic circumstances that existed at the time. It is true, as was pointed out, Ms Peatling did make an attempt - an attempt which involved considerable initiative and effort on her part, and perhaps even exposed her to danger - to put Mr Parry's allegations to Mr Zunter, but, by reason of the exigencies of the situation that existed, she was unable to make contact with him. It was therefore argued that she had done all that was reasonably available to her to verify what she had been told by Mr Parry, and that it was reasonable for her, in those circumstances, to rely upon what Mr Parry had said. 35 So much might be accepted. But the argument left out of account one significant feature. Ms Peatling did not include in her story the name either of the caravan park or of Mr Zunter. This was a deliberate, considered decision on her part. Precisely why this was so is also a matter of some confusion. At one point, when asked why she omitted the names, she answered: "I might not have confirmed it by the point that I wrote the story. I might have been cautious about putting it in at that point." (t 135)

It is possible that what Ms Peatling meant by "it" was the information she had been given by Mr Parry. But it is more likely, in my opinion, that what Ms Peatling meant by "it" was that the caravan park in question was the Rustic Caravan Park. It is very likely that, by the time she filed her report, she suspected or believed that the caravan park to which Mr Parry had referred was the Rustic Caravan Park. It is also very likely that at that time she did not know the name of its owner (or manager). At another point, Ms Peatling said that she had tried to telephone the caravan park, clearly implying that she had access to the name of the Rustic Caravan Park at least, even if not the name of the proprietor. What she did not then have was confirmation that this was the caravan park of which Mr Parry had spoken. In cross-examination she agreed that "correct and proper journalistic practice" required that a person of whom allegations are made should be given an opportunity to reply to those allegations before they are published, and that her inability to do this was one reason why she did not include Mr Zunter's name in her article. 36 Each imputation conveyed by the article was very serious. In part, the gravity of the imputations derived from the circumstances that existed at the time, and the context in which they were published: that is, at a time when the area was under severe threat from bushfires. The impact of the allegation that Mr Zunter had lost control of a backburn, and of the allegation that he had wrecked the strategy of RFS, escalated for that reason. Proper journalistic practice, as Ms Peatling recognised, required caution before publishing such allegations, particularly, in those circumstances and in that context. 37 Senior counsel also made this point concerning reasonableness. Let it be assumed, he argued, that Ms Peatling had been able to contact Mr Zunter and had put to him the allegations made by Mr Parry. He accepted that Mr Zunter could have been in a position to confirm or deny the truth of the first imputation, that he had lost control of his backburn; but he did not accept that Mr Zunter could have contributed anything of value with respect to the accuracy of the second, that he had wrecked the strategy of the RFS. In other words, at least as far as the second imputation was concerned, contacting Mr Zunter would have been a fruitless, pointless, exercise. 38 I can accept that it was unlikely that Mr Zunter could have had any real information about the strategy of the RSF, and therefore it was unlikely that he could have thrown any light upon that question. But it is not possible to know what Mr Zunter might have been able to say. It is now known that he not only denies having lost control of the backburn, but claims (in a manner upon which he was not challenged) that the backburn achieved its purpose. It is of some significance that Fairfax did not attempt to justify either imputation. What might have happened, or what he might have said, had Mr Zunter been given an opportunity to respond to the allegations, is a matter of speculation. However, if Ms Peatling had been told that Mr Zunter denied having lost control of the backburn, it may well be that she would have returned to Mr Parry, or some other person involved with the RSF, in order to ascertain with more particularity the basis of the claim that he had wrecked the RFS's main strategy. The mere fact that Mr Zunter could not be presumed to be familiar with what the strategy was, and therefore whether or not it had been destroyed, is not a complete answer to the proposition that reasonable conduct demanded that Mr Zunter be given an opportunity to reply before the publication of such serious imputations about him. 39 Senior counsel also argued that there was nothing unreasonable about the addition of material to Ms Peatling's copy, by persons unknown on the news desk. What was added was the paragraph numbered 9, of which Mr Harris was obviously the source, and the name of the caravan park and of Mr Zunter, of which Mr Harris was probably also the source. There is no need to take time in relation to paragraph 9; it in no way added to the defamation and does not bear in any significant way upon the present issues (although it does, of course, represent some slight amelioration of the accusations made against Mr Zunter, by presenting his account of the desperate situation in which he found himself.) 40 But I cannot accept the proposition that there was nothing unreasonable about the addition of the names, in circumstances where Mr Zunter had, for good reason or bad, been given no opportunity of putting his position. The fact that it was difficult to give him that opportunity does not affect the position that two serious imputations were published of him. To have withheld identification of the person and the place concerned would not have affected the integrity of the article, or its news value. The story would have lost nothing of substance by being published without identification. It would not have been necessary to delay publication of what was obviously a significant item of news, and one which Fairfax obviously would have wished to publish with expedition. (Whether the publication of the article without the names might have led to proceedings in defamation raising the additional issue of identification is a matter of speculation, and does not affect the present determination.) 41 In my opinion, the position adopted by Ms Peatling was the correct and reasonable one: unreasonableness crept in when some unidentified employee of Fairfax decided to identify Mr Zunter and his caravan park. 42 I reject the defence of qualified privilege.

contextual truth 43 Provision is made for a defence of contextual truth in s16 of the Defamation Act, which is in the following terms: "(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." 44 Fairfax pleads that two contextual imputations were conveyed by the article; that each imputation pleaded by Mr Zunter related to matters of public interest or was published under qualified privilege; that each contextual imputation related to matters of public interest or was published under qualified privilege; and that each contextual imputation was a matter of substantial truth; and that, by reason of the substantial truth of the contextual imputations, the publication of the imputations of which Mr Zunter complains did not further injure his reputation. The two contextual imputations on which Fairfax relies were: "A. [Mr Zunter] carried out an illegal backburn"; "B. [Mr Zunter] carried out an illegal backburn in circumstances of extreme fire danger." 45 The questions which arise where a defence of contextual truth is pleaded are the following:

(i) does any one (or do any more) of the imputations pleaded by the plaintiff relate to a matter of public interest?; alternatively, was any one (or were any more) of those imputations published under qualified privilege?; (ii) if so, was any one (or were any more) of the imputations pleaded by the defendant as having been published contextually to the imputations pleaded by the plaintiff conveyed by the matter complained of?; (iii) if so, was any one (or were any more) of such imputations defamatory of the plaintiff?; (iv) in respect of any contextual imputation found to have been conveyed and to be defamatory of the plaintiff, did any one (or any more) of those imputations relate to a matter of public interest?; alternatively, was any one (or were any more) of such imputations published under qualified privilege?; (v) if so, was any such imputation a matter of substantial truth?; (vi) if so, does the substantial truth of any such contextual imputation have the consequence that publication of the imputation complained of by the plaintiff does not further injure his/her/its reputation? 46 In the present case, most of these questions can be answered quickly and simply and in favour of Fairfax. I have rejected the proposition that the imputations pleaded by Mr Zunter were published under qualified privilege. However, there is not the slightest doubt that they related to a matter of public interest. The first question is answered favourably to Fairfax. The next question is whether either of the contextual imputations pleaded by Fairfax was in fact conveyed. Counsel for Mr Zunter conceded that the first was conveyed, and that it was a matter of substantial truth. I am satisfied also that the second was conveyed, and was also a matter of substantial truth. I am not satisfied that either was published under qualified privilege, but I am satisfied that each related to a matter of public interest. 47 Accordingly, the substantial question in relation to the defence of contextual truth is whether, by reason of the substantial truth of these imputations, or either of them, the imputations pleaded by Mr Zunter did not further injure his reputation. The correct approach to this question was determined (by majority) by the Court of Appeal in John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake [2001] NSWCA 434; 53 NSWLR 541. 48 There Spigelman CJ wrote (with the concurrence of Rolfe AJA): "5. Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a 'matter of substantial truth'. It is 'by reason' of such 'substantial truth' that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not 'further injure the reputation of the plaintiff'. For purposes of determining whether the s16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself ." (underlining in original; italics added) 49 What, then, are the "facts, matters and circumstances" which establish the truth of each of the contextual imputations? Contrary to the argument put on behalf of Mr Zunter, in my opinion those facts, matters and circumstances are within a relatively narrow compass. They do not include all of the facts, matters and circumstances surrounding Mr Zunter's decision to light the backburn. The truth of the first contextual imputation, that he lit an illegal backburn, is established by the indisputable evidence that he lit the backburn at a time when a total fire ban was in force. As a (conceded) matter of law that backburn was illegal. The truth of the second contextual imputation, that he did so in circumstances of extreme fire danger, is established by the evidence that the main fire was advancing towards his property, and that fires were rampant in the locality. 50 Counsel for Mr Zunter sought to include in this assessment the evidence that Mr Zunter had lit the backburn "only in desperation", at a time when the caravan park was in immediate danger of being burnt to the ground, that lives were at risk, that the fire was lit only when the wind had changed so that the backburn could be expected to burn in the direction of the main fire. Obviously, the circumstance of danger to the caravan park and to lives is relevant to the establishment of the truth of the second part of contextual imputation B, but I reject the proposition that Mr Zunter's motivation for lighting the backburn, or the change in wind direction, are relevant to establishing the truth of either contextual imputation. Motivation proves an explanation, and sometimes even an excuse, and it may, depending upon the circumstances, provide evidence from which an inference on the basis of which the truth of a defamatory imputation may be established, but that is not this case. It does not, here, assist in the s16(2)(c) task. 51 S16(2)(c) involves the weighing of the imputations pleaded by Mr Zunter against the contextual imputations I have found to have been conveyed and to be substantially true. Each of the imputations pleaded by Mr Zunter must be considered separately. 52 Both counsel, in the course of their addresses, used the familiar term "swamping" in relation to the s16(2)(c) exercise. Neither counsel was able to pinpoint the source of this expression in this context. The authorities in relation to s16(2)(c) tend to be authorities decided in relation to pre-trial or interlocutory matters: see, for example, Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36; Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386; Waterhouse v Hickie (1995) Aust Torts Report 81-347. The explanation for this probably lies in the circumstance that, until amendments to the Defamation Act in 1995, the defence of contextual truth was a matter decided by a jury. Whether or not that be the correct explanation, neither counsel was able to point to any authority to the effect that, in order to succeed in a defence under s16, s16(2)(c) requires that a defendant establish that the contextual imputations "swamp" the imputation or imputations pleaded by the plaintiff. In saying this, I am conscious that, in Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503, I used the word (and the concept) "overwhelm". It may be that this overstates what a defendant has to prove. In my opinion, there is no reason to depart from the words of the section; s16(2)(c) should be given its literal interpretation: the seriousness of each imputation pleaded by the plaintiff is to be balanced against the seriousness (in accordance with Blake) of the facts, matters and circumstances that establish the truth of the contextual imputations. Where the contextual imputations proven to be true are of a gravity equal to, or greater than, any imputations pleaded by the plaintiff, one result may be that the imputations pleaded by the plaintiff will not further damage his /her /its reputation. It may be that, where the contextual imputations are to do with subject matter wholly unrelated to those pleaded by the plaintiff, relative gravity assumes a lesser role, and the diverse impact of the imputation is of greater significance. 53 Obviously, the two contextual imputations are of very serious misconduct by Mr Zunter. In the first it is alleged that he ignited an illegal backburn; in the second, that he did so in circumstances of extreme fire danger. 54 However, they are not more serious than, and in my opinion they are not of equal gravity to, either of the imputations pleaded by Mr Zunter. It is legitimate in assessing the gravity and the impact of imputations, to bear in mind the context in which they were published. While NSW was under serious bushfire threat, Mr Zunter was acused of losing control of his backburn; and he was accused of wrecking the main fire strategy of the RFS; the latter, in particular, in the circumstances that appertained, is an imputation of the utmost gravity. I cannot conclude that, by reason of the facts, matters and circumstances that establish that Mr Zunter lit an illegal backburn, and/or that he did so in circumstances of extreme fire danger, either an imputation that he lost control of the backburn, or the more serious imputation that he wrecked the main strategy of the RFS, does not further injure his reputation. 55 I reject the defence of contextual truth.

inter-state defences 56 Fairfax has, in response to Mr Zunter's claim that the imputations were published throughout the Commonwealth of Australia, raised a series of defences available in other states and territories. 57 In relation to Queensland and Tasmania, Fairfax pleads the defence commonly known as "a Polly Peck" defence: that is, a defence founded upon the decision in Polly Peck Holdings plc v Trelford [1986] QB 1000. Senior counsel formally submitted that this defence is available in each of those states, but acknowledged that a decision of the Queensland Court of Appeal has held to the contrary: Robinson v Laws [2001] QCA 122, unreported, 6 April 2001, at [44]. While this decision is not, strictly, binding upon me, senior counsel accepted that, as a matter of judicial comity I would follow it, and I take the same view. I note the submission, but reject the "Polly Peck" defence pleaded in relation both to Queensland and to Tasmania. In relation to each of those states, Fairfax has also pleaded a defence of "qualified protection/excuse" (Queensland Defamation Act 1889, s16) or "qualified protection" (Defamation Act 1957 (Tas) s16). In each case, s16(1)(e) is (in slightly different terms but in substance identically) a statutory variant of the defence of qualified privilege under s22 of the Act. The Tasmanian section relevantly provides: "(1) It is a lawful excuse for the publication of defamatory matter if the publication is made in good faith - (e) for the purpose of giving information to the person to whom it is made with respect to a subject as to which that person has, or is reasonably believed by the person who makes the publication to have, such an interest in knowing the truth as to make the last mentioned person's conduct in making the publication reasonable in the circumstances;" 58 There is no reason to treat these defences differently from the way I have approached the s22 defence. I reject these inter-state defences. 59 A further qualified protection defence, provided for by s16(1)(h) in each of those statutes, was also pleaded. Those sub-paragraphs provide for a defence of a publication made in good faith: "in the course of, or for the purposes of, the discussion of a subject of public interest the public discussion of which is for the public benefit" (Tasmanian statue, the Queensland statue is relevantly similar.)

No argument was addressed to either of these defences, perhaps because they are so plainly untenable. I reject them. 60 In addition, in relation to the publication in Victoria, South Australia, Western Australia, the Northern Territory and the Australian Capital Territory, Fairfax has pleaded a defence of qualified privilege at common law. In Vilo v John Fairfax & Sons Ltd & Anor [2000] NSWSC 937, unreported, 6 October 2002, I reviewed the authorities in relation to the availability of the defence of qualified privilege at common law to "mass media" publications and concluded that it is so available only in exceptional circumstances (which do not here exist). That decision was upheld in the Court of Appeal: John Fairfax & Sons Ltd & Anor v Vilo [2001] NSWCA 290; 52 NSWLR 373. I reject these defences. 61 In relation to those states and territories, also, Fairfax pleads a variant of the "Polly Peck" defence. These pleas are that the article conveyed a single additional imputation, framed as follows: "The plaintiff carried out an illegal backburn in circumstances of extreme fire danger." 62 It is unnecessary to take time considering whether such a defence is available. Even if it were, for reasons I have given in relation to the defence under s16 of the NSW Act, it must be rejected. 63 As was conceded, the decisions in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24, unreported, 9 March 2000, and Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82, unreported, 15 March 2005, make it very difficult for Fairfax to succeed in this defence. It could do so only if I declined (as I decline to do) to follow the decisions of appellate courts in other states of Australia. 64 Accordingly, all inter-state defences must fail. 65 The result is that Mr Zunter is entitled to an award of damages.

DAMAGES 66 In answers to interrogatories Fairfax estimated the sales of the Sydney Morning Herald of 5-6 January 2002 as 357,265 in NSW, and 18,591 in the other states and territories; and estimated its readership in NSW as 1,290,000. 67 Mr Zunter learned of the article on the day of its publication, Saturday 5 January, when he called on a neighbour to ascertain his welfare (after having been interviewed by police). The neighbour showed him the newspaper. Mr Zunter was very upset and very angry about the article and immediately understood the harm it would do to his reputation and his business. He said: "I just felt disgust ..." 68 He said that he was aware of the extent of circulation of the Sydney Morning Herald and feared that its publication would impact upon his position in the tourism industry. He said he felt sick in the stomach, and two or three days later he collapsed and almost had a nervous breakdown. He was aware that at least the first imputation was untrue and this added to his feeling of outrage. 69 Following the article a number of people telephoned him or spoke to him in person, repeating what had been contained in the article. Others shunned him during casual encounters. He had difficulty in dealing with the local council and with the National Parks and Wildlife Service. He previously had received many social invitations, but experienced a dramatic decrease in this respect. 70 He had been involved as a local historian and had had something of a profile in the local area, having been involved in historical associations, and having published on historical subjects in local newspapers, but he now sensed that others no longer wished to associate with him. He believed that his physical health had suffered as a consequence of the publication. 71 In cross-examination Mr Zunter was asked about certain convictions in the Local Court. The first of these occurred in August 1987. In my opinion, it is not capable of affecting his reputation in 2002. 72 In April 2001 he was convicted of possessing a prohibited drug (cannabis) which he smoked on occasions. There was no evidence that this was widely known in such a way as to affect his reputation. A third conviction was of driving with the prescribed concentration of alcohol, at mid-range level, which occurred in 2004 and is obviously not capable of affecting his reputation in 2002. 73 Counsel for Fairfax submitted that, as no evidence had been called of Mr Zunter's pre-publication reputation, I should not proceed on the basis that his reputation was good. However, I am satisfied that it is not necessary to adduce such evidence. 74 Mr Zunter has claimed, as well as compensatory damages, aggravated damages. These were particularised as being available to him by reason of his knowledge of the falsity of the imputations. Evidence was also adduced that Fairfax had failed to apologise. 75 In Cotter I considered the circumstances in which aggravated damages may be awarded. On the authority of Clark v Ainsworth (1996) 40 NSWLR 463, I concluded that only unjustifiable or improper conduct by a defendant can be taken into account in awarding aggravated damages. I do not consider that Fairfax's conduct was unjustifiable or improper in the sense contemplated in that case. Failure to apologise can be relevant to the award of compensatory damages. This, however, affects my assessment in only the most minimal way. 76 In the assessment of compensatory damages s46A(1) directs me to: "... ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded." S46A(2) requires me to take into account: "...the general range of damages for non-economic loss in personal injury awards in the State ..." 77 Apart from the obvious and inherent difficulty of the application of this sub-section, I was provided with no material on which to take such awards of damages into consideration. I will therefore do my best to assess the damages that should be awarded to Mr Zunter in the absence of such material. 78 Two matters of relevance to the assessment of damages may be mentioned. Each has to do with the impact of the publication on Mr Zunter's reputation. The first is the publication in a reasonably prominent position in the weekend edition of the newspaper, accompanied by a striking coloured photograph of Mr Zunter, but with bushfire evident in the background. The photograph could not but have attracted the attention of readers, and drawn their eyes to the article. 79 The second matter concerns the historical circumstances in which the article was published. It is unnecessary to repeat what I have earlier said about the bushfire threat, and media attention devoted to it, at and around the time of publication. Inevitably, at a time and in circumstances such as that, imputations of fire vandalism, or fire carelessness, would attract an enhanced response from the ordinary recipient. 80 I have concluded that the appropriate sum to compensate him for the damage done to his reputation is $100,000. 81 The orders I make are:

(i) verdict for the plaintiff in the sum of $100,000;

(ii) the defendant is to pay the plaintiff's costs of the proceedings.

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

Defamation Act 1974(NSW)

Defamation Act 1889(Qld)

Defamation Act 1957(Tas)

(Defamation Act 1957(Tas)

CITATION : Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759

Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82, unreported, 15 March 2005 Clark v Ainsworth (1996) 40 NSWLR 463 Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503, unreported, 22 July 2003 David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24, unreported, 9 March 2000 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36 CASES CITED : John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake [2001] NSWCA 434; 53 NSWLR 541 John Fairfax & Sons Ltd & Anor v Vilo [2001] NSWCA 290; 52 NSWLR 373 Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 Polly Peck Holdings plc v Trelford [1986] QB 1000 Robinson v Laws [2001] QCA 122, unreported, 6 April 2001 Vilo v John Fairfax & Sons Ltd & Anor [2000] NSWSC 937, unreported, 6 October 2002 Waterhouse v Hickie (1995) Aust Torts Report 62,486 (81-347)

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (12)