Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd

1. [1]

   BEAZLEY P: I have had the opportunity of reading in draft the reasons of McColl JA and Simpson AJA. My short note assumes a familiarity with the reasons of McColl JA.

2. [2]

   I agree with McColl JA that the ‘Digital appeal’ should be dismissed with costs. However, I have concluded that the Poster did not convey the imputations pleaded. In that regard, I agree with the reasons of Simpson AJA. I agree with the orders proposed by Simpson AJA.

3. [3]

   McCOLL JA: The appellants, Mr Anthony Cummings and Anthony Cummings Thoroughbreds Pty Ltd (Cummings Thoroughbreds), brought defamation proceedings against the respondents, Fairfax Digital Australia & New Zealand Pty Ltd (Fairfax Digital) and The Age Company Ltd (The Age) in respect of three articles published on 25 February 2010 on their respective websites (Digital proceedings). [1] Mr Cummings also brought defamation proceedings against Fairfax Media Publications Pty Ltd (Fairfax Media) and journalist Kate Lahey, in respect of a poster advertising an article which was published in the Sydney Morning Herald also on 25 February 2010 and also in respect of the article itself (Print proceedings). [2] The proceedings were commenced in the Supreme Court of the Australian Capital Territory but were transferred to the Supreme Court of New South Wales by consent. [3]

4. [4]

   The Digital and Print proceedings were heard together by Rothman J on liability only. His Honour entered judgment for Fairfax in the Digital proceedings. In the Print proceedings, his Honour gave judgment for Mr Cummings against Fairfax in relation to the Poster publication, but otherwise, gave judgment for the defendants. [4] He reserved the issue of damages. He also reserved the issue of costs, to be resolved after conclusion of the damages proceedings. [5]

5. [5]

   By notice of appeal filed on 25 August 2017, the appellants appeal pursuant to s 101 of the Supreme Court Act 1970 (NSW) against the reasons and judgment of Rothman J of 26 May 2017 in relation to the Digital proceedings (Digital appeal).

6. [6]

   By summons seeking leave to appeal filed on 20 November 2017, Mr Cummings seeks leave to appeal from that part of the primary judge’s decision in the Print proceedings giving judgment for Fairfax (Print appeal). Fairfax has filed a cross-summons seeking leave to cross-appeal in the Print appeal against order 3 giving judgment for Mr Cummings in relation to the Poster.

7. [7]

   For the reasons that follow, I would dismiss the Digital appeal with costs, grant Mr Cummings leave to appeal in the Print appeal, and allow that appeal in part, but make no order as to costs. I would also grant Fairfax leave to cross-appeal in the Print appeal but, save for setting aside the judgment against Ms Lahey, otherwise dismiss the cross-appeal with costs.

Factual background

1. [8]

   Mr Cummings and his company Cummings Thoroughbreds train thoroughbred racehorses.

2. [9]

   On 16 April 2009, one of Mr Cummings’ companies, Something Fast Pty Ltd (Something Fast), sued Nathan Tinkler’s company Patinack Farm Pty Ltd (Patinack Farm) in the District Court of New South Wales to recover a debt of $167,492.87, plus interest, said to be owing for unpaid invoices (debt-recovery proceedings). [6] In November 2009, the debt-recovery proceedings were transferred to the Supreme Court by consent because the value of Patinack Farm’s cross-claim exceeded the jurisdictional limit of the District Court. At the time they were transferred, all the pleadings referred to in the matters complained of had been filed.

3. [10]

   The procedural history of the debt-recovery proceedings is set out by the primary judge at [9] – [23] and is generally unnecessary to repeat. In short, Patinack Farm defended the proceedings by denying that Something Fast provided services or undertook the work for which the parties had contracted or for which it had been invoiced. It also cross-claimed against Something Fast, Mr Cummings and Cummings Thoroughbreds claiming, among other matters, that the cross-defendants had breached various duties they owed Patinack Farm. [7]

4. [11]

   The relevance of the debt-recovery proceedings to the present appeal is primarily Fairfax’s use of paragraph 17 of the cross-claim which alleged, as summarised by the primary judge: [8]

5. [12]

   The cross-defendants filed defences to the cross-claim in which they either denied, or did not admit, the critical allegations. [9]

6. [13]

   Prior to the publication of the matters complained of, Ms Lahey, a journalist assigned to the business section of the Sydney Morning Herald, applied to the Registry of the Supreme Court pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.12(2)(b), for access to the statement of claim and defence in the debt-recovery proceedings. She did so after seeing Mr Cummings’ name in the Supreme Court daily court list. [10] Access was granted. In addition to the two pleadings that Ms Lahey had sought to see, the file also contained the cross-claim and the defence to the cross-claim (further pleadings). [11] Ms Lahey wrote the first, second, third and fifth impugned publications based upon notes she took while reading the pleadings. [12] She was not permitted to photocopy the documents. [13] She did not write the headline or captions or choose the photograph of Mr Cummings which was used. Otherwise, Ms Lahey wrote all publications complained of, except the Poster.

7. [14]

   The matters complained of in the Digital Proceedings as described by the primary judge were:

   1. (1)

      “Cummings in $6.4m Fight Over Broken-Down Racehorses”, published by Fairfax Digital on 25 February 2010 on two websites (www.smh.com.au and www.brisbanetimes.com.au) (the first impugned matter complained of) – Schedule A to the statement of claim.

   2. (2)

      “Tinkler, Trainer in Stoush”, published by Fairfax Digital on 25 February 2010 on one website (www.theage.com.au) (the second impugned matter complained of) – Schedule B to the statement of claim.

   3. (3)

      “Tinkler, Trainer in Stoush”, published in the the Age, also on 25 February 2010 (the third impugned matter complained of) – Schedule C to the statement of claim.” [14]

8. [15]

   In the Print proceedings the matters complained of were described by the primary judge as:

   1. (1)

      A bill poster “headline” advertising The Sydney Morning Herald using the words “CUMMINGS FIGHTING CRUELTY CLAIMS”, published by Fairfax Media and Fairfax Printers on 25 February 2010 (the fourth impugned publication) – Schedule A to the amended statement of claim.

   2. (2)

      An article by Ms Lahey which was published in the Sydney Morning Herald on 25 February 2010 in its print version (the fifth impugned publication) – Schedule B to the amended statement of claim. [15]

9. [16]

   Following Fairfax’s publication of the digital matters complained of, other media outlets picked up the first two impugned publications and, Mr Cummings alleged, republished them. In the Digital proceedings, Mr Cummings alleged that the first impugned digital publication was republished on the websites of the Racing Post, Thoroughbred News and Breednet and that the second impugned digital publication was republished in the New Zealand Herald. [16] In the Print proceedings, Mr Cummings also alleged the fifth impugned publication had been republished on Racing Post, Thoroughbred News and Breednet. He alleged Fairfax was responsible for all the republications.

Digital proceedings

1. [17]

   As described by the primary judge the three digital publications were substantially the same as the fifth impugned publication, [17] albeit with different headlines, one common to the first and fifth publications and another to the second and third respectively. There were also layout differences between each of the digital publications. In these reasons, I refer to the three digital publications as the matters complained of. I refer to the fourth impugned publication as the “Poster”.

2. [18]

   The plaintiffs contended the matters complained of conveyed numerous imputations. The imputations in relation Mr Cummings and all the digital publications, the Poster publications and the fifth impugned publication were, with minor exceptions, the same, albeit that they were sometimes sourced to different paragraphs. Accordingly, it is convenient to set them out once.

3. [19]

   Curiously, however, the parties were different. Mr Cummings and Cummings Thoroughbreds sued in relation to the three digital publications, but only Mr Cummings sued in relation to the fifth impugned publication. There was no issue that if the imputations complained of in the Digital and Print proceedings were carried, they were defamatory of each plaintiff.

4. [20]

   Mr Cummings alleged that the first, third and fifth impugned publications conveyed the following defamatory imputations or meanings not differing in substance of and concerning him:

5. [21]

   Cummings Thoroughbreds alleged the first to third impugned publications conveyed the following meanings or meanings not differing in substance:

6. [22]

   In their defences, Fairfax pleaded that each of the matters complained of, and each republication, was published on an occasion of qualified privilege at common law, or pursuant to s 30 of the 2005 Act. They also contended that each was a fair summary of public documents pursuant to s 28(1)(b) of the 2005 Act.

7. [23]

   In their reply, the plaintiffs relevantly pleaded that the matters complained of were not “published honestly for the information of the public”: s 28(3), 2005 Act.

Print proceedings

1. [24]

   In the Print proceedings, Mr Cummings alleged that the Poster in its natural and ordinary meaning conveyed the following defamatory imputations or meanings not differing in substance of and concerning him:

2. [25]

   He relied upon the following particulars, both as particulars of identification and as extrinsic facts said to support his imputations as true innuendos, to the extent they were found not to be conveyed by the first impugned publication in its natural and ordinary meaning:

3. [26]

   The particulars of identification stated:

4. [27]

   As in the Digital proceedings, there was no issue that if the imputations pleaded in the Print proceedings were conveyed, they were defamatory.

5. [28]

   In its defence to the Poster proceedings, Fairfax pleaded it was published on an occasion of qualified privilege at common law, or pursuant to s 30 of the 2005 Act. It also contended that it was a fair summary of public documents pursuant to s 28(1)(b) of the 2005 Act.

6. [29]

   Insofar as the fifth impugned publication was concerned, Fairfax again pleaded it was published on an occasion of qualified privilege at common law, or pursuant to s 30 of the 2005 Act. They also contended that it was a fair summary of public documents pursuant to s 28(1)(b) of the 2005 Act.

7. [30]

   In his reply, Mr Cummings relied on the s 28(3) defeasance as he had in the Digital proceedings.

Primary judgment

1. [31]

   After setting out the background to the proceedings, the primary judge held that Cummings Thoroughbreds had standing to sue for defamation, as it employed fewer than 10 persons and was not related to another corporation. Accordingly it was an excluded corporation within the meaning of that expression in s 9 of the 2005 Act. [18] There was no challenge to that finding.

2. [32]

   The primary judge next held that Fairfax was not liable for the republications. His Honour held that, although republication of the impugned publication was likely, [19] the republications were not the natural and probable consequence of the original publication. [20] The republications were not intended by Fairfax [21] and each republication was subject to an independent decision-making process to publish the material. [22] His Honour held: [23]

3. [33]

   The appellants challenge this decision.

4. [34]

   Identification arose as an issue in relation to the Poster, which merely stated “CUMMINGS FIGHTING CRUELTY CLAIMS”. The issue was whether the ordinary reasonable reader would have read the Poster to refer to the plaintiff, rather than, for example, to his famous father, Mr Bart Cummings. [24]

5. [35]

   The primary judge accepted evidence from the horse trainer, Neville Begg, that he had identified Mr Anthony Cummings as referred to in the Poster because it was fairly widely known that the plaintiff “was having a difference with one of his clients.” [25]

6. [36]

   Mr Bryan Rutter (who saw the Poster while driving along Clovelly Road) also identified the plaintiff. He said, “when the media referred to Mr Bart Cummings, it always called him ‘Bart Cummings’ and not ‘Cummings’.” [26] There was evidence of a number of occasions when Fairfax had referred to Mr Cummings, “in recent time, prior to the publications that have been impugned, as ‘Cummings’.” [27]

7. [37]

   The primary judge ultimately concluded that, “the terminology ‘Cummings’ is such as would reasonably lead at least one person acquainted with Mr Anthony Cummings to believe that he was the person to whom the Poster refers. The Poster identifies the individual plaintiff.” [28] His Honour’s conclusion was presumably founded on Mr Begg’s evidence, but he also accepted Mr Rutter’s evidence too.

8. [38]

   In this respect, his Honour held there “does not seem to be any basis upon which the Court could take the view that the evidence of Mr Rutter should be disbelieved or that the differentiation, as he perceived it, is not accurate. In those circumstances, the identification by Mr Rutter is reasonable.” [29]

9. [39]

   Fairfax challenges this decision.

10. [40]

    The primary judge then turned to the “defamatory meaning”. Although his Honour had held the plaintiffs had failed on the republication issue, his Honour first considered the articles the plaintiffs relied upon as republications. [30] It is unnecessary to repeat this aspect of his Honour’s reasons.

11. [41]

    The primary judge then turned to the question whether the imputations were carried by the matters complained of other than the Poster. His Honour did not set out the imputations of which Mr Cummings and Cummings Thoroughbreds complained in his reasons. Regrettably, his Honour made inconsistent decisions about whether the imputations relied on in the Digital proceedings were conveyed.

12. [42]

    His Honour first considered whether the matters complained of conveyed imputations in relation to Cummings Thoroughbreds. In this respect, his Honour held:

13. [43]

    His Honour next appears to have considered the position insofar as Mr Cummings was concerned. He said:

14. [44]

    His Honour then said:

15. [45]

    The primary judge then considered the s 28 issue. [31] In dealing with the s 28 defence, his Honour appeared to hold that each of the imputations about which the plaintiffs complained in the Digital proceedings and in relation to the fifth impugned publication was carried.

16. [46]

    The primary judge held that the pleadings in the debt-recovery proceedings were “public documents”, being documents open for inspection to the public, and that the impugned publications were fair reports of them. [32]

17. [47]

    The primary judge identified the test as to whether the s 28 defence was established as being:

18. [48]

    Later (and in apparent contrast to his findings about the imputations insofar as the two plaintiffs in the Digital proceedings were concerned), [33] his Honour said:

19. [49]

    In a section of his reasons dealing with the question whether the matters complained of other than the Poster were a fair summary for the purposes of s 28, his Honour said:

20. [50]

    It would appear, and Mr Cummings contends this to be the case, that in paragraphs [104] – [108], the primary judge found all but imputations (e) and (k) pleaded in the Digital proceedings were conveyed. [34]

21. [51]

    The primary judge then reviewed the pleadings in the debt-recovery proceedings. He identified some discrepancies between the pleadings and the impugned publications, but said the pleadings had to be “read as a whole”. [35]

22. [52]

    His Honour also used a table prepared by the respondents which cross-referenced paragraphs of the fifth impugned publication to the relevant part of the debt-recovery proceedings pleadings.

23. [53]

    His Honour found:

24. [54]

    His Honour then considered the remaining s 28 issue whether the pleadings were “a public document”. There was no controversy that the pleadings were documents kept by an Australian court. The critical issue was whether they were “open to inspection by the public”.

25. [55]

    In the course of considering that issue, the primary judge held that “[t]he interest in open justice will, almost invariably, be a sufficient interest” for the purposes of UCPR r 36.12(2)(b), [36] and that the capacity of the Court to disallow inspection did not “negate the ordinary rule that pleadings remain open for inspection by the public.” [37]

26. [56]

    His Honour held:

27. [57]

    In reasons to which I will come, the primary judge also held that the plaintiffs had failed to establish the matters of defeasance in s 28(3) of the 2005 Act. [38]

28. [58]

    The effect of these rulings was that Fairfax had established a defence to all the impugned publications other than the Poster.

29. [59]

    On the assumption that the primary judge held all the imputations were conveyed by the matters complained of, Fairfax challenges this conclusion. Mr Cummings and Cummings Thoroughbreds challenge the conclusion that Fairfax established the s 28 defence insofar as the matters complained of were concerned.

30. [60]

    At this stage, the primary judge turned to the question whether the Poster was defamatory in its natural and ordinary meaning or by reason of extrinsic facts – that is to say whether it carried a true innuendo. [39]

31. [61]

    His Honour appears to have undertaken that exercise in combination with his consideration of whether the Poster was a fair report of the debt-recovery proceedings pleadings. In the latter respect, his Honour concluded that “an ordinary reasonable reader, and a person otherwise reading the pleadings in the District Court proceedings, would properly categorise the claims made in those proceedings as being claims of cruelty.” [40]

32. [62]

    His Honour next observed that there were “aspects of the Poster which amount to true innuendo … said to arise from the extrinsic facts known to those who associate Mr Cummings with the training of racehorses.” [41] While his Honour accepted that the Poster did not mention horses, his Honour held that the extrinsic facts that Mr Cummings’ name was so associated with horseracing and the training of horses could be used to infer that the cruelty referred to in the Poster related to racehorses. [42]

33. [63]

    After considering whether the Poster was a fair report, his Honour returned to the issue of the imputations and held that, insofar as the Poster was concerned, his Honour held:

34. [64]

    His Honour found that Mr Cummings had failed to establish that the matters complained of were not published honestly for the information of the public or the advancement of education (s 28(3), 2005 Act). [43] The plaintiff sought to establish that proposition by reference to the Poster advertising the articles, the position of the fifth impugned publication on the front page of the Sydney Morning Herald and the allegations themselves, all matters said to support the inference the publication was made for sensationalist and ulterior purposes. [44]

35. [65]

    The primary judge rejected this submission, holding that Ms Lahey had summarised the proceedings and written the articles “honestly and in good faith to provide that information to the public and for its information.” [45] He reached the same conclusion in respect of the Poster. [46]

36. [66]

    The primary judge held that Fairfax had established that the Poster and the matters complained of were published honestly for the information of the public: s 28(3), 2005 Act. He accepted Ms Lahey’s evidence completely finding her to be a witness of truth whose evidence was reliable. [47]

37. [67]

    Insofar as the Poster was concerned, his Honour held that “nothing in the Poster or its creation or the decision to make that story the subject of the Poster gives rise to an inference of an ulterior motive or a purpose other than the publication, honestly, for the information of the public, of the article in question.” [48] However, of course, this conclusion was of no assistance to Fairfax as his Honour had already held that its s 28 defence had failed by reason of the failure to identify the source of the claims. [49]

38. [68]

    Finally, his Honour held that the Poster carried “a defamatory imputation being that Mr Anthony Cummings was, as a racehorse trainer, cruel to horses he trained”. [50] That was the fourth of the imputations Mr Cummings pleaded. He challenges the primary judge’s failure to find the first three imputations he pleaded in relation to the Poster were also carried.

39. [69]

    His Honour then turned to the issue of defeasance raised in the replies in both the Digital and Print proceedings. In dealing with this issue, however, his Honour appears to have been of the view, contrary to his earlier finding, [51] the s 28 defence had also been established in relation to the Poster as he said:

40. [70]

    This stands in contrast to his Honour’s ruling at [196] and also his statements in [205] that “the Poster is not giving the reader information on ‘reports of court proceedings’, but is, rather, a report concerning Mr Cummings. … The subject matter is not ‘reports of court proceedings.’” In addition “good faith” was not a requirement to be established on the defeasance issue. Rather, relevantly, for s 28(3) purposes the question of motive or purpose turned on the word “honestly”.

41. [71]

    The appellant challenges his Honour’s findings that they had not established the matters of defeasance to the matters complained of and the Poster.

42. [72]

    Because of his findings in relation to the matters complained of, the primary judge only dealt with Fairfax’s qualified privilege defence in relation to the Poster. [52] Fairfax confined its defence in that respect to s 30 of the 2005 Act.

43. [73]

    His Honour held that the statutory and common law defences of qualified privilege was not made out, ostensibly in relation to the Poster for the following reasons:

44. [74]

    As is apparent, even though the primary judge said he was only going to deal with qualified privilege in relation to the Poster, having regard to its limited nature, paragraphs [203] – [206] clearly relate to the matters complained of.

Conclusion

1. [75]

   His Honour concluded:

2. [76]

   He ought also to have added that the qualified privilege defences had failed.

Issues on appeal

1. [77]

   In the Digital appeal, Mr Cummings has filed a notice of appeal (DNOA) and Fairfax has filed a notice of contention (DNOC). In the Print appeal, Mr Cummings filed a summons seeking leave to appeal and a draft notice of appeal (PNOA). Fairfax has filed a cross-summons seeking leave to cross-appeal and a draft notice of cross-appeal (PX-NOA). Mr Cummings has filed a notice of contention on the cross-appeal (PX-CNOC), as, too, has Fairfax (PX-FNOC).

2. [78]

   I set out below a summary of the issues raised by these documents. Not all were ultimately pursued as I shall explain.

Identification

1. [79]

   Mr Cummings submits the primary judge erred in determining that “the defamatory nature” of the Poster was “limited to those people who would identify the Poster as referring to Mr Cummings and not Bart Cummings, and were aware of the extraneous facts that Mr Cummings was a horse trainer and did not read the article published in the newspaper to which the Poster referred”. [53]

Republication

1. [80]

   Mr Cummings submits the primary judge erred in determining that each of the publications on the websites of Thoroughbred News and Racing Post and the New Zealand Herald were not a republication of, respectively, the first and fifth impugned matters complained of, and the second impugned matter complained of, for which Fairfax was liable. [54]

Defamatory meanings

1. [81]

   Mr Cummings submits the primary judge erred:

   1. (1)

      To the extent his Honour did not find the imputations pleaded in paragraphs 6.1(a) – (k), 7(a) – (f), 9(a) – (k), 10(a) – (f), 12(a) – (k), 13(a) – (f) of the Digital statement of claim, [55] and 6.1(a) – (d), 6A and 8.1(a) – (k) of the Poster amended statement of claim, [56] to be carried and defamatory of him personally.

   2. (2)

      In determining that none of the imputations alleged in paragraphs 7(a) – (e), 10(a) – (e) and 13(a) – (e) of the Digital statement of claim were carried in relation to Cummings Thoroughbreds. [57]

2. [82]

   Fairfax submits that the matters complained of did not convey any of the imputations alleged to have been carried in respect of Mr Cummings as set out in paragraphs 6, 9 or 12 of the Digital statement of claim [58] or paragraphs 6 or 8 of the Poster amended statement of claim. [59]

Section 28

1. [83]

   Mr Cummings submits the primary judge erred in finding that the:

   1. (1)

      Debt-recovery proceedings pleadings were “public documents” pursuant to s 28 of the 2005 Act; [60]

   2. (2)

      First, second, third and fifth impugned matters complained of were fair reports of the debt-recovery pleadings; [61] and

   3. (3)

      Matters of defeasance under s 28(3) of the 2005 Act had not been proved. [62]

2. [84]

   Fairfax submits that the debt-recovery proceedings pleadings were public documents pursuant to s 28(4)(b) of the 2005 Act, and a defence of fair summary of public documents was available on that basis and made out in respect of each matter complained of. [63]

Qualified privilege

1. [85]

   Mr Cummings submits that the primary judge erred in holding that Fairfax acted reasonably in publishing the matters complained of, in that his Honour failed to:

   1. (1)

      Determine the reasonableness of Fairfax’s conduct by assessing the factors set out in s 30(3) of the 2005 Act; [64] and

   2. (2)

      Distinguish between each of the matters complained of. [65]

2. [86]

   Fairfax submits that defences of statutory qualified privilege pursuant to s 30 of the 2005 Act and common law qualified privilege were available and made out in respect of each matter complained of. [66] In the course of the appeal, Fairfax confined its qualified privilege defence to a s 30 defence in relation to the Poster.

3. [87]

   At the outset of the hearing, counsel for the appellant handed to the court a convenient précis of the parties’ submissions cross-referenced to the appeal pleadings which I will set out when dealing with each matter the subject of the appeal.

Imputations issue

1. [88]

   This part of my reasons deals with the imputations and identification issue in relation to each of the matters complained of except the Poster.

2. [89]

   Mr Cummings relies on these grounds only to the extent that there is doubt about whether the primary judge found that the imputations were conveyed. On the cross-appeal, Fairfax contends that his Honour erred in finding that the Poster conveyed the imputation that Mr Cummings was, as a racehorse trainer, cruel to horses he trained.

3. [90]

   The appeal and the cross-appeal raise the same ultimate issue as to defamatory meaning.

4. [91]

   Fairfax contends that a statement that someone has been accused of certain conduct, in the context of civil proceedings, is incapable in law of conveying the imputation that he or she is “guilty” of that conduct (i.e. that the allegations have substance).

5. [92]

   Mr Cummings contends that the familiar principles relating to guilt imputations in the context of reports of criminal charges are inapt in the context of reports of allegations in civil proceedings, and that by their terms, the matters complained of did convey guilt imputations.

6. [93]

   Although it may appear unnecessary to resolve the apparent inconsistencies in the primary judge’s reasons as to whether he found the imputations were conveyed, as resolution of the issue may ultimately be relevant to where costs fall, it is necessary to express an opinion.

7. [94]

   In my view, it is apparent that the primary judge did determine the case on the basis that all the appellants’ imputations were conveyed by the matters complained of.

8. [95]

   His Honour first held that none of the matters complained of conveyed imputations in relation to Cummings Thoroughbreds because “[n]othing in the first, second, third and fifth impugned publications and no part of the fourth impugned publication alleges that Cummings Thoroughbreds is a company engaged in the business of training horses”. [67] However, in dealing with the s 28 issue, his Honour in effect treated Cummings Thoroughbreds as Mr Cummings’ alter ego. [68] He concluded somewhat enigmatically that, “if Mr Cummings has been defamed, then … so too have his two named companies, subject to the role of each company and the imputations alleged against it.” [69]

9. [96]

   In this court, Cummings Thoroughbreds submitted that its role was clearly identified in the matters complained of relied upon, which referred to Mr Cummings denying “horses became lame or broken down while being trained by him or his company”, as demonstrating clear error on the part of the primary judge in concluding the matters complained of did not refer to it as training horses. I do not understand Fairfax to contest that proposition. Accordingly, I understand the issue concerning whether the imputations were carried, that is to say, as imputations of guilt, to be the same for both Mr Cummings and Cummings Thoroughbreds.

10. [97]

    The primary judge held that there were “statements in the publications (leaving aside, for present purposes, the Poster being the fourth impugned publication) that give rise to each of the imputations alleged in the first proceedings to have arisen from the first, second and third impugned publications … and fifth impugned publication” [70] and that “aspects of the publications (other than the Poster, being the fourth impugned publication) give rise to the imputations”. [71] However, he said he had reached this decision without dealing “with the publication as a whole, as is required when the Court puts itself in the position of the ordinary reasonable reader”, an exercise he said he would undertake after dealing with the s 28 defence.

11. [98]

    It appears his Honour returned to this issue when determining whether the matters complained of were “as a whole … fair and accurate.” [72] In that context, his Honour considered “each of the complaints as part of the publication as a whole”, and looked “at each of the imputations … to determine whether that imputation [had] as a source in the pleadings”. [73]

12. [99]

    The primary judge then repeated in narrative form the terms of the imputations concerning Mr Cummings (with the exception of (e) and (k)). After doing so, his Honour said that “each of the imputations arising from the first proceeding is an imputation that arises from the terms of the Cross-Claim”. His Honour’s failure to refer to imputations (e) and (k) appears, with respect, to be more of an oversight than deliberate, particularly having regard to his earlier findings at [79] and [81]. Each was an imputation to the effect that Mr Cummings had failed to perform his duty in a respect taken almost verbatim from the matters complained of, as also were imputations (h) – (j) to which his Honour did refer. [74]

13. [100]

    As his Honour also held that if Mr Cummings has been defamed, so too, relevantly, had Cummings Thoroughbreds (subject to its role) and, as I have said, the matters complained of identified that company as training the horses, I would conclude that his Honour held all the imputations the plaintiffs pleaded were carried by the matters complained of.

14. [101]

    Accordingly, the question whether the imputations were carried falls to be considered on the DNOC and PX-NOC, and insofar as the Poster is concerned on the PX-NOA.

15. [102]

    Fairfax contended, relying on Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd, [75] that none of the imputations pleaded in the Digital proceedings were conveyed principally because a statement in civil proceedings that a person has been accused of certain conduct, is incapable of conveying an imputation that that person is “guilty” of that conduct.

16. [103]

    In dealing with the question whether the imputations were conveyed, it should be borne in mind that the primary judge was sitting without a jury. Accordingly, he could determine both the question of the capacity of the matters complained of to convey the imputations and also whether, as a question of fact, the imputations were conveyed. [76] The parties approached the matter on the basis the primary judge was deciding the issue of fact, this notwithstanding that his Honour concluded that “the impugned publications are capable of giving rise to a defamatory meaning”, [77] rather than holding that the imputations were conveyed as a matter of fact.

17. [104]

    His Honour had to determine whether the imputations were carried by considering whether “hypothetical referees – Lord Selborne’s reasonable men”, [78] or Lord Atkin’s “right-thinking members of society generally” [79] or Lord Reid’s “ordinary man, not avid for scandal” [80] would have understood the matters complained of, when read as a whole, carried defamatory meanings in the sense pleaded. The exercise is one of attempting to envisage a mean or midpoint of temperaments and abilities and, on that basis, to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole. [81]

18. [105]

    The controversy about whether the imputations were conveyed in relation to the matters complained of lies in the fact that they are all pleaded as allegations of fact or, as the appellants describe them, “guilt imputations”.

19. [106]

    The tort of defamation is a tort of strict liability. Accordingly, even though the statements in the matters complained of repeat the statements in the debt-recovery proceedings pleadings, if defamatory, the mere fact of publication suffices to attract liability. [82] As Lord Devlin said in Lewis, [83] “[f]or the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it.”

20. [107]

    However, while the republisher of defamatory hearsay is liable for the repetition of the defamatory hearsay, the nature of that liability will turn upon the context in which the republication occurred. The nature of the republisher’s liability will be resolved by the decision as to whether, and what, defamatory imputations were conveyed having regard to the publication as a whole. [84]

21. [108]

    As McHugh J explained in John Fairfax Publications Pty Ltd v Rivkin, “[t]he rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party”, having regard to the fact that, “although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not ‘a rule of invariable application’. The context of the statement may show that it is refuted or undermined by other parts of the publication”. [85] That examination may also, of course, include determining whether the defamatory hearsay was “adopted” by the republisher, and the purpose of the republication. All such contextual matters may be relevant to the nature and quality of the republisher’s liability. [86]

22. [109]

    Generally, “it would be quite wrong to suggest that published material, setting out an imputation made by another person, does not itself make the imputation if it merely publishes an allegation, or if both sides of the picture are published, or if there is no endorsement of the imputation by the publisher, or if no intention of the publisher to make the imputation is manifested.” [87]

23. [110]

    However, in Mirror Newspapers Ltd v Harrison the High Court held that “a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence” (Harrison principle). [88]

24. [111]

    The appellants contend that the Harrison principle, relating to guilt imputations in the context of reports of criminal charges, is inapt in the context of reports of civil allegations and that, by their terms, the matters complained of did convey guilt imputations. Accordingly, they argue that as Fairfax has repeated defamatory allegations made by third parties it should be taken to have adopted those allegations unless, when the matters complained of are read as a whole, the context shows that they did not adopt the defamatory allegations because they were refuted or undermined by other parts of the matters complained of. [89] Moreover, they contend that the matters complained of go beyond “mere statement” of the pleadings and point towards guilt. [90]

25. [112]

    Fairfax, on the other hand, contends that a statement that someone has been accused of conduct made in the context of civil proceedings is incapable in law of conveying the imputation that that person is “guilty” of that conduct (i.e. that the allegations have substance).

26. [113]

    The question whether a statement in the context of civil proceedings that someone has been accused of certain conduct conveys the imputation that that person is “guilty of that conduct” arose in McConnel.

27. [114]

    In that case, an article in the Australian Financial Review (AFR) reported that the plaintiff company, a floor member of the Sydney Futures Exchange, was taking proceedings in the Commercial List of the Supreme Court of New South Wales to recover the shortfall it suffered in the sale of a number of futures contracts held by a client. The article also reported that the client had filed a cross-claim against the plaintiff and three of its directors in which it was reported he had alleged that in selling his futures contracts the plaintiff was in breach of its fiduciary duty to him as its client to advance his rather than its own interests. In addition, he alleged that directors of the plaintiff company had “unlawfully and fraudulently conspired and agreed together to cheat and defraud the clients” (conspiracy allegation). [91]

28. [115]

    The plaintiff company brought defamation proceedings against John Fairfax & Sons Ltd to recover damages for the publication in the AFR of a report of a directions hearing in the matter before Rogers J. The lead-in paragraph of the article identified both the plaintiff company and the three directors as subjects of the conspiracy allegation. The body of the article set out the nature of the plaintiff’s claim against the client, the facts pleaded in the cross-claim and particulars and correctly reported that the conspiracy allegation was made against the three directors. It also identified the report as being of a directions hearing and that Rogers J had given the case priority and instructed solicitors for the parties to prepare for a further hearing the same year. [92]

29. [116]

    The plaintiff company pleaded only one imputation, “[t]hat the Plaintiff on 22nd or 23rd January, 1980 conspired to cheat and defraud its clients.” The defendant sought to argue that the matter complained of was not capable as a matter of law of conveying that imputation. It argued that the matter complained of could be interpreted as saying no more than that an allegation of conspiracy had been made against the plaintiff company, but that by reason of its implied denial of that allegation there was yet to be a trial to determine its truth. [93]

30. [117]

    Hunt J held that the ordinary reasonable reader could only interpret the allegation of conspiracy against the plaintiff company as having been made in the cross-claim. However, in his Honour’s view, the question remained whether the repetition in the published report of the allegation in the pleading of conspiracy against the plaintiff company could be charged directly against the publisher of that report. [94] His Honour then looked at the context of the publication in the sense I have already discussed to determine whether that context affected the nature of the defamatory meaning which was capable of being conveyed.

31. [118]

    Hunt J considered several cases in which it had been held that juries should be directed that repetition of defamatory hearsay was to be dealt with as if the republisher had made the allegation reported. [95] In his Honour’s view, those cases were distinguishable because none were concerned with statements having been made, not merely by way of repetition or republication, but in the context of a report of an allegation made in pleadings in court proceedings, which was denied and the truth of which was yet to be determined in a trial. [96]

32. [119]

    Having observed that there was no authority precisely on point in relation to the report of an allegation or charge made in the pleadings of a civil action, [97] Hunt J concluded that, in his opinion, there was “no difference in principle between the report of a charge in criminal proceedings and the report of a charge or allegation in the pleadings of a civil action”. [98] Accordingly he held that:

33. [120]

    In Dunsec Pty Ltd & Ors v Nationwide News Pty Ltd, [100] Mason P (Heydon JA agreeing) cited McConnel with approval as explaining the application of the Harrison principle to reporting of civil proceedings.

34. [121]

    Since McConnel was decided, there have been several cases in which either McConnel, or a principle analogous to that identified in McConnel, has been applied in the context of the publication of civil, or quasi-civil, proceedings.

35. [122]

    In Homestead Award Winning Homes Pty Ltd v South Australia, [101] an officer from Department of Public and Consumer Affairs (Department) lodged a complaint with the Commercial Tribunal, on behalf of five home owners, against Homestead Award Winning Homes Pty Ltd (Homestead), a licensed builder. The complaint alleged grounds for disciplinary action, including alleged breaches of the Builders Licensing Act 1986 (SA) (Builders Act). An ABC journalist saw reference to Homestead in the Tribunal’s published cause list. She contacted the Department and the Tribunal’s registry and obtained a copy of the complaint, which referred to Homestead’s “poor workmanship and unfair practices”. The ABC reported the complaint. So too did the Adelaide Advertiser four days later. [102]

36. [123]

    The headline to the newspaper report was “Homes giant faces building charges”. The report stated that Homestead would appear before the Tribunal next month and that it had “indicated it will defend the charges”.

37. [124]

    Homestead sued the State (which was responsible for the Department) for damages for defamatory statements, injurious falsehood, misfeasance in public office and negligence. Homestead’s case was that the State was liable for the publications and that the complaint lodged with the Tribunal was one asserting, as a fact, lack of supervision or negligence, carrying out defective work and overcharging. [103]

38. [125]

    At trial, the State submitted with respect to the claim for damages for defamation, that there was no cause of action disclosed on the pleadings or available at law. [104] McConnel was not referred to. Nevertheless, Prior J applied the Harrison principle holding that “the disclosure of the terms or substance of the Complaint to the ABC and the Advertiser [was] nothing more than the disclosure of the particular allegations made against Homestead which the complainant sought to prove in disciplinary proceedings before a lawfully constituted Tribunal [and] [t]o disclose such a document and nothing more [did] not impute guilt or probable guilt of what [was] alleged in such a document.” [105]

39. [126]

    In Llewellyn v Nine Network Australia Pty Ltd, [106] in the context of a media application for access to the court file in Federal Court proceedings in order to obtain the applicant’s statement of claim, Rares J held that it was contrary to the principle of open justice to restrict public access to pleadings in civil proceedings merely on the ground that they contain untested allegations. His Honour held that the Harrison principle is “well known to members of the community in respect of civil litigation”. [107] In his Honour’s view: [108]

40. [127]

    Wigney J applied Llewellyn in Rush v Nationwide News Pty Ltd, [109] in declining orders sought by Mr Geoffrey Rush to extend an interim confidentiality order, the effect of which would have been to ensure that Nationwide News Pty Ltd (Nationwide)’s original and amended defences would be “treated as confidential” and “not to be distributed to any third party outside of the proceedings”. [110]

41. [128]

    Mr Rush submitted that releasing Nationwide’s defences would essentially defeat his purpose in commencing the proceedings. [111] Wigney J held that the only substantive reason advanced by Mr Rush for departing from the open justice principle was that he would likely suffer further embarrassment. [112] His Honour said, referring to Llewellyn with approval:

42. [129]

    Finally, in Sands v Channel Seven Adelaide Pty Ltd and Another, [113] Channel 7 ran the following promotion for an upcoming broadcast:

43. [130]

    A judge in the District Court of South Australia, on the application of the Federal MP, granted an injunction against the broadcast. The ABC published a report of Channel 7’s application to discharge the injunction. Mr Sands, the “suspect”, sued Channel 7 and the ABC for defamation. The ABC defended the defamation proceedings on the basis, inter alia, of having published a fair and accurate report of the proceedings at common law. [114] Bleby J held:

44. [131]

    The appellants submitted that police charges are merely one species of allegation, and that there was nothing in Mason J’s reasons in Harrison [115] which suggested that the propositions his Honour articulated should apply equally to allegations which do not come from an official source such as the police service. They relied in this respect on Australian Broadcasting Corporation v Comalco Ltd, [116] where, after discussing Harrison, Pincus J observed that “[t]he High Court did not suggest that the same rule would apply to allegations published as having an unofficial source.”

45. [132]

    The appellants also drew attention to Obeid, where I observed [117] that it was “a pious presumption to conclude that the ordinary reasonable reader is mindful of the presumption of innocence whenever accusations or allegations are made particularly when the defamatory statements are made in circumstances unrelated to, or remote from, the operation of the criminal justice system”.

46. [133]

    That observation was made in the context of considering the capacity of the ordinary reasonable reader to bring to bear the presumption of innocence when considering imputations of corruption and bribery. It has little significance in the context of allegations manifestly made in the course of repeating the contents of pleadings filed in civil proceedings.

47. [134]

    Mr Cummings submitted that the following matters in the matters complained of, cross-referenced to factors Callinan J identified in Rivkin, [118] were significant in determining whether the imputations were conveyed. For convenience, I have put Fairfax’s responses to each matter in italics:

    1. (1)

       The articles give greater prominence to the allegations of “broken down” or “lame” racehorses than they do the denials. They submitted that matters which have been emphasised in the articles are not to be treated as if they had only the same impact of significance as the matters which are not emphasised. Fairfax asserts that the articles did not give greater prominence to the allegations against the appellants than to the denials. Rather, it argues that the first paragraph indicates that Mr Cummings was “fighting” the allegations before detailing the allegations at all.

    2. (2)

       “Broken down” is introduced in the headline of several of the publications. The appellants submitted that a headline designed to catch the eye and give the reader a predisposition as to what follows may well assume more importance than what follows. Fairfax submits that the headline’s reference to a “fight” also indicates the fact that the question whether the horses were broken down was also in dispute.

    3. (3)

       The significance of the order in which matters are dealt with. In this respect, they pointed to the fact that Patinack Farm’s allegations are in the first paragraph of each publication. The appellants argued that the “intro” has the capacity to excite the reader’s attention, “a matter on which editors place store”. Fairfax repeats its response to (1).

    4. (4)

       The publishers’ use of vivid language, “broken-down racehorses”, “worked horses so hard they were incapable of racing”, was relevant because matters conveyed in more dramatic language are likely to create stronger impressions on the reader. Fairfax submits the “vivid language” of the articles reflected the language of the pleadings containing the allegations.

    5. (5)

       Finally, they submitted that “even a moderately attentive and reasonable, but not unduly suspicious, reader would wonder why, for example, Patinack Farm’s allegations were given so much prominence that the claims against the appellant [sic, appellants] were privileged with a front-page headline.” [119] Fairfax submits it published the contents of both sets of pleadings in the debt-recovery proceedings thereby publishing a balanced account of the allegations. They argue it could not be said that a reasonable reader would pay more attention to the publication of the Patinack Farm allegations than the denials of those allegations. Both were contained in the articles.

48. [135]

    Fairfax submits that it is plain on the face of the matters complained of that they are reports of the pleadings filed in litigation in the Supreme Court of New South Wales between Mr Cummings, Cummings Thoroughbreds, Something Fast and Patinack Farm. They contend the matters complained of report, without comment, the allegations made in the statement of claim and the cross-claim, and the various responses in the defences filed in answer to those claims. In so doing, they argue, the matters complained of inform the reader of the allegations the parties have made against each other, and how the parties responded to those allegations, at an early point in the proceedings.

49. [136]

    Secondly, Fairfax contends that the matters complained of make plain that the allegations are disputed and that their truth is yet to be determined by a trial. They argue that a publication of this kind does not convey imputations of guilt and is in fact incapable of conveying such imputations.

50. [137]

    Thirdly, Fairfax argues the McConnel principle applies to the matters complained of. Fairfax contends that the matters complained of set out the allegations each party made against the other in the debt-recovery proceedings and, consistently and in careful sequence, make clear that each party’s allegations are denied by the other. It points to the fact that they record that Patinack Farm denies that it is liable for the unpaid fees and costs Mr Cummings claims on the basis that it says not all of the work charged for was performed. It contends the matters complained of also make clear that the allegations in the cross-claim (which they emphasised were made only after Mr Cummings sued for unpaid training fees and costs), were denied by Mr Cummings. By noting that the claims made by Patinack Farm in the cross-claim were made only once Patinack Farm was sued for unpaid training fees and costs, it submits the matters complained of convey clearly to the reader that, by the fact of such claims being raised in response to a debt-recovery claim, it is appropriate to treat them as just that: namely, claims. That, together with the plain denials by Mr Cummings, which themselves were accompanied by details of his response to the allegations made against him, Fairfax argues conveyed a clear and consistent message throughout that no conclusion could be drawn about which party’s allegations were accurate until the court determined the case.

51. [138]

    As was recognised in McConnel, Homestead, Llewellyn and Rush, today’s ordinary reasonable reader is exposed on almost a daily basis to the latest from the courts, perhaps more often criminal than civil, but also frequently, accounts of civil proceedings. Ironically, reports of defamation cases are frequently featured.

52. [139]

    But, so too are more run-of-the-mill civil disputes. Frequently the outcome is reported, so the ordinary reasonable reader is well sensitised to the legal process of making allegations which lead to judicial resolution.

53. [140]

    Such a person, reading the matters complained of, in my view, would be aware from reading the second paragraph that Mr Cummings and two of his companies were involved in a legal case against Mr Tinkler. It would have been readily apparent to that reader that those civil proceedings were the subject of the headlines to the article, whether the headline was either “Cummings in $6.4m Fight Over Broken-Down Racehorses” (the expression “broken-down” appearing in the body of the matters complained of in quotation marks) or “Tinkler, Trainer in Stoush”. Thereafter it is apparent in each paragraph of the matters complained of by the use of expressions such as “fighting claims”, a fight sourced to “documents filed in the NSW Supreme Court”, “claim”, “cross-claim”, “allegations”, “duty of care” and finally a reference to a future directions hearing in the matter that the allegations yet to be resolved.

54. [141]

    In my view, this is a case in which the McConnel principle applies. The matters complained of did not contain “loose talk about suspicion [which] can very easily convey the impression that it is a suspicion that is well founded”. [120] They did not embellish the allegations made in the pleadings. It would be apparent to the ordinary reasonable reader of the matters complained of that Fairfax was not adopting the allegations made in the court case being reported. Rather, the closing sentence makes it clear that the truth of Mr Tinker’s allegations and Mr Cummings’ denials was yet to be determined by a trial. In my view, the ordinary reasonable reader would not read the matters complained of as conveying guilt imputations.

55. [142]

    The primary judge erred in holding that the matters complained of carried the imputations of which Mr Cummings and Cummings Thoroughbreds complained.

56. [143]

    I would reject grounds 3 and 4 in the DNOA. I would uphold ground 1 of the DNOC. I would also reject in part ground 2 of the PNOA insofar as it related to the print matter complained of.

The Poster

1. [144]

   Mr Cummings pleaded that the imputations of which he complained in relation to the Poster arose in its natural and ordinary meaning. Alternatively he relied on extrinsic facts to support the imputations as true innuendos. In the latter respect, it was necessary that he adduce evidence of extrinsic or special facts known to those to whom the matter was published, such as would lead a reasonable person knowing those facts to conclude that the words had another, defamatory, meaning. [121]

2. [145]

   Two issues, which may broadly be said to relate to identification arise.

3. [146]

   First, Mr Cummings submits in ground 5 of the PNOA that the primary judge erred in determining that “the defamatory nature” of the Poster was “limited to those people who would identify the Poster as referring to Mr Cummings and not Bart Cummings, and were aware of the extraneous facts that Mr Cummings was a horse trainer and did not read the article published in the newspaper to which the Poster referred.”

4. [147]

   Secondly, Fairfax contends that the primary judge erred in finding that it was reasonable for the witness Mr Rutter to identify Mr Cummings in the poster. This did not arise directly as an independent ground of appeal, cross-appeal or in any notice of contention but, rather, was subsumed in Fairfax’s submissions about whether the imputations were conveyed.

5. [148]

   Mr Cummings submits in response to the second issue that the real issue concerning Mr Rutter’s evidence was factual, rather than a question of his “reasonableness”.

6. [149]

   The Poster stated “CUMMINGS FIGHTING CRUELTY CLAIMS”. At trial, there was a substantial controversy as to whether it identified Mr Cummings.

7. [150]

   At trial, there was evidence that Mr Cummings had been involved in horse training most of his life. He had worked in stables for many years before he became a registered trainer in 1991. He worked first out of his father’s stables before establishing his own stables in Randwick in the early 1990s and later in Caulfield in Victoria. He had had a large measure of success prior to the publication of the matters complained of in February 2010 which attracted publicity in print and on television. He was the subject of media articles and was photographed, and referred to as the subject of those photographs, by the name “Cummings” and in headlines about him. At the time of the publications of the matters complained of he was also the President of the New South Wales Trainers Association and had an active website, accessible to the public, which listed his winners. He clearly had a high public profile.

8. [151]

   In addition, there was evidence that not only Mr Begg and Mr Rutter identified Mr Cummings as the person referred to in the Poster, but also that other people telephoned him about the Poster and also indicated that they had read the articles. As Mr Cummings submitted at trial, that evidence was direct evidence of identification because it was original evidence of the existence of the reactions of those persons. [122]

9. [152]

   In my view, as Mr Cummings submitted, at one level, Fairfax’s identification issue is an arid debate. A person named “Cummings” was referred to on the Poster. The only controversy at trial was whether the Poster identified Mr Cummings, rather than his father, Mr Bart Cummings. Even without the evidence to which I have referred, the Poster was clearly reasonably capable of “lead[ing] persons acquainted with the plaintiff to believe that he was the person referred to.” [123] It would not be to the point even if, for example, Mr Rutter thought it referred to both Messrs Cummings, as a defamatory statement capable of referring to two people may be the subject of suit by each. [124]

10. [153]

    Accordingly, in my view, the primary judge should have held the Poster was capable of referring to Mr Cummings in its natural and ordinary meaning.

11. [154]

    Mr Cumming’s alternative case on identification depended on the evidence given by Mr Begg and Mr Rutter. As I have said, the primary judge accepted their evidence that each had identified Mr Cummings as the subject of the Poster.

12. [155]

    Mr Begg identified the poster as referring to Mr Cummings “because it was fairly widely known that he was having a difference with one of his clients”. [125] Fairfax now accepts that Mr Begg’s identification evidence was objectively reasonable, having regard to his existing knowledge of the dispute between Mr Cummings and Mr Tinkler.

13. [156]

    However, Fairfax continues to put in issue the reasonableness of Mr Rutter’s identification, albeit as it acknowledged in oral submissions, not as a separate ground of appeal.

14. [157]

    It is clear that, on Fairfax’s part, the reasonableness of Mr Rutter’s identification is a live issue on appeal, not least presumably, because as I explain below, the scope of Mr Cummings’ identification, to the extent it depends on extrinsic facts, goes to damages. The issue should have been identified in Fairfax’s cross-appeal. Nevertheless, as the appeal was conducted on the basis it was in contest, it should be addressed.

15. [158]

    At the outset, it should be made clear that it was sufficient for Mr Cummings to prove that the Poster was published to one other person who identified him in it. [126] Identification by Mr Begg satisfied that criterion. As Mr Cummings submitted, Fairfax’s concession about Mr Begg’s evidence means that Fairfax’s challenge to the finding that Mr Cummings was identified as the subject of the Poster must fail.

16. [159]

    Mr Rutter identified Mr Cummings as the subject of the Poster because of his “perception” that when the media referred to his father, it described him “Bart Cummings”. [127] The primary judge believed Mr Rutter not only because his evidence had clearly not been shaken in cross-examination, but also because of the evidence of a number of occasions when Fairfax Digital had referred to Mr Cummings, “in recent time, prior to the publications that have been impugned, as ‘Cummings’”. [128]

17. [160]

    Fairfax argues that Mr Rutter’s reasoning process was unreasonable and that his Honour failed to have regard to the requirement that identifying witnesses be “ordinary sensible readers” who could reasonably have come to that conclusion. [129] Fairfax accepts that the standard of reasonableness for the identifying reader is “not high”, but argues nevertheless that Mr Rutter’s evidence should have been rejected because, as the primary judge said, it was “almost inconceivable that a person knowing Mr Anthony Cummings or of him would not know Mr Bart Cummings”. [130]

18. [161]

    The last submission demonstrates circular reasoning. As I have said, it is beside the point that Mr Rutter may have identified Mr Bart Cummings as well as Mr Cummings (although there is no suggestion that he did). It was sufficient that it was reasonable for him also to identify Mr Cummings. That was the effect of the primary judge’s ruling.

19. [162]

    In my view, Fairfax has not demonstrated any error in a Fox v Percy [131] sense which would warrant setting aside the primary judge’s finding that Mr Rutter reasonably identified Mr Cummings as being the subject of the Poster.

20. [163]

    The effect of upholding this finding is that to the extent Mr Cummings relied upon a true innuendo case, the Poster identified Mr Cummings both in relation to persons who were otherwise aware of the proceedings before the District Court (the Mr Begg “class”) and to those who perceived that Mr Anthony Cummings’ father would not be referred to as “Cummings”, but would be referred to as “Bart Cummings” (the Mr Rutter “class”). [132]

21. [164]

    The consequence of this finding feeds into ground 5 of the PNOA. As is apparent from the statement of the parties’ submission, even though cross-references to submissions said to relate to that ground were given in the précis, in fact none addressed ground 5. Rather, all were addressed to the reasonableness of Mr Rutter’s identification.

22. [165]

    In oral submissions, it appeared ground 5 was directed to paragraph [197] of the primary judgment which Mr Cummings submitted was erroneous. In that paragraph, his Honour held:

23. [166]

    This it was submitted could have an effect on damages if that issue ultimately arose for determination.

24. [167]

    As I understand paragraph [197], his Honour was holding that the imputation he held to have been carried by the Poster was only carried to those persons who identified Mr Cummings by way of the extrinsic facts of which Mr Begg and Mr Rutter gave evidence.

25. [168]

    That was not, in my view, an error. In a case where the defamatory meaning is only carried to those who identified the plaintiff by reference to extrinsic facts, it is only publication to those few that could have in any way damaged the plaintiff’s reputation. [133] Accordingly, the extent to which the plaintiff is identified is directly relevant to the amount of damages to be awarded. [134]

26. [169]

    However, his Honour then added the rider that the class of identifying witnesses excluded those who “read the article published in the newspaper to which the Poster referred”. This answer, with respect, perpetuated the confusion about whether the primary judge held the imputations in the Digital proceedings and the print publication in the Print proceedings were carried. As I would hold they were not carried (whereas I hold below some of the Poster imputations were carried), the rider is in my view, nevertheless, an appropriate one. In other words, the reader who read both the Poster and the digital and print publication in the Poster proceedings would appreciate the Poster was advertising the matters complained of which reported the court proceedings. Such readers would not, in my view for the reasons I have already given, conclude that the assertions about Mr Cummings on the Poster carried imputations that he was guilty of cruelty to animals. Rather, they would read the Poster as relating to him fighting those allegations in a curial context.

27. [170]

    The primary judge’s discussion of whether the Poster imputations were carried in isolation from the digital and print publication, tended to indicate his Honour was of the view that all were carried.

28. [171]

    Thus, his Honour held:

29. [172]

    However, in his Honour’s summary of his conclusions, he held that “the Poster … identifies the plaintiff Mr Cummings, it carries a defamatory imputation being that Mr Anthony Cummings was, as a racehorse trainer, cruel to horses he trained”. [135] This was the fourth imputation Mr Cummings pleaded. His Honour, accordingly, implicitly held that Mr Cummings had not established that imputations (a) – (c) were carried.

30. [173]

    Mr Cummings challenges the conclusion that only one of the imputations he pleaded in relation to the Poster was carried.

31. [174]

    Mr Cummings submits that the Poster carried all the imputations he pleaded because it repeated Mr Tinkler’s allegation that he was guilty of animal cruelty in a manner indicating it had adopted the allegation, that the prominence of the Poster was in itself capable of conveying the imputation that it had substance, [136] and that the Poster was remote from the operation of the civil justice system. [137]

32. [175]

    Mr Cummings also argues that it was irrelevant that the two identification witnesses had either read the matters complained of or that they were aware that Mr Cummings was in a legal dispute with Mr Tinkler, because defamatory meaning is an objective question and is not determined by any individual reaction to the matter, and knowledge that what was said of the plaintiff was false does not mean that defamatory imputations were not conveyed. [138]

33. [176]

    On the other hand, Fairfax criticises his Honour’s reasons in this respect as not following as a matter of logic. Fairfax argues that the imputations issue still fell to be determined by reference to the principles to which I have referred concerning guilt imputations, that is to say that the public are sophisticated enough to appreciate the nature of an untested allegation. [139]

34. [177]

    Fairfax submits that the Poster conveyed the existence of untested allegations, rather than any imputation of guilt. It contends that the words “fighting” and “claims” preclude such a meaning. Instead, they argue that the only reasonable way to read the Poster is that Mr Cummings was the subject of allegations of cruelty and that he was “fighting” those claims.

35. [178]

    Fairfax submits that this submission has added weight when it is borne in mind that one of the identifying classes was those in the Mr Begg class, who were aware of the existence of a legal dispute involving Mr Cummings. It also argues that because Mr Rutter read both the Poster and the matters complained of, and his Honour held the Poster was not defamatory in respect of readers of the Poster who also read the matters complained of, it could not be held that even if people in that class identified Mr Cummings, any defamatory meaning was conveyed to them.

36. [179]

    In my view, the primary judge erred in failing to conclude that the Poster carried imputation (a), (c) and (d) as false innuendos, that is to say, as arising from the natural and ordinary meaning of the Poster, albeit only to persons who were unaware of the digital and print matters complained of. His Honour could also have held those imputations were conveyed as true innuendos to the class of persons who have Mr Rutter’s knowledge, but subject to the same limitation as to ignorance of the digital and print matters complained of.

37. [180]

    Viewed in isolation from the court proceedings, the fact that Mr Cummings was said to be fighting “cruelty” allegations, in the context of persons knowing the extrinsic facts that he was a registered horse trainer, trained horses extensively (that is to say, both in Sydney and Melbourne) and trained many winners would lend substance to the allegations.

38. [181]

    The ordinary reasonable reader, in my view, would be of the view that such allegations would not be lightly made about such a person, and that where there was smoke, there was also fire. [140] Such a person could, without being avid for scandal, conclude that Mr Cummings may be a cruel person generally (imputation (a)). Further, persons aware of the extrinsic facts Mr Cummings pleaded, all of which related to racehorses, could reasonably conclude that he was cruel to the racehorses in his care (imputation (c)) and, further may engage in whatever means it took to secure victory for the racehorses he trained, including resorting to cruelty (imputation (d)).

39. [182]

    However, I would not be of the view that the ordinary reasonable reader aware of the extrinsic facts would read the Poster as carrying an imputation that Mr Cummings was cruel to animals generally in terms of imputation (b). Rather, the sting of the Poster lies in the reader’s knowledge of Mr Cummings’ role in racehorse training. The reader would understand that, in that role, racehorses were committed to his care.

40. [183]

    The consequence of these conclusions is that the Digital appeal should be dismissed and the Print appeal should be allowed in part, but limited, as I have said, to those who did not read both the Poster and the digital and print publication. Quite how that class should or could be identified was not the subject of argument in this court, and will have to be determined on the remitter.

41. [184]

    However, against the possibility that others may disagree, I should consider what, on my findings, are grounds it is not necessary to decide. [141]

Republication

1. [185]

   Mr Cummings contends that the primary judge erred in finding that the republication of the matters complained of was not a natural and probable consequence of the original publications by relying on the fact that the republications were not authorised by Fairfax.

2. [186]

   Fairfax contends that the primary judge was right to conclude that the republication of the matters complained of was not a natural and probable consequence of the original publication, because there was evidence that the unauthorised use of Fairfax content did not occur frequently in around 2010.

3. [187]

   The principles concerning liability for republication were explained in Habib v Radio 2UE Sydney Pty Ltd as follows: [142]

4. [188]

   Republication was relied upon in relation to all matters complained of other than the Poster. As I have held the imputations of which Mr Cummings and Cummings Thoroughbreds complained were not carried by the matters complained of, prima facie, these issues do not arise. This is because liability for republication turns on the original publisher having published defamatory matter. Neither party made any contrary submission. However, as I have said, this part of my reasons is written in case others disagree with my findings in relation to the imputations issue.

5. [189]

   The essence of the complaint on the republication issue is that the primary judge erred by failing to recognise that the controlling test in determining whether an act of republication is the natural and probable consequence of an original publication is essentially one of foreseeability. [143]

6. [190]

   In Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (Wagon Mound [No 2]), [144] the Privy Council created what Glass JA described as an “undemanding’’ test of reasonable foreseeability. [145] By that test, it is sufficient that a reasonable person in the defendant’s position would have foreseen that its conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. [146] In Baturina, [147] Eady J framed the foreseeability test in media terms as turning on “whether a reasonable person in the position of the defendant should have appreciated that there was a significant risk of repetition, either in whole or in part, in the media and/or (presumably) on the Internet, and that this would increase the damage to reputation caused by the original publication”. If that issue was determined against the defendant, in his Honour’s view, “it would seem that there is no reason of public policy why there should not be liability for that additional damage [and] [i]t will be a question of fact to be determined in the light of the particular circumstances of the case.” [148]

7. [191]

   It was uncontroversial that Fairfax had not authorised any of the republishers to republish any of the matters complained of. [149] They were strangers, in the legal sense, over which Fairfax had no control. In all probability, all were competitors. Certainly, the New Zealand Herald was.

8. [192]

   Fairfax called evidence from Mr Callan, Fairfax’s group syndication manager, on the republication issue. He gave evidence that in 2010 when the matters complained of were published, instances of other websites not authorised to republish Fairfax content using its content and rewriting the articles were “few and far between” and that it “wasn’t something [Fairfax] perceived as something that happened quite a lot”.

9. [193]

   Mr Cummings contends that a phenomenon does not need to occur frequently or be likely to occur in order for it to be reasonably foreseeable, and that it was sufficient that Fairfax was aware, at the time of publication, that unauthorised use of its content did occur.

10. [194]

    The primary judge’s finding that it was objectively likely that publications such as Thoroughbred News, Racing Post, and Breednet would republish material such as that comprised in the matters complained of did not reflect Mr Callan’s evidence. [150] Nor, with respect, was it localised to the relevant time period, 2010, over six years before the trial. As was apparent from that evidence, incidents of republication at the time of trial were greater than they had been historically.

11. [195]

    In my view, framing the issue as Eady J did in Baturina, and having regard to the evidence objectively, it could not be said that at the time of publication there was a significant risk of republication of the matters complained of by third-party commercial entities. The fact that to do so would have been in breach of copyright is an added reason for reaching that conclusion.

12. [196]

    Accordingly, I would dismiss grounds 1 and 2 of the DNOA and ground 1 of the PX-NOA.

Section 28

1. [197]

   Mr Cummings contends that the primary judge erred in holding that Fairfax had a defence under s 28 of the 2005 Act. He contends that pleadings in ongoing civil proceedings are not “public documents” within the meaning of s 28(4)(e) because:

2. [198]

   Mr Cummings also contends that the matters complained of were not a fair summary because they conveyed imputations of guilt, whereas the pleadings were only untested allegations.

3. [199]

   Fairfax contends that pleadings in ongoing civil proceedings are “public documents” because:

4. [200]

   Fairfax submits the matters complained of were a fair summary because each paragraph had a source in the pleadings.

5. [201]

   Section 28 of the 2005 Act relevantly provides:

6. [202]

   UCPR Pt 36 (Judgments and orders), Div 3 (Copies and service) relevantly provides:

7. [203]

   Practice Note No SC Gen 2 (Supreme Court – Access to Court Files) (Practice Note) issued by Spigelman CJ on 1 March 2006 relevantly provides:

8. [204]

   The Practice Note was enacted pursuant to s 15 of the Civil Procedure Act 2005 (CPA). The power in s 15(1) to issue practice notes is “[s]ubject to rules of court”. UCPR r 36.12 is such a rule. Practice notes do not have a higher status than the CPA or the UCPR. [151]

9. [205]

   The first issue at trial on the s 28 defence was whether the debt-recovery proceedings pleadings Ms Lahey summarised were documents which were “open to inspection by the public” (s 28(4)(e)). [152] The primary judge found that they were. [153]

10. [206]

    Mr Cummings argues that pleadings in ongoing civil proceedings are not “public documents” within the meaning of s 28(4)(e) because they are not open to inspection by the public as a matter of general law until they have been substantively used in open court, which he submits did not occur in this case and members of the public have no relevant statutory right to inspect current pleadings. Rather, the court only has a discretion to permit access in “exceptional circumstances”.

11. [207]

    Fairfax submits pleadings in ongoing civil proceedings are “public documents” because UCPR r 36.12(2)(b) gives members of the public with a sufficient interest a right to inspect the pleadings in an ongoing matter. Fairfax argues it had a “sufficient interest” within the meaning of the rule because the pleadings had been deployed in court at a directions hearing on 16 February 2010. [154] Fairfax argues that that interest was recognised when a registrar, on Ms Lahey’s application, exercised his or her discretion in accordance with the general principles concerning granting access and allowed Ms Lahey access to the pleadings she sought.

12. [208]

    Although the primary judge did not refer to this submission, it was common ground that, at trial, Fairfax submitted the pleadings were public documents which had been “deployed” in open court once the debt-recovery proceedings had been in court, even for a mere directions hearing.

13. [209]

    Mr Cummings argued that the 16 February 2010 hearing was essentially an administrative one such that it could not be said the pleadings were deployed in court in such a way as to engage the principles of open justice so as to render them public documents.

14. [210]

    As Fairfax submitted, on a literal reading of s 28(4)(e), the pleadings in the debt-recovery proceedings were “open to inspection by the public” for two reasons. First, because UCPR r 36.12 permitted a registrar to give access to them “to any other person appearing to have a sufficient interest in the proceedings”. Secondly, because the Practice Note provided that access to material in any proceedings would normally be granted to non-parties in the circumstances for which cl 7 provided.

15. [211]

    Ms Lahey, who is clearly a member of the public, was given access to the documents by a registrar after completing the non-party access section of a Supreme Court form for access to a court file. [155] She made clear the reason for her request was to “[a]ssist in my reporting on the proceedings in the Sydney Morning Herald” and the ground upon which access should be granted as according “with the principles of open justice”.

16. [212]

    There was no suggestion the registrar’s discretion to grant Ms Lahey access to the pleadings whether under UCPR r 36.12 or the Practice Note miscarried.

17. [213]

    However, Mr Cummings submitted that despite those facts, the question whether the pleadings were “open to inspection by the public” had to be determined in accordance with common law principles dealing with open justice and when a pleading is used in open court. Fairfax joined issue with those submissions also.

18. [214]

    Mr Cummings correctly submitted that the primary judge erred in holding that, “[h]istorically, pleadings were documents open to the public.” Rather, the general law is that that judgments and orders of the court are public documents which the public have a general right to inspect, but pleadings, affidavits and other documents filed in court are not open to public inspection. [156] The latter proposition is part of the fundamental principle that, generally, court proceedings shall be conducted publicly and in open view. [157]

19. [215]

    Accordingly, there is no common law right for a non-party to obtain access to a court document filed in proceedings and held as part of the court record. Subject to the provisions of a particular statutory regime, use in court will often be determinative when making a decision to give the media access to documents so deployed. It is the “principle of open justice” which guides the court in determining relevantly, when an application for access to court documents should be granted pursuant to an express or implied power to grant access. [158]

20. [216]

    The purpose of the principle of open justice is to ensure that “the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts.” [159] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. [160]

21. [217]

    In Ryde Local Court, Spigelman CJ held that the principle of open justice is not engaged at the time of the filing of the proceedings, rather it is only when relevant material is used in court that it becomes relevant. [161]

22. [218]

    However, his Honour added:

23. [219]

    In R v Clerk of Petty Sessions Hobart; Ex Parte Davies Brothers Ltd, [162] in a passage approved by Spigelman CJ in Ryde Local Court, [163] Slicer J said:

24. [220]

    His Honour referred with approval to Homestead, where Prior J held that:

25. [221]

    Although in Ryde Local Court Spigelman CJ did not find it necessary “to determine a single test applicable in all situations to identify when a document has been put before the court in such a manner that it ought be made public”, his Honour suggested that a useful test was proposed by Lord Clyde in Cunningham v The Scotsman Publications Ltd [165] as follows:

26. [222]

    Einstein J also engaged with this issue in Tuqiri v Australian Rugby Union Ltd, [166] where he held:

27. [223]

    His Honour referred with approval to Llewellyn, [167] where Rares J observed that in D’Orta-Ekenaike v Victoria Legal Aid [168] Gleeson CJ, Gummow, Hayne and Heydon JJ observed, inter alia, “[n]o doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy”.

28. [224]

    This was because, “the policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.” [169]

29. [225]

    Consistent with the principle of open justice, there is a public interest in facilitating a fair and accurate report of proceedings in court. [170]

30. [226]

    When considering statutory provisions which concern the publication of any aspect of proceedings, the principle of legality favours a construction which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle. [171]

31. [227]

    As Fairfax submitted, there is an intersection between this proposition, and statements such as that of Rares J in Llewellyn that it was contrary to the principle of open justice to restrict public access to pleadings in civil proceedings merely on the ground that they contain untested allegations. [172]

32. [228]

    Finally, it should be noted that in Crisp v Fairfax Media Ltd, [173] Warren CJ considered s 28 of the Defamation Act 2005 (Vic), which is in the same terms as New South Wales provision, in the context of an application for an interlocutory injunction in respect of the publication of allegations contained in a statement of claim obtained from a County Court file. Her Honour held that a prima facie defence of public documents would be available, on the basis that, “[a]ny contemplated report of the County Court file, in particular the writ and the statement of claim, involves publication of public documents as provided by s 28(1)(b) of the Act.”

33. [229]

    In my view, the pleadings were “public documents” for the purposes of s 28(1)(b) at least on the occasion of the directions hearing on 16 February 2010, in the debt-recovery proceedings. As Prior J held in Homestead, reference to the terms of the pleadings was necessary to understand what was going on in an open court.

34. [230]

    The pleadings should be taken to have been read for the purposes of the registrar presiding at the directions hearing making orders in accordance with the short minutes of order handed up in court.

35. [231]

    I would reject ground 5 of the DNOA and ground 4 of the PX-NOA.

36. [232]

    This issue can be dealt with succinctly.

37. [233]

    Mr Cummings submits that the matters complained of were not a fair summary within the meaning of s 28(1)(b) because they conveyed imputations of guilt, whereas the pleadings were only untested allegations.

38. [234]

    I have already rejected that submission. Fairfax submits the matters complained of were a fair summary because each paragraph of the matter complained of had a source in the pleadings. That submission is supported by the primary judge’s comparative analysis of the pleadings and the matters complained of.

39. [235]

    I would reject ground 6 of the DNOA and ground 3 of the PX-NOA.

40. [236]

    Mr Cummings submitted the primary judge erred in finding he had failed to establish that matters complained of were not “published honestly for the information of the public or the advancement of education”. The requirement in s 28(3) that the court consider what the publication was “for” raises the question of the publisher’s motive or purpose and “looks to the effect … the defendant intended the matter to have on the minds of its recipients”. [174]

41. [237]

    Mr Cummings relied upon Callinan J’s judgment in Rogers v Nationwide News Pty Ltd in dealing with whether the publication in that case was made “in good faith for public information or the advancement of education” for the purpose of s 24 of the Defamation Act 1974 (NSW) (1974 Act). [175] His Honour doubted whether that publication had come within s 24 in circumstances where the publisher “chose to go beyond the judgment of Hill J”.

42. [238]

    Mr Cummings submitted that the primary judge’s s 28(3) conclusion could not be sustained having regard to the sensational nature of the Poster and the matters complained of, the fact that they were front-page news, taken with the prominence of the articles by reason of the Poster. He argues that Fairfax intended to smear him and his company by making the publications so prominent and sensational. He contends those features of the matters complained of detract from the conclusion that Fairfax had merely intended to publish a mundane court report.

43. [239]

    As Hunt J held in Waterhouse v Broadcasting Station 2GB Pty Ltd, [176] when considering the defeasance provision in s 26 of the 1974 Act (where the publication complained of was not in good faith for public information or the advancement of education), the purpose of the publication “usually appears from the terms of the matter complained of and from the nature of the vehicle in which it is published.” Thus his Honour held, “[w]here the matter complained of purports to be a court report and it appears in a newspaper for general sale in the community, the required purpose is established.” [177] I assume his Honour there meant the purpose of publication was for “the information of the public”.

44. [240]

    Section 26 of the 1974 Act did not have an honesty requirement, as does s 28(3). Neither party drew the court’s attention to any case in which the concept of honesty for the purpose of s 28(3) has been considered. In the context of the requirement of “good faith” for the purposes of s 26 of the 1974 Act, Hunt J held in Waterhouse that the court looks “to the result which the defendant sought to achieve by his publication”. [178] Thus, while a “proprietor of a newspaper may publish a report of court proceedings in order to inform the public of what happened in those proceedings, [if] he does so because he bears ill-will towards the plaintiff and wishes to injure him by that publication” the s 26 defeasance was established. [179] Thus, s 28(3) involves a subjective test. [180]

45. [241]

    In my view, the challenge to the s 28(3) finding in relation to the matters complained of cannot be sustained. The primary judge completely accepted Ms Lahey’s evidence that as a journalist for the Sydney Morning Herald assigned to the daily business section, her tasks were to cover court proceedings and anything business-related, that Mr Tinkler’s financial affairs were a matter of public notoriety and that she, in the course of her usual practice, examined the daily court list on 15 February 2010, and noticed the “Cummings” name. His Honour also completely accepted that on 17 February 2010, Ms Lahey sought access to the court file, or more accurately the pleadings, and wrote the article based on the notes she took. [181]

46. [242]

    Insofar as the Poster is concerned, Mr Cummings submits it was published for the purpose of advertising the matters complained of and selling newspapers and cannot, therefore, have been published for the information of the public or the advancement of education.

47. [243]

    The mere fact that a publication has a pecuniary motive does not, in my view, mean a publication is not “for the information of the public” nor that it was not published “honestly” for that purpose. Mr Cummings has not established that Fairfax had any motive or purpose to publish the Poster other than to inform members of the public of the information it bore. In my view he did not establish the matter of defeasance required by s 28(3).

48. [244]

    I would reject ground 7 of the DNOA and ground 6 of the PX-NOA.

Qualified privilege

1. [245]

   Fairfax submits the primary judge ought to have upheld the defence of statutory qualified privilege pursuant to s 30 of the 2005 Act to the matters complained of and the Poster. In my view, having regard to the conclusions I have reached concerning the imputations not being conveyed by the matters complained of, and, too, the conclusion that the s 28 defence is made out to those publications, it is unnecessary to deal with the qualified privilege issue insofar as they are concerned.

2. [246]

   The following considers statutory qualified privilege only in relation to the Poster. As I have said, Fairfax abandoned ground 3 in the notice of cross-appeal relying on common law qualified privilege.

3. [247]

   Fairfax contends that the primary judge erred in holding that the statutory defence of qualified privilege under s 30 of the 2005 Act was not made out, in relation to the Poster because it was about allegations in court proceedings sufficient to make it a subject of actual or apparent interest for the purposes of s 30(1)(a) of the Act. Fairfax also contended that the Poster provided at least some information on the subject of apparent interest, for the purposes of s 30(1)(b), because it alerted readers to the fact that the claim had been made and that it was disputed.

4. [248]

   Mr Cummings contends that the primary judge correctly rejected Fairfax’s statutory qualified privilege defence in relation to the Poster because the poster was an advertisement and did not provide any information on a matter of public interest for the purposes of s 30(1)(b).

5. [249]

   Section 30 relevantly provides:

6. [250]

   Section 30(1) reproduces s 22(1) of the 1974 Act. Accordingly it is appropriate to have regard to the jurisprudence developed in that context.

7. [251]

   The word “interest” in s 30(1)(a) is not used in any technical sense, but in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance, or genuine interest to the readership of the newspaper, apart from its mere quality as news. [182]

8. [252]

   Fairfax submitted at trial, and in this court, that there was a public interest in reports of court proceedings, [183] and that the Poster was published to the recipient in the course of giving to the recipient information on that subject. The primary judge rejected that submission finding it was expressed at too high a level of generality because the Poster conveyed information about Mr Cummings. Accordingly, in his Honour’s view, the recipient must have an interest or apparent interest in having information about him. [184]

9. [253]

   In this court, Fairfax submitted that the Poster related to subjects of interest to its readers and to the general public. These included “the fact that Anthony Cummings (the son of legendary trainer, Bart Cummings) and Nathan Tinkler (at that time, a well-known businessman and mining tycoon with racing interests) were parties to a dispute”. That alone, it argued, was sufficient to justify the interest of the general public, particularly those with an interest in racing.

10. [254]

    Fairfax also complained that the primary judge failed to have regard to whether the “recipient” of the Poster had an apparent interest in having information on some subject. It contended his Honour should have held in its favour on this issue having regard to Ms Lahey’s evidence to which I have referred above, the fact that the story merited a poster and front-page article demonstrating that Fairfax considered the articles were of interest; and there were reasonable grounds for considering the articles to be of interest, because the allegations were made in Supreme Court pleadings in a case involving prominent businessmen.

11. [255]

    The difficulty I have with this submission is that, even if it be accepted that the readers of the Poster had an interest or apparent interest in receiving information about the court proceedings between Mr Cummings and Mr Tinkler, the Poster was not published to those recipients in the course of giving them information on that subject. [185] It did not identify the court proceedings or Mr Tinkler. It simply asserted baldly that Mr Cummings was fighting cruelty allegations. Accordingly, s 30(1)(b) was not satisfied.

12. [256]

    I would also find on Fairfax’s notice of contention that the primary judge erred in finding Fairfax acted reasonably in publishing the Poster. His Honour reached that conclusion by reference to the matters complained of, rather than just the Poster. However, even if Fairfax’s conduct in publishing the matters complained of may have been reasonable, a matter I do not determine, that did not mean it was also reasonable for it to publish a Poster with a defamatory meaning to promote interest in them. [186]

13. [257]

    While s 30(3) lists matters which a court may take into account in determining the reasonableness of a defendant’s conduct, the court is not confined to those matters. Other relevant matters may include the manner and extent of publication, the degree of care exercised and any knowledge by the defendant that a defamatory meaning may be conveyed. In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. [187]

14. [258]

    In my view, the unidentified “author” of the Poster did not act reasonably insofar as that person failed to make it clear that the allegations Mr Cummings was fighting were made in court proceedings. It was that failure which led to the defamatory imputations being carried.

15. [259]

    I would reject ground 2 in the PX-NOA and PX-FNOC.

Orders

1. [260]

   The appeal and cross-appeal raised multiple issues. Mr Cummings and Cummings Thoroughbreds have failed entirely in the Digital appeal and should pay the costs in that respect. However each party in the Print appeal has had partial success. In that respect in my view, a fair outcome, having regard to their respective responsibility for the incurring of the costs, is that each bear their costs of the cross-appeal. [188]

2. [261]

   I propose that the appeal be dismissed with costs.

3. [262]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Direct Mr Cummings to file a notice of appeal in the form of the draft in the Red Book within 7 days.

   3. (3)

      Allow the appeal in part.

   4. (4)

      Each party to pay his and its costs of the appeal and application for leave to appeal, with a view that there be no order as to costs.

   5. (5)

      Remit the proceedings to Rothman J for hearing on the damages issue in accordance with these reasons and costs.

   6. (1)

      Grant leave to cross-appeal.

   7. (2)

      Direct Fairfax Media Publications Pty Ltd to file a notice of cross-appeal in the form of the draft in the Red Book within 7 days.

   8. (3)

      Set aside the judgment against Kate Lahey.

   9. (4)

      Otherwise dismiss the cross-appeal with costs.

4. [263]

   SIMPSON AJA: I have read in draft the judgment of McColl JA. Except in one respect, I agree with the orders she proposes, and generally with the reasons she has given. The following necessarily assumes a familiarity with the background material set out in her Honour’s judgment and adopts the terminology used by her Honour.

5. [264]

   The area of disagreement concerns the imputations Mr Cummings pleaded were conveyed by the Poster. The Poster contained four words only:

6. [265]

   The imputations pleaded to have been conveyed were:

7. [266]

   The primary judge found (at [197] and [214]) that imputation 6(d) was conveyed and that no defence was made out to that imputation. He made no express finding with respect to imputations 6(a), (b) or (c). Having found one defamatory imputation conveyed, he reserved the question of damages to a date to be fixed.

8. [267]

   Since the decision in this respect was interlocutory, Mr Cummings sought leave to appeal (see Supreme Court Act 1970 s 101(2)(e)) against, inter alia, the primary judge’s failure to find that imputations 6(a)-(c) had been conveyed. Fairfax sought leave to cross-appeal against the finding that imputation 6(d) had been conveyed.

9. [268]

   The issue raised for determination by each proposed appeal is whether any or all of the imputations pleaded in paragraph 6 of the amended Statement of Claim had been conveyed.

10. [269]

    McColl JA finds that three of the imputations were conveyed.

11. [270]

    I am unable to agree; indeed, I doubt that the Poster was capable of conveying the imputations pleaded.

12. [271]

    It would be apparent to readers of the Poster that allegations of cruelty had been made against Mr Cummings. It would be equally apparent that Mr Cummings contested the allegations. The emphasis in the Poster is on Mr Cummings’ denial of the allegations. In my opinion no ordinary reasonable reader could or would conclude that the allegations were true.

13. [272]

    It is immaterial, in my opinion, that the Poster did not identify the arena in which the claims were to be fought as a court. The clear implication is that the claims are for determination in some adjudicative forum.

14. [273]

    It follows that, in relation to the Poster (the first matter complained of in the amended statement of claim) I would, if leave were granted to Mr Cummings to appeal, dismiss the appeal. I would uphold ground 1 of the Draft Notice of Cross-appeal, again assuming leave were granted. The defences (the subject of other grounds in Mr Cummings’ draft Notice of Appeal) pleaded therefore do not call for determination. Nor do the issues raised in the Notice of Contention.

15. [274]

    It is, in the circumstances of this case, appropriate to grant Mr Cummings leave to appeal, but the appeal must be dismissed. It is also appropriate to grant Fairfax leave to cross-appeal in relation to imputation 6(d): that appeal must be upheld.

16. [275]

    The orders I propose are:

17. [276]

    With respect to appeal 2017/84756 (the Digital proceedings):

18. [277]

    With respect to Mr Cummings’ application seeking leave to appeal 2017/184762 (the Print proceedings):