Bailey v WIN Television NSW Pty Ltd

1. [1]

   MEAGHER JA: I have had the benefit of reading Simpson AJA’s judgment in draft. I agree with the orders proposed and with her Honour’s reasons for concluding that imputation (c) was conveyed and that the respondents’ defence of qualified privilege is made out.

2. [2]

   As her Honour notes the first of these questions is one of fact, directing attention to what the ordinary reasonable viewer, having watched the third or fourth of the matters complained of, would have considered was conveyed or communicated. I have not found this question an easy one to answer. However in the end, I consider such a viewer would have been left with the impression that Mr Bailey had engaged in bullying and intimidation of Council staff, with the result that he was sacked.

3. [3]

   Addressing the transcript of the telecast extracted by Simpson AJA at [30], it is likely that such a viewer would progressively have noted and reasoned as follows: Mr Bailey, the general manager of the Council, has been “sacked” due to problems with staff morale; the decision of the Council to do so was not unanimous; allegations against him of staff bullying and intimidation contributed to that decision; the mayor and two others voted against doing so; however the workers were unhappy; for the majority of the Councillors to make the decision to sack him, the general manager must have engaged in some bullying and intimidation.

4. [4]

   I also agree with her Honour’s conclusion that the propositions stated by Hunt AJA in Morgan v John Fairfax Ltd [No 2] (1991) 23 NSWLR 374 are not determinative of whether a defendant’s conduct is reasonable for the purpose of the statutory defence of qualified privilege under Defamation Act 2005 (NSW), s 30.

5. [5]

   WHITE JA: The facts giving rise to this appeal are set out in the reasons for judgment of Simpson AJA which I have had the advantage of reading in draft.

6. [6]

   There were essentially two issues on appeal. First, whether the primary judge erred in concluding that the publications complained of did not convey the imputation that the appellant, as General Manager of Lithgow City Council, bullied and intimidated Council staff.

7. [7]

   Secondly, if that imputation were conveyed, whether the defence of statutory qualified privilege was established.

8. [8]

   I agree with Simpson AJA that if the imputation were conveyed, the defence of statutory qualified privilege was established.

9. [9]

   In my view, the primary judge did not err in finding that the only imputation now relied upon did not arise. I agree with the reasons of the primary judge for that conclusion.

10. [10]

    For imputation (c) to be conveyed the viewer would need to understand the broadcast as conveying the meaning that Mr Bailey did actually bully and intimidate Council staff. It would be insufficient for that viewer to understand the broadcast as conveying that there may be reasonable basis for such an allegation. That is not to say the latter meaning could not be defamatory, merely that that is not the case Mr Bailey sought to prove.

11. [11]

    What meanings would be conveyed to a viewer who is prone to a degree of loose thinking, but is not avid for scandal, is a matter of impression. The statement that, according to Council, there had been a number of allegations of bullying and harassment did not stand in isolation. They must be viewed in the context of the entire publication. Although one must allow for a degree of loose thinking on the part of the reasonable viewer, I do not consider that in the context of the program, a reasonable viewer would infer from the fact that allegations of bullying had been made that the appellant was guilty of such conduct. To the contrary, the gist of the publication was that the Council workforce was unhappy and that employees of the Council had alleged that the General Manager had been guilty of bullying. The making of the allegation of bullying had contributed to the Council’s decision to dismiss the appellant. The dismissal, according to Councillor Statham, was “probably going to be inevitable unless things change”. Unknown sources viewed the payout to the appellant as a “small price to pay for a change in the work environment”.

12. [12]

    The emphasis of the publication was that the Council’s workforce was discontented, that allegations of bullying had been made, and that the appellant’s services were terminated at a substantial price for there to be workplace harmony. It is important to stress that the word used in the broadcast was “allegations”. The oft quoted dicta of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 that “[a] man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire” (at 285) demonstrates why the use of the word “allegations” is not conclusive. However, it should not be overlooked that the ordinary understanding of that word does not always imply guilt or that the underlying substance is true. In common parlance it is often used to distinguish between untested or unproved assertions, which may or may not have foundation, from established facts and circumstances.

13. [13]

    I do not accept that a reasonable viewer not avid for scandal would assume from the fact that employees had complained of bullying, that the complaint of bullying was justified, as distinct from some employees being unhappy and being prepared to make a complaint, whether justified or not.

14. [14]

    The above conclusion is in part informed by the nature of the broadcast. As Holroyd Pearce LJ remarked in Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374 “when words with a precise and well-known meaning are used without addition of any expression which could impart some other flavour to them, it is not fair to twist them from their normal sense”. I agree with the respondent’s submission that there was nothing in the manner or tone or presentation of the broadcast, or the images used or the captions used, to suggest misconduct on the part of the appellant. Mr Wilson presented both sides of the controversy equally without favouring either side.

15. [15]

    For these reasons I would also dismiss the appeal.

16. [16]

    SIMPSON AJA: By Further Amended Statement of Claim filed in the Common Law Division of the Supreme Court on 13 September 2018 Mr Roger Bailey claimed damages in defamation arising out of four separate publications. He named WIN Television NSW Pty Ltd and WIN Corporation Pty Limited as, respectively, the first and second defendants (now the first and second respondents) and Ms Maree Statham as third defendant. The claims are governed by the Defamation Act 2005 (NSW).

17. [17]

    The proceedings were heard by Fagan J (“the primary judge”) sitting without a jury over several days in December 2019 and one day in March 2020. The proceedings against Ms Statham were, by consent, dismissed during the course of the trial. On 24 March 2020 the primary judge gave judgment for the first and second respondents: Bailey v WIN Television NSW Pty Ltd [2020] NSWSC 232 (“the primary judgment”) and ordered Mr Bailey to pay the costs of the proceedings.

18. [18]

    Mr Bailey purports, by Notice of Appeal filed on 22 May 2020, to appeal against the orders of the primary judge. An issue has arisen concerning whether he is entitled to appeal (as of right) or whether, by reason of s 101(2)(r) of the Supreme Court Act 1970 (NSW), he needs leave to appeal. By s 101(2)(r) leave is required where the amount in issue is less than $100,000. Since no damages were awarded, and the primary judge did not, on a contingent basis, assess damages, the amount in issue is speculative.

19. [19]

    Mr Bailey’s solicitor has filed an affidavit expressing his opinion that if Mr Bailey were to be successful in his claim the award of damages would be likely to exceed $100,000, and explaining his reasons for that opinion. By contrast, the solicitor acting for the first and second respondents, who has given evidence of his expertise in awards of damages for defamation, has filed an affidavit expressing a contrary view, that any award of damages if Mr Bailey were to be successful in his appeal would be no more than nominal and therefore fail to meet the s 101(2)(r) threshold. The first and second respondents have accordingly filed a notice of motion seeking an order that the appeal be dismissed as incompetent and that Mr Bailey pay their costs of the proceedings.

20. [20]

    When this issue was discussed during the course of the hearing, counsel sought and was granted leave to file an application for leave to appeal. An appeal – whether by leave or as of right – is governed by s 75A of the Supreme Court Act which provides that the appeal is to be by way of rehearing (subs (5)) and that this Court has the powers and duties of the court of first instance, including the power to draw inferences and make findings of fact (subs (6)).

21. [21]

    It is not possible at this stage to resolve this dispute. Noting that there is a question about his proper characterisation, I will nevertheless refer to Mr Bailey as the appellant.

Background

1. [22]

   The following facts are uncontroversial. For a period from September 2008 until 19 October 2016 the appellant was the General Manager of the Lithgow City Council (“the Council”). In 2016, he had the benefit of a five year contract, which was due to expire on 21 September 2017. On 19 October 2016, by a majority (6-3) vote of the Council, his employment was terminated.

2. [23]

   The first respondent, which was based in Orange in the central west of NSW, held a commercial television broadcast licence the operation of which extended to the Lithgow area. The second respondent administered a Facebook page to which it downloaded items broadcast by the first respondent.

3. [24]

   Shortly after the termination of the appellant’s employment, employees of the first respondent learned of that event. On 20 October 2016 a television journalist, James Wilson, was directed by the first respondent’s chief of staff, Ms Kate Fotheringham, to travel to Lithgow and gather information for a news item to be broadcast on the subject. On the way to Lithgow, Mr Wilson stopped at Bathurst and interviewed Ms Statham, who was one of the councillors who had voted in favour of the termination. Mr Wilson video recorded the interview. The full text of the recorded interview is annexure A to these reasons. Relevantly, Ms Statham told Mr Wilson that the appellant had been dismissed by majority decision (of the Council); that “it was a very touchy subject” but that there had been “disharmony and a lot of concerns”; that she voted as she did because she “believed change was absolutely essential”, and because the majority of workers had been very unhappy and she thought that the termination was “probably going to be inevitable unless things changed”. She said it had been “a very tough decision, one which I’ve certainly not taken lightly”.

4. [25]

   Mr Wilson then drove to Lithgow where he interviewed the Mayor, Mr Steven Lesslie, who had voted against the termination. Mr Wilson also video recorded that interview.

5. [26]

   He then asked the Mayor’s personal assistant for a telephone number on which he could contact the appellant. He was told that the telephone number could not be disclosed but that the appellant would be advised that Mr Wilson wished to speak to him. The Mayor’s personal assistant did contact the appellant advising him that “NBN” (by which she meant the first respondent) would “like to call you for your side of things”. The appellant responded negatively, saying only “try Andrew”, a reference to the senior manager of the Council who was to act as General Manager pending appointment of a replacement for the appellant.

6. [27]

   Mr Wilson then returned to Orange and contacted the local parliamentary member (Mr Paul Toole) who was also the Minister for Local Government. He conducted a telephone interview with Mr Toole. Mr Wilson then prepared a script for inclusion in the evening television news bulletin. The news item that went to air was an amalgam of extracts from the video recordings of the interviews with Ms Statham and Mr Lesslie and the audio recording of the interview with Mr Toole, with an introduction by Mr Wilson and interspersed with comments by him. It was subsequently made available for download and posted on the second respondent’s Facebook page.

7. [28]

   In his Further Amended Statement of Claim the appellant alleged that, in her interview with Mr Wilson, Ms Statham had conveyed imputations that defamed him. The content of that interview was the first matter complained of. In par 6 the appellant also alleged that, in addition to what appears in the video recording, Ms Statham had said to Mr Wilson:

8. [29]

   The news item, as telecast by the first respondent and posted on the second respondent’s Facebook page, constituted the third and fourth matters complained of and are the basis of the proceeding before the primary judge. Although there are some (very minor) variations between the two, none is material. The recordings were in evidence.

9. [30]

   A transcript of the telecast tendered as an “aide memoire” follows. Paragraph numbers and identification of participants have been added for ease of reference. The “reporter” was Mr Wilson. The other participants were Mr Lesslie, Ms Statham and Mr Toole. The telecast was in the following terms:

10. [31]

    The appellant pleaded that in broadcasting the news item the first respondent conveyed four imputations that defamed him, and that in making the news item available on Facebook, the second respondent conveyed the same defamatory imputations. He pleaded the imputations as follows:

11. [32]

    By their defences, the respondents admitted publication. They denied that the publications conveyed the imputations alleged by the appellant. They pleaded defences under the Defamation Act, s 26 (contextual truth); s 28 (publication of public documents); s 29 (fair report of proceedings of public concern); s 30 (qualified privilege) and s 31 (honest opinion). A defence of justification (s 25) was abandoned.

12. [33]

    The primary judge found that none of the imputations pleaded by the appellant had been conveyed and, accordingly, that the publications were not defamatory. Against the possibility of error, he considered, on a contingent basis, the defences the respondents had pleaded. He would have rejected the defence of contextual truth.

13. [34]

    Section 26 of the Defamation Act provides the defence of contextual truth. It is in the following terms:

14. [35]

    The respondents pleaded two contextual imputations, as follows:

15. [36]

    There was no issue that contextual imputation (a) was conveyed, and was substantially true. Although it was disputed, the primary judge held (at [47]) that contextual imputation (b) was conveyed. After a comprehensive review of the evidence he held (at [122]) that that imputation was true. He rejected the defence because he considered that, notwithstanding the truth of contextual imputation (b), the imputations pleaded by the appellant (even if conveyed) would have further harmed the appellant’s reputation (at [124]).

16. [37]

    The primary judge’s consideration of the defences was otherwise inconclusive. In respect of the defence of qualified privilege pursuant to s 30 of the Defamation Act he made detailed findings of fact, to which it will be necessary to return, but did not expressly state a conclusion.

The (proposed) appeal

1. [38]

   The basis for the proposed appeal is limited. Although the primary judge rejected all four of the pleaded imputations as not conveyed, the appellant seeks to support only one, imputation (c), which, to repeat, was:

2. [39]

   A single ground of appeal is pleaded as follows:

3. [40]

   The respondents have filed a Notice of Contention. The respondents contend that, if imputation (c) was conveyed, the defence of qualified privilege should have been (and should, on appeal, be) upheld.

4. [41]

   The primary judge gave detailed reasons for concluding that none of the imputations pleaded had been conveyed. It is only necessary to consider his reasons in relation to imputation (c). His Honour held:

5. [42]

   The reference in [40] to “par [28]” is a reference to an earlier finding by the primary judge in the context of considering whether imputation (b) was conveyed. His Honour said:

6. [43]

   Whether a defamatory imputation is conveyed (as distinct from whether an allegedly defamatory publication is capable of conveying an asserted imputation) is a question of fact. Ordinarily, this Court will not interfere with findings of fact by trial judges unless they are shown to be wrong by “incontrovertible facts or uncontested testimony”, are “glaringly improbable” or “contrary to compelling inferences”. These tests were stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 as illustrative of the potential bases on which a trial judge’s findings of fact might be disturbed: see [26], [28] – [29]. They solidified into requirements in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679, where the High Court said that an appeal court should not interfere with the trial judge’s findings of fact unless they are demonstrated to be wrong by one of those tests (at [43]).

7. [44]

   Notwithstanding the unqualified reference in Robinson Helicopter to the circumstances in which this restrained approach is to apply, it is well established that this Court, in exercising its appellate jurisdiction, is obliged to conduct “a real review” of the decision under appeal (Fox, at [25]) and, if persuaded that error has been shown, must not shrink from discharging the functions imposed by s 75A(6) of the Supreme Court Act.

8. [45]

   More recently, in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 28 the High Court confirmed that the restrained approach described in Fox and referred to in Robinson Helicopters is as to factual findings likely to have been affected by impressions formed by the trial judge about the credibility and reliability of witnesses as a result of seeing and hearing them give their evidence (at [55], per Bell, Gageler, Nettle and Edelman JJ, with whom Kiefel CJ agreed).

9. [46]

   In this case determination of whether the imputations were (or any of them was) conveyed was wholly to be made by observation of the recordings of the news item and the Facebook posting. It did not in any sense depend on “impressions about the credibility [or] reliability of witnesses formed by the trial judge”. This Court is in as good a position as the trial judge to make the assessment: Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9.

10. [47]

    Much judicial time, energy and effort has been expended in the analysis of the task of determining whether an asserted imputation is in fact conveyed by a publication of which complaint is made. In part this may be because very often the determination lies within the province of juries, who need to be carefully directed as the tests to be applied.

11. [48]

    Whether a pleaded imputation has been conveyed by a publication is to be determined by reference to what “ordinary reasonable people” would understand the publication to mean: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at [6]. “Ordinary reasonable people” are people “of ordinary intelligence, experience, and education”, are not “avid for scandal” and are fair minded. They are expected to bring to the publication in question their general knowledge and experience of worldly affairs. They are capable of some loose thinking.

12. [49]

    The test so stated derives from Capital and Counties Bank Ltd v Henty & Sons (1882) 7 App Cas. 741 at 745, cited in Lewis v Daily Telegraph Ltd [1964] AC 234 at 259, and repeatedly adopted in this State and in Australia. In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Wigney J, after a review of relevant decisions, extracted 14 “basic principles” to be applied in determining whether an imputation pleaded is conveyed. Relevantly for present purposes, they include:

13. [50]

    There was no suggestion of error in this collection of principles on appeal to the Full Court of the Federal Court: Nationwide News Pty Ltd v Rush [2020] FCAFC 115. They were adopted by the primary judge at [19].

14. [51]

    As can be seen from those paragraphs of the primary judgment extracted above, the primary judge relied on a number of circumstances to support his conclusion that imputation (c) was not conveyed. They include:

15. [52]

    I am unable to accept this reasoning. In my opinion consumers of an evening news bulletin do not, ordinarily, approach the question of what is conveyed by interrogating the published matter for details of its content. They accept at face value the assertions made, unless there is, contained within the publication, an indication that the assertions are contradicted or questionable. A news item may be contrasted with an opinion piece (written or electronic) which may be expected to be the subject of more critical scrutiny.

16. [53]

    In the case of this news item, in the absence of any suggestion of controversy over the assertions, viewers or listeners would have accepted that allegations of the kind reported had been made. I accept that that alone would not be sufficient to convey the imputation that the appellant had engaged in conduct of the relevant kind. But that was not all that was said.

17. [54]

    Nor do I accept, as stated in the opening sentence of [37] of the primary judgment, that there was no suggestion in the broadcast that any such allegation had been substantiated to anyone’s satisfaction. The ordinary reasonable viewer, in my opinion, would draw an inference of substantiation of the allegations from the stated fact that a majority of Council had voted to terminate the appellant’s employment. No reason for termination other than the allegations of bullying and intimidation was given. I do not accept that the “essence” of the publication was that the decision was merely a response to the unhappiness of the workforce. That would suggest that the appellant was (unfairly) sacrificed to an unhappy workforce, whose unhappiness could not be laid at his door. The news item implied, clearly in my opinion, that the unhappiness of the work force arose because of the conduct the subject of the allegations. That the appellant was the perpetrator of that conduct followed from the fact of the decision to terminate his employment.

18. [55]

    I do not accept that par 4 conveyed only that “the mere fact of the allegations having been received by Council alone” contributed to the majority decision to terminate. Paragraph 4 cannot be seen in isolation from the rest of the publication. When taken together with the preceding paragraph (Ms Statham saying that the “workers” had been very unhappy, and that that had been confirmed by a survey) a clear connection between the conduct of the appellant and the unhappiness of the workers was suggested. That was reinforced by Ms Statham’s subsequent observation that the decision was “probably going to be inevitable unless things changed”, and by the central fact of the broadcast, that the appellant’s employment had been terminated.

19. [56]

    Certainly, Mayor Lesslie’s stated opinion, that the decision was “an excessive overreaction to reasonably minor internal Council problems”, would not convey any suggestion of misconduct on the part of the appellant. But that comment, like par 4, cannot be taken in isolation. There was no reason for the ordinary reasonable viewer to give primacy to the stated opinion of Mayor Lesslie over that of Ms Statham (with whom five other councillors agreed), the report of allegations and, most importantly, the fact of termination of employment. In any event, Mayor Lesslie’s comment is apposite to the remedy – termination – rather than the conduct alleged (as is Ms Statham’s statement that the decision had been a “very tough” one).

20. [57]

    I do not accept that the ordinary reasonable viewer would consider the possibility that Council may have acted “precipitously and unwisely” or that the decision to terminate was “unfair and unjustified”. There is nothing in the news item that gives rise to any such possibility. It is contradicted by Mr Wilson’s final comment that “some say this is a small figure to pay for a change in the work environment”. It is also contradicted by Ms Statham’s comment that the decision was “probably going to be inevitable unless things changed”.

21. [58]

    Three salient facts are reported in the broadcast:

22. [59]

    That inference is not undercut by Mayor Lesslie’s expression of disappointment and his view that the decision was “an excessive overreaction to reasonably minor internal Council problems”. That was obviously a minority view point. And it suggests, not that the allegations of misconduct were unsubstantiated, but that Mayor Lesslie (and possibly two other councillors) considered that the remedy was more extreme than was called for by the circumstances.

23. [60]

    I would uphold the sole ground of appeal. That conclusion makes it necessary to address the Notice of Contention.

24. [61]

    Like the Notice of Appeal, the Notice of Contention is limited to a single issue – whether the statutory defence of qualified privilege is made out.

25. [62]

    By s 30 of the Defamation Act 2005, a defence of qualified privilege is made out where the defendant proves

    1. (1)

       that the recipient of defamatory matter has an interest or apparent interest in having information on some subject;

    2. (2)

       that the matter is published in the course of giving to the recipient information on that subject; and

    3. (3)

       that the conduct of the defendant in publishing the matter was reasonable in the circumstances.

26. [63]

    The only contested issue in relation to that defence was and is whether the conduct of the respondents in broadcasting the news item was reasonable in the circumstances. The appellant argued, by reference to a 1991 decision of this Court (Morgan v John Fairfax Ltd [No 2] (1991) 23 NSWLR 374), that the respondents could not succeed in the defence unless they established that they (or Mr Wilson) believed that imputation (c) was true. This they could not do in the absence of evidence that Mr Wilson turned his mind to the possibility that an imputation in those terms might be conveyed by the news item. If the respondents could not establish that Mr Wilson believed that the appellant bullied and intimidated Council staff, they could not establish that their conduct was reasonable.

27. [64]

    In Morgan [No 2], after referring to authority, Hunt AJA (with whose reasons Samuels JA agreed) said that the review of authority:

28. [65]

    His Honour went on to state a number of propositions that he considered were supported by the authorities to which he had referred. Relevantly, these were stated as:

29. [66]

    The arguments made by the appellant make it necessary to explore some of the legislative history of the defence, and judicial consideration of it. Examination of that history has persuaded me that the propositions stated in Morgan [No 2] no longer have the determinative effect that they may once have had, and do not exclusively state the tests by which the reasonableness of a defendant’s conduct is to be measured.

30. [67]

    The defence of qualified privilege has had a troubled history. It began life as a common law doctrine: Toogood v Spyring [1834] Eng R 363; (1834) 1 CM & R 181; 149 ER 1044; Adam v Ward [1917] AC 309; Braddock v Bevins [1948] 1 KB 580. The common law defence survives: Defamation Act s 6; Marshall v Megna [2013] NSWCA 30.

31. [68]

    As the authorities cited above demonstrate, the defence at common law protects the communication of defamatory matter made on an occasion where the publisher has an interest or duty (legal, social or moral) to make the communication and the recipient has a corresponding interest or duty to receive it, and the defamatory content is relevant to the occasion. The defence is defeated by proof that the communication was actuated by malice: see, for a recent general encapsulation of the defence, Aktas v Westpac Banking Corporation (2010) 241 CLR 79; [2010] HCA 35 (for example, at [14], [56]). Because of the requirement of reciprocity the defence has rarely been available to mass media publications (Aktas, at [14]).

32. [69]

    The common law defence has been joined by a statutory version, now embodied in s 30 of the Defamation Act. The statutory defence came into existence with the enactment of the Defamation Act 1974 (NSW) (“the 1974 Act”) in s 22 thereof, which then provided:

33. [70]

    Prior to 1974, there were precursors to the defence. The predecessor of the 1974 Act (the Defamation Act 1958 (NSW)), in s 17, provided defences where the publication was made in good faith:

34. [71]

    Although s 22 “was clearly intended to widen the scope of the common law defence of qualified privilege”: (Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359E (Privy Council)), it provided no guidance as to how the reasonableness of the conduct of a publisher was to be determined. In Austin, with respect to a claim for defamation arising out of a newspaper article, the publisher pleaded, inter alia, defences of comment and qualified privilege under s 22. Mr Austin’s legal representatives administered interrogatories. Specifically with respect to the defence of comment, they asked whether the journalist who wrote the article intended to convey either or both of the two imputations pleaded. The journalist replied that he did not (although he identified another defamatory imputation that he did intend to convey). That was held by the Privy Council to be prima facie evidence that could be used to show that the journalist did not hold the opinion represented, for the purposes of the defence of comment. The Privy Council added:

35. [72]

    However, with respect to what they described as “the crucial issue” in the appeal, which was the reasonableness of the conduct of the journalist, their Lordships said:

36. [73]

    Three things emerge from these observations. First, a publisher was not necessarily to lose the protection of s 22 because the publication might be held to have conveyed a meaning that was unintended. Second, courts should not too readily use the provision to excuse careless or irresponsible journalism (or other publication). Third, the unavailability of the common law defence to mass media publications has not wholly carried over to the statutory defence (although history shows that mass media publishers have struggled to avail themselves of s 22).

37. [74]

    The absence of any legislative guidance on what was to be taken to constitute reasonable conduct on the part of publishers of defamatory material inevitably led to judicial attempts at explanation.

38. [75]

    In Barbaro v Amalgamated Television Services Pty Ltd (1990) 20 NSWLR 493 Samuels JA, with whom Hope AP and Priestley JA agreed, rejected (at 500F) an argument that s 22(1)(c) “demanded” proof of honest belief on the part of the publisher in the truth of what was published, adding that, while honest belief will often be a critical element in proof of reasonableness, it did not follow that reasonableness could not be established without proof of honest belief. Nevertheless, his Honour said, it was “no doubt true” of printed publications that defendants will generally fail to establish reasonableness without evidence of such belief (at 500G). (His Honour then drew a distinction between printed publications and electronic publications, with respect to the latter of which, he considered, the proposition was “less convincing”. A printed publication, unlike an electronic publication, is necessarily dependent on “sources”. In Barbaro the publication was a television broadcast which depicted an exchange between a reporter and the plaintiff. In those circumstances, Samuels JA said, “the publication is its own source”.)

39. [76]

    In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 the High Court had under consideration a then novel non-statutory defence which may be termed constitutional freedom of communication relating to government and political affairs, which requires that the conduct of the publisher be reasonable in the circumstances (Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [5]). The Court held:

40. [77]

    The Court continued:

41. [78]

    It may be noted that the Court did not adopt, and made no reference to, the propositions stated by Hunt AJA in Morgan [No 2], and neither do those propositions appear in any form in the passage extracted. Unawareness of falsity of what was published and the absence of recklessness are not the same as actual belief in the truth of the content of the publication. It may also be observed that the Court appears to have endorsed the view of the Privy Council, stated in Austin, that s 22 was intended to “widen the scope of the common law defence”. That appears from the conclusion (stated at p 569) that, without the statutory defence, the law of defamation [including the common law defence] would impose an undue burden on freedom of communication under the Constitution. That is because, the Court said:

42. [79]

    I infer from this that the Court considered that mistaken but honest publication of defamatory material may have been protected by s 22, provided that the three conditions imposed by s 22, that is

43. [80]

    Some clarity was introduced in 2002, when the 1974 Act was amended by the addition of subs (2A) into s 22: Defamation Amendment Act 2002 (NSW). Subsection (2A) stated eight specific circumstances and matters the court “may take into account” in the determination of whether the conduct of a publisher is reasonable: in the chapeau it expressly allowed, as well, for “such other matters as the court considers relevant” to be taken into account.

44. [81]

    Introducing the Defamation Amendment Bill into the Legislative Council the Parliamentary Secretary, Mr MacDonald, said:

45. [82]

    Not included in the list of relevant circumstances were the propositions stated by Hunt AJA in Morgan [No 2], nor anything like them. But neither were those circumstances excluded as irrelevant.

46. [83]

    In 2005, the 1974 Act was repealed and replaced with the current Act – the Defamation Act 2005 (NSW). Section 30 of the 2005 Act provides:

47. [84]

    The list of circumstances deemed by Parliament to be relevant and stated in subs (3) is largely the same as that in s 22(2A) of the 1974 Act, with the addition of par (f), an equivalent of which did not appear in the 1974 Act, and par (j) (the effect of which was included in the chapeau to s 22(2A)). Again, the propositions stated by Hunt AJA in Morgan [No 2] were not adopted, but nor were they excluded.

48. [85]

    Those propositions are at odds with the reasoning of the High Court in Roberts v Bass. The decision in that case arose out of proceedings in which defences of qualified privilege at common law and the extended defence as explained in Lange were in issue. By the time the matter reached the High Court, however, the surviving issue was whether malice had been proved. The trial judge had found that each publication in question was published under qualified privilege at common law, but that that defence was defeated by the malice of the publishers. The decision is not, therefore, direct authority for what constitutes – or does not constitute – reasonable conduct for the purposes of s 30(1)(c). Nevertheless, there are some observations which are of relevance. In the joint judgment of Gaudron, McHugh and Gummow JJ the passage from Austin, set out above, was quoted. Their Honours went on to say:

49. [86]

    These remarks, made in relation to proof of malice, have equal force with respect to the assessment of the reasonableness of a publisher’s conduct.

50. [87]

    In light of these principles, it remains to be considered whether the conduct of the respondents in the publication of imputation (c) was reasonable in the circumstances that existed.

51. [88]

    It was common ground at trial that s 30(1)(a) and (b) were satisfied. The appellant did not contend, as contemplated by subs (4), that the publications were actuated by malice. The sole issue (the onus lying on the respondents) was whether the conduct of the respondents in publishing the news item was reasonable in the circumstances.

52. [89]

    The list of circumstances stated in s 30(3) as relevant to the determination of the reasonableness of the conduct of a publisher is neither mandatory (“a court may take into account”) nor exhaustive (see par (j)). No single consideration is determinative. A significant additional consideration (not expressly mentioned in s 30(3)) is the information available to the publisher prior to publication (including any information that may be provided by individuals the subject of the publication: John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227).

53. [90]

    The reasonableness of the respondents’ conduct has to be measured by reference to the conduct of Mr Wilson, and, to a lesser extent, Ms Fotheringham, as the persons through whom the respondents relevantly acted. It was, primarily, through those two witnesses that the relevant evidence was given.

54. [91]

    In the consideration of the reasonableness of the respondents’ conduct, it is necessary to have regard to the factual findings of the primary judge, particularly where those findings were arrived at on the basis of his assessment of the witnesses as they gave their evidence: Lee at [55]. Of the considerations listed in s 30(3), only (g) (the sources of information and their integrity), (i) (any other steps taken to verify information), and part of (h) (attempts made by the publisher to obtain and publish a response from the person about whom the imputations were published) potentially depend on the assessment of witnesses and their credibility. Otherwise the considerations are of objective fact and evaluation based on the publication itself. In fact, there were few credibility issues: the primary judge found Mr Wilson, in particular, to have been an impressive and credible witness, and that assessment has not been challenged.

55. [92]

    Relevantly to s 30(1)(c) the primary judge found:

56. [93]

    The primary judge declined to make any assessment of the seriousness of the imputations (s 30(3)(c)) because of his conclusion that the imputations were not conveyed (at [128]). He held that the considerations arising under s 30(3)(g) and (i) “strongly support the reasonableness of the publication” (at [135]).

57. [94]

    In the context of considering pars (g) and (i) of s 30(3), the primary judge said:

58. [95]

    The primary judge then went on to consider an argument that the respondents’ conduct could only be found to have been reasonable if it were first established that Mr Wilson believed in the truth of the imputation. This proposition derives from Morgan [No 2]. He concluded that Mr Wilson did not intend to convey imputation (c). He stated as his reason:

59. [96]

    Just what should be drawn from these findings was the subject of controversy. The respondents contended, and the appellant disputed, that the primary judge had found that “s 30 was satisfied”. The basis on which the appellant disputes the contention is obscure. He argued that the factual findings were informed by the primary judge’s decision that the imputations pleaded were not conveyed and that each of the factual findings was “premised upon the conclusion that imputation (c) was not conveyed”. So far as I can see, this argument depended upon the opinion stated in [141] of the primary judgment, set out above, that the pleaded imputations were so far removed from any reasonable interpretation of the news item that it was inconceivable that Mr Wilson intended to convey them.

60. [97]

    The appellant’s contention is contradicted by [17] in which his Honour said:

61. [98]

    Although he did not expressly say so, the obvious inference to draw from the primary judge’s detailed findings set out above is that, had he found any imputation to have been conveyed, he would also have upheld the s 30 defence. That is confirmed by the latter part of [17], in which his Honour said:

62. [99]

    In any event, any conclusion drawn is not binding on this Court, which, as stated above, must conduct “a real review” and draw its own conclusions. The drawing of a conclusion from facts found to have been established does not fall into the category of fact finding that is protected by Fox, Robinson Helicopter and Lee. This Court is in as good a position as the primary judge to decide what conclusions are to be drawn from the facts his Honour found established. Conclusions drawn from established facts do not depend on the assessment of the credibility or reliability of witnesses.

63. [100]

    On behalf of the appellant it was submitted that, notwithstanding the findings of fact set out above (only the last of which was contested), the defence of qualified privilege should not be upheld. Three principal reasons were advanced in support of that contention. First, it was said that there was no evidence that the respondents had in their possession information that directly supported the fact that the appellant had been dismissed either because of allegations that he engaged in bullying or intimidation, or because he had in fact engaged in such conduct. If the respondents did not have in their possession such information it could not have been reasonable to publish imputation (c). Second, it was said that there was no evidence that Mr Wilson had considered the possibility that imputation (c) might be conveyed, or that he took care to avoid conveying that imputation; nor was there evidence that he believed the imputation to be true. In the absence of such evidence it could not have been reasonable to publish imputation (c). The third reason was what was said to be “insufficiency of the attempts made by the respondents to obtain the appellant’s side of the story, and to determine, one way or the other, whether the appellant was alleged to be the perpetrator of the bullying and intimidation. Failure to make sufficient attempts to give the appellant an opportunity to respond to the allegation meant that the conduct of the respondents in publishing imputation (c) was not reasonable.

64. [101]

    I shall address each of these in the sequence in which they were argued. Before that is done, it is convenient to set out some additional background circumstances relevant to the reasonableness of Mr Wilson’s conduct.

65. [102]

    In early 2016, in the context of a then government policy of amalgamation of local Councils, a survey of Council staff was undertaken. The results of the survey were compiled in a report to the appellant. They were not favourable to Council management. Complaints were made of failure of “senior management to communicate with and listen to employees”; of “micro- management”; and of “bullying” or similar objectionable conduct by senior management towards employees. Some examples of specific answers are:

66. [103]

    The report of the survey had not been publicly released and, although Mr Wilson had heard rumours about its content, as at the date of the broadcast of the news item, he had not seen it.

67. [104]

    Problems in the Council workforce became known publicly. On 15 October 2016 the local newspaper (“the Lithgow Mercury”) reported that a Lithgow resident, Ms Lorraine Roebuck, had:

68. [105]

    I return now to the three matters advanced by the appellant as reasons that the s 30 defence should fail.

69. [106]

    The focus of the argument in this respect was on that part of the broadcast that was transcribed as par 4, which, it will be remembered, was a statement made by Mr Wilson that:

70. [107]

    Paragraph 4 was key to imputation (c). True it is that, alone, par 4 could not have conveyed an imputation that the appellant bullied and intimidated Council staff; it did no more than report allegations of that conduct, unattributed. It is equally true that, absent par 4, the news item could not have conveyed imputation (c). For that reason, what was asserted in par 4 was of central importance. It follows that support for par 4 was also central to the assessment of the reasonableness of the conduct of the respondents in publishing the imputation.

71. [108]

    Although no statement identifying any findings of fact to be challenged (as required by Uniform Civil Procedure Rules 2005 (NSW) r 51.36(2)) was provided, the appellant took issue with the findings in [133] and [134] (set out above). He contended that the information given to Mr Wilson by Ms Statham and Mayor Lesslie was an inadequate basis for a publication that alleged that the appellant’s employment had been terminated because he (personally) had engaged in bullying and intimidation.

72. [109]

    The respondents referred to evidence given by Mr Wilson which, they asserted, was to the following effect:

73. [110]

    The appellant disputed that this was an accurate reflection of the evidence. The point sought to be made in oral argument appears to have been that, although Mr Wilson had available to him information of an unhappy and discontented workforce, and that generalised allegations of bullying and intimidation had been made, the evidence was insufficient to identify the appellant as the perpetrator of that conduct (as I have found was conveyed in imputation (c)). The appellant, through his counsel, accepted that Mr Wilson might have come to a conclusion that:

74. [111]

    Both Ms Fotheringham, and, more particularly, Mr Wilson, gave detailed evidence in relation to the information in their possession. Mr Wilson was extensively cross-examined. His evidence in chief included:

75. [112]

    He said that he had heard about the staff survey and its results – “what they were kind of pointing towards and what the sentiments echoed in that survey were”. He believed that the issues included discontent, lack of morale, allegations of micromanaging “and things like that”.

76. [113]

    He said that emails from the Ratepayers’ Association “came flooding into [the first respondents] inbox”, from which he understood:

77. [114]

    Mr Wilson was asked if he had heard anything else about the appellant in the weeks or months prior to his termination, to which he replied (somewhat unresponsively):

78. [115]

    He said that he had not presented a story about “these rumblings” before the termination:

79. [116]

    Mr Wilson was alerted to the termination of the appellant’s employment by an ABC news broadcast on the morning of 20 October, which prompted his call to Ms Statham, who he had previously found to have been a reliable source of information, and Mayor Lesslie. The ABC broadcast had “similar content” to the news item he later broadcast. It contained mention of the Council’s survey and also (he believed) mentions of allegations that arose from that survey.

80. [117]

    When asked about his conversation with Mayor Lesslie prior to recording the interview, Mr Wilson said:

81. [118]

    In oral argument, counsel for the appellant contended that these last answers should not be interpreted as Mr Wilson saying that Mayor Lesslie had told him that the allegations of bullying and harassment were the reasons behind the vote; rather, the words “which were the allegations of bullying and harassment” were interpolations by Mr Wilson. I do not accept that interpretation. Even if the first answer extracted above is open to that interpretation, the second is not. It is quite clear that Mr Wilson was saying that Mayor Lesslie acknowledged that allegations of bullying and harassment were the reasons that the majority of councillors voted as they did.

82. [119]

    That, however, is insufficient to lay the conduct the subject of the allegations at the appellant’s door. There is nothing in that evidence that communicated to Mr Wilson the survey responses that made allegations against the appellant.

83. [120]

    I accept, as was submitted on behalf of the appellant, that there was no clear direct evidence that Mr Wilson had information that implicated the appellant as the perpetrator of the conduct the subject of the allegations. There was, however, much from which an inference to that effect could legitimately be drawn. Of particular importance was Mr Wilson’s evidence of recurrent emails from the Ratepayers’ Association (the precise content of which was not explored in any depth), Facebook postings, Mr Wilson’s awareness of the staff survey, (all of which significantly predated the Council meeting) and the ABC news bulletin, with “similar content” to that which Mr Wilson broadcast. Mr Wilson gave evidence that what was said in par 4 derived from what Ms Statham had told him (without specifying what that was). And, of course, there was the fact of the termination of the appellant’s employment.

84. [121]

    The test for reasonableness of a publisher’s conduct is less rigorous than the test for proving the truth of a defamatory imputation. As the primary judge pointed out in [133]-[134] of the primary judgment, by the time of publication Mr Wilson had accumulated a considerable store of information, from a variety of sources. At least one of those sources (Ms Statham) he considered to be “extremely credible”. Ms Statham’s express view “that change was absolutely essential” and that the termination was “going to be inevitable unless things changed”, Mr Wilson’s understanding of the content of the staff survey (incomplete though it was), the fact itself that Council had voted to terminate the appellant’s employment, and the content of the ABC news bulletin, put together, I conclude, provided sufficient information to Mr Wilson to justify the broadcast of the news item that went to air, including those aspects of it that conveyed imputation (c).

85. [122]

    The evidence as a whole satisfies me that Mr Wilson did have sufficient information to justify the publication, including the publication of imputation (c).

86. [123]

    The second reason advanced by the appellant in support of his argument that the conduct of the respondents was not shown to have been reasonable was that there was no evidence that the respondents (through Mr Wilson) had given any consideration to the possibility that imputation (c) might be conveyed, nor any evidence that Mr Wilson believed the imputation to be true. As indicated above, this contention depended substantially on the statement by Hunt AJA in Morgan [No 2], that, in most cases, in order to establish reasonableness, it will be necessary for a defendant to establish an “honest belief in the truth of what he has written”. If Mr Wilson did not turn his mind to the possibility that imputation (c) might be conveyed (I take the argument to be) then, ipso facto, he could not have had an honest belief in its truth.

87. [124]

    Particular emphasis was placed on the propositions in which Hunt AJA considered what a defendant must do to establish reasonableness of conduct in two different scenarios:

88. [125]

    In the first circumstance, Hunt AJA said the defendant must establish that he or she believed in the truth of the imputation. In the second, the defendant must establish that he or she believed in the truth of any imputation that was conveyed intentionally, and that the conduct in publishing the unintended defamatory imputation was nevertheless reasonable.

89. [126]

    These propositions give primacy to the state of mind of the publisher to the exclusion of other considerations relevant to reasonableness. Whether Mr Wilson intended to convey the imputations pleaded (including imputation (c)) was not explored either in his evidence in chief or in cross-examination. Nor was any question directed to him as to his belief (or otherwise) in the truth of any of the imputations.

90. [127]

    The Morgan [No 2] propositions remain relevant considerations. In Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45, following Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325, this Court held that the jurisprudence developed in the context of s 22(1) of the 1974 Act has continued relevance. In Stoltenberg, Gleeson JA (with whom Macfarlan and Brereton JJA agreed) quoted the whole of the passages in Morgan [No 2] extracted above. Those propositions are not inconsistent with what the High Court said in Lange. But the enactment of s 22A, in 2002 and post-dating both of those decisions, broadened the scope of relevant considerations beyond what was in the publisher’s mind, both as to what was intended to be conveyed, and the publisher’s belief in the truth of any imputation that was conveyed. Far from being the exclusive determinant or even the prime considerations, the Morgan [No 2] propositions must take their place alongside the nine considerations enumerated in s 30(3), as “any other circumstance that the court considers relevant”.

91. [128]

    Of some interest is Hunt AJA’s initial proposition in Morgan [No 2], which is directed to the publisher’s honest belief in the truth of “what he has written” as distinct from “the imputation(s) conveyed”. What a publisher intends to convey is not necessarily co-extensive with what a recipient may draw from that which is published – see Austin, at p 362, cited with approval in Roberts v Bass. In circumstances such as the present, when neither party asked Mr Wilson whether he intended to convey imputation (c), the enquiry is more aptly focused on whether he believed in the truth of what he broadcasted. Although that question also was not asked directly there was no suggestion that he did not, and all of his evidence points to a conclusion that he did.

92. [129]

    Although Mr Wilson did not explicitly give evidence either that he considered the possibility that what he published might convey an imputation that the appellant bullied and intimidated staff members and did not say (and was not asked) whether he believed that to be true, the primary judge nevertheless drew an inference that he did not intend to convey anything to that effect. That was because the primary judge considered that the imputation was “so far removed from any meaning that could reasonably be attributed to the news item” that Mr Wilson, who he considered to be intelligent and diligent, would not have intended to convey such an imputation. If it were correct that Mr Wilson did not intend to convey the imputation, the third of the Morgan [No 2] propositions would come into play, and the respondents would have to establish that Mr Wilson believed that any imputations he did intend to convey were true, and that, in relation to any that he did not intend to convey (and that were in fact conveyed – notably, imputation (c)) – his conduct was nevertheless reasonable.

93. [130]

    Given my disagreement, expressed above, with the primary foundation for the inference that the primary judge drew, it is plain that I cannot agree with that reasoning. The present question is whether, in order to establish that the conduct of the respondents was reasonable, it was necessary that they prove that Mr Wilson, if he intended to convey the imputation, believed it to be true.

94. [131]

    In my opinion the likelihood is that Mr Wilson did not expressly turn his mind to whether viewers of the news item would infer that the appellant was the perpetrator of the conduct described in the broadcast. That does not mean that he did not believe that the appellant was the perpetrator of the conduct. Nor does it mean that he intended to convey imputation (c). What is important is that there is no basis for concluding that Mr Wilson believed imputation (c) to be untrue.

95. [132]

    In fact, Mr Wilson had good reason to believe in the truth of imputation (c). That emerges from the reasons given in relation to the appellant’s first asserted basis for disputing the reasonableness of the respondent’s conduct in publishing the imputation.

96. [133]

    The third reason given by the appellant concerns s 30(3)(h), which requires consideration of whether the publication contained the appellant’s “side of the story”, and, if not, whether a reasonable attempt was made by Mr Wilson to obtain and publish a response from him. The primary judge was satisfied that Mr Wilson made reasonable attempts to give the appellant an opportunity to “put [his] side of the story”.

97. [134]

    I have set out above the primary evidence on this issue. Mr Wilson attempted to obtain a telephone number to contact the appellant and was unable to do so. At his request a message was conveyed to the appellant, who declined to engage with him. After a brief discussion with Ms Fotheringham, Mr Wilson waited in his car, for about 45 minutes, for a response. The response was (explicitly) negative.

98. [135]

    The appellant argued that these attempts were “grossly inadequate” and that Mr Wilson ought to have given a clear indication to the appellant that what he proposed to publish included allegations of bullying and intimidation. That, it was argued, could have been done by asking others (such as Mayor Lesslie) for the appellant’s contact details, or even by a Facebook communication.

99. [136]

    The termination of the employment of the General Manager of a city council is obviously newsworthy and something of which the population deserves to be informed. Time for Mr Wilson to obtain the appellant’s “side of the story” was limited if the news item were to go to air that night. A somewhat half hearted submission was made that the item could have been held over until the following evening’s news bulletin but that was obviously impractical. ABC Radio had already broadcast the news. It was part of the first respondent’s function to inform ratepayers and residents of a development of such significance and it had to do so within the time available.

100. [137]

     Given the appellant’s refusal to engage with Mr Wilson there was little more that the first respondent could have done. It was not suggested that the second respondent was in any materially different position.

101. [138]

     It is also not to be overlooked that the views of the minority of Council members were put through Mayor Lesslie. That was the best that Mr Wilson could do in the circumstances.

102. [139]

     All three reasons advanced on behalf of the appellant as a basis for rejecting the defence of qualified privilege under s 30 should be rejected. In my opinion the conduct of the respondents was reasonable in the circumstance. The defence should be upheld.

103. [140]

     The appeal should therefore be dismissed. In those circumstances it is unnecessary to decide if leave to appeal is required. The result is the same. It is therefore unnecessary to deal with the respondents’ notice of motion. The outcome would be the same, and the appellant will be liable for their costs, whether or not the appeal was incompetent.

104. [141]

     The orders I propose are: