LAZOS -v- WEST AUSTRALIAN NEWSPAPERS LTD [No 2] [2024] WASC 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION : LAZOS -v- WEST AUSTRALIAN NEWSPAPERS LTD [No 2] [2024] WASC 238

CORAM : TOTTLE J

HEARD : 29, 30, 31 JANUARY 2024

DELIVERED : 5 JULY 2024

FILE NO/S : CIV 1404 of 2020

BETWEEN : PETROS LAZOS
Plaintiff

    AND

    WEST AUSTRALIAN NEWSPAPERS LTD
    Defendant

Catchwords:

Defamation – Newspaper article – Imputation – Defamatory meaning conveyed by article – Article conveyed the plaintiff was dishonest in his conduct as a government official

Defamation – Defences – Fair summary of public documents and fair report of proceedings of public concern – Whether fairness to be assessed by reference to the entire matter published or the defamatory aspects only – ‘Matter’ is understood as the matter to the extent to which it gives rise to defamatory imputations

Defamation – Defence – Fair summary of public documents – Consideration of meaning of ‘public document’ – Email from government spokesperson to journalist not a public document

Defamation – Defence – Fair summary of public document – Matter not a summary of a public document where matter does not bear the character of a summary of a public document

Defamation – Defence – Fair summary of public document – Fairness compromised by the inclusion of other material

Defamation – Defence – Fair report of proceedings of public concern – Where matter does not bear the character of a report of proceedings – Where summary of multiple proceedings taken in combination compromises fairness

Defamation – Defence – Common law qualified privilege – Mass media publication – No reciprocity of duty and interest

Defamation – Defence – Lange qualified privilege – Reasonableness of conduct – Where conduct in publishing the matter was unreasonable

Defamation – Defence – Statutory qualified privilege – Reasonableness of conduct – Where conduct in publishing the matter was unreasonable

Defamation – Damages – Damage to reputation presumed – Hurt and distress – Where hurt and distress caused to family members compounds hurt and distress felt personally

Defamation – Damages – Aggravated damages – Damage aggravated by continuation of publication of article to time of trial

Legislation:

Defamation Act 2005 (SA)
Defamation Act 2005 (Vic)
Defamation Act 2005 (WA)
Magistrates Court Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff : Mr M L Bennett & Dr M Douglas
Defendant : Mr R Anderson KC & Mr P McCarthy

Solicitors:

Plaintiff : Bennett
Defendant : Steedman Stagg

Cases referred to in decision:

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37
Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9
Anderson v Nationwide News Pty Ltd (1964) 64 SR (NSW) 376
Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225
Bazzi v Dutton [2022] FCAFC 84; (2022) 289 FCR 1
Blackshaw v Lord [1984] QB 1
Bristow v Adams [2012] NSWCA 166
Burchett v Kane [1980] 2 NSWLR 266
Campbell v Associated Newspapers Ltd (1948) 48 SR (NSW) 301
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] UKHL 3; AC 1027
Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1Qd R 89
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44; 386 ALR 36
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Costello & Abbott v Random House Australia Pty Ltd (1999) 137 ACTR 1
Crampton v Nugawela (1996) 41 NSWLR 176
Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325, 99 NSWLR 173
Curistan v Times Newspapers Ltd [2008] EWCA Civ 432
Defteros v Google LLC [2021] VSCA 167
Dingle v Associated Newspapers Ltd [1964] AC 371
Evatt v Nationwide News Pty Ltd [1999] NSWCA 99
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Feldman v Nationwide News Pty Ltd [2020] NSWCA 260; (2020) 103 NSWLR 307
Feldman v Polaris Media Ltd [No 2] 2018 NSWSC 1035
Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56
Google Inc v Duffy (2017) 129 SASR 304
Griffıth v Australian Broadcasting Corporation [2010] NSWCA 257
Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687
Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Jensen v Nationwide News Pty Ltd & Anor [No 13] [2019] WASC 451
John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291
John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 [25]; (2003) 77 ALJR 1657
Kimber v Press Association Ltd [1893] 2QB 65
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lewis v Daily Telegraph Ltd [1964] AC 234, 258; [1963] 2 All ER 151
Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VCSA 104
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Nasif v Seven Network (Operations) Ltd [2021] FCA 1286
Nationwide News Pty Ltd v Rogers [2002] NSWCA 71
President of the Legislative Council of Western Australia v Corruption and Crime Commission [No 2] [2021] WASC 223
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Roberts v Bass [2002] HCA 57; [2002] 212 CLR 1
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195
Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Stocker v Stocker [2020] AC 593
Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Wagner v Harbour Radio Pty Ltd [2018] QSC 201
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Wraydeh v Fairfax Media Publications Pty Ltd [2021] NSWCA 153

TOTTLE J:
Introduction
1 The plaintiff, a former junior officer in the public service, sues for damages for defamation. The action arises from the publication by the defendant of articles about the plaintiff in three editions of the Weekend West newspaper on Saturday, 6 April 2019. Those editions were the print edition, an online subscriber edition, and an edition separately available online at The West Australian website. An image of the article as it appeared in the print edition is reproduced in appendix A.
2 The online article was first made available for downloading on 6 April 2019 and was still available to be downloaded at the time of the trial. The content of the online article is not materially different from the content of the print and online subscriber editions. The online article is reproduced in appendix B to these reasons.  Unless it is necessary to distinguish between them, I will refer to the articles as ‘the Article’.
The evidence
3 The plaintiff’s case was supported by his own evidence and evidence given by his brother Mr Konstantinos (Kosta) Lazos. The plaintiff’s evidence was directed primarily to supporting his claim for damages. The plaintiff was the subject of extensive cross‑examination during which his credit was challenged.  I comment on the plaintiff’s credit when dealing with the damages issue.
4 The defendant called Mr Peter de Kruijff, the author of the Article, Mr Peter Law, who was newspaper’s Chief of Staff, Mr Mark Mallabone who was the Deputy Editor, Mr Troy de Ruyter, who was the Night Editor, and Mr Anthony De Ceglie, the defendant’s Editor‑in‑Chief. Unlike the other defendant’s witnesses Mr De Ceglie was not involved in the publication of the Article. Unsurprisingly, as each of them acknowledged, the recollections of Mr de Kruijff, Mr Mallabone, Mr Law and Mr De Ruyter of their respective participation in the preparation and publication of the Article were very hazy. My impression was that much of their evidence was reconstructed with assistance from the very limited number of contemporaneous documents and by reference to their usual practice in preparing stories for publication.
The facts
5 Between 1995 and 2018 the plaintiff worked in the Media Monitoring Unit of the Department of Premier and Cabinet of the State Government of Western Australia. The plaintiff commenced employment as a ‘level 1’ public servant (the most junior level). He was subsequently promoted to ‘level 2’.  The plaintiff became a supervisor within the Media Monitoring Unit but he was not promoted beyond level 2. In cross-examination, the plaintiff accepted that he ‘was entitled to be referred to as a senior public official’. Without intending any disrespect to the plaintiff, to describe him as ‘a senior public official’ would be misleading. He was a junior officer in the public service.
6 In about 2003 the plaintiff was appointed to act as a delegate of the Community and Public Service Union. In his capacity as a union delegate, in about 2017, the plaintiff was involved in discussions with Mr Darren Foster (at the time the Director-General of the Department of Premier and Cabinet) over a proposal advanced by Mr Foster to close the Media Monitoring Unit and outsource the function of monitoring the media. The plaintiff opposed the proposal, and it did not proceed.
7 In 2018, the plaintiff was involved in a workplace conflict with a colleague in the Media Monitoring Unit. The subject matter of the conflict is presently irrelevant. The colleague made a complaint about the plaintiff the substance of which was that the plaintiff was living in the centre of Perth but claiming travel allowances on the basis that he was living in Karrinyup.  In fact, the plaintiff was living with his parents and other members of his family in the family home in Karrinyup but he maintained an apartment in the centre of Perth.
8 In November 2018, the plaintiff was approached by police detectives who told him that they were investigating allegations of fraud made against him.  The plaintiff permitted the detectives to inspect his apartment in the City and his family home in Karrinyup. The plaintiff was arrested and interviewed by the detectives and subsequently charged with two offences.  The offences included one count of fraud. It was alleged the plaintiff had fraudulently gained a pecuniary benefit of $116.35. The figure of $116.35 was the sum of five amounts of $23.27 representing claims for travel expenses made by the plaintiff over five consecutive days in late July and early August 2018.
9 The plaintiff was suspended from his employment without pay. Correspondence was exchanged between Mr Foster and a lawyer with the Community and Public Service Union acting on the plaintiff’s behalf.
10 The plaintiff appeared in the Magistrates Court on 21 January 2019 when he pleaded not guilty to the fraud charge. The other charge against him was dismissed.
11 On 5 April 2019, Mr Foster was called to give evidence to the Joint Standing Committee on the Corruption and Crime Commission of the Western Australian State Parliament. During his evidence Mr Foster disclosed the existence of a prosecution of a Department of Premier and Cabinet employee for fraud.  Although Mr Foster did not identify the plaintiff in his evidence, the prosecution to which he referred was the prosecution of the plaintiff.  Mr Foster’s evidence was to the effect that the prosecution was commenced after he had initiated an internal investigation. Mr Foster did not disclose to the Joint Standing Committee that the pecuniary benefit the subject of the charge was $116.35.
12 In the early afternoon of 5 April 2019, the ABC in its radio news bulletins reported that a ‘staffer’ at the Department of Premier and Cabinet was facing fraud charges relating to travel entitlements. One bulletin contained a short quote from Mr Foster, in which he described the plaintiff as a ‘junior officer’.
13 On Channel 10’s ’10 News First’ programme broadcast at 5.17 pm on 5 April 2019, the plaintiff was referred to as a member of the State Government’s media team and was identified by name. The words spoken by the Channel 10 newsreader were as follows:
A member of the State Government’s media team has been stood down from work without pay and charged with fraud. Peter Lazos is accused of claiming more than $40,000 in travel allowances he wasn’t entitled to. It’s understood Mr Lazos claimed travel to and from a home in Karrinyup when he was actually living several streets away from his office in west Perth. A parliamentary committee was told a private investigator was called in before referring the matter to police.
14 The statements that Mr Lazos was accused of claiming more than $40,000 in travel allowances and that he was ‘actually living several streets away from his office’ were factually wrong. As recorded above, the amount of the charge was $116.25 and Mr Lazos was living in Karrinyup and not several streets away from his office in West Perth.
15 Mr Peter Law was monitoring the media coverage of other media outlets and saw the segment of the ’10 News First’ broadcast concerning the plaintiff. He thought the story was of interest and warranted further investigation. Although, when he gave his evidence, Mr Law could not ‘really recall’ his thinking, his evidence was that he considered that as a public servant had been stood down from his job and charged with fraud involving taxpayers’ money, the story was worth publishing in the public interest.
16 Mr Law assigned Mr de Kruijff to follow up the Channel 10 story and write a lead length article. Mr de Kruijff had been asked to write what he described as ‘a straight factual article’ that he anticipated would be included in the second edition of the newspaper that was known as the ‘metro edition’.
17 Among other steps taken to prepare the story, at about 5.50 pm on 5 April 2019, Mr de Kruijff spoke on the telephone to the Honourable Alison Xamon MLC, who as a member of the Joint Standing Committee, had participated in the hearing earlier in the day. Mr de Kruijff obtained quotes from Ms Xamon. Mr de Kruijff typed out the quotes given to him by Ms Xamon and ‘checked back that those were correct’.
18 Subsequently, Mr de Kruijff had a telephone conversation with Ms Nadia Miraudo, a media officer within the Department of Premier and Cabinet with the title ‘Acting Manager Communications’. Mr de Kruijff was put in touch with Ms Miraudo by a contact within the Department of Premier and Cabinet, Ms Lannie Le‑Patterson, to whom he had spoken on the telephone.  After their telephone conversation, Mr de Kruijff and Ms Miraudo exchanged emails and in that exchange Ms Miraudo informed Mr de Kruijff that following a tip‑off an investigation had been undertaken by the Department, the plaintiff had been charged with fraud, and he had been suspended without pay.
19 Mr de Kruijff also looked up the plaintiff’s name on LinkedIn and Facebook. The plaintiff’s LinkedIn profile disclosed the plaintiff’s employment history with the State government. Mr de Kruijff was able to see some photographs on the plaintiff’s Facebook page. Each of the LinkedIn and Facebook pages had dialogue boxes that if clicked disclosed the plaintiff’s mobile telephone number. Additionally, both the LinkedIn and Facebook pages had direct messaging features that would have enabled Mr de Kruijff to send a message to the plaintiff. Mr de Kruijff had the means to contact the plaintiff on the evening of the 5 April 2019 had he wished to do so.
20 Mr de Kruijff did not attempt to contact the plaintiff to obtain a comment from him. He did not regard it as relevant to do so.
21 Mr de Kruijff spoke to the Deputy Editor of the newspaper, Mr Mallabone, about the story. At 7.47 pm, Mr de Kruijff sent Mr Mallabone an email into which he had embedded a link to the plaintiff’s LinkedIn profile.
22 Mr Mallabone’s evidence was to the effect that he was only ‘vaguely aware’ of the story that day but he did remember having a concern that the photograph to be used in conjunction with the Article was a photograph of the plaintiff and not a third party. Mr Mallabone had no recollection of reading the Article on the evening of 5 April 2019 but having read it before giving evidence considered that the story was one people would be interested in reading because he thought it went to ‘trust in the government’ and ‘there was a serious question to be asked about whether or not someone within the government had fallen short of the standards that the average person and the average reader of the paper would expect of someone in that role’. In cross-examination, Mr Mallabone maintained that his editorial judgment would have been exactly the same if he had known that the allegation against the plaintiff concerned $116.35. He said, ‘there’s no such thing as a minor fraud’ and it was not a ‘trivial matter’.
23 At some point Mr de Kruijff looked up the plaintiff’s name on the ‘eCourts’ portal and ascertained that there was a charge of fraud associated with the plaintiff’s name and that he had pleaded not guilty.
24 When preparing the Article Mr de Kruijff did not have a transcript of the proceeding in the Magistrates Court on 21 January 2019, he did not have the prosecution notice or any other document relating to the fraud proceedings and he did not have a transcript of the Joint Standing Committee proceedings. Neither Mr de Kruijff nor any other of the defendant’s journalists had attended the Joint Standing Committee proceedings. Mr de Kruijff accepted that contacting the Police to find out about the charge was an obvious inquiry to make but could not recall whether he did so. I find that he did not do so. Had he done so, I think this would have been recorded by him in the email to which I refer in the next paragraph.
25 At 8.04 pm on 5 April 2019, Mr de Kruijff sent a draft of the Article to the defendant’s legal counsel. The email was copied to, among others, Mr Law. Mr Law sent Mr de Kruijff an email asking him whether he had checked ‘eCourts for the listing’ to which Mr de Kruijff replied by email to the effect that he had checked ‘eCourts’ and gave details of the hearing on 16 May 2019. In his reply email to Mr Law, Mr de Kruijff also said:
DPC has confirmed his identity.
Channel 10 reported he rorted $40,000 but DPC said that was incorrect, they did not say how much it was.
26 When giving evidence Mr de Kruijff said either Ms Le‑Patterson or Ms Miraudo had told him the amount of $40,000 was incorrect. Mr de Kruijff could not recall whether he had asked Ms Le‑Patterson or Ms Miraudo what the correct amount was. It is unlikely that he did so because had he done so, there was no reason why Ms Le‑Patterson or Ms Miraudo would not have disclosed the correct amount of the alleged pecuniary benefit to him and, in turn, had he been told the amount it is likely he would have mentioned the amount to Mr Law.
27 Mr De Ruyter was the night editor of the newspaper on 5 April 2019. His responsibilities included deciding the placement of the Article on the page and selecting the photograph. Mr De Ruyter could not recall whether he wrote the headline but he did not think so (Mr de Kruijff’s evidence was that he did not write the headline or select the photograph). Mr De Ruyter accepted it was his role to check the headline if someone else wrote it. The evidence points to the author of the headline being either Mr de Kruijff or Mr De Ruyter. Mr de Kruijff firmly denied that he wrote the headline whereas Mr De Ruyter’s evidence was equivocal. While it is not a matter of significance, on balance, it is more likely that Mr De Ruyter wrote the headline. I accept his evidence that he had no input into the text of the Article itself. Mr De Ruyter’s evidence was to the effect that it was not his role to check the Article for factual accuracy. He was not involved in the presentation or uploading of the online version of the Article.
28 At the plaintiff’s trial on 16 May 2019 the prosecutor informed the magistrate that he was not persuaded there was a reasonable prospect of conviction and said that it would be unethical to proceed to trial and offered no evidence. The plaintiff was acquitted. The defendant continued to publish the online article but it did not publish a follow up article to the effect that the plaintiff had been acquitted. At trial it was demonstrated that the online article is the first matter that appears when the plaintiff’s name is searched using the Google search engine.
29 None of the defendant’s witnesses explained why there had been no reporting of the fact the plaintiff had been acquitted of the fraud charge.  Mr de Kruijff no longer works for the defendant. He was unable to recall when he had learned the plaintiff had been acquitted of the fraud charge. He said he had told the Courts Editor about the case. Mr Mallabone was not sure when he became aware the plaintiff had been acquitted of the fraud charge. He could not explain why, if it was in the public interest to publish an article raising the serious question of whether there had been a failure to comply with the high standards expected of public servants, it was not in the public interest to publish an article disclosing that the high standards had been met.
30 Mr Mallabone gave evidence about the circulation of The West Australian and the number of times the subscriber and online versions of the Article were viewed. His evidence established the following:
(a) 186,000 print copies of the 6 April 2019 edition of the Weekend West were sold.
(b) The online subscriber edition (also referred to as the ‘digital replica editions’ of the 6 April 2019 Weekend West received 89,180 ‘pageviews’ from 531 ‘users’, on that edition’s release date (my understanding is that the term ‘users’ does not equate with individuals but is to be equated with the internet address referrable to a subscriber ‑ in other words the term ‘users’ admits the possibility that several individuals utilising one subscription may each have viewed the online subscriber edition).
(c) The online version of the article (that is the version available by ‘clicking’ on the article on the ‘The West Australian website’) was accessed on 2122 occasions by 1931 ‘users’ during the month of April 2019 (again ‘users’ is not to be equated with individuals but with separate internet addresses).
31 I find, as Mr Mallabone accepted, that the circulation statistics cannot accurately reflect the number of people who read the hard copy edition of the paper, and that the data analytics reports cannot accurately determine how many people access the digital editions given the understanding of the ‘user’ metric.
32 On 29 July 2019 the plaintiff’s lawyers served a ‘concerns notice’ on the defendant. The concerns notice disclosed that the plaintiff was acquitted of the fraud charge on 16 May 2019 and recorded the prosecutor’s remarks to the effect that there was no reasonable prospect of a conviction and it would be unethical to proceed with the trial.
33 The plaintiff also served a ‘concerns notice’ on Network Ten Pty Ltd in respect of the Channel Ten news broadcast on 5 April 2019. The plaintiff accepted that he complained the Article and the Channel Ten news broadcast conveyed the same defamatory meanings, as the plaintiff put it, ‘… they both insinuated that I defrauded the public purse by different figures’.
34 On 6 May 2020, the plaintiff commenced defamation proceedings against Network Ten Pty Ltd in respect of the broadcast on 5 April 2019 and a follow-up broadcast on 23 August 2019. The proceedings were settled. The settlement was recorded in an instrument entitled ‘Settlement and Release Agreement’ executed on 19 May 2021 that provided for the payment to the plaintiff of the sum of $115,000. This amount was expressed to be inclusive of costs. No apology was provided by Network Ten Pty Ltd. The settlement instrument recorded that settlement had been reached at a court ordered mediation. The plaintiff adduced no evidence as to the costs incurred by him. In closing submissions, the plaintiff’s counsel, in effect, invited me to infer that the mediation would have occurred after pleadings and after significant costs had been incurred by the parties including the plaintiff.
35 Judges frequently warn parties that defamation actions are notoriously expensive, and I am prepared to infer that the plaintiff incurred significant costs in pursing his action against Network Ten to the stage of mediation. It is, however, unsatisfactory that evidence of the actual costs incurred was not adduced. Based on my understanding of the steps usually taken in defamation actions defended by media organisations and my experience of the costs of litigation generally, I estimate that the plaintiff’s costs including disbursements would have been in the region of $45,000.
36 On 8 January 2022, the plaintiff reached a settlement with the Department of Premier and Cabinet in relation to disputes about his employment. His employment as a member of the public service came to an end. The plaintiff now works in hospitality as the manager of a restaurant at a yacht club in Perth and undertakes building management work.
37 I deal with the issue of damages later in these reasons.  In that context, I make further factual findings.
Issues and summary of conclusions
38 The issues are as follows:
(a) Were one or more of the defamatory imputations pleaded by the plaintiff conveyed by the Article?
(b) If any one or more of the imputations are found to have been conveyed by the Article, and are found to be defamatory, whether the publication is protected by one or more substantive defences, namely:
(i) fair report of proceedings of public concern – s 29 of the Defamation Act 2005 (WA).
(ii) Fair summary of public documents within the meaning of s 28 of the Defamation Act.
(iii) The matter complained of was published on an occasion of qualified privilege pursuant to s 30 of the Defamation Act, or at common law including in accordance with the implied constitutional freedom in relation to the publication of government or political matters.
(c) If any of the imputations were found to have been conveyed by the Article and the defences fail, what damages should be awarded.
39 For the reasons given below I have concluded that:
(a) The Article conveyed the imputation that the plaintiff was dishonest in his conduct as a government official.
(b) The defendant has not established the defences upon which it relies.
(c) The plaintiff should receive an award of general damages in the sum of $180,000.
The defamatory meaning
Applicable principles
40 The primary principles that guide the court in determining whether imputations are conveyed by ‘matters complained of’ and the authorities from which the principles are derived were set out by Chaney J in Rayney v Western Australia. The principles are as follows:
(a) The meaning of the words is to be ascertained by the sense in which fair-minded ordinary reasonable members of the general community would understand the published words.
(b) The ordinary person does not live in an ivory tower and is not inhibited by a knowledge of the rules of construction. The ordinary reasonable reader can and does read between the lines in the light of their general knowledge and experience of worldly affairs.
(c) A reader may be acting reasonably even though they engage in ‘a certain amount of loose thinking’.
(d) The ordinary reasonable reader does not formulate reasons in their own mind: they get a general impression and one can expect them to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.
(e) Although an ordinary reasonable reader may engage in some loose thinking, they are not a person ‘avid for scandal’. A reasonable reader considers the publication as a whole. They try to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory.  If ‘[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together’. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article.
(f) The mode and manner of publication is material to a consideration of the meaning of the words. The reader of a book, for example, is assumed to read it with more care than they would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader.
(g) The meaning of the words is not determined by the evidence of the plaintiff as to what he understood the words to mean, nor by the evidence of the defendant as to what the defendant intended the words to mean. The meaning is to be determined by an assessment of the ordinary reasonable person’s understanding of the words.
(h) The ordinary reasonable reader does not interpret the publication in a precise manner, but rather forms a general impression of the meaning from the words used.
(i) Whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory.
41 Reflecting that the mode and manner of publication is material to a consideration of the meaning of the words, in Stocker v Stocker, Lord Kerr of Tonaghmore JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin JJSC agreed) observed that ‘the hypothetical reader should be considered to be a person who would read the publication … and react to it in a way that reflected the circumstances in which it was made’, and went on to express agreement with the observations made in earlier cases that social media is a casual medium and an impressionistic approach is the most appropriate approach to determining the meanings that a social media post conveys to the ordinary reasonable reader.
42 Emphasis, presentation, context, irony, sneers and other rhetorical devices can reinforce or negate a meaning that the same words said or read in isolation of the circumstances of their communication would have conveyed.
43 Several principles have been developed where the matter complained of includes statements that a person has been charged with a criminal offence. Those principles were also considered by Chaney J in Rayney and, relevantly, are as follows:
(a) 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.
(b) The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although they know that many persons charged with a criminal offence are ultimately convicted, they are also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.
(c) Statements concerning police investigations into a plaintiff commonly give rise to three possible defamatory meanings namely that the plaintiff is guilty, that there are reasonable grounds to suspect that the plaintiff is guilty, or that there are grounds for investigating whether the plaintiff is guilty.
44 The decisions of the High Court in Mirror Newspapers Ltd v Harrison, and Favell v Queensland Newspapers Pty Ltd, illustrate the analysis to be undertaken when it is contended that newspaper reports either impute or are capable of imputing guilt of a criminal offence.
45 In Mirror Newspapers Ltd v Harrison, Mason J (as his Honour then was) (with whom Wilson J agreed, and Gibbs CJ and Brennan J agreed subject to presently immaterial reservations) described the report on which the plaintiff sued as follows:
The report was published on the first and second pages of the “Daily Mirror” newspaper on 14 August 1980.
On the front page, in headlines two inches high, the article says:
BALDWIN: 4 ARRESTS’
and, in smaller type:
‘3 MEN, WOMAN HELD IN RAIDS’.
The headline on the second page is:
‘BALDWIN – 4 ARRESTED’
and, in smaller type:
‘Police raid city homes.’
On each of the two pages there is a photograph of the plaintiff (with part of his face blocked out) as one of the three men arrested. The article states that the arrests were made ‘in dawn raids today over the bashing of State Labour M. P. Peter Baldwin’. Mr. Baldwin is said to have been ‘viciously bashed by at least two men’ and to have suffered ‘shocking facial injuries and a fractured skull and requiring more than 50 stitches in his wounds’ necessitating ‘almost two weeks in hospital’. The article reminds its readers that Mr. Baldwin had earlier made allegations of vote-rigging and of the infiltration of organized crime into inner-City Labor Party branches, and implies that the attack upon him was in reprisal for those allegations.
The arrests are said to have followed a month of ‘intensive investigation by a special squad of detectives’ who had ‘worked around the clock to fulfil a directive from the Deputy Premier, Mr. Ferguson, that the culprits be found’. The article says that a fourth man may be arrested and that all five are expected to appear in Court later that day, to be charged with ‘conspiracy and fraud’.  The article states that tight security will surround the Court when they so appear.
The two imputations at issue are in the following terms:
(i) That the plaintiff was directly or indirectly involved in the vicious bashing of Mr. Peter Baldwin on the night of 17th July 1980 whereby Mr. Baldwin suffered shocking facial injuries and a fractured skull, required treatment consisting of more than fifty stitches in his wounds and spent almost two weeks in hospital;
(ii) That the plaintiff was guilty of a criminal offence in connection with the said bashing.
46 In his judgment Mason J referred to several of the principles to which I have referred earlier in these reasons and said:
As we have seen, there is now a strong current of authority supporting the view 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. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.
…
The question which remains is whether the melodramatic account published in the appellant’s newspaper is capable of bearing the imputation that the respondent was guilty. The report focuses attention on the violence of the attack on Mr. Baldwin, the intensive nature of the investigation and the circumstance that “a special squad of detectives” “worked around the clock to fulfil a directive from the Deputy Premier, Mr. Ferguson, that the culprits be found”. No doubt this suggests that the matter was regarded as important by the Government and by the police. But I fail to understand how a reasonable reader would read it as meaning that the plaintiff was guilty of the offence or that he was involved in the attack on Mr. Baldwin.
(Emphasis supplied)
47 In Favell v Queensland Newspapers Pty Ltd, the High Court was concerned with whether the article (the text of which I set out below) was capable of conveying defamatory imputations that (a) the appellants committed the crime of arson (b) the appellants were reasonably suspected by the police of committing the crime of arson and (c) the second appellant (Mrs Favell) lied about neighbourhood reactions to the proposed development of the Griffith Street property.
DEVELOPMENT SITE DESTROYED – FIRE GUTS RIVERSIDE MANSION
A MULTIMILLION-dollar Brisbane home which is the subject of a controversial development application burned down early yesterday morning.
Owners of the house on the Brisbane River at New Farm, which has views across the city, had applied to build a five-storey block of units.
Barrister Paul Favell, his lawyer wife Diana and his three teenage children will return home from holiday in Rome to find the Griffith St home gutted.
Firefighters took almost two hours to extinguish the blaze which started about 4 am yesterday morning and caused severe structural damage.
Speaking from Rome, a distressed Ms Favell told The Sunday Mail:
‘We are devastated and we’re just trying to get home as soon as possible.
‘We had some cousins house-sitting and we’re just so glad they weren’t in the house at the time.’
Relatives arrived to see the multi-storey house – which has security gates and a private river pontoon and boat – gutted.
Mr Favell’s sister, who did not wish to be identified, said: ‘I’m just in shock. The women who were house-sitting would usually have been home but they decided to stay somewhere else instead.’
It is understood neighbours had planned a meeting to protest against the impending unit development.
Neighbour Margaret Morrisey said: ‘None of us are happy about the application.
‘The ambience of New Farm is being destroyed because of all these units going up.’
Another neighbour, Peter Campbell, said about a dozen residents had planned to attend the meeting.
‘People want to keep the character of the street and keep it the way it is,’ he said.
Asked whether the planned meeting would go ahead Mrs Morrisey said: ‘No, the meeting won’t go ahead now. It’s all gone.’
Asked about the reaction from neighbours to the application for development on the property Ms Favell said: ‘We provided copies of the plans to both neighbours and they were fine about it.’
Police said investigations into the cause of the fire were continuing.
Detective Senior Constable John Kilburn from the arson investigation unit said the cause of the fire was not known.
‘All fires are treated as suspicious until otherwise disproved and we will follow all lines of inquiry,’ he said.
A Queensland Fire and Rescue spokesman said security, the location of the house and debris had hindered firefighters.’
48 In their joint judgment Gleeson CJ, McHugh, Gummow and Heydon JJ said:
As to imputation (a), an article which is capable of conveying the meaning that there are reasonable grounds for suspicion of arson, and which also states and elaborates those grounds, taking as the introduction to an account of the fire the existence of the controversial development proposal, and developing the story by giving the neighbours’ point of view, could reasonably be found by a jury to convey that the suspicion is well-founded and that the suspects are guilty. An article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire.
Thus, a jury could reasonably conclude that several of the following grounds pointed to the fire being deliberately lit and that it was more likely than not that the appellants were responsible for it because they had a motive for destroying the existing building:
(1) the appellants wished to build a five-storey block of units and knew that the development would be strongly opposed by residents of the surrounding neighbourhood;
(2) the prospect of getting approval for building the units would be improved if there were no existing building on the site;
(3) the absence from the premises of relatives of the appellants who were supposed to be minding the house was unexplained;
(4) the fire started at 4 am;
(5) the security gates at the premises made it unlikely that, if the fire was deliberately started, the person or persons responsible could have gained access to the premises without the assistance of the appellants or their agents;
(6) the second appellant had attempted to create the false impression that the development was not controversial; and
(7) the appellants were absent overseas when their house was burnt down.
When all these matters are taken into account, a jury could reasonably conclude that “it would put an incredible strain on human experience” if the appellants’ proposal to redevelop their property was not facilitated by the fortuitous occurrence of a fire.
49 In John Fairfax Publications Pty Ltd v Obeid, in the context of considering imputations of bribery and corruption, McColl JA (with whom Sheller and McClellan JJA agreed) expressed a degree of scepticism about the ordinary reasonable reader’s appreciation of the presumption of innocence. Her Honour said:
It is, in my opinion, 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. Indeed doubts have been expressed about the proposition that the ordinary reasonable reader would be mindful of the presumption of innocence even in the context of a report of police charges. In Lewis v Daily Telegraph Ltd (at 285), Lord Devlin observed that a simple statement the “the plaintiff’s affairs are being inquired into” would not injure the plaintiff’s reputation “if everybody bore in mind, as they ought to, that no man is guilty until he is proved so but unfortunately they do not.”
The text of the Article
50 The text of the article published in the print and online subscriber editions was as follows:
Top public official faces fraud charge
1 A long-serving public official has been suspended without pay from the top State Government office as he faces a fraud charge.
2 Petros Lazos, pictured, who has worked for decades in government and recently within the Department of Premier and Cabinet, has pleaded not guilty to the charge and is going through the Magistrates court.
3 A Department of Premier and Cabinet spokeswoman said it launched an investigation of an employee last year after a tip‑off.
4 ‘The matter was referred to police,’ she said. ‘The employee was charged with fraud and suspended without pay pending the court case.’
5 That an investigation had occurred was unearthed in a government committee hearing into crime and corruption issues yesterday where MPs grilled DPC director-general Darren Foster and director of corporate services Gary Meyers.
6 Greens government integrity spokeswoman Alison Xamon said during the hearing it was indicated the resulting report out of the DPC investigation of one of its employees could be made public. ‘I certainly hope it is made public,’ she said.
7 ‘I think that the general public wants to feel confident that when corruption has been alleged or uncovered that all efforts are being made to ensure that our processes are improved so that they can’t happen again.’
8 ‘Throughout the course of (recent) public hearings and through subsequent CCC reports, concerns around the culture of whistleblowing in particular and a lackadaisical approach to policies and procedures has seemed to have been a bit of a recurring theme (in government) and that is of concern.’
9 The revelation comes just weeks after the Corruption and Crime Commission released a report on the former commissioner for the WA Government in Japan—whose role fell under the auspice of DPC until June, 2017—containing allegations he rorted more than $500,000.
51 The online version of the article appeared under the headline ‘Top WA public official Petros Lazos faces fraud charge’ and the photograph of the plaintiff that appeared under the headline was captioned ‘Petros Lazos has been suspended without pay’. In the online version the word ‘pictured’ that appeared in the second paragraph of the print and online subscriber editions was not included, otherwise, the articles were in identical terms.
The imputations
52 The plaintiff contends that the articles conveyed the following imputations:
(a) the plaintiff was dishonest in his conduct as a government official; alternatively;
(b) there were reasonable grounds to suspect that the plaintiff was dishonest in his conduct as a government official;
(c) there were reasonable grounds to suspect that the plaintiff is guilty of criminal fraud; alternatively,
(d) there were reasonable grounds to suspect that the plaintiff had defrauded the State Government of thousands of dollars or more.
Analysis and conclusion
53 As set out in the authorities the court must undertake an objective evaluation to determine whether an ordinary reasonable reader would have understood the articles to have conveyed any particular imputation or meaning. As Rares J observed in Chau v Australian Broadcasting Corporation (No 3):
The process necessarily is imperfect because by the time that the tribunal of fact must decide this question, the matter complained of will have been played several times, counsel will have emphasised factors of it that support the conclusion that favours their respective client and the debate will have focussed around the pleaded imputations as the formulation of the meanings that the publication would or would not have conveyed.
54 Although Rares J’s observations were made in the context of a television broadcast, a very similar process of vigorous debate and detailed analysis at trial precedes a determination of whether a newspaper article conveys defamatory imputations.
55 I will deal first with characteristics of the ordinary reasonable reader of the Weekend West.  The print edition of the Weekend West is published in tabloid form. The online subscriber edition reproduces images of the printed pages. In his submissions, the plaintiff referred to the Weekend West as a tabloid newspaper in a pejorative sense meaning that it was characterised by sensationalist and ‘salacious’ journalism. Even if I were to accept that characterisation, it does not assist in identifying the characteristics of the ordinary reasonable reader because the Weekend West is the only state-wide print newspaper published in Western Australia on Saturdays and it is the sister publication to The West Australian, the only state-wide print newspaper published in Western Australia.
56 Accordingly, those who want to read about current events in print in this State will be drawn to the Weekend West.  In short, its readership is drawn from all sections of the community.
57 In my view, in 2019 the ordinary reasonable reader of the Weekend West had no characteristics that distinguished them from members of the community generally. I consider they would have approached the Article in the manner of the hypothetical ordinary reasonable reader described in the authorities to which I have referred.
58 While I acknowledge the force of the observations made by Lord Kerr in Stocker v Stocker about social media, in my view, digital news services are not to be equated with social media (albeit that social media posts are often linked to stories published by digital news services).
59 In my view the ordinary reasonable reader reads a news story published by a digital news service with more attention than they would bring to a social media post. That said, however, the ordinary reasonable reader of a digital news service is as prone to forming a general impression of a digital news report as they are to forming a general impression of a print news report.
60 Turning to the Article, these general observations may be made.
61 The Article was the ‘lead’ news story on page 9 (a lead news story is a story of between 300 and 350 words that is the main story on a page).  The ordinary reasonable reader’s attention would be drawn to the Article by the prominence on the page of the headline and its text, in particular (in the print edition) the emphasis on ‘Top public official’ and by the inclusion of the plaintiff’s photograph. The headline both drew the reader’s attention to the Article and gave the Article dramatic impact.
62 The headline taken with the description in the opening two paragraphs of the Article to the plaintiff as a ‘long-serving public official’ who has worked for ‘decades’ within the Department of Premier and Cabinet coupled with the use of the words ‘revelation’ and ‘rorting’ in the final paragraph give the Article a sensationalist overtone.
63 The plaintiff had been a public servant for approximately 23 years, but he held no official position in the sense of ‘holding an office’ and he performed no duties that would be regarded as ‘official duties’. By no means did he warrant the description ‘Top Public Official’.
64 The Article was not lengthy. Its content was not such as to draw the ordinary reasonable reader into undertaking a close and considered analysis. Rather the ordinary reasonable reader would have formed a general and superficial impression of the contents of the Article.
65 The defendant characterised the imputation that the plaintiff was dishonest in his conduct as a government official as ‘the guilt imputation’. Its contentions in relation to this imputation were to the following effect:
(a) There is no sensible basis upon which the guilt imputation could arise because the Article is clear that the plaintiff is facing charges, that is allegations, and he has pleaded not guilty. Whilst he has been suspended without pay, his employment has not been terminated as it might be if there was some underlying suggestion that he was guilty.
(b) In contrast to the article considered by the High Court in Favell v Queensland Newspapers there is nothing in the Article that would support a finding that the Article carried the imputation that the plaintiff was guilty.
(c) The reporting in this case is much closer to the factual account of the charging of the plaintiff in Mirror v Harrison that was held to be incapable of conveying a meaning of guilt.
(d) That in formulating this imputation, for reasons that are unexplained, the plaintiff has departed from the language used in the Article (‘faces a fraud charge’ and ‘charged with fraud’) and this should result in the rejection of the guilt imputation.
66 It is unnecessary to consider whether it is a pious presumption that the ordinary reasonable reader of the Article would be mindful of the presumption of innocence because, contrary to the defendant’s contentions, in my view the Article has several features that taken together insinuate the plaintiff was guilty of dishonesty.
67 First, the plaintiff is introduced as a ‘Top public official’ and ‘a long serving public official’. The incorrect description ‘Top public official’ and the reference in the concluding paragraph to allegations that the State Government’s former commissioner in Japan (a person who truly was a senior public official) had allegedly ‘rorted more than $500,000’ frame the story.  Taken together they are calculated to conjure in the reader’s mind the image of a public service ‘fat cat’ who has used his position to advantage himself.
68 Secondly, the Article states the plaintiff has not only been charged with fraud but also suspended without pay. The reference to the plaintiff being suspended without pay is emphasised. It appears twice in the print and subscriber versions of the Article and three times in the online version. The defendant contended, in effect, that the references to the plaintiff being suspended without pay rather than having his employment terminated negated the existence of an underlying suggestion that the plaintiff was guilty. With respect, I do not agree. Suspending a person without pay would be viewed by the ordinary reasonable reader as a severe disciplinary sanction. And a sanction consistent with the Department of Premier and Cabinet having formed a very adverse view of the plaintiff suggesting that it was only a matter of time before the plaintiff was convicted and at which point his employment would be terminated.
69 Thirdly, the reference to the investigation being ‘unearthed’ in a government committee hearing goes beyond a straight factual statement about the charge and creates the impression the plaintiff had been involved in something sinister that had been concealed.
70 Fourthly, the underlying sinister theme is developed further by the references in the quoted remarks from Ms Xamon about making public a report of the Department of Premier and Cabinet’s investigation. The ordinary reasonable reader would conclude several things.  First, that the words ‘the DPC investigation of one of its employees’ was a reference to an investigation into the plaintiff’s conduct and, secondly, that Ms Xamon’s hope that the ‘resulting report’ would be made public so the public could be confident that ‘our processes are improved so that they can’t happen again’ was a reference to improving processes so that conduct of the kind the plaintiff had in fact engaged in could not happen again. That is so even though Ms Xamon is quoted as referring to what is to occur ‘when corruption has been alleged or uncovered’. I consider the ordinary reasonable reader engaging in some loose thinking and formulating a general impression of what was being said in the Article would understand the point of making the report public was to ensure that processes are improved so the corruption that has been uncovered, rather than merely alleged, could not happen again. Put another way, the ordinary reasonable reader would understand the report to be not only a report about the plaintiff’s conduct but about conduct on the plaintiff’s part of a particular kind; that is, conduct that requires an improvement in processes so that it could not happen again.
71 Fifthly, although Ms Xamon’s quoted remarks that, ‘[t]hroughout the course of (recent) public hearings and subsequent CCC reports, concerns around the culture of whistleblowing in particular and a lackadaisical approach to policies and procedures has seemed to have been a recurring theme (in government) and that is of concern’, were remarks of a general nature and not expressly linked to the plaintiff, the ordinary reasonable reader would draw a link between the fact that the investigation into the plaintiff’s conduct that led to the criminal charge was the result of a ‘tip-off’ and Ms Xamon’s concerns about ‘whistleblowing’, thereby reinforcing the impression of guilt.
72 Sixthly, the reference in the final paragraph to ‘the Corruption and Crime Commission report into the former commissioner for the WA Government in Japan’ suggests that the conduct of the plaintiff as a ‘Top public official’ can be compared with the conduct of the ‘former commissioner’ who had allegedly ‘rorted more than $500,000’.
73 Seventhly, that the guilt imputation departed from the words used in the Article is not an unusual feature of an imputation in a defamation action and it does not negate the imputation.
74 In my judgment, when the Article is read as a whole, the features to which I have referred combine to constitute a clear insinuation that the plaintiff is guilty of dishonest conduct in his capacity as a government official. While a lawyer who read the Article might reflect upon the presumption of innocence when reading the Article and be cautious in drawing conclusions of guilt from it, in my view, the ordinary reasonable reader would not be so restrained and would draw the conclusion the plaintiff had acted dishonestly.
75 The view expressed in the preceding paragraph reflects the analysis I have undertaken and, in so far as I am able to stand back and identify my own response to the Article divorced from the detailed analysis undertaken during the trial, it reflects my response to the Article. I am satisfied the ordinary reasonable reader would draw the imputation the plaintiff had been dishonest in his conduct as a government official. The imputation was clearly defamatory of the plaintiff.
76 The plaintiff pleaded the imputations in the alternative. Having found the guilt imputation (the most serious imputation) was conveyed by the Article it is unnecessary for me to consider the alternative imputations pleaded by the plaintiff.
Fair summary and fair report defences
77 Relying on s 28 and s 29 of the Defamation Act, the defendant pleaded the Article was a fair summary of various public documents and a fair report of proceedings of public concern.  There is a substantial overlap in the principles that govern these defences and there is a substantial overlap in the application of the principles to the Article. It is convenient to consider the defences together.
The pleaded defences
78 The defendant pleaded the Article was a fair report of the following proceedings of public concern:
(a) Western Australian Police prosecution proceedings PE 969 of 2019 and PE 1639 of 2019 against the plaintiff in the Magistrates Court (fraud proceedings);
(b) proceedings of the Western Australian Parliament’s Joint Standing Committee on the Corruption and Crime Commission (the Committee) held on Friday, 5 April 2019 (Joint Standing Committee proceedings);
(c) proceedings:
(i) of the Western Australian Parliament on 12 March 2019 in respect of which the Corruption and Crime Commission (CCC) report entitled ‘Report on WA Commissioner in Japan’ dated 12 March 2019 (CCC Report), was tabled; and
(ii) of the sitting of the Legislative Assembly of the Western Australian Parliament on 13 March 2019 during which there was debate about the CCC Report.
79 The defendant supported the fair report of public proceedings defence by pleading the following particulars:
(a) Documents filed in the fraud proceedings were available to the public pursuant to s 33(8) of the Magistrates Court Act 2004 (WA), the proceedings were heard in open court on 21 January 2019 and gave rise to the publication of a transcript.
(b) The Joint Standing Committee proceedings were transcribed and the transcript was, and remains, available for download by the public from the website of the Western Australian Parliament.
(c) The Joint Standing Committee proceedings gave rise to a fair summary of a report of those proceedings being provided by Ms Xamon to Mr de Kruijff on 5 April 2019.
(d) The fraud proceedings and the Joint Standing Committee proceedings gave rise to summaries of those proceedings being reported by Network Ten Pty Ltd on its television program ’10 News First’ on 5 April 2019 and by the ABC in radio news bulletins broadcast between 12 noon and 3 pm on 5 April 2019.
(e) When the Article was published it was anticipated that the trial in the fraud proceedings would be held in open court on 16 May 2019.
80 Two points should be noted at this stage. First, although the defence refers to a debate in the State Parliament on 13 March 2019 no reliance was placed on a summary or report of that debate. Secondly, even though the defendant referred in particulars to the ABC and the Channel Ten publications, the defendant pleaded the Article was a report of proceedings of public concern, not that it was or was contained in an earlier published report of proceedings of public concern.
81 The defendant contended the Article was a fair summary of the following public documents:
(a) documents comprising the court file made available for inspection in the fraud proceedings – a public document within the meaning of s 28(4)(e)(iii)) (the Court documents);
(b) information available on the Department of Justice eCourts website in relation to the plaintiff’s fraud proceedings – being information contained in a public document within the meaning of s 28(4)(d) or s 28(4)(e)(iii) (the eCourts information);
(c) the Joint Standing Committee Proceedings Transcript – a public document within the meaning of s 28(4)(a) or s 28(4)(d) or s 28(4)(f) (the JSC Transcript);
(d) emails sent by the Department of Premier and Cabinet to the defendant – a public document within the meaning of s 28(4)(d) or s 28(4)(f) (Ms Miraudo’s emails); and
(e) the Corruption and Crime Commission Report – a public document within the meaning of s 28(4)(c)(ii) or s 28(4)(d) (the CCC Report).
The statutory provisions
82 Section 28(1) of the Defamation Act provides:
Defence for publication of public documents
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in –
(a) a public document or a fair copy of a public document; or
(b) a fair summary of, or a fair extract from, a public document.
83 ‘Public document’ is defined in section 28(4) and relevantly provides:
(4) in this section –
public document means –
(a) Any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law
(b) …
(c) …
(d) Any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public;
(e) Any record or other document open to inspection by the public that is kept
(i) by an Australian jurisdiction;
(ii) by a statutory authority of an Australian jurisdiction;
(iii) by an Australian court; or
(iv) under legislation of an Australian jurisdiction
(f) Any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section.
84 Section 29 of the Defamation Act provides:
Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
(2) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was, or was contained in, an earlier published report of proceedings of public concern;
(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and
(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.
(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.
85 Section 29(4) defines the expression ‘proceedings of public concern’ to mean, among other things, ‘any proceedings in public of a parliamentary body’, and ‘any proceedings in public of a court or arbitral tribunal of any country’.
The applicable principles
86 In Rogers v Nationwide News Pty Ltd, Gleeson CJ and Gummow J explained the policy that underlies the common law’s protection of fair reports of court proceedings and the subsequent embodiment of the common law defence in s 24 of the Defamation Act 1974 (NSW) (since repealed and replaced with s 29 of the Defamation Act 2005 (NSW)) as follows:
The policy of the common law’s protection of fair reports of court proceedings, and of the legislative extension of the common law in s 24 of the Act, is that it is in the public interest that there should be open administration of justice. That interest is served by protecting persons who publish fair and accurate reports of court proceedings so that a reader of the report will see a substantially correct record of what was said and done in court.
87 In Feldman v Nationwide News Pty Ltd, Bell P (as his Honour then was), (with whom Macfarlan and Payne JJA agreed) summarised the principles governing the fair report defence as follows:
In order to be fair, a report need not be a complete report of the proceedings in question, nor need it be accurate in every respect.
However, a report must be “substantially accurate”…
The question of whether a report is substantially accurate is a question of fact.
The relevant question is not whether the report is fair or unfair to any particular person; the question is whether it substantially records what was said and done.
If the report is fair, in the sense of reporting with substantial accuracy what in fact was said and done in the proceedings, it does not matter that statements made in the course of those proceedings and included in the report were themselves irrelevant to the material issues in those proceedings.
If the report is fair, it does not matter if those statements so reported are themselves factually untrue.
Recently, in Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111, Blue J at [561] summarised the relevant principles in the context of the corresponding common law defence as follows:
To be a fair and accurate report, the defamatory matter [must]:
• be a report of the court proceedings or that part thereof of which it purports to be a report: it is not sufficient that the proceedings are the source of information, or the subject, of an expression of opinion;
• be a substantially accurate expression of the court proceedings or the part thereof of which it purports to be a report; and
• not substantially alter the impression that an ordinary reasonable recipient would have gained if present during the proceedings.” (footnotes omitted)
Pursuant to s 29(3), the statutory defence may be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.
With respect to s 29(3) of the Act, the tone of voice used in a radio or television broadcast or the prominence given to a report can be factors relevant to whether the report was published honestly.
88 Additional points relevant to both defences include the following.
89 First, in determining whether a report is ‘substantially accurate’ the court will consider whether any errors, including errors of omission, substantially alter the impression that the reader would have received had that person been present in the proceeding. An omission will not be material unless it could ‘in the mind of a reasonable [person] render the report unfair’. An abridged or condensed report may constitute a report for the purposes of s 29 of the Defamation Act, provided that it is fair and does not by suppression of some matter ‘give an entirely false and unjust impression to the prejudice of one of the parties concerned’. By parity of reasoning these principles guide the assessment of whether a summary is a fair summary of a public document.
90 Secondly, the matter must bear the character of a report or a summary of a public document.  In Rogers v Nationwide News Pty Ltd, Gleeson CJ and Gummow J observed:
Matter does not constitute a report of proceedings merely because it repeats information obtained from those proceedings. To take an example from Grech v Odhams Press Ltd (31), if a statement made by a witness in a proceeding is fairly and accurately reported, and attributed to the witness who made it, then the protection may be attracted; it would be otherwise if, without attribution to the witness or the proceedings, the substance of the statement were merely repeated. The importance of attribution, and the making of what purports to be a report of proceedings, as distinct from the mere repetition of information that emerges in the course of proceedings, is illustrated by Burchett v Kane (32). The requirement of attribution does not necessarily require direct quotation and acknowledgment; but it must appear that the published matter bears the character of a report of the proceedings in question. It is not enough that the proceedings are a source of information, or the subject of an expression of opinion. (footnotes omitted)
91 In Burchett v Kane, Samuels JA cited with approval the observation of Asprey JA in Anderson v Nationwide News Pty Ltd, that a report was:
[A] factual recounting of an event or situation. It is essentially descriptive of an event or series of events and, since it is limited to an account of events that have happened, it cannot properly include the independent comments or opinions of the reporter.
92 Samuels JA (with whom Mahoney JA agreed) concluded that the real substance of the newspaper report in question in that case (a report of questions and answers in proceedings before the Senate of the Commonwealth Parliament) was not what was said by the Senators but what had been said by a witness in his evidence to a United States Senate Committee.
93 The importance of attribution was put in this way by Mason P in Nationwide News Pty Ltd v Rogers:
The essential point is that a requirement of attribution places the onus on the reporter to differentiate between the event reported (here court proceedings) upon which the reporter’s privilege is derivative, on the one hand; and background information, statements of fact or the reporter’s own commentary, on the other hand. The reader is thus enabled to assess and weigh the information by recognising its various sources. Since, ex hypothesi one is dealing with defamatory material it is not unreasonable to require such discrimination.
94 In Herron v HarperCollins Publishers Australia Pty Ltd, the defendant publisher contended that a chapter in a book was a fair report of the proceedings of the Royal Commission into Deep Sleep Therapy or a fair summary of the New South Wales, Report of the Royal Commission into Deep Sleep Therapy.  In rejecting these defences, Jagot J accepted the applicant’s submission to the effect that for the purposes of s 28 and s 29 of the Defamation Act 2005 (NSW), a summary or a report must be characterised objectively as a summary or a report, and where by its subject-matter it is not able to be so characterised, it does not matter that it contains references to proceedings or a published document, especially where they are intermixed with other material.
95 In Nasif v Seven Network (Operations) Ltd, the defendant broadcaster argued the matter complained of was a fair summary of an Annual Information Statement or AIS lodged by a charity. In rejecting the defence, Abraham J cited Herron for the proposition that the matter must bear the character of a ‘summary’ of a public document and cited Rogers for the proposition that it is not sufficient that the public document is the source for the matter complained of, but it must be apparent that the matter is purporting to summarise the contents of a public document. Her Honour said:
The evaluation of whether the Seven News Report is a fair summary of the 2017 AIS is taken from the position of the ordinary reasonable viewer seeing the Report as a whole rather than dissecting it or only viewing some parts of it: Cummings v Fairfax Digital Australia & New Zealand Pty Limited; Cummings v Fairfax Media Publications Pty Limited [2017] NSWSC 657 at 88. It “is not whether some parts of the publication fairly summarise what was contained in the [2017 AIS], but whether the publication as a whole can be so described”: Cummings at [89]. Where there is some extraneous material included, being material that does not arguably summarise the pleadings, the publication as a whole may be deprived of its categorisation as a fair summary of the relevant public document: Cummings at [89]. To be fair and accurate, a report need not be a complete report or be accurate in every respect; it must be substantially accurate. This is a question of fact: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1998) 193 CLR 519 at [42]. There may be errors in the summary, but the protection of the defence will not be lost unless there is a “substantial misrepresentation of material fact which is prejudicial to the [applicant’s] reputation”: Cummings at [102].
96 The broadcast contained a reference to the ‘most recently reported financials’. Abraham J held this was insufficient to constitute a fair summary of the public document in question the ‘AIS 2017’. Her Honour reasoned as follows:
I accept the applicants’ submission that the reference to “most recently reported financials” would not have, in the circumstances, been understood by the ordinary reasonable viewer to be a reference to the 2017 AIS. The reference to most recently reported financials does not identify that item. First, nothing in the story identifies that what was being reported was the financial position in 2017. Second, the AIS is a particular type of document, and not one which the ordinary reasonable viewer would know of or consider to be financials (as used in the Report). It is a document relevant only to charities, and even then, depending on the size of the charity the document is not necessarily required to be completed each year. As previously explained, I do not accept the respondents’ submission that the ordinary reasonable viewer would have understood the reference to be to the 2017 AIS merely because it was the only “financial” publicly available. I do not accept the underlying premise has been established or that, even if it was, that the inference contended for arises.
97 Thirdly, the intermingling of extraneous material may deprive a report from constituting a fair and accurate report. The point was expressed this way by Kirby J in Chakravarti v Advertiser Newspapers Ltd:
It is not enough that the challenged report be generally fair. It must also be accurate. It must be a report of the proceedings described. To the extent that it goes beyond a report, and the reporter engages in comment, description and elaboration of the reporter’s own, the privilege provided for a “report” will be inapplicable and may be entirely lost. The tendency for journalists to intersperse descriptive reports with adjectives and comments of their own is not new. It was remarked upon soon after the statutory provision was first introduced. The practice of adding commentary to reports has not diminished since that time. It appears in the subject articles. Excessive commentary or misleading headlines which amount to commentary run the risk of depriving the text of the quality of fairness essential to attract the privilege. (Footnotes omitted)
98 The passage of Kirby J’s judgment in Chakravarti quoted in the preceding paragraph was cited with approval by Arden LJ in Curistan v Times Newspapers Ltd, who held that:
… [R]eporting privilege will be lost if the quality of fairness required for reporting privilege is lost by intermingling extraneous material with the material for which privilege is claimed.
99 In an earlier passage in Curistan, her Ladyship cited the ‘memorable’ passage from Lord Denning’s speech in Dingle v Associated Newspapers Ltd, in which his Lordship held as follows:
But here comes the question: Suppose that the reports in other newspapers were privileged, as they were in this case, cannot they be referred to in order to mitigate damage? I think the answer must be ‘No’. If a newspaper seeks to rely on the privilege attaching to a parliamentary paper, it can print an extract from the parliamentary paper and can make any fair comment on it. And it can reasonably expect other newspapers to do the same. But if it adds its own spice and prints a story to the same effect as the parliamentary paper, and garnishes and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law. None of its story on that occasion is privileged. It has “put the meat on the bones” and must answer for the whole joint. If it cannot justify it, it must pay damages: and it cannot diminish these by reference to the privileged reports which it and others may have given previously.
1 Fourthly, before considering the fairness of a summary or report, it is necessary to determine the meanings conveyed by the publication. In Chakravarti Brennan CJ and McHugh J observed:
The first matter is that, in our view, where a defendant pleads a defence of fair and accurate report in answer to an action for defamation, it is necessary for the tribunal of fact to determine what meanings the publication has before it determines the fairness of the report. The reason for that is that, until the defamatory meaning of the publication is determined, it is not possible to know whether the report is an answer to the plaintiff’s claim. A defendant does not lose a defence of fair and accurate report because it is inaccurate in respect of a distinct defamatory imputation which the plaintiff does not sue upon. A plea of fair and accurate report is a plea in confession and avoidance of the plaintiff’s claim. Until the plaintiff’s claim is defined, the tribunal of fact cannot know what the plea confesses and avoids. Nor can the Court determine whether the report in defaming the plaintiff is nevertheless fair.
2 In Cummings v Fairfax Digital Australia and New Zealand Pty Ltd, (addressing the defence of ‘fair summary of a public document’) McColl JA (with whom, on this issue, Beazley P and Simpson AJA agreed) commented on the approach adopted by the primary judge of looking at each imputation alleged by the plaintiff (before determining whether the imputations were in fact conveyed) and determining whether the imputation had a source in the pleadings as follows:
In fact, his Honour ought to have determined what meanings the matters complained of had before he determined whether they were a fair summary of the debt-recovery proceedings pleadings: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [2] per Brennan CJ and McHugh J; see also Kirby J at [121].
3 Fifthly, the question to be answered is whether those aspects of the matter complained of and from which the defamatory imputation or imputations held to have been conveyed arise is a fair summary of a public document or a fair report of proceedings of public concern. That is, ‘the publication of the defamatory matter’ in the chapeau in s 28(1) and in s 29(1) is to be understood as the matter to the extent to which it gives rise to the defamatory imputation or defamatory imputations.
4 The plaintiff contended that the ss 28 and 29 defences require the defendant to prove that the whole Article and not a select part of it was a fair summary or fair report. The plaintiff’s contention involves a consideration of the construction of the term ‘matter’ in ss 28 and 29. The same issue arises in the context of the defendant’s reliance on the defence of statutory qualified privilege in s 30.
5 The plaintiff’s contention relied primarily on the following propositions (a) s 4 provides that the term ‘matter’ includes ‘an article, report, advertisement or other thing communicated by means of a newspaper’ and ‘a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication’ (b) the defences of justification and contextual truth provided for by ss 25 and 26 respectively draw a distinction between the terms ‘defamatory matter’, ‘matter’ and ‘defamatory imputations’ (c) ss 28, 29 and 30 contain references to ‘defamatory matter’ and ‘matter’ but do not refer to ‘defamatory imputations’ and (d) thus the principles of statutory construction require ‘matter’ where it appears in ss 28, 29 and 30 to be understood as the whole of the ‘defamatory matter’.
6 The defendant argued the plaintiff’s construction was not supported by authority and, in any event, in effect misconceived the purpose of the defence. It supported the latter aspect of its argument with the following practical illustration: if it is alleged that the matter complained of conveys the meanings the plaintiff is a murderer and a thief but only the thief meaning is found to have been conveyed, it is irrelevant that the part of the Article that gives rise to the murderer imputation is not a fair summary of a public document or a fair report of proceeding of public concern.
7 The authorities do not support the plaintiff’s contention as to the construction of the term ‘matter’.
8 In Hockey v Fairfax Media Publications Pty Ltd, White J considered whether the reference to the term ‘matter’ in s 30(1) was to be understood as the matter containing the defamatory imputation or the defamatory imputation itself. His Honour’s analysis began with a reference to the statutory progenitor of the s 30 defence, s 22 of the Defamation Act 1974 (NSW). His Honour referred to the decisions of the Court of Appeal in New South Wales in Morgan v John Fairfax & Sons Ltd (No 2), Evatt v Nationwide News Pty Ltd, and Griffıth v Australian Broadcasting Corporation, in which it had been held that what had to be shown by s 22(1)(c) of the Defamation Act 1974 (NSW) (which is in identical terms to s 30(1)(c)) was that the conduct of the publisher in publishing the matter, in its character as making the imputation complained of, not the matter in all of its aspects, must have been reasonable in the circumstances. From there White J developed his analysis as follows:
The reasoning in Morgan, Evatt and Griffıth does not necessarily govern the position under s 30 of the 2005 Act. There are several reasons why that is so.
First, as already noted, s 22 in the form considered in those authorities did not include any counterpart to s 30(3). It is appropriate to read s 30 as a whole in determining the subject matter of the conduct to which s 30(1)(c) refers so that regard should be had to subs (3).
Secondly, s 8 of the 2005 Act indicates that, in contrast to the position under the 1974 Act, a plaintiff has a single cause of action even if the publication about which complaint is made contains more than one defamatory imputation. Section 8 provides:
A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.
Counsel for the respondents submitted that s 8 is also pertinent because it draws a distinction between the publication of defamatory matter, on the one hand, and the defamatory imputation, on the other. Having regard to the principle that legislation should be taken to use the one term with a consistent meaning, he submitted that the term “defamatory matter” in s 30 should be construed in the same manner. Counsel noted that subs (3)(c) makes the same distinction.
It may also be pertinent that the opening line of subs (3) and subparas (a), (b), (c), (e), (g), (h) and (i) refer to “the matter” or “the matter published” as opposed to the “defamatory imputation”. The term “matter” is defined in s 4 of the 2005 Act to include “an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical”. That too tends to suggest that s 30(1)(c) is referring to the matter containing the defamatory imputation, and not just the defamatory imputation in that matter.
There is force in these submissions, but I do not consider that they should be accepted. In my opinion, the construction adopted in Griffıth remains good law. That is to say, it is appropriate to understand the term “the publication of defamatory matter” in the opening line of s 30(1) as referring to a “matter”, as defined in s 4, to the extent that it gives rise to a defamatory imputation or defamatory imputations or, to use the phrase of Hodgson JA “in its character as making the imputation complained of”.
There is no indication that s 30(1) was intended to work a change in the existing law in this respect, especially as it is a close replication of the former s 22(1). If s 30(1)(c) is understood as referring to the matter containing the defamation in all its aspects, the focus of the evidence appropriate to discharge the defence would change significantly. So also would the focus of the evidence necessary to establish malice under s 30(4) as it too uses the term “the publication of the defamatory matter”. It is not readily to be supposed that s 30 is intended to allow a defendant to avoid liability for a defamation by establishing that its conduct in publishing an article was, considered generally, reasonable even though its conduct in including a defamatory imputation in the article was unreasonable.
It is true that s 30 uses the term “defamatory matter” whereas s 22 in the 1974 Act did not. It would be simplistic however, to construe the term “defamatory matter” as being a matter in the defined sense which is also defamatory. Rather, the term “defamatory matter” appears to be used as a composite expression that is, as a term for the defamatory content of a matter whether it be a single imputation or multiple imputations. Accordingly, it is the respondents’ conduct in publishing those matters which s 30(1)(c) requires to have been reasonable.
9 In Jensen v Nationwide News Pty Ltd & Anor, Quinlan CJ agreed with the conclusion reached by White J on the construction of the term ‘matter’ and expressed the approach to be taken as follows:
Section 30(1) and the chapeau to s 30(3) refer to the conduct of the defendant in publishing ‘the matter’. This suggests that in applying s 30 it is necessary for the defendants to prove the reasonableness of their conduct in publishing each ‘matter’ as a whole, rather than in relation to the defamatory imputations per se.
I accept this to be the case, in the sense that the ultimate conclusion to be reached is whether the defendants have proven that their conduct in publishing the particular article, internet article or tweet was reasonable. The Court’s ultimate satisfaction must be as to the reasonableness of the conduct in publishing the ‘matter’ as a whole, that is, each particular article, internet article or tweet.
Nevertheless, I also accept that, in assessing the reasonableness of the publication of each ‘matter’, it is appropriate to have regard to each matter to the extent that it gives rise to a defamatory imputation or defamatory imputations. The ‘reasonableness’ of the defendants’ conduct is not to be divorced from the prima facie wrong committed by the defamatory imputations.
…
In Hockey, White J was referring to circumstances in which the conduct in publishing an article, considered generally, might be considered reasonable, whereas the inclusion of the defamatory imputation would not. As his Honour reasoned, it is not appropriate in those circumstances to ask if the particular article was generally reasonable having regard to non-defamatory matters, in circumstances in which the inclusion of defamatory imputations as part of the article was unreasonable.
10 In Feldman v Polaris Media Ltd McCallum J (as her Honour then was) observed in relation to the s 29 defence:
As with the defence of honest opinion under s 31, the defence focusses on “the matter” whereas other defences under the Act focus on “the defamatory imputations carried by the matter” (ss 25 and 26). Although the Act draws that distinction, it remains appropriate, in my view, to approach the defence by reference to and through the lens of the defamatory meaning found. That approach will achieve consistency with what I understand to be the required approach under s 31 (explained above). It is also consistent with the approach to the defence of fair and accurate report at common law favoured by Brennan CJ and McHugh J in their Honours’ separate judgment in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [1] ‑ [4].
11 On appeal White JA did not accept McCallum J’s reasons for rejecting the defence of fair report but his Honour noted that, as McCallum J had stated, to be ‘fair’ a report need not be a complete report of the proceedings in question but must be substantially accurate, and cited the passage from the judgment of Brennan CJ and McHugh J in Chakravati quoted at [100], and said:
This statement was applied by this court in Cummings v Fairfax Digital Australia and New Zealand Pty Ltd (2018) 99 NSWLR 173 at 187; [2018] NSWCA 325 at [49] (fn 34) to s 28 of the Act (fair summary of public documents).
In my view the first article (which contained the defamatory matter published) was a substantially accurate report of the evidence given by the appellant to the Royal Commission, but not a substantially accurate report of the meaning conveyed by the report. Section 29 does not refer to a fair report of the meaning of defamatory matter published. Nonetheless, consistently with authority, I must reject this ground of the notice of contention.
12 While Hockey and Jensen both concerned the construction of the term ‘matter’ in s 30 for the purposes of the statutory qualified privilege defence, the reasoning on the point of principle applies with equal force to s 28 and s 29 and, as McCallum J observed in Feldman, applying the same approach achieves consistency.
13 Sixthly, and drawing on the principles to which I have referred, in evaluating the fairness of a report or summary the court is not confined to an examination of the words said to constitute the report or summary. As made clear in the authorities, material omissions and excessive additions in the form of commentary or other extraneous matter may be relevant to questions of fairness. In other words, the fairness of a report must be assessed in the context in which it appears. In a newspaper article this may include headlines and pictures as well as the text surrounding the recounting or description of the reported event. Words that read in isolation may amount to a fair summary or report may be coloured by context to a degree that the quality of fairness is lost. And, as the defendant acknowledged in its submissions, where a publication draws on several public documents, the overall impression of the publication, being comprised of separate extracts, must be a fair summary or fair extract. That is, it is not enough to establish that each individual summary or extract of separate public documents stand on their own as fair and accurate. The question of fairness is whether the summaries or extracts taken in combination still maintain the impression of fairness.
An overview of the opposing arguments
14 There was a substantial overlap between the contentions made in respect of the ss 28 and 29 defences.
15 In outline the defendant’s principal contentions were to the following effect:
(a) The question raised by both s 29 and s 28 of the Defamation Act is whether the matter is a fair report of the proceedings or public document. The defences are not concerned with whether evidence of either was in the mind or possession of the defendant. A report can be a report of what occurred or was said without actually referring to or even knowing the details of that source.
(b) When evaluating the fairness of the report it is the matter in its defamatory sense that falls for consideration.
(c) The matter complained of comprises a report of two proceedings the report of each of which is accurate.
(d) The matter complained of did not contain the author’s own significant and substantial comments that could not be differentiated from the protected report of two hearings.
(e) There is no ‘co-mingling’ of one protected report with another that disentitles the matter complained of as a whole to s 29 protection. To the extent that the protected report of either hearing was combined with material ‘extraneous’ from the other (which this was not in any event), in either case, the ‘extraneous material’ can be distinguished as being from the ‘other hearing’. In each case, the ‘extraneous material’ was factual, not comment by the author. In addition, in neither case was the extraneous material ‘excessive’ in the sense of ‘excessive commentary’ adding ‘its own spice’, ‘garnished and embellished with circumstantial detail’.
(f) A full and faithful reporting of Ms Miraudo’s emails did not require reference to the amount of the alleged pecuniary benefit. The amount was not mentioned in Ms Miraudo’s emails.
(g) The defendant’s post-publication conduct is not relevant and there is no authority that supports the proposition that post‑publication conduct is material to the fairness of the report. The defence is concerned with whether the Article was fair not whether the defendant acted fairly in a general sense.
16 In outline the plaintiff’s principal contentions were to the following effect:
(a) A report for the purposes of s 29 of the Defamation Act is one made by a person with direct knowledge of a protected proceeding capable of giving a description of what transpired on the relevant occasion as a result of attending the proceeding personally or by an agent. Mr de Kruijff did not attend the proceedings before the Magistrates Court on 21 January 2019 nor did he attend the Joint Standing Committee proceedings or review a transcript of either proceeding. The Article did not report the fraud proceedings. It reported the bare fact that the plaintiff had been charged with fraud.
(b) The defence requires the defendant to prove that the whole Article and not a select part of it was a fair report of any proceedings of public concern for the purposes of s 29(1) of the Defamation Act.
(c) If there was a report of the fraud proceedings it was not fair because (a) the Article did not record that the fraud charge was in respect of an alleged pecuniary benefit of $116.35 (b) the alleged pecuniary benefit of $116.35 was substantially less than the amount previously reported by the Ten Network (c) the Article did not include any explanation by the plaintiff about the charge other than the bare statement that he had pleaded not guilty (d) the Article includes statements made by Ms Xamon which did not form part of the fraud proceedings or the Joint Standing Committee proceedings and which create an unfair impression; and (e) the juxtaposition of the references to fraud proceedings with the references to the Joint Standing Committee proceedings and the CCC report create an unfair impression.
(d) The references to the Joint Standing Committee proceedings did not constitute a report (because Mr de Kruijff had no direct knowledge). Alternatively, if the Article did contain a report of those proceedings, the report was not fair because it included remarks made by Ms Xamon in her telephone conversation with Mr de Kruijff. The plaintiff also points to the fact that in the Joint Standing Committee proceedings he was not identified by name or otherwise identified. Further, the statement that Mr Foster and Mr Meyers were ‘grilled’ was inaccurate in that Mr Meyers was not asked a question.
(e) To the extent to which the defendant relies on the reports of the Ten Network, the ABC or Ms Xamon, none of those reports were fair because: the Ten Network report misreported the quantum of the alleged pecuniary benefit as $40,000 rather than $116.35; the ABC report did not state the alleged pecuniary benefit and was an incomplete account of the issue and what Ms Xamon said to Mr Kruijff was an incomplete account of the issues covered in the hearing and one aspect of her comments assumed guilt.
(f) The defendant added its own ‘spice’ to the report ‘tainting its fairness’. The plaintiff contends the Article contains a mingling of incomplete factual information (the charge but not the amount of the charge) and non-factual matters that changed the character of the report.
(g) The defendant’s failure to remove the online article from the internet or to add a comment noting the acquittal is relevant to the evaluation of the fairness of the report and is an indication that it is not a fair report.
(h) If any one of the reports is not fair then the defence must fail entirely.
(i) Ms Miraudo’s emails were not public documents.
Analysis and conclusion
The principal issues
17 In broad terms the fair summary and fair report defences raise two principal issues for consideration: did the Article (or part of it) constitute a summary of a public document or a report of proceedings of public concern? And, if so, was the summary or report fair? Before turning to these principal issues there is a further point to be made on the significance of identifying the ‘matter’.
The ‘matter’
18 I have dealt with the issue of what constitutes the ‘matter’ for the purposes of ss 28 and 29 at [102] – [111]. In making the observations that follow I am not derogating from the principle that for the purposes of the ss 28 and 29 defences the focus is on the ‘matter complained of’ to the extent to which it gives rise to the defamatory imputation or imputations found to be conveyed. In a practical sense, however, in this case there are two reasons why the distinction between the matter as a whole and the matter to the extent to which it gives rise to the defamatory imputation is of no significance. The first is that the guilt imputation I have found to have been conveyed by the Article is conveyed by the Article read as a whole. The second reason is, in part at least a consequence of the first, and is that, in this case, the fairness of any summary of any public document and the fairness of any report of proceedings of public concern can only be assessed in the context of the Article as a whole.
Summary of conclusions
19 I have concluded that the fair summary and fair report defences fail at different levels but before getting into the detail, I will outline my approach and summarise my conclusions.
20 First, for the purposes of the fair summary defence I have considered whether each document on which the defendant relies is a public document within the meaning of s 28 of the Defamation Act. Secondly, I have considered whether the Article is a summary of the document. Thirdly, I have considered whether the Article is a report of proceedings of public concern identified by the defendant. In the main I have resolved these issues in the plaintiff’s favour but mindful of the possibility of an appeal I have considered the issue of fairness.
21 In summary, my conclusions are as follows:
(a) The court documents and the eCourts information are public documents. The Article is not a summary of either the court documents or the eCourts information but if it is a summary of either class of documents it is not a fair summary.
(b) The transcript of the Joint Standing Committee proceedings is a public document but the Article is not a summary of it and if it is a summary then it is not a fair summary.
(c) Ms Miraudo’s emails are not public documents. If, however, I am incorrect in that view and the emails are public documents, then paragraphs [3] and [4] of the Article contains a summary of them. When the summary is read in the context of the Article as a whole it is not a fair summary.
(d) The CCC report is a public document and the Article contains a summary of part of it that is a fair summary.
(e) The Article does not contain a report of the fraud proceedings but if it does then it is not a fair report.
(f) Read in isolation, paragraph [5] of the Article contains a report of part of the Joint Standing Committee proceedings. When that report is read in the context of the Article as a whole it is not a fair report. The remaining paragraphs of the Article are limited to reporting the quotes given by Ms Xamon to Mr de Kruijff and do not constitute a report of the Joint Standing Committee proceedings.
The court documents and the eCourt information?
22 In s 4 of the Defamation Act ‘document’ is defined as ‘any record of information’. The definition extends to traditional paper documents and records of information maintained on a website, such as the Department of Justice’s eCourts website. The Court documents and the eCourts information are public documents within s 28(4)(e)(iii).
23 The Article does not refer expressly or by implication to the Court documents or the eCourts information. It does not purport to be a summary or bear the character of a summary of either class of documents. I find that the Article is not a summary of either the Court documents or the eCourts information.
The transcript of the Joint Standing Committee proceedings
24 The transcript of the Joint Standing Committee proceedings is a public document within the meaning of s 28(4)(a) of the Defamation Act. It is a record of proceedings of the State Parliament published under its authority.
25 The Article does not refer expressly or by implication to the transcript of the Joint Standing Committee proceedings. It does not purport to be a summary of it and does not bear the character of a summary. I find the Article is not a summary of the transcript of the Joint Standing Committee proceedings. Further and more generally, it is difficult to understand how the defendant could prepare a summary without having seen the transcript.
CCC report
26 The defendant contended that the CCC report is a public document within the meaning of s 28(4)(c)(ii) of the Defamation Act, that is, it is ‘a document that under the law of any country is … required to be presented to, tabled in, or laid before, a parliamentary body’. The provisions of div 1 of pt 5 of the Corruption Crime and Misconduct Act 2003 (WA) governing reports by the Commission on specific matters (unlike the provisions governing general reports in div 2 of pt 5) do not, however, require the Commission to cause a report to be laid before the State Parliament, so I am not satisfied that the CCC report is a report within the meaning of s 28(4)(c)(ii).
27 I consider the CCC report is a public document under s 28(4)(c)(i), that is, it is a report that ‘under the law of any country is authorised to be published’.
28 The CCC report contains paragraphs that read as follows:
[8] Mr Peacock was paid as a high level public servant and also received benefits including a cost of living allowance (COLA), payment of private school fees and a contribution towards rent and utilities. His membership of the Tokyo American Club was also paid for by the State.
[9] But for many years, Mr Peacock had been enriching himself at the State’s expense and betraying the trust placed in him. From December 2008 to January 2018, under renewed employment contracts, he was paid COLA direct from his employing departments into his bank account along with his salary. He also arranged for monthly payments equivalent to COLA to be paid to him through the Tokyo office bank account by directing the office manager to do so. Those payments totalled nearly $500,000.
29 I find paragraph 9 of the Article is a summary of paragraphs 8 and 9 of the CCC report.
Ms Miraudo’s emails
The content and sequence of the emails
30 The emails exchanged between Mr de Kruijff and Ms Miraudo were as follows:
(Sent by Mr de Kruijff to Ms Miraudo at 6.47 pm)
Hi Nadia
Sorry for the late email, just seeking comment about why a DPC employee has been suspended, if they’ve been charged and what with and that there is a report being prepared within DPC about it? when did this happen and was it raised in a committee hearing this morning?
Regards
Peter
(Sent by Ms Miraudo to Mr de Kruijff at 6.48 pm)
Hi Peter
I’ll get back to you ASAP.
Thanks
Nadia
(Sent by Ms Miraudo to Mr de Kruijff at 7.11 pm)
Hi Peter
Please attribute this response to a spokesperson for the Department of Premier and Cabinet:
“The Department of the Premier and Cabinet launched an investigation last year following a tip off regarding an employee. The matter was referred to Police. The employee was charged with fraud and suspended without pay pending the court case. The issue was raised in a committee hearing this morning.”
Kind regards
Nadia
(Sent by Mr de Kruijff to Ms Miraudo at 7.14 pm)
Thanks Nadia, and I assume you are unable to confirm or deny the identity of the employee even though Channel Ten broadcast it was Petros Lazos in their bulletin this evening.
(Sent by Ms Miraudo to Mr de Kruijff at 7.45 pm)
Hi Peter
I can confirm the identity but as the matter is before the courts it wouldn’t be appropriate to comment further.
Thanks
Nadia
The opposing arguments on whether Ms Miraudo’s emails were public documents
31 The defendant’s principal contentions were to the following effect:
(a) By asking Mr de Kruijff to attribute her response to ‘a spokesperson for the Department of Premier and Cabinet’, Ms Miraudo intended that the comment be published in the newspaper. Thus, the email was akin to a media release. The information was provided in response to a question about a government employee having been charged with fraud. It was a document of a genuinely official nature. Viewed objectively, it was provided in contemplation that it would be published in a newspaper for the information of the public.
(b) English decisions (albeit under a different statutory regime) leave open that information published less formally than by way of a template press release might be classified as a document issued for the information of the public.
32 The plaintiff’s principal contentions were to the following effect:
(a) For a document to be ‘issued’ it needs to be of a genuinely official nature and the emails lacked that quality.
(b) Whether a document was issued ‘for the information of the public’ was a question of fact and degree. Two factors militated against the conclusion that the emails were issued for the information of the public.  First, the defendant operated a ‘pay‑to-view’ business and the commercial relationship between the readers and the defendant was a ‘defining feature which distinguishes readers from the public at large’. Secondly, the emails are vague in identifying the pecuniary benefit the subject of the fraud charge and had they been intended to truly inform the public they would have provided that information. The purpose of Ms Miraudo’s email was to respond to Mr de Kruijff rather than to inform the public.
Public documents – the authorities
33 In Campbell v Associated Newspapers Ltd, the defendant relied on s 25 of the Defamation Act 1912 (NSW) that relevantly provided that no civil action could be maintained in respect of the printing and publishing ‘in good faith for the information of the public in any newspaper of any of the following matters, provided they are not blasphemous, seditious, or obscene – (g) any notice or report issued by any Government office or department, officer of State or officer of police, for the information of the public, published with the consent of such office, department, or officer’. As to the requirement that the publication was a notice or report issued by a government office or department, or by an officer of the State, or by an officer of police, for the information of the public, Jordan CJ said:
The notice or report need not necessarily be written; it may be oral. For example, in a national emergency a Minister might make an urgent notification to the public by a statement broadcast by radio including an express request to the press to give the statement as wide and prominent publication as possible; or an officer of police might broadcast the description of a dangerous criminal who had just escaped, requesting the press to publish it, and the public to give information which might lead to his capture.
The notice or report must be of a genuinely official nature, and must be issued in such circumstances that it may fairly be regarded as issued for the information of the public. It is not, of course, for this Court to assume to lay down rules for what is, and what is not, proper to be made the subject of a governmental or police notice or report. I see no reason for doubting that an authoritative announcement of an official character made or handed to members of the press for publication in their respective newspapers would, or at least could, constitute a notice or report issued for the information of the public, and if published in the form in which it was supplied would be published with the consent of the department, etc., supplying it. On the other hand, if the matter so supplied was such as to admit of a reasonable inference that it was mere gossip and not an official notice or report, or that an official report so supplied was not published in substantially the form in which it was issued, it would be competent to the tribunal of fact to find that the defence had not been made out. And, if the trial Judge was satisfied that the matter was incapable of constituting a notice or report within the meaning of s. 29 (1) (g), or that, if it was, it was incapable of being regarded as published substantially in the form in which it was issued, it would be his duty to direct a verdict for the plaintiff on the plea.
34 Street J agreed with Jordan CJ that the notice or report was not required to be in writing but the publication would only be protected if the text of the notice or report was published in the exact form in which it was issued (subject only to minor grammatical corrections and the insertion of punctuation if the report or notice was issued orally).
35 In Blackshaw v Lord, the defendant journalist (Mr Lord) was the author of an article based substantially on the answers of a government press officer (Mr Smith) provided in a telephone conversation and on inferences drawn from those answers. The inference was that the plaintiff was the public servant who was responsible for very substantial unauthorised public expenditure. Among other defences Mr Lord relied on a statutory privilege that protected:
A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of any government department, officer of state, local authority or chief officer of police.
36 Stephenson LJ noted that the trial judge had ‘approached the privilege in not a strictly literal sense but in a fairly liberal way to include information painfully extracted by journalists, like a tooth, from an official of a government department acting in the course of his employment as well as formal statements released to the press by the government department’ and then went on to observe:
That seems to me to pay too little attention to the word “issued” and to the language’s indication that the matter issued must be of the same kind as a notice. It would unduly restrict the words to confine them to written hand-outs, including photographs, sketches or other pictorial representations … but it is right to confine them to official notices and the like …” statements of a genuinely official nature formally issued for the information of the public,” in the words accepted by Jordan C.J. considering a statutory provision in similar terms in Campbell v. Associated Newspapers Ltd (1948) 48 S.R.N.S.W. 301, 303. It may be right to include in the paragraph’s ambit the kind of answers to telephoned interrogatories which Mr. Lord, quite properly in the discharge of his duty to his newspaper, administered to Mr. Smith. To exclude them in every case might unduly restrict the freedom of the press and I did not understand Mr. Eady to submit the contrary. But information which is put out on the initiative of a government department falls more easily within the paragraph than information pulled out of the mouth of an unwilling officer of the department, and I accept Mr. Eady’s argument that not every statement of fact made to a journalist by a press officer of a government department is privileged, and what is certainly outside the privilege is assumption, inference, speculation on the part of the journalist. That is not authorised; that is not official. (Emphasis supplied)
37 Dunn LJ also cited Campbell with approval, and on the facts, held that Mr Smith’s answers to Mr Lord’s questions did not constitute a notice or other matter of a genuinely official nature.
38 In Lower Murray Urban and Rural Water Corporation v Di Masi, the appellant published on its website a letter from the Minister for Water addressed to former customers of the First Mildura Irrigation Trust (the FMIT). In the letter the Minister explained his reasons for deciding to close the FMIT and made statements to the effect that the respondents had broken the law. At trial the appellant relied on the defences that the defamatory content was contained in a fair copy of a public document (s 28 of the Defamation Act 2005 (Vic)) and common law and statutory qualified privilege. The trial judge rejected the s 28 defence holding that the letter was not ‘issued’, it was not ‘for information’ and it was not for the information ‘of the public’. Each of the appellant’s challenges to these conclusions was rejected on appeal.
39 The Victorian Court of Appeal (Warren CJ, Tate and Beach JJA) made the overarching point that while it is of assistance to look at the individual elements of s 28(4)(d) (‘issued’, ‘for the information of’ and ‘the public’) the three elements are interrelated and each must be construed in its context within s 28(4)(d) and within the context of all of the provisions of the Defamation Act. Consideration of each of the elements and the application of all three of them in context involves questions of fact and degree.
40 The Court of Appeal quoted at length from the reasons of the trial judge (Kaye J as his Honour then was) on the meaning of ‘issued’. The quoted passages included the following:
89 Clearly, a document may be kept without being published; conversely, a document may be published without being kept. Similarly, the verb ‘issue’ and the verb ‘publish’ are not synonymous. Not every document published by a government, or by an officer, employee or agency of the government, would, per se, be issued by the government (or by the officer, employee or agency of the government). Conversely, while a document issued by the government may thereby be published by the government, it does not follow that each document, issued by a government (or an officer, employee or agency of the government), is thereby ‘published’ as that word is understood in defamation law.
90 It is important, in construing ‘issued’, to bear in mind the context in which that word is found. In particular, it is significant that s 28(4)(d) only applies to a document which has been issued by a government (or by an officer, employee or agency of the government), and to a document which has been so issued for the information of the public. Ordinarily, when a government, or an agency, issues a document, it is for the purposes of giving or pronouncing a mandatory direction, or for disseminating a particular warning. Thus, in the context of the operations of governments and agencies of government, a health department might issue a relevant warning; likewise the Bureau of Meteorology might issue a storm warning. Similarly, as I stated, a document issued may contain a mandatory direction or command. Thus, a writ of summons may be issued; directions, edicts and proclamations may, equally, be issued.
91 The factor, which is common to each of those usages of ‘issued’, in the context of a governmental document, is to be found in the official nature of the document, and in the manner in which the document itself is made public. That construction is reinforced by reference to the other defined meanings of ‘public document’ in s 28(4). Each of the documents, referred to in the other subparagraphs of the definition, are formal, official documents. Thus, subparagraph (a) relates to reports or papers published by a Parliamentary body, or records of the proceeding of a Parliamentary body; subparagraph (b) relates to judgments, orders or other determinations of courts and tribunals; subparagraph (c) relates to reports or other documents authorised to be published, or required to be presented or placed, before a Parliamentary body by the law of any country; subparagraph (e) refers to records or other documents open for inspection by the public, which are kept by an Australian jurisdiction, an Australian statutory authority, an Australian court, or under legislation of an Australian jurisdiction.
41 Kaye J went on to observe that the construction of ‘issued’ posited in the paragraphs quoted above gained some support from the judgment of Jordan CJ in Campbell. In upholding Kaye J’s decision on the construction of the term ‘issued’, the Court of Appeal considered that the different statutory context in which the English cases (including Blackshaw) were decided meant they were of only limited assistance to the appellant. The Court of Appeal agreed with Jordan CJ and Kaye J that for a document to be ‘issued’ by the government it must be of a genuinely official nature.
42 In relation to the question of whether the letter was for the information of the ‘public’, the Court of Appeal reasoned as follows:
The issue of ‘the public’ falls to be determined, not so much by whether a particular class of people might be said to be closed with all of its members’ identities known, but rather whether the members of the identified group to whom the letter was published were sent the letter in their capacity as members of some more limited group of people with a defined characteristic or connexion. That is, were the people to whom the letter was sent, being sent the letter for the information of the public, or for the information of people who had been in a particular commercial relationship (that is, qua public as compared to qua customer or former customer). As has been said before in respect of issues of this kind, questions of fact and degree arise. For ourselves, we see no error in the judge’s conclusion that the present case was not one that involved the provision of material for the information of ‘the public’. The letter was intended to be sent, and was in fact sent, to its recipients in their capacities as former customers of the FMIT.
Conclusion – emails not public documents
43 Conformably with the guidance provided by the Court of Appeal in Lower Murray, I will consider the elements of ‘issued’ and ‘for the information of the public’ together.
44 The criteria to be applied in determining whether the nature of a document, and the manner in which it is made public, are sufficient for the document to fall within the meaning of s 28(4)(d), are elusive. It will always be a question of fact and degree. While I accept there may be circumstances in which a media statement by a government spokesperson may be a public document for the purposes of s 28(4)(d), I do not accept that Ms Miraudo’s emails were public documents issued for the information of the public. The following factors, which overlap to a certain extent, taken in combination have led me to that conclusion:
(a) Ms Miraudo’s emails were a response to an ad hoc inquiry by a journalist for the purpose of an article to be written by him, which article may or may not have included all the information in the emails, or the article may have included none of the information. The emails were not part of a programme for the dissemination of information to the public. Put another way, the catalyst for the provision of the information was not an institutional concern on the part of a government agency that information be provided to the public.
(b) In considering whether a document is issued for the information of the public it is relevant to consider whether the document contains all the information that is necessary to inform the public of the subject matter of the document in a balanced way. Ms Miraudo did not include all the information that a member of the public would need to assess the nature and seriousness of the plaintiff’s alleged offending, specifically the amount of the alleged pecuniary benefit was not disclosed. The subject matter and the seriousness of the alleged offending are material to the question of whether the extent to which the offending might be considered to damage the public confidence in the State’s public service.
(c) The emails were characterised by relatively informal language and Ms Miraudo’s email sent at 7.11 pm was not in a form in which it could be released to the public without additional information to provide context. The email was not couched in terms of a formal press release.
(d) That the emails were sent to a single journalist from one media outlet, as opposed to forming part of a release to a wider selection of media interests or being published on a government website, undermines the notion that the emails were ‘for the information of the public’.
(e) Related to (d), the information was provided to Mr de Kruijff for the purposes of conveying information to the readers of the defendant’s newspaper, a section of the community distinguished by their relationship as readers or purchasers of the newspaper in one of its forms, not for the purposes of conveying information to the public at large.
45 It follows from the conclusion expressed in the preceding paragraph that Ms Miraudo’s position as a government spokesperson and that she evidently contemplated that her statement to Mr de Kruijff would be published in the defendant’s newspaper are not matters that, in and of themselves, are sufficient to make an otherwise an unremarkable email sent by a government press officer to a journalist a document of a ‘genuinely official nature’.
Article contains a summary of emails
46 I accept, however, that the contents of Ms Miraudo’s email to Mr de Kruijff at 7.11 pm and supplemented by her email sent at 7.45 pm are summarised in paragraphs 3 and 4 of the Article.
The Joint Standing Committee proceedings
47 Before considering the issue of whether the Article is a report of the Joint Standing Committee proceedings, it is necessary to describe the salient features of the Joint Standing Committee proceedings and to reproduce the part of the transcript of the proceedings that is material for the purpose of considering whether the Article is a report of the proceedings.
48 The formal title of the committee was the ‘Joint Standing Committee on the Corruption and Crime Commission’. At the hearing on 5 April 2019 the committee was constituted by the Deputy Chair, the Honourable Jim Chown, Mr Matthew Hughes MLA and the Honourable Alison Xamon.  Mr Foster and Mr Gary Meyers were called to give evidence though it appears that Mr Meyers did not in fact give any evidence.
49 The Joint Standing Committee hearing began with Mr Chown asking Mr Foster about the role of the Department of Premier and Cabinet within the State Government of Western Australia. After giving a brief explanation of the role of the Department, Mr Foster was asked about the ‘integrity framework’ within the Department. Mr Foster gave a brief explanation. Ms Xamon then directed his attention to a report by the CCC into the WA Commissioner in Japan. Ms Xamon asked Mr Foster to identify what ‘inadequacies within the integrity process’ had been identified and whether they had been updated in the light of the CCC report. After Mr Foster addressed that question the following exchange took place:
The DEPUTY CHAIR: On that point, Mr Foster, in regard to the CCC report on the Western Australian commissioner in Japan, it has been an enormous wake‐up call for certainly your department, and I would imagine other departments throughout the system. At this stage, have you been able to identify any other breaches of a similar manner or any other indiscretions by public officers?
Mr Foster: Yes. This happens from time to time and one acts upon them. I am not sure I share your view that the department has been asleep at the wheel.
The DEPUTY CHAIR: I think the CCC actually thought it had been asleep at the wheel. It said the most basic checks would have at least identified the COLA breaches.
Hon ALISON XAMON: Over payments.
The DEPUTY CHAIR: And over payments. And they only went back a couple of years. Lord knows what happened prior to that?
Mr Foster: Sure.
The DEPUTY CHAIR: You were mentioning culture and I congratulate you on trying to change the culture, but I go back to my previous question: at this stage have you identified other indiscretions?
Mr Foster: I have.
The DEPUTY CHAIR: Good. Would you like to expand on what they could possibly be?
Mr Foster: Sure. I have received a complaint, again, which was no secret in the agency, prior to my arrival about somebody defrauding the department in relation to travel allowance.
I took action on that; referred it to the Corruption and Crime Commission. It looked at it for a number of months and referred it back to me to address.
Hon ALISON XAMON: What do you mean it was no secret?
Mr Foster: This is what I am saying about the culture.
Hon ALISON XAMON: Yes.
Mr Foster: Sometimes you scratch the surface. They are known about in the department but people either have not formalised a complaint or it is perceived to be too hard to prove.
Hon ALISON XAMON: What I am trying to get at is, was this someone quite senior that meant that people below them did not feel confident bringing this forward? I am trying to get an idea of how that dynamic was playing out in practice.
Mr Foster: I was not there, so, I really cannot say—
Hon ALISON XAMON: Of course; I understand that.
Mr Foster: —where the blockage or issue was or why it was not taken up or dealt with more aggressively. I have just learnt from my experience to deal with them because these things fester and become demoralising to staff and affect productivity. I have a history of tackling these issues when I become aware of them and in this particular instance—this probably gives you some insight about how challenging these things are—I had to engage a private investigator to follow the individual to prove that he was not living at the address where he claimed to be living and collecting allowances over possibly a long period. I put all that together and sent it to the fraud squad. They did a separate investigation and that individual has been charged with fraud and that is in the hands of the courts at the moment. When you then come to, “Well, what would the director general do?”, when you have a staff member in that situation, I took the view that I should suspend the person without pay at the very least. Those decisions are very hard to come to because one usually gets a lot of advice that you are overstepping the mark or you may be inviting an industrial response so sometimes you have to be fairly courageous to actually take that step. In that particular case, I did. I suspended the individual without pay before Christmas and I was taken to the Public Sector Appeals Board.
Hon ALISON XAMON: We are aware that that matter, from your own description, is sub judice, so we probably should not focus any further on that particular matter because this is a public hearing and is on the public record. Perhaps can we go back to the substantive systemic issues, if that is okay. Thank you for that example but you would appreciate that the courts need to be able to run their course unhindered. We note that you did initiate an inquiry with the Public Sector Commission to investigate how this had happened and how it went undetected for so long. Can you please give an update on the progress of that review?
[10.30 am]
Mr Foster: It is being dealt with at arm’s length from me. I consciously, deliberately asked the Public Sector Commission to undertake that review and that is happening and we have agreed terms of reference, which I believe you already have and it is underway but I am not personally or closely involved in that. They will be reporting to the commissioner.
Hon ALISON XAMON: Are you aware of whether it is on track to still report back by early May?
Mr Foster: It is not something I am aware of.
Hon ALISON XAMON: I want to be very clear: you are not receiving any information in relation to what is happening with that particular review?
Mr Foster: I have not recently received any information apart from agreeing and signing off on the terms of reference and having written to the commissioner to ask it to occur but that is more because I have not met the commissioner in the last week or so than withholding the information.
Hon ALISON XAMON: In terms of the terms of reference, is there an intention that that will become public—not the terms of reference but the actual review itself once it is finalised?
Mr Foster: I have already indicated to the commissioner I have no problem with it being made public. If it has findings that there are things that we need to do to tighten up our controls, I am absolutely receptive to that. I have nothing to be concerned about in terms of it being made public.
Hon ALISON XAMON: Have you got any indication as to whether the problems that emerged from this report were localised to a particular part of the department or whether it was indicative of a broader problem across the department?
Mr Foster: I do not have any insight at this stage.
Hon ALISON XAMON: We are hoping that the report will actually shed a bit of light on that.
Mr Foster: Yes, although I have done my own review of the documentation to sort of form my own view and I think there is no silver bullet here. That is my judgement based on the information I have seen and the accounts. I have looked at the accounts to see if you are an ordinary person looking at the accounts, would anything have stood out to you in terms of something being unusual and different? I have read the Stantons report from 2008. If you read the Stantons report, you would be very hard pressed to form a view that something was seriously wrong.
Hon ALISON XAMON: Yet, that is the problem, because as soon as the machinery of government changes kicked in and this was picked up by another department, it was clearly able to be picked up pretty readily. That actually goes to a problem within the Department of the Premier and Cabinet, which is also what the CCC effectively reflected on as well. Clearly, there has been inadequate processes or something has gone wrong within the department.
50 The italicised passages of the extract from the transcript are the passages that describe or refer to the investigation into the plaintiff’s conduct. It is clear from the transcript that from the point at which Ms Xamon said:
We are aware that that matter, from your own description, is sub judice, so we should not focus any further on that particular matter because this is a public hearing and it is on the public record. Perhaps can we go back to the systemic issues, if that is okay. Thank you for that example but you would appreciate that the courts need to be able to run their course unhindered.
The exchanges between the committee and Mr Foster related to the investigation into the conduct of the ‘WA commissioner in Japan’ and a Public Sector Commission investigation or review. There was no further discussion about the plaintiff’s circumstances and the discussion from that point concerned the ‘systemic issues’ with a focus on the conduct of the State Government commissioner to Japan who was the subject of the CCC report.
51 Only paragraph [5] of the Article refers directly to the Joint Standing Committee proceedings. Paragraph [5] reads:
That an investigation had occurred was unearthed in a government committee hearing into crime and corruption issues yesterday where MPs grilled DPC director-general Darren Foster and director of corporate services Gary Meyers.
52 Paragraph [5] describes Mr Foster’s disclosure to the Joint Standing Committee proceedings of the fact that there had been an investigation into an employee of the Department of Premier and Cabinet. Notwithstanding that the committee is misdescribed as a ‘government committee’ and it is incorrectly suggested that Mr Meyers was asked questions, in my view that paragraph is a report of part of the Joint Standing Committee proceedings. The inaccuracies to which I have referred are immaterial.
53 A further reference to the Joint Standing Committee hearing appears in paragraph [6] of the Article that reads:
Greens government integrity spokeswoman Alison Xamon said during the hearing it was indicated the resulting report out of the DPC investigation of one of its employees could be made public. ‘I certainly hope it is made public,’ she said. [Emphasis supplied]
54 Paragraph [6] does not purport, however, to be a report of the Joint Standing Committee proceedings. Rather, and notwithstanding some ambiguity created by the syntax in the first sentence, it purports to be a report of a comment made by Ms Xamon to Mr de Kruijff about the Joint Standing Committee proceedings held on 5 April 2019 and of her hope that ‘the resulting report of the DPC’ would be made public.
55 A further point of some significance must be made about paragraph [6]. It does not reproduce what was said to Mr de Kruijff by Ms Xamon and it creates a misleading impression of the exchanges that took place at the Joint Standing Committee hearing.
56 As I have found Mr de Kruijff typed the quotes Ms Xamon gave to him in their telephone conversation. His typewritten record of the quotes reads as follows:
Greens spokeswoman for government integrity Alison Xamon
During the course of the hearing it is confirmed there is currently a further investigation being undertaken, the question was asked as to whether it would be made public
And it was indicated that that may be the case
I certainly hope it is made public, because I think that the general public wants to feel confident that when corruption has been alleged or uncovered that all efforts are being made to ensure that our processes are improved so that they can’t happen again.
Throughout the course of the public hearings and through subsequent CCC reports, concerns around the culture of whistleblowing in particular and a lackadaisical approach to policies and procedures has seemed to have been a bit of a reoccurring theme and that is of concern. (Italics added)
57 As can be seen from a comparison of paragraph [6] of the Article as reproduced at [152] and the typewritten note, Mr de Kruijff attributed to Ms Xamon words that she had not spoken and omitted other words that were spoken by her.
58 In attributing to Ms Xamon that she said ‘during the hearing it was indicated the resulting report out of the DPC investigation of one of its employees could be made public’ Mr de Kruijff misrepresented what had taken place at the Joint Standing Committee hearing. As I have already noted, the ordinary reasonable reader would conclude that the ‘DPC investigation’ that was referred to in the Article was a report into the plaintiff’s conduct.
59 It is clear from the transcript of the Joint Standing Committee proceedings that while there was a discussion at the hearing between Ms Xamon and Mr Foster about the preparation of a report, the report, the subject of those exchanges, was not a report about the plaintiff’s conduct. Indeed, there is nothing in the transcript that suggests that anyone was waiting for a report into the plaintiff’s conduct or that the committee wanted to know about a report into his conduct. So much is made clear by Ms Xamon’s statement in the hearing to the effect that the committee should not focus on the plaintiff’s circumstances because that was ‘sub judice’. Following this remark Ms Xamon redirected the examination of Mr Foster to ‘the substantive systemic issues’ and referred to a Public Sector Commission inquiry. That the subsequent discussion did not concern the plaintiff is reinforced by the exchange between Mr Foster and Ms Xamon in which Mr Foster refers to a ‘Stantons report from 2008’ and Ms Xamon refers to ‘what the CCC effectively reflected on as well’.
60 These exchanges make it clear that the subject under discussion was the conduct of the commissioner in Japan. It is clear from the passages to which I have referred, and from the context generally, that the report of the investigation to which Ms Xamon referred in her comments to Mr de Kruijff was the report of the Public Sector Commission.
61 Paragraph [7] of the Article reads:
I think that the general public wants to feel confident that when corruption has been alleged or uncovered that all efforts are being made to ensure that our processes are improved so that they can’t happen again.
62 This paragraph is a quote in which Ms Xamon expresses her assessment of public opinion. It is not a report of any proceedings.
63 Paragraph [8] of the Article reads:
Throughout the course of (recent) public hearings and through subsequent CCC reports, concerns around the culture of whistleblowing in particular and a lackadaisical approach to policies and procedures has seemed to have been a bit of a recurring theme (in government) and that is of concern.
This paragraph contains a quote from Ms Xamon in which she summarises her assessment of concerns that have emerged from public hearings to which Mr de Kruijff added the words in parenthesis. The addition of the word ‘recent’ suggests that the public hearings included the hearing on 5 April 2019. The paragraph does not report on the Joint Standing Committee proceedings. Rather, it reports Ms Xamon’s opinion of the existence of ‘a bit of a recurring theme’.
The fraud proceedings
64 The only paragraphs of the Article capable of constituting a report of the fraud proceedings are paragraphs [1] to [4].  For ease of reference they are reproduced below:
1 A long-serving public official has been suspended without pay from the top State Government office as he faces a fraud charge.
2 Petros Lazos, (pictured,) who has worked for decades in government and recently within the Department of Premier and Cabinet, has pleaded not guilty to the charge and is going through the Magistrates court.
3 A Department of Premier and Cabinet spokeswoman said it launched an investigation of an employee last year after a tip off.
4 ‘The matter was referred to police,’ she said. ‘The employee was charged with fraud and suspended without pay pending the court case.’
65 I find that the Article does not contain a report of the proceedings for the purposes of s 29 of the Defamation Act for the following reasons:
(a) Nothing in the Article bears the character of a report of the proceedings. While a report may be an abridged or condensed report it must nonetheless recount or describe the proceedings themselves. Nowhere in the Article is the information about the prosecution attributed to anything resembling a report of the proceedings. Rather, the Article attributes the information about the charge and the ‘not guilty’ plea to the statement of a Department of Premier and Cabinet spokeswoman. The Article contains a report of the statement made by Ms Miraudo that refers to the fraud proceedings not a report of the fraud proceedings.
(b) It is true that the ultimate source of the information contained in the Article is what occurred in the Magistrates Court on 21 January 2019. In and of itself, that is not sufficient to constitute a report of the proceedings. Indeed, as noted in (a) the Article does not purport to be more than a report of what was said by the ‘spokeswoman’. The fact – recorded in the Article itself – that the existence of the prosecution was ‘unearthed in a government committee hearing’ might be thought to undermine the proposition that anything contained in the Article constitutes a report of the proceedings. It may be said that the Article discloses the fact of the charge and the fact of the ‘not guilty’ plea but it does not purport to report on the proceedings.
66 I do not accept the plaintiff’s contention that a report is only a report for the purposes of s 29 of the Defamation Act if it is one made by a person with direct knowledge or knowledge gained through an agent. Not only does this contention involve putting a gloss on the statutory language but it would have the capacity to generate collateral issues involving forensic inquiries into the nature and source of a defendant’s knowledge of proceedings that would detract from the essential question of whether the matter was a report and if so, whether it was fair.
Fairness issues
Ms Miraudo’s emails
67 Read in isolation paragraphs [3] and [4] of the Article are a fair summary of Ms Miraudo’s emails.
Joint Standing Committee proceedings
68 Read in isolation, paragraph [5] of the Article is a fair report of that part of Mr Foster’s evidence to the Joint Standing Committee that concerns the steps taken by Mr Foster to investigate the plaintiff’s conduct.
CCC report
69 Paragraph 9 of the Article is a fair summary of part of the CCC report.
Fraud proceedings
70 For the avoidance of any confusion, I repeat that the analysis in the following paragraphs proceeds on the assumption (in the defendant’s favour and against the finding I have made) that the Article contains a report of the fraud proceedings.
71 The only paragraphs of the Article capable of constituting a report of the fraud proceedings are paragraphs [1] to [4] inclusive. These paragraphs cannot be read in isolation. Rather they must be read in the context in which they appear and the fairness of the statements about the fraud proceedings must be assessed in that context.
72 A fair report of the fraud proceedings did not require reference to Ms Xamon’s comments on the Joint Standing Committee proceedings or any reference to the CCC report into the conduct of Western Australia’s State Government commissioner in Japan.  As explained by the defendant in its submissions those references were included in the Article to provide ‘appropriate context’.  When providing context care must be taken not to provide too much colour and thereby compromise the fairness of the report.
73 In my judgment the references to Ms Xamon’s comments and the CCC report coloured the statements about the fraud proceedings contained in the opening four paragraphs of the Article. They had the effect of elevating the seriousness of the charge faced by the plaintiff and the seriousness of his conduct generally. They combined to create a distorted impression of the proceedings and a materially different impression from the one that would have been formed by an impartial observer of the proceedings in the Magistrates Court on 21 January 2019. They rendered the report unfair.  My reasoning for this conclusion is as follows.
74 First, the starting point is to consider the impression that an observer of the proceedings in the Magistrates Court on 21 January 2019 would have formed about the proceedings.
75 An observer attending the Magistrates Court on 21 January 2019 would have learned the charge of fraud faced by the plaintiff concerned travel expenses and conduct that had occurred over a period of five days between 31 July and 3 August 2018.  The observer would have learned the alleged pecuniary benefit was $116.35.  Although fraud is an inherently serious offence, the impression the impartial observer would have formed is that the criminality alleged against the plaintiff was at the very lowest end of the scale.  The observer might well have questioned why public funds were being spent pursuing a fraud prosecution over a pecuniary benefit of $116.35 as opposed to the alleged misconduct being dealt with as a disciplinary matter within the context of the accused’s employment.
76 Nothing the impartial observer would have learned from attending the hearing on 21 January 2019 would have suggested that the plaintiff had engaged in conduct that gave rise to concerns about corruption, whistleblowing or the policies and procedures of government concerning corruption or whistleblowing.
77 Secondly, the inclusion of the quote from Ms Xamon that she hoped that ‘the resulting report’ from a ‘DPC investigation’ into one of its employees would be made public, which follows on from the reference to the existence of the fraud proceedings being ‘unearthed’, as I have explained above, wrongly suggests that it is the plaintiff who is the subject of the ‘DPC investigation’. In this respect, by implying the plaintiff is the subject of the ‘resulting report’ the inaccurate reporting of Ms Xamon’s comments go beyond providing ‘appropriate context’.
78 Further, the significance of the inclusion in the Article of Ms Xamon’s comments about the ‘DPC report’ and the implication that it concerned the plaintiff is not merely that it constitutes an inaccurate report of the evidence before the Joint Standing Committee. It is significant because it is put forward as the context in which the proceedings against the plaintiff and his not guilty plea are to be seen. It links the plaintiff to the corruption ‘alleged or uncovered’, the whistleblowing and the ‘subsequent CCC reports’ that are the subject of Ms Xamon’s quoted comments (and the link is reinforced by the headline ‘Top public official faces fraud charge’). In making this link, the Article implicitly but unmistakably suggests the plaintiff’s conduct is conduct of the same nature (corruption alleged and uncovered) and scale (conduct that requires an improvement in processes) as the conduct to which Ms Xamon referred. It distorts the impression that would have been formed by someone who had observed the proceedings in the Magistrates Court and distorts the impression that would have been formed if the Article had been confined to a straight factual statement that the plaintiff had been charged with fraud and had pleaded not guilty in the Magistrates Court.
79 Thirdly, the inclusion of the reference to the CCC report into the commissioner for the WA government in Japan and to the alleged rorting of more than $500,000, has the same effect as the quotes from Ms Xamon. The references implicitly, but again unmistakably, suggest the plaintiff’s conduct involved ‘rorting’ on a comparable scale. They form part of the context in which the statement that the plaintiff had been charged with fraud and pleaded not guilty would be read and provide a distorted impression of the charge and the scale of the alleged offending.
80 Fourthly, it is immaterial that the matters that compromise the fairness of the report in paragraphs [5] to [9] of the Article are not the journalist’s own comments. A journalist may create a tendentious report of proceedings by the artifice of including as ‘context’ extraneous material, whether fact or comment. By using the extraneous material to frame the story the journalist provides the lens through which the subject matter of the story, in this case proceedings, is to be viewed. In such circumstances, it is immaterial that an article does not include the journalist’s own comments or is confined to matters that are in themselves factually correct.
81 Fifthly, had the Article been confined to a statement that disclosed the existence of the charge and the plaintiff had pleaded not guilty in the Magistrates Court, the omission of the fact that the pecuniary benefit allegedly obtained by the plaintiff was $116.35 may not have been material. In my judgment, however, the reasonable person considering the statements about the proceedings in the context of Ms Xamon’s comments and the reference to the CCC report would consider it unfair that the amount of the alleged pecuniary benefit was not disclosed. The omission of the amount of the alleged pecuniary benefit contributed to the unfairness of the report.
82 Sixthly, though I consider that read in isolation paragraphs [3] and [4] of the Article are a fair summary of Ms Miraudo’s emails, and paragraph [5] of the Article is a fair report of part of Mr Foster’s evidence to the Joint Standing Committee, as the defendant accepted, it is not enough that each individual summary of a document or each individual statement forming part of a report is fair. The question is whether taken in combination with each other and with the other material in the Article the impression of fairness is maintained. For the reasons I have given, it is not.
83 Seventhly, that paragraph [9] of the Article is a fair summary of CCC report is immaterial. The significance of paragraph [9] of the Article is that, along with the headline ‘Top public official faces fraud charge’ it frames the story, and it suggests an equivalence between the plaintiff’s conduct and the conduct that was the subject of the report. In these ways it contributes to conveying a distorted impression of the fraud proceedings.
Court documents and eCourts information
84 If it is assumed in the defendant’s favour that the Article contained a summary of the court documents, the eCourts information and the transcript of the Joint Standing Committee proceedings then the factors to which I have referred in [173] to [182] above render those summaries unfair.
Qualified privilege
The pleaded defence
85 The defendant pleaded that the Article was published on an occasion of qualified privilege. The defendant relies on the defence of qualified privilege at common law, including the extended Lange qualified privilege and the statutory defence provided for by s 30 of the Defamation Act.
86 The following particulars were pleaded in support of the qualified privilege defences.
(1) The Article and the Online Article related to the following subjects:
a) the plaintiff, a long-serving public official, having been charged with the serious criminal offence of fraud and being suspended from his senior position with the leading state government agency, the DPC;
b) the plaintiff’s fraud charge was being progressed through the Magistrates Court;
c) the matter of the plaintiff’s conduct, fraud charge and suspension of his role with the DPC being a subject of inquiry at the Hearing of the Committee;
d) the importance of there being disclosure to the public about the investigation of an employee of the DPC, and for the public to have confidence that policies and processes will prevent corruption in government and the public service; and
e) the criminal proceedings pending in the Magistrates Court against the plaintiff being at a time proximate to the CCC reporting on allegations concerning a former State government commissioner in Japan defrauding the State of more than $500,000, also a subject of the Hearing of the Committee,
(the Subjects).
(2) The recipients of the Article and the Online Article had an interest in having information on the Subjects because the Subjects were matters of proper and legitimate public interest.
(3) Alternatively, the recipients of the Article and the Online Article had an apparent interest in having information on the Subjects because at the time of publication of the Article and the Online Article the defendant (by its Editor and sub-editors) believed that the recipients of the Article and the Online Article had an interest in having information on the Subjects because the defendant (by its Editor and sub-editors) believed the Subjects were matters of proper and legitimate public interest to readers of the Article and the Online Article.
(4) The defendant’s conduct in publishing the Article and the Online Article was reasonable in that:
a) the Article and Online Article related to the Subjects, each of which was, and was believed by the defendant (by its Editor and sub-editors) to be, matters of legitimate and significant interest to members of the Western Australian and Australian communities;
b) having regard to those matters, it was, and the defendant (by its Editor and sub-editors) believed, that it was in the public interest that the Article and Online Article be published;
c) the Article and Online Article related to the alleged conduct of the plaintiff in or related to his capacity or fitness for public service office, and where the conduct of such officers had been the subject of inquiry by the Committee and the CCC;
d) the Article and Online Article were based upon and contained information obtained by the defendant from a spokesperson for the DPC, Parliamentary Committee Member the Hon. Alison Xamon, a source of integrity or apparent integrity;
e) the Article and Online Article were based upon and contained information obtained by the defendant from:
(i) the DPC, and being the DPC Information for Publication;
(ii) mainstream media reporting about the plaintiff by Channel 10 television news [EX-0036], [EX-0043] and ABC radio news [EX-0034], [EX-0035], [EX-0042], in respect of which the defendant repeats the matters in paragraph A(4)(d) above [being the ‘summaries of the fraud proceedings and the Joint Standing Committee proceedings reported in the Channel 10 broadcast and ABC news reports];
(iii) the plaintiff’s profile and biography at the plaintiff’s LinkedIn page;
(iv) prior reporting by the defendant in its newspaper on the CCC’s Report on the State Commissioner in Japan, which report was published by the CCC on 12 March 2019; and
(v) the State’s e-Courts website.
Common law qualified privilege ‑ matters other than government or political matters
Applicable principles
87 The (traditional) common law defence of qualified privilege applies where the publisher of a defamatory statement has a relevant duty or interest to make that statement and the recipient has a corresponding duty or interest to receive it. The essential elements of the defence have been expressed as follows:
The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified—hence the name qualified privilege—by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement. (footnotes omitted)
88 Absent exceptional circumstances, a consequence of the requirement for the reciprocity of duty and interest is that the common law defence does not generally protect mass media publications.
An overview of the opposing arguments
89 The defendant contended that the subject matter of the Article – an allegation of fraud by a public sector employee and generally the topic of public service administration, meant that the publication had a strong public significance and, consequently, there was a reciprocity of interest between publisher and recipient in that context. In support of its contentions that mass media publications can be protected by the traditional form of qualified privilege if the defamatory statement is sufficiently germane to the privileged occasion, the defendant relied on the decision of the New South Wales Court of Appeal in Wraydeh v Fairfax Media Publications Pty Ltd. The defendant noted malice had not been pleaded and the defendant was not required to prove reasonableness, thus the defence had been made out.
90 The plaintiff’s principal contention was that the publication of defamatory matter in this case did not fall within any of the recognised exceptions to the principle that common law qualified privilege does not protect mass media publications.
Analysis and conclusion
91 In Wraydeh the defamatory publications were based on media releases issued by police seeking information about the identity of a passenger injured in a traffic accident and the identity of the driver of the vehicle in which the passenger was travelling. The trial judge held that the defamatory statements were protected by qualified privilege. On appeal the appellant did not press his contention that the trial judge had erred in finding that there was a reciprocity of interest in that case. Rather, on appeal, the focus of the argument was whether what had been published had a sufficient connection with the subject matter of the duty or interest. In upholding the trial judge’s decision that the defence had been made out, Simpson AJA (with whom Bell P and Gleeson JA agreed) held that the defamatory matter was germane to the privileged occasion and the communication was honestly made.
92 In my judgment the Article had no features that distinguished it from the run of everyday news stories published in the mass media. There was no reciprocity of duty or interest between the defendant and readers of the Article. Accordingly, the traditional qualified privilege defence fails.
Common law qualified privilege – government or political matters
93 In Lange v Australian Broadcasting Corporation, the common law defence of qualified privilege was extended to protect defamatory statements made in discussions relating to government and political matters. The extended ‘Lange qualified privilege’ emerges from the implied freedom of political communication. The interest that justifies the extension of the privilege was expressed by the High Court as follows:
[T]his Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion ‑ the giving and receiving of information ‑ about government and political matters.
94 To attract the privilege, the defendant must establish that the published matter was of the requisite governmental or political character. However, in Lange the High Court recognised that ‘the constitutionally prescribed system of government did not require and would be adversely affected by an unqualified freedom to publish defamatory matter damaging the reputations of individuals involved in government or politics,’ and so the defence is subject to the qualification that the publisher’s conduct must be reasonable in the circumstances. I will consider the merits of the Lange extended qualified privilege defence when I consider the merits of the statutory qualified privilege defence.
Statutory Qualified Privilege
The statutory provision
95 Section 30 of the Defamation Act provides:
Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that –
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purpose of subsection (1) a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account —
(a) The extent to which the matter published is of public interest;
(b) The extent to which the matter published relates to the performance of the public functions or activities of the person;
(c) The seriousness of any defamatory imputation carried by the matter published;
(d) The extent to which the matter published distinguishes between suspicions, allegations and proven facts;
(e) Whether it was in the public interest in the circumstances for the matter published to be published expeditiously;
(f) The nature of the business environment in which the defendant operates;
(g) The sources of information in the matter published and the integrity of those sources;
(h) Whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;
(i) Any other steps taken to verify the information in the matter published; and
(j) Any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is not defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
Applicable principles
1 In Defteros v Google LLC, the Victorian Court of Appeal explained:
The defence of qualified privilege under s 30 of the Act differs from the common law defence of qualified privilege in at least two important respects.
First, the defence does not require a particular reciprocity or community between the interest of the publisher of the defamatory material and the recipient of it. Sections 30(1) and (2) require that the recipient had an interest or apparent interest in receipt of the material. However, the section does not require that the publisher had a reciprocal or common interest or duty to publish the material to that recipient. Instead, s 30 contains the additional requirement that the publication be reasonable in the circumstances.
Notwithstanding that important difference, as the authorities have noted, that alteration by s 30 to the common law principles does not invest in mass media publications a carte blanche to publish defamatory material.
…
Secondly, the courts have placed a wider construction on the words ‘an interest’, in s 30 of the Act, than was previously accorded to the concept of ‘interest’ for the purposes of the common law qualified privilege. Nevertheless, it has been emphasised that the requisite interest must be something more than that of idle curiosity, and it must be definite and of substance.
…
In addition to the requirement, that the recipient have an interest or apparent interest in the information, s 30(1)(a) requires that there be a sufficient relationship between the information and the subject in respect of which the recipient has an interest (or apparent interest).
2 In Defteros the Court of Appeal approved what had been said by Peek J in Google Inc v Duffy, about the requirement that the matter be published ‘in the course of’ giving the recipient information on the subject. In Duffy, on the correct construction of s 28(1)(b) of the Defamation Act 2005 (SA) (the equivalent of s 30(1)(b)) Peek J said:
Returning now to s 28(1)(b), the matters of relevance and proportionality arise in the context of the requirement that ‘the matter is published to the recipient in the course of giving to the recipient the information on that subject.’ Section 28(1)(b) ‘effectively confines the defendant in a claim for qualified privilege to material conveying information on the subject already identified under (s 28(1)(a)) as being one in which the recipients have an interest or apparent interest.’
The critical consideration is that the mere fact that the defamatory matter was published at the same time as words giving readers information about the relevant subject is not sufficient; the defamatory matter must be published in the course of giving readers information about the relevant subject. [footnotes omitted]
3 In relation to the circumstances specified in s 30(3) in Chau v Fairfax Media Publications Pty Ltd, Wigney J observed:
This list of factors is plainly neither exhaustive, nor mandatory: Rush v Nationwide News Pty Ltd [2018] FCA 357 at [139]. Nor should it be approached inflexibly. It provides, at best, a guide or pointer to the sorts of things which might be relevant in assessing reasonableness. The relevance or weight to be given to any one or more of the factors in the list will very much hinge on the particular facts of the case. Ultimately, the Court must have regard to “all the circumstances leading up to and surrounding the publication” and it would be “unwise to attempt any comprehensive definition of what they may be”: Austin v Mirror Newspapers Ltd [1986] AC 299 at 313. The considerations which bear upon the reasonableness of the conduct of a publisher will vary with the circumstances of individual cases: Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [30] per Gleeson CJ and Gummow J.
4 His Honour went on to set out the following general principles:
First, in most cases, the more serious the imputation that is conveyed, the greater the obligation upon the respondent to ensure that its conduct in relation to the publication was reasonable: Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387C (per Hunt A‑JA, with whom Samuels JA agreed); see s 30(3)(c) of the Defamation Act.
Second, a respondent who intended to convey an imputation that was in fact conveyed must generally establish that they believed in the truth of that imputation and that the imputation conveyed was relevant to the subject: Morgan at 387F and 388C.
Third, the fact that the respondent may not have intended to convey the imputation that was in fact conveyed does not necessarily mean that their conduct in publishing was unreasonable: Austin at 362; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [81] ‑ [82]. In such a case, the respondent must generally establish that they believed in the truth of the imputation that they intended to convey, and that their conduct was nevertheless reasonable in relation to the imputation which they did not intend to convey, but which was in fact conveyed. In that regard, it may be relevant to consider whether it was reasonably foreseeable that the publication might convey the unintended imputation and, if so, whether the respondent considered that possibility and took appropriate steps to prevent that imputation being conveyed: Morgan at 387G-388A; Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059; (2006) 68 NSWLR 150 at [70] – [75]; Evatt v Nationwide News Pty Ltd [1999] NSWCA 99 at [40] – [43].
Fourth, the respondent must generally establish that reasonable steps were taken before publishing to ensure that the facts and conclusions stated in the publication were accurate. That would generally involve making proper or reasonable inquiries, checking the accuracy and reliability of sources of information and ensuring that the conclusions followed logically, fairly and reasonably from the information that had been obtained; Morgan at 388B; see generally ss 30(3)(g) and (i) of the Defamation Act. In that context, the respondent must ordinarily disclose both the nature and source of the information which was possessed: Sims v Wran [1984] 1 NSWLR 317 at 327F.
Fifth, in relation to sources, the respondent’s belief or perception of the position, standing, character and opportunities of knowledge of the source must be such as to make the respondent’s belief in the truth and accuracy of the information reasonable in the circumstances: Morgan at 388D; s 30(3)(g) of the Defamation Act.
Sixth, a respondent must show that the manner and extent of the publication did not exceed what was reasonably required in the circumstances: Morgan at 388C.
Seventh, the respondent must also establish that the respondent gave the person defamed an opportunity to make a reasonable response to the defamatory imputation: Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 at 252; referred to by the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 574.
In Lange, the High Court said the following about reasonableness in publishing, albeit in the context of the implied Constitutional defence to the publication of defamatory imputations relating to government and political matters at 574:
Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond. (Footnotes omitted.)
An overview of the opposing arguments – Lange privilege and statutory privilege
5 There is a substantial overlap between the issues raised by the extended Lange qualified privilege and those raised by the statutory privilege defence. It is convenient to outline the parties’ respective contentions in respect of both defences.
6 The defendant’s principal contentions were to the following effect:
(a) The matters, the subject of the Article, were relevant to a government or political matter – the charging of a government employee arising from the misuse of a government entitlement and thus the publication was on a privileged occasion and the defendant acted reasonably in publishing.
(b) The readers of the Article had an interest in having information on the matters that were the subject of the Article because they were matters of proper and legitimate public concern.
(c) Alternatively, the readers of the Article had an apparent interest in having information on the matters that were the subjects of the Article because at the time of its publication the defendant believed that recipients had an interest in having information on those matters because the defendant believed they were matters of proper and legitimate public interest to readers.
(d) The defendant’s conduct in publishing the Article was reasonable because:
(i) The matters that were the subject of the Article were, and were believed to be by the defendant, matters of legitimate and significant interest to members of the Western Australian and Australian communities.
(ii) Thus, there was a public interest in publishing the Article, or the defendant believed there was a public interest.
(iii) It was not unreasonable for the defendant not to have obtained verification of the pecuniary benefit that was the subject of the charge. The Article makes no mention of the amount of the charge and does not actively misrepresent the circumstances. A reference to the amount of the charge would have made no material difference to the underlying fact that the plaintiff had been charged with a serious criminal offence.
(e) The authorities make it clear that when considering the defence of qualified privilege the Article must be understood in its ‘defamatory sense’ and not its entirety.
(f) Both the extended Lange privilege and the statutory qualified privilege protect mass media publications.
7 The plaintiff’s principal contentions were to the following effect:
(a) The defence focuses on the matter complained of rather than the imputations – the question for the court is – was the publication of the matter as a whole reasonable in the circumstances?
(b) The defendant failed to establish that the recipients had any interest or apparent interest in receiving information about the subjects dealt with in the Article. The court should not accept the evidence of Mr de Kruijff or Mr Mallabone to the effect that the subject matter of the Article were matters of ‘public interest’. The plaintiff contended that if the public had an interest in learning that he was the subject of a prosecution for fraud, then there was a public interest in disclosing that he had been acquitted but the acquittal was not reported.
(c) The Article does not give readers ‘information’ about any of the matters the defendant contended were the subject of the Article but ‘baldly asserted words regarding the plaintiff’s charge while presenting an incomplete account of the actual proceedings’.
(d) The conduct of the defendant was not reasonable in the circumstances because:
(i) The matter is of marginal public interest. The plaintiff was not a senior employee of the Department of Premier and Cabinet. In any event, the Article portrayed the fraud offence with which the plaintiff had been charged as comparable to the conduct of the trade commission to Japan and thus misrepresented the true position. It was unreasonable for the Article not to have mentioned the amount of the pecuniary benefit the subject of the charge.
(ii) The allegation made against the plaintiff was very serious and thus great care should have been taken before publishing the Article. The plaintiff contends there was a demonstrable lack of care.
(e) The Article conflated allegations of corruption with findings of corruption.
(f) It was not in the public interest for the Article to be published expeditiously, the plaintiff had appeared in court on 21 January 2019 and the CCC report, which had nothing to do with the plaintiff had been tabled in Parliament in March 2019. The only factor that explains the ‘rushed reporting’ was the Channel Ten news story.
(g) There was no attempt to tell the plaintiff’s side of the story and there had been no attempt to contact him when it would have been easy for Mr de Kruijff to do so.
(h) Only limited steps were taken by the defendant to verify the matter. In addition to taking no steps to contact the plaintiff, Mr de Kruijff failed to take any steps to contact the Police who could have disclosed the amount that was the subject of the charge.
Analysis and conclusions
Occasion of privilege – communication about governmental matter
8 The conduct of the executive branch of government including the conduct of ministers and public servants is a matter that was recognised in Lange as capable of being of a political or governmental character. The prosecution of the plaintiff for an offence of fraud allegedly committed in the course of his employment was a governmental matter capable of being protected by Lange qualified privilege.
The reader had an interest in receiving information about the fraud charge
9 In my judgment the prosecution of the plaintiff for an offence of fraud allegedly committed in the course of his employment as a public servant is a matter about which readers of the Article had an interest in receiving information. I have reached this conclusion because the conduct of public servants in the course of their employment and an alleged departure from the standards of honesty expected of them is a matter of substance with an importance that extends beyond mere news.
Matter published in the course of providing the reader with information about the fraud charge
10 The imputation that the plaintiff was dishonest in his conduct as a government official was published in the course of providing information to the readers of the Article about the prosecution of the plaintiff for an offence of fraud allegedly committed in the course of his employment.
The conduct of the defendant was not reasonable in the circumstances
11 For the reasons given when dealing with the fair summary and fair report defences, the question is whether the conduct of the defendant in publishing the Article to the extent to which it gave rise to the defamatory imputation that the plaintiff was dishonest in his conduct as a government official was reasonable. In my judgment the conduct of the defendant was not reasonable. The following matters contribute to that conclusion.
12 First, while the prosecution of the plaintiff for an offence of fraud allegedly committed in the course of his employment as a public servant is a matter about which readers of the Article had an interest in receiving information, the public interest in the publication of the story was overstated by the defendant. More particularly, I do not agree with Mr Mallabone’s assertion that the publication was in the public interest because it concerned an allegation of fraud against a public servant and ‘there is no such thing as a minor fraud’.  This is not to condone criminal conduct, and fraud is, of course, a serious offence, but the law recognises that there may be trivial examples of serious offences (see s 45(1)(b) of the Sentencing Act 1995 (WA)). The extent of the public interest in the matter published must be considered against the background of all the relevant circumstances. The criminality alleged against the plaintiff was at the lowest end of the scale. Further given that the plaintiff neither occupied a public office nor exercised significant government responsibilities, and that the offence with which he was charged involved false claims for daily travel allowances of $23.27 over five consecutive days in August 2018, members of the community are unlikely to have regarded the story as one of anything other than very limited public interest. The Article was written in terms that suggested the prosecution of the plaintiff was a matter of substantial public interest when that was patently not the case.
13 Secondly, the imputation, found to have been conveyed by the Article, that the plaintiff was dishonest in his conduct as a government official, was a most serious imputation.
14 Thirdly, while the Article stated the plaintiff had pleaded not guilty, and in that respect, it drew a distinction between an allegation of criminal conduct and proven criminal conduct, the distinction was effectively occluded by those features of the Article to which I referred when explaining why the Article conveyed the imputation that the plaintiff was dishonest in his conduct as a government official.
15 Fourthly, there was no public interest in the circumstances relating to the fraud proceedings or the Joint Standing Committee proceedings that favoured the publication of the Article expeditiously. Rather, the only pressure to publish a story on these subjects on 6 April 2019 was the internally generated pressure to fill the pages of the newspaper and to compete with other mass media outlets. Objectively, there was nothing about the story that warranted immediate publication.
16 Fifthly, it may be accepted, as the defendant pointed out, that the imputation was free of any reference to the amount of the pecuniary benefit the subject of the charge. That said, the Article was written, and the content organised, in a manner that conveyed the misleading impression that the charge arose from conduct that was of the same nature and scale as that revealed by the CCC report into the conduct of the trade commissioner to Japan. This impression is conveyed most clearly by the prominent headline and the references to the CCC report in the concluding paragraph. The headline, and the statements concerning the prosecution of the plaintiff read in the context of the headline, contributed to the overarching theme of the Article ‑ dishonesty and corruption on a significant scale on the part of senior public servants. The plaintiff, however, was junior officer not a ‘Top Public Official’ and the charge against him concerned offending at the lowest end of the scale.
17 Sixthly, Mr de Kruijff made no attempt to contact the plaintiff in circumstances in which, as I have found, he could have telephoned or messaged him.  The defendant contends that it was not necessary to obtain and publish a response to the matter published because there is no suggestion that anything in the Article was factually incorrect and the Article recorded the plaintiff had pleaded not guilty.
18 The defendant draws a distinction between the factual reporting in the Article and an opinion piece in respect of which it would have been relevant to provide the plaintiff with a wide-ranging response. There would have been more force in the defendant’s contention had the Article been confined to statements about the fraud proceedings and the references to them during the Joint Standing Committee proceedings. Accepting that the reasonableness element of the defence does not require a counsel of perfection, the inclusion of Ms Xamon’s quotes (including the misleading suggestion that ‘the resulting report out of the DPC investigation’ was a report about the plaintiff) and the reference to the CCC report, read in the context of the factually inaccurate headline, create a materially different impression of the plaintiff’s conduct from the one that would have been conveyed if the defendant had published an article that was strictly factual and strictly accurate.
19 In my view it was incumbent on Mr de Kruijff to give the plaintiff an opportunity to respond and give his side of the story. Had he been contacted by Mr de Kruijff, the plaintiff could have explained why the charge against him was based on a false premise and that he was a junior officer. If it was in the public interest to publish an article about a public servant who had been charged with fraud, it was in the public interest that the article be accurate and balanced. As noted earlier, objectively there was nothing about the story that required it to be published urgently.
Damages
Applicable principles
20 The following summary of the applicable principles draws heavily on the statements of the relevant principles in Rayney and in Hockey.
21 There are three purposes to be served by damages awarded for defamation. They are consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff’s personal and, if relevant, business reputation, and vindication of the plaintiff’s reputation. The first of these two purposes are often considered together and constitute consolation for the wrong done to the plaintiff.  Vindication looks to the attitude of others to the plaintiff. The three purposes overlap and ensure that the amount awarded is ‘the product of a mixture of inextricable considerations’.
22 Damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment. The harm caused to plaintiffs by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them. A person publishing defamatory imputations must take plaintiffs as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of a plaintiff.
23 The sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff’s reputation. The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to effect vindication of the plaintiff.  Damage to reputation need not be proved as it is presumed. The level of damages should reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment.
24 The circumstance that a respondent has not provided any apology is pertinent.
25 Damages are ‘at large’ in the sense that they cannot be arrived at through calculation or the application of a formula, and are therefore necessarily imprecise.
26 In Wilson v Bauer Media Pty Ltd, Dixon J, in outlining the relevant principles, noted that:
In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material. This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. It is precisely because the ‘real’ damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach. The award of damages must be sufficient to ensure that, the damage having spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.
(footnotes omitted)
27 While damages are awarded to vindicate the plaintiff’s reputation, they are not awarded as compensation for the loss in value of that reputation as though it were a tangible asset or physical attribute which, once damaged, is worth less than it was before.
28 It is well established, and the defendant accepted, that a plaintiff need only show that the relevant defamatory statement was a cause of his loss, rather than the cause.
29 Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by subsequent conduct of a defendant. Damages may be increased if there is ‘a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable’. Aggravated damages are compensatory in nature:
The concept of ‘aggravated damages’ is not, whether calculated separately or not, a different ‘head’ of damages. It focuses on the circumstances of the wrongdoing which have made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means of punishing a defendant.
30 The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations.
31 Andrews damages is the term used to described damages for a general loss of business awarded in accordance with the principles stated by Mahoney JA in Andrews v John Fairfax & Sons Ltd. Those circumstances are primarily concerned with the circumstances in which a relevant loss of business and the existence of a causal relationship with the defamation will be inferred.
32 Section 34 of the Defamation Act requires that, in assessing the amount of damages, ‘the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded’.
33 Section 35(1) of the Defamation Act places a monetary limit on the damages for non-economic loss that may be awarded in defamation proceedings unless the court orders otherwise under sub-section (2). The relevant monetary limit is currently $443,000.
34 Section 35(2) provides:
A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
The plaintiff’s evidence
General observations
35 The plaintiff was subject to a rigorous and searching cross‑examination in which his credit was the subject of forceful challenges. The defendant’s senior counsel put to the plaintiff that he had fabricated evidence to make his circumstances following the publication of the Article appear worse than they really were. Further, it was put to the plaintiff that, in effect, he had deliberately not disclosed the existence of his Instagram account because the photographs shown on the account belied his evidence that following publication of the Article his previously active social life came to an end. It was suggested that the plaintiff was making up his evidence ‘as [he] went along’. In closing submissions the defendant made a number of submissions as to why the court should not accept the plaintiff’s evidence unless it was supported by other independent evidence. When recounting the plaintiff’s evidence I explain why I do not accept the defendant’s attacks on the plaintiff’s credit.
36 After the plaintiff had given evidence, he amended the re-amended statement of claim (with leave) to include an allegation that:
[T]he cross-examination of the plaintiff on 29 January 2024 in particular [the suggestions that he had fabricated evidence, given false evidence about becoming introverted, and given misleading evidence about his social media accounts] was wounding and insulting and thereby aggravated the plaintiff’s hurt.
37 The plaintiff found the cross-examination testing and wearying and this was understandable because it was lengthy, though I add, appropriately so. In cross-examination the plaintiff was guarded in his answers, and as the cross-examination progressed became increasingly argumentative. Overall, however, the plaintiff’s demeanour and his approach to answering questions did not give me concern about his credit. In my assessment the plaintiff was an essentially honest witness and I generally accept his evidence, though, as I will explain, I have reservations about the extent to which the plaintiff attributes the deterioration in his enjoyment of life he has experienced primarily to the publication of the Article.
38 As referred to earlier, the plaintiff’s brother Mr Kosta Lazos gave evidence that was broadly supportive of the plaintiff’s account of the effect on him of the publication of the Article. Mr Kosta Lazos corroborated the plaintiff’s evidence that their family was a very close family. He explained that he spoke to the plaintiff on a daily basis and went on long walks with the plaintiff during which the plaintiff would ‘air his feelings’. Mr Kosta Lazos said he was very supportive of the plaintiff and they had discussed the present action many times. In my assessment Mr Kosta Lazos gave his evidence in a measured and credible manner. It is entirely natural that he would be supportive of his brother and while his evidence must be assessed in the context of a close familial relationship and an awareness of the subconscious influences that this may generate, in my assessment his evidence was honest and reliable.
The effect of the publication of the Article
39 In the preceding paragraph I referred in passing to the evidence given by the plaintiff and Mr Kosta Lazos about the closeness of their family. Both the plaintiff, Mr Kosta Lazos, one of their sisters and their parents lived at the family home in Karrinyup. The family was, as the plaintiff described it, a ‘traditional Greek family’. I accept these descriptions of the plaintiff’s family background.
40 The plaintiff had an abiding interest in cars. He owned a convertible Ford Mustang, a BMW coupe and a Nissan Skyline. I accept the plaintiff’s evidence that he derived much enjoyment from owning and driving the Ford Mustang and BMW coupe.
41 The plaintiff described the effect of reading the Article as follows:
Found the article on page 9 of the West. And I found it extremely distressing. I found that it didn’t portray anything that reflected my situation at all. I was bewildered by everything from the headlines, top public – and reading the article a number of times, it was confusing even to myself, and I’m the one they’re talking about, thought public official – is that talking about me or Peacock? Because my understanding was a top public official – he was the ambassador to Japan, someone I had never met, had no association with whatsoever. And then it was like, top public official, and I’m thinking, I’m a level 2, who’s the top public official they’re referring to. And then there was a picture there on a slant that I can – not a favourable light or positioning, and a part of the page which was so close to the wording of $500,000 that it’s linking me to $500,000.
…
Well, I was gutted because this is not – this wasn’t at all an accurate reflection of what happened or what I was alleged to have done. It identified me as a top public official, which I was not. I was level 2. It confused me and the readers that I just recently been in that role. I had been in that role for 23 years. And with that department. No other department. And never come under any scrutiny of any shape or form with that department.
42 The plaintiff described the effect of the publication of the Article on his ‘non social work life’ as follows:
I was always been a very happy outgoing guy, large circle of friends, some within the media, some within other circles. I contributed and attended a lot of Greek community events, took my parents out quite often, especially my dad, to try and, you know, make him – because he was home down so often because of the oxygen, home oxygen, I tried to take him out with this little cylinder – you could connect a little gas cylinder, go out for about four or five hours at a time, so I used to try to take him out for coffees and change the environment, give him better quality of life, and all that changed. If we would go out, and all of a sudden the attention would be on, Petro, we heard this, you know, what’s happening. Distressed my father, made all of those sorts of excursions and family events completely out the window.
And your own social life – was that limited to Perth?—I would travel – I used to travel to Greece quite often. I loved spending time with family and extended friends over there. When this all happened and it hit the media, I became like a recluse. I found that if I – if I was to go out, the focus of the conversation would be this saga and how it was, you know – has it been sorted out yet or not, and then I could no longer be in the moment, and people were making these joking underhanded comments, like, “Oh, how much did you get out of them?” and, “How much did you – I hope you got away with it,” and it’s like, that’s not what I’m about. Never have been.
So did you travel after the publication of this article?—No, I never – I didn’t go overseas. I didn’t go out to social events and functions. I avoided a lot of contact because it just gave me anxiety.
The – what happened to your use of your vehicles?—I stopped enjoying taking the Mustang out. I hardly – the Mustang hasn’t been moved for about a year, just over a year now. The enjoyment of my lifestyle, my vehicles and stuff, just all felt tarnished after this – this article.
43 The plaintiff gave evidence about the effect of the publication of the Article on his family. The substance of his evidence was that the publication of the Article was a cause of anxiety and stress for his parents in particular but also for his siblings. His evidence was to the effect that seeing the distress caused to his family was ‘deeply upsetting’ for him.
44 The plaintiff described the effect of the publication of the Article on his career as follows:
Well, up – up to that point, when I was charged and up to this article, I had ambitions of getting back into the media office. When this came out, I – I felt that this completely destroyed any chance of being seen as credible in – in the office environment or having any scope of a career path in the media. And even if I was to leave the department and try to seek any further role in the media, it would be impossible to deal with the main media source in Perth, being The West. I couldn’t be a media adviser or liaison or officer for any other department or – it would have been impossible.
So what did you do?—I focused on the hospitality stuff, which is – pays a lot less than my previous roles within the media. I felt like I had lost my status. There was a certain pride to working in the Department of Premier and Cabinet, and I took that very seriously and held it close to my heart. People would, you know, have conversations with me in the past and you’re, you know, doing media for a very high profile department. And all of a sudden, it was – you know, I was now waiting tables and serving people and running around trying to, you know, get as many caretaker building manager roles as possible to supplement these roles, none of which pays as much as my – you know, my media career was doing. Plus, that – that – I was fortunate enough when I joined the Department of Premier and Cabinet under the Richard Court Cabinet to be offered the Gold State superannuation award scheme, the one that MPs used to enjoy, and I – I took that on board. I took – I accepted the offer and I contributed six per cent of my – of my pay into the super, and the government was matching with a further six per cent. So my intentions were always to have a longstanding career with the government to retirement age and I had a very, very good superannuation scheme in place, and all that – the prospects of continuing that were destroyed with this one article.
45 The plaintiff explained that there was no improvement in his social life following his acquittal of the fraud charge in May 2019. His explanation was as follows:
After you were acquitted, did you change anything about your social life, what you had told his Honour that – – -?—When I was – when I was acquitted, you know, I felt that I could, you know, try to start going out more often, my social life, but the – when I did, or attempts to do so, I was always confronted by people, whether the gathering is small or – small or large, conversation quite often turned to “How are you – how are you doing? What’s happening with this thing? Is this saga going on? I felt that I continually had to explain to them that I was acquitted, because it wasn’t reported anywhere, and this – the article still looming over my head.
When you say the article is still looming over your head, was ‑ ‑ ‑?‑‑‑The insinuation that I was guilty.
Were you aware as to the – whether the online article remained available?—Yes, the online – I first checked for the online article over that weekend when The West first came out. I saw it there, and then, to my astonishment – I check it quite regularly, and to my astonishment, it remained online to this day.
46 The plaintiff described the effect of the publication on his ‘general fitness and health routine’ as follows:
I was very active, very healthy. I was very positive. Had a positive outlook on life. I would exercise either in the gym or do martial arts two, three times a week. It was They were social activities for me. interaction with other, you know, like-minded, fit people. All desire to do that just – it lost its – I lost the vitality and desire to continue with those sports that I enjoyed. Been doing martial arts since I was 15 years old and now it took all the enjoyment out of it. This – it hampered the enjoyment, my ability to enjoy intimacy with my partner. It completely destroyed my libido. I would go to family events and my dad continued to say to me, “Are you happy? You’ve got to be happy in life. You have to be.” And I was just – I went from being the most talkative, fun, joking, positive person in the family to now an introvert that would sit there like a fly on the wall, and I couldn’t partake in conversations, and if – if somehow I was involved in something, the conversation quite often would turn to me, would make me sink into this lower form of unhappiness.
47 As noted earlier, the plaintiff’s evidence about the effect of the publication of the Article was challenged vigorously in cross‑examination.  The defendant’s senior counsel asked the plaintiff whether it was correct that for the month after the Article was published he ‘didn’t go anywhere except with his sister to the beach’. The plaintiff’s first answer to this question was:
To my recollection, I wasn’t going anywhere from the time I was charged.
48 The plaintiff’s second answer was ‘yes’ and he went on to agree that ‘it was equally correct to say’ that the Article was ‘a complete dampener on [his] ability to enjoy the moment’ and ‘[he] immediately started declining invitations to events’. The plaintiff was cross‑examined at some length to the effect that his evidence that he went nowhere other to the beach with his sister was incorrect because he had gone to the cinema on 9 and 30 April 2019. It was suggested to the plaintiff that he was ‘falsely seeking to attribute [his] circumstances to the publication of the article in the Weekend West’.
49 I do not accept that the plaintiff was engaging in a deliberate attempt to attribute his circumstances to the publication of the Article. Three points may be made. First, the plaintiff did not give evidence‑in‑chief to the effect that he did not go anywhere other than to the beach with his sister after the publication of the Article, the proposition was put to him in cross-examination, without the opportunity for the plaintiff to elucidate what he understood by the phrase ‘wasn’t going anywhere’. Secondly, when the proposition was first put to him, his answer was ‘I wasn’t going anywhere from the time I was charged’ which undermines the notion that his subsequent evidence was deliberately false. Thirdly, and not unreasonably, it is clear that the plaintiff understood the phrase ‘wasn’t going anywhere’ in a figurative rather than a literal sense. That is, he understood the phrase ‘wasn’t going anywhere’ to mean that ‘wasn’t going to events or functions’ and that going to the cinema with his cousin on two occasions in April (that the plaintiff was accompanied by his cousin was subsequently established) was not, in the plaintiff’s understanding, going out to an event of function.
50 The plaintiff was cross-examined to establish that other matters (his conflict with the work colleague who had initiated the complaint against him, his arrest and the subsequent search of his apartment and his parent’s home, the fact that he had been charged and had appeared in court and the fact he had been suspended without pay) had contributed to the deterioration in his enjoyment of life and his withdrawal from his formerly active social circle. The substance of the plaintiff’s response to this line of cross-examination was to the effect that they were matters that were unpleasant but which did not stress him. He explained that the other matters did not cause him to feel stress because he knew he had done nothing wrong. The plaintiff’s evidence was that he was angry and frustrated but not distressed.
51 The plaintiff accepted that the Channel Ten news broadcast defamed him in the same manner as the Article but the effect of his evidence was that the broadcast did not contribute to the deterioration in his enjoyment of life. The plaintiff did not see the Channel Ten news broadcast at the time it was broadcast and he only became aware of what was said in the broadcast when he obtained a transcript by which time he had read the Article.
52 I accept that the plaintiff may have regarded the work conflict, the police investigation and charge and the suspension from his employment as matters that he could manage whereas he could not manage what was said in the media about him but, even so, I have difficulty in accepting that the plaintiff was as sanguine about the effect of those other matters on his life and well-being. I do not suggest that the plaintiff was dishonest in his evidence. Rather, in my view, subconsciously the plaintiff has subordinated the negative effect of those matters to the effects felt by the publication of the Article and there may have been an element of subconscious rationalisation in his characterisation of those events as ‘unpleasant’ as opposed to ‘stressful’. Objectively, however, the conflict in the workplace, the police investigation and the criminal charge, and the suspension without pay are all matters that would create stress for even the most resilient of personalities. That they adversely affected the plaintiff to a material extent is evidenced by the first answer that he gave when cross-examined about ‘going out’:
To my recollection, I wasn’t going anywhere from the time I was charged.
53 The plaintiff gave evidence that his health had deteriorated since the publication of the Article. The plaintiff’s evidence was that in the first week after publication ‘he was feeling a lot of anxiety and [his] heart was racing and beating’ and he went to see his local GP who advised him to be calm and meditate. The plaintiff gave evidence that in October 2021 when having dinner with friends and ‘talking about [his] life and what was going’, he felt chest pains and passed out. The plaintiff was taken to the Emergency Department of Fiona Stanley Hospital and his condition was investigated and he was discharged but no cause of the pain he had experienced was identified. Subsequently, the plaintiff developed palpitations and, in May 2022, when performing a stress echo test on a treadmill to investigate the palpitations the plaintiff experienced an unusually rapid heart rate. He drove himself to the Emergency Department of Sir Charles Gairdner Hospital and his condition stabilised.
54 In the plaintiff’s evidence-in-chief, he disclosed the existence of his LinkedIn account and his Facebook account. The purpose of this evidence was to demonstrate that the plaintiff’s contact details could have been discovered by Mr de Kruijff. When cross-examined about his Instagram account it was put to the plaintiff, in effect, that he had deliberately not disclosed the existence of his Instagram account because it contained posts that, contrary to his evidence, demonstrated that the plaintiff had not lost his enjoyment in life. Much of the re‑examination of the plaintiff was directed to establishing that the majority of the images shown on his Instagram account after the publication of the Article show the plaintiff in a work context. It is unnecessary to refer to the detail of the evidence. I accept that there are a small number of posts to the Instagram account in the post‑publication period that show the plaintiff driving his Ford Mustang but I accept that the majority of the posts (and there were not many) show the plaintiff in a work context. The Instagram posts do not support the defendant’s contention that the plaintiff exaggerated the extent to which his social activities have declined. I do not accept that the plaintiff had deliberately not disclosed his Instagram account.
55 On 6 April 2019, and subsequently, the plaintiff exchanged messages with friends about the Article. In one instance the plaintiff sent a copy of the Article to a friend. The plaintiff was cross-examined about the messages. In the plaintiff’s friends’ messages to him, they expressed their support for him and made some observations on the Article. In his messages, the plaintiff attributed the publication of the Article to conflict he had experienced in the workplace and a ‘media beat up’ and generally expressed an attitude of defiance. Ultimately, I do not find the messages helpful in assessing the effect of the publication of the Article on the plaintiff or in assessing the attitude of his friends towards him after the publication. My impression is that there was a degree of well-intentioned artificiality in the messages. The plaintiff’s friends were primarily concerned to support him and the plaintiff was trying ‘to put on a brave face’ on what had occurred.
Analysis and conclusions
56 Subject to the reservation expressed at [246] I accept the plaintiff’s account of the effects of the publication of the Article on him and his family as being generally accurate. Pulling the various aspects of the evidence together I make these observations,
57 First, I am satisfied that the publication of the Article caused the plaintiff considerable hurt and distress. As I have explained I consider the plaintiff started to curtail his social life from the time he was charged on 12 December 2018 but the negative effects of the difficulties the plaintiff had encountered to that point were eclipsed by the profoundly adverse effect of the publication of the Article imputing that the plaintiff had been dishonest in his conduct as a government official in the Saturday edition of the only state-wide print newspaper circulating in Western Australia (and of which 186,000 print copies were sold). This is not to suggest that in assessing the hurt and distress the plaintiff experienced the matters the plaintiff characterised as ‘unpleasant’ are to be ignored. While those matters are relevant, in a practical sense, it is impossible to disentangle the effect of those matters from the effect of the publication of the Article and express a comparative assessment in percentage terms. The assessment of the hurt and distress caused by the defamation is a matter of impression.
58 Secondly, I infer that a major cause of the plaintiff’s distress lay in his perception of how others regarded him and his inability to address the impression he perceived had been created by the Article. I accept that the plaintiff avoided social events in order to avoid questions about the proceedings and that he became increasingly introverted whereas formerly he had been gregarious and outgoing. I am comfortably satisfied that the publication of the Article substantially diminished the plaintiff’s enjoyment of life.
59 Thirdly, in the week following the publication of the Article the plaintiff felt so anxious that his heart was ‘racing’ and he sought advice from his general medical practitioner and that is a matter that must be taken into account in the assessment of damages. In the absence of medical evidence, I am not persuaded that the episodes of ill-health that led to the two occasions on which the plaintiff attended the emergency departments of hospitals were caused by the publication of the Article.
60 Fourthly, while there was no independent evidence of damage to the plaintiff’s reputation, such damage is presumed. I do not rely on the plaintiff’s evidence that the publication of the Article would make it difficult to pursue a career in the media in Western Australia as evidence of damage to his reputation but I accept that he genuinely held the opinion that his prospects for a career in the media had been damaged and that this contributed to the distress he felt.
61 Fifthly, the plaintiff’s circumstances are not sufficiently analogous to the circumstances in which Andrews damages are awarded for a general loss of business to justify an award of damages on that basis.
62 Sixthly, the plaintiff is not entitled to compensation for the distress experienced by members of his family but witnessing their distress compounded the hurt he felt and in that way the effect of the publication of the Article on his family is relevant.
63 Seventhly, as the plaintiff acknowledged, his complaint about the Article and the complaint he made about the Channel Ten broadcast was effectively the same ‑ both matters ‘insinuated that he had defrauded the public purse’. It is, however, understandable that the Article caused the plaintiff a greater level of hurt and distress than the Channel 10 broadcast for the following four reasons. First, the plaintiff did not learn what had been said in the Channel 10 broadcast until after he had read the Article. Secondly, television is a transient medium and the duration of the Channel 10 broadcast was 41 seconds. Thirdly, by way of contrast, the Article appeared in three editions of the Weekend West, including the print edition. Fourthly, the Article continued to be published on the ‘The West Australian’ website. Notwithstanding these matters, the defendant’s liability to the plaintiff for damages for the publication of the Article is mitigated by the compensation the plaintiff received from Ten Network Pty Ltd for the Channel Ten broadcast.
64 Eighthly, the plaintiff was cross-examined robustly.  I am not persuaded, however, that the cross-examination demonstrated a lack of bona fides on the part of the defendant or otherwise constituted conduct that was improper or unjustifiable.
65 Ninthly, I accept the plaintiff’s evidence that the continued publication of the online version of the Article aggravated the hurt felt by him. The continued publication of the online article for a period of approximately five years, notwithstanding both the service of the plaintiff’s concerns notice which informed the defendant that the plaintiff had been acquitted and the subsequent commencement of proceedings, appears calculated to aggravate the plaintiff’s hurt. It extended the life of the defamatory imputation and I have no doubt that the hurt this caused contributed to the continued deterioration in the plaintiff’s enjoyment of life. The defendant’s decision to continue to publish the Article, especially following the acquittal of the plaintiff, is difficult to understand. None of the defendant’s witnesses sought to give an explanation. There is no apparent editorial justification for continuing to report that the plaintiff had been charged without also reporting he had been acquitted. In my judgment, the continued publication of the Article online very significantly aggravated the hurt felt by the plaintiff and he is entitled to a substantial increase in compensatory damages.
66 If the compensation received by the plaintiff from Ten Network Pty Ltd was to be ignored, I would assess the damages, including aggravated damages, to be awarded to the plaintiff in the sum of $250,000. For the reasons given, however, account must be taken of the compensation received by the plaintiff from Ten Network Pty Ltd in respect of the defamation in the Channel 10 broadcast. Making the allowance of $45,000 for costs to which I referred earlier, the sum to be deducted from my assessment of $250,000, is $70,000 reducing the award to be made to the plaintiff to $180,000.  I will hear from the parties in relation to interest and costs.

Appendix A
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Appendix B
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I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MH
Associate to the Honourable Justice Tottle

5 JULY 2024