Barrow v Bolt

[2014] VSC 599

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 02412

DAVID CHARLES BARROW	Plaintiff
-v-
ANDREW BOLT	First Defendant
-and-
THE HERALD AND WEEKLY TIMES PTY LIMITED	Second Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	20, 21, 22, 23 and 27 October 2014
DATE OF JUDGMENT:	2 December 2014
CASE MAY BE CITED AS:	Barrow v Bolt & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 599

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DEFAMATION – Complaint concerning defendant made by plaintiff to regulatory body – Defendants invited to respond to complaint – Email sent from first to second defendant and forwarded to regulatory body – Imputations – Defendants concede defamatory nature of imputations – Qualified Privilege – Whether defeated by Malice – Triviality – Whether ‘harm’ for the purposes of triviality includes ‘hurt feelings’ – Reasonable offer of amends – Whether offer within time – Whether letter constituted ‘concerns notice’ – Defamation Act 2005 (Vic), ss 18 and 33.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person	N/A	N/A
For the Defendants	Mr M. Collins QC Mr S. Mukerjea	Kelly Hazell Quill Lawyers

TABLE OF CONTENTS

1 Introduction................................................................................................................................. 1

1.1 The Trial................................................................................................................................... 2

1.2 General background............................................................................................................... 2

1.3 Direct background.................................................................................................................. 5

2 The Defamatory Imputations.................................................................................................. 6

2.1 Legal Principles and Conclusions........................................................................................ 6

3 Defences........................................................................................................................................... 8

3.1 Common Law Qualified Privilege....................................................................................... 9

3.1.1 Legal Principles.......................................................................................................... 9

3.1.2 Were the defamatory statements made on an occasion of qualified

privilege?............................................................................................................................ 10

3.1.3 Is the Defence defeated by Malice?........................................................................ 11

3.1.3.1 Legal principles........................................................................................ 11

3.1.3.2 The plaintiff’s case on malice................................................................. 14

3.1.3.3 The defendants' submissions................................................................. 16

3.1.3.4 Discussion and findings.......................................................................... 17

................ The First Bolt Statement...................................................................... 19

................ The Second Bolt Statement................................................................. 20

................ The Third Bolt Statement.................................................................... 20

................ The Fourth Bolt Statement.................................................................. 21

3.1.4 Conclusions on Malice and Qualified Privilege................................................. 21

..... ................................................................................................................ 3.2 Statutory Triviality23

3.2.1 Legal Principles........................................................................................................ 23

3.2.2 Conclusion................................................................................................................. 27

................................................................................................ ..... 3.3 Reasonable offer of amends29

3.3.1 Was the offer made within time?........................................................................... 29

3.3.2 Conclusion................................................................................................................. 30

4 Conclusion................................................................................................................................... 31

HIS HONOUR:

1 Introduction

1. The first defendant, Andrew Bolt, has been employed as a journalist by the second defendant, The Herald and Weekly Times Pty Ltd (‘HWT’) for many years.  On

   
   

   27 February 2012, Mr Bolt sent an email to Alan Armsden, who was then Managing Editor of HWT.  The email concerned the plaintiff, David Barrow, and purported to deal with a complaint made by Mr Barrow to the Australian Press Council (‘the APC’).  The email read as follows:

I did not express an opinion about Mr Manne. I alerted readers to an article in another paper.

Even had I commented on Mr Manne, there is no responsibility on me to contact him first. Indeed, Mr Manne has written many opinion articles about me without once contacting me first. Many of those articles contain disparaging and inaccurate statements, but I do not seek to have him silenced or to bring him to a tribunal for rebuke. I believe it’s part of the cut and thrust of debate, which must be allowed to flourish, and not made so dangerous or difficult that it wilts.

Mr Manne never sought to “correct” or clarify his view with a letter to me or a comment on my blog. Nor has Mr Barrow. Had Manne done so, I would have published it. Had Mr Barrow written a comment on my blog, it would almost certainly have been published. We maintain a debate.

It is utterly unrealistic to expect me to see everything published anywhere. I did not see Manne’s letter to The Australian, so thus was in no position to publish it myself.

Mr Barrow had two options. The first is legitimate: to contribute to debate – and to encourage debate generally – but simply contributing a letter or blog comment challenging the article which we linked to.

The second is illegitimate – to go to a tribunal or council first, without any warning, to have the debate punished and stifled simply by the process of complaint. Mr Barrow is in my opinion a vexatious litigant in many fora over a long time. Mr Barrow is in my opinion a man who seeks not to promote debate but to close it down. The press Council should declare his latest attempt vexatious and against the interest of debate. He had better opportunities to correct the record and chose not to take them.

(‘the Bolt Response’)

1. On the same day, Mr Armsden, acting on behalf of HWT, and in response to the Press Council complaint, forwarded the Andrew Bolt email to Mr Jack Herman, Executive Director of the APC.  Mr Barrow alleges that the contents of the email are defamatory.  It is common ground that the email was published only to Messrs Armsden and Herman.  In other words, the readership, beyond HWT, was one person.  Beyond Mr Bolt it was two persons.

1. The plaintiff now brings this claim in defamation. The defendants admit that in certain respects the email is defamatory, but argue that the common law defence of qualified privilege is made out, as are the statutory defences of triviality[1] and reasonable offer of amends.[2]  Mr Barrow argues that malice defeats the qualified privilege defence, and that the defendants have not made out either of the statutory defences.

   [1]Section 33 of the Defamation Act 2005 (Vic).

   [2]Section 18 of the Defamation Act 2005 (Vic).

1.1 The Trial

1. The plaintiff was the only witness in the trial and a good part of his evidence involved the production and tender of various uncontroversial documents. Although the plaintiff’s motives were explored in cross examination, the factual bases for the claim in defamation and the defences to it were not in serious dispute. The dispute centres upon the conclusions that ought follow from those facts. I see no need to make exhaustive findings about the plaintiff’s credit or reliability as a witness. It suffices to say that generally I regarded him as a truthful witness, although I consider his motives for bringing this action extend well beyond a concern for reputational damage.

1.2 General background

1. It is necessary to set out certain uncontroversial events that surround the impugned email.  I shall provide no more than a bald summary of these events:

·    Messrs Barrow and Bolt have neither met nor spoken to each other.

·    Mr Barrow brought a previous unrelated defamation claim against HWT and others.  The HWT component of the action included an article written by Mr Bolt.  This component was settled by HWT upon payment of $16,000 to Mr Barrow without any admission of liability.  This settlement occurred on 18 March 2011.[3]

[3]Exhibit G.

·    Between late March and December 2011, Mr Barrow sent 36 emails to Mr Bolt’s personal email address,[4] two letters to Mr Bolt personally (one to his home address), and submitted numerous comments to Mr Bolt’s blog. Mr Bolt sent one email to Mr Barrow, thanking him for an email Mr Barrow had sent on 26 March 2011.

[4]Exhibits J 8, J 9,  J 34, J 35, J 36, J 37, J 39, J 40, J 46, J 47, J 48, J 68, J 94, J 99, J 101, J 103, J 105, J 107, J 109, J 111, J 113, J 115, 5, 7, 9, 11, 17, 19, 22, 23, 24, 25, 26, 27, 28, 35.

·    Mr Barrow attended the Federal Court and observed the case of Eatock v Bolt.[5]  He prepared daily reports of his observations and forwarded those reports to various people, including Mr Bolt.

[5]Eatock v Bolt [2011] FCA 1103.

·    On 29 March 2011, Mr Barrow sent an email to Mr Bolt with the subject line ‘See you in court’.[6]

[6]Exhibit 7.

·    On 6 April 2011, in an email, Mr Barrow advised Mr Bolt of an ‘innovative storm wave of defamation claims’ coming Mr Bolt’s way.  Mr Barrow advised that he may administer a ‘rallying website’ to facilitate these claims.[7]

[7]Exhibit 11.

·    On 13 April 2011, Mr Barrow sent a concerns notice[8] to HWT and Mr Bolt alleging that he was defamed by two comments made on Mr Bolt’s blog by unrelated parties.[9]

[8]Under s 14(2) of the Defamation Act 2005 (Vic).

[9]Exhibit J 52.

·    In about September 2011, Mr Barrow engaged computer programmers to develop a program which enables a user to interrogate Mr Bolt’s blog with a view to identifying ‘key words’ or phrases that would act as sign posts for identifying potential actions for defamation by third parties.[10]

[10]Transcript of Proceedings, Barrow v Bolt & Anor (Supreme Court of Victoria, S CI 2012 02412, T Forrest J, 20–27 October 2014) 144 (‘Transcript’); Exhibits J 76 and 30.

·    The Independent Media Inquiry, conducted by Raymond Finkelstein QC, commenced on 14 September 2011.  Mr Barrow made three submissions to this inquiry.  Mr Bolt’s blog was a focus of these submissions.[11]  He also offered his empirical analysis of the Bolt blog.[12]

[11]Exhibits J 76, 29, 32.

[12]Exhibit 33.

·    On 14 November 2011, Mr Barrow brought proceedings at the AAT seeking to review the decision made by the relevant Department not to publish any of Mr Barrow’ submissions to the inquiry.[13]  He later abandoned these proceedings.

[13]Exhibits 34, 36, and 37.

·    Mr Barrow, in an email to Professor Robert Manne at about this time, stated ‘I feel matters are more likely to escalate than quieten down between me and Bolt this year…’[14]

[14]Exhibit 33.

·    Mr Barrow claimed that on 14 September 2011 he received an anonymous phone threat – ‘I’m coming for you, David.’  Mr Barrow indirectly attributed this call to Mr Bolt or an associate in an email sent to Mr Bolt on 25 September 2011.[15]  Mr Barrow subsequently sent a copy of this email to a News Ltd in-house solicitor[16] and advanced the same hypothesis to the Finkelstein inquiry in one of his unpublished submissions.  Mr Barrow effectively accepted in his cross-examination that he had no real evidence as to who was responsible for the alleged threat.[17]  He accepted that he had no more than a skerrick of evidence in support of his hypothesis.[18]  In my view, that is overstating the position.

·    Mr Barrow made nine complaints to Mr Bolt and HWT between 24 November 2011 and 13 December 2011.[19]  These complaints concerned statements made by Mr Bolt on his blog.  Six of those complaints were subsequently made to the APC.  None of these complaints concerned blogs about Mr Barrow.

·    At about this time, Mr Barrow contacted certain solicitors that he knew to practice in defamation law.  He sought work experience and advised them that he had developed a database of Mr Bolt’s blog posts, and that this database could be used to identify potential defamation clients.[20]

[15]Exhibit 25.

[16]Exhibit 26.

[17]Transcript 243; 244.

[18]Ibid.

[19]Exhibits J 92–95, J 99–112.

[20]Exhibits 30, 31.

1. Save for the “thank you” email sent on 26 March 2011 there is no evidence that Mr Bolt contacted or tried to contact Mr Barrow in any manner at any material time.

1.3 Direct background

1. One of the six complaints to the APC concerned a blog post made by Mr Bolt on 29 September 2011.  In that post, Mr Bolt re-published an article from that day’s Australian newspaper.[21]  That article asserted that Professor Manne had expressed a view that newspapers ought not to express the opinions of average Australians.  Professor Manne disputed that he had in fact expressed this view in a letter published in the Australian on 1 October 2011.[22] 

   [21]Exhibit B.

   [22]Exhibit B.

1. Mr Barrow made this complaint to the APC on 28 November 2011.  The substance of it was that the Bolt blog was unfair and unbalanced because it omitted to publish the Manne letter or to seek out and include in the blog Professor Manne’s views.[23]

   [23]Exhibit B.

1. The APC provided a copy of the complaint to HWT and invited a response.  That response came in the form of the emails that I have referred to in paragraphs [1] and [2] of these reasons, and which contain the allegedly defamatory imputations.

2 The Defamatory Imputations

1. Mr Barrow contends that the Bolt Response contains the following defamatory imputations:

(a)Mr Barrow’s conduct in making a complaint to the Press Council with the Barrow application was vexatious in that he had better opportunities to challenge the accuracy, fairness and balance of the Bolt article by writing to Mr Bolt or submitting a comment to the Andrew Bolt Blog.

(b)Mr Barrow is a person who habitually, persistently and without any reasonable ground, brought vexatious legal proceedings over a long time.

(c)Mr Barrow is a person who habitually, persistently and without any reasonable ground brought legal proceedings for an improper purpose, or which have been revealed to be hopeless, over a long time. 

(d)Mr Barrow is a vexatious litigant in many forums over a long time.

(e)Mr Barrow is a vexatious litigant. 

(f)Mr Barrow is a man who seeks not to promote debate, but close it down.[24]

[24]Second Further Amended Statement of Claim, dated 16 May 2014, [10].

1. The defendants accept that imputations (a), (d), (e) and (f) are defamatory of Mr Barrow.  They argue that imputations (b) and (c) are not reasonably open in that those imputations would not have been conveyed to the reasonable reader in the position of Mr Armsden or Mr Herman. 

2.1 Legal Principles and Conclusion

1. Justice Kyrou has helpfully summarised the principles relating to defamatory imputations.  In Cripps v Vakras,[25] his Honour said:

   [25][2014] VSC 279.

The meaning of the words in the Impugned Articles is to be determined objectively, by what the ordinary reasonable reader would regard the words to mean. In Farquhar v Bottom, Hunt J summarised the principles for determining whether a matter complained of is capable of conveying a particular imputation. His Honour said:

In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation. I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence; who is neither perverse; nor morbid or suspicious of mind; nor avid for scandal.

This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer.

The ordinary reasonable reader is neither unusually suspicious nor unusually naïve and engages in a degree of loose thinking.[26]

[26]Ibid [277] [Citations omitted] [Emphasis added].

1. It is clear that the essence of a defamation action is disparagement or diminution of reputation whether it be a personal, business or professional reputation.[27] In my view, the imputations alleged in sub-paragraphs (b) and (c) will not have been conveyed to the type of ordinary reader described by Kyrou J. It is clear that imputation (b) derives its wording from s 21(2) of the Supreme Court Act (Vic), which relevantly provides that a person may be declared a vexatious litigant if the Court is satisfied that the person has…”(a) habitually; and (b) persistently; and (c) without any legal ground – instituted vexatious legal proceedings…in the Court and inferior court or a tribunal against the same person or different persons.”[28] Imputation (c) alleges a similar imputation incorporating the pre-conditions of s 21(2) of the Act, but then works into the imputation the well known statement of Roden J in Attorney-General v Wentworth, which sets out the occasions on which proceedings will be vexatious.[29]

   [27]Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460.

   [28]Supreme Court Act 1986, s 21(2). It is immaterial to these proceedings that the relevant provisions of the Supreme Court Act 1986 have since been repealed and replaced by the Vexatious Proceedings Act 2014.

   [29]Attorney-General v Wentworth (1988) NSWLR 481 at 491.

1. In my view, the ordinary, reasonable reader of the impugned passages would not have available to him or herself knowledge of s 21(2) of the Act or indeed Roden J’s classic statement. That ordinary person is not a lawyer and would not, upon reading the words, seek out the Act or common law to better understand those words.

1. Whilst I have found that the ordinary reader would not understand ‘vexatious litigant’ as a legal term of art, the term still conveys an ordinary meaning with a sting. Both imputations (d) and (e) contain this phrase. Imputation (a) contains only the word ‘vexatious’. The ordinary meaning of this word is ‘causing or tending to cause vexation; annoyance or distress; annoying, troublesome’.[30] I consider that the word ‘vexatious’ in imputation (a) conveys to the ordinary reasonable person that Mr Barrow’s complaint was annoying, troublesome and unnecessary, given that he had alternative avenues by which to complain. The phrase ‘vexatious litigant’ as used in imputations (d) and (e), in my view conveys this similar meaning – Mr Barrow, in his dealing with Mr Bolt over a lengthy period has demonstrated himself to be persistent, annoying and litigious (in a broad sense that includes the making of complaints to the APC).

   [30]The Shorter Oxford English Dictionary (6^th ed, 2007).

1. Assuming I am correct in this analysis, Mr Barrow has demonstrated that he has been defamed in the way alleged by imputations (a), (d), (e) and (f).  There has been some disparagement of him and diminution of his reputation.

3 Defences

1. As I have said, the defendants rely on the following defences:

(a)common law qualified privilege;

(b)statutory triviality, s 33 of the Defamation Act 2005 (Vic) (‘the Act’); and

(c)reasonable offer of amends, s 18(1) of the Act.

3.1 Common Law Qualified Privilege

3.1.1 Legal Principles

1. The defence of qualified privilege will be established if two pre-conditions are satisfied:

(a)The publication must be made in the performance of a legal, social or moral duty, or to protect an interest.  In Horrocks v Lowe,[31] Lord Diplock described the privilege as follows:

The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so.  What is published in good faith on matters of these kinds is published on a privileged occasion.  It is not actionable even though it be defamatory and turns out to be untrue.[32]

(b)The publication must be made to persons who have a corresponding duty or interest in receiving same.  The classic statement of this principle appears in Lord Atkinson’s speech in Adam v Ward.[33]  An occasion of qualified privilege is ‘an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.  This reciprocity is essential’.[34]

[31]Horrocks v Lowe [1975] AC 135.

[32]Ibid 149.

[33][1917] AC 309.

[34]Ibid 334.

1. The interest of those receiving the document must be legitimate.  Their interest cannot be based in curiosity, news or gossip.  It must be an interest of substance.[35] 

   [35]Howe v Lees (1910) 11 CLR 361, 398 (Higgins J); Andreyevich v Kosovich (1947) 47 SR (NSW) 357 (Full Court), 363–4.

1. Whether these pre-conditions are met must be determined objectively.[36]  The defamatory communication must be relevant to the privileged occasion, although this requirement has been interpreted broadly.  The privilege will only be lost where the impugned statement is totally foreign or unconnected to the privileged occasion.[37]  Where the defamatory statement is a response to an attack on the conduct of the defendant that response will be privileged provided that it is connected to the theme of the attack,[38] the credibility of the attack or the credibility of the person who made the attack.[39] 

3.1.2 Were the defamatory statements made on an occasion of qualified privilege?

[36]Howe v Lees (1910) 11 CLR 361, 398.

[37]Adam v Ward [1917] AC 309, 319 (Lord Finlay); 321 (Lord Loreburn); 348 (Lord Shaw).

[38]Watts v Time Newspapers Ltd [1997] QB 650.

[39]Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31, 49 [35] (Gummow, Hayne and Bell JJ).

1. The short answer to this question is ‘Yes’.  Mr Barrow complained to the APC, a self-regulatory body for sectors of the print media, about a post made by Mr Bolt on his blog.  In my view, both defendants had a duty to respond and also an interest to protect.  Mr Bolt’s response was forwarded to his managing editor, who in turn forwarded it to the APC.  Both recipients of Mr Bolt’s response had an interest in receiving it: Mr Armsden, as Managing Editor of HWT, and Mr Herman, as Executive Secretary of the APC.  Mr Herman’s interest was reciprocal to the interests of both defendants.  There is no flavour of curiosity, news or gossip in the receipt of the Bolt Response from either Mr Armsden or Mr Herman.  The Bolt Response, in my view, was closely connected to the Barrow complaint.  It amounts to a responsive attack by Mr Bolt upon both the credibility of Mr Barrow and the content of Mr Barrow’s initial complaint.

1. The defendant relies on numerous reported examples of cases where in analogous circumstances defamatory responses to complaints or attacks have been held to be protected by the defence of qualified privilege.[40]  Whilst every case turns on its own facts, each of these cases is an example of the application of the principles that I have enunciated, in similar circumstances to those that obtain in the present case. 

   [40]Fairman v Ives (1822) 5 B & Ald 642; 106 ER 1325 (KB): a complaint about an army officer to the Secretary of War; Blake v Pilfold (1832) 1 M & R 198; 174 ER 67 (As): a complaint to the Postmaster General about the conduct of a postal worker; Cassidy v Connochie (1907) SC 1112 (Court of Session, Inner House): a complaint to the Chief Constable about a retired police sergeant; Penton v Calwell (1945) 70 CLR 219, 242-3, 250: a reply to an attack on the defendant’s character; Ibrajed v 100278 Canada Ltd (2000) 100 ACWS (3d) 1097: a complaint to the Better Business Bureau concerning the quality of goods and services supplied by the defendants.

1. As I understood his arguments, Mr Barrow did not seem to dispute the defendants’ submission that the present case is a ‘textbook example’ of the application of the duty and interest form of qualified privilege.  Instead, Mr Barrow’s primary contention is that the defence of qualified privilege was defeated because he had proved that Mr Bolt had acted with malice when publishing the Bolt Response.  Mr Barrow described the issue of malice as the key battleground in the case.

3.1.3 Is the Defence defeated by Malice?

3.1.3.1 Legal Principles

1. An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement.[41] A purpose or motive that is foreign to the occasion and that actuates the making of the statement is express malice, which defeats qualified privilege.[42] It follows that ‘express malice (malice) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff.’[43] The terms ‘express’ or ‘actual’ malice are used in contrast to the ‘presumed or implied malice that at common law arises on proof of a false and defamatory statement.’[44]

   [41]Roberts v Bass (2002) 212 CLR 1, 11 [10] (Gleeson CJ); 30 [75] (Gaudron, McHugh and Gummow JJ).

   [42]Ibid 11 [10] (Gleeson CJ); 30 [75] (Gaudron, McHugh and Gummow JJ); 65 [179] (Kirby J).

   [43]Ibid 30 [75] (Gaudron, McHugh and Gummow JJ).

   [44]Ibid 30 [75] (Gaudron, McHugh and Gummow JJ); 11 [10] (Gleeson CJ). See, also, Horrocks v Lowe [1975] AC 135, 149 (Lord Diplock).

1. The plaintiff bears the onus of establishing that the occasion of qualified privilege has been used for an improper purpose.[45] Care must be taken not to equate proof of the defendant’s prejudices or possible alternative motives with proof of malice. In Roberts v Bass, the High Court held by majority:

Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication.[46]

[45]Ibid 38 [96] (Gaudron, McHugh and Gummow JJ): ‘honesty of purpose is presumed in favour of the defendant’. See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 574; Horrocks v Lowe [1975] AC 135, 149 (Lord Diplock): ‘The protection [of qualified privilege] might, however, be illusory if the onus lay on [the defendant] to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest.’

[46]Ibid 31 [76] (Gaudron, McHugh and Gummow JJ) [Emphasis in original]. See also 66-67 [185] (Kirby J, agreeing). Kirby J was in ‘general agreement’ with the plurality’s reasons, although his Honour did not consider it necessary to decide the issue outside a case of ‘malice at common law in circumstances attracting the protection of the constitutional freedom of political communication.’

1. Nevertheless, and leaving to one side the special case of knowledge of falsity:

mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication.[47]

[47]Ibid. See also Mowlds v Fergusson (1939) 40 SR (NSW) 311, 327-329 (Jordan CJ with Davidson and Halse Rogers JJ agreeing).

1. Knowledge of falsity is referred to as a special case because upon proof it will ‘ordinarily [be] conclusive evidence that the publication was actuated by an improper purpose.’[48] This is because it is difficult to understand how a defendant who knowingly publishes false and defamatory material could not have an improper purpose for doing so, and not because knowledge of falsity is ‘a separate head of, or equivalent to, malice.’[49]

   [48]Roberts v Bass (2002) 212 CLR 1, 31 [76] (Gaudron, McHugh and Gummow JJ); Mowlds v Fergusson (1939) 40 SR (NSW) 311, 327 (Jordan CJ, Davidson and Halse Rogers JJ agreeing); Horrocks v Lowe [1975] AC 135, 149-150 (Lord Diplock); knowledge of falsity will not, however, defeat qualified privilege where the defendant was under a legal duty to make the communication.

   [49]Ibid 32 [78]. Cf Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 51.

1. Again, care must be taken not to equate knowledge of falsity with lack of belief in truth. Without more, only the former is ‘almost conclusive evidence of malice.’[50] Generally, the lack of a positive belief in the truth of the defamatory statement, or reckless indifference as to the truth or falsity of the statement, is no more than some evidence that may give rise with other evidence to an inference that the publication was actuated by malice; alone it is insufficient.[51]  Only in the extreme case – that is, where the statement is reckless to the point of wilful blindness – will a lack of belief in the truth of the communication be ‘almost conclusive evidence’ of malice.[52]

   [50]Roberts v Bass (2002) 212 CLR 1, 35 [87] (Gaudron, McHugh and Gummow JJ).

   [51]Ibid; Horrocks v Lowe [1975] AC 135, 150 (Lord Diplock).

   [52]Roberts v Bass (2002) 212 CLR 1, 34 [84] (Gaudron, McHugh and Gummow JJ); see, also, R v Crabbe (1985) 156 CLR 464, 470: ‘When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.’

1. Malice is determined subjectively: the question is whether the defendant has acted for a purpose or motive foreign to the duty or interest protected by the privileged occasion, and not whether a reasonable person would or should have acted differently in pursuit of the same duty or interest.[53]  A number of related principles were summarised by the plurality in Roberts v Bass:

Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice. The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully. Even irrationality, stupidity or refusal to face facts concerning the plaintiff is not conclusive proof of malice although in ‘‘an extreme’’ case it may be evidence of it. And mere failure to make inquiries or apologise or correct the untruth when discovered is not evidence of malice.[54]

[53]See, Enders v Erbas and Associates Pty Ltd [2014] NSWCA 70, [61]-[77]. Clark v Molyneux (110) 1877 3 QBD 237, 249-250: ‘The question is not whether the defendant has done that which other men as men of the world would not have done, or whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty.’

[54]Roberts v Bass (2002) 212 CLR 1, 41 [104] (Gaudron, McHugh and Gummow JJ) [Citations omitted]. See also Clark v Molyneux (1877) 3 QBD 237, 244 (Bramwell LJ); 249 (Cotton LJ); Moore v Canadian Pacific Steamship Co [1945] 1 All ER 128, 133 (Lynskey J); Horrocks v Lowe [1975] AC 135, 150 (Lord Diplock); Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 463 (Lord Porter).

1. Finally, to establish malice the plaintiff must prove that the improper purpose actuating the publication was the ‘dominant reason’ for the publication.[55]  Evidence must ‘definitely, and as a matter of common sense’ point to the existence of an improper purpose ‘which was really operative in the making of the statement’;[56] ‘substantial evidence is required, not surmise or mere scintilla.’[57]  Any other approach would destroy the doctrine of qualified privilege.[58]

3.1.3.2 The plaintiff’s case on malice

[55]Ibid.

[56]Godfrey v Henderson (1944) 44 SR (NSW) 447, 454 (Jordan CJ) (cited with approval in Roberts v Bass (2002) 212 CLR 1, 41 [104] (Gaudron, McHugh and Gummow JJ)).

[57]Oldfield v Keogh (1941) 41 SR (NSW) 206, 214 (cited with approval in Godfrey v Henderson (1944) 44 SR (NSW) 447, 454 (Jordan CJ)).

[58]Above n 56.

1. Mr Barrow’s case on malice is that the Bolt Response was actuated alternatively by a desire to ‘injure’ or ‘vindictively injure’ him:

·    ‘to avoid significant professional conduct scrutiny by the Australian Press Council’;[59]

[59] ` Fourth Further Amended Reply at [2].

·    ‘in retaliation for 5 complaints sent by Mr Barrow to the Press Council on 13 December 2011’ which resulted in the removal of the 5 articles the subject of those complaints from the Andrew Bolt Blog;[60]

[60]Fourth Further Amended Reply at [2B].

·    in retaliation for those 5 complaints, because two unrelated articles had previously been removed from Mr Bolt’s Blog, on or about 27 and 29 August 2011;[61]

[61]Fourth Further Amended Reply at [2BA].

·    ‘as a part of a pattern, or campaign, of hostility by Mr Bolt to matters involving the Press Council;’[62]

[62]Fourth Further Amended Reply at [2BB].

·    ‘in virtue of Mr Barrow being a Press Council complainant, following a series of recent complaints to the Press Council from other complainants in the time leading up to the Bolt Response which agitated Mr Bolt’;[63]

[63]Fourth Further Amended Reply at [2BC].

·    ‘following a settlement  reached with Mr Barrow by HWT on or about 18 March 2011 in respect of the article titled ‘Pushing his own Barrow of deception’;[64]

[64]Fourth Further Amended Reply at [2C].

·    ‘in retaliation for research assistance Mr Bolt had provided to Professor Robert Manne (Professor Manne) in support of personal evidence and an article that were critical of Mr Bolt.’[65]

·    ‘as Mr Bolt knew Mr Barrow was a member of the Australian Labor Party (ALP) political party and Mr Bolt was at all relevant times and is notorious for his hostility to the ALP and its members’; [66]  and/or

· ‘following a Concerns Notice Mr Barrow raised with the Defendants on or about 13 April 2011 for the purposes of section 14 of the Defamation Act 2005 (Vic) informing the Defendants of allegations of defamatory imputations carried about Mr Barrow in respect of comments on the article titled “Garnaut colleague: what’s the gain for this pain?” Further Mr Bolt expressed hostility to the Concerns Notice in a public forum.’[67]

[65]Fourth Further Amended Reply at [2D].

[66]Fourth Further Amended Reply at [2E].

[67]Fourth Further Amended Reply at [2F].

1. Mr Barrow referred to this collection of nefarious motivations and prejudices (which are, of course, only allegations) as ‘strands’ that go to the existence of malice. I adopt that epithet in the reasons which follow.

1. Mr Barrow adds to the strands a claim that Mr Bolt knew of the falsity of the following four statements (collectively, ‘the Bolt Statements’), each of which appeared in the Bolt Response:

1)   ‘Mr Barrow is in my opinion a vexatious litigant in many fora over a long time’ (‘the First Bolt Statement’)

2)   ‘Mr Barrow is in my opinion a man who seeks not to promote debate but to close it down’ (‘the Second Bolt Statement’)

3)   ‘Had Mr Barrow written a comment on my blog, it would almost certainly have been published’ (‘the Third Bolt Statement’)

4)   ‘He [Mr Barrow] had better opportunities to correct the record and chose not to take them.’ (‘the Fourth Bolt Statement’).

1. In his submissions, which were in the form of track-changes to the defendants’ submissions, Mr Barrow repeated these pleadings.  It is essentially his case that the strands, alone or in combination, compel the finding that the dominant purpose of the Bolt Response was to injure Mr Barrow, vindictively or otherwise, for one of the reasons particularised in those strands.

1. Mr Barrow also submitted that the rule in Jones v Dunkel[68] meant the Court ought more readily infer that the motives or prejudices set out in the strands actuated the publication and/or that the first defendant knew the four Bolt Statements were false.

3.1.3.3 The defendants’ submissions

[68](1959) 101 CLR 298.

1. I summarise the defendants’ submissions as follows:

·    First, because the strands amount to allegations of dishonesty or fraud those allegations must be proved to a standard commensurate with their seriousness; in other words, to the Briginshaw[69] standard.[70]

[69](1938) 60 CLR 336.

[70]Defendants’ Outline of Closing Submissions, dated 27 October 2014, [3.14].

·    Second, the plaintiff has failed to establish (to the Briginshaw standard but also to the less onerous, civil standard) that Mr Bolt had reason to have one or more of the postulated motives. It appears to be conceded that those motives, if established, would be ‘improper’, in the sense that they are motives or purposes foreign to the occasion of privilege.

·    Third, even if the Court were satisfied that Mr Bolt had one or more of the postulated motives, there is no foundation for the inference that the publication of the defamatory imputations was actuated by such a motive, or, if it was, that such a motive was the dominant reason for the publication. In addition, it is said that:

Where a defendant is actuated by a dominant motive of malice, it ought almost always be a simple matter for the plaintiff, from the outset, to identify the single improper state of mind relied upon, and to particularise the basis upon which that state of mind is to be established or to be inferred. Instead, Mr Barrow’s pleading may cause the Court to ask, rhetorically, how many dominant motives could/did Mr Bolt have?[71]

[71]Defendant’s Outline of Closing Submissions, dated 27 October 2014, [3.16]

·    Fourth, the principles pertaining to knowledge of falsity have no application in this case because the plaintiff has not, or cannot, establish that the first defendant knew of the falsity of the Bolt Statements. In respect of the First and Second Bolt Statements, the fact in issue is the first defendant’s knowledge; in respect of the Third and Fourth Bolt Statements, the issues are knowledge and falsity.

·    Fifth, the defendants’ submit Jones v Dunkel inferences are not available in this case, because there is no ground in the evidence for the relevant inferences.

3.1.3.4 Discussion and Findings

1. As I have said, the plaintiff described malice as the key battleground in this case. I consider that to be a fair description. Curiously, however, the plaintiff has not alleged malice against HWT, which means qualified privilege goes unchallenged in respect of the Armsden publication.[72]

   [72]Although, the plaintiff also relied upon malice as a factor relevant to aggravated damages.

1. I have extracted the passage above which is the addition to the third submission for a reason. In my view, what the defendants’ call the ‘single improper state of mind’ is, in this case, pleaded as Mr Bolt’s desire to injure Mr Barrow. Mr Barrow seeks to establish the existence of that state of mind by proving that the first defendant had one or more motives to injure him, which are particularised by the strands. That, at least, is my understanding of the way the case is put by the plaintiff and it is in the hope of clarifying that understanding that I have dealt with this issue first. Though it may not be determinative it also follows that I reject the aspect of the defendants’ third submission which contends that the plaintiff argued for several dominant motives. The plaintiff’s case is that there was one dominant motive proved circumstantially by the stands to which I have referred.

1. For the purposes of what follows I will assume, without deciding, that Mr Barrow has proved the existence of the various motives, prejudices and other matters particularised in those strands. I accept that many of those matters might give rise to a desire to injure the plaintiff or his reputation, which would be foreign to the interest protected by the occasion of privilege.

1. On this basis the defence of qualified privilege stands or falls with the answers to the following questions: did the desire to injure Mr Barrow induce Mr Bolt to publish the defamatory imputations? If so, did serving that purpose assume dominance over Mr Bolt’s legitimate and reciprocated interest in responding to Mr Barrow’s complaint to the APC, and which I have found to be protected by qualified privilege?

1. On their own, and taken at their highest, in my view the strands provide no more than plausible motivations for the Bolt response.  On the face of the Bolt Response it is equally plausible, in my view, that that publication was motivated by a legitimate desire to respond to the plaintiff’s complaint to the APC, however imprudent or carelessly expressed that response may have been.  Evidence that is equally consistent with malice and the absence of malice cannot as a matter of law (or logic) provide evidence upon which a finding of malice could be made.[73]

   [73]Telnikoff v Matusevitch [1991] 1 QB 102 (CA), 120.

1. As I explained at [26] there must therefore be some ground in the evidence for the conclusion that the ill-will, prejudice or other motive(s) existed on the privileged occasion and actuated the publication.  In this case, that evidentiary basis could only obtain, by inference, from a finding of knowledge of falsity, and in accordance with the principles set out at paragraphs [27]-[28], above.

1. For the reasons that follow I am not satisfied the plaintiff has established that the first defendant knew of the falsity of the Bolt Statements. In respect of the First Bolt Statement, and although it was not pleaded, I have also considered and dismissed the possibility that the first defendant lacked an honest belief in the truth of that statement.

The First Bolt Statement

1. The plaintiff argues that research Mr Bolt conducted into his previous litigation experience[74] could not have revealed that he was a vexatious litigant in many fora over a long time.[75]  Properly characterised, I consider this to be an allegation of lack of honest belief, or recklessness, rather than an allegation of knowledge of falsity. The plaintiff confirmed this impression, in discussion:

HIS HONOUR:        So the first thread is that you say Mr Bolt had knowledge that you were not a vexatious litigant.

MR BARROW:        More the other way around, he couldn't find evidence that I was.  He made a search and couldn't find anything and then proceeded on an improper basis.[76] 

[74]Exhibits J 193, J 194.

[75]Plaintiff’s Outline of Written Submissions, dated 27 October 2014, [3.22].

[76]Transcript 40.

1. The evidence of that research was provided in two exhibits, J 193 and J 194, which were extracts from correspondence between Mr Bolt and Mr Armsden. Under the heading, ‘Background on David Barrow’, Mr Bolt set out a number of hyperlinks to online news sources that documented Mr Barrow’s involvement with the Family First and Australian Sex parties, and BrisConnections.  Nothing in those emails tends to prove that Mr Bolt did not honestly believe Mr Barrow was a vexatious litigant in the sense conveyed by the defamatory imputations.[77] Nothing in those emails tends to prove that the matters set out in those emails were exhaustive of the things Mr Bolt knew of Mr Barrow.

The Second Bolt Statement

[77]Or that he knew that he was not so.

1. The evidence demonstrates that the plaintiff frequently contacted Mr Bolt, generally by email. The plaintiff submits that that evidence compels the conclusion that Mr Bolt knew it was false to say that he was ‘a man who seeks not to promote debate but to close it down’.

1. This statement was expressed as an opinion, and is obviously a matter about which reasonable minds may differ. Even if that were not so, the issue is whether Mr Bolt actually knew the effect of the opinion to be false, not whether he ought reasonably have known.

1. It is not open to me to conclude that Mr Bolt expressed this opinion knowing it to be false. In my view there is simply no evidence upon which I could base that finding.[78]  There is an abundance of evidence that could reasonably found such an opinion.[79]  It is not to the point that there is evidence that could reasonably found a contrary opinion.[80]

The Third Bolt Statement

[78]Or, alternatively, a finding of lack of honest belief in the truth of the opinion.

[79]I am referring to the matters set out in the general background.

[80]This evidence was said to consist of an email Mr Bolt sent Mr Barrow on 26 March 2011, thanking him for an email; various emails sent by Mr Barrow to Mr Bolt notifying him that he had submitted comments to articles on the Bolt Blog; and various complaints made by Mr Barrow to Mr Bolt and HWT challenging articles attributed to Mr Bolt.

1. The plaintiff submits that the failure to publish seven comments submitted to the ‘Bolt Blog’ between 26 March 2011 and 6 April 2011 is evidence of the falsity of the Third Bolt Statement.[81]  This evidence needs to be considered in its context: twice as many comments, submitted by Mr Barrow, were published on the Bolt Blog during that same period and a further ten comments were published from 7 April 2011 to 23 May 2011; [82] in total, the evidence demonstrates that seven of 31 comments were not published, which is a failure rate of less than 25%.

   [81]Exhibit J1.

   [82]Exhibits J1, J6, J7, J11, J63, J210, 2, 4, 7, 8, 12, 13, 15, 16, 18, 21.

1. Leaving to one side the issue of the falsity of the Third Bolt Statement, in my view it would not be open to me to find that Mr Bolt knew that that statement was false. Although Mr Barrow brought the unpublished comments to Mr Bolt’s attention via email, there is no evidence to suggest that Mr Bolt tallied or kept tabs on the rate with which Mr Barrow’s comments, once submitted, failed to appear on his blog, or that he compared that rate of failure with the plaintiff’s rate of success,[83] or that he bore that statistic in mind when he made the statement.  Perhaps Mr Bolt estimated Mr Barrow’s published submissions to be greater in number than they actually were; I cannot say.  If he did, this would tend to prove that he was wrong, not that he knew that he was wrong.[84]

   [83]Success in the sense that the comments were published.

   [84]In fact, it would tend to prove the opposite.

1. Even if at the time of publication Mr Bolt was perfectly apprised of the plaintiff’s success/failure rate, this Court cannot assess Mr Bolt’s perception of the qualitative short-fall (if there is one) between the expression ‘almost certainly’ and the plaintiff’s statistical rate of publication on the Bolt Blog which by any measure was high.[85]

The Fourth Bolt Statement

[85]At over 75%.

1. Mr Barrow argues Mr Bolt knew it was false to say that ‘[h]e [Mr Barrow] had better opportunities to correct the record and chose not to take them.’  There is no evidentiary foundation to this pleading. Mr Barrow had other opportunities to correct the record, [86]  which would go some way toward disproving the falsity of the statement.  If these other opportunities were not ‘better’ opportunities, and/or if Mr Barrow did not ‘choose’ not to take them up, there is no evidentiary basis for a finding that Mr Bolt knew of those matters.

3.1.4 Conclusions on Malice and Qualified Privilege

[86]Transcript 228: for instance, by submitting a comment to the ‘tips of the day’ section of the Bolt Blog.

1. This discussion can be reduced to the following conclusions:

(a)   The strands, at their highest, prove that Mr Bolt had reason to wish the plaintiff ill.

(b)   It is not evident from the terms of the publication that those reasons were present at the time of publication, or that they actuated the publication.

(c)    There is no independent ground in the evidence for the conclusion that those reasons actuated the publication.  The plaintiff’s ‘knowledge of falsity’ arguments fail because I am either positively satisfied that Mr Bolt did not know each of the Bolt statements to be false or because there is no evidentiary basis for the finding that he did.

1. It follows that the plaintiff must fail on malice.  For this reason, I have not considered whether the allegations set out in the strands were or could be established on the evidence, or whether, if established, it could be inferred that Mr Bolt wished to injure the plaintiff or his reputation.  I have also not considered the defendants’ first submission, on the applicability of the Briginshaw standard, because the plaintiff has failed to discharge the less onerous, civil standard.

1. It also follows from my conclusions that Jones v Dunkel can have no material application in this case because there is no ground in the evidence for the inference that any motive Mr Bolt may have had to injure Mr Barrow ‘was really operative in the making of the statement’, or that it was the ‘dominant reason’ for that publication.[87]  Until facts are proved from which the asserted inference could be drawn, a defendant is not called upon to say anything.[88]  Even if a Jones v Dunkel inference were available in this case, it could not operate as an admission, or to fill gaps in the plaintiff’s case[89] – at best, it would permit the Court to infer that Mr Bolt would not have given evidence that he believed the Bolt statements to be true, not that he would have given evidence that they were false.

   [87]Jones v Dunkel (1958) 101 CLR 298, 305 (Kitto J): ‘One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.’

   [88]Ibid 319 (Windeyer J).

   [89]Ibid 313 (Mezies J).

1. It follows from the above that the defence of qualified privilege is made out. Although this conclusion makes it strictly unnecessary to consider the statutory defences, I consider it sensible to set out briefly my conclusions.

3.2 Statutory Triviality

1. Section 33 of the Act provides:

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

1. This is a novel defence in Victoria. It reproduces clause 33 of the Model Defamation Provisions, approved by the by the Standing Committee of Attorneys-General on 21 March 2005. Although each State and Territory has now substantially adopted the Model Provisions, many Australian jurisdictions already provided for a statutory defence of triviality.[90]  

3.2.1 Legal Principles

[90]See, for example, Defamation Act 1974 (NSW), s 13; Defamation Act 2001 (ACT), s 15; Defamation Act 1889 (Qld), s 20.

1. The most significant judicial consideration of statutory triviality has occurred in New South Wales. Until the commencement of the Defamation Act 2005 (NSW),[91] s 13 of the Defamation Act 1974 (NSW)[92] provided:

It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm.

Section 33 of the NSW Act has replaced this section. It adopts cl 33 of the Model Provisions and is identical to s 33 of the Act.

[91]On 1 January 2006; hereafter, ‘the NSW Act’.

[92]Hereafter, ‘the 1974 Act’.

1. The obvious similarities between s 13 of the 1974 Act and s 33 of the NSW Act mean pre-existing authorities have continued to be applied in New South Wales, generally without difficulty. In that state the Court of Appeal has recently observed that the Second Reading speech to the NSW Act ‘seems to assume that it was not intended that there be any difference between s 13 of the 1974 Act and s 33 of the [NSW] Act.’[93]

   [93]Enders v Erbas & Associates Pty Limited [2014] NSWCA 70, [98].

1. I consider the reference to existing inter-State provisions in the explanatory note to s 33 of the Act to be justificatory and to evince an intention to achieve uniformity with those provisions, which would include continuity with existing glosses on those provisions.[94] In my view the pre-existing authorities ought therefore be the starting point for an analysis of s 33 of the Act. [95]

   [94]Explanatory Memorandum, cl 33.

   [95]Other Judges of this Court have taken a similar approach: Cunliffe v Woods [2012] VSC 254 (‘Cunliffe’); Szanto v Melville [2011] VSC 574 [163] (‘Szanto’): ‘[t]he Defamation Act is now a part of uniform legislation throughout the states and territories. It is highly desirable that, so far as possible, there be material consistency in the construction of its provisions.’

1. I distil the following principles from those authorities:

1)   The defendant bears the onus of proving the defence. It is a ‘high’ onus.[96]

[96]King & Mergen Holdings v McKenzie (1991) 24 NSWLR 305, 310 (Mahoney JA); Szanto v Melville [2011] VSC 574, [157].

2)   The defence is concerned with ‘the circumstances of the publication.’[97]  Those circumstances extend beyond the words of the defamation itself and include the occasion and surrounding circumstances of the defamatory statements.[98]

3)   The tribunal of fact must look to these circumstances at the time of publication and consider prospectively the likelihood of harm.[99]  Subsequent acts or statements can have only limited bearing on whether the defamed person was likely to suffer harm.[100] It is not to the point that the person actually suffered harm.

4)   ‘Unlikely’ to suffer any harm does not mean that it is ‘more probable than not’ that the plaintiff will not suffer any harm.  To prove that harm is an ‘unlikely’ consequence, the defendant must demonstrate that there is an ‘absence of a real chance’ or ‘the absence of a real possibility of [any] harm.’[101]

[97]Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, 799 (‘Morosi’). King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305, 310: ‘…section 13 might have provided that there was a defence if ‘in all the circumstances’ the person defamed was not likely to suffer harm from the publication [but] the section did not so provide.’

[98]Including, for example, the identity of the defamed person, the identity of the recipients and any special knowledge they may have had of the defamed person, and the defamatory nature of the imputation measured against the size of the audience – thus, a highly defamatory statement uttered to a solitary taciturn witness may well be statutorily trivial, whereas a much milder defamatory statement uttered to a Grand Final crowd, or online, may well not be so. Ibid; see also, Perkins v New South Wales Aboriginal Land Council (Badgery-Parker J, 15 August 1997, unreported), 27; Jones v Sutton (2004) 61 NSWLR 614, 618 [14].

[99]Morosi [1977] 2 NSWLR 749, 799.

[100]Ibid.

[101]        Jones v Sutton (2004) 61 NSWLR 614, 624 [45].

1. A fifth point would concern the scope and degree of the ‘harm.’  Although by 2004 the issue of scope had been settled in New South Wales in Jones v Sutton,[102] the continued application of that case has been complicated by one of the few textual differences between the uniform provisions and provisions such as s 13 of the 1974 Act.

   [102]Jones v Sutton (2004) 61 NSWLR 614 (‘Jones’).

1. Under s 13 of the 1974 Act ‘harm’ was limited to ‘harm to reputation.’ In Jones, Beazley JA (with Santow JA and Stein AJA agreeing) held that:

[w]hether or not person’s feelings were hurt… is not relevant to s 13. That is a matter for damages.[103]

The inclusion of the word ‘any’ in ‘suffer any harm’ has meant that that Court[104] and, on one occasion, this Court[105] have asked (without deciding) whether s 33 of the NSW Act and the Act can be distinguished from s 13 of the 1974 Act on the issue of hurt feelings.

[103]Ibid 623 [38].

[104]Enders v Erbas & Associates Pty Limited [2014] NSWCA 70, [96]-[107].

[105]Szanto v Melville [2011] VSC 574, [158]-[164].

1. The defendants submitted that ‘the better view is that ‘harm’ for the purposes of section 33 means harm to reputation, not hurt feelings.’[106] They adverted in this regard to the reasons of Kaye J in Szanto (at [155]-[166]),[107] which is the only case in this jurisdiction to consider the issue.[108]  The plaintiff observed that this was only ‘one’ view, but did not seek to contradict it.

   [106]Defendant’s Outline of Written Submissions, [4.2].

   [107][2011] VSC 574, [155]-[166].

   [108]In Cunliffe [2012] VSC 254, Beach J adopted Kaye J’s analysis of s 33. Although there, as in Szanto, the defence did not stand or fall on the issue of scope, Beach J’s reasons (particularly at [64]) suggest that he agreed with Kaye J’s views on the issue.

1. I take the view that the correct interpretation of s 33 is that harm means harm to reputation. The reasons of Kaye J in Szanto,[109] at [159] and [162], although ultimately not expressed as concluded views, are compelling and I gratefully adopt them.[110] Those reasons are, essentially:

   [109]Szanto [2011] VSC 574, [159]; [162].

   [110]Kaye J also argued (at [163]) that the position in New South Wales had been clearly stated in Jones and that it was highly desirable that there be ‘material consistency in the construction’ of provisions under the uniform defamation legislation. Since the decision in Szanto, the New South Wales Court of Appeal decision in Enders indicates that the issue is at least live in that jurisdiction. It follows that though unimpeachable at the time of writing, there is now some difficulty with this final argument.

·    That it is damage to reputation that underpins the tort of defamation, and not the insult;

· If harm included injury to feelings, it would make s 33 virtually unworkable; and

· Section 11(3) of the Act permits a Court to consider the ‘extent of harm’ sustained by a plaintiff in each relevant Australian jurisdictional area for the purposes of determining the area with which the ‘harm’ has its closest connection.[111] ‘Harm’ in that section could only mean harm to reputation, ‘since harm to feelings would not differ across various jurisdictions’.[112]

[111]Section 11 governs the choice of law for defamation proceedings.

[112]I accept that tensions remain between ss 33 and 11(3) and other provisions of the Act. No construction of the Act will perfectly harmonise its provisions.

1. I add to these reasons the observation that there is another, sensible, explanation for the presence of the word ‘any’ in s 33. In my view it emphasises that it is not only ‘great or substantial harm that [must] be negatived […] but that there was “likely to be any harm at all”.’[113]  That distinction (which is one of degree) has been reaffirmed in decisions that post-date the adoption of uniform defamation legislation.[114]

   [113]King v Mergen Holdings Jones Pty Ltd v McKenzie (1991) 24 NSWLR 305, 309 (Mahoney JA), as expressed in Jones v Sutton (2004) 61 NSWLR 614, 620 [23].

   [114]Sleeman v Tuloch Pty Ltd Tas Palms [2013] NSWDC 92, [185]; Lassanah v State of New South Wales (No 3) [2010] NSWDC 241, [242]; Papaconstuntinos v Holmes à Court [2009] NSWSC 903, [105].

1. Thus ‘harm’ for the purposes of s 33 means harm to reputation, not hurt feelings. The defence requires the defendant to show not merely that there is unlikely to be great or substantial harm to reputation but that there is unlikely to be any harm to reputation at all. This is why the onus on the defendant is described as a ‘high’ or ‘significant’ onus.[115]

3.2.2 Conclusion

[115]King & Mergen Holdings v McKenzie (1991) 24 NSWLR 305, 310 (Mahoney JA); Jones v Sutton (2004) 61 NSWLR 614, 620; Szanto [2011] VSC 574, [157].

1. Mr Barrow submitted that once a matter has been demonstrated to be defamatory (as in this case), then publication of that matter must result in a ‘tendency’ to harm the plaintiff.  The defendant does not really dispute this analysis but relies on the confluence of a number of the circumstances of the publication to demonstrate that the plaintiff was unlikely to sustain harm.

1. The defendant argued that the following circumstances satisfy this statutory defence:

a)   the matter complained of was an email that went to only two persons, Mr Armsden and Mr Herman;

b)   the matter complained of was merely an expression of Mr Bolt’s personal opinion;

c)   Mr Barrow had made 9 complaints about Mr Bolt to HWT in the period leading up to the publication of the matter complained of, and 5 other complaints to the APC;

d)     As a result, it can be inferred that Mr Armsden and Mr Herman will have known of Mr Barrow and have had their own opinions about him;

e)   It is highly unlikely that those opinions (whether favourable or unfavourable) would have been affected by the matter complained of;

f)   To the extent that actual harm to reputation is relevant, it is notable that Mr Barrow did not seek to adduce evidence from either Mr Armsden or Mr Herman, or adduce any evidence that publication of the matter complained of had in fact damaged his reputation. Furthermore, Mr Barrow has been prepared at all times since at least 17 October 2013 to settle these proceedings without payment of any sum by way of compensation, and he has been prepared at all times since 17 October 2013 to settle these proceedings without any apology or correction – matters which the defendants address in greater detail later in this submission.

g)   The matter complained of was a response to an attack upon Mr Bolt’s character and conduct, and will have been read an understood by Mr Armsden and Mr Herman in that light;

h)     Mr Herman was the Executive Secretary of the APC and it is to be assumed that he would withhold any judgment about the matters raised in the matter complained of at least until such time as Mr Barrow had an opportunity to respond to them; and

i)    To the extent that it is relevant, it appears that that is what Mr Herman in fact did; by his letter to Mr Barrow of 16 March 2012, he said:

The Press Council rules on what the newspaper published in its column, not on the rudeness or otherwise of the correspondence. You have accused the newspaper (and its columnist) of unethical journalism. In part of his response he has labelled your complaint as vexatious. The Council would be interested only whether the column breached its principles governing fairness, accuracy and balance, not with the name-calling in the exchange of letters [sic].

1. While I have some reservations about submission (f), above, in my view there is force in these arguments.  In particular, I refer to the following circumstances.  The impugned email went only to two persons.  I consider that the tenor of the email makes it clear that the author was expressing his personal opinion, rather than saying that the plaintiff had been declared to be a vexatious litigant.  Although the email did not contain the factual foundation for the opinion, its recipients, Mr Armsden and Mr Herman were aware of at least some of it, and I consider it likely they would have seen the opinion for what (in my view) it was.  It is also clear that the defendants were responding to one of many complaints made by Mr Barrow to the APC.  There is no evidence of any ‘grapevine effect’ or the likelihood of same at the time of publication.  The only ‘leakage’ of the impugned email was caused by the plaintiff himself who published it on his website.

1. I consider that the defendant has made out the s 33 defence. The nature of the defamatory matters published and the just mentioned circumstances surrounding that publication compel me to that conclusion. In the scheme of defamatory utterances, I consider the defamatory imputations to be relatively mild,[116] and their audience to be minute. In my view, the defendant has proved that the circumstances of publication were such that the plaintiff was unlikely to suffer any harm.

   [116]Compare for example the defamatory utterances in Cripps v Valleras [2014] VSC 279.

3.3 Reasonable offer of amends

1. It is a defence to an action for defamation if an offer to make amends is made but not accepted and:

(a)the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory; and

(b)at any time before the trial the publisher was ready and willing, or the acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and

(c)in all the circumstances the offer was reasonable.[117]

[117]S 18(1) Defamation Act 2005.

1. On 11 May 2012, the defendants served an offer to make amends under Division 1 of Part 3 of the Act. This offer was to publish to Mr Barrow, Mr Armsden and Mr Herman a correction and apology by Mr Bolt in the following terms:

On 27 February at 10.40am I sent an email to Alan Armsden regarding a complaint David Barrow had made to the Australian Press Council.  Alan forwarded that email to Jack Herman at 12.10 on the same day as part of HWT’s response to that complaint.

My email stated, in part, that ‘Mr Barrow is in my opinion a vexatious litigant in many fora over a long time.  Mr Barrow is in my opinion a man who seeks not to promote debate but to close it down.  The Press Council should declare his latest attempt vexatious and against the interests of debate.  He had better opportunities to correct the record and chose not to take them’.

I retract that statement and apologise to David Barrow for its publication.

3.3.1 Was the offer made within time?

1. An offer to make amends cannot be made if 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person, or a defence has been served.[118]In this context, a concerns notice is a notice that informs the publisher, in writing, of the defamatory imputations that the aggrieved person considers are or may be carried about that person in the published matter.[119]

   [118]Section 14(1) Defamation Act 2005.

   [119]Section 14(2) Defamation Act 2005.

1. On 3 March 2012, Mr Barrow sent a letter to Mr Bolt.  It reads as follows:

Dear Andrew

I found it hurtful for you to write in your email to Mr Armsden of 27 February 2012:

Mr Barrow is in my opinion a vexatious litigant in many fora over a long time.  Mr Barrow is in my opinion a man who seeks not to promote debate, but to close it down.

This writing wrongly lowers me in the eyes of members of society.  I ask that you make genuine amends, including an apology that you are genuinely sorry for this hurt.

1. Mr Barrow commenced proceedings by writ on 30 April 2012.  The defendant filed a notice of appearance on 5 May 2012 and made the purported offer of amends on 11 May 2012.  The defendants subsequently field a defence on 7 June 2012.

1. The issue will readily be understood. If Mr Barrow’s letter of 3 March 2012 constitutes a notice of concern under s 14(2) of the Act, then the defendants’ offer made on 11 May 2012 is out of time. Section 14(1) of the Act precludes the making of a valid offer of amends if 28 days have elapsed after the service of a concerns notice. Conversely, if the 3 March letter is not a concerns notice within the meaning of the Act then there is no timing issue. The offer of 11 May has been made before the service of the defence.

3.3.2 Conclusion

1. It follows that I consider the Barrow letter of 3 March 2012 alerted the defendants to the ‘imputations of concern’ and is a valid concerns notice under s 14(2) of the Act.[120]  There is no formula for such a notice set down by legislation. It is true that the 3 March letter is not a lawyer’s document pleaded with black letter precision.  However, in my view it conveys the substance of the defamatory imputations alleged by Mr Barrow and which I have set out at [10]-[16].  The letter put the defendants on notice that he (Barrow) had been wrongly characterised as a long-term, wide-ranging vexatious litigant who was only interested in stifling debate.  It put them on notice that the plaintiff felt hurt and requested ‘genuine’ amends including an apology.  Should the defendants have felt it necessary they could have requested further and better particulars of the imputations,[121] which they did not.

   [120]Defamation Act 2005 (Vic), s 14(2)(b).

   [121]Defamation Act 2005, s 14(3).

1. It necessarily follows from this that the offer to make amends was made out of time and is thus invalid. The defendants have therefore failed to establish a defence under s 18 of the Act. It is unnecessary to consider whether the offer complied with the Act.

4 Conclusion

1. For the reasons that I have expressed the claim must be dismissed.  The defamatory imputations were trivial and obviously made under qualified privilege.  If the claim was the first salvo in Mr Barrow’s threatened ‘innovative stormwave of defamation claims’ against Mr Bolt, then it has failed conspicuously.  

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