Burston v Hanson
[2022] FCA 1235
•19 October 2022
FEDERAL COURT OF AUSTRALIA
Burston v Hanson [2022] FCA 1235
File number: NSD 652 of 2020 Judgment of: BROMWICH J Date of judgment: 19 October 2022 Catchwords: DEFAMATION – where there are three distinct publications – where the respondent denies that any of the pleaded imputations were conveyed – whether the defamatory imputations alleged were conveyed – where the applicant is not named in the first matter complained of – whether the applicant is identified as the subject of the first matter complained of – Held: identification of the applicant as the subject of the Facebook Post was not made out – the 4th, 5th, 6th and 7th imputations were conveyed
DEFAMATION – defences advanced under the Defamation Act 2005 (NSW) and at common law of justification (substantial truth, s 25); qualified privilege under statute (s 30); qualified privilege at common law under two bases, as a reply to attack and due to the respondent’s relationship to the applicant’s wife; and unlikelihood of harm (s 33) – Held: the 5th imputation that the applicant “harassed a female staffer in his parliamentary office” and the 7th imputation that the applicant “sexually harassed numerous female staff” proven to be substantially true – no basis found for substantial truth for the 4th imputation that the applicant “sexually abused a female staffer in his parliamentary office” and 6th imputation that the applicant “physically assaulted James Ashby in the Great Hall of Parliament House without provocation” – no basis for the defences of qualified privilege at statute and common law and unlikelihood of harm
DAMAGES – where the applicant sought an award of general damages, including aggravated damages – damages awarded in the sum of $250,000 plus interest
Legislation: Evidence Act 1995 (Cth) s 140(2)
Members of Parliament (Staff) Act 1984 (Cth) ss 23, 23(1)(b)
Defamation Act 2005 (NSW) ss 25, 30, 30(1), 30(1)(a), 33
Cases cited: Andreyevich v Kosovich (1947) 47 SR (NSW) 357
Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354
Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC; 271 FCR 632
Barrow v Bolt [2015] VSCA 107
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
Bazzi v Dutton [2022] FCAFC 84; 402 ALR 219
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Chase v Newsgroup Newspapers Ltd [2002] EWHC Civ 1772
Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; (2002) Aust Torts Reports 81-675
Cush v Dillon [2011] HCA 30; 243 CLR 298
David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234
Dent v Burke [2020] ACTCA 22; 182 ACTR 13
Doney v The Queen [1990] HCA 51; 171 CLR 207
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547
Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485
Fox v Percy [2003] HCA 22; 214 CLR 118
Gould v Jordan (No 2) [2021] FCA 1289
Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822
Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; 54 NSWLR 165
Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31
John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; 201 ALR 77
Lewis v Daily Telegraph [1964] AC 234
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150
Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293
Mirror Newspapers v World Hosts Pty Ltd [1979] HCA 3; 141 CLR 632
Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004
Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749
Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68
Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739
Roberts v Bass [2002] HCA 57; 212 CLR 1
Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182; 91 SASR 466
Sarina v O'Shannassy [2021] FCA 1649
Smith v New South Wales Bar Association (No 2) [1992] HCA 36; 176 CLR 256
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Stocker v Stocker [2019] UKSC 17; [2020] AC 593
Sutherland v Stopes [1925] AC 47
Ten Group Pty Ltd v Cornes [2012] SASCFC 99; 114 SASR 46
Toogood v Spyring (1834) 149 ER 1044
Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845
Trkulja v Google LLC [2018] HCA 25; 263 CLR 149
Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217
Division: General Division Registry: New South Wales National Practice Area: Other Federal jurisdiction Number of paragraphs: 264 Date of hearing: 6-15 June 2022 Counsel for the Applicant: B McClintock SC and N Olson Solicitor for the Applicant: Mark O’Brien Legal Counsel for the Respondent: S Chrysanthou SC and T Smartt Solicitor for the Respondent: Danny Eid Lawyers ORDERS
NSD 652 of 2020 BETWEEN: BRIAN BURSTON
Applicant
AND: PAULINE LEE HANSON
Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
19 OCTOBER 2022
THE COURT ORDERS THAT:
1.Judgment be entered for the applicant in respect of the 4th imputation and 6th imputation, being imputations conveyed by the respondent in the Today Show interview of her, broadcast on 29 March 2019.
2.The respondent pay the applicant $250,000 plus interest at half the pre-judgment rate of interest as at the time of judgment, within 28 days.
3.The parties have leave to make any application to vary these orders, or for costs, by way of an email and draft agreed or competing procedural and any other orders sent to the associate to Justice Bromwich within 14 days, or such further time as may be allowed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
INTRODUCTION
This is a defamation proceeding between a former Senator for New South Wales, Mr Brian Burston, and Ms Pauline Hanson, who is an ongoing and longstanding Senator for Queensland and leader of the Pauline Hanson One Nation Party (One Nation or PHON). Mr Burston sues Ms Hanson for defamation in relation to the following three publications:
(1)A post published on Ms Hanson’s verified Facebook page, titled “Pauline Hanson Please Explain” on 12 February 2019, which restates key aspects of a speech made by her to Parliament that night under parliamentary privilege (Facebook Post).
(2)An oral interview with a journalist, Ms Deborah Knight, as part of an episode of the Today Show television program broadcast on 29 March 2019, during which Ms Hanson referred to an altercation between Mr Burston, and her chief of staff, Mr James Ashby on the night of 13 February 2019 (Today Show interview).
(3)A text message sent by Ms Hanson to Mr Burston’s wife, Mrs Rosalyn Burston, on 14 February 2019 (Text to Mrs Burston).
THREE PUBLICATIONS, PLEADED IMPUTATIONS AND ASSERTED DEFENCES
Facebook Post – first matter complained of
The reproduction of the Facebook Post published on Ms Hanson’s account is as follows (verbatim, with added line numbering for ease of later reference):
Pauline Hanson calls out a sexual harassment by a sitting Senator
1.You’ll be disgusted to know that taxpayers are footing the bill for multiple unfair dismissal cases in one Senators office who doesn’t have the guts to dismiss people face-to-face.
2.Instead, he sacks them by text, email or letter with no warning.
3.This same Senator is now under investigation for serious sexual harassment.
4.Just because we wear a little red pin that signifies we’re Senators, should not excuse shocking behaviour by elected members.
5.If you don’t have respect for your staff, how can employees respect you?
6.#Auspol #OneNation #PaulineHanson #NoToSexualHarassment
Mr Burston pleads that the Facebook Post conveyed the following defamatory imputations:
1st imputation: The applicant sexually harassed staff in his office.
2nd imputation: The applicant, an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment.
3rd imputation: The applicant, an Australian Senator, brought the Senate into disrepute by his shocking behaviour towards his staff.
Ms Hanson denies that the Facebook Post identified Mr Burston as the subject of the publication. Ms Hanson further denies that any of the eight people who posted comments on Ms Hanson’s Facebook Page, as particularised in paragraph 3.5 of the Further Amended Statement of Claim (FASOC), identified Mr Burston as the subject of the publication. Ms Hanson relies on the fact that any identification occurred after Mr Burston publicly named himself as the subject of the publication.
Ms Hanson also denies that the imputations as pleaded by Mr Burston were carried. In the alternative, Ms Hanson relies on the following defences:
(a)justification of substantial truth under s 25 of the Defamation Act 2005 (NSW); and
(b)qualified privilege under s 30 of the Defamation Act.
Today Show interview – second matter complained of
The following is a transcript of Ms Hanson’s interview with Deborah Knight that aired on Friday, 29 March 2019 on the Today Show television programme (the relevant transcript segment in bold, preceded and followed by context):
00:01 Knight Pauline Hanson is facing what could be the toughest week of her political career, as the firestorm over the gun-lobbying sting continues to engulf her party. She came out swinging in a fiery press conference late yesterday, where she didn’t take any questions. But not long after, I was invited to sit down with the One Nation leader for her only breakfast TV interview. 00:21 Knight Well Pauline, thank you for the time. 00:23 Hanson My pleasure, thank you. 00:24 to 03:14 [Questions and answers about what Ms Hanson was recorded saying forming part of the documentary involving a sting operation by an Al Jazeera journalist posing as someone from the National Rifle Association and attending meetings with representatives of One Nation and about the Port Arthur massacre, including whether it was a conspiracy] 03:19 Knight Do you want to water down the gun laws? Does ... do you and One Nation want to water down the gun laws in Australia? 03:23 Hanson No. No. Deb ... 03:25 Knight Absolutely not? Categorically? 03:42 Hanson Categorically. Deb, I’ve been in a position now that if l wanted to, I could’ve had the ... had watered-down gun laws. I don’t. I have one of the strongest gun law policies in the country that is acknowledged by a lot of gun organisations. They believe we’ve got it right. 03:43 Knight So why did James ... 03:55 Hanson Even now ... and I ... let me finish up this. That even ... it is stronger than the new gun laws that the Prime Minister Jacinda Ardern wants to bring into New Zealand. Mine’s stronger than that. 04:02 Knight So why did James Ashby and Steve Dickson then talk about wanting to get millions of dollars from the NRA, wanting to win power ... 04:03 Hanson No, I’m sorry ... 04:04 Knight ... and wanting to water down the gun laws in Australia? 04:06 Hanson No Deb, let’s just pull that up, lets pull that up. They never, ever, ever asked the NRA for any money. 04:11 (segment of a recording played to Ms Hanson)
Dickson: If they threw $10 million at us, we could fucking win a heap of seats, plus a shitload of seats in the Senate.04:16 Knight They talked about what they could achieve if they were to get money from the NRA. 04:23 Hanson No, that was ... No, that was Muller putting words into their mouth. 04:26 Knight They said it out of their own mouths, Pauline. 04:27 Hanson That’s why I say it was taken out of context. No, if you look at it, they were led to believe ... you know, if you can get some funding, what would that mean? What would you do? How could you actually change the politics in Australia? That we could have representation on the floor of Parliament to represent the people, of what the major political parties are not doing. You know, the sale of our country, the sale of our assets, the Paris Agreement, free trade agreements, all these things. That's what the change that we want, is getting representation for the people and speaking on behalf of the people of this nation.
Steve said some stupid things, or inappropriate things, and I agree, alright. But I know Steve. Steve is a family man. He’s a good man. And Steve Dickson would never ever want to water down the gun laws in Australia, the same as I won’t. And I'll tell you another thing ...05:18 Knight So you’ll stand by Steve and you’ll stand by James Ashby? 05:20 Hanson And I ... I’ve made that quite clear today. 05:21 Knight How many chances will they get? Because we know that James has been banned from Parliament House because of his fight with Senator Brian Burston. 05:27 Hanson No, sorry. Not the fight with Brian Burston. The aggression came from Brian Burston to James Ashby ... 05:33 Knight OK, but that incident ... 05:34 Hanson James Ashby never laid a hand ... 05:35 Knight ... prompted a banning from Federal Parliament. 05:36 Hanson ... never laid a hand. And James Ashby has been trying to bring it to the President's attention about the sexual abuse and harassment that was going on with a female staffer in his office. And the President just said “You go to someone else”. 05:48 Knight But the outcome is that he’s been banned from Parliament House, correct? 05:51 Hanson For the time being. 05:52 Knight That’s the outcome, though? 05:53 Hanson It’s not ... it’s not definitely. 05:54 Knight You’re fired up about this Pauline, I can see it. 05:56 Hanson Well I am, because I ... 05:57 Knight Because to me ... you seem to be, though, pointing the finger of blame to a lot of people here ... 06:02 Hanson Sorry, I’m not being ... 06:04 Knight ... with regard to the documentary. 06:06 Hanson Alright, not blame. I am actually telling you the truth here Deb. 06:09 to 10:26 [Questions and answers return to the Al Jazeera documentary and the Port Arthur massacre]
Mr Burston pleads that the Today Show interview conveyed the following further imputations:
4th imputation: The applicant sexually abused a female staffer in his parliamentary office.
5th imputation: The applicant harassed a female staffer in his parliamentary office.
6th imputation: The applicant, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation.
Ms Hanson denies any of those defamatory imputations were carried and, in the alternative, places further reliance on the following pleaded defences:
(a)justification of substantial truth under s 25 of the Defamation Act;
(b)statutory qualified privilege under s 30 of the Defamation Act and at common law as a reply to an attack.
Text to Mrs Burston – third matter complained of
A reproduction of the text message sent by Ms Hanson to Mrs Burston on 14 February 2019, and her brief reply, is as follows (again, with line numbering added for ease of reference):
Ms Hanson
1.Ross [sic] I have a lot of time for you especially because you were there for me when I broke up with Chris.
2.You are being taken for a fool by Brian. He is the last man I would ever hit on. I am definitely not attracted to him now or ever.
3.He is vindictive as you well know, Oldfield, Hinch, Dury, James and me. He is being investigated for sexual harassment by more than one of his former female staffers. They can’t all be wrong.
4.Everyone at Parliament knows that he is infatuated with Terrylee and in his own words love her.
5.You won’t get to see the evidence all on text from him to her because it will be a closed decision and she will get her pay out and gagged.
6.He considers you to be nothing but a winging [sic] old bag turning out to be just like your mother who he wants to drop dead.
7.He tells his staff he owns your home. Wake up to him. I have nothing to gain. I just believe you deserve to be treated with a bit more respect.
8.This is the man who said he would never hurt me or try to destroy One Nation.
9.He turned on me because I couldn’t endorse him for another 6 years.
10.I am sorry that was a political decision because he never worked enough to keep it.
11.You may think differently but please be objective.
Mrs Burston
12. Please stop contacting me
By way of context, there was a degree of familiarity between Ms Hanson and Mrs Burston as the two had shared a friendship spanning some twenty years. There was no evidence that this friendship had continued after Mr Burston had left One Nation in mid-2018, long before the Text to Mrs Burston was sent on 14 February 2019. In the absence of such evidence, and in light of the clear evidence of significant animosity between Mr Burston and Ms Hanson prior to June 2018, I am unable to accept that as at the time that the Text to Mrs Burston was sent by Ms Hanson there was any extant friendship between the two women, or that Ms Hanson had any basis for believing that there was any such friendship.
Mr Burston pleads that the Text to Mrs Burston conveyed the following additional imputations:
7th imputation: The applicant sexually harassed numerous female staff.
8th imputation: The applicant behaved disgracefully by cheating on his wife with one of his female staffers.
Ms Hanson argues that none of the pleaded defamatory imputations were carried. In the alternative, Ms Hanson relies on the following pleaded defences:
(a)justification of substantial truth under s 25 of the Defamation Act;
(b)statutory qualified privilege under s 30 of the Defamation Act;
(c)common law qualified privilege on two bases:
(i)the relationship between Ms Hanson and Mrs Burston and the subject matter being the conduct of Mr Burston;
(ii)reply to attack; and
(d)unlikelihood of harm under s 33 of the Defamation Act.
BACKGROUND, CONTEXTUAL FACTS AND FACTUAL DISPUTES TO BE RESOLVED
Background
Mr Burston is now 74 years old. He grew up in Cessnock, and after starting his career as a boilermaker, qualified as a design draftsman in mechanical and structural disciplines. From 1987 onwards, he became self-employed as a commercial draftsperson, specialising in architectural design. It was around this time Mr Burston developed an interest in politics, serving on the Cessnock City Council for 12 years and subsequently as Deputy Mayor for Cessnock in 1997.
Mr Burston became involved with One Nation shortly after this, becoming a member of the party after its inception in around 1998. The party later endorsed him as the lead Senate candidate for New South Wales in the 2016 Federal Election. It was that election where Mr Burston was elected as Senator to represent One Nation for the State of New South Wales.
Ms Hanson is a well-known Australian political figure and the incumbent Senator representing Queensland in the Australian Senate since the 2016 Federal Election, having been re-elected in the election on 21 May 2022. In February 1997, she co-founded the right-wing populist political party, One Nation, later also known as PHON.
After meeting in 1998 at the One Nation senate pre-selection in Sydney, Mr Burston and Ms Hanson’s friendship grew over time. Mrs Burston also grew close to Ms Hanson, presumably through her working relationship with her husband. Mr Burston gave undisputed evidence of this, as he recounted Ms Hanson attending his wedding with Mrs Burston in 2008 and what he described as many subsequent outings, including dinners and lunches. This friendship continued, until the falling out between the two in mid-2018, as detailed below. This culminated in Mr Burston announcing his resignation from One Nation on 14 June 2018, to sit in the Senate as an independent and later joining the United Australian Party (UAP), until he lost his seat in the 2019 Federal Election. As noted above, I am unable to accept that any inference can be drawn that the friendship between Ms Hanson and Mrs Burston continued after Mr Burston left One Nation; and in particular, I am not satisfied that there was any such friendship as at the time that Ms Hanson sent the Text to Mrs Burston on 14 February 2019, nor that Ms Hanson had any basis for believing that there was any such continuing friendship at that time.
The events giving rise to this proceeding developed from antipathy between Mr Burston and Ms Hanson, as well as antipathy between Mr Burston and Mr Ashby.
Mr Burston’s Senate staff
The staff Mr Burston employed after he took his seat in the Senate after the July 2016 federal election are relevant to many of the defamatory imputations, but two are more central than the rest, being Ms Wendy Leach and Ms Terrie-lea Vairy.
On 1 September 2016, Ms Leach commenced working for Mr Burston as office manager in the electoral office at Belmont, a suburb of Newcastle in New South Wales and later from July 2017, at his new electoral office in Toronto, a lakeside suburb in the city of Lake Macquarie in the Greater Newcastle region.
Mr Burston and Ms Leach had previously shared a working relationship built during Ms Leach’s time as an architectural sales consultant at a Gold Coast-based architectural firm referred to as Superdraft. Ms Leach’s primary role at Superdraft had been to acquire new clients for architectural work and to refer the work to various licensees, of which Mr Burston was one. In his evidence in chief, Mr Burston spoke highly of Ms Leach's work at the time, particularly her loyalty and managerial experience. These were the primary drivers for him, on 19 August 2016, offering her the Office Manager position in his electoral office. The offer was made without ever having met her face to face as the two had built up a rapport over telephone conversations in the past. After her offer of employment, Ms Leach relocated from the Gold Coast to Belmont to take up this position. As detailed below, Ms Leach’s employment with Mr Burston ceased when she was dismissed by him on 29 October 2018.
On 1 May 2017, Ms Vairy commenced employment in Mr Burston’s office, undertaking the role of electoral officer. Mr Burston said this role predominately consisted of administrative tasks. For ten years before Ms Vairy commenced this role, she performed part-time work as a cleaner at Mr and Mrs Burston’s home, and upon her taking up this position, she went from earning about $16,000 a year as a cleaner to just over $65,000 a year. As detailed below, Ms Vairy ceased performing work for Mr Burston at the end of 2018, but her employment did not formally end until his term in the Senate expired on 30 June 2019.
During his time as a senator, Mr Burston also employed Diana Allen, who worked as his personal assistant until 20 October 2016, and Peter Breen, who was employed as his chief of staff until June 2018, when he was dismissed upon the ground of breach of trust. Other staff members were Dr Frank Salter, Peter Kelly, and Mary-Ann Martinek.
Mr Burston’s split from One Nation on 14 June 2018
It emerged during the trial that there are starkly differing perspectives as to the events that culminated in Mr Burston’s fallout with Ms Hanson and his subsequent split from One Nation.
Mr Burston’s position is that the falling out between him and Ms Hanson can be sourced from around May 2018. He attributed that to his express intention to support the government’s corporate tax cut legislation in 2018, from which Ms Hanson had withdrawn her prior support not long before the legislation was to be introduced into Parliament. In summary, Mr Burston alleges that it was for this reason that Ms Hanson summarily sacked him as party whip on or about 24 May 2018. Ms Hanson’s contrary case is that the removal of Mr Burston from the position of party whip was solely based on his incompetence in the discharge of his duties as party whip, not due to his position on the government’s tax cut legislation. The difference is as much subjective as objective. Ultimately, it is unnecessary to decide which version is correct, if indeed only one version is correct and the other is not, rather than elements of both being true, as neither ultimately affects the facts requiring determination.
Whatever the reason, One Nation decided not to endorse Mr Burston as the lead Senate candidate for the 2019 federal election. After some months following this decision, he resigned from One Nation on 14 June 2018. He then joined the UAP, where he was endorsed as a Senate candidate for New South Wales for the 2019 election. Mr Burston was not re-elected, so his senate term ended on 30 June 2019.
Ms Leach’s termination of employment on 29 October 2018
One of the events relating to the 2nd and 3rd imputations sued upon, being that it was conveyed that he had “behaved disgracefully by improperly dismissing numerous staff from their employment” and had “brought the Senate into disrepute by his shocking behaviour towards his staff”, was the termination of Ms Leach’s employment on 29 October 2018, and the events that had occurred in the lead up to that termination. Most of the circumstances behind that termination are either uncontentious or not disputed. As such, the majority of the description below is derived from unchallenged portions of Mr Burston’s evidence unless expressly indicated, supplemented by evidence from Ms Leach.
On or around 26 October 2018, Mr Burston purchased tickets to the Hey Mate: Buy a Bale charity concert to provide support for drought-affected farmers. The concert was held in Tamworth, New South Wales. While Mr Burston had three tickets to this concert, he was not able to attend due to an injured knee. After an unsuccessful attempt to donate the tickets to a local commercial radio station in return for an acknowledgement, he gave the tickets to Ms Leach instead, who had requested them for her and her boyfriend.
The conditions behind the gifting of the tickets by Mr Burston to Ms Leach were disputed at trial. Mr Burston maintains that the tickets were gifted to Ms Leach on the basis that she was to conduct official parliamentary business at the concert, which entailed taking photographs of the concert for Mr Burston’s social media pages. Further to this, Mr Burston maintains that he made an explicit instruction to Ms Leach that she was not to drink more than a minimal amount of alcohol at the concert.
Ms Leach’s evidence confirms most of Mr Burston’s account. However, she maintains that she denied ever accepting the conditions for attending the concert set by Mr Burston, particularly any limitation on her alcohol consumption. She states that she said words to the following effect, “If I have anything to do with Parliamentary business, I am not going. I am drinking, I’m going on my boyfriend’s motorbike, I’m going for a good time on Saturday night. I’m not having anything to do with anything political”. In his evidence, Mr Burston conceded that Ms Leach said words to that effect and confirmed Ms Leach’s objections to the conditions imposed and her offer to pay for the tickets if the conditions were to be imposed. His reply to this was, “Don’t be silly. You don’t have to pay for the tickets”. It follows that I find that Ms Leach genuinely and reasonably understood that she was attending this concert on a recreational basis, and not in any official capacity.
On 27 October 2018, Ms Leach invited her boyfriend and Ms Vairy to accompany her and as she felt entitled to do, at the concert she had “heaps to drink”. At 2.55 pm on the same day, Mr Burston texted Ms Leach to remind her not to forget the “pics” (pictures, meaning photographs) and inquiring on whether she and Ms Vairy had arrived in Tamworth safely. About an hour after this, Mr Burston called Ms Leach, who told him that the three were having a drink at the pub. Mr Burston says he then told Ms Leach she should not be drinking. This was followed by a further text requesting photos of the concert. Ms Leach replied immediately to this request by sending two daytime photographs of the concert. Mr Burston then texted Ms Leach, “where’s TLV [Ms Vairy] with you two?” and asked for some more photographs Ms Leach replied to this request with two-night photographs. This was followed by a further enquiry regarding Ms Vairy, with Mr Burston replying, “I assume Terrie-lea isn’t with you at the concert”. Mr Burston then followed this up by calling Ms Leach and Ms Vairy. The two women did not respond. Mr Burston then asked Ms Leach to respond or “you both might be looking for another job on Monday.”
Shortly after this, Ms Leach returned Mr Burston’s missed call. The now intoxicated Ms Leach exploded in a verbal outburst against Mr Burston. The source of the frustration, according to Ms Leach, was her perception of Mr Burston’s continuing infatuation with Ms Vairy. In cross-examination, Ms Leach did not dispute that she said words to the effect of “don’t threaten my fucking job, it’s a fucking ridiculous infatuation you’ve got with Terrie-lea.” Further details of this outburst are set out in the letter of termination from Mr Burston to Ms Leach described in the next paragraph.
The next day, Sunday, 28 October 2018, Mr Burston wrote and signed a letter of termination, which on its face terminated Ms Leach’s employment immediately based upon the way she had spoken to him the night before (Saturday night). The letter was left out for her, and intended by him to be received by her the next morning, Monday, 29 October 2018 when she came in to work, and was in fact received by her at that time. The letter gave her until 10.00 am that day to collect her personal belongings and to return her office keys and other parliamentary office property.
Following her termination, on 16 November 2018, Ms Leach commenced an unfair dismissal claim to the Fair Work Commission against Mr Burston. Subsequently, on 5 February 2019, she lodged a workers' compensation claim with Comcare. On 15 November 2019, she lodged a complaint to the Australian Human Rights Commission, alleging sexual harassment, sex discrimination and victimisation.
Later, Ms Vairy reported what she said Mr Burston had done to her to Ms Hanson’s chief of staff, Mr James Ashby.
Events during Ms Vairy’s employment
The important aspects of Ms Vairy’s employment are in dispute, and the subject of contrary evidence from Mr Burston. It suffices at this point to record that she gave evidence of a prolonged period of sexual harassment by him, which he denies, both in evidence and in suing upon the 1st, 3rd, 4th, 5th, 7th and 8th imputations of sexual harassment, sexual assault and the characterisation of such conduct.
Ms Vairy stopped attending work for Mr Burston at the end of 2018, but remained in formal employment on stress leave until the end of his term as a Senator on 30 June 2019. It follows that, as a matter of law as well as fact, she was not actually dismissed from her employment by Mr Burston, constructively or otherwise.
Events leading up to the Facebook Post on 12 February 2019
It became apparent at the trial, in Mr Ashby, Ms Leach and Ms Vairy’s evidence, that sometime during the latter half of 2018, Ms Leach began communicating via telephone with Mr Ashby regarding her experiences and observations working in Mr Burston’s office. The following is a brief outline of these issues. A more detailed consideration of the evidence on those issues appears later in these reasons.
Ms Leach maintains that she told Mr Ashby of Mr Burston’s infatuation with Ms Vairy. It quickly became apparent at trial, with further corroborative evidence from Mr Ashby, that he served as a confidant from time-to-time in listening to Ms Leach’s experiences through numerous telephone conversations. In January 2019, Ms Vairy initially contacted Mr Ashby and first disclosed to him the more serious sexual harassment allegations she made against Mr Burston.
Ms Vairy gave evidence that she disclosed the numerous unwanted approaches made by Mr Burston, including an incident where she had received a birthday card with money inside it. Her evidence was that when she attempted to hand the money back, Mr Burston put or attempted to put the money down her blouse or top. Ms Vairy gave evidence of raising conduct by Mr Burston in the subsequent telephone conversations with Mr Ashby, including, physical touching and comments relating to her “sexiness” which made Ms Vairy “very, very uncomfortable”. While Mr Burston in his closing submission concedes to on occasion saying things such as “I love you” to Mrs Vairy or referring to her as a “beautiful lady”, he asserts that his conduct in its totality did not amount to sexual harassment. I will return to this point when I deal with the imputations relating to the sexual harassment and abuse.
Leading up to the publishing of the Facebook Post, Mr Ashby had conversations with Ms Hanson regarding any further steps that should be taken in regards to the information received from Ms Leach and Ms Vairy. With Ms Hanson’s approval, Mr Ashby drafted a speech to be read in the Australian Senate by Ms Hanson concerning the sexual harassment and unfair dismissal allegations made against Mr Burston by Ms Leach and by Ms Vairy.
On the night of 12 February 2019, Ms Hanson delivered a speech in the Australian Senate. This speech is recorded in the Hansard of the Australian Senate bearing the same date. This speech was subsequently uploaded by Mr Ashby to Ms Hanson’s verified Facebook Page as a video accompanied by the reproduced text at [2] of these reasons. As such, it is critical to note that it is only the text portion as reproduced on the Facebook post that accompanied this video that forms the first matter complained of. While the delivery was undoubtedly accusatory, Ms Hanson apparently deliberately omitted to name anyone, a stance that Mr Ashby confirmed was intended. Instead she stated that the serious allegations raised were directed to a married, male senator.
Mr Burston’s response to the Facebook Post on 14 February 2019
It is not disputed that Mr Burston spoke to a news reporter on the same Tuesday night, 14 February 2019, following Ms Hanson’s speech to Parliament. As a consequence of this, he named himself as the married male senator that was referred to in Ms Hanson’s speech. However, the exact time of this self-identification by Mr Burston, and its publication, is unclear from the evidence. The earliest article in evidence that refers to this self-identification was an article published by the Sydney Morning Herald, online the next day, Wednesday, 13 February 2019 at 11.14 pm. It is in this same article that Mr Burston accused Ms Hanson of sexually harassing him twice. Ms Hanson unequivocally denied this counter-allegation at the time, and ever since.
The Burston-Ashby altercation on 13 February 2019
On the evening of 13 February 2019, Mr and Mrs Burston attended the Minerals Council of Australia dinner hosted in the Great Hall at Parliament House. Mr Burston and Mr Ashby sat at the same table at that dinner that evening. While Mr Ashby concedes that he at least greeted Mrs Burston, it is common ground that the two men did not interact prior to the altercation that night despite their proximity.
Later on, Mr Ashby took a telephone call, and left the table. The caller was a journalist who told him about sexual harassment allegations made by Mr Burston against Ms Hanson that were about to be published, seeking a comment from him. Mr Ashby spoke to Ms Hanson, who indicated that she would stay for the Prime Minister’s speech. Mr Ashby then went outside, with his evidence being that he intended to take photographs of Ms Hanson as she left the dinner, saying to Mr Bainbridge that was the reason he was waiting outside the dinner.
The subsequent series of events which culminated in a physical altercation between Mr Burston and Mr Ashby, can be conveniently described in two stages by reference to tendered photographs by a third party and a video taken by Mr Ashby depicting the incident in two stages as follows:
Stage 1 of the physical altercation between Mr Burston and Mr Ashby
Mr Ashby next observed Mr Burston coming out of the Great Hall where the dinner was taking place into the marble foyer at Parliament House, followed by Mrs Burston. The series of photographs tendered then commence with a depiction of Mr Ashby with his mobile phone held out in front of him walking towards Mr Burston. Mr Ashby’s evidence was that he was intending to video Mr Burston, but did not get the settings right to do more than take still photographs. None of those photographs were tendered in evidence.
In the successive photographs, Mr Burston walks past Mr Ashby with Mrs Burston remaining only a few metres behind as Mr Ashby continued to photograph Mr Burston. At some point, Mr Burston abruptly stops, turns around and starts walking towards Mr Ashby. At this point, Mr Ashby is depicted backing away from Mr Burston with his mobile now held with both hands as he continued to photograph Mr Burston. In the following photographs, Mr Burston made several attempts to take Mr Ashby’s mobile phone off him, succeeding on the fourth attempt, and throwing it away so that it slid along the floor. Mrs Burston was not closely proximate to any of this taking place.
Mr and Mrs Burston are then depicted walking towards the exit, away from the marble foyer. The final photograph in this sequence then shows Mr Ashby retrieving his mobile phone from the floor and following Mr and Mrs Burston as they proceed to walk away.
Stage 2 of the physical altercation between Mr Burston and Mr Ashby
This stage is depicted in a video taken by Mr Ashby on his mobile phone. The video commences with his mobile phone aimed at Mrs Burston who responds to this by saying, “go away James”. Mr Ashby then asks her “how do you feel about the sexual harassment cases?” At this point, Mr Burston quickly moves towards Mr Ashby, puts his hand over the phone, and pushes Mr Ashby in the chest through the exit door and out of the marble foyer, saying to Mr Ashby, “listen here”, and Mr Ashby asks, “what are you doing champ?”. Mr Burston says, “I’ll call the federal police. You are harassing me”. While this altercation took place, Mrs Burston can be heard repeatedly and loudly saying to Mr Ashby that the claims were “all your concoction”. The video ends at this point.
It is reasonably clear that this is where the altercation between Mr Burston and Mr Ashby ran its course. Mr Ashby apparently returned to the marble foyer to wait for Ms Hanson, and Mr Burston and his wife exited the area. Subsequently, after this, and on the same night, a public statement was issued on the UAP website in the name of Mrs Burston where she expressed support and belief for her husband despite allegations made against him in the media. As a consequence of this altercation, Mr Ashby was barred from Parliament House by having his parliamentary pass revoked by the President of the Senate at the time, Mr Scott Ryan.
The Text to Mrs Burston from Ms Hanson on 14 February 2019
In the preceding timeframe to the publication of the text message sent by Ms Hanson to Mrs Burston, various media sources had reported on the sexual harassment allegations made by Mr Burston against Ms Hanson in the aftermath of Ms Hanson’s speech and Mr Burston naming himself as the subject of that speech and thus the Facebook post. Apparently, in part to address the now published sexual harassment allegations raised by Mr Burston, Ms Hanson sent a text message to Mrs Burston at 6.24 pm on the evening of 14 February 2019. The contents of this text message form the third matter complained of (published second in time) as reproduced at [9] of these reasons. The text message commences with Ms Hanson expressly addressing the sexual harassment allegations against her as the purpose of her communication. On a fairly impressionistic level, this can be viewed as Ms Hanson’s attempt to protest her innocence concerning the allegations Mr Burston raised and repeating the unfair dismissal and sexual harassment allegations in respect of which Mrs Burston had already publicly supported Mr Burston by texting the following (with line numbering added):
1.Ross [Ros] I have a lot of time for you especially because you were there for me when I broke up with Chris.
2.You are being taken for a fool by Brian. He is the last man I would ever hit on. I am definitely not attracted to him now or ever.
While Ms Hanson contends that the text messages were published in the circumstances in which Ms Hanson and Mrs Burston had a friendship spanning twenty years, as noted above, I find it is impossible on the evidence and all reasonable inferences able to be drawn to accept that there was any residual friendship between the two women, or that Ms Hanson genuinely believed that to be so, in the absence of any evidence from her, considering the events that had transpired both eight months earlier with Mr Burston resigning from One Nation as well as the events of the previous day. It was never suggested to Mrs Burston in cross-examination that she was still a friend of Ms Hanson by 2019. I am confident that had any such proposition been put to Mrs Burston, she would have denied it, but she was not given that opportunity. In the same text message thread, Ms Hanson then goes well beyond the allegations Mr Burston had made against her, by making other serious allegations against him, texting the following to Mrs Burston (with continuing line numbering added):
3.He is vindictive as you well know, Oldfield, Hinch, Dury, James and me. He is being investigated for sexual harassment by more than one of his former female staffers. They can’t all be wrong.
4.Everyone at Parliament knows that he is infatuated with Terrylee and in his own words love her.
5.You won't get to see the evidence all on text from him to her because it will be a closed decision and she will get her pay out and gagged.
6.He considers you to be nothing but a winging old bag turning out to be just like your mother who he wants to drop dead.
7.He tells his staff he owns your home. Wake up to him. I have nothing to gain. I just believe you deserve to be treated with a bit more respect.
8.This is the man who said he would never hurt me or try to destroy One Nation.
9.He turned on me because I couldn’t endorse him for another 6 years.
10.I am sorry that was a political decision because he never worked enough to keep it.
11.You may think differently but please be objective.
On a fair assessment, the text message continues well beyond mere vindication, culminating in what can best be described as a scornful diatribe. Mrs Burston’s reply at [12] of the reproduced text message thread above, “Please stop contacting me”, clearly enough indicates that the communication was neither welcome, nor received as being from a friend.
The Today Show Interview on 29 March 2019
By way of broader context, which is a matter of public record, on 26 and 28 March 2019, the Australian Broadcasting Corporation broadcasted a widely publicised television documentary made by the media organisation Al Jazeera titled “How to Sell a Massacre” (the Al-Jazeera documentary), based upon a lengthy investigation into gun rights lobbying in the United States. During the Al Jazeera documentary, a journalist had posed as a member of the National Rifle Association (NRA), a very well-known United States gun rights lobby group. That journalist, in that ostensible NRA capacity, met in Washington DC with Ms Hanson, Mr Ashby, and a member of One Nation and party leader at the time in Queensland, Mr Steve Dickson.
The covertly recorded footage from that meeting included the apparent soliciting of political donations by Mr Ashby and Mr Dickson from the Al Jazeera journalist, whom they had had been duped into thinking represented the NRA, in return for seeking to soften gun laws in Australia. The recorded footage includes a portion that the Today Show interviewer, Ms Deborah Knight, played to Ms Hanson of what Mr Dickson had said as follows: “If they [that is, the NRA] threw $10 million at us, we could fucking win a heap of seats, plus a shitload of seats in the Senate”.
Segments of the video of the meeting with the Al Jazeera journalist are also displayed during the Today Show interview. Ms Hanson states during that interview that Mr Ashby and Mr Dickson were “led to believe that if you could get some funding, what would that mean?” Some of the subtitles of the interview are cut off by the large Today Show graphic at the bottom of the screen. However, in the video played to Ms Hanson during the interview, Mr Ashby and Mr Dickson apparently refer to One Nation holding a certain number of seats in government, and that if they held eight senate seats they would “have the whole Government by the balls”, amongst other matters.
Upon examination of the tendered transcript and footage from the Today Show interview, Ms Knight’s line of questioning was primarily based on the aforementioned Al Jazeera footage, the resultant public reaction to One Nation’s alleged attempt to solicit funds from the NRA in return for attempts to soften gun laws in Australia and an allegation against Ms Hanson that she suggested the Port Arthur massacre was a government conspiracy. Separate to this primary line of questioning, at 05:21 of the transcript reproduced above at [6] of these reasons, Ms Knight asked Ms Hanson the following questions:
05:18 Knight So you’ll stand by Steve and you’ll stand by James Ashby? 05:20 Hanson And I ... I’ve made that quite clear today. 05:21 Knight How many chances will they get? Because we know that James has been banned from Parliament House because of his fight with Senator Brian Burston.
Ms Hanson responded by saying the following words that are said to give rise to the pleaded imputations (emphasis added):
05:27 Hanson No, sorry. Not the fight with Brian Burston. The aggression came from Brian Burston to James Ashby ... 05:33 Knight OK, but that incident ... 05:34 Hanson James Ashby never laid a hand ... 05:35 Knight ... prompted a banning from Federal Parliament. 05:36 Hanson ... never laid a hand. And James Ashby has been trying to bring it to the President's attention about the sexual abuse and harassment that was going on with a female staffer in his office. And the President just said “You go to someone else”.
It follows that the transcript reproduced at [6] of these reasons which includes the preceding impugned excerpt from the Today Show interview, is the key aspect of the second matter complained of (published third in time). Further analysis follows below.
Non-witness evidence
Most of the evidence apart from that of witnesses, comprising documentary records of various kinds, text messages, emails, media or social media posts or recordings and transcripts, was contained in the Court Book, being formally tendered by one side or the other without objection. There was a relatively small number of additional documents tendered, again without objection.
Greater weight is naturally to be given to documents that are themselves the manifestation of actions or communications, such as a text or email, than records created in order to achieve an objective, such as a complaint or document created to achieve a particular objective. That said, contemporaneous accounts of events can be corroborative of oral testimony on the same events, but must be approached with some caution due to the possible agendas being deliberately advanced.
Overview of witness evidence
The witness evidence given and called by Mr Burston and called by Ms Hanson ended up being largely directed to a competing narrative of key events and the context in which those the events took place, especially those the subject of the pleaded imputations, the pleaded justifications, and seeking to counter such justifications, including by seeking to explain the non-witness evidence. The following witnesses gave evidence at the trial and were cross-examined:
(a)in Mr Burston’s case, him and his wife, Mrs Burston;
(b)in Ms Hanson’s case, Ms Vairy, Ms Leach, Mr Bainbridge and Mr Ashby.
Ms Hanson elected not to give evidence, upon the basis conveyed by her counsel that she saw no need to do so, relying instead upon the witnesses that she called. That meant that she was inherently reliant upon the testimony of Mr Ashby and the acceptance of his evidence in relation to what he told her, and what her state of mind was as a result as relevant to the justification defence of qualified privilege that she relied upon. The problem with that strategy is that Mr Ashby’s testimony was cast at a level of generality inadequate for the task of discharging the necessary burden of proof and he ended up being a witness of doubtful veracity in key respects, especially in relation to events in which he was personally involved, such as the altercation with Mr Burston.
These reasons reflect the substantial challenge posed in the assessment of contradictory evidence about the disputed events. In any trial, some witnesses may simply be obviously sound and give evidence which can therefore be accepted without reservation, while other witnesses may be inherently unsound such that their testimony has to be approached with caution. Sometimes, a Court as the tribunal of fact is faced with having to decide upon facts as deposed to by a skilled liar against an account given by a bad teller of the truth. Lesser versions of that stark dichotomy are more common.
The evidence of a particular witness may be wholly accepted or wholly rejected, but it is more common that there is a spectrum with different degrees of evidentiary weight or acceptance. The High Court has cautioned against drawing conclusions about the acceptance or rejection of witness evidence based upon demeanour alone: Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] per Gleeson CJ, Gummow and Kirby JJ. The sounder approach is to examine key testimony carefully and by reference to the logic and sequence of events about which evidence is given, as aided by contemporaneous and objective evidence.
For the reasons detailed below, I reach the following overall conclusions about the witnesses who gave evidence.
Mr Burston
Mr Burston was in many respects an unsatisfactory witness whose testimony I am unable to accept on the topic of the allegations of sexual harassment made against him. This is largely because the objective material such as text messages, coupled with the compelling and credible evidence of Ms Vairy and of Ms Leach, left no serious room to accept the benign interpretation and account that he advanced in relation to his conduct. His evidence in other areas was at its best when it aligned with objective contemporaneous non-witness testimony, such as photographs or recordings. However, I do not accept, as Ms Hanson submitted in substance, that virtually none of his testimony could be accepted as either truthful or reliable. His account of the altercation with Mr Ashby, although not flawless, was generally more credible and more consistent with both the objective evidence, and the logic and sequence of events, than the evidence of Mr Ashby on that topic.
Mrs Burston
Mrs Burston was an honest witness doing her best, but she said she had little recollection of certain key events. She was plainly personally very upset by the sexual harassment allegations made against her husband and deposed to not accepting that the events occurred when aspects of these events became public or were otherwise communicated to her in the context of this litigation, especially in the matters complained of, or in the witness box. That denial has to be understood in the context that the alleged conduct took place in circumstances that were not apparently known to her. Again, her evidence was at its best when it aligned with objective contemporaneous non-witness testimony.
Ms Vairy
Ms Vairy was an impressive witness because she obviously listened to the questions and did her best to answer them with dignity despite the unedifying events that she deposed to. She was a calm and careful witness, with an understated manner. I perceived her as finding the process of giving evidence personally difficult and challenging both in chief and in cross-examination. However, she was obviously determined to give that evidence and was not reticent in her answers.
On occasion, Ms Vairy had difficulty in understanding questions, but in the greater part that was due to the convoluted nature of the question, or its ambiguity. She also made concessions at appropriate points. Importantly, her evidence at key points was consistent with, and corroborated by, contemporaneous records, such as texts sent to her by Mr Burston which on their face plainly supported her understanding of them.
This assessment of her as a reliable and truthful witness readily carried over to most aspects of evidence that were not able to be corroborated, such as the behaviour, both physical and verbal, of Mr Burston that she deposed to. I address her evidence in greater detail when assessing the truth defence to the pleaded imputations of sexual harassment.
Ms Leach
Ms Leach was a credible witness. While not as compelling a witness as Ms Vairy, I found her account of events believable, and generally accept her account of events, mostly preferring her version when it conflicted with that of Mr Burston. She sometimes reacted strongly to what was being put to her, especially when challenged in cross-examination, but not in a way that was in any significant measure disproportionate to what she was being asked. I accept all the key aspects of her evidence, especially as to her observations about Mr Burston’s conduct towards Ms Vairy.
I accept and prefer Ms Leach’s account of being sexually propositioned by Mr Burston, and correspondingly reject his account of her propositioning him, which I found improbable and even absurd. I do not need to go so far as to find that Mr Burston in fact intended to have sexual relations with Ms Leach, noting that the evidence he relied upon to assert an incapacity to do so was insufficient to form any concluded view about that. What matters is that I find that he sexually propositioned her. As with Ms Vairy, I address Ms Leach’s evidence in greater detail when assessing the truth defence to the pleaded imputations of sexual harassment.
Mr Bainbridge
Mr Bainbridge came across as a partisan witness, voluntarily characterising Mr Burston on the night of 13 February 2019 in a conclusory and non-responsive way as being “aggressive” towards Mr Ashby, and Mr Ashby as not being “aggressive” at all, when no question asked of him naturally led to either characterisation. I perceived him as being primed to give that evidence irrespective of the question that was asked. He did not give much if any evidence to explain the basis for either conclusion, or even what he really meant by it.
Mr Bainbridge was not the impartial witness he was represented to be by counsel for Ms Hanson. While I accept that he did not know Mr Ashby before the night of 13 February 2019, he met with him and Ms Hanson later that night, so it can be readily inferred that he was no longer a wholly independent witness by the time he gave evidence. That said, little of what he had to say added much to the key factual issues in dispute.
Mr Ashby
Mr Ashby was a slick and polished performer in the witness box. The problem with such an impression is that it can be affected by objective evidence and circumstances which reveal it to be untrue or unreliable in particular respects. When that happens, doubt may be cast on the acceptance of the rest of the evidence that has been given. In this way, a positive demeanour cannot necessarily be safely relied upon in the assessment of the evidence given. This is considered in further detail below.
At this stage of these reasons it suffices to record the following conclusions:
(a)Mr Ashby’s evidence about his dealings with Ms Vairy and with Ms Leach can generally be accepted to the extent that it is broadly consistent with their testimony. His general evidence of the complaint they made at the time served to provide circumstantial corroborative support for their evidence by confirming, supporting or strengthening it in the sense of rendering it more probable that it was true: see Doney v The Queen [1990] HCA 51; 171 CLR 207 at 211 per Deane, Dawson, Toohey, Gaudron and McHugh JJ.
(b)Mr Ashby’s evidence about his dealings with Ms Hanson must be confined to the precise content of what he deposed to, and treated with considerable caution and reservation. I am not prepared to infer that anything more was communicated than what he actually said in evidence, especially in the absence of Ms Hanson giving evidence of what she was told and the views she formed as a result, despite her sitting in Court for several days.
(c)Mr Ashby’s evidence about his altercation with Mr Burston on the night of 13 February 2019 must be treated with great caution. In particular, Mr Ashby’s evidence that he was not asking or intending to ask Mrs Burston about the allegations of sexual harassment made against her husband is firmly rejected as being, at best, unreliable and self-serving. His contemporaneous diary note does not support his account, not least because it was itself an unreliable record of what took place, being manifestly incorrect in parts. The recording that Mr Ashby made on his mobile phone of his question to Mrs Burston, and the logic and sequence of events, makes it clear that he was deliberately provoking Mr Burston by asking Mrs Burston about those allegations.
(d)Because Mr Ashby has been willing to give untrue evidence about his motivation for filming Mr Burston and Mrs Burston, I am unwilling to accept his account of what took place during the course of the altercation as truthful unless it is objectively supported by the photographs that were taken by apparently independent observers, or by his own video and thereby sound recording of a small portion of what transpired.
The sexual harassment allegations
On the topic of the sexual harassment allegations, I accept and prefer the evidence of Ms Vairy and Ms Leach to the evidence of Mr Burston. I find that their evidence was coherent and consistent and aligned better with the objective material such as the content of key texts and was also supported by other contemporaneous records, as developed in more detail below.
Adding to the assessment of Mr Burston as a witness earlier in these reasons, I observe that he was a man of his age, background and social views who, at the time, probably genuinely saw nothing wrong with his behaviour, however objectively wrong and inappropriate it was. Whenever there was a possible benign explanation for something he said or did, he clung to that, even if it was inherently improbable. On its own, some of those attempts might have succeeded in the sense that cross-examination of him alone might not have been enough for Ms Hanson to discharge the onus of proving truth on the balance of probabilities, having regard to the quality of evidence required to prove such serious allegations: see s 140(2) of the Evidence Act 1995 (Cth), being the statutory rendering of Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-2 per Dixon J.
Mr Burston had apparently not kept up with changes in society in relation to the rights of women, with the tide having turned even more decisively in recent years, most particularly in relation to the conduct of and around elected representatives and their staff. Women in such positions who might have feared the consequences of speaking out have been more supported and encouraged to do so than was previously the case, although doubtless this remains a daunting thing for anyone to do. Ms Vairy and Ms Leach took the ultimate personal risk of giving evidence and being exposed to cross-examination. Very fortunately for both of them, they were much better than merely sound witnesses. It was no close call to prefer their evidence both as to what had objectively occurred, but also as to how their interpretation of objective material should be preferred to that of Mr Burston.
Unfortunately for Mr Burston, his desperation to have his perception and recollection of events accepted went beyond merely giving a different perspective or explanation for what took place, including what was said and done. He crossed an important line in key areas between giving evidence of merely a different recollection of what had taken place, and giving an account that he must have known was not correct. I find that his allegation that Ms Leach had sexually propositioned him on 1 May 2018 to be false, but do not need to reach any conclusion as to why this was said as this is not necessary. I accept Ms Leach’s evidence that Mr Burston said to her words to the effect, “Oh Wendy, you probably just need a good fuck.”
The altercation between Mr Burston and Mr Ashby on 13 February 2019
On the topic of the altercation at Parliament House on the night of 13 February 2019, I generally accept the evidence of Mr Burston over the evidence of Mr Ashby, notwithstanding that Mr Ashby was a smooth and polished performer – a term I use deliberately and advisedly – while Mr Burston was more bumbling. This is for a number of reasons.
First, the evidence of Mr Burston better aligns with the objective photographic evidence both by way of still photographs and by way of video footage taken by Mr Ashby, including the soundtrack of the video.
Secondly, I found Mr Ashby’s evidence in a number of respects to have been evasive and directed to avoiding conclusions that were inconsistent with the narrative of the events that he was, to my perception, ardently attempting to present. For example, he gave evasive evidence about whether he was walking forward when he was photographing Mr Burston in the first stage. He gave an implausible denial that he intended to provoke Mr Burston by that photography and by his video action in the second stage. Plainly he was being deliberately provocative, and is, to my perception, too intelligent not to have been fully aware of that. His suggestion that there was nothing provocative in filming someone with whom he had an antagonistic relationship simply cannot be accepted as reliable, reasonable or credible.
Thirdly, and perhaps most importantly, having listened to the sound recording on the video footage taken by Mr Ashby, I am unable to accept as reliable, reasonable or credible that Mr Ashby’s objective in speaking to or filming either Mr Burston or Mrs Burston was to raise with either of them the allegation that Senator Hanson had sexually harassed Mr Burston. While the logic and sequence of events is consistent with Mr Ashby’s actions that night being motivated, at least in part, by the allegations Mr Burston had made being published the next day, about which Mr Ashby had received a call from a journalist a short time earlier that night, the question he asked Mrs Burston was “how do you feel about the sexual harassment cases”. There was no sexual harassment case involving Ms Hanson, let alone more than one such case. I reject Ms Hanson’s submission that because Mr Burston’s allegation involved more than one instance of sexual harassment by her, this explained his use of the word “cases”. There was not even a published allegation as Mr Ashby had been contacted for comment an hour or so ahead of publication.
Moreover, Mr Ashby's question to Mrs Burston was an odd one if understood as being directed to Mr Burston’s allegations against Ms Hanson, defying logic itself. That is because there is no evidence that Mrs Burston was aware of the unpublished harassment allegations at that time. Mr Ashby recognises this fact in his evidence in chief as he states that “perhaps she would have been unaware of what was about to come out too”. The only sexual harassment allegations that could reasonably be referred to as “cases” were the complaints by Ms Vairy and Ms Leach, both of which had been the subject of written complaints by then.
The parties cooperated as requested and produced a joint statement of background facts and issues, both agreed and disputed. Opening and closing submissions were then structured to address the issues in dispute as well as the different key factual conclusions sought to be reached. This approach was of considerable assistance in narrowing the areas requiring adjudication. In particular, there was no dispute about the applicable legal principles, although their proper application to the facts and circumstances in this case was contested in a number of key areas.
The following is a description of facts and issues that remain in dispute between the parties but otherwise verified by witness testimony which primarily relates to the events surrounding Ms Leach and Ms Vairy’s sexual harassment allegations against Mr Burston. It follows that with respect to these facts and issues in dispute, I accept and prefer Ms Leach and Ms Vairy’s evidence to that of Mr Burston for reasons that will be further illuminated by the analysis below.
Ms Vairy
In her examination-in-chief, Ms Vairy gave evidence of the pejorative comments Mr Burston would make concerning Ms Leach. Ms Vairy described an instance during the first days of her employment where Mr Burston said words to the following effect, “she’s quite loud”, “she’s not as attractive as I thought she was and had I had known that, I would not have hired her” and further comments like “she is old and hitting her 50s.”
Further evidence was adduced from Ms Vairy, in particular pertaining to the unwelcomed comments Mr Burston made regarding her appearance and the physical advances that would often follow. Ms Leach recounted an event where, during a phone call with his brother in the office conference room, Mr Burston said, “I have Miss World sitting in front of me” with reference to Ms Vairy and subsequently thereafter, on the same day, Mr Burston said to Ms Vairy “nice to have a good-looking sheila in the office.”
Ms Vairy gave further evidence more physical advances were made by Mr Burston. She states in her oral evidence that in or about May 2017, a few days after the preceding events, in the back room of the senatorial office in Belmont, after Mr Burston had come to give her a hug as a form of greeting, “he then leaned in and kissed me, which I felt extra uncomfortable because I knew that another staff member – or I thought that another staff member had seen that and that it was deliberately done so this person could see. So, again I just – I was just in shock.”
Ms Vairy described herself as growing increasingly uncomfortable working for Mr Burston as time progressed. She said that Mr Burston’s repeated one-on-one lunch invitations particularly exacerbated this, which left her “really concerned” due to a feeling of being “singled out.” When Ms Vairy told Mr Burston of these concerns and requested that Ms Leach be at least present at these lunches, Mr Burston, according to Ms Vairy, replied that he would much rather her (that is, Ms Leach) not to be there.
At the lunches, Mr Burston paid the bill and purchased alcohol. While Ms Vairy was initially undisturbed by the one-to-one lunch invitations and the alcohol ordered and consumed, she grew increasingly uncomfortable as she grew concerned over how it looked to other people and due to the comments Mr Burston would make at these lunches. Ms Vairy said that he would say words to the following effect:
(a)“you look sexy in what you are wearing”;
(b)“your legs look sexy”;
(c)“You look sexy in that dress, it accentuates your figure”;
(d)“You’re wearing your hair the way I like it.”
Ms Vairy recalled that Mr Burston also began to make statements in the vein of those set out above in front of other people at the office, including her daughter who was also employed by Mr Burston.
Ms Vairy recounted an incident in a car in December 2017 on the way back from a staff training program that Mr Burston had attended with Ms Leach and Ms Vairy. Ms Leach entered into the car’s front seat, and Mr Burston entered into the back of the car next to Ms Vairy. Ms Vairy said that Mr Burston began to ask questions such as whether or not she had a fake tan and proceeded to touch the fabric of her dress, her legs, her hands and jewellery.
It was around May 2018 when Ms Vairy apparently expressed her concerns over the comments other staff were making with respect to these lunches. Due to these concerns, Ms Vairy gave evidence of her becoming hesitant to attend Mr Burston’s lunch invitations. Perhaps in expressing his frustration over this, Mr Burston apparently responded to this by saying that if anyone complains he would sack them, and warned Ms Vairy not to give “an eff” about what anyone else says or thinks. Ms Vairy also said that it was also about this time Mr Burston’s conduct would escalate from kissing her goodbye on her cheeks to kissing her lips. Ms Vairy recounted several events in 2018 where Mr Burston kissed her on the lips, which can conveniently be described as follows:
(a)The first of these instances happened in February 2018 in Canberra, after Mr Burston accompanied Ms Vairy back to her accommodation. As he stood at the door, he said, “I’ll just come in for one wine and then I’ll leave.”As he was leaving, he lent in and passionately kissed Ms Vairy.
(b)The second instance occurred in late March 2018 in Canberra after Mr Burston dropped Ms Vairy off at her accommodation. In the car that day was Ms Vairy’s daughter who left the car before she did, and Mr Burston lent in quickly and kissed Ms Vairy.
(c)Ms Vairy’s evidence is that Mr Burston’s conduct had escalated by around mid-2018, after about a year of working for him. The third instance occurred on a Saturday around early September or early October 2018 after a work meeting, Mr Burston walked Ms Vairy to her car. After this, as Ms Vairy opened her car door, he said, “Thank you very much” and then “cupped” Ms Vairy’s face and proceeded to kiss her. She described the kiss in a vivid manner by saying it was a “long kiss – but not passionate – a long, hard kiss.”
On or about 22 February 2018 during work hours, Mr Burston gave Ms Vairy a card that said, “Beautiful Pretty Lovely Birthday Lady!” The inside of the birthday card had the following message, “Terrie–lea that’s you! XOXO have a great day, Brian” (The “XOXO” was already printed on the card). When Ms Vairy opened the birthday card, $100 fell out. Mr Burston’s evidence was that the money was $60 and was a payment for house cleaning, but I do not accept that evidence, regarding it as a desperate attempt to manufacture a benign reason for giving her money. Ms Vairy made an attempt to return the money to Mr Burston. Her evidence is that he returned the money. She said that he did so by forcefully shoving it between her breasts, a topic to which I return below.
Furthermore, Ms Vairy maintains that from time to time throughout 2018 Mr Burston:
(a)made comments about her appearance and touched her in the presence of other staff, with the comments usually with respect to her clothing, particularly her accessories;
(b)said things like “I like that” and he would lean in and touch, whether it be her hand or skin;
(c)suggested that Ms Vairy looked stressed and that she needed a good hug.
In addition to this, Ms Vairy said that Mr Burston purchased gifts for her. She gave evidence of four or five instances where Mr Burston purchased alcohol for her as a gift.
Ms Vairy said that during her employment in 2018, Mr Burston would ask her personal questions that were sexual in nature, such as “what kind of men do you go for?”. In addition, Mr Burston is said by Ms Vairy to have made further comments with regards to her chest. In particular, a comment was made in March 2018 in Mr Burston’s office where Mr Burston said Ms Vairy has perfect size breasts. Mr Burston followed this question up by asking whether Ms Vairy has breast implants.
In late March 2018, Ms Vairy in her evidence-in-chief said that Mr Burston declared that he was in love with her. Mr Burston then proceeded to say he was not saying this because he wanted to “fuck” Ms Vairy, not that he did not want to, because “what man wouldn’t”.
Ms Leach
Ms Leach recounted an incident where Mr Burston sexually propositioned her. Her evidence was that this incident occurred on or about 1 May 2018, after a staff meeting convened to address some difficulties Ms Leach was facing at the time with a work colleague. Ms Leach gave evidence of how she grew upset due to how Mr Burston had handled the staff meeting when she and the work colleague were both present. After the staff meeting, Ms Leach, in her upset state, walked into Mr Burston’s office. At this point, she recalled now being in tears as she tried to explain further how she felt, and Mr Burston responded by saying, “I am a softie for a woman in distress, go in the ensuite, clean yourself up and come back out”. After Ms Leach returned to Mr Burston’s office, he said, “Oh Wendy, you probably just need a good fuck”. Initially, Ms Leach says her response was one of bemusement, responding with words to the effect of “Ha, ha, ha. Thanks for trying to make me laugh.” However, it quickly became apparent to her that he was not joking when he responded by grabbing Ms Leach by the face and said, “I’m not joking. I can come around to your place. No one would need to know. It will be the best fuck you’ve ever had.”
Ms Vairy was not present when this incident occurred. However, in her evidence in chief she recalled Ms Leach telling her what Mr Burston had said. When asked by senior counsel about her reaction to this, she responded by saying, “I was in shock,” and proceeded to describe how she consoled a distressed Ms Leach with a hug.
With respect to the preceding disputed events set out above, I have no reason not to accept Ms Leach and Ms Vairy’s account. I am in no doubt that Ms Vairy suffered continued harassment from Mr Burston during her employment, predominantly of a sexual nature. Nor am I in any doubt that that Mr Burston sexually propositioned Ms Leach. Ms Leach and Ms Vairy gave evidence that was full of adjectives to describe the profoundly unbearable workplace they endured under the employ of Mr Burston.
Issues in dispute (in the form of questions jointly posed by the parties)
Ms Hanson does not dispute that if the pleaded imputations across the three matters complained of were conveyed they would be defamatory, nor take any issue as to publication. Beyond that, the pleaded imputations and the pleaded justifications give rise to the consideration and application of the legal principles corresponding to the following issues in dispute, organised in the form of a series of questions agreed between the parties, and paraphrased as follows:
(a)Was Mr Burston reasonably identified as the subject of the first matter complained of, being the Facebook post, because it does not name him? This logically precedes the issue of whether the pleaded imputations were conveyed.
(b)Were each of the eight imputations ultimately pressed across the three publications conveyed as a question of fact (there having been no issue raised as to legal capacity to convey the imputations as a question of law)?
(c)Were any of the eight imputations substantially true?
(d)Was the text message to Mrs Burston published on an occasion of common law qualified privilege?
(e)Was either:
(i)the relevant portion of the second matter complained of, being the part of the Today Show interview on 29 March 2019 concerning the confrontation between Mr Burston and Mr Ashby on 13 February 2019; or
(ii)the third matter complained of, being the 14 February 2019 text sent by Ms Hanson to Mrs Burston about Mr Burston,
an occasion of common law qualified privilege, as a reply to attack?
(f)Were any of the three matters complained of published on an occasion of statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW) (in the form of that provision prior to the 1 July 2021 amendments)?
(g)Were the circumstances of publication of either of the first or second matters complained of such that Mr Burston was unlikely to sustain any harm?
(h)In defeasance of qualified privilege, was the publication of any of the three matters complained of actuated by malice, being a predominant motive by Ms Hanson to hurt, embarrass and humiliate Mr Burston, or additionally in the case of the second matter complained of, to otherwise divert or deflect public attention and criticism from her own and Mr Ashby’s behaviour?
(i)If Mr Burston succeeds in relation to any aspect of his case, what, if any, general or aggravated damages is he entitled to, taking into account the question of whether any of the matters pleaded in support of the defences mitigate any such damages?
Identification by the FaceBook Post
Principles as to identification
There is a single cause of action for multiple defamatory imputations “about” a person, even if more than one such imputation is conveyed: s 8, Defamation Act. Thus, it is essential that the publication sued upon be of and concerning the person who sues in defamation: Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739 at [58] per McColl JA, with whom Beazley P and Basten JA agreed. That does not mean that the person alleging defamation must be named in a publication sued upon. It is sufficient if the words used are such that they would in the circumstances reasonably lead persons acquainted with the person who sues to believe that was who was being referred to: David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234 at 238 per Issacs J; see also Plymouth Brethren at [59]-[60] and the authorities on this topic extracted in Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 at [35]-[36]. That is so even if the belief held by such a person is erroneous, but the nature of the error may defeat the conclusion as to identification, noting that, in keeping with imputations generally, the perspective is that of a layperson with a greater capacity for implication and loose thinking than a lawyer: Plymouth Brethren at [68], [76]-[77]. The trial judge as the tribunal of fact must decide whether, on the evidence, a lay reader with knowledge of the person asserting defamation would reasonably have understood that person was being referred to: Plymouth Brethren at [77].
It is the substance of the basis asserted to give rise to identification that matters, avoiding technicality and over-analysis: Plymouth Brethren at [90]. The intention of the publisher, even as to capacity to identify, is irrelevant because the inquiry is objective, not subjective: Plymouth Brethren at [61], [82]-[92]. A mistaken identification may be drawn by a reasonable reader, so long as it is the product of the matter complained of: Plymouth Brethren at [93]. The identification does not necessarily have to take place at the time of publication and can be the product of subsequently acquired extrinsic information: Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485 at [76]-[78].
In reaching the conclusion about subsequently acquired extrinsic information contributing to identification, the Court of Appeal in Pedavoli read down a blanket proposition sourced in Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 at 825 per Lord Denning MR to the effect that a person suing for defamation cannot rely upon subsequent reports to establish identification and to link that person with the published words. However, Grappelli was a true innuendo case rather than identification case. As was pointed out in Pedavoli at [78]-[79], “[i]n virtually every case where identification is in issue, it may be supposed (depending, perhaps, at least in part on the level of salaciousness, or gravity of the allegations) that recipients will seek (with a greater or lesser degree of vigour) to identify the subject”, and “such an invitation is, in any event, implicit in almost any defamatory publication that does not name its subject”.
Section 30(3), in the form that existed prior to the 1 July 2021 amendments which have since made the defence somewhat easier to establish, provided a list of relevant considerations able to be taken into account by a Court as follows:
(a)the extent to which the matter published is of public interest, and
(b)the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c)the seriousness of any defamatory imputation carried by the matter published, and
(d)the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
(e)whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f)the nature of the business environment in which the defendant operates, and
(g)the sources of the information in the matter published and the integrity of those sources, and
(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, and
(i)any other steps taken to verify the information in the matter published, and
(j)any other circumstances that the court considers relevant.
The defence of statutory qualified privilege is defeated if Mr Burston proves that publication was actuated by malice: s 30(4).
By reason of amendments to s 30 that took place with effect from 1 July 2021, one of the s 30(3) reasonableness considerations no longer listed (although not now excluded because the list is not exhaustive) is “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”, it being common ground that this did not happen in respect of any of the three matters complained of. Ms Hanson points to cases where this has not been effectively required in non-media cases, while Mr Burston seeks to distinguish those cases. Had it been necessary to decide this, I would not have denied the application of statutory qualified privilege upon the basis that Mr Burston’s position was not published and no attempt was made to obtain a response from him, for the following reasons:
(a)In relation to the Facebook post, it would have been counterproductive because I have effectively found that sufficient care was taken not to identify Mr Burston, such that any such steps would either have been meaningless beyond a general denial, or would have risked identification.
(b)In relation to the Today Show interview, while the program was pre-recorded, Ms Hanson was being interviewed about the Al Jazeera documentary and about the Port Arthur massacre, and the topic of Mr Burston was raised by Ms Hanson when asked by Ms Knight about continuing to stand by Mr Ashby, giving no practical opportunity to raise the allegations she was making with Mr Burston. The existence of otherwise statutory qualified privilege for the Today Show interview more acutely turns upon the proper basis for making those allegations.
(c)In relation to the Text to Mrs Burston sent by Ms Hanson, the core allegation was not published to anyone other than the recipient. It is not realistic to expect that Ms Hanson would check with Mr Burston before sending that text message, remembering that the vice stood not in denying Mr Burston’s allegation that Ms Hanson had sexually harassed him, but in going gratuitously beyond that.
The basis for asserting statutory qualified privilege for all three publications
For all three publications, Ms Hanson’s claim of statutory qualified privilege is that, as an elected representative, she was provided with cogent allegations from taxpayer funded current and former staff members of Mr Burston about his discreditable treatment of them. In those circumstances, she asserts that she was entitled to respond in the way that she did.
Two related evidentiary problems emerge in relation to that identified basis for seeking to invoke the privilege:
(a)Ms Hanson did not give any evidence as to what precisely she was told; and
(b)Mr Ashby only gave a fairly general and vague account of what he told Ms Hanson.
In those circumstances, it is not productive to determine whether or not statutory qualified privilege was made out except in relation to publications for which the pleaded imputations have been found to be conveyed, and the justification of truth has not been made out. That is because the actual information that Ms Hanson had conveyed to her must have been some indeterminate subset of what was proven to have taken place in relation to Mr Burston’s staff, subject to errors or inaccuracies.
It is, however, worth noting, falling short of a final determination on an alternative basis, that had truth not been made out for the allegations of harassment and sexual harassment which form part of all three publications, for reasons such as either of Ms Leach or Ms Vairy not being as good a witness as each turned out to be, this aspect of what was published in the Facebook post, this aspect of the Today Show interview, this part of the Text to Mrs Burston, and the corresponding imputations found to be conveyed by those publications, fell within the broad scope of the evidence that Mr Ashby gave as to what he was told by each of them and said he had, in general terms, conveyed to Ms Hanson. It also aligned with the evidence that Ms Leach and Ms Vairy each gave, viewed at a level of similar generality. It follows that this aspect of all three publications would most likely have attracted statutory qualified privilege had substantial truth not been proven, subject to the question of defeasance by malice.
Confining determinative consideration to the imputations from the Today Show interview found to have been conveyed and not found to be substantially true, namely the 4th imputation that Mr Burston sexually abused a female staffer in his parliamentary office, and the 6th imputation that Mr Burston, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation, I do not uphold the claim of statutory qualified privilege. That is because there is no evidence that satisfies me that Ms Hanson had any proper basis for believing that either imputation was true and did not take any reasonable precautions before making such serious allegations of a highly defamatory nature.
In particular, nothing in the evidence of what Mr Ashby said he told Ms Hanson, nor anything else that was in evidence, rose to the level of proving that anything amounting to sexual abuse had taken place. Also, Mr Ashby did not give any clear or satisfactory evidence about what he told Ms Hanson about the altercation. I am not willing to infer that Mr Ashby told Ms Hanson any more than he deposed to, not least because he was an unsatisfactory witness in relation to the altercation and his contemporaneous diary note, for which there was no evidence that he showed it to Ms Hanson, was objectively false in parts (even if not deliberately so) or at least inaccurate and unreliable. The information that Ms Hanson volunteered in the Today Show interview, going comfortably beyond the question being asked about her stance towards Mr Ashby, was a deflection and was in any event clearly enough actuated by malice as outlined above and addressed in more detail below.
The question of whether any of the remaining imputations would have attracted statutory qualified privilege had this point been reached can be briefly addressed as follows.
As to the 1st imputation that Mr Burston sexually harassed staff in his office, found to have been conveyed, but not about him, but found to be true had it been so conveyed, I would in any event have found that statutory qualified privilege was made out by reason of there being a reasonable basis in all the circumstances for publishing the allegations because of substantial complaints to that effect. I am satisfied that Ms Hanson was told about those allegations by Mr Ashby in sufficient detail to be satisfied it was reasonably likely they would have substance to them and that there was a legitimate public interest in that being raised in public, especially in the climate at the time of concerns about sexual misconduct by some politicians. I am not satisfied, on the balance of probabilities, that the making of those allegations was actuated by malice. Neither would I have been satisfied that they were not so actuated had the onus fallen upon Ms Hanson to exclude that, because Ms Hanson did not give evidence as to her motivations and the true position was left unclear, and thus would have fallen to be determined by the onus, for which Mr Burston would have failed.
I would have reached the same conclusion about the 5th imputation that Mr Burston harassed a female staffer in his parliamentary office; and about the 7th imputation that Mr Burston sexually harassed numerous female staff, had either imputation not been shown to be true.
As to the 2nd imputation, that Mr Burston, an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment, which was found to have been conveyed, but not about him, and found not to be true had it been so conveyed because of the precise way in which the allegations were framed in the Facebook post, which did not accurately record what had happened, I would in any event have found that statutory qualified privilege was made out by reason of there being a reasonable basis in all the circumstances for publishing the allegations because of substantial complaints to that effect. That is so even though there was a live contest as to what had in fact taken place as to at least some of those events. I am again satisfied that Ms Hanson was told about those allegations by Mr Ashby in sufficient detail to be satisfied there was substance to them and that there was a legitimate public interest in that being raised in public, especially given a legitimate concern that politicians comply with the law in relation to employment and the termination of such employment. Again, I would not have been satisfied that privilege had been displaced by those allegations having been actuated by malice, but again only because the onus lay on Mr Burston to establish this in defeasance of statutory qualified privilege.
The 3rd imputation that Mr Burston, an Australian Senator, brought the Senate into disrepute by his shocking behaviour towards his staff was not shown to be conveyed either about Mr Burston or at all. In the circumstances it is too theoretical to attempt to consider what the situation would have been as to statutory qualified privilege had a different conclusion been reached, but I tend to the view that the outcome would likely have been the same as for the 1st imputation and the 2nd imputation because this imputation was essentially derivative of either or both of those two imputations, namely that statutory qualified privilege would have been made out and not defeated by malice.
Finally, as to the 8th imputation that Mr Burston behaved disgracefully by cheating on his wife with one of his female staffers, which was found not to have been conveyed, on the evidence, had it been conveyed, Ms Hanson would not have been able to prove that this was substantially true. However, the question of statutory qualified privilege would have been difficult to determine, but if it had, would not have succeeded because of the obvious actuating malice in sending the text message to Mrs Burston. Ms Hanson did not give evidence as to why she did this. In the absence of such evidence it would not have been difficult to infer malice from the way in which the text message was written.
WERE THE CIRCUMSTANCES OF PUBLICATION OF EITHER OF THE FIRST OR SECOND MATTERS COMPLAINED OF SUCH THAT MR BURSTON WAS UNLIKELY TO SUSTAIN ANY HARM?
Principles
The defence of unlikelihood of harm, otherwise known as the defence of triviality, under s 33 of the Defamation Act as it appeared prior to the 1 July 2021 amendments, provided as follows:
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.
The test is not whether Mr Burston did in fact suffer reputational harm, but rather it is the prospective likelihood of the publication causing harm in the circumstances of the publication itself at the time it occurred: see Sarina v O'Shannassy [2021] FCA 1649 at [81]; Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 at 799E. In Barrow v Bolt [2015] VSCA 107 at [35] the Victorian Court of Appeal described the “circumstances” at the time of publishing to include but not limited to:
(a)the content of publication;
(b)the extent of publication; and
(c)the nature of the recipients and their relationship with the applicant.
This issue does not arise in relation to the Facebook post given the conclusions already reached and is not raised in relation to the text message. In relation to the Today Show interview, I do not need to spend much time on this issue as confined to the false 4th imputation that Mr Burston sexually abused a female staffer in his parliamentary office, and the false 6th imputation that Mr Burston, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation. I am not satisfied that Ms Hanson has demonstrated that these considerably more serious and manifestly false and unjustified imputations were, in all the circumstances, such that they were unlikely to result in any harm to Mr Burston. I am positively satisfied that they were likely to be harmful and should result in a reasonably substantial award of damages.
IN DEFEASANCE OF QUALIFIED PRIVILEGE, WAS THE PUBLICATION OF ANY OF THE THREE MATTERS COMPLAINED OF ACTUATED BY MALICE
Principles
As already noted above, a publisher must prove that a duty of the kind that is required existed so as to rebut the presumption of malice that otherwise arises from making a false and defamatory statement, leaving malice for the person defamed to establish: Cush at [13]-[14]. Thus, the privilege gives no licence to defame, and even if the occasion is privileged there remains a question as to whether the publisher has fairly and properly exercised it or instead it has been shown to be actuated by malice. Once the publisher has established the existence of the privilege as a matter of law, the person defamed must show that the act was not in fact done to advance the protected purpose: Bashford at [22].
In Cush, a malice case, a member of a board of a statutory authority heard a rumour from employees that another member of the board and the general manager were having an affair, and told the chairman of the board it was common knowledge that this was taking place. The two individuals concerned sued for defamation. The board member successfully invoked qualified privilege. The pleaded imputation was the fact of an affair, not merely a rumour of it taking place, with it being common ground that an occasion of qualified privilege arose from communicating the existence of the rumour of the affair. Four justices of the High Court found there was no relevant distinction between an allegation of common knowledge and a rumour, while the other three found that the statement conveyed the fact of an affair. Six justices found that the necessary reciprocity of duty and interest existed to make it an occasion of qualified privilege, and that any error or inaccuracy in what was conveyed did not render what was said irrelevant to the privileged occasion.
Malice is cast by Mr Burston as being the predominant motive by Ms Hanson to hurt, embarrass and humiliate him in respect of all three publications because of what she perceived to be political damage he had caused to her, and additionally in the case of the second matter complained of (the Today Show interview), to otherwise divert or deflect public attention and criticism from her own and Mr Ashby’s behaviour. Ms Hanson disagrees with Mr Burston’s submission that she was acting by reason of revenge and argues that she lacked the requisite improper motive for publication. She relies on the apparent lack of evidence of any significant issues between the two after they had agreed to avoid each other in about late 2018. I will discuss this further below.
Malice, while directed to the whole of each matter complained of, strictly speaking only needs to be addressed in respect of the imputations and thus publications which have crossed the threshold of otherwise being defamatory by reason of the imputations being conveyed, not being proved to be substantially true, and, but for malice applying, being protected by qualified privilege of some kind. That is not a situation that has been arrived at for any of the publications. However, for completeness, the question of malice should be addressed in relation to each publication.
Ms Hanson’s argument as to an absence of malice is:
(a)Mr Burston bears the onus of proving that the improper motive of malice was her dominant motive;
(b)Mr Burston’s submission that she was acting by reason of revenge for what happened in mid-2018 must be rejected because of the absence of any significant issue between them after they agreed to avoid one another in about October or November 2018, relying upon Mr Burston’s evidence in that regard;
(c)in relation to the Facebook post, had she been malicious, she would have named him in Parliament in her speech to the Senate on 12 February 2019, immediately preceding all three publications, indicating that she was more interested in raising the issue than obtaining some advantage, reinforced by her refusal to name him when pressed in a Channel 7 interview on the night of 13 February 2019;
(d)in relation to the Today Show interview:
(i)there is no evidence that Ms Hanson was acting maliciously in saying what she did, with nothing of significance to this issue having occurred between Ms Hanson and Mr Burston since 14 February 2019, repeating the submission that she did not raise the altercation but rather Ms Knight did so; and
(ii)it was “plain” from the interview itself that Ms Hanson’s intention in giving her version of events was to defend Mr Ashby and diffuse the allegations being put to her by Ms Knight, rather than hurting or injuring Mr Burston;
(e)in relation to the text message, there was a complete absence of evidence from which it can be inferred to the high standard required that Ms Hanson was actuated by a malicious purpose, and the most probable explanation for Ms Hanson’s conduct as evidenced from the opening of the text message is that Ms Hanson was seeking to vindicate herself in the eyes of the woman with whom she had been friends for twenty years against baseless allegations of long-term sexual harassment of her husband.
I accept malice has not been established for the Facebook post, mostly because it did not name Mr Burston, but also because I accept that raising the issues of sexual harassment and improper dealing with staff was a matter of legitimate concern, making an inference of malice difficult to draw and falling short of any reasonable inference.
I find that had it been needed, an inference of malice would likely have been drawn in relation to the allegations of sexual abuse, but not in relation to the allegation of physical assault without provocation. Ms Hanson chose not to give evidence, making the inference of malice available easier and safer to draw in relation to the allegation of sexual abuse. While a significant part of what Ms Hanson was doing was deflecting from the guns rights issue that was the primary purpose of the interview, there was no apparent reason for Ms Hanson to allege something as serious as sexual abuse. She made no attempt beyond untenable semantics for saying such a thing, which I readily infer she most likely knew she had no basis for saying, and also most likely knew was not true.
The false representation that Mr Ashby had reported an allegation of sexual abuse to the President of the Senate, which he had not gone so far as to do, was a momentous step to take in relation to an Australian Senator. It should be noted that not only was this the most serious of the imputations conveyed, but also that it was conveyed on a long-standing program of considerable repute, broadcast on national free-to-air television. It was also pre-recorded, giving her an opportunity to seek to have that portion excised before it was broadcast, there being no suggestion that she took that step. It was clearly intended by Ms Hanson to inflict harm and humiliation on Mr Burston, and to damage his reputation in a most serious way. I have no reason to doubt that intention was realised and it was, in all the circumstances, a malicious thing to say, but ordinarily presumed, and also inferred if needed in defeasance of qualified privilege (both common law and statutory).
The same cannot be said about the allegation of physical assault without provocation. While, objectively that was simply not true, and while I have my doubts about Ms Hanson believing it was true, I cannot exclude the reasonable possibility that, however untenable, she considered that Mr Ashby’s conduct did not amount to provocation. In those circumstances, had qualified privilege been found to exist in relation to that allegation, it would not have been defeated by malice.
Consideration of the text message produces a divided result. That message was not actuated by malice insofar as it met and denied the allegation that Ms Hanson had sexually harassed Mr Burston. Nor was it actuated by malice insofar as it made allegations of sexual harassment against staff, being the 7th imputation, in any event found to be substantially true. However, consideration of the 8th imputation (cheating), had it been found to be conveyed, would likely have been found to be actuated by malice. The text message went well beyond vindication in the eyes of Mrs Burston to meet the allegation that she had sexually harassed Mr Burston that, as well as being a nasty and gratuitous addition, clearly enough intended to hurt Mr Burston via his wife.
DAMAGES AND MITIGATION
The questions of damages and mitigation only arise to the extent of Mr Burston’s success on the 4th imputation of sexual abuse and the 6th imputation of physical assault without provocation, both conveyed in the Today Show interview. It is neither necessary or appropriate to consider either of these issues upon the alternative basis of a different outcome on liability, although taken on their own it is difficult to see how any substantial harm to reputation beyond what was justified could have been occasioned by the Facebook post and it is difficult to see how any harm to reputation could have been occasioned by the text message sent only to Mrs Burston. Thus, the question is what, if any, general or aggravated damages is Mr Burston entitled to, taking into account the question of whether any of the matters pleaded in support of the defences mitigate any such damages, in relation to the 4th imputation and 6th imputation.
The first thing to note is that there is nothing in the evidence that mitigates the damage to reputation by such serious imputations as sexual abuse and physical assault without provocation. Both are in a different category to sexual harassment or treating staff improperly in respect of the termination of their employment. While Ms Hanson seeks mitigation by reason of assertions that Mr Burston lied on oath, I consider that any objective falsity in his evidence was largely confined to his denials of having engaged in sexual harassment. I was unable to safely conclude that he, any more than Mr Ashby, deliberately lied on oath, although I consider that each in their different ways was not always doing their best to tell the truth, the whole truth and nothing but the truth, Mr Burston in relation to sexual harassment and Mr Ashby in relation to the altercation between them.
Ms Hanson suggests that the Today Show interview caused no demonstrable harm to reputation because both the sexual harassment allegation and the allegation of assaulting Mr Ashby without provocation had already been aired more than a month earlier. That submission does not even attempt to address the true sting of these two imputations, which went well beyond either sexual harassment or assault without provocation.
Ms Hanson also submits that any damages for hurt feelings must be minimal in light of the words giving rise to the imputations being “merely a less serious repetition of what had been said so many times before”, not attempting to identify any prior occasion upon which Mr Burston had been accused of anything as serious as sexual abuse or physical assault without provocation.
Ms Hanson repeats the suggestion that Ms Knight was highly sceptical of what Ms Hanson said and expressed that to the audience. That is only true in relation to the claims made about Mr Ashby and Mr Dickson not soliciting donations from whom they thought was a representative of the NRA in return for softening Australia’ gun laws, given the clear enough indication that this is precisely what they were doing. There was no such scepticism about the allegations of sexual abuse or physical assault without provocation, with Ms Knight trying repeatedly to bring Ms Hanson back to the question that was being posed about continuing to support Mr Ashby despite him having been banned from Parliament.
On the question of loss of business damages arising out of the publications, I am not satisfied that this has been separately established. While I accept that Mr Burston has not been able to regain paid work, I am unable either to attribute this to the 4th imputation or the 6th imputation, nor to isolate it from the sexual harassment allegations that I have found were true.
I am similarly not able to find any sufficient basis for aggravation of damages so as to take the award above the maximum otherwise available. While I think it likely that Ms Hanson knew that the allegation of sexual abuse was not true, I have fallen short of a positive finding that she had that state of mind. I have overtly declined to find that she knew that the allegation of physical assault without provocation was untrue, partly because I am unable to find that she had the sympathy, empathy or understanding as to how provocative it was to Mr Burston to film Mrs Burston close up and without permission while asking offensive questions.
I take into account in fixing the damages that I have arrived at, that Mr Burston was, in many respects in relation to sexual harassment, an unsatisfactory witness whose key testimony on that topic has been largely rejected. However, that offers little mitigation for much more serious conduct that was falsely alleged against him.
I find that both the 4th imputation and the 6th imputation were seriously damaging to Mr Burston’s reputation, being broadcast on a nationally broadcast television program watched by over 290,000 people at that time. They were both false. Both imputations were in the same program. I consider that a substantial award of damages is necessary to telegraph to the public that both of those imputations were false and without justification. I therefore award Mr Burston damages in the sum of $250,000.
COSTS
The starting point should be that Ms Hanson pay Mr Burston’s costs. However, I will refrain from making any costs order without first hearing from the parties.
I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 19 October 2022
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