CDL v Seven West Media [No 2] - [2025] WASC 471

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CDL -v- SEVEN WEST MEDIA [No 2] [2025] WASC 471
CORAM:   SOLOMON J
HEARD:   22 - 23 OCTOBER 2025
DELIVERED          :   23 OCTOBER 2025
PUBLISHED           :   6 NOVEMBER 2025
FILE NO/S:   CIV 1055 of 2023
BETWEEN:   CDL
Plaintiff
AND
SEVEN WEST MEDIA
First Defendant
WEST AUSTRALIAN NEWSPAPERS
Second Defendant

Catchwords:

Defamation - Where newspaper published report on result of appeal against sentence for child sexual abuse - Whether use of term 'paedophile' defamatory in relation to person convicted for child sexual abuse - Whether newspaper article gave rise to certain imputations arising from use of the words 'lollipop man', 'child pornography' and 'sexual abuse' - Use made of prior criminal conviction in defamation proceedings - Defences of justification, contextual truth, substantial truth and fair reporting of proceedings of public concern - Whether Seven West Media was a publisher of the article

Legislation:

Defamation Act 2005 (WA)

Result:

Plaintiff's action dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	Ms R Young SC & Mr P C McCarthy
Second Defendant	:	Ms R Young SC & Mr P C McCarthy

Solicitors:

Plaintiff	:	In Person
First Defendant	:	Steedman Stagg Lawyers
Second Defendant	:	Steedman Stagg Lawyers

Cases referred to in decision:

CDL v Seven West Media [2025] WASC 53
CDL v The State of Western Australia [2022] WASCA 145
CDL v The State of Western Australia [2022] WASCA 18
Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2017] NSWSC 657
Lazos v West Australian Newspapers Ltd [No 2] [2024] WASC 238
Mickelberg v The Director of Perth Mint [1986] WAR 365
Mundine v Brown [2010] NSWSC 468
Wright v de Kauwe [2024] WASCA 51

SOLOMON J:

(This judgment was delivered extemporaneously on 23 October 2025 and has been edited from the transcript).

Introduction

This matter is an action in defamation commenced by writ of summons filed on 20 January 2023 against Seven West Media and West Australian Newspapers by the plaintiff. There are suppression orders in respect of the identity of the people involved in the subject matter of the proceedings, and I shall therefore refer to the plaintiff as the plaintiff rather than by name, and names of others will be anonymised. The plaintiff claims damages for defamation in respect of an article published on page 44 of The West Australian newspaper on 5 March 2022 (Article).
The Article bore the headline 'Child abuser loses sentence appeal'. It was accompanied by a photograph of the plaintiff, and it contained the following content:[1]
A paedophile lollipop man, who was jailed for more than a decade for his sexual abuse of several young girls, has had his appeal against that jail term thrown out by WA's highest court. The plaintiff, whose picture is on the right, filmed the abuse, some of which went on for years, but he refused to accept the verdict of a jury which, in 2019, found him guilty of eight charges of persistent sexual abuse of a child and producing child pornography. He was also found to have hoarded more than 26,000 independent videos and photographs depicting children as young as one. The plaintiff was a traffic warden at a Western Suburbs primary school for 14 years before his arrest. After his detention, he continued to claim nothing sexual was shown in any of the videos. In an appeal, which he ran himself, the plaintiff said that the judge accepted hearsay evidence, used opinion evidence that was not factual and ignored professional opinion. The Supreme Court dismissed the appeal and said 'the appellant poses a risk of further offending'.
[1] Clarke T, 'Child abuser loses sentence appeal', The West Australian (5 March 2022), 44. This article has been reproduced with amendment to anonymise the plaintiff.

Background

I turn to the uncontroversial background to the matter, which is set out in both of the Court of Appeal decisions concerning this matter: CDL v The State of Western Australia [2022] WASCA 18 (Sentence Appeal) [8] - [26] and CDL v The State of Western Australia [2022] WASCA 145 (Conviction Appeal) [25] - [38]. I refer particularly to the Sentence Appeal decision from [8].
The plaintiff was born in 1958. At all relevant times, he was employed as a traffic warden at a primary school in a suburb of Perth, assisting people outside the school to cross the road.
In about 1993, the plaintiff married Ms F, and in 1997, the plaintiff and Ms F had a son, K. The plaintiff and Ms F separated in 1999 and were subsequently divorced. Ms F then remarried in July 2005.
With her second husband, Ms F gave birth to triplets E, C and Z. Some years later, in about 2013, in the course of his association with the primary school, the plaintiff met Ms XH. Ms XH had two daughters, M, born in 2001, and B, born in April 2012. The plaintiff maintained contact with his former wife, Ms F. By reason of the ongoing relationship that the plaintiff had with Ms F and her family, and Ms XH and her family, the plaintiff had considerable interaction with, and assisted with the care of, Ms F's triplets, E, C, and Z, and Ms XH's daughters, M and B.
In April 2016, the plaintiff was arrested and charged with a number of offences. Ultimately, nine charges were preferred against the plaintiff. The plaintiff stood trial in the District Court for those nine charges between 8 and 16 April 2019.
The offending in respect of count 1 related to conduct between October 2011 and April 2013, and related to the plaintiff persistently engaging in sexual conduct with E, one of the triplets born in 2005.
The offending in respect of count 2 was also said to have occurred between October 2011 and April 2013. The victim was another of the triplets, C. The charge was also one of persistently engaging in sexual conduct with a child under the age of 16.
The third charge, count 3, was also a charge of persistently engaging in sexual conduct against a child under the age of 16. That offending took place between April 2013 and April 2016. The victim in respect of that offending was B, the second daughter of Ms XH, who was born in 2012.
The fourth, fifth and sixth charges, that is, counts 4, 5 and 6, related to video footage taken by the plaintiff, recording the offences in counts 1, 2 and 3. Having filmed the sexual conduct, those videos amounted to child exploitation material.
The seventh charge, count 7, was a further charge of production of child exploitation material in relation to the child, Z, who was the third of the triplets born to Ms F. That charge related to conduct said to have occurred between 8 December 2011 and 7 December 2012. I shall put that count to one side because ultimately the plaintiff was acquitted of that charge.
The eighth charge, count 8, related to the production of child exploitation material between 2 December 2012 and 13 December 2013. That related to Ms XH's older daughter, M, who was aged between 11 or 12 at the time of the offending.
The ninth charge, count 9, was in relation to the offence of possession of child exploitation material. The transcript of the District Court trial, which was in evidence in this hearing, established that it was an agreed fact at the District Court trial that charge 9 related to in excess of 26,000 images and videos.
The large majority of these materials were category 1 images, that is, images of the least offensive type of child exploitation material. However, there were items across all five categories, including a significant number in categories 4 and 5, which are the most serious forms of child exploitation material.[2] The details of the indecent dealings are set out to some extent in the Sentence Appeal decision, particularly at [15] in relation to E, [20] in relation to C and [23] in relation to B.
[2] Exhibit A.13, 209 - 210.
The more detailed evidence in relation to the child exploitation material the subject of count 9 is set out at [26] of the Sentence Appeal decision. It is not necessary to repeat the details set out plainly in the Court of Appeal decisions. It suffices to say that the conduct was extremely serious. The plaintiff pleaded not guilty (except to count 9, for which a guilty plea had been entered). The plaintiff gave evidence at his trial. On 16 April 2019, the jury returned verdicts of guilty to all charges other than an acquittal in respect of count 7.
There was media coverage of the charges, including of the convictions. That media coverage named the plaintiff. It should be observed that the media coverage of the charges and convictions is not the subject of this defamation proceeding.
In January 2025, I delivered a decision in relation to the admissibility of proposed evidence in these proceedings: CDL v Seven West Media [2025] WASC 53 (Admissibility Decision). In that decision, I also dealt with the significance to these proceedings of the criminal convictions, and the findings made by the sentencing judge. The sentencing took place on 2 August 2019. The plaintiff was sentenced to a total effective sentence of 12 years and six months' imprisonment.
As I pointed out in the Admissibility Decision, it is to be appreciated that the defence - or at least a significant part of the defence - advanced by the plaintiff in the criminal proceedings was the contention that his conduct in respect of the victims was not sexually motivated but was undertaken in order to administer medical assistance or hygienic processes to the children. The transcript of the District Court trial, as I observed in the earlier decision, makes plain that the issue of whether the plaintiff's conduct was sexual or for medical or hygienic purposes was the very issue left to the jury. The jury rejected the plaintiff's version of events, and findings were made by the trial judge on sentencing that the plaintiff's conduct was sexually motivated.
The plaintiff appealed both his conviction and his sentence. The sentence appeal was heard first on 15 October 2021, and the conviction appeal was heard on 29 November 2021. Similarly, the Court of Appeal's decision in respect of the appeal against sentence was delivered first on 18 February 2022. That is the Sentence Appeal decision. The decision of the Court of Appeal in respect of the conviction was delivered on 4 November 2022 and that is the Conviction Appeal decision.
Both appeals failed. Indeed, both appeals failed at the first hurdle of the application to extend time. The article in The West Australian, the subject of the plaintiff's action in this proceeding, which appeared on 5 March 2022, followed the publication of the Court of Appeal's 18 February 2022 decision in respect of sentencing.

The plaintiff's claim

I turn then to the content of the article the subject of the plaintiff's claim. The plaintiff pleads various imputations said to arise from the Article, which the plaintiff contends are defamatory.
The principles applicable to determining whether pleaded imputations are established are well settled. They are set out in a number of cases, including recently and very usefully in the decision of Lazos v West Australian Newspapers Ltd [No 2] [2024] WASC 238 at [40] - [42]. The overriding consideration is to determine what the words would convey to an ordinary person who is not given to strained or scandalous interpretations.[3] The court looks to the natural and ordinary meaning that the words would convey to the reasonable and hypothetical person. The court looks at the publication as a whole, rather than isolated analysis of words or phrases.
[3] Lazos v West Australian Newspapers Ltd [No 2] [40](e).
I have again set out the content of the Article below, this time with those aspects of the Article which are the subject of the plaintiff's claim emphasised in bold and underlined text:
A paedophile lollipop man, who was jailed for more than a decade for his sexual abuse of several young girls, has had his appeal against that jail term thrown out by WA's highest court. The plaintiff, whose picture is on the right, filmed the abuse, some of which went on for years, but he refused to accept the verdict of a jury which, in 2019, found him guilty of eight charges of persistent sexual abuse of a child and producing child pornography. He was also found to have hoarded more than 26,000 independent videos and photographs depicting children as young as one. The plaintiff was a traffic warden at a Western Suburbs primary school for 14 years before his arrest. After his detention, he continued to claim nothing sexual was shown in any of the videos. In an appeal, which he ran himself, the plaintiff said that the judge accepted hearsay evidence, used opinion evidence that was not factual and ignored professional opinion. The Supreme Court dismissed the appeal and said "the appellant poses a risk of further offending".
(Emphases added)
The defendants' opening submissions usefully set out a table[4] which provided a detailed summary of each imputation which the plaintiff contended arose from the differing parts of the Article, the precise part of the Article relied upon for that imputation, and the defendants' position in respect of each of the alleged imputations.[5] In addition, the plaintiff supplemented those imputations with some further complaints in his evidence and oral submissions.
[4] The defendants' table is annexed to this judgment at Annexure A.
[5] Defendants' Opening Submissions (1 October 2025), 10 - 12.

The evidence at trial

Before I turn to the imputations, I will outline the evidence given at trial. The plaintiff called Ms F. The object of Ms F's evidence that the court permitted to be led by the plaintiff related to any evidence Ms F might be able to give in respect of the damage to the plaintiff's reputation. In the event, Ms F was unable to give any such evidence.
The plaintiff also called his own biological son whom he had with Ms F, that is, K. The object of calling K was similarly to lead evidence in respect of any damage to the plaintiff's reputation. Again, K was unable to give any evidence that could assist the court.
The plaintiff also called Mr Timothy Clarke. Mr Clarke was a journalist with The West Australian, who was the author of the Article. Mr Clarke gave his evidence in a straightforward manner. His evidence was directed to a number of issues, but most relevantly for these proceedings, Mr Clarke explained the manner in which the Article was written.
In particular, Mr Clarke explained that he alone wrote the Article, and although the content of the headline was a matter for sub‑editors, the content itself was his alone. Mr Clarke also gave evidence in relation to his own employment. He explained that he was employed only by West Australian Newspapers and not by Seven West Media. Mr Clarke also gave evidence relating to the processes and procedures of publishing an article written by a journalist within The West Australian and the two forms of publication in print and online. Mr Clarke's evidence was candid and straightforward, and I accept his evidence.
The plaintiff also called Mr Andrew Sturcke. Mr Sturcke was a person known to the plaintiff before he began his term of imprisonment. It emerged from Mr Sturcke's evidence that on one occasion he visited the plaintiff in prison. However, following that, it appears Mr Sturcke declined to have any further contact with the plaintiff. The object of seeking evidence from Mr Sturcke, again was in respect of evidence he may be able to give about the impact of the Article on the plaintiff's reputation.
Mr Sturcke was asked about his understanding or observation of the impact of the Article on the plaintiff's reputation. Mr Sturcke's evidence was that he did not consider that the Article had any impact on the plaintiff's reputation. In short, he considered that the plaintiff's reputation was already impaired, and he was not aware of it having been any further impaired by the publication of the Article the subject of the proceedings.
The plaintiff then gave evidence himself. I observe that the object and content of the plaintiff's evidence and submissions appeared in large measure to be directed to wishing to persuade the court that the conduct the subject of his convictions was undertaken out of concern for health and hygiene, and was not sexual.
As I explained in the Admissibility Decision,[6] on the basis of the authorities in this court, I consider that the findings of the District Court, including the findings of the sentencing judge which were upheld by the Court of Appeal, establish those matters for the purposes of these proceedings and generally. I proceed therefore on the basis that for the purposes of these defamation proceedings, the convictions and the findings in respect of those convictions, are incontrovertible.
[6] Admissibility Decision [46] - [54].

Imputations

I turn then to the imputations arising from the Article contended for by the plaintiff, and I shall deal with each one in turn. I do so by reference to the numbering in the defendants' table.[7]
[7] Defendants' Opening Submissions (1 October 2025), 10 - 12.
Turning to the first imputation, the plaintiff contends that by reason of the word 'paedophile', or perhaps the expression 'paedophile lollipop man', the Article conveys the imputation that the plaintiff has a primary or exclusive sexual attraction to prepubescent children. Alternatively, the plaintiff contends that the expression conveys the imputation that the defendants know or are qualified to assess the plaintiff's sexual attraction to children.
In my view, the reasonable reader would simply understand the Article to mean that the plaintiff was a paedophile, that is, an adult who had engaged in sexual activities with a child or children. The Article does not convey any meaning about the plaintiff's primary or exclusive sexual attraction, or any meaning as to the defendants' knowledge or qualifications in respect of the plaintiff's sexual proclivities.
I turn then to the second asserted imputation, and that relates to the phrase 'lollipop man'.
The plaintiff submitted that the use of the word 'lollipop man' conveys the meaning that the plaintiff induced or procured children through the lure of lollies to sexually abuse them. In my view, the phrase 'lollipop man' does not convey the meaning contended for by the plaintiff. Rather, the phrase 'lollipop man' conveys its ordinary meaning, that is, a person who assists children to cross the road, ordinarily outside a school. That meaning is reinforced by the fact that the Article itself describes the plaintiff as a traffic warden.
The notion of a lollipop man comes from the fact that the crossing guards historically held colourful signs in a shape or form similar to that of a lollipop, hence the name lollipop man became a colloquial and popular term. The plaintiff contended that only people of a particular generation are familiar with or use that term, and that currently the term necessarily has a sexual connotation, particularly when combined with the word 'paedophile'. I do not accept that. There was no evidence that the ordinary use of the word 'lollipop man' has ceased, or its understanding has ceased.
I accept there is, no doubt, some level of emphasis in the Article combining the terms 'paedophile' and 'lollipop man'. That is because such a combination is certain to spur acute community concern that a person who has been convicted of child sex offences may have had contact with children as part of their routine employment. I suspect that is the reason that the newspaper used the phrase 'a paedophile lollipop man'. However as a matter of meaning, all it means is that a traffic warden assisting children was convicted of child sex offences.
The alternative meanings which I have found in respect of the first and second alleged imputations were pleaded by the defendant as the alternative and correct meanings to be distilled from the Article.

The third asserted imputation relates to the word 'that' in the first sentence, and in particular, that the plaintiff 'had his appeal against that jail term thrown out' (emphasis added). The plaintiff submitted that the word 'that' conveyed the meaning that the plaintiff had served other jail terms, and was therefore a repeat offender.
I do not agree that that is how the ordinary hypothetical reasonable person would read that sentence. Rather, I agree with the defendant that the Article simply coveys that the plaintiff had received a term of imprisonment for the convictions the subject of the Article. I do not accept that it implies or conveys the existence of any other term of imprisonment.
The fourth imputation pleaded relates to the words in the Article that the plaintiff had 'refused to accept the verdict of a jury'. The plaintiff alleged that those words carried the meaning that the plaintiff had contended that the verdict of the jury was unsafe or unsatisfactory.
In my view, the ordinary reader is unlikely to distil such a rather technical meaning from the words 'he refused to accept the verdict of a jury'. Rather, the ordinary reader would simply understand that to mean that the plaintiff was contesting his conviction, and thereby the jury's finding that he was guilty. The notion of a verdict being unsafe or unsatisfactory is a meaning that is likely only to be distilled by a lawyer, and even a lawyer is unlikely to draw that inference unless they have particular experience with appellate criminal law in some way.
The next imputation alleged relates to the words in the Article:
[H]e refused to accept the verdict of a jury which in 2019 found him guilty of eight charges of persistent sexual abuse of a child and producing child pornography.
(Emphasis added)
The imputation said to arise from those words is that the defendants' publication was true and accurate in that the plaintiff's conviction was that he was guilty of eight charges of persistent sexual abuse of a child. The conviction, however, did not relate to eight charges of persistent sexual abuse of a child, since one of the eight charges in respect of which the plaintiff was found guilty related to possession of child exploitation material and four of the charges related to producing child exploitation material.
Dealing with that imputation, I do not accept that that meaning is conveyed by the Article, because the Article says clearly ' … eight charges of persistent sexual abuse of a child and producing child pornography' (emphasis added). However, by his evidence and submissions, it appears that the matter that was the subject of the plaintiff's real complaint was the use of the words 'persistent sexual abuse of a child' and the use of the term 'child pornography'. The plaintiff's contention was that this conveyed the meaning that he was guilty of charges relating to persistent sexual abuse.
The plaintiff's complaint was that he was found engaging in sexual conduct with a child. The plaintiff complained that the term 'sexual abuse of a child' is far more serious and damaging than engaging in sexual conduct with a child. To the extent that the plaintiff asserts an imputation that the Article conveyed a meaning that he had engaged in persistent sexual abuse of a child, that meaning is conveyed plainly, because that is what the words say.
The next imputation, being the sixth, asserted by the plaintiff relates to the words 'producing child pornography'. The plaintiff asserts that the meaning conveyed by those words is that the Article is a true and accurate account of the plaintiff's conviction in that the videos show a child in a sexual context. In my view, that is a somewhat technical and strained meaning of the words. Rather, in my view, the words convey the meaning that they plainly bear, that is, that the plaintiff was found guilty of charges relating to producing child pornography. The plaintiff also appeared to advance an argument that the term 'child pornography' conveyed a more serious and damaging meaning than the term 'child exploitation material'. That was not included in the imputations in the Statement of Claim, but I shall, in any event, return to that when I am dealing with the defences.
The seventh imputation was that the words '[t]he Supreme Court dismissed the appeal and said the "appellant poses a risk of further offending"', conveyed a meaning that the Court of Appeal formed an autonomous and independent view that the plaintiff was a risk to the community or deferred to the trial judge. The defendants denied that that imputation was conveyed and pleaded that the Article conveyed that the Court of Appeal considered the plaintiff posed a risk of reoffending.
I am not persuaded that there is a substantive difference between the plaintiff's imputation and the defendants' imputation. In any event, on balance, I think the Article does convey an imputation that the Court of Appeal had its own view, that is, an autonomous and independent view based on the materials that it examined that the plaintiff was a risk to the community. In substance I consider that that imputation was conveyed.
The eighth imputation is that the Article is an accurate and fair report of the Court of Appeal's finding. That imputation is accepted by the defendants.

Defences

Section 25 of the Defamation Act 2005 (WA) (Defamation Act) sets out the defence of justification as follows:
25. Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
The defendants rely substantially on the defence of justification in respect of the fourth, fifth, sixth, seventh and eighth imputations.
I need not deal with the first, second and third imputations because I have found that the meanings contended for by the plaintiff were not conveyed by the Article. That is, I do not consider that the Article conveyed that the plaintiff had a primary or exclusive sexual attraction to prepubescent children or that the defendants either knew or were qualified to make that assessment, nor do I accept that the term 'lollipop man' conveyed the meaning that the plaintiff induced or procured children through the lure of lollies to sexually abuse them. Nor do I accept that the Article conveyed by the use of the word 'that' that the plaintiff is or had served other jail terms and is therefore a repeat offender.
However, the alternative imputation pleaded by the defendants was that the Article conveyed that the plaintiff was a paedophile, being an adult who had engaged in sexual activities with a child. That imputation is plainly defamatory, but it is plainly true.
As I have explained, the convictions are conclusive evidence of the subject of those convictions, including the findings in relation to the nature of the plaintiff's behaviour towards the children. The authority for that, as I discussed in the Admissibility Decision, is Mickelberg v The Director of Perth Mint [1986] WAR 365. The detail provided both in the sentencing remarks and in the Court of Appeal's decisions establish plainly that describing the plaintiff as a paedophile is substantially or indeed entirely true. Therefore, in respect of that alternative pleaded imputation, the defence of justification is made out.
In respect of the second imputation, the defendants plead that the alternative imputation is that the plaintiff was a school traffic warden or a person who assisted children crossing the road. That imputation of itself, in my view, is not defamatory to begin with. But in any event, it is substantially true as the facts demonstrate that the plaintiff was for a period of some 14 years a traffic warden assisting children crossing the road.
I turn then to the third imputation. As I have noted, I do not accept the plaintiff's imputation. The alternative imputation pleaded by the defendants was that the Article conveyed that the plaintiff had received a jail term for the convictions the subject of the Article. That imputation is both on its face defamatory, but also plainly true. Therefore, the justification defence is made out in respect of the third imputation.
The plaintiff's fourth imputation, which I do not accept, was that the words 'refused to accept the verdict of a jury' imputed that the plaintiff had alleged the jury's verdict was unsafe or unsatisfactory. The Conviction Appeal decision at [114](c) records that the plaintiff did assert or appear to assert that the verdicts of guilty were, having regard to the evidence, unreasonable or unable to be supported.
The alternative imputation pleaded by the defendants, that is, that the Article conveyed that the plaintiff contested the jury's finding that he was guilty is plainly true, and meets the defence of justification set out in s 25 of the Defamation Act.
I turn then to the fifth imputation. Dealing first with the eight charges, I have found that that imputation is not made out because, as I have noted above, the ordinary reader would understand the phrase 'eight charges of persistent sexual abuse' to mean 'eight charges of persistent sexual abuse and producing child pornography' (emphasis added). That is what the Article says, and that is what an ordinary reader would understand it to mean. That plain meaning conveyed by the Article is true, and therefore meets the justification defence because the plaintiff was indeed convicted of eight charges of sexual offences relating to children.
I turn to the plaintiff's complaint that emerged in the course of the trial relating to the use of the word 'abuse', and as I have noted above, the plaintiff contends that the Article is defamatory because it conveys by use of the term 'sexual abuse' a much more serious matter than it would have conveyed by the use of the term 'sexual conduct'.
It is to be recalled that the Article is a report on the Court of Appeal's decision in response to the plaintiff's appeal against his sentence. It is plain from the outset of the Article that the Sentence Appeal decision is the subject of the content. In that regard, it is noteworthy that the notion of abuse, and indeed the term 'abuse', was used in the sentencing remarks which were set out in full by the Court of Appeal in the Sentence Appeal decision. At [32](4) the Court of Appeal notes that the appellant (the plaintiff) repeatedly quoted the trial judge's sentencing remarks as including the finding that '[t]he [plaintiff] repeatedly used the opportunity to look after the children to sexually abuse them'. In addition, at [74] of that decision, the Court of Appeal observed that '[t]he [plaintiff] took advantage of the relationships that he had with their mothers to sexually abuse the victims.'
Therefore, insofar as the Article used the word 'abuse', in my view, that does not in any way impugn the accuracy of the Article or undermine the availability of the justification defence. The use of the term 'abuse' by the Court of Appeal and by the sentencing judge is entirely unsurprising. That is for a reason that ought to be apparent to any decent person. That is because any sexual conduct, contact or activity with a child, is of itself abusive. The plaintiff ultimately appeared to accept that in oral submissions, although he gave evidence that demonstrated a perhaps not surprising but nevertheless worrying lack of insight into that notion. In submissions, the plaintiff did appear to accept that that was so, but then denied that his activity was sexually motivated.
Again, as I have said, the trial judge's findings are incontrovertible and therefore, as I have already explained, I proceed on the basis that the findings of the trial judge are unimpugned. It follows that the conduct was sexual, and as there was sexual conduct and sexual activity with a child, it was of itself necessarily abusive. Therefore, the Article's use of the word 'abuse' was true and the justification defence is made out.
I turn then to the imputation regarding child pornography. As I have noted, I do not accept the imputation pleaded by the plaintiff.
The defendants pleaded an alternative imputation, that the plaintiff was found guilty of charges of producing child pornography. The defendants say that that alternative, that correct imputation, is substantially true. As I have noted, the plaintiff appeared to contend that the use of the term 'pornography' conveyed an imputation that was far more serious than the correct terminology which is 'child exploitation material'.
I do not accept that submission. It does not appear to me that the term 'child pornography' is in some way more serious than 'child exploitation material'. Indeed, it might be said that the term 'child exploitation material' is a better description of what this sort of conduct is. It is exploitative of children. The term reflects the evil in the conduct, perhaps more so than the term 'pornography'. I therefore do not accept the submission that, somehow, the imputation arising from the word 'pornography' is more damaging or more serious.
The defendants accept that there was an inaccuracy in the Article in this respect, in that the Article referred to eight charges of 'persistent sexual abuse of a child and producing child pornography', whereas one of the eight charges of which the plaintiff was convicted was a count of possession of child exploitation material.[8] In my view, that inaccuracy did not undermine the substantial truth of the Article as a whole, and therefore, I find that in respect of that imputation as well, that is, the sixth imputation, the defence of justification is made out.
[8] Defendants' Opening Submissions (1 October 2025) [55].
In that respect, I also refer to the volume and the seriousness of the items the subject of the charge, which included tens of thousands of images and videos. A relatively small percentage, but nevertheless a significant number of those items was material in categories four and five (which are the most serious form of material).
Indeed, in my view, the term 'producing child pornography' used in the Article might nevertheless lend itself to an understanding or a circumstance which is less serious than the reality of the plaintiff's conviction for the possession of over 26,000 items, including a significant number at the most serious end of that scale.
Turning then to the seventh imputation, I accept the plaintiff's imputation that the Court of Appeal formed an autonomous independent view. I also accept that the Article is open to the alternative imputation pleaded by the defendants that the court considered the plaintiff posed a risk of further offending. The reason that I accept both imputations is because I am not persuaded there really is a material difference between them.
In any event, in my view, the imputation is substantially true. The Court of Appeal considered that the plaintiff was at risk of reoffending. Reoffending is a risk to the community, and therefore the Court of Appeal did form its own view that the plaintiff was a risk to the community.
The last imputation is accepted by the defendants.
I turn then to the defence of contextual truth which is contained in s 26 of the Defamation Act, which provides:
26. Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that —
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
That defence arises where the alternative imputations asserted by a defendant did not further harm the reputation of the plaintiff because of the substantial truth of those alternative imputations. That is sometimes put as the contextual imputations or alternative imputations 'swamping' the effect on the plaintiff's reputation. I will put to one side whether the word 'swamping' is an accurate reflection of the statutory defence.
In my view, in any event, the statutory test in s 26(b) of the Defamation Act is met, because to the extent that there are defamatory imputations, they do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations pleaded by the defendants. Therefore, I would uphold the defence under s 26, in respect of the alternative imputations pleaded by the defendants.
I turn then to the further defence of the defendants under s 28 of the Defamation Act, which is the defence of the publication of public documents. That section provides:
28. Defence for publication of public documents
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in —
(a)a public document or a fair copy of a public document; or
(b) a fair summary of, or a fair extract from, a public document.
(2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non‑compliance with a provision of that law about –
(a) the formal requirements for the content or layout of the report or document; or
(b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body,
the report or document is a public document despite that non‑compliance.
(3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.
That defence requires that the defamatory matter be contained in an article. That element is plainly met. The second element is that the matter reported on, that is the Sentencing Appeal decision, is a public document. That element is plainly met. The third element, which is ordinarily the most controversial one, is whether the Article is a fair summary or extract from the public document.
An article would not be fair if it included extraneous material and commentary beyond an accurate reporting of the public document to which it refers. In Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2017] NSWSC 657, from [100], Rothman J explained that in order for the summary to be fair, it does not need to be perfect. Errors may occur. The question is whether, on the whole, it conveys a fair summary.
The defendants accept that there is a minor inaccuracy in the Article because it refers to, as I have already noted, persistent sexual abuse and producing child pornography without reference to the conviction for possession of child pornography (child exploitation material).
In my view, however, that error does not deprive the Article of the character of a fair summary. That is particularly so when regard is had to the severity and seriousness of the child exploitation material, the subject of the conviction.
The defendants also advanced a defence under s 29(2) of the Defamation Act, which is a defence of fair reporting of proceedings of public concern. That section provides:
29. Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
(2) It is a defence to the publication of defamatory matter if the defendant proves that —
(a) the matter was, or was contained in, an earlier published report of proceedings of public concern;
(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and
(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

In my view, and substantially for the reasons I have already given, the defence under s 29 is established.
I note in passing that there is an element of that defence that the defendants had no knowledge that would make it reasonably clear that the Court of Appeal's sentencing decision was not fair. There is no reason to suggest that the Court of Appeal's sentencing decision was not fair. It was never the subject of appeal, and no evidence or submission has been advanced to indicate that it was not fair.
For completeness, Mr Clarke was asked in cross-examination whether he was aware of anything that would indicate to him that the Court of Appeal's sentencing decision was unfair. Somewhat unsurprisingly, he said he was not aware of anything of that nature.
It follows that to the extent that I have accepted any imputations arising from the Article, either those asserted by the plaintiff or those accepted, either primarily or in the alternative contextually by the defendants, those imputations are either not defamatory or the defendants have established a complete defence in respect of each of those imputations.
For completeness, I would add that even if there was any aspect of the Article that had been shown to be defamatory, in my view, that would not warrant any award of damages, given that the primary, if not the overwhelming, cause of any damage to the plaintiff's reputation were the convictions and the findings against him, and possibly prior media reporting.

Was Seven West Media a publisher?

The final issue I need to determine is the question of whether Seven West Media is a publisher of the Article. The principles as to what constitutes a publisher are reasonably well settled. They are set out in the case of Mundine v Brown [2010] NSWSC 468 to which counsel for the defendants drew my attention,[9] and in the reasons of Mitchell JA in Wright v de Kauwe [2024] WASCA 51 at [105] - [110].
[9] ts 333 - 337 (23 October 2025).
In that respect, Mr Clarke's evidence was relevant. He explained that there was no involvement whatsoever of Seven West Media in the publication of the Article. There was no admissible evidence before me that Seven West Media had any involvement in the publication.
The plaintiff referred to a schedule to his submissions, or what appeared to have come from a schedule to his submissions, which made reference to Seven West Media.[10] Mr Clarke accepted that that document suggested that there may have been a different article published by Seven West Media with substantially the same content. The difficulty, however, is that there was no evidence of the provenance of that document. Mr Clarke could not explain where it came from or be confident as to what it meant. In any event, even if Seven West Media did publish a substantially similar article, that is not an article sued upon in these proceedings.
[10] Plaintiff's written outline of opening submissions (29 August 2025), sch 17.
For completeness, I should make mention of the fact that the plaintiff was perhaps understandably led into considering that Seven West Media might have been a publisher.
When he first complained about the matter, he appears to have written to the Independent Media Council. He received a response from the chairman of the Independent Media Council addressed to the plaintiff in prison, which began:[11]
Dear Sir,
Seven West Media (SWM) is the publisher of The West Australian newspaper and of the article the subject of your complaint.
[11] Exhibit A.51.
The letter is curiously undated and unsigned. But on its face, it contains a statement which, with respect, is unhelpful. In the context of media law, a good deal of which is defamation law, the notion of a publisher has a particular legal meaning. If such a letter was sent, and I simply do not know if it was and when it was, it is regrettable that the plaintiff received a written document from the Independent Media Council in those terms.
Be that as it may, the letter from the Independent Media Council, even if it was sent, is in truth irrelevant to the question of whether, at law, Seven West Media was a publisher. There is no evidence before me that Seven West Media was a publisher, and therefore I conclude that the contention that it was a publisher must fail.

Malice

The plaintiff also raised the issue of malice. Malice is relevant because if malice is proven then that will impact upon the availability of certain defences. There was no substantial evidence of any malice on the part of the defendants, and therefore although malice was not actually pleaded, to the extent that it was suggested or advanced, it is rejected.

Conclusion

For these reasons, the plaintiff's claim must be dismissed.

Annexure A

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LZ
Associate to the Honourable Justice Solomon
6 NOVEMBER 2025