Chau v Fairfax Media Publications Pty Ltd

[2019] FCA 185

FEDERAL COURT OF AUSTRALIA

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185

File number:

NSD 1303 of 2016

Judge:

WIGNEY J

Date of judgment:

22 February 2019

Catchwords:

DEFAMATION – whether article conveyed alleged defamatory imputations – whether business, personal and professional reputation of applicant had been brought into public disrepute, odium, ridicule and contempt as a result of publication of those defamatory imputations – where damages and aggravated damages sought – where alleged imputations denied – where defence of qualified privilege contended – publisher’s belief and intention in relation to the imputations – reasonableness of publisher’s conduct – malice

Legislation:

Evidence Act 1995 (Cth) s 126K

Federal Court of Australia Act 1976 (Cth)

Defamation Act 2005 (NSW) ss 25, 30(1), 30(2), 30(3), 30(4), 34, 35, 36, 38

Defamation Act 1974 (NSW) s 22

United States Code (US) Title 18, § 666

Cases cited:

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354

Austin v Mirror Newspapers Ltd [1986] AC 299

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30

Baturina v Times Newspapers Ltd [2011] EWCA Civ 308

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2002] 12 WLUK 44; [2003] EMLR 11

Crampton v Nugawela (1996) 41 NSWLR 176

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Evatt v Nationwide News Pty Ltd [1999] NSWCA 99

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52

Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 AC 273; [2012] 4 All ER 913

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33

Hough v London Express Newspaper, Ltd [1940] 2 KB 507 (CA); [1940] 3 All ER 31

Hughes v Risbridger [2009] EWHC 3244 (QB)

Jameel v Wall Street Journal Europe Sprl (No 3) [2006] UKHL 44; [2007] 1 AC 359

John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291

Jones v Dunkell (1959) 101 CLR 298

Kevin Waters v John Fairfax Publications Pty Ltd [2005] NSWSC 394

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Lee v Wilson and MacKinnon (1934) 51 CLR 276

Lewis v Daily Telegraph Ltd [1964] AC 234

Mirror Newspapers Limited v Harrison (1982) 149 CLR 293

Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374

O’Shane v Fairfax Publications Pty Ltd [2002] NSWSC 807

Obeid v John Fairfax Publications Pty Ltd (2006) 68 NSWLR 150

Rackham v Sandy [2005] EWHC 482 (QB)

Roberts v Bass (2002) 212 CLR 1

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327

Rush v Nationwide News Pty Ltd [2018] FCA 357

Sands v State of South Australia (2015) 122 SASR 195

Seary v Molomby [1999] NSWSC 981

Sims v Wran [1984] 1 NSWLR 317

Slim v Daily Telegraph Ltd [1968] 2 QB 157

Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211

Ten Group Pty Ltd v Cornes (2012) 114 SASR 46

Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14

Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291

Trigell v Pheeney (1951) 82 CLR 497

Trkulja v Google LLC (2018) 356 ALR 178

Uren v John Fairfax & Sons Ltd (1965) 66 SR (NSW) 223

Wright v Australian Broadcasting Corporation [1977] 1 NSWLR 697

Date of hearing:

12, 13, 14, 15 and 19 June 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Other Federal Jurisdiction

Category:

Catchwords

Number of paragraphs:

377

Counsel for the Applicant:

Mr B McClintock SC with Mr M Richardson

Solicitor for the Applicant:

Mark O’Brien Legal

Counsel for the Respondents:

Mr J Hmelnitsky SC with Ms L Barnett

Solicitor for the Respondents:

Banki Haddock Fiora

ORDERS

NSD 1303 of 2016

BETWEEN:

CHAU CHAK WING

Applicant

AND:

FAIRFAX MEDIA PUBLICATIONS PTY LTD

First Respondent

JOHN GARNAUT

Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	22 FEBRUARY 2019

THE COURT ORDERS THAT:

1.Verdict and judgment be entered for the applicant in the sum of $280,000 inclusive of the sum of $55,000 in lieu of interest.

2.The applicant’s application for orders in the nature of injunctions be dismissed.

3.The respondents pay the applicant’s costs. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The matter complained of	[11]
The alleged defamatory imputations	[12]
Were the defamatory imputations conveyed by the article?	[13]
Relevant principles – The “ordinary reasonable person” and the “natural and ordinary” meaning	[14]
Investigation, suspicion and the imputation of guilt	[28]
Imputation (a) – Dr Chau bribed Mr Ashe	[32]
Imputation (b) – Dr Chau participated in a conspiracy to bribe Mr Ashe	[79]
Imputation (c) – Dr Chau acted in so seriously wrong a manner as to deserve extradition to the United States on criminal charges, including charges of bribery	[83]
Imputation (d) – Dr Chau created his business empire in Australia by making illicit payments to government officials	[88]
Qualified privilege	[97]
Qualified privilege and reasonableness – Relevant principles	[100]
Interest or apparent interest	[102]
Conduct in publishing reasonable in the circumstances	[106]
Facts and evidence relevant to reasonableness	[118]
Mr Garnaut’s earlier interactions with and impressions of Dr Chau	[125]
The United States Department of Justice Complaint and press release	[150]
The apparent urgency to publish	[184]
Mr Garnaut’s sources of information and their reliability	[190]
Information sought from and provided by Mr Uren	[191]
Information from “confidential source 1”	[199]
Mr Flitton’s research	[202]
Information from Dr Chau and Ms Chow	[205]
The fear of extradition assertions	[206]
The alleged “scrubbing” of websites	[231]
Obtaining and publishing Dr Chau’s response	[247]
Mr Garnaut’s contact with Mr Zheng	[248]
Mr Garnaut’s conversation with Ms Chow	[260]
The conversation between Mr Wen and Dr Chau	[274]
The portrayal of Dr Chau’s responses in the article	[288]
Conclusions in relation to obtaining and publishing Dr Chau’s response	[296]
Mr Garnaut’s belief and intentions in relation to the imputations	[299]
Relevant s 30(3) Defamation Act matters	[311]
Public interest – s 30(3)(a)	[312]
Public functions – s 30(3)(b)	[313]
Seriousness of the imputations – s 30(3)(c)	[314]
Distinguishing between suspicion, allegation and fact – s 30(3)(d)	[315]
Public interest in publishing expeditiously – s 30(3)(e)	[316]
Business environment – s 30(3)(f)	[317]
Sources of information – s 30(3)(g)	[318]
Dr Chau’s side of the story – s 30(3)(h)	[322]
Other steps taken to verify – s 30(3)(i)	[323]
Was the conduct in publishing reasonable?	[324]
Malice	[326]
Relevant principles - Malice	[328]
Was the article actuated by malice?	[330]
Damages	[336]
Compensatory damages	[337]
Hurt and distress	[345]
Harm to reputation and vindication	[348]
The appropriate award	[356]
Section 38(1)(e) and mitigation	[359]
Aggravated damages	[362]
Injunctions and other relief	[368]
Interest	[373]
Disposition and Orders	[375]

WIGNEY J:

1. As long ago as 1963, Lord Devlin warned, in the context of an appeal in a defamation action, that: “[a] man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire”.  His Lordship also observed that “loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded”: Lewis v Daily Telegraph Ltd [1964] AC 234 at 285. The critical question in this defamation action is whether the media respondents heeded Lord Devlin’s cautionary words, or whether their reporting of suspicions or allegations that the applicant was somehow implicated in a bribery “scandal” imputed that he was guilty of paying a bribe. If guilt was imputed, the question then arises whether the respondents’ conduct in publishing the report was nevertheless reasonable in the circumstances.

2. Dr Chau Chak Wing is a Chinese-born Australian citizen.  He is, by all accounts, a very wealthy man, with extensive business interests in China.  He is also a generous philanthropist who has donated large amounts of money to a number of universities and public institutions in Australia.  That itself has earnt him a degree of mostly favourable notoriety in Australia.  He has also gained a degree of not so favourable notoriety as a result of some large donations he or his companies have made to the main political parties in Australia, combined with what has generally been seen to be his close relationships with some senior politicians.  That has, perhaps understandably, generated some public and media interest and discussion.  That discussion has at times focussed on the desirability or otherwise of Dr Chau maintaining high level business and political connections and influence in both China and Australia.

3. On 16 October 2015, Fairfax Media Publications Pty Limited published an article concerning Dr Chau on its Sydney Morning Herald website.  The article was authored by Fairfax’s former China correspondent, Mr John Garnaut.  The main impetus for the article was the charging of three people in the United States of America for offences concerning the bribery of a former United Nations official.  One of the bribery allegations concerned a payment to the official for his appearance at a conference in China which was said to be organised by a “Chinese real estate developer”.  The complaint that instituted the criminal proceedings did not name the Chinese real estate developer.  Rather, it assigned him the pseudonym, or perhaps acronym, “CC-3”.  The central claim in Mr Garnaut’s article was that Dr Chau was, or was likely to be, CC-3 and, perhaps more significantly, that the United States prosecutors were, or at least were likely to be, considering taking action against him in respect of the bribery allegations.  That was undoubtedly a matter of some public interest in Australia given Dr Chau’s prominence and notoriety.  In that context, the article detailed Dr Chau’s wealth and his political and other donations.  The article’s headline posed the rather puzzling, if not obtuse, rhetorical question: “Are Chau Chak Wing’s circles of influence in Australia-China ties built on hot air?”  The equally obtuse concluding sentence of the article hinted that the answer to that question was somehow linked to what was earlier described as the “unfolding international bribery scandal”.   

4. Dr Chau commenced proceedings against Fairfax and Mr Garnaut in relation to the article.  He alleged that the article defamed him.  He contended, in short, that the article imputed that he had bribed the United Nations official, or had participated in a conspiracy to bribe him, that he had acted in so seriously wrong a manner as to deserve extradition to the United States on criminal charges, including charges of bribery, and that he had created his business empire in Australia by making illicit payments to government officials.  Dr Chau claimed that his business, personal and professional reputation had been brought into public disrepute, odium, ridicule and contempt as a result of the publication of those defamatory imputations.  He also claimed that Mr Garnaut and Fairfax were actuated by malice.  He sought damages and aggravated damages.    

5. Fairfax and Mr Garnaut defended the proceedings. They denied that the articles conveyed the alleged imputations. They also claimed that, even if the article did convey the alleged imputations, the subject matters of the article were matters of legitimate public interest and their conduct in publishing it was reasonable in the circumstances. They contended that the article was accordingly published on an occasion of qualified privilege pursuant to s 30 of the Defamation Act 2005 (NSW) and corresponding provisions in the defamation legislation of the other Australian States and Territories.

6. The competing claims and contentions of the parties give rise to four main issues.

7. First, did the article convey any or all of the defamatory imputations that Dr Chau alleged it did?  If none of the alleged imputations was conveyed, Dr Chau’s case must fail and judgment would have to be entered for Fairfax and Mr Garnaut. 

8. Second, if one or more of the defamatory imputations was conveyed, was the conduct of Fairfax and Mr Garnaut in publishing the article nevertheless reasonable in the circumstances?  If that question is answered in the affirmative, subject to any finding of malice, Fairfax and Mr Garnaut’s defence of qualified privilege would succeed.

9. Third, if the conduct of Fairfax and Mr Garnaut in publishing was reasonable in the circumstances, were they nonetheless actuated by malice?  It might be observed that it is difficult to see how they could have acted reasonably if actuated by malice, but nonetheless if they were, that would defeat their defence of qualified privilege in any event.

10. Fourth, if Fairfax and Mr Garnaut’ defence of qualified privilege fails, or is defeated, what damages should be awarded to Dr Chau in respect of the publication of the defamatory that were found to have been conveyed?  Was Dr Chau also entitled to aggravated damages?

    THE MATTER COMPLAINED OF

11. As has already been noted, the “matter complained of”, to use the terminology usually employed in defamation cases, was an article that was published on Fairfax’s Herald website on 16 October 2015.  The article was relatively short such that it is convenient to set out its contents in full.  For ease of reference, the following extract employs numbering for the headline, paragraphs and photographs, though the numbering does not appear in the published version of the article.  The 7 photographs in the article are described, along with the caption, but not reproduced.

    1.Are Chau Chak Wing’s circles of influence in Australia-China ties built on hot air?

    2.        [By-line] John Garnaut

    3.Chau Chak Wing may never get to live in the $70 million Vaucluse mansion that he bought from James Packer, sight unseen.

    4.[Photograph of Dr Chau, above the caption, “Chau Chak Wing after donating a large sum of money to the Frank Gehry designed UTS Business School.”]

    5.Because of an unfolding international bribery scandal, some officials believe the highly connected Chinese tycoon may prefer to bunker down in his personal “imperial palace” just north of Guangzhou, beyond the reach of extradition treaties.

    6.But, while the United States may be considering taking action against the billionaire businessman it describes as “CC-3” in a bribery indictment against a former president of the UN General Assembly, John Ashe of Antigua and Barbuda, Chau denies any direct knowledge of anything.

    7.[Aerial photograph of Dr Chau’s house, above the caption, “The most expensive sale of a single family home was the $70 million sale of James Packer’s Vaucluse mansion to Chau Chak Wing.”]

    8.“I don’t know the details, do you understand?” he told Fairfax Media by telephone from Guangzhou.

    9.He said he’d had no request for evidence from investigators in the US and denied he had anything to fear from the unfolding scandal.

    10.US prosecutors accuse Australian-Chinese businesswoman Sheri Yan and her finance chief Heidi Park of arranging for Ashe to be paid $US200,000, plus $US30,000 in travel expenses, for his entourage, plus a promise of bigger things to come. What the alleged bribe bought was Ashe’s appearance, in his official UN capacity, at Chau’s resort on November 17, 2013.

    11.Ashe’s appearance was trumpeted on Chau’s Kingold company website right up until Ashe, Yan and Park were arrested by New York authorities on October 6 over the bribery allegation.

    12.[Photograph of the University of Technology Sydney’s Business School, above the caption, “Up to 70 per cent of students in UTS’ bachelor of business course were admitted below the cut-off.”]

    13.Since then, most of the offending web pages have been scrubbed from cyberspace.

    14.“The whole thing is a misunderstanding,” Chau’s Australian-educated daughter, Winky, told Fairfax Media on Thursday night, speaking from a family holiday in China. “We are going to issue a statement to clarify the whole thing,” she said, before the line cut out and she could no longer be reached.

    15.[Photograph of Dr Chau with former Prime Minister, Mr John Howard, above the caption, “Chau Chak Wing and John Howard share a toast in 2011.”]

    16.Chau, who confirmed he was in Guangzhou, said he did not organise the event at the centre of the scandal.

    17.Though Chau was at the event, and was pictured with Ashe, he said: “I don’t know him [Ashe] well, I didn’t come into contact with him, and it wasn’t me who invited him.”

    18.If Yan, the alleged bribe facilitator, was the social queen of Australia-China relations, then there can be no doubt that her No.1 client, Chau, was the king.

    19.[Photograph of Dr Chau and former Prime Minister, Mr Kevin Rudd, above the caption, “Kevin Rudd in talks with Chau Chak Wing.”]

    20.Chau isn’t really a doctor. He never even went to university. And yet Australian political, business and university leaders went to extraordinary lengths to sing his praises and to be seen at his eye-popping forbidden city at Congdu, in the verdant hills north of Guangzhou.

    21.The spa resort boasts a 27-hole golf course, a golf club with a gold-plated roof, endless luxury villas and gardens, and a purpose-built imperial museum.

    22.[Photograph of Dr Chau in front of a building site, above the caption, “Chau Chak Wing at the building site for the UTS business school.”]

    23.Chau’s generous political donations – about $1 million each to the Liberals and Labor, and half that to the Nationals – were part of the story, but not the major part; it was his relationships with Australia’s great and good. Former prime minister John Howard said he was attracted to his character and philanthropy.

    24.“I know him, and I like him,” Howard told Sydney’s Daily Telegraph, after it was revealed two months ago that Chau had just paid $70 million for Packer’s harbourside mansion.

    25.[Photograph of Dr Chau with the former Governor-General of Australia, Mr Michael Jeffery, above the caption, “Chau Chak Wing with then Australian governor-general Michael Jeffery.”]

    26.“I see him as a very generous benefactor to good causes in Australia,” Howard said. “I have enjoyed my relationship with him.”

    27.Howard was referring to a list of generous donations that begins with Chau’s $20 million gift to the Frank Gehry-designed “brown paper bag” building at the University of Technology, Sydney, which bears his name.

    28.Chau has followed up with $15 million for a museum, also bearing his name, and a $5 million scholarship program for Australian Chinese students.

    29.But what really makes Australian politicians go the extra mile to seek Chau’s friendship was his ability to open doors in China.

    30.Howard credits Chau with playing a crucial role in securing the huge $25 billion LNG export deal that cemented Howard’s reputation for being able to do business with China.

    31.Former NSW premier Morris Iemma employed Chau’s daughter Winky on his personal staff.

    32.Former prime minister Kevin Rudd was known to go to extraordinary lengths to secure his company.

    33.Former prime ministers Tony Abbott and Julia Gillard, and former foreign affairs minister and NSW premier Bob Carr found time to meet, write letters to and otherwise pay homage to, him.

    34.Arguably, there was no other business leader in Australia who enjoyed such conspicuous access.

    35.The more that Chau could demonstrate his influence in Australia, the more he could show his political utility in China, the more access he could offer Australians, and on it went in a seemingly endless circle.

    36.Chau once told Fairfax Media that he never asked his “friends” for favours. He always dispersed his generosity without any strings attached.

    37.To the Australians, it was all about access and opportunity, and hospitality at his “imperial palace”, and the odd $1000 bottle of Chateau Lafite red wine.

    38.To Chinese officials, the opportunities for generosity were much greater. He enjoyed nothing better than helping an official who was having trouble selling land.

    39.He made himself known as the point man for organising the Chinese diaspora in Australia, with his Beijing-friendly Chinese media empire, and he was often successful in transmitting Beijing-friendly messages that Australian politicians might otherwise have been unwilling to receive.

    40.It was a virtuous circle of guanxi – the Chinese method of making social networks to facilitate business dealings – and the perception of access and power created its own reality, which extended right up to the president of the UN General Assembly, John Ashe.

    41.The complaint filed by New York prosecutors, following investigations by the Internal Revenue Service and Federal Bureau of Investigation, reveal a series of exchanges between Yan and Park about their client identified as “CC-3”.

    42.In October 2013, Park told Ashe that “an old friend of Sheri [who] is extremely wealthy” was organising an international conference in Guangzhou. She proposed a $US200,000 payment on behalf of a man whom US authorities describe as a “Chinese real estate developer”.

    43.Ashe asked about travel expenses for his entourage, leading Park to add another $US30,000 to the agreed amount.

    44.When Yan wrote the invitation letter to Ashe, on Chau’s behalf, she took care to note that this was only intended as a start.

    45.A close associate, who is assisting Yan in New York, said: “The FBI and other officials here think that bribery goes with almost all Chinese.

    46.      “Sheri would never do anything she knew was illegal or improper.”

    47.US prosecutors link the payments from three unnamed Chinese business figures, including Chau, to Ashe’s spending spree the following year. He and his wife were tracked paying $US59,000 to a Hong Kong clothing company in June 2014, and then $US69,000 for a vacation club membership the following month, two Rolexes ($US54,000) and a $US40,000 lease on a BMW Series 5.

    48.Chau has not been charged with any offence. He hasn’t even been explicitly identified by prosecutors. And while it might appear prudent for the billionaire to bunker down in China, away from the reach of extradition treaties, Chau has insisted it would not affect his travel to Australia.

    49.      “I will come and go as normal,” he said.

    50.This story is likely to have much more to tell, while we all learn whether the extraordinary Kingold kingdom of Australia and China relations was built upon illicit payments and hot air.

    51.      [By-line] With Philip Wen

    THE ALLEGED DEFAMATORY IMPUTATIONS

1. Dr Chau alleged that the article conveyed the following defamatory imputations concerning him:

   (a)Dr Chau bribed the President of the United Nations General Assembly, Mr John Ashe;

   (b)Dr Chau participated in a conspiracy to bribe the President of the United Nations General Assembly;

   (c)Dr Chau acted in so seriously wrong a manner as to deserve extradition to the United States on criminal charges, including charges of bribery;

   (d)Dr Chau created his business empire in Australia by making illicit payments to government officials.

   WERE THE DEFAMATORY IMPUTATIONS CONVEYED BY THE ARTICLE?

2. Fairfax and Mr Garnaut did not dispute that, if the article conveyed the imputations alleged by Dr Chau, they were defamatory of him.  The question is whether the imputations were conveyed.  Plainly the articles did not directly or literally assert that Dr Chau bribed Mr Ashe, or that he participated in a conspiracy to bribe Mr Ashe, or that he had acted in so seriously wrong a manner as to deserve extradition to the United States on criminal charges, including charges of bribery, or that he created his business empire in Australia by making illicit payments to government officials.  But would the article nonetheless have conveyed those meaning to the ordinary reasonable reader?  Would the ordinary reasonable reader have “read between the lines” and inferred, implied or deduced those meanings from the article as a whole?

   Relevant principles – The “ordinary reasonable person” and the “natural and ordinary” meaning

3. The principles to be applied in determining whether a publication conveyed defamatory imputations are well-settled and were not significantly in issue in this proceeding.  The lead authorities and the principles established by them were summarised by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165, and more recently surveyed in this Court by White J in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [63]-[73]. The basic principles were even more recently considered by the High Court in Trkulja v Google LLC (2018) 356 ALR 178 at [31]-[32] in the context of an appeal from the summary dismissal of a defamation action. It is, for the most part, unnecessary to cite all the well-known authorities. The principles relevant to this case may be summarised as follows.

4. First, the applicant, here Dr Chau, bears the onus of proving, on the balance of probabilities, that the alleged defamatory meanings or imputations were conveyed by the publication in question.

5. Second, the question whether the defamatory meanings were in fact conveyed is a question of fact.

6. Third, the question is whether the relevant publication would have conveyed the alleged meanings to an ordinary reasonable person.  Where, as here, the publication is in writing, the question is what the impugned words in the publication would have conveyed to the ordinary reasonable reader.  The Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader.   The question is not a question of construction of the words used in the article in the legal sense. 

7. Fourth, in this context, the authorities ascribe the ordinary reasonable reader with certain character traits, qualities or characteristics.  The ordinary reasonable reader is variously said to be of fair, average intelligence, experience and education.  They are also fair-minded and neither perverse, morbid nor suspicious of mind, nor avid for scandal.  Of course, as the High Court pointed out in Trkulja at [31], ordinary men and women in fact have different temperaments, outlooks, degrees of education and life experience, so the exercise is really one of “attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning”.

8. Fifth, the meaning that the words would convey to the ordinary reasonable reader is often called “the natural and ordinary meaning” of the words.  In some cases, the natural and ordinary meaning of the words may be obvious from the direct or literal meaning of the words themselves.  More often than not, however, the question turns on what implications or inferences the ordinary reasonable reader would draw from the words.

9. Sixth, in determining what implications or inferences the ordinary reasonable reader would draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways.  The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”.  The ordinary reasonable reader apparently does not live in an “ivory tower” but can and does read between the lines in the light of their general knowledge and experience of worldly affairs.  While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would.  While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions. 

10. Seventh, the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable person.  The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational.  The ordinary reasonable reader of such an article is more prone to engage in loose thinking.  That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.

11. Eighth, as already adverted to, each alleged defamatory imputation has to be considered in the context of the entire matter complained of.  It does not follow, however, that each part of the publication must be given equal significance.  A headline, for example, may give the reader a predisposition about what follows and may therefore assume particular importance.  Equally, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements.

12. Ninth, the meaning that an ordinary reasonable reader would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question.  The article may, for example, be tinged with, or even pregnant with, insinuation or suggestion.  It may also implicitly invite the reader to adopt a suspicious approach.  As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:

    It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.  

13. Tenth, the determination of what an ordinary reasonable person would read into or infer from the words complained of is often a matter of impression.

14. Eleventh, while a publication may in some cases be reasonably capable of bearing more than one meaning, the tribunal of fact, whether it be a jury or a judge sitting alone, must ultimately determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 174-175: Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [34], [47]-[50]; Hockey at [73].

15. Twelfth, in determining the meaning in fact conveyed by the publication, the intention of the publisher is irrelevant: Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 288 per Dixon J; Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526 at [24].

16. Thirteenth, the manner in which the publication was actually understood is also irrelevant in determining what meaning was conveyed to the ordinary reasonable person: Hough v London Express Newspaper, Ltd [1940] 2 KB 507 (CA) at 515; [1940] 3 All ER 31 at 35; Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 301-302. The question is to be determined on the basis of the natural and ordinary meaning of the publication alone.

    Investigation, suspicion and the imputation of guilt

17. A mere statement that a person is being investigated by the police or prosecution agencies, or that a person is suspected of committing a crime, does not necessarily impute guilt.  It may convey no more than that there are reasonable grounds to suspect that the person is guilty, or that there are reasonable grounds for investigating whether the person is guilty: Lewis v Daily Telegraph at 267-268 per Lord Morris of Borth-y-Gest;  Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2002] 12 WLUK 44; [2003] EMLR 11; Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 AC 273 at [8]; [2012] 4 All ER 913 at [8]; Sands v State of South Australia (2015) 122 SASR 195 at [238]-[241]. The question, in such a case, is which of the possible meanings was in fact conveyed to the ordinary reasonable reader in all the circumstances. Much will depend on the context, the words used and the information conveyed by the matter complained of considered as a whole.

18. In that context, in Lewis v Daily Telegraph, Lord Devlin said (at 285):

    It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

19. Similarly, in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 (the facts of which, unlike Lewis v Daily Telegraph, somewhat ironically concerned a publication about a fire), Gleeson CJ, McHugh, Gummow and Heydon JJ said (at [12]):

    A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise.

    …

    (Emphasis in original. Footnote omitted.)

20. It must also be borne in mind in this context that the ordinary reasonable reader is taken to be mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty: Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 at 300.

    Imputation (a) – Dr Chau bribed Mr Ashe

21. Imputation (a) is in effect a statement of guilt.  Dr Chau alleged that the article went well beyond merely conveying that there were reasonable grounds to suspect that he was guilty of bribing Mr Ashe, or that there were reasonable grounds for investigating whether he did so.  He contended that the article imputed that he was guilty of that offence.

22. Would the article have conveyed to an ordinary reasonable person that Dr Chau had bribed Mr Ashe?  That question is not entirely easy to resolve.  There are features of the article that point in different directions.

23. There are a number of features of the article that, on one view at least, would tend to suggest that the article would have conveyed no more to the ordinary reasonable reader than that there were reasonable, if not strong, grounds to suspect Dr Chau bribed Mr Ashe. 

24. First, and most obviously, the article did not directly or literally assert that Dr Chau was guilty of bribing Mr Ashe. 

25. Second, while the article asserted that the United States “may” be considering taking action against Dr Chau in respect of one of the bribes allegedly paid to Mr Ashe (at [6]), it also stated, albeit much later (at [48]), that Dr Chau had not been charged with any offence and had not even been explicitly identified by prosecutors.  That was in contrast to the position of the three defendants who had been charged.

26. Third, the article made it tolerably clear that the criminal proceedings in the United States against those who had been charged were at an early stage.  The ordinary reasonable reader might in that context be taken to be aware that the presumption of innocence of persons charged with offences applied in the United States.

27. Fourth, the article included statements by Dr Chau which an ordinary reasonable reader might construe as denials by Dr Chau.  It stated that Dr Chau “denies any direct knowledge of anything” (at [6]), and that he had told Fairfax that “I don’t know the details” (at [8]), that he did not organise the event (at [16]), and that “I don’t know him [Ashe] well, I didn’t come into contact with him, and it wasn’t me who invited him” (at [17]). He is also reported to have said that he had received “no request for evidence from investigators in the US and denied he had anything to fear from the unfolding scandal” (at [9]) and that he would continue to travel to and from Australia as normal (at [48] and [49]).

28. Fourth, the article includes a statement from Dr Chau’s daughter, Ms Winky Chow, which an ordinary reasonable reader might interpret as amounting to a statement that Dr Chau had done nothing wrong.  She is reported to have told Fairfax that “[t]he whole thing is a misunderstanding” and that “[w]e are going to issue a statement to clarify the whole thing” (at [14]).

29. Fifth, the article includes a statement (at [45]) from an unnamed source that could, at least on one view, have suggested that the accused, and perhaps others who were the subject of the investigation, had been unfairly targeted because they were Chinese.  That source apparently claimed that the “FBI and other officials here think that bribery goes with almost all Chinese”.

30. There are, however, a number of significant features or aspects of the article which, taken together, tend to point strongly in the other direction: features that would tend to cause an ordinary reasonable reader to read between the lines and infer that, despite the fact that Dr Chau had not been charged, and despite his apparent denials, he had in fact bribed Mr Ashe.

31. First, as a matter of first impression, the general tone and tenor of the article as a whole is rather derisive and disparaging, if not, at times, sneering and contemptuous, towards Dr Chau.  That tone flows from the sensational and hyperbolic language at times employed, as well as from some rather gratuitous barbs and insinuations; some subtle, others not so.  

32. The headline somewhat puzzlingly questions whether Dr Chau’s circles of influence are built on “hot air”.  The reader is left to guess at exactly what “hot air” might be involved, though what follows plainly suggests that it involved something improper or worthy of contempt.  The article concludes (at [50]) with a further reference to “hot air”, along with the suggestion of “illicit payments”.  When read in the context of other statements made in the article, the apparent insinuation is that Dr Chau has, or at least may have, bought his power and influence by making illicit payments of some kind.    

33. Dr Chau is referred to in the article as a “highly connected Chinese tycoon” (at [5]) and a “billionaire businessman” (at [6]) who may prefer to “bunker down” in his “personal “imperial palace”” (at [5]) or “eye-popping forbidden city” (at [20]) to avoid extradition.  He was said to have purchased a $70 million Vaucluse mansion “sight unseen” (at [3]).  The references to Dr Chau’s wealth, read in context, are not plaudits; rather they are sneering and derisory.  What sort of person purchases a $70 million mansion “sight unseen”?

34. The appearance of Mr Ashe, the recipient of the alleged bribe, was said to have been “trumpeted” on “Chau’s Kingold company website” (at [11]) until the “offending web pages” had been “scrubbed from cyberspace” (at [13]). 

35. Dr Chau is described as presiding over the “extraordinary Kingold kingdom of Australia and China relations” (at [50]).  It is not entirely clear what that means, but is certainly described in rather derogatory and derisory terms.  The clear impression conveyed was that the “kingdom” included access and power that was acquired in some sort of illicit way. 

36. Apropos of apparently nothing, it is said that “Chau isn’t really a doctor” and that he “never even went to university” (at [20]).  The article does not attempt to explain the relevance or significance of Dr Chau not being a doctor.  It was not suggested that he represented to anyone that he was a doctor.  Nor is the relevance of the fact that Dr Chau did not go to university immediately apparent.  There appears, however, to be a sense of incredulity that Australian political, business and university leaders would associate with someone who was not really a doctor and who did not go to university.  

37. Second, the article immediately commences with the implicit assertion that Dr Chau was somehow implicated in the so-called “unfolding international bribery scandal”.  Why else might he never get to live in the $70 million Vaucluse mansion that he bought “sight unseen”, but instead “bunker down” in China “beyond the reach of extradition treaties”?  The colourful expression “bunker down” is grammatically questionable and may have been confused with the expression “hunker down”.  Either way, the clear connotation was that Dr Chau might prefer to “dig in” or “lie low” to survive or get through a tough time.      

38. The reference to the belief of unnamed “officials” concerning the likelihood of Dr Chau remaining in China to avoid extradition tends to bestow some weight or apparent authority on the suggestion.  It is not just the author who thinks that is likely.  The clear implication is that Dr Chau was likely to attempt to avoid being brought to justice.  That itself suggests a possible consciousness of guilt on the part of Dr Chau.  Why would he “bunker down” in China “beyond the reach of extradition treaties”, rather than return to his Vaucluse “mansion”, if he was not guilty? 

39. The extradition theme is revisited towards the very end of the article.  Thus, the article is bookended by the suggestion that Dr Chau might prefer to hide from, rather than fight, any action which might be taken against him in respect of the alleged bribery.  It is strongly suggestive of guilt, even though it is couched in terms of the belief of certain unnamed “officials”, and even though it is tempered somewhat by weasel-words such as “may prefer” or “might appear prudent”.  The clear implication or insinuation was nevertheless that Dr Chau had good reason to remain in China and avoid extradition to the United States to face a possible bribery charge.

40. The suggestion of Dr Chau’s consciousness of guilt was further emphasised by the references to the fact that certain “offending web pages” had been “scrubbed from cyberspace”.  The offending web pages were said to be those on “Chau’s Kingold company website” which “trumpeted” Mr Ashe’s attendance at “Chau’s resort”.  The hyperbolic and derisory language, in the context of the entire article, clearly suggested that the “scrubbing” was an attempt by Dr Chau to conceal apparently damning evidence of his connection with Mr Ashe and the supposed purpose of the bribe.  The reader is effectively invited to reason: why would the web pages be “scrubbed” if Dr Chau was innocent?  Why else would he attempt to conceal the connection?

1. Third, while Dr Chau’s apparent response to, or denial of, aspects of the allegations are referred to at various parts of the articles, the manner in which they are disaggregated and inserted in the narrative undermines their effect and was likely to cause an ordinary reader to be dismissive and sceptical about them.  There is a general tone of incredulity in relation to the denials. 

2. The first denial appears at the end of paragraph 6, just after the introduction of the suggestion that Dr Chau might stay in China to avoid extradition.  The denial is immediately preceded, and subverted, by the assertion that the United States may be considering taking action against Dr Chau.  The insinuation is that, in the damning face of the United States considering taking that action, Dr Chau was nevertheless denying “any direct knowledge of anything”.  The inclusion of the words “of anything” tends to introduce a tone of disparagement if not absurdity.  Even if Dr Chau used those words (though that is unclear because no quotation marks are used), taken out of context, as that statement appears to be, the denial of “any direct knowledge of anything” appears absurd.

3. The second denial is in paragraph 8.  The statement by Dr Chau that he didn’t know “the details”, again disaggregated and taken out of its proper context, appears rather meaningless.  The details of what?  This denial was also undermined by the inclusion of the reference to Dr Chau being in Guangzhou.  While in some contexts that may not be significant, this reference appears immediately after the assertion that Dr Chau might choose to “bunker down” in China to avoid extradition.  The apparent suggestion is that Dr Chau was only willing to proffer this denial by telephone from his safe-haven in China, as opposed to a place from which he might be extradited.

4. The third denial, which appears in the next paragraph, is again referred to in rather oblique terms.  Dr Chau is reported to have said that he had received “no request for evidence”.  There had, however, been no suggestion that the investigators had asked for any evidence, let alone what that evidence might be.  Rather, the suggestion was that the United States may “take action” against him.  Dr Chau was also said to have denied having anything to fear from the “unfolding scandal”.  The language and immediate context plainly implied that Dr Chau had a very good reason to be fearful; why else would some “officials” believe that he might remain in China “beyond the reach of extradition treaties”?

5. The fourth denial was supposedly provided by Dr Chau’s daughter, Ms Chow, though the article does not attempt to explain how or why Ms Chow would necessarily know any details of any of the allegations.  The statement, said to have been made by Dr Chau’s “Australian-educated daughter”, was also painted as being somewhat absurd: “[t]he whole thing is a misunderstanding”.  Ms Chow was also reported as having indicated that a statement would be issued to explain the “misunderstanding”.  This apparent denial, however, was effectively subverted by the reference to the fact that Ms Chow was “speaking from a family holiday in China”, another allusion to the family being in a safe-haven, and, more significantly, by the insinuation that she had hung up on the caller and was then unable to be reached. 

6. The fifth denial appears immediately after the reference to Ms Chow.  It is preceded by the statement that Dr Chau had confirmed he was in Guangzhou.  It is unclear why it was necessary to reiterate that point, though it again appears shortly after the suggestion that Dr Chau might remain in China to avoid extradition.  Dr Chau was reported to have said that he did not organise the event at the “centre of the scandal”.  It is noteworthy, however, that this denial appears immediately after the article had reported that the alleged bribe bought Mr Ashe’s appearance “at Chau’s resort”, that the appearance had been “trumpeted” on “Chau’s Kingold company website”, at least until Mr Ashe’s arrest, and that the “offending web pages” had then been “scrubbed from cyberspace”.  The denial is also immediately followed by the statement that Dr Chau was at the event and was pictured with Mr Ashe.  It was thus bookended by information or assertions which tended to contradict it. 

7. The sixth denial, which was that Dr Chau had said that he did not know Mr Ashe well, did not come into contact with him, and that it was not him that invited Mr Ashe (at [17]), appeared immediately after the statement that Dr Chau had been pictured with Mr Ashe.  It was also immediately followed by the assertion that Dr Chau was Ms Shiwei (also known as “Sheri”) Yan’s “No. 1 client”.  Ms Yan, of course, was the person who had in fact been charged with arranging for the alleged bribes to be paid to Mr Ashe.  The assertion that Dr Chau was Ms Yan’s “No. 1 client” was, in those circumstances, a clear suggestion that Dr Chau was closely connected to Ms Yan and therefore likely to have been involved in, if not to have directed, Ms Yan’s actions.  Thus, the denial was again presented alongside information that was likely to cause the ordinary reasonable reader to be incredulous about the denial.  Indeed, the overall impression conveyed by the manner in which the denial was presented, was that it was ludicrous.

8. The seventh denial appears in paragraphs 48 and 49, towards the very end of the article.  It appears immediately after the repetition of the assertion that it might appear “prudent” for Dr Chau to remain in China to avoid extradition.  It is unclear to whom that might appear prudent, though it seems that it might have been the author’s view.  In any event, Dr Chau was reported to have said that “it” would not affect his travel to Australia and that he would “come and go as normal”. The “it” would appear to be the threat of extradition, or the threat that the United States was considering taking action against him.  The denial is thus again presented in such a way that might lead an ordinary reasonable reader to be sceptical if not dismissive in relation to it.

9. While it must be accepted that the reporting of Dr Chau’s responses or denials is important in terms of assessing whether the article imputes guilt, the effect of the denials is effectively undone by the way they have been fragmented and inserted in the narrative.  Indeed, the denials are dealt with in such a dismissive and disparaging way that they tend to have the opposite effect.  

10. The fourth feature of the article that tends to impute guilt is that there are precious few references to the complaint apparently filed by the United States prosecutors only containing allegations or accusations, as opposed to proven or uncontroverted facts.  Indeed, there are numerous instances where what appear to have been mere assertions or allegations are presented as unequivocal facts.  It was asserted, for example, that there could be “no doubt” that Dr Chau was Ms Yan’s “No. 1 client” (at [18]).  As noted earlier, the clear implication was that Ms Yan was closely connected to Dr Chau and likely to have been acting on his behalf in paying the money to Mr Ashe.  The basis of the unequivocal assertion that Dr Chau was Ms Yan’s No. 1 client was entirely unclear. 

11. There are numerous other examples of factual assertions or unequivocal statements about facts which were apparently relevant to the “bribery scandal”.  It was, for example, unequivocally asserted that Dr Chau was involved in a “virtuous circle of guanxi – the Chinese method of making social networks to facilitate business dealings – and the perception of access and power created its own reality, which extended right up to the president of the UN General Assembly, John Ashe”.  This was not presented as a mere allegation.  Thus, the alleged bribe was effectively portrayed as an example, or another example, of Dr Chau’s usual practice of currying favour with people in positions of power or influence so as to facilitate “business dealings”.    

12. It was also unequivocally asserted that the payment by Ms Yan to Mr Ashe bought “Ashe’s appearance … at Chau’s resort” (at [10]).  While the payment was said to be an “alleged bribe”, the statement about what it bought was unequivocal and unqualified.  It was also unequivocally asserted Ms Yan wrote the invitation letter to Mr Ashe “on Chau’s behalf” and that the prosecutors “link” the payments from “three unnamed Chinese business figures, including Chau” to Mr Ashe’s “spending spree”.  The assertion that the payment came from Dr Chau was again stated in unequivocal terms. 

13. The article contains no unambiguous or unequivocal statement that the facts referred to in the complaint filed by the prosecutors were only allegations.  Rather, the complaint is simply said to “reveal” certain facts (at [41]).

14. It should also be noted, in this context, that while the article does state that Dr Chau had not been charged or even “explicitly” named in the indictment, that revelation does not come until the very end of the article.  It was also immediately followed by the repetition of the suggestion that Dr Chau might remain in China to avoid extradition.  Extradition, of course, can generally only occur once a person has been charged.  Thus, the effect of the statement that Dr Chau had not been charged was immediately undone by the implication that he was not only likely to be charged, but that he might “bunker down” in China rather than face that charge. 

15. The fifth feature of the article which tends to impute guilt arises from the overarching theme of the article, which attempts to link Dr Chau’s connection with the bribery allegations in the United States to his “circles of influence in Australia-China ties” and the apparent suggestion that Dr Chau’s influence and connections may have been acquired by means of “illicit payments”.   

16. The article clearly does not only concern the bribery allegations in the United States.  Indeed, on one view of it, the bribery allegations form only a relatively small part of the article.  Certainly, the treatment of the bribery allegations is, at best, cursory.  Much of the article appears to deal with the rhetorical question posed in the headline.  It goes into considerable detail about Dr Chau’s wealth, his “generous” political donations, his association with past and present political figures in Australia, and the assertion that he wielded significant power and influence in both Australia and China. 

17. What, however, was the supposed link between Dr Chau’s donations, power and influence and his connection with the so-called “unfolding international bribery scandal”?  The answer to that question appears to have been provided, or at least hinted at, in the concluding paragraph of the article.  The main thesis appears to be that if Dr Chau had bribed Mr Ashe so as to secure his attendance at his “resort”, that might suggest that Dr Chau’s connections, power and influence, including in Australia, had similarly been “bought” by such “illicit payments”. That is apparently why it could be postulated that “the extraordinary Kingold kingdom of Australia and China relations” may have been “built upon illicit payments and hot air”.   

18. The difficulty for Fairfax and Mr Garnaut, is that the article also tended to imply that the payment that had been made to Mr Ashe was entirely in keeping with the pattern of payments Dr Chau had made to people and entities of power and influence in Australia.  It was part of what was said to be the “virtuous circle of guanxi”, which, it appeared to be suggested, included acquiring connections and influence by paying money.  Thus, Dr Chau’s “access and power” was said to have “extended right up to the president of the UN General Assembly, John Ashe”.  That assertion, which as pointed out earlier, was made in unequivocal and unqualified terms, would have left the ordinary reasonable reader in little doubt that Dr Chau had bribed Mr Ashe.  The insinuation was that the bribe was simply another example of the way Dr Chau operated.     

19. The last paragraph of the article is prefaced by the words “[t]his story is likely to have much more to tell”.  While it is somewhat unclear, the “story” would appear to be, or to at least include, the bribery case in the United States.  The suggestion appears to be that, as that story unfolds, “we”, the public, will apparently “learn” whether Dr Chau’s influence in Australia was indeed built on “illicit payments” and “hot air”. 

20. The meaning conveyed by the last paragraph of the article, read in context, is particularly important to the question whether the article conveyed imputation (d).  It is considered in more detail in that context later in these reasons.  It is sufficient to say, in the present context, that the apparent linkage of the bribery case concerning the payment to Mr Ashe and Dr Chau’s donations, connections and influence in Australia, tended to bolster the implication or inference that Dr Chau did in fact pay the bribe to Mr Ashe.  That is because, as has already been said, the impression likely to be conveyed to the ordinary reasonable reader was that the payment to Mr Ashe was consistent with Dr Chau’s employment of the “virtuous circle of guanxi” and the pattern of payments Dr Chau had made to people and entities of influence in Australia.  It was a payment made to secure the benefit of an apparent connection with the President of the United Nations General Assembly.  That impression was exacerbated by the reference to “illicit payments” in the last few words of the article.

21. It should perhaps be noted, in the context of this feature of the article, that Fairfax and Mr Garnaut contended that the ordinary reasonable reader would have regard to the “[p]ositive character endorsements” given by the prominent politicians and other public figures that are referred to in the section of the article that deals with Dr Chau’s influence in Australia.  The suggestion was that the reader would consider those character endorsements to be contrary to any imputation of guilt. 

22. It is, however, highly doubtful that the ordinary reasonable reader would have viewed those endorsements favourably having regard to the context in which they were included in the article.  That is because the overall impression conveyed by the article is that, by making the donations referred to in the article, Dr Chau had effectively bought those positive character endorsements. 

23. It must be emphasised, at this point, that it is not suggested that the ordinary reasonable reader would necessarily engage in a detailed analysis and discussion of the article of the sort that has just been conducted.  As has already been noted, the ordinary reasonable reader is taken to be a person who does not to read or analyse a publication overzealously or search for hidden meanings or strained interpretations of the words used.  The process of divining the meaning that would be conveyed to the ordinary reasonable reader is also not one of construction in the legal sense.  Nevertheless, a judge sitting alone in a defamation action must, unlike a jury, provide reasons for arriving at the single natural and ordinary meaning of the words complained of.  In many cases, that will involve a detailed analysis of the words in question.    

24. On balance, I am positively persuaded that, having regard to the features of the articles that have just been identified and discussed, the article would have conveyed to the ordinary reasonable reader that Dr Chau bribed the President of the United Nations General Assembly, Mr Ashe.  The natural and ordinary meaning of the words employed in the article, and the overall impression conveyed by the article considered as a whole, was not merely one of suspicion, but one of guilt.          

25. It would, of course, have been perfectly open to Fairfax and Mr Garnaut to report on the complaint that had been filed in the United States and, perhaps more pertinently, to postulate that it could readily be inferred that the person referred to as CC-3 was Dr Chau. That could have been done in such a way as to convey to the ordinary reasonable reader no more than that there was reason to suspect, perhaps even strongly suspect, that Dr Chau was somehow involved in the course of events that had given rise to the bribery charges against Ms Yan, even though he had not himself been charged. Had that been done, Dr Chau may not have commenced these proceedings or, if he had, Fairfax may have had available to it the defence of justification pursuant to s 25 of the Defamation Act. It is, however, not useful to speculate about such matters.

26. The point is that the language, tone and content of the article went well beyond imputing mere suspicion.  As Lord Devlin pointed out in Lewis v Daily Telegraph, “loose talk” about investigations, allegations or suspicions can very easily convey the impression of guilt.  That is essentially what occurred here.  The language was not only at times imprecise, ambiguous and loose, but also sensational and derisory.  The language used was also, for the most part, not the language of mere allegation or suspicion, but rather the language of assertion or uncontroverted fact.  The suggestion that Dr Chau was likely to, or was considered by some to have reason to, remain in China to avoid extradition was a particularly powerful factor in insinuating guilt.  Why would he seek to avoid extradition and trial if he was innocent?  So too was the assertion that Dr Chau had “scrubbed” the web pages that had “trumpeted” Mr Ashe’s appearance at Dr Chau’s resort; the very appearance which was said to have been bought by the payment.  

27. The insinuation of guilt was exacerbated by the introduction of apparently unrelated and somewhat confounding facts concerning Dr Chau’s wealth, donations and influence.  Those facts were included in aid of a thesis that went beyond the specific bribery allegations and tended to imply that Dr Chau was a man who sought to buy power and influence, including by way of “illicit payments”.  The cumulative effect of all those features of the article was to convey to the ordinary reasonable reader that Dr Chau had indeed paid a bribe to Mr Ashe.

    Imputation (b) – Dr Chau participated in a conspiracy to bribe Mr Ashe

28. Imputation (b) is not significantly or materially different to imputation (a).  The only real difference is that Dr Chau is said to have participated in a conspiracy to bribe Mr Ashe, as opposed to bribing him.

29. The ordinary reasonable reader was likely to be aware that, in general terms, a conspiracy involves a plan or agreement to commit a crime, or perhaps the joint commission of a crime by a number of people.  While the article does not use the word “conspiracy” in describing the bribery allegations, it describes the allegations in terms which would have conveyed to the ordinary reasonable reader that the payment to Mr Ashe arose from a plan, agreement or joint enterprise between Dr Chau, Ms Yan and Ms Heidi Hong Piao (also known as “Heidi Park”).   

30. The main issue is whether the article conveyed that Dr Chau had in fact been involved in that conspiracy, or whether it simply conveyed a strong suspicion that that was the case.  For the same reasons as those given in the context of imputation (a), the article would have conveyed to the ordinary reasonable reader that Dr Chau had in fact been involved in a conspiracy to bribe Mr Ashe.  While it did not say so in express terms, the sensational and hyperbolic language employed in the article, the derisive and disparaging tone, the dismissive and subverting manner in which Dr Chau’s denials were woven into the narrative, the absence of clear and unambiguous statements that the facts referred to in the article were, for the most part, mere allegations and had not been proved and, perhaps most significantly, the strong suggestions of consciousness of guilt on the part of Dr Chau, including that he might decide to remain in China to avoid extradition and had “scrubbed” the “offending web pages” that had shown his connections with Mr Ashe, would have left the reader in little doubt of Dr Chau’s guilt.

1. In all the circumstances, I am positively persuaded that the article would have conveyed to the ordinary reasonable reader that Dr Chau had participated in a conspiracy to bribe Mr Ashe. 

   Imputation (c) – Dr Chau acted in so seriously wrong a manner as to deserve extradition to the United States on criminal charges, including charges of bribery

2. Much the same can be said in relation to imputation (c). 

3. Extensive reference has already been made to those parts of the article which suggest that Dr Chau might prefer to “bunker down” in China “beyond the reach of extradition treaties”, or that it might appear to be prudent, given that the United States might be considering taking action against him for bribing Mr Ashe: see paragraphs 3, 5, 6 and 48 of the article.  The article also repeatedly emphasised, in that context, that Dr Chau was in China at the time he was contacted in connection with the article: see paragraphs 8 and 16. 

4. There could be little doubt that the article conveyed to the ordinary reasonable reader, at the very least, that there were strong grounds to suspect that Dr Chau might face extradition to the United States in connection with the alleged bribery of Mr Ashe.  Fairfax and Mr Garnaut did not contend otherwise.  The main issue is again whether the article went beyond conveying a strong suspicion that Dr Chau had so acted, and instead conveyed that he had so acted. 

5. Having regard to the way in which imputation (d) is framed, it is unnecessary to find that the article conveyed that Dr Chau was guilty of bribing, or conspiring to bribe, Mr Ashe.  That is because, generally speaking, a person can be extradited if charged with an offence in another country.  It is not necessary to demonstrate guilt for the purposes of extradition.  Thus, the article could convey that Dr Chau had acted so as to “deserve” extradition to the United States in relation to the bribery allegations if it conveyed that Dr Chau had acted in such a way as to “deserve” being charged and extradited to face trial.

6. In any event, for the reasons already given in the context of imputations (a) and (b), I am positively persuaded that the article conveyed to the ordinary reasonable reader that Dr Chau was implicated in the bribery of Mr Ashe; that he had either bribed or conspired to bribe Mr Ashe.  While the article said only that the United States “may” be considering taking action against Dr Chau, the overall impression conveyed by the article was that Dr Chau was implicated in the actions of Ms Yan so as to “deserve” such action, including extradition.  The clear impression conveyed by the article was that Ms Yan was acting on behalf of her “No. 1 client” (at [18]), Dr Chau, when she made the payment to Mr Ashe and that the payment was made for Dr Chau’s benefit, being to secure Mr Ashe’s appearance at “Chau’s resort” (at [10]), together with the “access and power” that supposedly flowed from that appearance (at [40]).  There was nothing equivocal about those statements.  The tenor, tone and generally unqualified nature of the article conveyed more than suspicion to the ordinary reasonable reader.  Read as a whole, it conveyed that Dr Chau had acted in such a way as to deserve extradition to the United States to face bribery charges.     

   Imputation (d) – Dr Chau created his business empire in Australia by making illicit payments to government officials

7. Imputation (d) is significantly different to imputations (a), (b) and (c).  Unlike those imputations, it does not directly concern the suggestion that Dr Chau was somehow implicated in the bribery case involving Mr Ashe.  Rather, it concerns the suggestion that Dr Chau made some other illicit payments to “government officials” to create his “business empire” in Australia.  The imputation is said to have been primarily conveyed by the very last paragraph of the article, read in the context of those paragraphs of the article that detail Dr Chau’s donations, connections and influence in Australia.

8. There are a number of difficulties with the contention that this imputation was conveyed by the article.

9. The first difficulty is that the main thesis or postulate concerning “illicit payments” which is developed in the article, and which culminates in the last paragraph, does not appear to relate to any “business empire” that Dr Chau may have in Australia.  Indeed, the only mention of Dr Chau having a “business empire” in Australia is the brief reference to him having a “Beijing-friendly Chinese media empire” (at [39]).  While Dr Chau is referred to as a “billionaire businessman” (at [6]) and “business leader in Australia” (at [34]), he is also referred to as a “Chinese tycoon” (at [5]) and a “Chinese real estate developer” (at [42]).  While it is somewhat unclear, the dominant impression conveyed by the article was that Dr Chau’s business empire was in China. 

10. The second difficulty, which is related to the first, is that the main thesis in the article relates more to what is described, rather vaguely and yet derisively, as the “extraordinary Kingold kingdom of Australia and China relations” (at [50]).  It appears from the earlier parts of the article that this so-called “kingdom” is Dr Chau’s network of influential business and political connections in Australia and China.  As discussed earlier, the dominant theme of the article was that if Dr Chau had bribed Mr Ashe so as to secure his attendance at his “resort”, that might suggest that Dr Chau’s connections, power and influence, including in Australia, had similarly been “bought” by such “illicit payments”. Importantly, the only payments in Australia referred to in the article were political donations (at [23]) and donations to universities (at [27] and [28]).  Those payments could perhaps be seen as being loosely consistent with the thesis that Dr Chau may have bought connections and influence in Australia.  There is, however, no real suggestion that those or any other payments assisted Dr Chau to create any “business empire in Australia”. 

11. Equally, it is difficult to see how it could be suggested that those payments were “illicit”, in the sense of being somehow improper or unlawful.  While it was said that “social networks” and “access” can “facilitate business dealings” (at [40]), the article did not link Dr Chau’s political donations and donations to universities to any business dealings.  Nor, indeed, is there any reference to any “government officials” in Australia, let alone any who may have been relevant to any business empire in Australia.  The politicians named in the article could not really be said to be “government officials”. 

12. The third difficulty is that it is doubtful that the article conveyed to the ordinary reasonable reader anything beyond a strong suspicion that Dr Chau’s influence and connections in relation to Australia and China relations may have been built on “illicit payments”.  For the reasons already given, the article considered as a whole conveyed to the ordinary reasonable reader that Dr Chau had bribed, or participated in a conspiracy to bribe, Mr Ashe.  It went well beyond simply conveying a suspicion in that regard.  That could not be said to be the case in relation to the thesis propounded by the article; that if Dr Chau was capable of paying a bribe to secure Mr Ashe’s attendance at the conference he was organising, he was equally capable of paying bribes to secure influence and connections in other areas of his “kingdom”.  The article did not go so far as to convey that Dr Chau had in fact made “illicit payments” to “government officials”, or anyone else other than Mr Ashe.  Rather, it raised or posed a question about whether that was or might be the case given the payment of the bribe to Mr Ashe.  The certainly would have conveyed to the ordinary reasonable reader that there was a strong suspicion that Dr Chau may have made other illicit payments, but it did not impute guilt in that regard.

13. In all the circumstances, I am not satisfied to the requisite standard that the article conveyed imputation (d).

14. It should perhaps be added, in fairness to Dr Chau, that the thesis advanced by the article was, at best, a fairly loose and dubious one.  Dr Chau had not been charged with bribing, or conspiring to bribe, Mr Ashe.  Indeed, even accepting that Dr Chau was, or may have been, the person identified as “CC-3” in the “complaint filed by New York prosecutors”, the prosecutors appear to have made a conscious decision not only not to charge Dr Chau, but to protect his identity.  Perhaps more significantly, while it might be accepted that Dr Chau had achieved a significant level of access to political leaders in Australia, there was not a scintilla of evidence to suggest that the access that Dr Chau had achieved was bought be any “illicit” payment or payments.  Whatever one may think of political donations, they are not in any sense illicit if they are declared.  There is no suggestion that Dr Chau’s political donations were not declared.  The apparent suggestion that donations to universities could somehow be illicit, or to have somehow improperly bought Dr Chau influence in Australia, is nothing short of bizarre.  There was nothing whatsoever to suggest that the donations to the universities were anything other than laudable philanthropy.  The article pointed to no other payments made by Dr Chau to public figures or entities, let alone any that might be considered to be “illicit”.   

15. It is, in all the circumstances, hard to see how the mere fact that Dr Chau may have somehow been involved in the events that gave rise to bribery charges against others in the United States provided reasonable grounds to invite readers to speculate that he might have been involved in making illicit payments to acquire political or public sector access in Australia.  The rather obtuse references to “Australia and China relations” and “hot air” in this context also remain a mystery.   

    QUALIFIED PRIVILEGE

16. Fairfax and Mr Garnaut contended that they had made out the defence of qualified privilege in s 30 of the Defamation Act. They argued, in short, that the recipients of the article had an interest in having information on certain subjects. Those subjects were said to be the bribery allegations concerning Mr Ashe, Dr Chau’s influence in Australian political and business circles and the connection, if any, of Dr Chau to the bribery allegations. Fairfax and Mr Garnaut claimed that the article was published in the course of giving recipients information on those subjects, and that their conduct in publishing the article was reasonable in the circumstances.

17. Dr Chau ultimately did not dispute that the recipients of the article had an interest in having information in relation to the subjects identified by Fairfax and Mr Garnaut.  Nor did they dispute that the article was published in the course of giving recipients information about those subjects.  Those concessions were sensibly made.  The subject matter of the article, including whether Dr Chau was somehow connected or implicated in the bribery allegations, was plainly a matter of proper and legitimate public interest.  The critical question was whether the conduct of Fairfax and Mr Garnaut in publishing the article, which, as has been found, conveyed defamatory imputations (a), (b) and (c), was reasonable in the circumstances.

18. Dr Chau also contended that Fairfax and Mr Garnaut were actuated by express malice in publishing the article. Section 30(4) of the Defamation Act confirms that a defence of qualified privilege under s 30(1) of the Defamation Act is defeated if a plaintiff proves that the publication of defamatory matter was actuated by express malice. It is, however, convenient to consider the question of reasonableness before considering the question of malice.

    Qualified privilege and reasonableness – Relevant principles

19. Subsections 30(1) and (2) of the Defamation Act provide as follows:

    (1)There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:

    (a)the recipient has an interest or apparent interest in having information on some subject, and

    (b)the matter is published to the recipient in the course of giving to the recipient information on that subject, and

    (c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.

    (2)For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

20. It can be seen that the statutory defence of qualified privilege has two elements.  The first element requires the respondent, who seeks to invoke the defence, to prove that the recipient of the publication had an interest or apparent interest in having information on some subject and that the defamatory “matter” was published to the recipient in the course of giving the recipient information on that subject.  The respondent must also establish that he, she or it believed on reasonable grounds that the recipient had that interest.  The second element is that the conduct of the respondent in publishing the defamatory matter was reasonable in the circumstances.

    Interest or apparent interest

21. As already indicated, Dr Chau ultimately conceded that recipients of the impugned publication had an interest in having information on certain subjects, including the bribery allegations arising from a payment or payments made to Mr Ashe, his (Dr Chau’s) possible influence in Australian political and business circles and his connection, if any, to the bribery allegations.  Dr Chau also conceded that the defamatory matter was published in the course of giving recipients information on those subjects.

22. Dr Chau’s concessions in relation to the first element of the qualified privilege defence were reasonably and properly made.  In light of the concessions, it is unnecessary to consider the principles relevant to this element in any detail.  Suffice it to say that the notion of interest, or apparent interest, is relatively broad.  It includes “any matter of genuine interest” to the recipient, including fact and opinion: Seary v Molomby [1999] NSWSC 981 at [29]-[30]; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359. It has also been said that it must be a “matter of substance” and “tangible”, and not “vague or insubstantial”: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40. It does not extend to matters of “titillation” or mere “curiosity”: Wright v Australian Broadcasting Corporation [1977] 1 NSWLR 697 at 711; Barbaro at 40.

23. There could be little doubt that, given Dr Chau’s public profile in Australia, the bribery allegations against Ms Yan and Dr Chau’s possible connection to them were subjects of genuine interest and tangible matters of substance, not matters of titillation or mere curiosity.  The recipients of the defamatory matters had an interest or apparent interest in those subjects. There was also evidence that Fairfax and Mr Garnaut believed as much on reasonable grounds.  The defamatory matters were published in the course of giving recipients information on those subjects. 

24. It follows that the first element of the defence of qualified privilege was clearly made out by Fairfax and Mr Garnaut.

    Conduct in publishing reasonable in the circumstances

25. Subsection 30(3) of the Defamation Act contains a list of factors or considerations that might be relevant in determining whether the conduct of the publisher in publishing the matter complained of was reasonable in the circumstances.  It is in the following terms:

    (3)In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:

    (a)       the extent to which the matter published is of public interest, 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.

26. This list of factors is plainly neither exhaustive, nor mandatory: Rush v Nationwide News Pty Ltd [2018] FCA 357 at [139]. Nor should it be approached inflexibly. It provides, at best, a guide or pointer to the sorts of things which might be relevant in assessing reasonableness. The relevance or weight to be given to any one or more of the factors in the list will very much hinge on the particular facts of the case. Ultimately, the Court must have regard to “all the circumstances leading up to and surrounding the publication” and it would be “unwise to attempt any comprehensive definition of what they may be”: Austin v Mirror Newspapers Ltd [1986] AC 299 at 313. The considerations which bear upon the reasonableness of the conduct of a publisher will vary with the circumstances of individual cases: Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [30] per Gleeson CJ and Gummow J.

27. The authorities in relation to the statutory defence of qualified privilege, including the cognate statutory defence of qualified privilege in s 22 of the former Defamation Act 1974 (NSW), establish a number of general principles in relation to the question whether the conduct of the respondent in publishing the matter complained of was reasonable in the circumstances. Many of those principles are replicated or addressed in s 30(3) of the Defamation Act. Like the list of factors in s 30(3), the general principles should again not be approached inflexibly, or on the basis that they comprise an exhaustive statement of the matters that may bear upon reasonableness in this context, or as if they comprise a series of hurdles or a definitive test of reasonableness: Hockey at [228]; Jameel v Wall Street Journal Europe Sprl (No 3) [2006] UKHL 44; [2007] 1 AC 359 at [33], [56]. Reasonableness is “not a concept that can be subjected to inflexible categorisation”: Rogers at [30]. Nevertheless, and bearing those cautionary considerations in mind, the following general principles would appear to be apposite to the facts and circumstances of this case.

28. First, in most cases, the more serious the imputation that is conveyed, the greater the obligation upon the respondent to ensure that its conduct in relation to the publication was reasonable: Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387C (per Hunt A-JA, with whom Samuels JA agreed); see s 30(3)(c) of the Defamation Act.

29. Second, a respondent who intended to convey an imputation that was in fact conveyed must generally establish that they believed in the truth of that imputation and that the imputation conveyed was relevant to the subject: Morgan at 387F and 388C.

30. Third, the fact that the respondent may not have intended to convey the imputation that was in fact conveyed does not necessarily mean that their conduct in publishing was unreasonable: Austin at 362; Roberts v Bass (2002) 212 CLR 1 at [81]-[82]. In such a case, the respondent must generally establish that they believed in the truth of the imputation that they intended to convey, and that their conduct was nevertheless reasonable in relation to the imputation which they did not intend to convey, but which was in fact conveyed. In that regard, it may be relevant to consider whether it was reasonably foreseeable that the publication might convey the unintended imputation and, if so, whether the respondent considered that possibility and took appropriate steps to prevent that imputation being conveyed: Morgan at 387G-388A; Obeid v John Fairfax Publications Pty Ltd (2006) 68 NSWLR 150 at [70]-[75]; Evatt v Nationwide News Pty Ltd [1999] NSWCA 99 at [40]-[43].

1. As has already been noted, Dr Chau alleged malice on the part of Fairfax and Mr Garnaut.  He contended that Fairfax and Mr Garnaut published the article for an improper purpose, being to hurt and harm him, to damage his reputation, and to discredit him.  He also alleged that Fairfax and Mr Garnaut knew that the allegations in the article were false, or that they were recklessly indifferent to the falsity of the allegations.  

2. The only real significance of the alleged malice in this matter is that, if made out, Fairfax and Mr Garnaut’s defence of qualified privilege would be defeated.  Given that it has been found that the conduct of Fairfax and Mr Garnaut in publishing the article was not reasonable, and that their qualified privilege defence has not been made out, it is strictly unnecessary to decide whether the allegation of malice was made out.  In the event that the finding of unreasonableness is successfully challenged on appeal, however, the question of malice should nonetheless be determined.

   Relevant principles - Malice

3. Malice, in the context of defamation and qualified privilege, means “any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff”: Roberts v Bass at [75] per Gaudron, McHugh and Gummow JJ. It is necessary to prove both that the publisher’s motive or purpose was foreign to the occasion of privilege and that it actuated the making of the defamatory statement. In Roberts v Bass, Gaudron, McHugh and Gummow JJ explained what was required to prove malice in the following terms (at [76]):

   Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication.

   (Footnotes omitted.)

4. An allegation of malice is essentially an allegation of dishonesty and thus must be properly particularised: Hughes v Risbridger [2009] EWHC 3244 (QB) at [15]. It must be established by cogent evidence commensurate with the seriousness of the charge: Rackham v Sandy [2005] EWHC 482 (QB) at [17].

   Was the article actuated by malice?

5. The evidence does not demonstrate malice on the part of Mr Garnaut or Fairfax.  It does not support an inference that Mr Garnaut or Fairfax published the defamatory imputations for the purpose of hurting, harming or damaging Dr Chau’s reputation, or that they otherwise had any improper motive.

6. Dr Chau’s case that Mr Garnaut and Fairfax had an improper motive was primarily based on statements made by Mr Garnaut in internal email correspondence with his colleagues in the course of investigating and drafting the article.  Some of those statements have already been referred to.  They include: in an email to Mr Bachelard and others at Fairfax which appears to have primarily related to the initial article concerning Ms Yan, Mr Garnaut wrote, in the subject line, “[d]oesn’t get much more fun than this”; in an email to Mr Wen in which he stated that CC-3 was probably Dr Chau, Mr Garnaut’s subject line was “[f]un, and huge”; in an email to various Fairfax colleagues after he had discovered that he had been scooped by a rival journalist, Mr Garnaut wrote that they [Fairfax] had been “too clever by half, saving the big hit on Dr Chau for day 2”; in an email to the journalist who scooped him, Mr Garnaut wrote, in relation to the proposed story concerning Dr Chau, “[t]his must be just about the most rewarding story the Motherland has ever given us” and “I LOVE IT”; in an email to Mr Flitton and Mr Wen after he had supposedly found a “whole graveyard of excavated websites” relating to the convention held at Dr Chau’s resort, Mr Garnaut wrote “[j]ust quietly, this is huge”; in an email to Mr Flitton and Mr Wen after he had spoken to Ms Chow, Mr Garnaut wrote “[h]e’s fucked”; and in an email to Mr Wen and Mr Bachelard after he had received Mr Wen’s report of his conversation with Dr Chau, Mr Garnaut wrote “[l]ove it”.

7. Those statements in Mr Garnaut’s internal emails to his colleagues should perhaps be considered in the context of the evidence relating to Mr Garnaut’s earlier interactions with Dr Chau and the impressions that Mr Garnaut said that he had formed about Dr Chau and his supposed his methods of operation.  As discussed earlier, it would appear that, for reasons that remain somewhat puzzling, Mr Garnaut formed an adverse impression of, and attitude towards, Dr Chau as a result of his earlier interactions.  Indeed, it would be fair to say that Mr Garnaut formed what appeared to have been an almost unhealthy obsession with Dr Chau’s wealth and apparent power and influence in China and the access and influence that he appeared to have acquired in Australia as a result of his political and philanthropic donations.  It was perhaps not surprising, in those circumstances, that Mr Garnaut so readily came to believe that Dr Chau had in fact been involved in bribing Mr Ashe, even though he had not been charged or even identified in the Complaint. 

8. Even considered in that context, however, the statements that Mr Garnaut made in his internal emails do not support an inference that Mr Garnaut’s purpose in writing the article was to damage Dr Chau.  While some of the statements made by Mr Garnaut in his internal communications perhaps do not reflect well on him and his professionalism, considered in the context of the evidence as a whole, the preferable and more reasonable inference is that Mr Garnaut was simply excited, perhaps over-excited, by the prospect of writing what he considered to be a major story about someone who he plainly believed was a major figure in relations between Australia and China.  It is clear that Mr Garnaut enjoyed his work, and that the story about Dr Chau was right up his alley, particularly given his fascination with Dr Chau.  Regrettably for Mr Garnaut and Fairfax, however, Mr Garnaut’s over-enthusiasm, coupled perhaps with his antipathy towards Dr Chau, appears to have caused him to rush out what turned out to be an overly sensationalist and poorly researched and constructed article which, despite Mr Garnaut’s apparent intentions, imputed not just suspicion, but guilt insofar as Dr Chau was concerned.  It does not, however, follow that Mr Garnaut was improperly motivated.

9. It should perhaps also be noted, in this context, that Mr Garnaut denied that his intention was to damage Dr Chau and his reputation.  He acknowledged that it was clear to him that the article would damage Dr Chau’s reputation.  He explained his attitude towards the likely damage to Dr Chau’s reputation in the following terms:

   I see?---I was – I – I – I’ve never taken any glee in hurting somebody’s reputation. In this case, I very carefully took my story up to the limits of the information, and then stepped – took a couple of big steps backwards, sir. There’s much more that I could have write – written at the time, which I did not. I get no joy out of damaging somebody else’s reputation. It is my duty to tell important facts as I see them, for the public to absorb as they do. And, in this case, I can’t actually think of a more significant story, a more significant body of information to be conveying to the Australian readers. Thank you.

10. Mr Garnaut’s evidence that his purpose in writing the article was not to hurt or damage Dr Chau should be accepted.  His evidence that he “took a couple of big steps backwards” is more doubtful.  If he did so, for the reasons already given in detail, they were certainly not big enough.

    DAMAGES

11. Dr Chau claimed both general compensatory damages for non-economic loss as well as aggravated damages.

    Compensatory damages

12. Section 34 of the Defamation Act provides that “[i]n determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”.

13. Past authorities shed some light on what might be considered to be the “appropriate and rational relationship” for the purposes of s 34.

14. In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60, a majority of the High Court noted that there are three purposes to be served by damages awarded for defamation: consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff’s personal and (if relevant) business reputation, and vindication of the plaintiff’s reputation. The first two purposes are frequently considered together, whereas “[v]indication looks to the attitude of others to the [plaintiff]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [plaintiff’s] reputation”: Carson at 61.

15. The level of damages should reflect the fact that the law “should place a high value upon the reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment”: Crampton v Nugawela (1996) 41 NSWLR 176 at 195; referred to with approval in John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291 at [3].

16. Section 35 of the Defamation Act in effect specifies a cap for non-economic loss. The prescribed cap for the purposes of s 35 of the Defamation Act is currently $398,500: Gazette No 66, 29 June 2018 p 3970. Section 35(2) provides that the cap may be exceeded “if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages”.

17. Section 36 of the Defamation Act provides that in awarding damages for defamation, the court is to “disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff”.

18. Section 38 of the Defamation Act provides that evidence of certain matters is admissible in mitigation of damages for the publication of defamatory matter. That evidence includes, relevantly, evidence that the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter: s 38(1)(e). Section 38(1)(e) is to be applied in a broad way with the object of preventing a plaintiff from receiving double compensation for the same loss, while ensuring that the plaintiff obtains proper compensation from a defendant for the particular defamatory publication sued upon: Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14 at 20; Uren v John Fairfax & Sons Ltd (1965) 66 SR (NSW) 223; O’Shane v Fairfax Publications Pty Ltd [2002] NSWSC 807 at [9]-[16]; Kevin Waters v John Fairfax Publications Pty Ltd [2005] NSWSC 394 at [33].

19. In relation to s 38 of the Defamation Act, Fairfax and Mr Garnaut relied on evidence that established that Dr Chau had commenced defamation proceedings against a rival media organisation concerning publications, which appeared in the Daily Telegraph and an associated website.  The alleged defamatory imputations in that action included that Dr Chau had bribed Mr Ashe and had engaged in such serious wrongdoing as to cause his activities to be investigated by the United States Attorney in New York.  Those proceedings were settled at an early stage.  Dr Chau received compensation of $65,000, inclusive of costs, as part of the settlement.  Fairfax and Mr Garnaut submitted that it could be inferred that at least half of that settlement figure related to the publication in the Daily Telegraph and an associated website.

    Hurt and distress

20. Dr Chau’s evidence was that he felt “hurt very much” by the article.  He said that for a few days after he read the article, he could not sleep and his heartbeat was irregular.  Dr Chau referred, in his evidence, to the fact that a number of people spoke to him about the article.  As a result of those conversations, he felt that “this was a big strike and a big hit” on him.   He said:

    I felt that for the last many tens of years.  And since I have lived in Australia for the last 20-odd years, I have done nothing, not even a single thing, that is not – that is against the benefit or the wellbeing for Australia – for Australian people.  I never thought that this sort of thing would have happened to me.

    …

    My feeling is that for the many tens – years past in China and in Australia, I never did anything illegal, anything against the law, and never expected, in Australia, being such a country with such a strong legal system, this kind of things could happen in this country.

21. Ms Chow also gave evidence of Dr Chau’s hurt feelings.  Her evidence was that after she told Dr Chau what was said in the article, he went “quiet for a bit, and he was really upset”.  He appeared to be stressed.  She said that he had “done various good things between the two country [sic], and he has been badly accused being a criminal”. 

22. The award of damages should be such as to provide consolation to Dr Chau for his hurt feelings as expressed in the evidence.

    Harm to reputation and vindication

23. There was evidence concerning Dr Chau’s good reputation prior to publication.  There was no evidence to suggest that Dr Chau had a bad reputation in any respect.

24. Dr Chau himself gave evidence about his considerable philanthropic and other contributions to Australia.  Those contributions included: successfully promoting, without remuneration or personal benefit, a huge agreement which resulted in the supply of Australian sourced natural gas to Guangdong; the donation of $20 million to the University of Technology, Sydney, to build a building to house that university’s business school; the donation of $5 million to the University of Technology to support a scholarship; the donation of $15 million to the University of Sydney to assist in the construction of a museum; donations to the Australian War Memorial; and various other sponsorships and charitable donations.  There was evidence that Dr Chau holds an honorary doctorate from the University of Technology and is honorary chairman of the Friends of the United Nations.

25. Mr Ross Milbourne was the Vice-Chancellor and President of the University of Technology Sydney when Dr Chau donated $20 million towards the business school.  Mr Milbourne had met Dr Chau a number of times in the years prior to the donation.  He said that when the donation was offered, he “did a lot of due diligence around Dr Chau and [he] knew a number of people in the circles [in which he] moved that knew him [Dr Chau] and convinced [him] on all the due diligence that he was a very honourable man”.  

26. Mr David Ellis was the Director of Museums in Cultural Engagement at the University of Sydney.  He dealt with Dr Chau in the context of his $15 million donation to the University of Sydney.  His evidence concerning Dr Chau’s reputation was as follows:

    Now, if I could ask you, please, to direct your attention to mid-October 2015. That is before the publication of the article about which this case concerns, which was called “Are Chau Chak Wing’s circles of influence in Australia-China ties built on hot air?” At that time, before the article, were you able to make an assessment of the reputation of Dr Chau in the circles in which you mixed, being higher education circles?---Yes, certainly. As soon as when his name was mentioned to me in 2014 I started to – well, to do a bit of investigation. It’s always good to know who – who we’re dealing with. Dr Chau struck me as one of Australia’s most generous philanthropists. He – he was an astute – in my mind he was a very astute businessman, one of the quiet givers in philanthropy in Australia.

27. Dr Tony Goh Chong Maw was the chair of the Australian Council of Chinese Organisations.  He had worked with Chinese community organisations in Australia for over 40 years. He had known Dr Chau since 1999.  His evidence was that Dr Chau had an “excellent reputation” and was “highly respected”, not just in the Chinese community, but also amongst the general community.  Dr Maw said that Dr Chau’s “generosity as well as his very humble personality”, together with the fact that Dr Chau was a “very successful business person”, made Dr Chau a “leader of our Chinese community”.

28. There was evidence of the rapid spread and far reach of the article, along with the resulting potential of damage to Dr Chau’s reputation.

29. Dr Chau himself received communications relating to the article from the Director-General of the Guangdong Provincial Banking Regulatory Bureau, the President of the Chinese Peoples Association for Friendship with Foreign Countries, the Director of Foreign Affairs of the State Council of the People’s Republic of China, the President of the Huaxing Bank, in which the Kingold group had a shareholding and Ms Margaret Jack, a prominent member of various company boards.  Dr Maw’s evidence was that members of the Chinese community who had read the article contacted him and conveyed their indignation.  Following the publication of the article, Mr Ellis received a flurry of phone calls from a number of people who, in the context of the University of Sydney’s acceptance of the donation from Dr Chau, questioned whether Dr Chau was a reputable person and whether the museum should be named after him.  Mr Milbourne was also contacted by various people who had read the article.

30. The award of damages should provide reparation for the harm done to Dr Chau’s reputation and be sufficient to signal to the public the vindication of Dr Chau’s reputation.

    The appropriate award

31. The assessment of compensatory damages in a defamation case is not a scientific or mathematical exercise.  There is no single right answer.  Dr Chau’s legal advisers provided the Court with a schedule of awards of damages in recent defamation cases involving the media.  Those cases were of some, albeit fairly limited, assistance in determining the appropriate award in Dr Chau’s case.  Each case must be considered on its own facts.

1. The relevant defamatory imputations in this case were unquestionably extremely serious.  They were published in an online version of a major reputable newspaper.  There was evidence of the immediate, substantial and far-reaching spread of the publication.  The imputations caused considerable hurt and harm to Dr Chau’s feelings.  They also undoubtedly damaged Dr Chau’s previously unblemished reputation.  Given Dr Chau’s profile, vindication is a significant consideration.

2. Having regard to all the relevant circumstances, including the general purposes of compensatory damages for defamation, I consider an appropriate award of damages to be $250,000.

   Section 38(1)(e) and mitigation

3. It is, however, relevant to have regard to the settlement sum of $65,000 received by Dr Chau in settlement of the defamation proceedings he commenced against the Daily Telegraph.  The defamatory imputations in those proceedings were similar in many respects to the imputations in this proceeding.  It may be accepted that a significant portion of that settlement sum represented or comprised compensation for the hurt to Dr Chau’s feelings and the damage to his reputation.  It may equally be inferred, however, that the Daily Telegraph and the online version of the Herald are quite different publications with different readerships in terms of demographics. As s 38(1)(e) is to be applied in a broad way, it would appear to be relevant to have regard to the different circulation and readership of the two publications in assessing the extent to which Dr Chau has already received compensation for the same hurt or damage.

4. In the circumstances, it would be appropriate to reduce the award of compensatory damages by $25,000 to reflect the fact that Dr Chau has already received compensation for defamatory imputations published by the Daily Telegraph which had the same meaning or effect as the defamatory imputations published by Fairfax and Mr Garnaut.

5. It follows that the award of compensatory damages should be $225,000.     

   Aggravated damages

6. Dr Chau contended that he was entitled to aggravated damages on the basis that he knew that the imputations were false and that the article remained on the Herald website in circumstances where there was no defence of justification.  He did not press various other particulars of aggravated damages that were included in the pleading.  No detailed submissions were made in support of the claim for aggravated damages.

7. Aggravated damages are appropriate where it has been established that in the publication of the matter complained of, or in the defence of the proceeding, the defendant engaged in conduct that was improper, unjustifiable or not bona fide and that conduct increased the subjective hurt suffered by the applicant: Trigell v Pheeney (1951) 82 CLR 497 at 514; Carson at 71; see most recently Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; 361 ALR 642 at [66].

8. The evidence does not support an award of aggravated damages on the basis advanced by Dr Chau.  The following brief points may be made.  

9. First, the evidence does not support a finding that Fairfax or Mr Garnaut knew that the imputations were false.  Mr Garnaut’s evidence was, in substance, that he did not intend to convey the imputations, but he nevertheless believed that they were “probably true” and had no information to suggest that they were untrue.  That aspect of Mr Garnaut’s evidence was not directly or significantly challenged.

10. Second, while it was common ground that the article remains online, it could not be said that the imputations were “plainly conveyed” such that the continued publication of the article was unjustifiable, improper and lacking in bona fides. The question whether the imputations were conveyed by the article was by no means easy or straightforward.  The arguments advanced by Fairfax and Mr Garnaut in support of the proposition that the imputations were not conveyed, while ultimately not accepted, were nonetheless not entirely unreasonable.

11. Third, there was no evidence, and no sound reason to infer, that the alleged conduct relied on by Dr Chau increased the subjective hurt he suffered.

    INJUNCTIONS AND OTHER RELIEF

12. In addition to damages, Dr Chau sought orders, in the nature of injunctions, which would have the effect of permanently restraining Fairfax and Mr Garnaut from “publishing any defamatory imputation of and concerning the Applicant as particularised by the Applicant and found by the Court to be carried by the matter complained of” and requiring Fairfax to permanently remove the matter complained of from websites operated or controlled by it. 

13. Dr Chau did not advance any substantive submissions in support of the injunctive relief. 

14. I am not inclined to make the orders sought.

15. As for the permanent injunction restraining Fairfax and Mr Garnaut from repeating their publication of the defamatory injunctions in the future, such injunctions are generally not made as a matter of course in Australia simply on the basis of a finding that defamatory imputations have been conveyed.  It is usually necessary for an applicant to show some additional factor, such as an apprehension that the respondent may, by reason of defiance, disrespect for the Court’s judgment or irrationality, republish the same or similar imputations unless restrained: Hockey at [15] and the cases there cited. Dr Chau did not point to any evidence which would suggest any reasonable grounds for apprehending that Fairfax or Mr Garnaut might republish the relevant imputations in the future if found to be defamatory. In all the circumstances, I would consider republication by Fairfax or Mr Garnaut most unlikely. In those circumstances, there is no warrant for the grant of a permanent injunction of the type sought by Dr Chau.

16. As for the order requiring Fairfax to remove the matter complained of from its websites, senior counsel for Fairfax and Mr Garnaut gave an undertaking to the Court that if, contrary to their submissions, the Court found that the defamatory imputations were conveyed by the matter complained of, Fairfax would remove the matter complained of from its websites.  Needless to say, there is no basis to conclude that that undertaking would not be complied with.  It is accordingly unnecessary to make the order sought by Dr Chau.  As already noted, Dr Chau did not contend otherwise.

    Interest

17. Finally, Dr Chau sought an order for interest pursuant to ss 51A and 52 of the Federal Court of Australia Act 1976 (Cth) (FCA Act).  Neither party advanced any submissions in respect of this order.  Fairfax and Mr Garnaut did not contend that “good cause” had been shown for why either interest should not be included in the sum for which judgment is given, or why there should not be included in the sum for which judgment is given a lump sum in lieu of such interest.

18. In the absence of any submissions on this point, I consider that the appropriate course would be to include in in the sum for which judgment is given a lump sum in lieu of interest as permitted by s 51A(1)(b) of the FCA Act. The appropriate lump sum would be an amount which approximates the amount of interest that would be payable if calculated at the rates prescribed by the Uniform Civil Procedure Rules 2005 (NSW) in respect of the assessed damages of $225,000 for the period commencing on the date of publication and ending on the date of judgment. Interest calculated on that basis would be just over $55,000. In those circumstances, I propose to include in the sum for which judgment is given a lump sum of $55,000 in lieu of interest. It follows that the amount for which judgment will be given will be $280,000.

    DISPOSITION AND ORDERS

19. Verdict and judgment should be entered for Dr Chau in the sum of $280,000, inclusive of the sum of $55,000 in lieu of interest.

20. Dr Chau’s applications for orders in the nature of injunctions should be dismissed.

21. Fairfax and Mr Garnaut should be ordered to pay Dr Chau’s costs. 

I certify that the preceding three hundred and seventy-seven (377) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:       

Dated:       22 February 2019