Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle

[2019] NSWCA 172

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle [2019] NSWCA 172

Hearing dates:

6 June 2019

Decision date:

16 July 2019

Before:

Bell P at [1];
Gleeson JA at [4];
Leeming JA at [6]

Decision:

In each of proceedings 2018/374470, 2018/374472 and 2018/374464:

 

1. Appeal dismissed with costs.

 2. Cross-appeal dismissed with costs.

Catchwords:

DEFAMATION – application to discharge jury – whether plaintiff’s closing address went beyond pleaded case – whether submissions went beyond what had been put to witness in cross-examination – whether rule in Browne v Dunn breached – whether factual error about source of instructions to defendant – whether individual or cumulative effect of matters in closing address warranted discharge of jury

 

DEFAMATION – damages – aggravated damages – whether appellable error in failing to order aggravated damages – relevance of plaintiff’s failure to adduce evidence of hurt from newspapers’ publication of jury’s verdict – relevance of identification of award of damages awarded in respect of each of three defendants’ publications

DEFAMATION – statutory qualified privilege – reasonableness – whether publisher’s conduct was reasonable – whether determined by judge or jury – meaning of “general law” – whether Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 clearly wrong – whether reasonableness as element of Lange qualified privilege determined by judge or jury – Defamation Act 2005 (NSW), ss 22, 30 considered

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56, 57, 58
Criminal Code (Qld), s 377
Defamation (Amendment) Act 1994 (NSW)
Defamation Amendment Act 2002 (NSW)
Defamation Act 1901 (NSW)
Defamation Act 1912 (NSW), ss 4, 28, 29, 30
Defamation Act 1958 (NSW), ss 17, 19
Defamation Act 1974 (NSW), ss 7A, 11, 12, 20, 21, 22, 23, Sch 3 cl 3(1)
Defamation Act 2005 (NSW), ss 4, 6, 22, 24, 25, 26, 30, 31, 35, 36
Defamation Law of Queensland (1889) (53 Vic No 12)
Judiciary Act 1903 (Cth), ss 18, 40
Juries Act 1927 (SA), s 5
Law of Evidence – Parliamentary Printer’s Protection Act 1849 (NSW) (13 Vic No 16), s 9
Libel Act 1792 (32 Geo III c 60)
Libel Act 1847 (NSW) (11 Vic No 13)
Supreme Court Act 1933 (ACT), s 22

Cases Cited:

Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25
Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15
Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383
Austin v Mirror Newspapers Ltd [1986] AC 299
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; [1992] HCA 45
Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226
Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; [1996] HCA 47
Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29
Broome v Cassell & Co [1972] AC 1027
Browne v Dunn (1893) 6 R 67
Calwell v Ipec Australia Ltd (1975) 135 CLR 321; [1975] HCA 47
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33
Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186
Commonwealth v Bank of New South Wales (1949) 79 CLR 497; [1949] HCA 47
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Croll v McRae (1930) 30 SR (NSW) 137
Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195
Daniels v State of New South Wales (No 6) [2015] NSWSC 1074
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699
Director of Public Prosecutions (Cth) v Thomas (2016) 53 VR 546; [2016] VSCA 237
Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79; [2015] NSWCA 154
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200; [1935] HCA 82
Gammage v The Queen (1969) 122 CLR 444; [1969] HCA 68
Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838
Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266
Hebditch v MacIlwaine [1894] 2 QB 54
Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161
Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (2014) 42 VR 236; [2014] VSCA 3
Hunter v Sharpe (1866) 4 F & F 983; 176 ER 875
Justin v Associated Newspapers [1967] 1 NSWR 61
Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26
Lachaux v Independent Print Ltd [2019] UKSC 27
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26
McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309
Merivale v Carson (1887) 20 QBD 275
Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Newling v Metlife Insurance Ltd [2019] NSWCA 149
Ng v R [2011] NSWCCA 227; 214 A Crim R 191
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46
Oneflare Pty Ltd v Chernih [2017] NSWCA 195
Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340
Paterson v The Queen (2004) 28 WAR 223; [2004] WASCA 63
Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478; [2008] VSCA 244
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
Risk Allah Bey v Whitehurst (1868) 18 LT(NS) 615
Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Stace v Griffith (1869) LR 2 PC 420
State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45
Taylor v Edwards [1967] 1 NSWR 689
TCN Channel Nine Pty Ltd v Pahuja [2019] NSWCA 166
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; [1934] HCA 15
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40
Western Australia v The Commonwealth (1995) 183 CLR 373; [1995] HCA 47
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Younan v Nationwide News Pty Ltd [2013] NSWCA 335

Texts Cited:

J Dietrich and I Field, “Statute and Theories of Vicarious Liability” (2019) Melbourne University Law Review (forthcoming)
M Gillooly, The Law of Defamation in Australia and New Zealand (The Federation Press, 1998)
K Gould, “The more things change, the more they stay the same ... or do they?” (2007) 12 Media and Arts Law Review 29
J D Heydon, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017)
A Kenyon and S Walker, “The Cost of Losing the Code: Historical Protection of Public Debate in Australian Defamation Law” (2014) 38 Melbourne University Law Review 554
P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005)
P Mitchell, “The Foundations of Australian Defamation Law” (2006) 28 Sydney Law Review 477
NSW Law Reform Commission, LRC 11, 1971
D Rolph, “The Sources of Defamation Law” in Gleeson, Watson & Peden (eds), Historical Foundations of Australian Law: Vol II (The Federation Press, 2013)
P Vines and S Donald, Statutory Interpretation in Private Law (The Federation Press 2019)
C Walsh, “The Defamation Act 1958 and the Common Law” (Council for Advanced Legal Studies, NSW)

Category:

Principal judgment

Parties:

Fairfax Media Publications Pty Ltd (Appellant in 2018/374470)
The Age Company Pty Ltd (Appellant in 2018/374472)
The Federal Capital Press of Australia Pty Ltd (Appellant in 2018/374464)
Chris Gayle (Respondent in each appeal)

Representation:

Counsel:
M J Collins QC, L Barnett (Appellants)
K Smark SC, M Richardson (Respondent)

  Solicitors:
Minter Ellison (Appellants)
Mark O’Brien Legal (Respondent)

File Number(s):

2018/3744702018/3744722018/374464

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2018] NSWSC 1838

Date of Decision:

30 November 2018

Before:

McCallum J

File Number(s):

2016/13257; 2016/13259; 2016/13260

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant newspapers published a series of articles alleging that Chris Gayle, an internationally famous Jamaican cricketer, had indecently exposed himself to a team masseuse in a dressing room at a suburban oval in Sydney.

Mr Gayle denied the allegation and sued the newspapers for defamation. The newspapers defended the proceedings on the grounds that the imputations complained of were true (Defamation Act 2005 (NSW), s 25), and that the publications occurred on an occasion of qualified privilege: s 30. Mr Gayle pleaded in reply that the s 30 defence was unavailable to the newspapers because the publications were actuated by malice: s 30(4).

The case was tried by the Court constituted by a judge and a jury. Mr Gayle’s case was that the masseuse had fabricated the allegation; the newspapers’ case was that her allegation was true. Mr Gayle, the masseuse and Mr Dwayne Smith (a teammate of Mr Gayle’s, who was said to be in the dressing room at the time) gave evidence and were cross-examined. The newspapers put to Mr Smith in cross-examination that he had observed the incident, and that he and Mr Gayle had then laughed about it, which he denied.

The masseuse’s evidence was that — contrary to what had earlier been put to Mr Smith and contrary to her written witness statement — Mr Smith had in fact been looking away at the time of the incident, and that he had thus not observed it. She gave no evidence as to laughter between Messrs Gayle and Smith. She also gave evidence that while she had told Mr Gayle that she was in the dressing room looking for a towel, she had in fact been looking for a sandwich, and that this untruth related to an eating disorder from which she suffered. Mr Gayle put to her that she had fabricated the allegation.

Immediately before the closing addresses, the primary judge ruled that the element of reasonableness for the qualified privilege defence in s 30(1)(c) was a matter to be determined by the judge, not the jury. Hence, the newspapers did not address the jury on matters relevant only to reasonableness. In his closing address, however, Mr Gayle addressed on four matters which had only been particularised as relevant to the reasonableness of the newspapers’ conduct.

In his closing address to the jury, Mr Gayle attacked the masseuse’s credibility. He said that the jury should conclude that she had lied to the newspapers by telling them that Mr Smith had observed the incident and that she had heard Messrs Gayle and Smith laughing. He also said that her falsely saying that she was looking for a towel affected her credibility and reliability, as did the fact that she suffered from anorexia and was on antidepressants at the time of the alleged incident.

Immediately following Mr Gayle’s closing address, the newspapers applied for the jury to be discharged. Three bases were relied upon: first, that Mr Gayle’s address on malice had impermissibly extended to matters which were only particularised as relevant to reasonableness; secondly, that the attack on the masseuse’s credibility and reliability included matters which had not been put to her in cross-examination (especially that she was generally unreliable due to her eating disorder), contrary to the so-called rule in Browne v Dunn; and, thirdly, that it was factually wrong to say that the masseuse must have told the newspapers that she had heard laughter, when in fact the true basis for the question about laughter was a text message from the team physiotherapist who said that he had entered the room after the incident and observed laughter. These bases were advanced individually and cumulatively.

The primary judge rejected the newspapers’ application. Her Honour held (1) that Mr Gayle’s case on malice had expanded during the course of the trial to include the matters which had originally been pleaded as going only to reasonableness; (2) that the masseuse’s credibility was clearly at issue and that Mr Gayle did not need to put every discrete basis for impugning it to her; and (3) that Mr Gayle’s counsel reasonably inferred that the masseuse had been the source of the question about laughter, and that any confusion in that regard was a natural consequence of the way in which the newspapers raised the matter. Her Honour did, however, give certain directions to the jury requested by the newspapers, intending to mitigate any unfairness which had arisen.

The jury returned a verdict for Mr Gayle, including a finding that the publications were actuated by malice. The primary judge awarded Mr Gayle compensatory damages of $300,000, but declined to award aggravated damages.

The newspapers appealed, contending that the primary judge had erred in refusing to discharge the jury and in finding that the element of reasonableness in s 30(1)(c) is to be determined by the judge (although no challenge was made to the jury’s finding that the publications were actuated by malice). Mr Gayle cross-appealed, contending that the primary judge erred in her Honour’s assessment of damages.

Held, by the Court, dismissing the appeals and the cross-appeals:

1.   An application to discharge a jury involves a broad discretion on the part of the trial judge, to which the parties’ relative fault may be relevant: at [1] (Bell P), [4] (Gleeson JA), [108], [113] (Leeming JA).

Taylor v Edwards [1967] 1 NSWR 689; Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208; Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, considered.

2.   Where a party alleges that a witness should be disbelieved because of multiple inconsistencies in her evidence, the rule in Browne v Dunn may not always require that each individual inconsistency be put to the witness: at [1] (Bell P), [4] (Gleeson JA), [117], [123], [127] (Leeming JA).

Oneflare Pty Ltd v Chernih [2017] NSWCA 195, considered.

3.   Where a party advances a discrete basis for disbelieving a witness, the rule in Browne v Dunn requires the party to put that basis to the witness in cross-examination: at [1] (Bell P), [4] (Gleeson JA), [121] (Leeming JA).

Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226; Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15; State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47, followed.

4.   In an application to discharge a jury, multiple discrete complaints, each insufficient of itself to warrant a discharge, may when considered cumulatively be of sufficient force to do so: at [1] (Bell P), [4] (Gleeson JA), [130]-[131] (Leeming JA).

Paterson v The Queen (2004) 28 WAR 223; [2004] WASCA 63; McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309, considered.

5.   Mr Gayle’s closing address on malice went beyond the particularised case, and the primary judge erred in finding that that case expanded during the hearing. Further, what was put by Mr Gayle about the masseuse’s credibility and reliability had contravened the rule in Browne v Dunn: at [1] (Bell P), [4] (Gleeson JA), [122], [137]-[138] (Leeming JA).

6.   Consideration of the caution required of appellate courts in determining whether a trial miscarried by reason of the judge’s decision not to discharge a jury: at [138]-[140] (Leeming JA).

Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208; Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200; [1935] HCA 82; Justin v Associated Newspapers [1967] 1 NSWR 61, referred to.

7.   Considering the bases of which the newspapers complained and their cumulative effect, in light of the curative effect of the primary judge’s directions, her Honour’s refusal to discharge the jury did not cause the trial to miscarry: at [1] (Bell P), [4] (Gleeson JA), [140]-[148] (Leeming JA).

8.   Mr Gayle failed to identify appellable error in the primary judge’s assessment of damages: at [1] (Bell P), [4] (Gleeson JA), [157], [161]-[162], [166]-[167] (Leeming JA).

9.   Consideration of whether the element of reasonableness in the defence of qualified privilege in s 30(1)(c) of the Defamation Act is to be determined by the judge or by the jury: at [169]-[259] (Leeming JA).

Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699; Daniels v State of New South Wales (No 6) [2015] NSWSC 1074; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25, considered.

10.   The question of whether the judge or the jury determines the reasonableness of the defendant’s conduct for the statutory defence of qualified privilege is attended by such doubt that it ought to be resolved by legislative amendment: at [2]-[3] (Bell P), [5] (Gleeson JA).

Judgment

1. BELL P: I have had the benefit of reading the detailed reasons of Leeming JA in draft, and I agree with them and the orders his Honour proposes.

2. The question raised by Ground 5 of the Notice of Appeal, namely whether the question of reasonableness for the purposes of s 30(1)(c) of the Defamation Act 2005 (NSW) is a question for the judge or the jury, can be very simply stated. Its answer, however, and most regrettably, is far from clear for the reasons identified with such clarity in the judgment of Leeming JA.

3. The only observation that I would add, in relation to his Honour’s discussion of Ground 5 (see [169]-[259] below), is that it would be far better for what is such an important practical matter to be resolved by legislative amendment rather than leaving the questions, issues and complexities properly raised by Leeming JA to be debated, inevitably upon appeal and at considerable expense to the parties involved, in a future case.

4. GLEESON JA: I agree with the orders proposed by Leeming JA for the reasons given by his Honour. I would add two brief comments. First, the observation at [124] applies equally to me as the other member of the Court who agreed with the passage in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40], reproduced at [123] below, which unfortunately omitted the word “not”.

5. Second, I agree with the additional observation of Bell P at [3] concerning the desirability of legislative amendment to clarify the division of function between judge and the jury in relation to the defence of statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW). I would add in this regard that to subject that question, as s 22(5)(b) does, to an anterior determination by the court of what issues “at general law” are to be determined by the judge in a defamation action and whether there is a sufficient equivalence between such issues and the issues raised by the defence of statutory qualified privilege under s 30, gives rise to unnecessary complexity and uncertainty with respect to the correct procedural process for a defamation trial. Such complexity and uncertainty is hardly conducive to the “just, quick and cheap” resolution of defamation actions, as required by the Civil Procedure Act 2005 (NSW), s 56 with respect to all proceedings.

6. LEEMING JA: The publishers of The Sydney Morning Herald, The Age and The Canberra Times have each appealed from judgments in the amount of $326,112 against them following a defamation trial before the court constituted by a Judge sitting in the Common Law Division and a jury of four. The trial arose out of the publication of a series of articles in early 2016 which accused the respondent, Mr Chris Gayle, a Jamaican cricketer who plays internationally for the West Indies, of exposing his genitals to a woman in a dressing room at a practice session at Drummoyne Oval.

7. The appeals were heard concurrently. They raise three categories of issues.

8. The first is whether the primary judge erred in refusing to accede to the application by the newspapers, immediately following closing address by senior counsel for Mr Gayle, that the jury be discharged. Three discrete aspects of the final address are impugned: what was put to the jury about (a) the evidence as to laughter in the dressing room (ground 1), (b) the issue of malice (ground 2) and (c) the mental state of the newspapers’ main witness (ground 3). The newspapers also maintain that there was error in failing to discharge the jury by reason of the cumulative effect of those three aspects (ground 4).

1. The second category of issues arises on the cross-appeals brought by Mr Gayle. These concern damages. In large measure, Mr Gayle complains that the primary judge erred in failing to award aggravated damages.

2. The third category of issues is raised by ground 5 of each appeal. It is whether the primary judge erred in determining, immediately before final addresses, and contrary to the approach her Honour had previously taken in Daniels v State of New South Wales (No 6) [2015] NSWSC 1074, that the question of reasonableness for the purpose of s 30(1)(c) of the Act (the Defamation Act 2005 (NSW) and its counterparts in other jurisdictions) was a question for the judicial officer, not the jury.

3. The largest portion of the parties’ written and oral submissions, by far, was directed to the first category, relating to the discharge of the jury. In order to address the parties’ submissions and resolve these grounds, there is no alternative but to provide a detailed summary of the trial. It should be stated that the Court was assisted by the succinct and efficient written and oral submissions made by Dr Collins QC and Mr Lewis, who appeared for the newspapers, and Mr Smark SC and Mr Richardson, who appeared for Mr Gayle. These enabled a relatively large appeal to be heard in a single day. All counsel save for Mr Smark had appeared at trial. Mr Smark’s predecessor, who conducted the trial on behalf of Mr Gayle leading Mr Richardson, was Mr McClintock SC.

4. The balance of these reasons is arranged as follows:

The pleadings	13
The trial	20
Overview of the trial	20
The parties’ openings	23
The evidence of Mr Gayle, Mr Smith and Ms Russell concerning laughter (ground 1)	28
Ms Russell’s mental state (ground 3)	49
Mr McClintock’s address as to malice (ground 2)	56
The reasons of the primary judge	75
The explanation given on 30 October 2017	77
The reasons contained in the judgment	81
Consideration of grounds 1-4	91
Inconsistencies between the reasons and what was said on 30 October 2017?	94
The relevance of fault	106
Mr Gayle’s non-compliance with the rule in Browne v Dunn	114
The test as stated in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40]	123
The failure to have regard to the cumulative effect	129
Failure to deal with submissions on malice	132
Should the jury have been discharged?	138
Mr Gayle’s Cross-Appeal	150
Reasons of the primary judge	151
Ground 5 – error in failing to infer hurt suffered by Mr Gayle	157
Ground 6 – error in discounting the indicative damages awards?	159
Grounds 1-4	163
Ground 5 of the appeal	169
Should this ground be determined at all?	174
The reasons of the primary judge	179
The functions of judge and jury	184
The defence created by s 30	190
Qualified privilege at common law in Australia	196
References to the “general law” in the Defamation Act	206
Matters “traditionally reserved” for the judge?	209
Herald and Weekly Times Ltd v Popovic	214
The creation of the Lange defence and the references to reasonableness	223
Conclusion on ground 5	249
Orders	261
Annexure “A”	263

The pleadings

13. In early January 2016, the newspapers published a series of articles in print and online concerning Mr Gayle. Their titles included, among others, “Gayle exposed himself to me, claims woman”, “Chris Gayle faces expulsion from Big Bash as officials probe claims he exposed himself to woman”, “Gayle to sue over indecent exposure allegation” and “Team email confirms West Indies management knew of misbehaviour towards woman”. Those titles sufficiently summarise the content. The newspapers accepted that the articles were defamatory of Mr Gayle, and conveyed that he had intentionally exposed his genitals to a woman, had indecently propositioned a woman and had indecently exposed himself to a woman, in the West Indies team dressing room at Drummoyne Oval during the lead-up to the 2015 Cricket World Cup.

14. The newspapers defended the proceedings on the bases of ss 25 and 30 of the Act, on the grounds that each imputation was substantially true, and each publication took place on an occasion of qualified privilege.

15. The defence contained detailed particulars of truth and qualified privilege. The particulars of truth referred to a female massage therapist who had been retained by the West Indies Cricket Board to provide massage services to the team players including Mr Gayle. The defence identified her as “Person A”; she was Ms Leanne Gaye Russell. The particulars stated that on or about 12 February 2015, during a training session at a cricket ground in Drummoyne, whilst the majority of players were on the field, Mr Gayle and another cricketer, Mr Dwayne Smith, were in the dressing room. Mr Gayle was wrapped in a towel. The particulars continued:

“A conversation took place in substance as follows:

Plaintiff:   ‘What are you looking for?’

Person A:   ‘A towel’

Plaintiff:   ‘Are you looking for this?’

Person A:   ‘No.’

As the plaintiff asked Person A ‘Are you looking for this?’, the plaintiff pulled his towel out and down and partially exposed his penis to Person A.

As Person A said ‘No’, she put her hand up to the plaintiff and walked out of the dressing room.”

16. The particulars of qualified privilege reflected the fact that the newspapers bore the burden of establishing that the publication was reasonable in the circumstances. An extensive particularisation of the reasonableness of the newspapers’ conduct was provided. It is reproduced as annexure “A” to these reasons. It included that the matters complained of were in the public interest, that the newspapers were reasonably satisfied of the integrity of the information on which they were based and had taken steps to verify those matters and that they had invited Mr Gayle’s manager to comment and fairly reported his comment. Very extensive particulars of the steps taken by Ms Chloe Saltau (the journalist whom Ms Russell had originally contacted) and Mr Chris Barrett to verify the publications were provided.

17. Mr Gayle filed a relatively short reply which, save in one respect, merely joined issue with the defence. The exception was that in answer to the defence of qualified privilege, Mr Gayle said that the publication was actuated by malice. Mr Gayle’s reply gave the following particulars of malice:

“(a)   the reckless indifference of the Defendant in publishing the allegations as against the Plaintiff in that it published those allegations without contacting, or attempting to contact, the only other alleged witness to the allegations as particularised in paragraph 23.6 of the Defence, being Dwayne Smith;

(b)   the reckless indifference of the Defendant in pleading substantial truth in its Defence filed in these proceedings without contacting, or attempting to contact, the only other alleged witness to the allegations as particularised in paragraph 23.6 of the Defence, being Dwayne Smith;

(c)   the reliance by the Defendant on a witness of no credit in support of its allegations published, and continuing to be published, as against the Plaintiff:

(i)   in each of the First, Second, Third, Fourth, Eighth and Ninth Matters Complained of the Defendant alleged that the woman to whom the Plaintiff had allegedly exposed his genitals (the Source) had first entered the Plaintiff’s dressing room to ‘get a sandwich as she had not eaten all day’, or ‘get a sandwich’, or was ‘looking for a sandwich as she had not eaten all day’;

(ii)   in paragraph 23.6 of the Defence, the Defendant makes a fresh claim in which the Source abandons her prior version and now asserts that she had entered the Plaintiff’s dressing room ‘looking for a towel’;

(iii)   in the premises, the changed version of events by the Source to the Defendant’s knowledge renders her as a witness of no credit who has fabricated the allegations against the Plaintiff and is an unreliable witness;

(iv)   despite the matters referred to in paragraphs (i)-(iii), the Defendant:

A.   continues to publish online the original version of the Source’s allegations as specified in (i) above despite those versions now having been abandoned by the Defendant in its Defence;

B.   continues to publish online in the Sixth and Seventh Matters Complained Of statements that it ‘stands by the story’;

(d)   by reason of the matters stated above, the Defendant was and is aware that the Plaintiff’s imputations particularised in the proceedings were false;

(e)   in the alternative to (d), by reason of the matters set out in paragraphs (a)-(c) above, the Defendant was and is recklessly indifferent to the truth or falsity of the Plaintiff’s imputations particularised in the proceedings, such that it was and is wilfully blind to the truth or falsity of those imputations.”

18. It may be helpful at this stage to note the following matters:

1. The defence of truth proceeded on the basis that three people were in the players’ dressing room at the relevant time: Mr Gayle, Ms Russell and Mr Smith.

2. The alleged failure on the part of the newspapers to attempt to contact Mr Smith was the subject of the first and second particulars relied upon by Mr Gayle for malice.

3. Mr Gayle’s third particular of malice identified an inconsistency in Ms Russell’s account, relating to whether she had entered the dressing room to get a sandwich, or else was looking for a towel.

4. The particulars of malice alleged that her “changed version of events” was such as to render her “a witness of no credit who has fabricated the allegations against the plaintiff and is an unreliable witness”.

5. The particulars of malice relied on by Mr Gayle were much more confined than the particulars of reasonableness relied on by the newspapers.

19. At some stage prior to trial, interrogatories were administered and answered. One was ultimately tendered:

“Did the Defendant by publishing the matters complained of (or any of them) intend to damage the reputation of the Plaintiff?

[Answer:] Yes.”

The trial

Overview of the trial

20. The trial commenced on Monday 23 October 2017. The evidence concluded on Thursday 26 October, as did the newspapers’ closing submissions. Mr Gayle’s closing address to the jury commenced late on the Thursday afternoon, and flowed into Friday. Immediately following the conclusion of his address, the newspapers applied for the jury’s discharge, and that application occupied the balance of Friday, and was the subject of an exchange of written submissions on the Sunday and further short submissions on the Monday morning. The primary judge declined to discharge the jury, but gave some directions in accordance with the newspapers’ (fallback) submissions. Her Honour summed up later in the morning of Monday 30 October 2017.

21. On the same day the jury retired at 12:40pm and returned at 2:36pm with a special verdict answering questions reserved to them to the effect that the newspapers had not established substantial truth and Mr Gayle had established that the newspapers were actuated by malice.

22. There was a further brief hearing on the remaining issues in the case, in which Mr Gayle reopened in order to tender the newspapers’ report of the discharge application and jury verdict. The primary judge reserved her decision and delivered judgment on 30 November 2018: Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838. That judgment also included her Honour’s reserved reasons for certain rulings she had given during the course of the trial.

The parties’ openings

23. At the outset of the trial, and in the absence of the jury, Mr Gayle advised that he would be submitting that the decision of the primary judge in Daniels was wrong and that it was a matter for the judge to determine qualified privilege including the issue of reasonableness. However, counsel advised that the issue did not need to be addressed yet on the basis that:

“I’m going to open on malice and I’m going to leave it perhaps a little vague in relation to exactly what they are doing in relation to reasonableness”.

Her Honour advised that she had formed the view that she needed to “rethink this carefully” such that “if we can keep it out of the opening that’s the best approach”.

24. After hearing from both parties her Honour advised:

“It’s not going to be an easy question to decide. I don’t think I need to decide it now so if you would just open sort of more or less in a general way.”

25. The jury was empanelled and the primary judge introduced the issues, including the defence of qualified privilege in a general way. Counsel for Mr Gayle opened, briefly, emphasising the interrogatory reproduced above. Counsel stated that Ms Russell had come forward and provided a story to a journalist, and then said of Ms Russell:

“She’s given a number of different versions of what actually happened, which I’ll be asking her about when she gets in the witness box.”

Counsel also stated that the newspapers knew there was a witness, a third person, Mr Dwayne Smith, and then anticipated the submissions he would be making at the end of the case concerning the failure to attempt to contact Mr Smith:

“They didn’t make any attempt and this is the reason why I say that they were reckless or one of them was reckless they didn’t make any attempt to contact that player. I am going to say to you at the end of this case that that’s a disgraceful breach, that the duties of what journalists should do. You see, members of the jury, I don’t want to get ahead of myself, but part of this case is going to be whether the journalists here did their job properly and honestly and I’m going to be saying to you at the end of the case that they did it dishonestly, that they acted maliciously. I will explain what that means, but think of this, members of the jury, I don’t believe there will be any dispute about this from them, from the defendants, they’re told by a woman that my client exposed his genitals. They know that there was a witness present. Do they contact the witness to find out what he would say? No, they don’t, yet they go ahead and publish, members of the jury.”

26. As had been flagged in the absence of the jury, counsel touched upon the question of reasonableness only lightly, and, in the passage reproduced below, returned to the question of malice:

“The second issue of those group of issues you will be deciding – and the evidence of this will come largely, I suspect, from the journalists themselves when they give their evidence but it involves the defendants’ conduct and it is how – the issue of how they went creating the story, what they did, how they set out creating this work of fiction, because that’s what it is. My submission as I said to you a little while ago, is that at the end of the case, I’m going to be putting to you that Ms Saltau was malicious. What does that mean? There’s nothing hard in it. It just means that she published for an improper purpose, that is, for – purpose that we nominate is to harm my client and damage his reputation. How do we know that that was her purpose? Because they said so in that interrogatory that I read to you, as part of what we rely upon and the other things in support of the allegation that they were malicious. Also part of that is, of course, we say that they were reckless as to whether what they published was true or false. As I said, one critical part of that as to recklessness is why did they publish this when they knew there was a witness and they didn’t check (not transcribable), I suggest, members of the jury, like malice, and that will be the evidence. That’s all I wish to say about the issues, members of the jury …”.

27. I shall defer dealing with what was subsequently said during the trial as to the relationship between the evidence going to relevance and the evidence going to malice until dealing with the submissions made on ground 2.

The evidence of Mr Gayle, Mr Smith and Ms Russell concerning laughter (ground 1)

28. Mr Gayle was then called. It should perhaps be said that no differently from most defamation trials in the Supreme Court, but differently from most civil trials in the Court, there had been no service of any affidavits or witness statements and evidence was adduced in chief by counsel before each witness was cross-examined. The wisdom or otherwise of that course is not a matter as to which I express any view.

29. Mr Gayle said that he had attended Drummoyne Oval twice in 2015 for practice. He denied that any incident in which he exposed himself to Ms Russell ever happened. He said he had no memory of being in the dressing room with Mr Smith at Drummoyne Oval. He was shown an email dated 12 February 2015 from Sir Richie Richardson, sent to him and the other members of his team, which stated:

“Dear Gentlemen,

In the past few days Leanne Russell has encountered a few uncomfortable situations with members of the team. Please at all times treat her in a professional and respectable way.”

30. Mr Gayle accepted that he had received the email, but said that he never thought that it was referring to anything that he had done.

31. Mr Gayle was cross-examined by Dr Collins, and Ms Russell’s version of the events of 11 February 2015 was put to him:

“Q. I just put to you that you had a towel around your waist in the change room at 2.15pm on 11 February?

A. No, I didn’t.

Q. I put to you that Dwayne Smith was also in the change room at around 2.15 on 11 February?

A. No, I didn’t – I can’t recall that.

Q. Is it possible he was in the change room with you?

A. I doubt it.

Q. You doubt it, but you don’t rule it [out]?

A. I don’t rule it out.

Q. Was Dwayne Smith wearing training clothes at around 2.15pm on 11 February?

A. Yes, he was wearing training clothes.

Q. I want to suggest to you that at around 2.15pm you saw Leanne Russell come into the change rooms?

A. No, I didn’t.

Q. I suggest to you that you were standing about 2 metres apart?

A. We were. That’s what he said.

Q. I’m asking where you were standing--

A. No, I didn’t see her.

Q. --about 2 metres apart from Leanne Russell?

A. No.

Q. I suggest to you that you said to Leanne Russell in the change rooms, ‘What are you looking for?’

A. No, I didn’t.

Q. I suggest to you that she said to you, ‘A towel’?

A. No, I didn’t - no, she didn’t.

Q. I suggest to you that at that point you pulled your towel up and down so that your penis was partially exposed?

A. That never happened.

Q. I suggest to you that as you did that you said to her, ‘Are you looking for this?’

A. That never happened.

Q. I suggest to you that at that point, Leanne Russell put her hand up in front of her face to block her view of you and turned her head and walked out of the change room?

A. Not to my knowledge, that never happened.

Q. I want to suggest to you is that she said the word, ‘No’, at the point when

she raised her hand up? You need to say for the transcript, Mr Gayle?

A. I didn’t see her.

Q. You didn’t see her?

A. She wasn’t in the dressing room.

Q. Is it that she definitely wasn’t in the change room also or that you don’t remember seeing her in the change rooms?

A. No, she wasn’t there. We didn’t have those engagement at that time.”

32. It will be seen that Dr Collins carefully and in some detail put an account to Mr Gayle of what was said to have been his encounter with Ms Russell.

33. Mr Dwayne Smith, Mr Gayle’s teammate and the only other person alleged to have been in the change room at the time of the incident, gave evidence in Mr Gayle’s case on the following day. Unlike Mr Gayle, Mr Smith’s evidence was that he did recall being in the dressing room with Mr Gayle, and that Ms Russell did enter the room:

“Q. Did you go with the team to warm up immediately after arriving at the oval and going to the change rooms?

A. No.

Q. You remained in the change rooms?

A. Yes.

Q. You were in the change rooms with Mr Gayle?

A. Yes.

Q. While you were in the change rooms with Mr Gayle Ms Russell entered the change rooms?

A. Yeah.

Q. Where were you standing at the time that Mr Gayle entered the change rooms?

A. I was actually sitting down.

Q. You were sitting down, where were you physically in the change rooms?

A. In the dressing room. I don’t know where I would be, I was in the dressing room sitting.

Q. I want to suggest to you you were standing behind Mr Gayle, about a metre or two behind him?

A. I can’t remember how far I was away from him.

Q. Were you behind Mr Gayle?

A. Yeah.

Q. Was Mr Gayle facing towards Leanne Russell as she entered the change rooms?

A. No.

Q. Can you just describe to the jury what Mr Gayle was doing to your observation when Ms Russell entered the change rooms?

A. We were talking.

Q. You were talking to Mr Gayle?

A. Yeah.

Q. And Ms Russell entered the change rooms?

A. Yes.

Q. Did you see her enter the change room?

A. Yes, I did.

Q. Were you looking in the direction of the door to the change room?

A. I was in the dressing room, I can’t remember where the door was at that time.

Q. No, but you saw Ms Russell come into the room?

A. She passed me.

Q. She passed you?

A. Yeah.

Q. Where did she go?

A. Well, further past.”

34. While Mr Smith agreed with Ms Russell’s account to the extent that the two of them and Mr Gayle had been in the dressing room at the relevant time, he supported Mr Gayle’s version of events by denying that there was any interaction between Ms Russell and Mr Gayle in the dressing room:

“Q. I want to suggest to you that Mr Gayle had a towel around his waist?

A. No.

Q. I want to suggest to you that when Ms Russell entered the change rooms,

Mr Gayle turned and looked at her?

A. No.

Q. Mr Gayle said to Ms Russell ‘What are you looking for?’?

A. No.

Q. Ms Russell said, ‘I’m looking for a towel’?

A. No.

Q. I’m asking whether you saw this, did you see Mr Gayle pull his towel up and down so that his penis was partially exposed?

A. That did not happen.

Q. You deny any conversation between Mr Gayle and Ms Russell in the change rooms?

A. Yes.

Q. I suggest to you, Mr Smith, that there was such a conversation and that you overheard it?

A. No.

Q. I suggest to you that Mr Gayle pulled his towel up and down, exposing partially his penis, and that as he did that he said, ‘Are you looking for this?’?

A. That did not happen.

Q. I suggest to you that Ms Russell then put her hand up in front of her face to block her view of Mr Gayle, said, ‘No’ and walked out of the change room. You deny that that happened?

A. Yes.

Q. I’m suggesting, Mr Smith, that did happen and you observed it?

A. No.

Q. I’m suggesting that you and Mr Gayle then laughed about what had occurred?

A. No. (emphasis added)

35. As things unfolded, the final question and answer in that exchange, whereby Dr Collins put to Mr Smith that he and Mr Gayle had laughed about the encounter, became a critical matter in the newspapers’ ultimate application to discharge the jury. It will be seen in due course that particular prominence was given to the word “then” in the last and third last questions, which have been emphasised above.

36. Once again, there is no reason to doubt that the cross-examination of Mr Smith reproduced above reflected the findings on a central issue of disputed primary fact which the newspapers were intending ultimately to ask the jury to make. There is also no reason to doubt that that is precisely how the questions were understood by those appearing for Mr Gayle.

37. Ms Russell was called in the newspapers’ case on the Wednesday. In her evidence-in-chief, she said nothing about any laughter between Mr Gayle and Mr Smith. Indeed, contrary to what had been put to Mr Smith by Dr Collins, and (as it later emerged) contrary to a witness statement prepared by Ms Russell in July 2017, her evidence at trial was that Mr Smith did not observe the exchange between her and Mr Gayle.

38. Her account of the incident in her evidence-in-chief was as follows:

“Q. Could you just describe to the jury what happened when you went into the change room?

A. When I went into the change room I saw Chris and Dwayne.

Q. That’s Chris Gayle and Dwayne Smith?

A. Correct.

Q. Just describe for the jury where they were in the change room relative to the door that you entered on?

A. Chris was just inside the change room. He was probably about five or six feet back, near where the bank of lockers starts. Dwayne was behind Chris’s left shoulder. Chris was – Chris was wearing a towel and he said, ‘What are

you looking’—

Q. Before you go to that, sorry, Ms Russell can you describe for us what Mr Gayle was wearing apart from a towel, if anything?

A. I believe he was wearing a shirt as well.

Q. Are you able to describe the shirt?

A. My best guess would be the usual training shirt, he would not be in plain clothes.

Q. What was Mr Smith wearing, did you notice that?

A. I can’t say I recall, no.

Q. Where was Mr Smith relative to where Mr Gayle was?

A. Behind his left shoulder and possibly about two feet back.

Q. Are you able to say which way Mr Gayle was facing as you entered the room?

A. Facing directly to me when I walked in.

Q. What about Mr Smith?

A. He was standing almost on an angle looking to his right side of the room.

Q. You were about to tell the jury what happened as you entered the room?

A. Yes. Chris asked me what I was looking for.

Q. If you could, try and use the exact words that he used, so he said, and then say the precise words he used?

A. He said, ‘What are you looking for’.

Q. Yes?

A. I said, ‘A towel’. He replied, ‘Are you looking for this?’, and pulled his towel out and down. I proceeded to shield my eyes and said, "No", and I exited the change room.

Q. When he said, ‘Are you looking for this?’, what did you see?

A. I saw the top half of Chris's penis, I apologise, and I thereafter shielded my view and I left the change room.

Q. How far away from Mr Gayle were you when this occurred?

A. About three feet.

Q. You say you shielded your view, can you show the jury what you physically did? The witness has shown--

HER HONOUR: No, just for the transcript the witness is holding her left hand up, palm out, near her eye.

COLLINS

Q. You lifted your left palm up in front of your eye and what did you do then?

A. I said, ‘No’, and I walked out.

Q. Can you estimate for the jury how long this interaction took?

A. I would guess from the time I entered the change room to the time I left it would have been under ten seconds.

Q. Did you observe what Mr Smith was doing while this occurred?

A. He was eating something.

Q. Why are you so sure about that?

A. I remember him chewing, and he was looking off to over his right shoulder. I remember him chewing something.

Q. Are you able to say what Mr Smith was looking at as this interaction occurred between you and Mr Gayle?

A. No, the change room was empty.

Q. What was Mr Smith looking at, are you able to say?

A. He was looking off to the right, which was the right wall of the change room.

Q. Yes, what does that mean relative to where Mr Gayle was?

A. To where Mr Gayle was? Can you repeat the question, I’m just--

Q. I’ll ask you squarely, was Mr Smith looking in your direction in the time of this interaction?

A. No, he was looking over his right shoulder towards the right wall.

COLLINS: Your Honour, I notice the time. Is that a convenient point for the

morning break?

HER HONOUR: Yes, I’ll take an early adjournment”.

39. It is palpable on the face of the transcript that Ms Russell’s evidence concerning what Mr Smith was doing during the interaction had not unfolded as expected. It was squarely contrary to what had been put to Mr Smith in cross-examination the day before. Ms Russell’s clear evidence that Mr Smith was not looking at her when Mr Gayle was said to have said “Are you looking for this?” was given first in answer to a non-leading question (“He was looking off to the right”) and then confirmed in the last question and answer before the adjournment, when counsel asked her “squarely” whether Mr Smith was looking in her direction.

40. There are all sorts of explanations for the unexpected difficulty encountered by counsel in evidence-in-chief. And it may fairly be said that little might turn on where she recollected Mr Smith was looking at that brief moment in time, years before, in the dressing room at Drummoyne. But the nature of litigation on contested issues of testimonial evidence is that such a departure can assume a heightened significance, well beyond its true worth.

41. In any event, the departure from what had been put to Mr Smith the previous day must have been obvious to counsel on both sides and to the judge, who acceded to an application for an “early” mid-morning break.

42. During the adjournment Dr Collins had an opportunity to confer with Ms Russell. I infer that was the purpose of his application for an early mid-morning break. It is unclear whether that occurred. When the hearing resumed, Dr Collins did not return to the answers which Ms Russell had already given. However, he asked a further question capable of being understood – and which, the record shows, was in fact understood – as an attempt to elicit evidence as to Mr Smith and Mr Gayle laughing about the incident:

“Q. Before going to the stands did you hear any interaction between Mr Gayle and Mr Smith as you were in or leaving the change room?

A. No, I didn’t.”

43. Ms Russell’s evidence produced two unsurprising consequences. First, counsel for Mr Gayle did not cross-examine on Ms Russell’s answers. Secondly, in a case where the central issue was whether Mr Gayle had exposed himself, and where the sole witness of primary fact called by the newspapers had seemingly given different testimonial evidence from that on which the cross-examination of Mr Smith had proceeded, the inconsistency was at the forefront of counsel’s address to the jury:

“On Tuesday Dr Collins suggested to Dwayne Smith that he saw what Russell said happened and he laughed about it. I’ll take you to the transcript, because this is important, members of the jury. I explained part of this to you yesterday but before I take you to the transcript: barristers don’t invent things. We’re not allowed to make things up and just say, well, we think this might have happened and put it to witnesses. We’re only allowed – and this applies to Dr Collins as much as to me, to all of us – we’re only allowed to put things based on the information that we’re given by the people in question. It’s called our instructions. That’s the lawyers’ phrase.

We know that Dr Collins had instructions and they must have come – they could only have come – from Ms Russell. What were they? You can tell what they were and you can tell that this is what Ms Russell was saying – this is the crucial point – she was saying this, knowing it would be relied upon by the counsel for the newspapers, a serious thing, a very serious thing. As I said, we know that she said this, because this is what was put by Dr Collins to Mr Smith in relation to this incident.”

44. At the conclusion of the cross-examination, Mr McClintock called for a witness statement which Ms Russell had used to refresh her memory out of court. That statement was not tendered at the trial, but was informally tendered on the discharge application. It recorded Ms Russell stating that both Messrs Gayle and Smith had been looking at her as Mr Gayle had exposed himself and asked “Are you looking for this?”. The witness statement did not mention any laughter.

45. From the premise that Ms Russell had instructed Dr Collins that Mr Smith and Mr Gayle had laughed immediately after the incident, Mr McClintock launched a robust attack on her credibility in his address to the jury:

“On Tuesday, Smith sees the exposure, thinks it’s funny, laughs about it. On Wednesday, in her evidence-in-chief, he didn’t see it, and didn’t laugh about it. It is absolutely clear that in the witness box, Russell gave a totally new and inconsistent version of Mr Smith’s involvement. The two can’t stand together. He either saw it, and thought it was funny, or he didn’t see it, and didn’t laugh.

These are all part of the way you assess the honesty of people, and she was dishonest and this is a good example. Let’s consider the possibilities. The first possibility, I suggest you would rate this low, is that she made a mistake, and forgot what she told Dr Collins before. If that’s the case, she’s unreliable as a witness, and you wouldn’t accept her on any disputed issue, where her evidence is important.

The second possibility, and this is what we say happened, is she’s a liar. She fabricated this. She fabricated both versions, and it’s really hard to be a really good liar. Because really, people who tell the truth don’t have to worry about being consistent. Because they know what happened, and they say it. People who are liars always have the problem that they get the details wrong, and give inconsistent versions, because they’re not telling the truth. If you’re telling the truth, as I said, you know what happened. If you’re lying, you don't and this is a classic example of that. She says on one day, through Dr Collins on one day, he saw it, thought it was a big joke, ha, ha, ha, laughed about it. Next day, didn’t see it, didn’t laugh about it, no interchange. That’s a classic example of how difficult it is for a liar to keep consistent.”

(To be clear, I regard much of this rhetoric as misplaced. Honest witnesses with clear recollections of relevant events, honest witnesses with poor recollections, witnesses with no recollection and dishonest witnesses all get details wrong in ordinary life as well as in cross-examination. That is not intended as a criticism of counsel, who was entitled to exploit the perceived inconsistency as he saw fit, within certain limits, and was certainly entitled to employ rhetoric to persuade the jury to conclude that the witness was lying.) The clear import of Mr McClintock’s address to the jury was that Ms Russell had been the source of instructions to Dr Collins as to Mr Smith’s laughing in the dressing room.

46. Immediately following the conclusion of Mr McClintock’s closing address, Dr Collins identified a basis for the question to Mr Smith about laughter other than instructions from Ms Russell. That source was a text message sent by Mr C J Clark, the West Indies team physiotherapist, to Ms Russell in the days following publication of the original article making the allegations against Mr Gayle. Mr Clark said in that text message:

“well i can attest to seeing Gayle in his towel immediately before you went in. and that he and smithy were lauhhing [sic] about it as i walked in thereafter. and the joking thay [sic] happened for the next few days”

47. That message was never admitted into evidence before the jury. However, it was part of an exchange of text messages which Ms Russell had produced in August 2016 and again in October 2017 in response to a subpoena served upon her by Mr Gayle, and is to be treated as if it had been tendered on the voir dire in which the discharge application was made. The newspapers submitted that Mr McClintock should have known that this was a potential basis for the question about laughter in the alternative to instructions from Ms Russell (as had been the import of Mr McClintock’s closing address). Mr McClintock maintained that, although he had probably at some stage seen the text message, it had not been part of his thinking processes when he addressed the jury.

48. It will be convenient to return to that dispute when dealing with ground 1 of the newspapers’ appeals, and now turn to another aspect of the cross-examination of Ms Russell, which gives rise to ground 3.

Ms Russell’s mental state (ground 3)

49. The nub of ground 3 is that Mr McClintock failed sufficiently to put matters to Ms Russell in cross-examination to sustain a separate part of his attack upon her credibility in his closing address.

50. During her examination-in-chief, Ms Russell gave evidence that she suffered from anorexia:

“Q. Ms Russell, what made you go into the change room at the time you’ve described, a bit after 2 o’clock on 11 February 2015?

A. I hadn’t eaten that day and the catering was placed in the change room on that occasion.

Q. Do we take it from that that you went into the change room looking for catering?

A. Correct.

Q. When Mr Gayle asked you, ‘What are you looking for?’ why did you say, ‘A towel’?

A. I have a history of eating disorders, I often avoid food. I lose weight very quickly when I’m alone, particularly on tour. My natural inclination is to not discuss food. I rarely accept invitations out based around food. So, it was a knee jerk reaction to avoid the topic of food.

Q. Sorry to ask you the question but what is the nature of the eating disorder?

A. I suffered with anorexia in a point where I would starve myself and exercise excessively in order to lose weight. Had a history of going up and down with my weight and that was a way that, a method that I had employed to keep my weight under control.

Q. What was the nature of your condition in relation to your eating disorder as at 11 February 2015?

A. It was at the start of the tour, and again, when I’m away from family and friends it’s an opportunity for me to not have to eat very much so I was starting to employ those tactics or had already started, I should say.”

51. Mr McClintock took up the subject of Ms Russell’s eating disorder from the opening question of his cross-examination:

“Q. Ms Russell, I don’t wish to be unkind to you in any way, but you told the jury that you were suffering from anorexia in February 2015, didn’t you?

A. Yes.

Q. Anorexia is of course a recognised psychiatric illness, isn’t it?

A. Yes.

Q. Were you taking any medication in 2015 for it?

A. Yes.

Q. What medication were you taking then?

A. I was taking Sertraline.

Q. What does that do?

A. Sertraline is an antidepressant.

Q. Are you taking any medication now?

A. Yes.

Q. What medication are you taking?

A. Same thing.

Q. Is that the only drug that you’re taking?

A. Yes.

Q. Were you receiving any treatment from a psychiatrist in respect of anorexia, your anorexia in February 2015?

A. No.

Q. Are you receiving any such treatment now?

A. No.”

Mr McClintock returned to the topic of Ms Russell’s eating disorder only once more in cross-examination:

“Q. I just go to now, to ask you about the incident that you say occurred on 11 February 2015 first. You say that you went into the dressing room looking for sandwiches?

A. Yes.

Q. You say that when Mr Gayle asked you what you were looking for you said, ‘A towel’?

A. Correct.

Q. The reason why you said that was because of this psychiatric illness, anorexia that you were suffering, wasn’t it?

A. Correct.

Q. I’m not criticising you for this, but it wasn’t true, was it, you weren’t looking--

HER HONOUR: That you were looking for a towel.

MCCLINTOCK

Q. You weren’t looking for a towel?

A. No, correct.

Q. The illness, you felt so sensitive about the illness you suffered that you told Mr Gayle an untruth you say?

A. Yes.”

52. However, in his closing address to the jury, Mr McClintock made a much broader attack on Ms Russell’s credibility. That attack was explicitly linked to Ms Russell’s evidence about her anorexia:

“Now, a woman who is so troubled by anorexia, someone who is so mentally fragile, that they can’t even use the word ‘sandwich’ and has to use the word towel – there is still something very, very odd about that, members of the jury and I’m not entirely sure we’ll ever get to the bottom of it, but the significance is this: the whole thing starts with a lie told by Ms Russell. It’s not true that she was looking for a towel. She was looking for a sandwich. So, it’s untrue. You might think her explanation, anorexia, the psychological disability that I asked her about, is a satisfactory explanation for the untruth – for the lie – but it is still a lie and you can assess her credibility because you know that she told a lie. But more significantly, even more significantly, her conduct at a crucial part of the first story was affected by the psychological and psychiatric disability she is suffering from. She did something because of the anorexia. That is again something significant that you would take into account in assessing her credibility. I don’t wish to be unfair to her and I certainly don’t wish to be unkind. I don’t minimise the agony that people who suffer from anorexia suffer from, or indeed from any other mental illness, depression, and you remember she told you she was antidepressants at the time in question and in the witness box. I don’t minimise that at all.

If you’ve ever had anyone you know in your family who suffers from a mental illness or depression, you’ll know how agonising it is. But – but – it does affect how you should assess her because she was in the grip of it when she says this incident, which we say didn’t happen, happened. And she was – and her conduct was affected by it, members of the jury. She told an untruth. Now, and as I said, the – when you think about it, her sensitivity of the illness was so acute that she couldn’t say what she was actually doing – looking for food. There may be other explanations for this – perhaps the one she gave, members of the jury, and I’m content to live with this – that is, that she was affected by her condition. As I said, I don’t wish to be unkind but you might think that it’s not a very good start to a case about the credit – a case in terms of Ms Russell for her credibility, it’s an extreme thing to ask a jury to find a man indecently exposed himself on the say so of someone who’s unreliable, and she is, and uncorroborated.”

53. The newspapers contend that Mr McClintock had no proper basis to put to the jury that Ms Russell was generally unreliable due to her mental illness, such a proposition never having been put to Ms Russell in cross-examination. They also complained that they were taken by surprise, and might, if they had known of the extent of the submission which would be made, have adduced evidence that people suffering from eating disorders did not have any propensity to give false evidence.

54. That latter submission contributed to an aspect of the primary judge’s summing up to the jury:

“I should remind you that there is no evidence in the proceedings from which you could make any general assumption about the likelihood or otherwise of a person suffering from an eating disorder generally being dishonest. Mr McClintock’s submission was tied to that first statement that she, herself, frankly acknowledged that she had lied about why she entered the change room because she had that issue with talking about food. I do not think he was putting it any higher than that.”

55. The way in which the primary judge addressed this aspect of the application is the subject of ground 3 of the appeals.

Mr McClintock’s address as to malice (ground 2)

56. Ground 2 concerns the scope of matters which it was open for Mr McClintock to put in his closing address. The newspapers contend that the matters which Mr McClintock canvassed in support of the contention that the publication was actuated by malice went beyond the particularised case without forewarning. The particulars of malice pleaded in Mr Gayle’s reply have been extracted above. As stated in the newspapers’ written submissions in this Court, the four matters alleged to have gone beyond the particularised case were:

“(a)   the Appellants’ failure to call evidence from editors who made the decision to publish;

(b)   an email from Ian Fuge (Exhibit O);

(c)   Ms Saltau’s failure to identify Mr Clarke and make enquiries of him; and

(d)   the Appellants’ conduct in publishing the articles allegedly without verification from Sir Richie Richardson, knowing that confirmation was important.”

57. Each of these four matters was an aspect of Mr Gayle’s case in relation to the reasonableness element of the s 30 qualified privilege defence relied upon by the newspapers. Immediately before the commencement of closing addresses, the primary judge had ruled, contrary to her earlier decision in Daniels v State of New South Wales (No 6) [2015] NSWSC 1074, that the question of reasonableness under s 30(1)(c) was a matter to be determined by her Honour, not by the jury (this ruling is the subject of ground 5). In accordance with that ruling, Dr Collins did not address any of the matters going to malice, including the four matters specified above, in his closing address to the jury.

58. The four matters of which the newspapers complained were put to the jury during Mr McClintock’s closing address as follows.

59. First, of the failure to call the editors, it was said:

“We didn’t hear from the three people who were the actual decision makers to publish these articles who were Mark Forbes, the editor of the Melbourne Age, acting editor, Mr Fuge who was the sports editor of the Sydney Morning Herald and Mr Darren Goodsir who was the editor of the Sydney Morning Herald. From that you can take it that their evidence would not have helped and it’s in fact it’s probable that that answer was based on information supplied by them members of the jury. They never came to Court to explain what happened and therefore you can take it their evidence would not have helped.”

(The reference to “that answer” is a reference to the interrogatory in which the newspapers said that by publishing the articles they intended to damage Mr Gayle’s reputation.)

60. Secondly, Mr McClintock said of the email from Mr Fuge (the contents of which are apparent from what follows):

“I don't know about you members of the jury but if someone was going to publish something about me whether it was defamatory and attacked me and smeared my reputation, I’d hope that before they did it they gave me a fair chance to answer it so I could put my side of the story, because that’s what journalism’s supposed to be about, it’s not supposed to be about making judgments.

Here, if you look at exhibit O, do you think this was a fair attempt to obtain Mr Gayle’s side of the story. Get this, again, it’s pretty short, I’ll just read it to you ‘On January’, it’s an email from Mr Fuge to Mr Decent on 8 January 2016 at 5.21 re Gayle, maybe trying to get him to renegade his media department ‘We just need to be able to say we tried to get him but could not’. In other words, we don’t care what he’s got to say, we don’t care whether there’s an answer to this, we just need to say that we tried, that’s all and didn’t get it. In fact you can see from that that they don’t want an explanation, that they, in fact they prefer not to have one members of the jury. If that’s not malice members of the jury I find it hard to know what would be, that’s the third point.”

61. Thirdly, of Ms Saltau’s failure to identify and make inquiries of Mr Clark, it was put:

“Fifth reason for malice. Failure to contact Mr Clark and indeed to identify him. You see, Ms Russell tells Ms Saltau that she told someone about it. A colleague I think it was who then went to Sir Richie Richardson. Does she ask who the colleague was, no. We know Ms Russell was in contact with Mr Clark at the time because he put her up to going to the Age, you’ve seen the text messages. Mr Clark could have cast light on this, why didn’t she do it? This is recklessness and shutting your eyes to the obvious in an extreme degree members of the jury and plainly malicious.”

62. Fourthly, in relation to the complaint that the articles were published without verification from Sir Richie Richardson, it was put:

“[S]he knew that verification of the story from Sir Richie Richardson was crucial and that the story couldn’t be or shouldn’t be published without verification members of the jury. That’s exhibit 4 members of the jury. Again, I won’t ask you to take it out, it’s this. The point about it is Ms Saltau says to the editors on 5 January at 2.19:

‘Dear Ed, Chris Barrett in Sydney has gone to find the Windies Team Manager, Richie Richardson who was made aware of the allegation at the time. I’ve spoken to Gayle’s agent who has tried to persuade me not to run the story but says he’ll call back when he’s spoken to Gayle. The story will need to be legal. I am very confident about the credibility of the woman but think the story needs Richardson confirming an incident took place to put us on more solid ground.’

Then she sets out the draft. Mr Barrett ultimately gets hold of Sir Richie Richardson and this was the last question and answer in my cross-examination of him, question, ‘You were certainly’, because he was the one who actually spoke. ‘You would certainly agree with me wouldn’t you that Sir Richie Richardson did not verify the story that Ms Saltau told you about, that’s correct isn’t it?’ answer, ‘That’s correct’ so having known that verification was crucial, they didn’t get it and they couldn’t stop themselves, they then go ahead and publish without verification from someone who they thought would know.”

63. The gravamen of the newspapers’ complaint for ground 2 is that they were prejudiced by the inability to address the jury on the four matters listed above relied upon by Mr Gayle to show that the newspapers were actuated by malice, Dr Collins having addressed first. For his part, Mr Gayle submitted that adequate notice had been given by his counsel during the course of the trial that the matters relied upon to show reasonableness were also relevant to malice.

64. The newspapers described what occurred as a “radical departure from the pleaded case without notice”. The newspapers submitted that it was not merely the fact that Mr Gayle was permitted to make these unpleaded points to the jury. They emphasised that the plaintiff addressed the jury last. And they emphasised that the points were made with all of the advantages of “the advocate’s art”.

65. The newspapers said that the prejudice suffered “was not cured or ameliorated by the primary judge’s summing up”. Her Honour adhered fairly closely to the lengthy (fall-back) direction proposed by the newspapers (15 subparagraphs over pages 8 and 9 of their written submissions in support of the jury’s discharge), which Mr Gayle had not opposed: see above at [20]. That involved stating the following matters relevant to three of the four points outlined above (it was not said that any direction was warranted in relation to the submission that the three editors had not been called).

66. Of the email from Mr Fuge, her Honour said:

“Mr McClintock reminded you about exhibit O, which is an email from Mr Fuge. In that email he is talking to one of the journalists about getting a response from someone and the journalist is saying, I have to try and get a phone number and Mr Fuge says, ‘We just need to be able to say we tried to get him but couldn’t’. Mr McClintock said you would take that as a mark of no real effort to contact Mr Gayle but rather an effort to be able to say we tried to contact him but no effort to actually contact him.

I should point out that that email, in the chronology, could only relate to the last series of articles and only relating to the Sydney Morning Herald.”

67. Of the failure to make inquiries of Mr Clark, her Honour said:

“Ms Saltau gave evidence that she did turn her mind to whether she should speak to CJ Clark and try to get information from him. It was put to her in cross-examination that that was an obvious step, to check the terms of the complaint that Ms Russell said she had made to the physio. She said she thought the most important aspect of this was that someone in a position of authority within the team, that is Richie Richardson, had been made aware of it and had acted on it, and that was what she sought to check.

I remind you that Dr Collins said in his closing address to you that there is no suggestion that CJ Clark was in the change room at the time of the alleged incident, so he could not have given direct evidence of what occurred.”

68. Of the decision to publish the articles without verification from Sir Richie Richardson, her Honour referred to his email of 12 February 2015 and the steps which had been taken by the journalist to confirm its existence and content. Her Honour’s summing up continued:

“Mr McClintock invited you, I think, to compare the terms of the email with the terms of the complaint; but Ms Saltau’s point was it did exist, there was obviously something that was responded to and something that was the subject of a complaint.

You will recall that Ms Saltau sent Chris Barrett to seek a comment from Sir Richie Richardson in the change room. Ms Saltau gave evidence about that. Mr Barrett, because he was at the game at the SCG, would be able to go to the dressing room and put that to Richie Richardson. The defendants rely on the fact that she sent Mr Barrett to make that inquiry. Mr Barrett did go to the change room. He spoke to Sir Richie Richardson and also to the media person, Phil Spooner, at the SCG. You will remember Mr Barrett gave evidence about that. I think he waited around the change room for a while and ultimately he had a conversation with both of them. He said he laid out what Fairfax had heard, that they had heard allegations against Chris Gayle that he had exposed himself to a woman who worked around the team in the lead up to the World Cup, and that it was our information that Richie knew about or was told about the allegation and then sent an email to the team. Mr Barrett asked Sir Richie whether he could comment or confirm or deny the incident. He said his response was, ‘Did you hear this from the woman or someone else?’ Later he asked them to confirm or deny the story but they declined. Then he gave a description of Sir Richie Richardson’s demeanour. He said that Sir Richie Richardson was frowning, that he appeared alarmed and not pleased at all to be discussing the subject. Prior to the publication of the first articles, there was evidence that Mr Barrett conveyed the result of that inquiry back to Ms Saltau. Mr Barrett’s evidence did not address that issue, but Ms Saltau’s evidence did. She said that Mr Barrett had conveyed to her that it was clear Richie Richardson knew what he was referring to.”

69. The newspapers emphasised in their written submission to the primary judge on the discharge application that this was a fall-back position:

“The fundamental unfairness of the approach adopted by the plaintiff is, respectfully, obvious: the defendants have been deprived of the ability to put submissions, by their counsel, to the jury in relation to each of the above aspects of the evidence, and to answer the submissions put by plaintiff’s counsel. A neutral statement by the trial judge of the evidence the defendants would have addressed upon, had the plaintiff complied with the obligations set out in the authorities, is no substitute at all for an address by counsel in respect of the same matters.”

70. The newspapers submitted that they had no notice that evidence relied on in opposition to whether the publication was reasonable would be deployed to establish malice. They said that it was not practicable for counsel to be interrupted in full flight in his address to the jury, and maintain that they applied for the discharge as soon as practicable, immediately upon Mr McClintock sitting down.

71. Mr Gayle’s submissions departed somewhat from those at trial. There the emphasis was that there was evidence on those matters, and counsel was entitled to deploy it as he saw fit. It was said that “the only question now is not about the particulars, but about is there evidence and on every point, there was evidence”. But no attempt was made on appeal to defend that aspect of the submission, which ignores the controlling effect particulars may have on the case a litigant is permitted to advance, as opposed to the evidence which may be admitted.

72. On appeal, Mr Gayle relied on what had been said in the course of advising on the likely absence of objections to testimonial evidence adduced in chief, a point which had also been made at trial. His submissions were based on two passages of argument, both made in the absence of the jury.

73. First, shortly before the end of the first day’s hearing, there was a debate as to the determination of reasonableness, and whether to forestall the possibility of a further trial, reasonableness should go to the jury, and for her Honour to give an independent determination of the issue. During that exchange, Mr McClintock said:

“MCCLINTOCK: Your Honour, the reasonableness case in this case is so thin that, as I shouldn’t get ahead of myself but I’ll be asking your Honour to take it away from the jury. It’s not going to affect the evidence because all of the evidence that is relevant to reasonableness is relevant to malice, as is always the case, in fact, but there is going to be as I understand the way the evidence will come out, there will be a no evidence - there will be an application to take it away from the jury. If your Honour were against me on the propositions that I’ve been putting to your Honour, as I would assess your Honour will not be, but in addition, your Honour, if your Honour is against me on who determines the issue, I will ask your Honour independently of whatever your Honour leaves to the jury to determine the issue yourself so that we do not have to go through a new trial, if, for example, the Court of Appeal would disagree with the position that your Honour states in Daniels.” (emphasis added)

74. The following morning, immediately before the newspapers’ case opened, there was the following exchange:

HER HONOUR: Can I just ask, Mr McClintock, in light of the matter I raised this morning for further argument about whether reasonableness is to be determined by me or by the jury, are there going to be challenges to the admissibility of some of this evidence about the journalists.

MCCLINTOCK: I take the view, your Honour, that it’s relevant to malice.

HER HONOUR: That's what I was going to say, do you accept that the whole of the evidence that would go to reasonableness also falls under the rubric of malice?

MCCLINTOCK: Yes, your Honour. I won’t be objecting on that basis. I don’t suppose it’s necessary to expand. We’re dealing critically with states of mind and both in relation to reasonableness and in relation to malice therefore logically everything that would be relevant to one must be relevant to the other.”

The reasons of the primary judge

75. The primary judge dismissed the application to discharge the jury, but as has been seen did give some directions arising out of some of the matters of which the newspapers complained bearing upon grounds 2 and 3. As will be seen below, her Honour also offered to give a direction bearing upon the complaint made in ground 1, but that offer was declined by the newspapers.

76. Her Honour gave a short explanation at the time, as well as formal reasons for dismissing the application some 13 months later: Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838. In light of some of the submissions made by the newspapers, it is necessary to address both.

The explanation given on 30 October 2017

77. On the morning of Monday 30 October 2017, in the absence of the jury, when ruling on the discharge application, the primary judge gave a brief explanation for her decision. I have emphasised the passages which the newspapers contend “are impossible fully to reconcile with the judgment delivered 13 months later”:

“HER HONOUR: Ms Russell didn’t say to Minter Ellison that the two men laughed.

COLLINS: That’s right.

HER HONOUR: You also put [the laughter] to Mr Smith as if it was part of the same incident. Then when she gave evidence, she did change her version in that she said Mr Smith was looking over his shoulder chewing a sandwich, and that was a change.

COLLINS: Yes.

HER HONOUR: To the extent that laughter was an issue, it did not represent any change because she had said nothing about laughter.

COLLINS: That’s right.

HER HONOUR: You had put that, if I may with great respect to you, in a way that was confusing to me, and Mr McClintock, based on the document which I didn’t know existed, and Mr McClintock couldn’t reasonably have thought was the basis for your putting it.

So, we are left with the jury having been invited, with a proper basis, to a further change. She changed her version in that she told Minter Ellison Mr Smith was watching the exposure of the penis. Whereas, she told the jury he wasn’t.

But they have been misled to the extent that they had been invited to think she lied when she told you that she heard laughter because she never told you.

Also, you tell me part of the problem here is I don’t have evidence about the foundation for your questions, but you’ve told me that it came from that text message.

223. In order to understand the reasoning in Lange it is necessary to mention s 22 of the 1974 Act, which was one of the heads of qualified privilege created by statute, and which at all material times provided:

“22   Information

(1)   Where, in respect of matter published to any person:

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

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

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

there is a defence of qualified privilege for that publication.

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

(3)   Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.”

226. In 1994, the High Court (by bare majority) held that the implied freedom which had been recognised two years earlier in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; [1992] HCA 45 effected an alteration of the common law. In Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46, the Court answered a question reserved by holding that a publication concerning (speaking broadly) political matters would not be actionable under the law relating to defamation if the defendant establishes that (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances. Mason CJ, Toohey and Gaudron JJ explicitly stated in Theophanous that they were changing the common law rule. After explaining why the discussion of political matters was an occasion of qualified privilege, their joint judgment concluded (at 140):

“Even understood in this light, the common law defence does not conform to the constitutional freedom. As already explained, the freedom requires no more than that the person who publishes defamatory matter in the course of political discussion does not know that it is false, does not publish recklessly, and does not publish unreasonably, in the sense earlier explained.”

227. The “sense earlier explained” in relation to the requirement of reasonableness, is a reference to the following passage at 138:

“Whether a publisher has acted reasonably must be a question of fact in every case. It will depend upon the standards and expectations of the community as to whether the allegations needed to be investigated. Reasonableness is a concept with which the law is familiar (18).”

Footnote 18 provided:

“cf the consideration of reasonableness in relation to s 22 of the Defamation Act 1974 (NSW) in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 705, 711-712; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 796, 797-798; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 360.”

228. The decision of the Privy Council in Austin v Mirror Newspapers Ltd was a decision based on s 22 and proceeded explicitly on the basis that it was for the judge to determine reasonableness. So too did Wright v Australian Broadcasting Commission. Reynolds JA, with whom Glass JA agreed, referred at 711-712 (in a passage cited by the Court in Morosi v Mirror Newspapers at 796) to “the inquiry to be made by the judge in order to determine whether the defendant has satisfied him that it was reasonable of him to defame the plaintiff in the way that he did”.

229. It is convenient to pause to note what may usefully be derived, and what does not follow, from footnote 18 of Theophanous and the authorities there cited.

1. First, the fact was that judges determined the question of reasonableness posed by the s 22 defence. However, in the decisions cited in footnote 18, that approach accorded with s 23 (which had not then been repealed). By reason of s 6(3)(b) of the 2005 Act, s 23 must be put to one side. Those authorities do not speak to the question whether there was an obligation at general law for the issue of reasonableness to be determined by the Court.

2. Secondly, it will be noted that the footnote commences with a “cf”, which is apt in the present context to indicate a contrast. The body of the judgment strongly suggests that the question was regarded as one for a jury: it was a “question of fact”, which depended “upon the standards and expectations of the community”. Further, Theophanous concerned a pending trial in the County Court of Victoria. So far as I can see, there was no Victorian counterpart of s 23 of the Defamation Act 1974 (NSW).

230. Drawing all of those matters together, I read the joint judgment in Theophanous as holding that it was a question for the jury to determine whether the publisher had acted reasonably. I respectfully agree with the second subparagraph within [112] of Gillard AJA’s judgment in Popovic.

231. Returning to Lange, Deane J did not agree that there was a requirement of reasonableness:

“I am quite unable to accept that the freedom which the constitutional implication protects is, at least in relation to statements about the official conduct or consequent suitability for office of holders of high government office, conditioned upon the ability of the citizen or other publisher to satisfy a court of matters such as absence of recklessness or reasonableness”: at 188.

232. However, the broader defence which his Honour regarded as flowing from the Constitution necessarily comprehended that qualified by a requirement of reasonableness as pronounced in the judgment of Mason CJ, Toohey and Gaudron JJ, and it was on that basis that the questions reserved for determination by the Full Court were answered. Putting the matter somewhat simplistically (because nothing turns on it for present purposes), Brennan, Dawson and McHugh JJ each considered that the Constitution did not give rise to any personal defence.

233. The judgments in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45, which had been heard at the same time and were delivered on the same day did not take the matter any further, relevant for present purposes.

234. Three years later, Lange extended the existing common law defence of qualified privilege. It did so by reference to the conventional requirement of reciprocity of interest and duty. The joint judgment said at 571:

“Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it.”

235. The same paragraph referred to “the common law defence as so extended” and “the extended defence of qualified privilege”.

236. At the same time, the High Court imposed a further restriction upon the extended defence, namely, one of reasonableness. That qualification, which had been present in the reasons of Mason CJ, Toohey and Gaudron JJ (but not Deane J) in Theophanous, applied only to the new, extended aspect of the defence. It was this which was the subject of the critical passage in Lange which warrants reproducing extensively:

“Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.” [emphasis added, citations omitted]

237. The references to the “extended category of qualified privilege” are to the “extension” effected by the decision over and above the existing category of qualified privilege. I see no reason to think that the Court was attempting to express any view as to whether the judge as opposed to a jury would determine that issue. Rather, the Court was making a point as to substance, namely, that reasonableness was an element only of the extended defence formulated in Lange itself, and had no role where the existing common law defence of qualified privilege did not apply. I respectfully disagree with the force apparently attributed to those words by Gillard AJA in the third subparagraph of [112].

238. Contrary to the newspapers’ submission, I think it matters not whether the High Court in fact had in mind that s 7A did not apply, or else had overlooked that matter, when the passage relied on by Gillard AJA was written. The reason is that no issue was presented in Lange as to whether the judge or the jury would determine the defence. In fact, the defence was to operate as part of the “common law of Australia” and would be determined differently in different jurisdictions (in Victoria, primary facts would be determined by the jury, while in South Australia, everything would be determined by a judge). Judgments are authority for what they decide, and every judgment is to be read in context. As Lord Porter said in Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 637-638:

“These words must (as must every word of every judgment) be read secundum subjectam materiam. They were appropriate to their context and must be read in their context.”

239. Mr Gayle’s submission was that the deference associated with Farah Constructions Pty Ltd v Say-Dee Pty Ltd attached to what was said in Popovic. I do not agree that is so, although I am prepared to proceed on the basis, favourable to Mr Gayle, that reasonableness under Lange is the same as reasonableness as required by s 30(1)(c).

1. First, the question raised by ground 5 of the newspapers’ appeals is as to the construction of s 22(5)(b) of legislation which had not been enacted when Popovic was determined.

2. Secondly, the Court in Popovic very properly pointed out that this part of its analysis was not the subject of any ground of appeal and was accordingly obiter (and quite probably not fully argued).

3. Thirdly, insofar as Popovic expressed views as to what was and was not held in Lange it does not attract the deference stated in Farah Constructions. The binding force of Lange upon this Court is unaffected by what was said of that decision by another intermediate appellate court, although, naturally, regard will be had to that other court’s reasons as a matter of comity: Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 at [97]-[101]; Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 at [149]; Director of Public Prosecutions (Cth) v Thomas (2016) 53 VR 546; [2016] VSCA 237 at [132]-[133].

240. Returning to the judgments in Popovic, Gillard AJA added at [113]:

“Of course the trial judge, in drawing inferences from the facts, will be indulging in a fact finding exercise.

• The element of reasonableness is based upon s 22 of the Defamation Act 1974 (NSW). By reason of s 23, whether the defence has been established is one for the judge and not the jury. One of the matters that the judge would have to consider is whether the conduct of the publisher was reasonable in the circumstances. See s 22(1)(c).”

241. One aspect of this is incorrect. Section 23 had been repealed in 1994, and replaced by s 7A. However, its substance is correct.

242. His Honour addressed the then recent decision of the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, and in particular referred to Lord Nicholls’ statement that disputes of primary fact will be a matter for the jury, but “[t]he decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound.” Shortly after Reynolds, with effect from 14 February 2003, the Defamation Amendment Act 2002 (NSW) inserted s 22(2A) identifying eight matters resembling those stated in Reynolds as matters which the court might take into account in determining reasonableness; this is the immediate ancestor of the ten matters now found in s 30(3).

243. Gillard AJA then returned to New South Wales law at [116]:

“In my opinion, the cases in New South Wales concerning the question of the reasonableness of publication provide a guide to matters which are relevant to the question but one should be careful not to raise these relevant matters to principles of law. The defendant must prove that the publication was reasonable in the circumstances. That is the element of proof. That, in my view, is a question for the trial judge.”

244. I respectfully agree that his Honour was correct to express reserve in treating them as authoritative of the position in Victoria. At least since 1958, New South Wales legislation had made express provision for the determination by juries and judges of defences to actions for defamation, and the divergent approaches throughout that period could not be any safe guide to the law in Victoria. Windeyer J’s salutatory statement in Australian Consolidated Press Ltd v Uren at 204 (coincidentally, also made in a case turning on qualified privilege) is apt:

“But it is necessary to remember always that in New South Wales (as elsewhere in Australia except in Victoria and South Australia) much of the law of defamation has been codified.”

245. Gillard AJA reiterated at [117] that disputed facts going to reasonableness would be resolved by the jury but stated at [118] that whether the publication was reasonable in the circumstances was not for that purpose a “disputed fact”.

246. Gillard AJA also acknowledged, in the interests of transparency, that the issue which he had addressed as some length was not the subject of any ground of appeal, and arose only because of an inquiry by the Court when the appeal was heard: at [121].

247. Winneke ACJ agreed with Gillard AJA’s conclusions, and gave short reasons. His Honour like Gillard AJA relied on the statement by the High Court in Lange that reasonableness of conduct was “an element for the judge to consider” which has been addressed above. His Honour also said at [12] that reasonableness of the publisher’s conduct “both defines and confines the scope of the privilege”. I respectfully agree, but do not regard that statement as illuminating whether that question of fact is to be determined by judge or jury. Winneke ACJ also relied upon a statement by the Privy Council in Austin v Mirror Newspapers Ltd [1986] AC 299 at 317, which proceeded on the basis that where a defence of comment has failed, “a judge should examine the circumstances very closely before concluding that it was reasonable to publish”. But by reason of s 23 of the Defamation Act 1974 (NSW), the issue of qualified privilege was for the judge, and there was no issue in Austin v Mirror Newspapers as to the roles of judge and jury, and so Lord Griffiths’ statement does not speak to the question.

248. The third member of the Court of Appeal, Warren AJA, relevantly agreed with Gillard AJA.

Conclusion on ground 5

249. For the reasons I have given, I do not see why the decisions in New South Wales, where judges determined reasonableness under the defence created by s 22 of the 1974 statute, in accordance with either s 23 or s 7A, speak to whether reasonableness under the extended Lange defence is a matter for the judge or the jury. So far as I can see, that is part of the basis for the conclusion in Popovic that reasonableness is for the judge. To that extent, I do not regard Popovic as supporting the conclusion reached by the primary judge.

250. Indeed, if the element of reasonableness in the Lange defence is the same as the element which attracted the support of a majority of the High Court in Theophanous, then there is no reason to think that that element of the defence shifted from a matter for the jury to a matter for the judge. (Of course, whether that was so would also depend on local procedural law. One point of Lange is that the defence is an extension of the defence at common law, and therefore subject to local procedural statutes regulating how a defamation action was to be tried.)

251. If that analysis is right, then nothing that was said in Lange provides a sound foundation for identifying what is critical for the purposes of s 22(5)(b), namely, a requirement at general law for the issue of reasonableness to be determined by a judge. Indeed, it is to the contrary. To that extent also, Popovic does not support the conclusion reached by the primary judge.

252. Almost the entirety of the analysis set out above concerning s 22(5)(b) and what was said in Lange was unmentioned in the parties’ submissions. At least for that reason, there may be matters which I have overlooked. However, as presently advised, it seems to me that the reliance placed by the primary judge on what was “traditionally” left to the judge and what had been said in Popovic did not without more warrant the conclusion her Honour reached.

253. I respectfully agree with her Honour that the question is outstandingly difficult. The principal source of the difficulty is the definition of “general law”. As presently advised, the analysis in New South Wales will include the following propositions:

1. The question is whether there can be identified an obligation arising “at general law” whereby the judge must determine the issue of reasonableness in a defence to an action for defamation.

2. In accordance with s 6(3), in answering that question, the entirety of the 1958 and 1974 statutes (including amendments) must be disregarded. In particular, since all questions relating to a defence were matters for the judge from 1995 (by reason of s 7A), nothing may safely be taken from the actual decisions of New South Wales courts when s 7A was applicable.

3. Subsection 22(5)(b) requires identifying an obligation at general law to determine an issue. Subsection 22(5)(b) can only apply to an issue arising under a defence based on s 30 if substantially the same issue arose in some defence at general law.

4. Whether a publication was in the public interest has long been regarded as a question for the judge. That was so not merely by reason of the express language of s 12 of the 1974 Act, but by a series of earlier decisions. It reflects the fact that “important considerations of public and social policy [are] traditionally refined and determined by the judge”: Calwell v Ipec Australia Ltd at 329. Insofar as public interest is a matter which contributes to the defence of reasonableness in s 30(1)(c), by reason of s 30(3)(a) and (e), that is an issue for the judge by reason of s 22(5)(b).

1. It does not follow that the whole of the issue of reasonableness is a matter for the judge as opposed to the jury. As presently advised, I see no difficulty in principle with a regime where the reasonableness of the publication is left to the jury, coupled with a direction that in determining whether the publisher had been reasonable, the jury was to proceed on the basis that there was or was not any public interest in the issue.

2. Reasonableness had been an element of the s 22 defence under the 1974 Act, which was a statutory extension of qualified privilege at common law. But no assistance is derived from that for the purposes of s 22(5)(b) of the current Act, because the 1974 Act is to be disregarded in determining the position at general law. Reasonableness had also been an element of the qualified privilege given by s 17(e) of the Defamation Act 1958 (NSW), which derived from s 377(5) of the Criminal Code (Qld) (the latter is reproduced in Bedford at 650) but once again s 17(e) must be disregarded for the purposes of s 22(5)(b).

3. As presently advised, general law did not (save for one minor qualification) recognise a defence which was based upon “reasonableness”, except insofar as reasonableness was an element of the defence first recognised in Theophanous and reformulated in Lange. The qualification is a short-lived attempt by Sir Alexander Cockburn to narrow the defence of fair comment by reference to reasonableness in the 1860s, which did not survive Merivale v Carson (1887) 20 QBD 275, as explained by Professor Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005), pp 180-181. Even if that superseded notion at general law were relevant, it is clear from Cockburn CJ’s summing up that reasonableness was a question for the jury: see Hunter v Sharpe (1866) 4 F & F 983 at 1005; 176 ER 875 at 885 and Risk Allah Bey v Whitehurst (1868) 18 LT(NS) 615 at 620.

4. For the reasons I have given, and contrary to what was said in Popovic, I would not conclude that there was a requirement at general law for the element of reasonableness in that defence to be determined by the judge as opposed to by a jury. To the contrary, Theophanous held that reasonableness was for the jury, and Lange did not alter that result.

254. That analysis would tend to suggest that the earlier conclusion reached by the primary judge in Daniels was correct, and that reasonableness under s 30(1)(c) should be determined by the jury.

255. That conclusion is reinforced by the consideration mentioned by the primary judge, that it would be unlikely for the exception created by s 22(5)(b) to swallow up the whole of the rule established by s 22(2). Further, the legislative purpose of s 22 is to preserve and indeed enhance the role of juries in defamation actions; that purpose is not advanced by a construction which leaves the entirety of the element of reasonableness – which might be thought to be a quintessentially jury point – to the judge.

256. There are three further issues which I briefly mention. First, I am conscious of a debate at the academic level whether reasonableness for the purpose of Lange is the same as reasonableness for the purposes of s 22 and s 30: see especially K Gould, “The more things change, the more they stay the same ... or do they?” (2007) 12 Media and Arts Law Review 29 at 35-40. Indeed, ss 22 and 30 are themselves (slightly) differently worded. However, the question is one of construction of s 22(5)(b), and it seems unlikely that that provision would distinguish the issue of “reasonableness” at this level. But even if the issues be different, it would seem not to alter the result of applying s 22(5)(b). To reiterate, only if and to the extent that there is a requirement at general law that reasonableness be determined by a judge is the effect of s 22(2) displaced.

257. Secondly, there is reason to think that “general law” excludes not merely the 1958 and 1974 statutes, but all statutes. That follows in part from the exhaustive definition that “general law means the common law and equity”, and the fact that s 6(3) is expressed to be without limitation to s 6(2). It also tends to be confirmed by s 7(1) which provides that “The distinction at general law between slander and libel is abolished.” That distinction is ancient, but so too are the statutes which have been enacted to abolish it. Famously, the abolition was proposed by Lord Campbell, whose bill was rejected in England, but which was enacted locally by the Libel Act 1847 (NSW) (11 Vic No 13), which was preserved by s 3 of the (consolidating) Defamation Act 1901 (NSW) and s 4 of the Defamation Act 1912 (NSW): see P Mitchell, “The Foundations of Australian Defamation Law” (2006) 28 Sydney Law Review 477. As presently advised, I do not see that a further consideration of s 6(2) will alter the analysis relevantly to ground 5.

258. Thirdly, there are to my mind very large difficulties in the separation of statute on the one hand, and “common law and equity” on the other, on which s 6 and the definition of “general law” appear to proceed. As these reasons may suggest to any reader, it is very often difficult to distinguish the two. Professor Fleming once described the law of defamation as “a mosaic of statute and common law”, in a passage cited by Deane J in Theophanous at 174, but in fact that metaphor may not do justice to the complexity of the interaction. Speaking of vicarious liability, Joachim Dietrich and Iain Field have recently referred to the “nuanced story of a complex interaction between statute and common law”: “Statute and Theories of Vicarious Liability” (2019) Melbourne University Law Review (forthcoming). I have written elsewhere to the same effect, as have others: see P Vines and S Donald, Statutory Interpretation in Private Law (The Federation Press, 2019). The interrelationship of judge-made law and statute is no recent discovery. Windeyer J said half a century ago that “it is misleading to speak glibly of the common law in order to compare and contrast it with a statute”: Gammage v The Queen (1969) 122 CLR 444 at 462; [1969] HCA 68. But the reference to “general law” appears to require the analysis to proceed on that basis. Ultimately, that problematic premise to the 2005 statute is what gives rise to the most difficult problems in its application.

259. These are not merely academic problems. Take something basic to this area, and directed to a similar issue to that underlying ground 5 of these appeals. The allocation of responsibility between judge and jury has been the subject of legislative attention since no later than Sir Charles James Fox’s Libel Act of 1792 (32 Geo III c 60). That Act expanded the powers of juries in criminal trials, but was said by Baron Parke (it must be said, somewhat implausibly) to have been a declaratory act, equally applicable to civil actions: Parmiter v Coupland (1840) 6 M & W 105 at 108; 151 ER 340 at 342. Was that a statement about general law or statute? “Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship”: Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [31].

260. If the outcome of ground 5 were to make a difference to any of the court’s orders, I would not reach a final conclusion without giving the parties an opportunity to be heard on matters not addressed in their submissions. But in circumstances where they make no difference to the outcome, I see no reason to tax the parties with them. Why should the parties pay for further submissions on an issue which cannot affect the ultimate outcome? It is better that the issue be determined in a judgment where something turns on it and where it has been the subject of full submissions, in accordance with what (for example) Bell P and Emmett AJA recently said in Newling v Metlife Insurance Ltd [2019] NSWCA 149 at [2] and [73]. It may be hoped that the preceding paragraphs, although obiter, may assist when and if the issue arises in litigation where it matters.

Orders

261. For those reasons, I would dismiss grounds 1-4 of each appeal, and dismiss each cross-appeal. I would decline to determine ground 5 of each appeal. The result is that each appeal and cross-appeal should be dismissed. The issues in the appeals and the cross-appeals being severable, I see no reason to depart from the usual rule that costs follow the event.

262. I propose the following orders:

In each of proceedings 2018/374470, 2018/374472 and 2018/374464, order that:

1. Appeal dismissed with costs.

2. Cross-appeal dismissed with costs.

Annexure “A”

263. Particulars of reasonableness in the newspapers’ defences:

“(a)   the matters complained of related to the Subjects, which were subjects of proper and legitimate public interest;

(b)   the defendant took care to distinguish between allegations, suspicions and proven facts;

(c)   it was in the public interest in the circumstances for the matters complained of to be published expeditiously;

(d)   the defendant is engaged in the business of providing information to the public, and published the matters complained of in the ordinary and legitimate course of that business;

(e)   the defendant was reasonably satisfied about the integrity of the sources of the information in the matters complained of and the authenticity and accuracy of the information provided by those sources;

(f)   the defendant was reasonably satisfied as to the fairness of the language and the manner in which the matters complained of were composed;

(g)   prior to publication of the matters complained of, the defendant contacted the plaintiff, through his manager Simon Auteri, and informed him of Person A’s allegations and provided him with an opportunity to respond;

(h)   the defendant fairly and accurately reported Simon Auteri’s response, which was to decline to comment;

(i)   the defendant fairly and accurately reported the plaintiff’s denial of Person A’s allegations (which was given after the publication of the first and second matters complained of) in the third, fourth, sixth and seventh matters complained of;

(j)   prior to publication of the eighth and ninth matters complained of, the defendant contacted the plaintiff, through his manager Simon Auteri, and informed him that the defendant had obtained a copy of an email sent by Richard Richardson to all West Indies players on or about 12 February 2015, and provided him with an opportunity to respond;

(k)   the defendant fairly and accurately reported Simon Auteri’s response, which was to decline to comment;

(l)   prior to publication of the first and second matters complained of the defendant took steps to verify the information in the first and second matters complained of, namely:

(i)   the defendant, through its agent Chloe Saltau, spoke to and obtained information from Person A, and fairly and accurately set out the information provided by Person A in the matters complained of;

(ii)   the defendant, through its agent Chris Barrett, made enquiries of Richard Richardson, the operations manager of the West Indies cricket team at the World Cup, and fairly and accurately set out the result of those enquiries in the first and second matters complained of; and

(iii)   the defendant, through its agent Chloe Saltau, made enquiries of Stuart Coventry, the Chief Executive of the Melbourne Renegades, the Big Bash team that the plaintiff was playing for at the time of publication of the matters complained of, and fairly and accurately set out the result of those enquiries in the first, second, third, fourth and fifth matters complained of;

(m)   in addition to the matters set out in (l) above, prior to the publication of the third and fourth matters complained of, the defendant took steps to verify the information in the third and fourth matters complained of, namely:

(i)   the defendant, through its agent Chris Barrett, made enquiries of David Richardson, the Chief Executive of the International Cricket Council, and fairly and accurately set out the result of those enquires in the third, fourth and seventh matters complained of;

(ii)   the defendant, through its agent Chris Barrett, made enquiries of Sami Ul-Hasan, the Communications Manager of the International Cricket Council, and fairly and accurately set out the result of those enquiries in the third and fourth matters complained of;

(iii)   the defendant, through its agent Chris Barrett, made enquiries of a number of confidential sources, and fairly and accurately set out the result of those enquiries in the third and fourth matters complained of;

(iv)   the defendant, through its agent Chris Barrett, made enquiries of Carole Beckford, the Communications Manager of the West Indies Cricket Board, and fairly and accurately set out the result of those enquiries in the third and fourth matters complained of; and

(v)   the defendant, through its agent Chris Barrett, made enquiries of Tony Dodemaide, the Chief Executive of Cricket Victoria and fairly and accurately set out the result of those enquiries in the fourth and fifth matters complained of;

(n)   in addition to the matters set out in (l) and (m) above, prior to the publication of the fifth matter complained of, the defendant took steps to verify the information in the fifth matter complained of, namely;

(i)   the defendant, through its agent Matt Murnane, made enquiries of Stuart Coventry, the Chief Executive of the Melbourne Renegades, the Big Bash team that the plaintiff was playing for at the time of publication of the matters complained of, and fairly and accurately set out the result of those enquiries in the fifth matter complained of; and

(ii)   the defendant, through its agent, listened to a radio interview with Jim Maxwell on 774 ABC, and fairly and accurately set out quotes from Mr Maxwell in the fifth matter complained of;

(o)   in addition to the matters set out in (l), (m) and (n) above, prior to the publication of the sixth and seventh matters complained of, the defendant took steps to verify the information in the sixth and seventh matters complained of, namely:

(i)   the defendant obtained a copy of a statement released on behalf of the plaintiff, and fairly and accurately set out the substance of that statement in the sixth and seventh matters complained of; and

(p)   in addition to the matters set out in (l), (m), (n) and (o) above, prior to the publication of the eighth and ninth matters complained of, the defendant took steps to verify the information in the eighth and ninth matters complained of, namely:

(i)   the defendant obtained a copy of an email sent by Richard Richardson to all West Indies players on or about 12 February 2015, and fairly and accurately set out the substance of that email in the eighth and ninth matters complained of; and

(ii)   the defendant, through its agent Tom Decent, made enquiries of Stuart Coventry, the Chief Executive of the Melbourne Renegades, the Big Bash team that the plaintiff was playing for at the time of publication of the matters complained of, and fairly and accurately set out the result of those enquiries in the eighth and ninth matters complained of.”

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Amendments

16 July 2019 - [5]: Second sentence, "equivalent" changed to "equivalence".

16 July 2019 - [129]: First sentence, “newspapers’” changed to “newspapers”.

[176]: Fourth sentence, “the” added before “jury”; “be” deleted before “no good”.

[191]: Second sentence, “not” deleted before “to be”.

[196]: Fourth sentence, “in” deleted before “Division 2”.

[209]: First sentence, “traditional” changed to “transitional”; second sentence, “than” changed to “that”, “is” added before “used”.

[238]: Final sentence, remove MNC.

[254]:“been” deleted before “determined”.