Field v Nationwide News Pty Limited - [2009] NSWSC 1285

CITATION: Field v Nationwide News Pty Limited [2009] NSWSC 1285

HEARING DATE(S): 31 March 2008, 1 April 2008, 2 April 2008, 3 April 2008, 4 April 2008, 7 April 2008, 8 April 2008, 9 April 2008, 10 April 2008, 11 April 2008, 14 April 2008, 15 April 2008, 16 April 2008, 17 April 2008, 18 April 2008, 6 May 2008, 21 October 2008, 11 December 2008, 10 February 2009, 11 February 2009, 12 February 2009, 13 February 2009, 16 February 2009, 17 February 2009, 25 February 2009, 26 February 2009, 27 February 2009, 2 March 2009

JUDGMENT DATE :
26 November 2009

JUDGMENT OF: Johnson J at 1

DECISION: 1. Verdict and judgment for the Defendant.
2. Plaintiff is to pay the Defendant’s costs of the proceedings.

CATCHWORDS: DEFAMATION - second-stage trial after jury trial under s.7A Defamation Act 1974 - eight imputations - two general imputations that Plaintiff was unfit to manage Jenolan Caves House and was incompetent in the management of Jenolan Caves House - six specific imputations alleging bad management in particular respects - substantial truth - contextual truth - qualified privilege - fair comment - fair protected report - verdict for the Defendant

LEGISLATION CITED: Defamation Act 1974 (NSW)
Wrongs Act 1958 (Vic)
Civil Law (Wrongs) Act 2002 (ACT)
Defamation Act 1989 (NT)
Defamation Act 1957 (Tas)
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Singleton v Ffrench (1986) 5 NSWLR 425
Greek Herald Pty Limited v Nikolopoulos (2001) 54 NSWLR 165
Favell v Queensland Newspapers Pty Limited (2005) 79 ALJR 1716
Ali v Nationwide News Pty Limited [2008] NSWCA 183
HSH Hotels (Australia) Limited v Multiplex Constructions Pty Limited [2004] NSWCA 302
Howden v Truth & Sportsman Limited [1937] 58 CLR 416
Sutherland v Stopes [1925] AC 47
Green v Schneller [2000] NSWSC 548
Fawcett v John Fairfax Publications Pty Limited [2008] NSWSC 139
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749
Millane v Nationwide News Pty Limited [2004] NSWSC 853
John Fairfax Publications Pty Limited v Jones [2004] NSWCA 205
Hepburn v TCN Channel 9 Pty Limited (1984) 1 NSWLR 387
Chakravati v Advertiser Newspapers Limited (1998) 193 CLR 519
David Syme & Co Limited v Hore-Lacy [2000] 1 VR 667
Nationwide News Pty Limited v Moodie (2003) 28 WAR 314
Elliott v West Australian Newspapers (2008) 250 ALR 363
John Fairfax Publications Limited v Zunter [2006] NSWCA 227
Kriss v John Fairfax Publications Pty Limited [2007] NSWSC 830
Petritsis v Hellenic Herald Pty Limited [1978] 2 NSWLR 174
John Fairfax Publications Pty Limited v O’Shane [2005] NSWCA 164
NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Rogers v Nationwide News Pty Limited (2003) 216 CLR 327
Morgan v John Fairfax & Sons Limited (1990) 20 NSWLR 511
Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58
Triggell v Pheeney (1951) 82 CLR 497
Coyne v Citizen Finance Limited [1990-1991] 172 CLR 211

PARTIES: Archer Field (Plaintiff)
Nationwide News Pty Limited (Defendant)

FILE NUMBER(S): SC 20421/05

COUNSEL: Mr C Evatt; Mr R Rasmussen: Ms L Evans; Ms EM Picker (Plaintiff)
Mr TD Blackburn SC; Mr J Hmelnitsky (Defendant)

SOLICITORS: Bale Boshev Lawyers (Plaintiff)
Blake Dawson Waldron (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Johnson J

26 November 2009

20421/05 Field v Nationwide News Pty Limited
JUDGMENT

1 JOHNSON J: Since their discovery in the mid-19^th century, Jenolan Caves have been a memorable feature of New South Wales natural history. Generations of citizens have visited Jenolan Caves. In 1895, the Government architect, WL Vernon, was commissioned to erect an elegant guesthouse and Jenolan Caves House was built (Exhibit Q). The isolated, bushland setting of Jenolan Caves House permitted visitors convenient accommodation whilst they engaged in speleological pursuits.

2 The Plaintiff, Archer Field, commenced his association with Jenolan Caves House in the early 1990s. By 2005, Mr Field was the manager and director of Jenolan Caves Resort Pty Limited (T21-22). As will be seen, by that time, a number of difficulties were affecting the Plaintiff and Jenolan Caves House.

The Present Proceedings

3 On 20 November 2005, the Defendant, Nationwide News Pty Limited, published two related articles on page 11 of the “The Sunday Telegraph”. The articles were critical of Jenolan Caves House and the Plaintiff. The articles were published with headlines which stated “MP Compares Jenolan Caves House to Fawlty Towers”, “A Holiday to Forget” and “Basil Would be Proud of Them”. The articles were accompanied by five photographs with captions. The articles referred to the fictional Torquay hotel depicted in the memorable British television series of the 1970s, “Fawlty Towers”.

4 The Plaintiff sued the Defendant for defamation. Pursuant to s.7A Defamation Act 1974 (NSW), a trial took place before Bell J and a jury on 13 November 2006. The jury found that the article carried each of eight defamatory imputations relied upon by the Plaintiff.

5 Using the numbering relied upon at the s.7A trial, the imputations found were:

* Imputation 7(a) - the Plaintiff is unfit to manage Jenolan Caves House;

* Imputation 7(b) - the Plaintiff was incompetent in the management of Jenolan Caves House;

* Imputation 7(e) - the Plaintiff managed Jenolan Caves House so badly that a hungry guest arriving after 7.00 pm had to wait until breakfast to have a meal;

* Imputation 7(f) - the Plaintiff managed Jenolan Caves House so badly that the floors were watery and the carpet stained;

* Imputation 7(g) - the Plaintiff was so negligent in the management of Jenolan Caves House that electrical cords in the games room were tangled and hazardous;

* Imputation 7(h) - the Plaintiff managed Jenolan Caves House so badly that the staff were rude to guests;

* Imputation 7(i) - the Plaintiff managed Jenolan Caves House so badly that the rooms were filthy;

6 A strike-out application was heard by Nicholas J on 20 April 2006 with respect to some, but not all, of the imputations. No challenge was made concerning imputations 7(a) and 7(b). His Honour observed at [17]-[18]:

“17. In the circumstances of this case it seems clear enough that imputations 7(a) and 7(b) are allegations in general terms of the propensity of the [Plaintiff’s] unfitness to manage Jenolan Caves House and his incompetence in its management.

18. In my opinion the other imputations are properly characterised as imputations of bad management in the particular instance alleged in the particular imputation.”

7 As will be seen, the parties approached the imputations at the post-7A hearing before me in the manner identified by Nicholas J. Imputations 7(a) and 7(b) are general imputations concerning the Plaintiff’s management of Jenolan Caves House. The remaining six imputations concern particular instances of bad management by the Plaintiff.

8 By its Further Amended Defence filed 25 February 2009, the Defendant relied upon the following New South Wales and interstate defences:

(i) substantial truth (paragraph 13(a));

(ii) contextual truth (paragraph 13(b));

(iii) qualified privilege at common law and/or pursuant to s.22 Defamation Act 1974 (NSW) (paragraph 13(c));

(iv) comment (paragraph 13(d));

Defamation Act 1974 (NSW)

(i) truth (paragraph 14(a));

(ii) contextual truth at common law with respect to imputation 7(n) (paragraph 14(b));

(iii) qualified privilege at common law (paragraph 14(c));

(iv) comment (paragraph 14(d));

Wrongs Act 1958 (Vic)

(i) truth (paragraph 15(a));

(ii) contextual truth at common law with respect to imputation 7(n) (paragraph 15(b));

(iii) qualified privilege at common law (paragraph 15(c));

(iv) comment (paragraph 15(d));

(i) truth (paragraph 16(a));

(ii) contextual truth at common law with respect to imputation 7(n) (paragraph 16(b));

(iii) qualified privilege at common law (paragraph 16(c));

(iv) comment (paragraph 16(d)):

Civil Law (Wrongs) Act 2002 (ACT)

(i) truth (paragraph 17(a));

(ii) contextual truth at common law with respect to imputation 7(n) (paragraph 17(b));

(iii) qualified privilege at common law (paragraph 17(c));

(iv) comment (paragraph 17(d));

Defamation Act 1989 (NT)

(i) truth (paragraph 18(a));

(ii) contextual truth at common law with respect to imputation 7(n) (paragraph 18(b));

(iii) qualified privilege at common law (paragraph 18(c));

(iv) comment (paragraph 18(d));

(i) truth (paragraph 19(a));

(ii) contextual truth at common law with respect to imputation 7(n) (paragraph 19(b));

(iii) qualified privilege at common law (paragraph 19(c));

(iv) comment (paragraph 19(d));

Criminal Code (WA)

(i) truth (paragraph 20(a));

(ii) contextual truth at common law with respect to imputation 7(n) (paragraph 20(b));

(iii) contextual truth for purpose of s.18 Defamation Act 1957 (Tas) (paragraph 20(c));

(iv) qualified privilege at common law (paragraph 20(d));

(v) comment (paragraph 20(e));

9 The Defendant carries the onus of establishing one or more of these defences with respect to each imputation. If no defence is made out, it will be necessary to assess damages to which the Plaintiff is entitled.

10 Under s.9(2) Defamation Act 1974 (NSW), the actionable imputation or wrong is the imputation which has been found by the jury under s.7A(3) to be carried by the matter complained of, and to be defamatory. The meaning of a pleaded imputation is a matter to be determined by the Court: Singleton v Ffrench (1986) 5 NSWLR 425 at 428. When determining the meaning, it is important to consider the imputation in the context of the material by which the imputation was conveyed: Greek Herald Pty Limited v Nikolopoulos (2001) 54 NSWLR 165 at 172-173 [19]-[23]. Each alleged imputation is to be considered in the context of the entire article: Favell v Queensland Newspapers Pty Limited (2005) 79 ALJR 1716 at 1721 [17].

The Newspaper Article

11 The publication in “The Sunday Telegraph” on 20 November 2005 comprised the following elements (using the paragraph numbers contained in Exhibit A):

(a) the headline “A Holiday to Forget” followed by an article under the by-line of Linda Silmalis (paragraphs 1-16);

(b) the headline “Basil Would Be Proud of Them” followed by an article by Clair Weaver (paragraphs 17-24);

(c) the headline “MP Compares Jenolan Caves House to Fawlty Towers” (paragraph 25) under which were located three photographs - the dining room (paragraph 29), a foyer area (paragraph 30) and the games room (paragraph 31);

12 A copy of the article is Annexure A to this judgment. Annexure A depicts the interrelationship between the published photographs and their captions and the articles themselves. It will be helpful, at this point, to set out the text of the articles, inserting the paragraph numbers utilised for the purpose of the proceedings. The article by Ms Silmalis was as follows (paragraphs 3-16):

“3 It is meant to be a place of respite for the thousands of international and local tourists who make the trek to the world-famous Jenolan Caves.

4 But according to NSW Environment Minister Bob Debus, the overnight experience at the heritage-listed Jenolan Caves House could almost be likened to a stay at Fawlty Towers.

5 Dirty toilets, rude staff, filthy rooms and below-average meals are among the 60 complaints the Government received this year alone from unhappy guests.

6 As one couple stated: ‘We are not amused.’

7 Fed up, the State Government will introduce legislation to break its 99-year lease and take control of the property.

8 The lease was brokered by the Greiner government, but the lessee company was later purchased by another operator, Archer Field, who took over management of Caves House, operating under the name of Jenolan Caves Resort Pty Ltd.

9 The Sunday Telegraph has been told five default notices have been issued to Mr Field in the past year covering asbestos issues and late rent payments.

10 While visitor numbers to the limestone caves have risen, the occupancy rate at Jenolan Caves House has dropped from 60 per cent in 1990 to 30 per cent last year.

11 Mr Debus said the complaint letters showed guests were unimpressed with their hotel stay.

12 ‘We want a stay at Caves House to add to the fantastic experience of being at Jenolan, not one that visitors would prefer to forget,’ Mr Debus said.

13 A Bilgola Plateau visitor said: ‘The experience is, without a doubt, the worst dinner experience we have ever encountered, anywhere - appalling.’'

14 A visitor from Eastwood said:

‘Caves House is an insult to the paying public - completely unsatisfactory.’

15 The Sunday Telegraph tried unsuccessfully to contact Mr Field. But in a letter sent to MPs this month, Mr Field said the former Jenolan Caves Trust (set up by the Government to manage the tourist precinct but disbanded in 2004) had breached its obligations in ensuring the caves were commercially and environmentally sustainable.

16 This included providing tourists with drinkable water, catering for self-guided cave tours and developing transport in the region. “

13 The article by Ms Weaver was as follows (paragraphs 19-24):

“19 It didn’t take long before I felt I was staying at Fawlty Towers.

20 Upon our arrival the teenage receptionist, sitting on a chair held together with masking tape, informed me last orders for dinner had closed at 7pm.

21 Hungry after a three-hour drive from Sydney, there was no option but to wait until breakfast. And so after choosing a room that smelt the least mouldy and sprouted the fewest cobwebs, I set out to see if the guest house lived down to its reputation.

22 First were the ladies’ bathrooms. To get there, I followed a distinct odour permeating the second and third floors. The ‘most horrifying’ award went to a bathtub coated in dead bugs and dirt. Not to mention the cockroach in a shower, rusty toilets and leaking taps.

23 Gagging I hurried back to my room for a hot shower. Alas, there was no hot water.

24 Still, at least no one mentioned the war.”

14 It will be observed that:

(a) the article by Ms Silmalis refers to the Plaintiff on three occasions and purports to recite critical comments made by Mr Bob Debus, then the New South Wales Environment Minister, with respect to Jenolan Caves House and related matters;

(b) the article by Ms Weaver recounts aspects of her experiences on a recent visit to Jenolan Caves House, including the cleanliness and quality of rooms and other related issues.

Evidence in the Proceedings

15 A substantial volume of documentary material was tendered by the parties at trial and a large number of witnesses were called by the Plaintiff and the Defendant to give evidence.

16 The Plaintiff called witnesses who fell into the following broad classes (with some overlaps):

(a) the Plaintiff - he gave evidence concerning reputation, the impact of publication of the matters complained of, his role with respect to Jenolan Caves House between 1990 and 2005 and his response to complaints made concerning the property by guests and others;

(b) other persons who gave evidence concerning the Plaintiff’s reputation and the impact of the publication on those persons - Bruce Stracey, Andrew Richardson, Roger Hann;

(c) satisfied guests of Jenolan Caves House, including persons who were friends or associates of the Plaintiff and others who were strangers only - Suzanne Janas, Pamela Coghlan, William Coghlan, Frank Forwood, Eric Mansfield, Roger Davis, Elizabeth Yuill, Jane O’Ryan, Amanda Lopez, Phillip Harper, Stephen Potter, Martin Cotton, Janice Burgess, Heather Stock, Steven Harrison, Kylie Crowe, Simone Quinn, Dennis Smith, Nicholas Finch, Janice McKellar, Russell Thorning, Adrian Canceri, Delma Hicks;

17 The Defendant called witnesses in the following broad categories:

(a) the journalists directly involved in the writing and photography depicted in the subject article - Linda Silmalis, Clair Weaver and Kristy Miller;

(b) Ms Weaver’s partner, Ross Bilton, who accompanied her during the stay at Jenolan Caves House;

18 The Defendant served statements and associated documents with respect to a further 18 witnesses. Mr Evatt, counsel for the Plaintiff, stated that he did not object to the tender of these statements and that he did not wish any of the authors to attend for cross-examination (T1375-1376). Mr Blackburn SC, for the Defendant, and Mr Evatt agreed that the approach to be taken to evidence which has been admitted by consent, with the witnesses not being required for cross-examination, was that expressed by Tobias and McColl JJA in Ali v Nationwide News Pty Limited [2008] NSWCA 183 at [110]-[112]. Where factual evidence is not cross-examined upon, prima facie it should be accepted. However, it ought not necessarily be accepted where there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence: HSH Hotels (Australia) Limited v Multiplex Constructions Pty Limited [2004] NSWCA 302 at [86]-[87]; Ali v Nationwide News Pty Limited at [112].

19 Evidence to be assessed upon this basis falls within the following categories (Exhibit 35):

(a) dissatisfied guests of Jenolan Caves House - Leigh Cowan (Tab 1), Henry Hirschhorn (Tab 2), Peter Haydon (Tab 3), Ian Irvine (Tab 4), Cathy Padgen (Tab 5), Geoffrey Cowan (Tab 6), Ricardo Macchetta (Tab 7), David Reid (Tab 8), Milan Stojanovic (Tab 9), David Thorne (Tab 10), Elizabeth Gee (Tab 12);

(b) former employees of Jenolan Caves House - Karly Strangwidge (Tab 15), Gary Liccardo (Tab 16);

20 In addition, I admitted a large number of documents as business records under s.69 Evidence Act 1995 (Exhibit 23). In broad terms, these documents fell into three classes:

(a) documents containing complaints by guests which were directed to (principally) the Jenolan Caves Reserve Trust (“the Trust”) or the Office of Fair Trading and which were referred to the Plaintiff, whose written response formed part of the relevant business records;

(b) complaints from guests directed to the Trust or the Office of Fair Trading, where the business records did not contain any written response from the Plaintiff to the complaints;

21 The Plaintiff was cross-examined with respect to documents contained in these three classes. A number of the guests, whose complaints to the Trust or the Office of Fair Trading were admitted, gave evidence (Mr Terracini and Mr Shapero) or provided statements which were tendered, without objection, by the Defendant (Exhibit 35).

22 I approach the determination of the issues arising at trial upon the basis that, with respect to the Defendant’s guest evidence, the greatest weight will be given to evidence where the guest was called, or where the guest’s statement was tendered without objection.

23 Less weight will be given to guest complaint evidence in Exhibit 23 where the complainant was not called as a witness by the Defendant nor a statement of the witness tendered without objection. Within Exhibit 23 are documents which demonstrate that a number of complaints were brought to the attention of the Plaintiff at the time. The Plaintiff was cross-examined by reference to documents in Exhibit 23.

24 With respect to the statements of the Defendant’s witnesses admitted by consent and without the requirement for cross-examination (Exhibit 35), I see no reason not to accord significant weight to the evidence contained therein. This evidence is in a different category to the business records. The Defendant intended to call each of these 18 witnesses to give evidence, but the Plaintiff indicated that the statements of these persons could be admitted, by consent, without them attending for cross-examination. The Plaintiff had an opportunity to challenge or test the evidence of these 18 witnesses, but decided not to do so. This situation may be contrasted with the position with respect to the business records (Exhibit 23). With respect to complainant guests who did not give evidence or make a statement, the Defendant did not call these persons and the weight to be attached to the business record evidence must be assessed upon the basis that the Plaintiff did not have an opportunity to test, by way of cross-examination, the authors of the various records.

25 It remains a matter for the Court to assess the totality of the evidence, oral and documentary, for the purpose of making findings of fact which are required for the purposes of the proceedings.

The Plaintiff and Jenolan Caves House

26 In this part of the judgment, I will trace shortly the involvement of the Plaintiff with Jenolan Caves House. Much of the material touching upon this topic is not controversial. One particular area of controversy, however, is whether the Plaintiff played a managerial role at relevant times at Jenolan Caves House. I will consider this issue separately, later in the judgment.

The Plaintiff

27 The Plaintiff was born in 1948. He obtained a Bachelor of Economics degree from the University of New England in 1973 and a Masters of Business Administration from the Australian Graduate School of Management in 1985-1986. From 1975 until 1991, the Plaintiff was involved in aspects of primary industry (Exhibit B).

28 The Plaintiff was the principal owner, along with his family, of Rosecharm Pty Limited (“Rosecharm”) which in turn was the sole owner of Jenolan Caves Resort Pty Limited (“JCR”) (formerly Silkbard Pty Limited (“Silkbard”)) as trustee company for the Caves House Unit Trust (Exhibit 2, paragraph 2). From 2 July 1990, the Plaintiff was a director of JCR. JCR was lessee of Jenolan Caves House under a 99-year lease executed on 2 July 1990 with the NSW Tourism Commission as Lessor (and Silkbard as lessee) (Exhibit O; Exhibit 2, paragraph 3). Rosecharm, JCR and the Jenolan Caves Unit Trust obtained consent from the Trust for the Plaintiff to control the lease and manage the property (Exhibit 2, paragraph 4).

29 Between 1991 and 1994, the Plaintiff was responsible for the operation of Jenolan Caves House as well as other properties owned and operated by the Peppers Hotel Group outside Sydney (Exhibit 3, paragraph 10). Between 30 December 1994 and 9 December 2005, the Plaintiff managed the JCR business and property (Exhibit 2, paragraph 7). From December 1994 until December 2005, the Plaintiff lived at Jenolan Caves House and performed work administering and operating Jenolan Caves House and associated businesses, and carrying out restoration and other work on the site at least six full days per week (Exhibit 3, paragraph 13).

Jenolan Caves House

30 The resort or hotel which I will compendiously describe as Jenolan Caves House is located in the Kanangra Boyd National Park west of the Blue Mountains in New South Wales. The nearest town to Jenolan Caves House is Oberon. Jenolan Caves House is set amongst bushland in a comparatively remote location.

31 Caves House is the oldest part of the complex. More recent additions to the complex included Mountain Lodge (motel-style rooms), the Gate House (with some private rooms) and the Cottage (with bunk-style sleeping quarters) (Exhibit Q).

32 Caves House itself comprised a three-storey building containing rooms and common areas, including a lounge, library and a games room. Dining options at Jenolan Caves House included Chisolms Grand Dining Room, Jeremiah’s Bar (attached to Chisolms Grand Dining Room) and Trails Bistro. The complex contained conference facilities. In addition, a souvenir and gift shop, “Things Jenolan”, operated within the complex. Also lying within the complex was an area (described colloquially by the staff as “St Trinians”), being a first-floor wing housing female hospitality students who worked as trainees through the Jenolan Caves Hospitality School (Exhibit 35, Tambasco statement, Annexure Z).

33 The Plaintiff described the different parts of the complex in the following way. Jenolan Caves House was a guesthouse providing accommodation for visitors and guests. The Gatehouse was referred to as a backpacker lodge, and was used effectively as a school lodge when schools came and stayed and visited the caves. Mountain Lodge was a 30-room hotel built in about 1985.

Events Leading up to Publication on 20 November 2005

34 Before embarking upon an examination of the various defences raised by the Defendant with respect to the imputations, it is appropriate to set out the events leading to publication of the articles in “The Sunday Telegraph” on 20 November 2005. In the course of reciting these events, a number of factual findings will be made. This part of the judgment will focus upon the acts of journalists employed by the Defendant who were involved in the preparation and publication of the articles in question.

The Genesis of the Story

35 Ms Silmalis has been employed as a State political writer with “The Sunday Telegraph” since November 2002 (Exhibit 30). On 5 November 2005, Ms Silmalis read an article published that day in “The Daily Telegraph” about Jenolan Caves under the headline “Cave Visitors Face Poison Water Fears”, in which mention was made of the Plaintiff and Mr Debus, the Environment Minister. Around that time, Ms Silmalis got the idea of writing a story about Jenolan Caves.

36 On about Tuesday, 15 November 2005, Ms Silmalis made a telephone call to Chris Ward, the Media Spokesman for Mr Debus. That conversation was to the following effect:

Ward: “Hello.”

“Hi Chris, it’s Linda Silmalis from The Sunday Telegraph speaking.”

Ward: “Hi Linda.”

Silmalis: “Do you have any leads for a story about Jenolan Caves?”

“There’s new legislation being considered in Parliament to revitalise the Jenolan Caves. The operator of Jenolan Caves House isn’t paying his rent and the place is a dump - we want him out. Bob made some comments in Parliament about it being like Fawlty Towers but everyone missed the story. I think it was in Hansard on about the 12

^th

of October. Have a read and let me know if you want to write a story about it.”

Silmalis: “Thanks Chris, I’ll have a look. Bye.”

Ward: “Bye.”

37 After this conversation, Ms Silmalis obtained from the internet a copy of the Hansard report of 12 October 2005 in the Legislative Assembly of the Second Reading Debate for the National Parks & Wildlife Amendment (Jenolan Caves Reserves) Bill. After reading the Hansard report, Ms Silmalis spoke to Sharon Labi, the Chief of Staff at “The Sunday Telegraph”, who agreed that it was a good story and asked Ms Silmalis to write it.

38 Given the issues raised in these proceedings, it is appropriate that I set out an extract from the speech in reply of Mr Debus in the Legislative Assembly on 12 October 2005 (Exhibit 30, Annexure B):

“By way of background, as I said, in 1990 the Greiner Government entered into a 99-year lease for Jenolan Caves House, covering accommodation, food outlets and a souvenir shop. In February 1995 the Field family purchased the lessee company and has continued as lessee at Jenolan Caves House, operating as Jenolan Caves Resort Pty Ltd. Although visitation at the caves has been increasing steadily over the past several years, the level of increase has not been reflected at Caves House. This is a most significant distinction.

There has been a fall-off in visitation at Caves House, but not at the caves as a whole. The present lessee has been unable to make rent payments on time and has failed to implement a satisfactory building maintenance program over a protracted period. The Government assisted Jenolan Caves Resort by providing a 3½-month moratorium on rental payments, followed in mid-2004 by a further extension of time for rental payments ranging from four to 10 weeks. The lessee sought a further extension of the moratorium but unfortunately the trust was not in a position to offer any further assistance. As a significant contributor to the local regional economy, the trust is dependent on this rental income to meet its obligations in managing the karst conservation reserves, providing educational activities for schools and discount packages for pensioners, and employing the staff of the trust.

Negotiations were under way with the lessee to reach a joint approach in providing integrated services to visitors and to renegotiate the current lease, especially in regard to rental payments and the duration of the lease. However, the lessee proved unco-operative during the process of developing a joint approach to an integrated management solution at Jenolan Caves. This, combined with the lessee's continued inability to meet his obligations under the lease, resulted in the termination of negotiations and the formal issue of default notices. Interestingly, the lessee and his advisers, almost eight months after the termination of negotiations, reached the conclusion that this Government was right all along and that an integrated approach was the way to go.
Did the lessee address any of the concerns that led to the termination of negotiations? Unfortunately, he did not. Instead, he came up with the variation whereby the Government was expected to contribute $2 million per annum in forgone rentals and $1.5 million in direct payments to prop up the lessee and undertake marketing on behalf of Jenolan Caves House. Now there are suggestions that we should delay implementing this urgent revitalisation package to further hide the fact that the mess was created by the original conditions under which the lease was negotiated. There is no point in carrying out further investigations into the leasing arrangements at Jenolan Caves because we know that the model implemented by the Greiner Government is dysfunctional. Nevertheless, before we resolve the issue we need to address the problems with the present lessee.

We often hear allegations raised by the lessee that the Government has failed to address asbestos issues at Caves House. Those issues were raised again by the honourable member today, but the lease is absolutely specific: the responsibility for the asbestos is clearly with the lessee. Similarly, there are allegations that the Government is not supplying potable water to Caves House. Those allegations were raised again today by the honourable member. More than 15 years of testing by the Department of Health shows that the Government has been supplying drinking water that complies with the Australian guidelines.

In addition, other areas supplied with water by the same infrastructure that supplies Caves House have experienced no problems of the sort alleged by the lessee. If the House followed the advice of those opposite, Caves House would be in the running to host a new series of Fawlty Towers. I will quote from some of the guests of Caves House who have written to the trust complaining about its management over recent years. I remind the House again that the management system was essentially put in place by the former Government. A Bilgola Plateau visitor said:

The experience is without a doubt, the worst dinner experience we have ever encountered, anywhere … appalling.

A visitor from Eastwood said:

Caves House is an insult to the paying public … completely unsatisfactory.

These are unsolicited letters from respectable, middle-class people who live in Bilgola and Eastwood. Someone from Western Sydney wrote a letter saying:

Caves House was filthy and unorganised … it was so bad that they ran out of complaint forms on the Sunday morning …[I am] not amused.

Someone from Pennant Hills wrote:

I recently stayed in Caves House, the room occupied by me was not very clean and the toilet and bathroom were dirty. The people to whom I have spoken told me how disappointed they were with the deterioration of Caves House … [needs] immediate attention.

Nothing better articulates the present management problems at Caves House than a letter from the president and 34 members of the Killara Probus Club. In my experience, the Killara Probus Club is not quite the most revolutionary organisation in the southern hemisphere. Indeed, if I had to choose an organisation that represented the soul of respectability and social responsibility I might well choose the Killara Probus Club.

Mr Andrew Humpherson: Over the Labor Party?

Mr BOB DEBUS: Far over the Labor Party. That club wrote me a very courtly letter. It said:

We received what can only be described as appalling treatment at Caves House … we would certainly question the ability of the management to run such an establishment … Killara Probus is a friendly group of people who have shown great tolerance over many hundreds of outings that have been conducted through the years.

For the future of your wonderful Jenolan Caves, we suggest that you take some remedial action to ensure this kind of incident does not happen again.

I feel obliged to accept the importunities and cries for assistance from the Killara Probus Club more keenly than I feel such requests from most people. Those members say the Government has to do something and I propose to do it. The Jenolan Caves Trust has formally issued the lessee with notices to urgently resolve the problems once and for all. We cannot stand by and allow this kind of thing to continue. Through this bill the Government is committed to remedying the unsatisfactory leasing situation at Caves House. We want a stay at Caves House to add to the fantastic experience of being at Jenolan, not one that visitors would prefer to forget. I urge all members of the House to support the bill and not to tolerate any further delays, so we can ensure that the State's cave networks - not least Jenolan Caves - get the revitalisation they urgently deserve and that the Killara Probus Club so manifestly expects. I commend the bill to the House.”

39 Thereafter, Ms Silmalis spoke again to Mr Ward on a number of occasions in the course of her preparation of the article. On or about the afternoon of Tuesday, 15 November 2005, a conversation to the following effect took place:

Ward: “Hello?”

Silmalis: “Hi Chris, it’s Linda Silmalis again. I’ve read the Hansard and have a few questions. Can you confirm that a number of complaints have been made about Caves House?”

Ward: “Yes, and there were additional complaints that were not mentioned in Hansard.”

Silmalis: “Can I obtain copies of the letters that contained the complaints?”

“No, I would prefer if you stuck to what was said in Hansard, because this could be a litigious matter.”

Silmalis: “How many complaints have been made?”

Ward: “Around 60.”

Silmalis: “Can you give me an exact number?”

Ward: “I’ll look into it.”

Silmalis: “Thanks, bye.”

Ward: “Bye.”

40 Later that day, Ms Silmalis and Mr Ward had a further conversation to the following effect:

Ward: “Hello?”

Silmalis: “Hi Chris, it’s Linda again. Could I get some background on how the lease of Jenolan Caves House came about?”

“The lease is for 99 years and was brokered by the Greiner government in the late 80s.”

Silmalis: “Who is the operator of the hotel now?”

Ward: “Archer Field.”

“I’ve noticed in Hansard a mention of Archer Field being behind in his rental payments?”

Ward: “Yes, there have been several default notices issued.”

Silmalis: “How many?”

Ward: “Five.”

Silmalis: “Did these notices cover asbestos as well?”

Ward: “Yes.”

Silmalis: “Have you checked how many complaints were made?”

Ward: “You can say there were 60 complaints.”

Silmalis: “Can you tell me what the objective of the new legislation is?”

“The aim of the Bill is to get out of the lease arrangement with Archer Field.”

Silmalis: “Thanks, bye.”

Ward: “Bye.”

Attempts to Contact the Plaintiff for Comment Before Publication

41 A controversial issue at the hearing concerned efforts made by Ms Silmalis to contact the Plaintiff for comment with respect to the proposed article. Evidence touching upon this topic was given by Ms Silmalis and Michael Richardson, a member of the Legislative Assembly. The Plaintiff also gave evidence concerning this issue.

42 Ms Silmalis testified that, on about Wednesday, 16 November 2005, she attempted to contact the Plaintiff for comment. She wished to obtain a response from the Plaintiff to prepare for the article. Ms Silmalis considered that it would make the article more interesting if it had a response from the Plaintiff. She obtained the phone number for Jenolan Caves House by way of a “google” search and called the number, speaking to a male at reception whose name she cannot recall. A conversation to the following effect ensued:

Male: “Hello?”

Silmalis: “This is Linda Silmalis. I am a reporter from The Sunday Telegraph. Could I please speak to Archer Field?”

Male: “Sorry, he’s not here at the moment, can you speak to someone else?”

“No, I need to speak to Mr Field. Can you ask him to call me? My phone number is

and my mobile is

”

Male: “I’ll pass it on, bye.”

43 Thereafter, Ms Silmalis had a further conversation with Mr Ward to the following effect:

Ward: “Hello?”

Silmalis: “Hi, it’s Linda Silmalis speaking. I wouldn’t mind seeing some of the complaint letters about Jenolan Caves House.”

Ward: “I think the Minister would prefer you to stick to Hansard.”

“Okay. By the way, I gave Archer Field a call and left a message for him.”

Ward: “He probably won’t call you back.”

44 Ms Silmalis stated that the Plaintiff did not return her call. It was the evidence of the Plaintiff that he did not receive any message that Ms Silmalis was attempting to contact him. The Plaintiff said he had no prior notice that the article was to be published in “The Sunday Telegraph”, and that he learned of it for the first time on that day. The Plaintiff stated that there was a system for messages to be referred to him if persons telephoned him at Jenolan Caves House, and that no message was passed on to him in accordance with this system.

45 On Thursday, 17 November 2005, Ms Silmalis sent an email to Ms Labi, copied to Steve Moorehouse (the Picture Editor at “The Sunday Telegraph”) to provide them with some background to the article. The email included the following (Exhibit 30, Annexure D):

“By the way, the lessee of jenolan caves house is a bloke called archer field - he’s the one the govt is trying to evict. He’s apparently engaged some lawyers … he will not return my calls … if we can pap him … I don’t know what he looks like … again, here are some of the 60 complaints the govt has as its legal defence to boot him out.”

“pap him”

“photograph him”

46 Ms Silmalis states that on about Thursday, 17 or Friday, 18 November 2005, she made a telephone call to Mr Richardson, then the Shadow Environment Minister. Ms Silmalis was aware that Mr Richardson had made positive comments regarding Jenolan Caves House in other media outlets and in Hansard. Ms Silmalis gave the following account of her conversation with Mr Richardson:

Richardson: “Hello?”

Silmalis: “Hello, this is Linda Silmalis from The Sunday Telegraph. I am writing a story about Jenolan Caves House and am trying to get in contact with Archer Field for comment.”

Richardson: “Yes, there’s lots of problems with the water at Jenolan Caves.”

Silmalis: “This is a different issue, I’m focusing on what Bob Debus said in Parliament. I need to balance the story - can you help me?”

“Mr Field wrote a letter to me which he copied to Bob Debus.”

Silmalis: “I’d be interested in getting a copy.”

Richardson: “Okay, I’ll come and give it to you.”

Silmalis: “Do you have Archer Field’s mobile number?”

Richardson: “No, I don’t.”

47 Ms Silmalis stated that thereafter Mr Richardson provided to her a copy of a letter dated 4 November 2005 from the Plaintiff to Mr Richardson. It is apparent, from the published article, that Ms Silmalis used this letter as a basis for expression of the Plaintiff’s side in response to what had been said in the Legislative Assembly about Jenolan Caves House.

48 Over objection, I permitted the Plaintiff to call Mr Richardson in reply (T1609). Mr Richardson is a member of the Legislative Assembly of New South Wales. His evidence related to a single issue. Ms Silmalis gave evidence in the Defendant’s case of a conversation she had with Mr Richardson in which she sought from him (unsuccessfully) the Plaintiff’s mobile phone number. Mr Richardson gave evidence concerning his conversation with Ms Silmalis in November 2005. In examination-in-chief, he stated that he had three telephone numbers for the Plaintiff at that time - a home phone number, a Jenolan Caves House phone number and a mobile phone number. In chief, he said “I gave her at least his home number and probably his number at Caves House as well” (T1610.14). Under cross-examination, it became increasingly clear that Mr Richardson had a very limited recollection of the conversation. He had no recollection of discussing with Ms Silmalis a letter which the Plaintiff had written to him, nor that he offered (and provided) a copy of this letter to her. I accept that this topic was discussed between Ms Silmalis and Mr Richardson and that a copy of the letter was provided to her. It was put to Mr Richardson in cross-examination that he had provided the Plaintiff’s business phone number to Ms Silmalis (T1615). Mr Richardson’s cross-examination concluded with an acknowledgement that he did not recall which of the Plaintiff’s telephone numbers he provided to Ms Silmalis (T1616). I accept that Mr Richardson was doing his best to give an accurate account of the telephone conversation he had with Ms Silmalis more than three years before. I accept that he provided a telephone number for the Plaintiff to her, but I do not accept that it was the Plaintiff’s home telephone number. In the end, as I have observed, Mr Richardson was entirely uncertain as to which telephone number he provided to Ms Silmalis.

49 I express the following conclusions with respect to efforts by Ms Silmalis to contact the Plaintiff before publication of the article. I accept that Ms Silmalis did contact Jenolan Caves House where a message was left for the attention of the Plaintiff. Although the message did not provide any detail concerning the proposed article, it was sufficiently clear that a journalist from “The Sunday Telegraph” wished to speak personally to the Plaintiff concerning Jenolan Caves House. The contemporaneous public controversy with respect to aspects of Jenolan Caves House provided a clear context for her call. The contemporaneous email of Ms Silmalis to Ms Labi confirms that she was seeking to contact the Plaintiff, although mention is made of “calls” in this respect, when Ms Silmalis made one call only to the Plaintiff.

50 Mr Richardson does not contend that he provided the Plaintiff’s mobile telephone number to her. Mr Richardson’s recollection of the conversation is understandably vague, given the distance in time and the lack of any particular need for him to recall this aspect of it. If Mr Richardson provided a telephone number to Ms Silmalis (and he may have done so), the likelihood is that it was the work telephone number for the Plaintiff at Jenolan Caves House.

51 I accept that Ms Silmalis obtained from Mr Richardson a copy of the letter of 4 November 2005 from the Plaintiff to Mr Richardson. Thereafter, she utilised this letter for the purpose of including a form of comment or response by the Plaintiff to the matters which had been raised in the Legislative Assembly. Although the evidence indicates that only one attempt was made by Ms Silmalis to contact the Plaintiff for comment, her conversation with Mr Richardson, and her incorporation in the article of aspects of the Plaintiff’s written response to what had been said in Hansard, constituted a reasonable effort on her part to insert a measure of balance in the article.

52 I accept the evidence of Ms Silmalis that, from a journalistic point of view, a “stoush” between the Plaintiff and the Minister would heighten the level of interest in the article (T1589). There was no good reason for Ms Silmalis not to seek a response from the Plaintiff, and the inclusion of parts of the letter in the article is inconsistent with a reckless approach being adopted by her in this respect.

Some Challenges to the Article by Ms Silmalis

53 It was the evidence of Ms Silmalis that the only sources used by her for her article were the speeches in the Legislative Assembly on 12 October 2005 recorded in Hansard (Mr Richardson and Mr Debus in reply), together with information provided orally by Mr Ward and the Plaintiff’s letter to Mr Richardson dated 4 November 2005. In the course of her article, Ms Silmalis stated:

“Dirty toilets, rude staff, filthy rooms and below average meals are among the 60 complaints the Government received

this year alone

from unhappy guests.”

54 Mr Evatt submitted that Ms Silmalis had fabricated or embellished parts of this paragraph, in particular the reference to “60 complaints … received this year alone …”. He submitted that Hansard did not support this statement with Mr Debus being recorded as saying “I will quote from some of the guests of Caves House who have written to the Trust complaining about its management over recent years” (Exhibit 30, Annexure B). Further, Mr Evatt submitted that the statement of Ms Silmalis did not attribute to Mr Ward words to the effect that 60 complaints had been received “this year alone” from guests of Jenolan Caves House. Mr Blackburn SC submitted that the Court should accept Ms Silmalis’ account that any information that she obtained outside Hansard had come from Mr Ward (T1569-1674).

55 Ms Silmalis was not able to locate contemporaneous notes of her conversations with Mr Ward. The contemporaneous material which is available is confined to the Hansard speeches and emails sent in November 2005. Reference was made above at [45] to the email from Ms Silmalis to Ms Labi at 1.19 pm on 17 November 2005, in which Ms Silmalis says “Here are some of the 60 complaints the govt has as its legal defence to boot him out”. The email did not state that these 60 complaints had been made “this year”.

56 I bear in mind that Ms Silmalis came to make her statement for the purpose of this case some three years after the publication. I do not accept that Ms Silmalis fabricated or embellished intentionally the article. In my view, one or other of the following explains this aspect of the article:

(a) Mr Ward told Ms Silmalis that there had been 60 complaints in that year, and Ms Silmalis relied upon Mr Ward’s statement to this effect;

57 As I have said, I do not accept that Ms Silmalis fabricated or embellished intentionally the statement that 60 complaints had been made in that year. In reaching this conclusion, I bear in mind the fact that Ms Silmalis had contacted Mr Richardson, and obtained from him the Plaintiff’s letter which was used for balancing purposes in her article. Such an approach is not consistent with fabrication or intentional embellishment of this feature.

58 As between the alternatives referred to at [56] above, I am satisfied that the more likely explanation is that Mr Ward did say words to that effect to Ms Silmalis, who then placed them in the article. The absence of reference to this, in her accounts of conversations with Mr Ward in her statement, may be explained by the passage of time between the relevant events and the preparation of the statement. I will consider later in this judgment submissions made by the parties concerning the number of complaints from guests about Jenolan Caves House, and the findings which ought be made in the light of that evidence. For present purposes, however, I am satisfied that what Ms Silmalis placed in the article in this respect was sourced to statements by Mr Ward, in various conversations which Ms Silmalis had with him for the purpose of preparing the article. I accept that Ms Silmalis believed that she was being provided with accurate information by Mr Ward.

59 Mr Evatt challenged the accuracy of other aspects of Ms Silmalis’ article with respect to “dirty toilets, rude staff, filthy rooms” and “asbestos issues”. I will return to these submissions when dealing with the imputations. For present purposes, it is sufficient that I record my conclusion that the terms used by Ms Silmalis in these respects had their origin, in substance, in the account given by Mr Debus in the Legislative Assembly on 12 October 2005.

Ms Weaver Travels to Jenolan Caves House

60 On about Thursday, 17 November 2005, Ms Labi informed Ms Silmalis that Ms Weaver, another journalist at “The Sunday Telegraph”, was being sent to Jenolan Caves House. Ms Silmalis did not speak to Ms Weaver prior to her visit.

61 Ms Weaver commenced employment as a journalist with the Defendant in September 2005. Before then, she worked as a journalist in the United Kingdom from 2000 to 2004. Ms Weaver had worked as a Flight Attendant with British Airways from about 1998 to 2000 and had experience in the hospitality industry, running a ski chalet in France for a season from about December 2004 to April 2005 (Exhibit 26; T1435-1436).

62 During the course of Thursday, 17 November 2005, Ms Labi, the Chief of Staff, contacted Ms Weaver by telephone and a conversation to the following effect took place (Exhibit 26, paragraph 10):

Weaver: “Hello, Clair speaking.”

“Hi Clair, it’s Sharon. Are you able to go to Jenolan Caves for a story tonight?”

Weaver: “Sure, what’s the story?”

“Keep it quiet, but Linda Silmalis is writing an article about Jenolan Caves House and how there have been lots of complaints. Can you drive up there tonight and stay there, and do a first person piece on your experiences? We’ll book you a rental car.”

Weaver: “No problem.”

“Great, I’ll speak to you about it when you’re back in the office.”

63 Thereafter on 17 November 2005, Mr Moorehouse, the Picture Editor, forwarded to Ms Weaver the email which Ms Silmalis had sent to Ms Labi and Mr Moorehouse (see [45] above). Soon after, Ms Weaver did a “google” search for “Jenolan Caves House” and obtained a telephone number to book a room. When she called the number provided on the website, a woman told her that it was not the correct number and gave her another number to call. She called that number and it was Jenolan Caves House. The phone was answered by a female receptionist. Ms Weaver formed the impression that the receptionist sounded young and very vague. Ms Weaver did not tell the receptionist that she was a journalist. A conversation to the following effect took place:

Receptionist: “Good afternoon, Jenolan Caves House.”

Weaver: “Hi, I’d like to book a room for tonight.”

“There’s hardly anyone here. Don’t bother booking, just come down and walk in. There are lots of rooms available and it will be much cheaper.”

Weaver: “How much cheaper?”

Receptionist: “I’m not sure - a bit cheaper maybe.”

Weaver: “What type of rooms are available and which are the most expensive.”

Receptionist: “All types are available. There are three different types. The Grand Suite is the most expensive.”

Weaver: “What is the difference between the rooms - what is the Grand Suite?”

“It is a room with a king size bed and 2 other rooms, one adjoining.”

Weaver: “Ok, thanks for that. Goodbye.”

64 During the afternoon of 17 November 2005, Liz Deegan, the Deputy Editor of “The Sunday Telegraph”, called Ms Weaver into her office. Ms Deegan was aware that Ms Weaver had just moved to New South Wales after growing up in Perth, and then living in the United Kingdom and Europe for about eight years. Ms Weaver did not know anything about Jenolan Caves. A conversation to the following effect ensued:

Deegan: “Have you heard of Jenolan Caves House?”

Weaver: “No.”

“It’s a bit of an institution - it used to be a bit of a holiday destination before people used to travel overseas as much. People would have fond memories of staying there when they were younger. Your role is to go up there and give an objective account of how you found it to stay as a guest.”

65 During the afternoon, Ms Weaver rang her partner, Ross Bilton, and asked him whether he wanted to travel to Jenolan Caves House with her. He agreed to do so. Ms Weaver picked up the rental car and then drove home to pick up Mr Bilton. They set out in the rental car from Balmain at about 6.00 pm. During the journey, Ms Weaver received a telephone call from Kristy Miller, a photographer with “The Sunday Telegraph”. Ms Miller informed Ms Weaver that she was coming up to Jenolan Caves House the next morning to take some photographs, and that she intended to be there around 7.00 am or 7.30 am and that they would meet for breakfast.

Ms Weaver and Mr Bilton Arrive at Jenolan Caves House

66 Ms Weaver and Mr Bilton arrived at Jenolan Caves House at about 9.00 pm (T1443). The temperature was about 12^○C. As they approached, Ms Weaver saw a blackboard out the front of Jenolan Caves House upon which was written (in chalk) words to the effect “half price for walk-ins”. They walked in the side door of Jenolan Caves House through the games room and the lounge area which, according to Ms Weaver, smelt like her grandparents’ house with a “musty kind of damp smell” (T1447.39).

67 Ms Weaver observed a youth about 18 or 19 years of age sitting at reception. This was Geoffrey Mason, a witness called in the Plaintiff’s case. After being asked to move their vehicle to the top car park, Mr Weaver and Mr Bilton returned to reception where a conversation to the following effect ensued:

Weaver: “Hi, we’d like to book a room. What rooms do you have available? Can we have a look at some different ones?”

“Sure. Here’s the keys to 2 different rooms, just go up the stairs over there.”

68 According to Ms Weaver, she was handed the keys to Rooms 302 and 315 (Exhibit 26, paragraphs 25-26). Mr Mason states that he handed Ms Weaver keys to Room 303 and, to the best of his memory, Room 316 (Exhibit T, page 1). Ms Weaver said that she made notes in a Spirax notebook whilst she was at Jenolan Caves House (T1443-1444). According to her notes (Exhibit AC), the rooms which she and Mr Bilton entered initially were Rooms 302 and 315. The tax invoice provided to Ms Weaver with respect to her stay recorded the room as Room 303 (Exhibit F). Ms Weaver acknowledged, in cross-examination, that it was possible that it was Room 303, although she remembered it as Room 302 and it was possible that the tax invoice was wrong (T1454-1455). I accept Ms Weaver’s contemporaneous notes as being the more accurate record. Having regard to the evidence generally concerning the administration of Jenolan Caves House, I do not consider that the reference to Room 303 on the invoice is persuasive, let alone decisive.

69 On this issue, the Plaintiff relied upon the evidence of Suzanne Janas, who stayed in Room 303 on the evening of 19 November 2005. Ms Janas had a satisfactory stay, with hot water coming through after about two minutes (T379). Photographs of Room 303 were tendered (Exhibit G), being photographs taken on 21 November 2005 after the articles were published (T58). The evidence does not advance the case on this issue, as I am satisfied that Ms Weaver and Mr Bilton stayed in Room 302.

70 Upon arrival, whilst standing at the reception area, Mr Bilton noticed that there was masking tape on the back of the receptionist’s chair which gave him the impression “that it was holding the chair together” (Exhibit 29, paragraph 14). Ms Weaver did not notice the chair initially but, following Mr Bilton mentioning it to her, she observed it when she and Mr Bilton returned to the reception area after visiting the two rooms. She observed brown plastic masking tape wound around the seat and around the back of it, which was clearly visible and “looked like it was securing the whole chair” (Exhibit 26, paragraph 27). Mr Mason acknowledged the state of the chair in cross-examination (T879.34):

“Q. By the way, the chair that you were sitting on in reception had a great big bit of masking tape on it, didn't it?
A. Yes.

Q. Is that right?
A. Yes.

Q. Why was that?

A. 'Cause it was a black vinyl sort of chair with a cushion under it. It had a tear or a split in it so there was just tape holding it, where the tear was, just to stop it getting worse.”

71 Ms Weaver and Mr Bilton went upstairs on their own and inspected two rooms, which I accept were Rooms 315 and 302. According to Ms Weaver, Room 315 was a larger room with a clean new-looking bathroom which appeared to have been renovated, unstained carpets, with a mouldy and musty smell, cobwebs in one corner, dust around the windows and was cold (Exhibit 26, paragraph 25). Mr Bilton described the first room as “old fashioned but adequately decorated”, which appeared to be clean but was “a bit wiffy, with a mildewy smell” (Exhibit 29, paragraph 18).

72 Ms Weaver described the second room (Room 302) as having satisfactory features such as the first room without the mouldy smell, although the room was cold and “had a little blow heater which didn’t do much” (Exhibit 26, paragraph 26). Mr Bilton described the second room as being similar to the first, but without the smell (Exhibit 29, paragraph 19).

Ms Weaver Asks for Some Food

73 Ms Weaver and Mr Bilton returned to the reception area. Ms Weaver recounts a conversation to the following effect with the receptionist (Exhibit 26, paragraph 27):

Weaver: “We’ll take Room 302 please.”

Receptionist: “No problem. That’ll be $140 including breakfast.”

Weaver: “Is the hotel busy?”

Receptionist: “No.”

Weaver: “Is it possible to get something to eat, even if it’s not a proper meal?”

“No, the last orders were at 7 pm and the chef has already left to go home to Oberon.”

Weaver: “So will we have to wait until breakfast?”

Receptionist: “Yes.”

74 Mr Bilton recalled the conversation as follows (Exhibit 29, paragraph 20):

Weaver: “Hi, we’ll take Room xxx.”

Receptionist: “Okay.”

Weaver: “Can we get some dinner?”

“No, the chef’s gone home. It was a quiet night, so he’s left.”

Weaver: “Is there any food we can buy?”

“No, they’re shutting up the bar so there’s no bar food either.”

Weaver: “Ok, thanks anyway.”

75 According to Ms Weaver, she and Mr Bilton went upstairs at about 10.00 pm. On the first floor, they passed the Explorer’s Bar. A young girl with braces was pulling the metal shutters over the bar closed. A conversation to the following effect ensued:

Weaver: “Could I buy a bottle of wine?”

Staff Member: “Yes, here’s the wine list.”

76 Mr Bilton gives a similar account of this event, describing the young girl as “probably 16 or 17 years old” (Exhibit 29, paragraph 21). Both Ms Weaver and Mr Bilton observed other young persons in the Explorer’s Bar, whom they assumed were staff members.

77 Mr Mason gave a different account concerning the availability of food. As this issue was the subject of a separate imputation (imputation 7(e)), it is appropriate to set out Mr Mason’s version and to record my findings on this issue.

78 According to Mr Mason, Ms Weaver asked “What do we do about dinner?” and he replied “I will ring the dining room to double check, but I think the last dinner sitting was at 7.30 pm”. He said that he phoned Elise Wilson, the Dining Room Manager, and said words to the effect, “A late check in has arrived, can they come up and get some food and a bottle of wine?”. Mr Mason states that Ms Weaver then said, “No, do not worry about the food, but I might go up and get a bottle of wine” (Exhibit T, page 1). This account is drawn from a draft statutory declaration which Mr Mason said that he prepared, at the Plaintiff’s request, within a few days of 20 November 2005 (T869-870). In evidence-in-chief, Mr Mason was asked (T864.25):

“Q. …. Did you have any discussion with Miss Weaver about the dining room or her having dinner?
A. To the best of my memory, I recall saying that the last dinner booking was at 7.30.

Q. Yes. And then did you say anything else about her ability to have dinner or her having dinner or having something to eat, just from memory?
A. No it wasn't unusual if we had a late check in to sometimes send meals up to the room, maybe just some chips or something. If it was outside the time dinner was booked, there was a chance they could.

Q. It wasn't unusual to have what?
A. They could just whip something up, some fish and chips or something in the kitchen and then send it up to the room.
Q. Can you remember whether you told Miss Weaver that?
A. I can't recall, sorry.

Q. What did she say about wanting a meal, to the best of your recollection?
A. ‘Don't worry about it. I will just have some wine’.

Q. ‘Don't worry about it, I will have some wine’?
A. (No verbal answer).

Q. Did you make any arrangements for her to get some wine?

A. No, I sent her up to the dining room and - and the staff there took care of it.”

79 In cross-examination, Mr Mason was asked (T876.1):

“Q. Now, Mr Mason, I think you said earlier in your evidence that you told Ms Weaver that the last dinner order was at 7.30 ?
A. Yes.

Q. In fact the chef had left by the time that Ms Weaver came in, is that right?
A. He may have been, I didn't work in the dining room. That is why I would have rung dining room.

Q. Did you say to Ms Weaver something like ‘The last orders were at 7pm and the chef has already left to go home to Oberon’?
A. I could have said that, I can't remember my words on the night.

Q. And is this possible, did Ms Weaver say something like this to you, ‘So we'll have to wait until breakfast ?’ And you said ‘Yes’?
A. I wouldn't have said that without ringing the dining room to check first.

Q. Is it possible that you did ring the dining room to check?

A. Yes.”

80 Mr Mason was cross-examined concerning the employment of trainees at Jenolan Caves House (T884.33):

“Q. There were a large number of trainees employed at Caves House, weren't there?
A. Yes.

Q. And those trainees were by definition people who had not had any previous experience working in the hotel industry?
A. Not necessarily. When I started there I took the position understanding that it was a traineeship to get a certificate to learn hospitality operations. I know there was another staff member whose parents owned a resort, so I guess everyone was different.

Q. There weren't very many staff members whose parents owned a resort, were there?
A. No.

Q. Do you agree with the proposition I am putting to you, that virtually all of the trainees had not had previous experience working in hospitality?

A. I don't know. I can't speak for anyone else. It could be possible. “

81 I accept Ms Weaver’s and Mr Bilton’s account of the conversation concerning availability of food. There are a number of reasons for this conclusion. Firstly, it is improbable that, having raised the question of the availability of food, Ms Weaver would abandon the topic in the manner suggested by Mr Mason. I accept that Ms Weaver and Mr Bilton had travelled from Sydney, and it is understandable that they would want something to eat following their journey. Further, given the purpose of the trip as a type of undercover fact-finding visit with respect to Jenolan Caves House, it is unlikely that Ms Weaver would not seek a concluded response to the request for food. In addition, I found Ms Weaver and Mr Bilton to be credible and straightforward witnesses. I have no reason to doubt their account. Their account is also supported by Ms Weaver’s contemporaneous notes (Exhibit AC). In my view, Mr Mason is mistaken in his recollection. The conversation would have meant nothing to him at the time, and several days passed before he was asked to recall what had happened. It is noteworthy that a bottle of Rosemount wine could be provided at the bar at the not insubstantial cost of $40.00 (Exhibit F), yet no food could be offered to Ms Weaver.

82 In reaching this conclusion, I have also taken into account the evidence of Brian Cook, a witness called by the Plaintiff. It was Mr Cook’s evidence that he worked as a chef at Chisolms Restaurant from about May to September 2005, before becoming on-site manager, a position which he continued to occupy in November 2005. Mr Cook stated that the normal procedure as at November 2005 involved guests who arrived after 8.00 pm being offered a meal and, if the dining room had ceased service, guests could choose off a menu and food would be sent to their room (T958). Whatever the normal procedure ought to have been, I accept that what occurred on the evening of 17 November 2005 is as testified by Ms Weaver and Mr Bilton.

83 As will be seen when I turn to broader issues of management and procedures at Jenolan Caves House, great caution must be taken in accepting statements as to how Jenolan Caves House was intended to operate, or what normal procedure was said to be. With respect to Mr Cook, I note that he was a chef who had been appointed to perform managerial activities not long before November 2005. I do not overlook the fact that Mr Cook would have taken the articles published on 20 November 2005 as being critical of his performance. Whatever his hopes may have been concerning the operation of Jenolan Caves House, the evidence of Ms Weaver and Mr Bilton (and Ms Miller) points to a substantial gap between his hopes and reality.

Ms Weaver and Mr Bilton Explore the Premises

84 Ms Weaver and Mr Bilton walked upstairs to their room and had a glass of wine. She had a packet of chips in her bag which they ate. Ms Weaver examined a brochure in the room with information about Jenolan Caves House in it which advertised, amongst other things, pastries and yoghurts as part of the continental breakfast.

85 Between 10.00 pm and 11.00 pm, Ms Weaver discovered that there was no mobile phone reception in Jenolan Caves House and went downstairs to ask the receptionist if there was a pay phone. He responded that the pay phone was not taking coins and allowed her to use the reception phone. The receptionist moved away from the desk whilst Ms Weaver made a call to Ms Labi, leaving a voicemail message that she had arrived at Jenolan Caves House. When Ms Weaver left the room, she took with her Mr Bilton’s digital camera for the purpose of taking photographs. After using the telephone, Ms Weaver went into the public ladies’ toilet opposite the reception area. She observed, amongst other things, that two of the taps were turned on and running, the toilet bowls were rusty and old and the toilet with the worst rust was running. In addition, one of the fluorescent lights was not working and was flickering, there was hair tangled in one of the plug holes, the radiator was covered with rust and dust and was cold, there was a multi-coloured towel with black edges and the room was cold.

86 Ms Weaver then returned to the third floor. She noticed along the corridors that the carpet was “really water stained” and, in particular, there were “big patches of stained carpet near an armchair on the third floor” (Exhibit 26, paragraph 34). This observation is significant as it relates to a specific imputation (imputation 7(f)) as to which more will be said later in this judgment.

87 Ms Weaver observed communal bathrooms on the third floor, one for women and one for men. She entered the women’s bathroom and tried to take photographs (Exhibit 26, Annexures B, C and D). She observed that the bathroom was “in a pretty disgusting state”, noting that it had “a musty, damp smell, slightly like effluent or sewerage”, the flyscreen on the window was covered with cobwebs, there was thick dust on the window ledges which were covered with dead bugs, cobwebs and dirt, the toilet bowls had rust marks streaked inside them, there were dead bugs in the bath, the shower heads in the showers were mouldy and rusty, the radiator was covered with rust, the room was cold and there was a bar of soap by the sink which was old, dried up and had a crack down the centre (Exhibit 26, paragraph 36).

88 Ms Weaver then entered the men’s bathroom on the third floor which she stated was in a similar condition to the women’s bathroom, although a smaller room. According to Ms Weaver, the photographs were not turning out well, so she returned to her room to seek the assistance of Mr Bilton. Whilst Ms Weaver had been exploring Jenolan Caves House, Mr Bilton had stayed in their room, continuing to drink wine and read the newspaper. He had a shower or a bath (he cannot recall which) at one stage during the night and there was hot water (Exhibit 29, paragraph 25).

89 Ms Weaver asked Mr Bilton to accompany her to assist with the photography. They first went to the communal bathroom on the third floor. Mr Bilton described this bathroom as “really disgusting” with “hundreds of dead insects in the bath, in the sinks and on the floor”, with one of the toilets being old and rusted “so the water was stained and looked very unpleasant”, the tap in one of the sinks was broken and was “sprouting water”, there was a “corrugated iron radiator which was all rusted away” which “looked as old as the house, probably a hundred years old” and there were cobwebs in the bathroom window (Exhibit 29, paragraph 27). He said he took some photographs of the bathroom, but that he no longer has those photographs.

90 Ms Weaver stated that she and Mr Bilton went downstairs to the communal bathroom on the second floor, which she considered was in even worse condition than the third-floor bathroom. In the second-floor bathroom, Ms Weaver observed that one light did not turn on, the toilets were in “a disgusting state”, the toilet bowls were rusty with a warped cistern on one of them and there was a cockroach on the floor of one of the showers which she photographed (Exhibit 26, Annexure F). In addition, the showers were mouldy on the showerheads and between the tiles, there were cobwebs all over the window as well as dead bugs and dust on the windowsill, and the bath was covered in dead bugs and dirt. A number of these images were recorded in photographs taken the following morning by Ms Miller (Exhibit 26, Annexures E, G, H and I). Perusal of these photographs supports the description given by Ms Weaver of the state of the bathroom or bathrooms in question.

91 Ms Weaver and Mr Bilton returned to their room and Ms Weaver got into the shower. She stated that the water was lukewarm for about 10 seconds, but then turned cold. She turned the cold tap off so only the hot tap was running, but there was no hot water for the duration of the shower. The water was ice cold (Exhibit 26, paragraph 40). Mr Bilton informed Ms Weaver that he had a shower (or bath) whilst she had been downstairs and that he had “hot water for about five minutes” (Exhibit 26, paragraph 41).

92 Ms Weaver and Mr Bilton retired to bed. Ms Weaver stated that it was extremely cold in the room and she put on the small heater which provided little assistance in warming the room. Mr Bilton confirmed that it was extremely cold, but observed that “there were plenty of blankets provided and the bed was comfy” (Exhibit 29, paragraph 30).

Observations and Events on Friday, 18 November 2005

93 Ms Weaver woke at about 6.30 am - 7.00 am on Friday, 18 November 2005. The room was freezing. Ms Weaver got into the shower, the water was initially lukewarm for about 10 seconds, but went cold before she could wash her face. She ran the shower for three minutes but it remained cold (Exhibit 26, paragraph 44).

94 Ms Weaver and Mr Bilton went downstairs for breakfast. When they walked in to the dining room at about 7.30 am, she observed only one other couple there. Mr Bilton said there were about a dozen tables, and only four or so were taken and it did not appear that there were many people staying at Jenolan Caves House (Exhibit 29, paragraph 33).

95 Ms Weaver observed a family of four coming in for breakfast as well as two other couples, the waiter observing that “the Hotel is never busy mid week” (Exhibit 26, paragraph 49).

96 Ms Weaver ordered the continental breakfast and Mr Bilton ordered the cooked breakfast. They both asked for coffee, but the waiter brought them tea. He took the tea away and brought coffee which Ms Weaver described as “really weak and disgusting” and she could not drink it (Exhibit 26, paragraph 47).

97 The breakfast was buffet style. Ms Weaver observed that (contrary to the brochure in the room), there were no pastries or yoghurts, the bread for toasting was “cardboardy” and did not taste very nice and the continental breakfast consisted of miniature boxes of cereal, canned grapefruit, a handful of dried fruit and some milk and orange juice. Mr Bilton described the cooked breakfast as “pretty ordinary”, with the eggs seeming to be “powdered or reconstituted”, tasting “very bad” and “like the eggs they provided as rations at army camp” (Exhibit 29, paragraph 34).

98 Mr Bilton stated that the chef came out during breakfast and enquired whether they had had a nice breakfast. Mr Bilton responded that it was fine - he felt that he could not say that the food was not nice because he felt sorry for the chef.

99 Ms Weaver obtained mobile reception and received a message from Ms Miller, saying she was running late. Ms Miller arrived between 8.00 am and 9.00 am. She met Ms Weaver and they went to Ms Weaver’s room. Ms Miller had a large camera with her. Thereafter, Ms Weaver and Ms Miller went to various parts of Jenolan Caves House and Ms Miller took photographs. Whilst this was happening, Mr Bilton went out for a walk.

100 Photographs were taken in the dining room which Ms Miller described as “damp and musty with a bedraggled atmosphere” (Exhibit 32, paragraph 11, Annexures A, B and C).

101 Ms Miller observed that, in the common areas and hallways near the lift, there were watermarks and stains on the carpet and she took photographs of the carpet (Exhibit 32, Annexures D, E and F). The photographs in Annexures E and F depict the third-floor foyer, an area described by Ms Weaver as being wet. This scene was portrayed in one of the photographs published in the article.

102 Ms Weaver and Ms Miller entered a communal bathroom which Ms Miller described as “filthy” (Exhibit 32, paragraph 14). Ms Miller took photographs of the bathroom (Exhibit 32, Annexures G, H and I). She took photographs of bugs in the bathroom (Exhibit 32, Annexures J-V). Ms Miller took photographs of cobwebs in the windows and bugs on the windowsills (Exhibit 32, Annexures W and X). Photographs were taken of the shower which was mouldy and dirty (Exhibit 32, Annexures Y-BB). The heater was covered with rust and Ms Miller photographed it (Exhibit 32, Annexures CC-DD). A photograph was taken of a dead cockroach on the bathroom floor (Exhibit 32, Annexure EE). A photograph was taken of the toilet which had a rusty bowl (Exhibit 32, Annexure FF).

103 Ms Weaver and Ms Miller went to reception and asked if they could look at some other rooms. Keys to three other rooms were provided for this purpose, including Room 321. The first two rooms were, according to Ms Weaver, “not too bad”, they “smelled musty and had only a few cobwebs” (Exhibit 26, paragraph 56). Room 321 smelt musty and mouldy and a tap was running in a basin in the corner of the room. Photographs were taken of these rooms (Exhibit 32, Annexures GG-MM).

104 Ms Weaver and Ms Miller went downstairs to the games room. There were a number of arcade games in the room which, according to Ms Miller, had tangled cords out in the open between the games. There were three adaptors in one power point. Ms Miller described the games room as “very dirty” with “dust and rubbish everywhere” and she took photographs of the room (Exhibit 32, Annexures NN-QQ). Mr Bilton went to the games room and observed that the wiring “looked overloaded and in a big tangle from each of the sockets” with dead insects and cobwebs in the room and on the wires (Exhibit 29, paragraph 40). These observations relate to imputation 7(g).

105 Ms Miller took photographs of the bistro which was empty (Exhibit 32, Annexures RR-TT). She took a number of photographs of paint peeling off walls, however she cannot recall which room this was in (Exhibit 32, Annexures UU-BBB).

106 Ms Miller went outside and took some photographs of the surrounds of Jenolan Caves House (Exhibit 32, Annexures CCC-LLL).

107 At this point, Ms Miller parted company from Ms Weaver and Mr Bilton, and headed towards her car along a pathway which ran beside a tennis court. She observed that the tennis court was unusable, with no net, no lines marked, there was dirt and sand everywhere, overgrown grass and the fence had holes in it. She took photographs of the tennis court (Exhibit 32, Annexures MMM-OOO). Ms Weaver (Exhibit 26, paragraph 61) and Mr Bilton (Exhibit 29, paragraph 43) also observed the apparently disused tennis court.

108 Mr Bilton provided his overall impressions of Jenolan Caves House as being “long past its best” and needing “a lot of money put into it to make it a nice place to stay”. He observed that the common bathrooms that he saw were disgusting and should not have been in use. He observed that most of the staff “seemed as if they were on school holidays doing extra work”, being youngsters who “looked to range from 15 to 17 years old” with the oldest staff member he saw being the chef. Mr Bilton did not see anyone acting in a managerial role. Mr Bilton observed that “Fawlty Towers” was “a fair description of the hotel” (Exhibit 29, paragraph 49).

370 “The Sunday Telegraph” has a relatively small circulation outside New South Wales. The arguments advanced with respect to interstate common law and statutory defences of contextual truth are not without some complexity. Competing oral submissions were made concerning the suggested attempt to rely upon a modified “Polly Peck defence”, despite the decision of the Court of Appeal in John Fairfax Publications Pty Limited v Zunter at [41]-[42]. Debates of this type have arisen in other cases: Kriss v John Fairfax Publications Pty Limited [2007] NSWSC 830 at [52]ff; Fawcett v John Fairfax Publications Pty Limited at [176]ff.

371 I have determined that the imputations are substantially true and that the s.15 defence in New South Wales has been established. The parties accept that a similar finding would flow to the other States and Territories. In light of this finding, and my finding concerning the s.16 defence in New South Wales, I do not propose to resolve a secondary issue concerning publication in other States and Territories with small circulations only of the relevant newspaper.

Defence of Comment

372 In New South Wales, the Defendant relies upon the defence of comment contained in ss.29-35 Defamation Act 1974 (NSW).

Submissions of Parties

373 The Defendant submitted that comment can arise by inference, wholly or partly, from the terms of the matter published: Petritsis v Hellenic Herald Pty Limited [1978] 2 NSWLR 174 at 195-196. The Defendant observed that imputation 7(a) in the present case, like the implication in Petritsis, was an imputation of unfitness arising purely by implication.

374 The Defendant submitted that none of the Plaintiff’s imputations in the present case are stated expressly in the matter complained of, and they amount to judgmental conclusions which are unstated, but inevitably implied by the article. The Defendant submitted that a large number of statements in the matter complained of would be understood by the reader as expressions of judgment, or judgmental conclusions.

375 It was submitted that imputations 7(a) and 7(b) would have been understood by the reader as the newspaper’s judgmental conclusion on the various unsatisfactory facts stated in the article.

376 With respect to the remaining imputations, the Defendant submitted that the question was whether those meanings would have been understood by the reader as having been conveyed by the publisher as opinions or conclusions. The Defendant submitted that, once the reader derived from the matter complained of, the idea that the Plaintiff managed Jenolan Caves House so badly, the reader would understand the publisher to be expressing a critical conclusion about the Plaintiff based on the material stated. If that is correct, the Defendant submitted that the reader would have understood the defamatory stings to be the expressions of the publisher’s view, being the publisher’s judgmental conclusion on the factual matters that the article recites.

377 The Defendant submitted that no different considerations apply with respect to the common law and statutory comment defences pleaded with respect to the other States and Territories and, if the Defendant was entitled to succeed on the statutory defence in New South Wales, it was entitled to succeed on the defences of comment generally.

378 The Plaintiff submitted that these were statements of fact and not comment, so that the defence of comment has not been made out.

Decision

379 The defence must fail if the comment was not a comment, but a statement of fact. The distinction between the two concepts is often difficult to make, but a characterisation must nonetheless be made, and the context and the circumstances of the use of the words will be important: John Fairfax Publications Pty Limited v O’Shane [2005] NSWCA 164 at [27]. The defence of comment is made not to the article as a whole, but to the imputation: NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340; John Fairfax Publications Pty Limited v O’Shane at [40].

380 To the extent that it is appropriate that I express findings and conclusions concerning this class of defence, I state the following.

381 I accept the Defendant’s submission that imputations 7(a) and 7(b) would have been understood by the reader as the Defendant’s judgmental conclusion on the various unsatisfactory facts stated in the article. These imputations are not stated expressly in the matter complained of. Rather, I accept that they constitute a statement of opinion and are based on proper material for comment.

382 The remaining six imputations are in a different category. I am not satisfied that each of these involve comment, as opposed to statements of fact.

383 I find the defence of comment established with respect to imputations 7(a) and 7(b), but not the remaining imputations.

Qualified Privilege

384 The Defendant relies on the defence of qualified privilege under s.22 Defamation Act 1974 (NSW), and under interstate legislation and the common law principle of extended qualified privilege.

385 Section 22 provided as follows:

“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 publisher 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 that person has that interest.

(2A) In determining for the purposes of subsection (1) whether the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances, a court may take into account the following matters and such other matters as the court considers relevant:

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

(b) the extent to which the matter published concerns the performance of the public functions or activities of the person,

(c) the seriousness of any defamatory imputation carried by the matter published,

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts,

(e) whether it was necessary in the circumstances for the matter published to be published expeditiously,

(f) the sources of the information in the matter published and the integrity of those sources,

(g) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the publisher to obtain and publish a response from the person,

(h) any other steps taken to verify the information in the matter published.

(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.”

386 It was common ground before me that the live issue with respect to qualified privilege under s.22 was whether the conduct of the Defendant in publishing the matter complained of was “reasonable in the circumstances” as required by s.22(1)(c) of the Act.

387 The parties accepted that the question of the reasonableness of the Defendant’s conduct is to be determined by the Court taking into account matters that the Court considers relevant, including, but not limited to the matters set out in s.22(2A). Reasonableness is not a concept that can be subjected to inflexible categorisation: Rogers v Nationwide News Pty Limited (2003) 216 CLR 327 at 339 [30].

Submissions of Parties

388 The Defendant submitted that it had the following information:

(a) the information obtained by Ms Silmalis in written and oral form from Mr Ward and Mr Richardson (referred to at [35]-[59] above) together with her effort to speak to the Plaintiff - the Defendant submitted that Ms Silmalis intended to convey the imputations based on the information that she was provided, and that her conduct in writing her part of the matter complained of was entirely reasonable;

(b) the information obtained by Ms Weaver as a result of her stay at Jenolan Caves House on 17-18 November 2005, including her observations (see [63]-[108] above) - Ms Weaver intended to convey the imputations that logically arose from her own contribution and she believed them - the Defendant submitted that her contribution to the matter complained of was entirely reasonable;

389 The Defendant submitted that its conduct in publishing the matter complained was reasonable within the meaning of s.22 Defamation Act 1974 (NSW).

390 With respect to extended qualified privilege at common law, the Defendant submitted that the substance of the article began as, and was published as, a story about the efforts of the New South Wales Government to introduce into Parliament legislation to break the Plaintiff’s lease and to take control of Jenolan Caves House. The basis for the Government’s action was said to be its concern about the way that the property was being operated, including multiple customer complaints, default notices, late rent payments and low occupancy.

391 The Defendant submitted that the article was plainly a communication on a government and political matter, and was not merely tangential. For reasons already advanced in relation to statutory qualified privilege, the Defendant submitted that its conduct in publishing the matter complained of was reasonable, and the extended qualified privilege defence at common law should succeed.

392 With respect to categories referred to in s.22(2A)(a)-(f) Defamation Act 1974 (NSW), Mr Evatt submitted that:

(a) the matter published was of public concern;

(b) not applicable;

(c) the imputations were serious;

(d) the matter complained of related to allegedly proven acts, adverse to the Plaintiff;

(e) there appeared to have been no urgency requiring the article to be published expeditiously;

“obviously partisan”

393 With respect to s.22(2A)(g) and (h), the Plaintiff submitted that Ms Silmalis had failed to obtain a response from the Plaintiff prior to publication, and had not provided the Plaintiff with a proper chance to answer the serious allegations in the article. In addition, the Plaintiff submitted that Ms Silmalis had fabricated statements, in particular, that 60 complaints had been received by the Government “this year alone”. The Plaintiff submitted that it was not reasonable for Ms Silmalis to make the statements contained in paragraph 5 of the article, and that it was not reasonable for her to publish without making proper efforts to obtain a response from the Plaintiff and actually obtaining his response.

394 The Plaintiff submitted that Ms Weaver had made no attempt to speak to any of the staff, let alone the Plaintiff, about the conditions at Jenolan Caves House. It was submitted that aspects of Ms Weaver’s article were unfair and that, if she was sincere about expecting a meal upon arrival, she would have made enquiries in this respect when she telephoned earlier in the day about a booking. It was submitted that it was not reasonable for Ms Weaver to write the article which she did.

395 With respect to Ms Miller, the Plaintiff submitted that the captions under the photographs on the article as published were not reasonable. The dining room was not empty at breakfast, the floors were not watery, the carpets were not badly stained by water and the cords in the games room were not tangled or hazardous.

396 The Plaintiff submitted that the s.22 defence of qualified privilege should be rejected on the grounds that the publication was not reasonable, and the Plaintiff was not given an opportunity to respond.

Decision

397 There are three components to the defence, each of which must be established by the Defendant. The first is that the recipient of the matter complained of has an interest, or apparent interest, in having information on the subject of the publication. The second is that the matter is published to the recipient in the course of giving information on the subject. The third concerns the reasonableness of the publisher. The Plaintiff accepts that the first and second elements were demonstrated in this case. The controversy lies with the third element of reasonableness.

398 Considerations bearing on reasonableness for the purposes of s.22(1)(c) include taking reasonable care before publishing to ensure that the conclusion is correct and, where appropriate, making proper enquiries and checking on the accuracy of sources: Morgan v John Fairfax & Sons Limited (1990) 20 NSWLR 511.

399 I have already made findings with respect to aspects of the evidence of Ms Silmalis, Ms Weaver and Ms Miller earlier in this judgment. I repeat the essence of those findings insofar as they are relevant to the reasonableness of the statutory qualified privilege defence.

400 I am satisfied that Ms Silmalis made an attempt to contact the Plaintiff, who did not return her call. I am satisfied that Ms Silmalis made an effort to include the Plaintiff’s side of the story in her article, by incorporating parts of the Plaintiff’s letter to Mr Richardson which Ms Silmalis had obtained from Mr Richardson. I do not consider that the failure of Ms Silmalis to make repeated attempts to contact the Plaintiff, adversely affects the reasonableness of the Defendant’s conduct in the circumstances of this case.

401 I am satisfied that Ms Silmalis incorporated in the article that which she had been told by Mr Ward concerning complaints about Jenolan Caves House. I do not accept the Plaintiff’s submission that Ms Silmalis fabricated any part of the article. I accept that it was reasonable for Ms Silmalis to rely upon statements made to her by Mr Ward whom she spoke to on several occasions. It is the case that the article was inaccurate in stating that there had been 60 complaints in “this year alone”. However, Ms Silmalis had been told this by Mr Ward and she was entitled to act upon what he said. It must also be said that the management of Jenolan Caves House by the Plaintiff in 2004-2005, as revealed by the evidence, was reasonably worthy of complaint in a number of respects considered in this judgment.

402 With respect to Ms Weaver, I accept her evidence as an accurate and reliable account of what she observed, experienced, and was told on her visit to Jenolan Caves House. In my view, there was no requirement upon her to disclose to staff at Jenolan Caves House that she was a journalist intending to write a story about the premises. Nor was there any expectation that she raise by telephone, in advance, the question of whether a meal would be available upon arrival. I have already considered the reasonable expectation of paying customers arriving at premises such as this that food of some type would be available.

403 Ms Miller gave reliable evidence concerning what she observed and heard at Jenolan Caves House during her visit on 18 November 2005. To a very large extent, the photographs which she took speak for themselves. However, the oral evidence of Ms Miller, taken with that of Ms Weaver and Mr Bilton, provides strong support of the features of Jenolan Caves House described by the three of them in detail.

404 In my view, the captions which accompanied the photographs of the games room and the stained carpet are accurate and reasonable in their content. The caption which accompanied the photograph of the dining room was not strictly accurate, as the evidence revealed that the photograph was taken after breakfast when the tables had been set for dinner. However, the unchallenged evidence was that very few people were in the dining room at breakfast time on 18 November 2005, so that a photograph of an empty dining room was not far from the truth. Beyond that, the photograph depicts a neat and tidy dining room. Having regard to the limited inaccuracy in this respect, I do not consider that this feature undermines the reasonableness of the Defendant’s publication.

405 I am satisfied that the conduct of the Defendant in publishing the matter complained of was reasonable in the circumstances. Accordingly, I am satisfied that the statutory defence of qualified privilege is made out in this case.

Fair Report or Fair Protected Report

406 The Defendant relied upon the defence of fair protected report under s.24(2) Defamation Act 1974 (NSW) and similar statutory defences in other States and Territories and at common law.

Submissions of Parties

407 The Defendant submitted that, in order to constitute a fair protected report, it is not necessary that the report of the privileged occasion be verbatim or presented in full. To be a fair report, the matter complained of must, with substantial accuracy, express what took place in that part of the proceedings of which it purports to be a report. The issue will be whether the report, of which the Plaintiff complains, has substantially altered the impression which the reader would have received if he or she had been present at the proceedings being reported. If there is, in the report, a substantial misrepresentation of a material fact prejudicial to the Plaintiff’s reputation, the matter complained of is not a fair protected report. A fair report is a substantially accurate summary of the proceedings, neither more nor less. The question is not whether it is fair or unfair to any particular person - the question is whether it substantially records what was said and done: Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58 at 62-63.

408 The Defendant submitted that the report of Ms Silmalis was a substantially accurate account of what the Minister for the Environment said in Parliament on 12 October 2005. Although it was not a verbatim or complete account of what the Minister said on that occasion, the Defendant submitted that it did not contain misstatements of fact prejudicial to the Plaintiff’s reputation so that the defence of fair report is made out.

409 The Plaintiff submitted that the defence of fair protected report must fail in this case for two reasons. Firstly, it was not stated in the article complained of that the words attributed to Mr Debus were said in Parliament. It was submitted that it must be made clear in the article that the report is of proceedings in Parliament, and that the article in this case did not so state that. As a result, in the mind of a reader, the words attributed to Mr Debus could have been said in a private conversation with Ms Silmalis or under a variety of other circumstances.

410 Secondly, the Plaintiff submitted that the report of Ms Silmalis did not report accurately and fairly what was said in Parliament. It was submitted that other information which she obtained, such as that from Mr Ward, was irrelevant. The Plaintiff emphasised that Ms Silmalis’ article stated that 60 complaints were received “this year”, and that this was not what was said in Parliament. Rather, Mr Debus had said that there were complaints made over “recent years” without any mention of the number of complaints. Further, the Plaintiff submitted that the Minister had said nothing in Parliament about rude staff, and made no reference to dirty toilets and filthy rooms. The Plaintiff submitted that these phrases were inventions of Ms Silmalis and that her report was neither fair nor accurate.

Decision

411 A fair protected report is one that conveys a substantially accurate account of what took place in that part of the proceedings of which it purports to be a report: Waterhouse v Broadcasting Station 2GB Pty Limited at 63.

412 Set out earlier in this judgement at [38] is a Hansard extract, being part of the speech in reply of Mr Debus on 12 October 2005 concerning the National Parkes and Wildlife Amendment (Jenolan Caves Reserves) Bill, which Ms Silmalis utilised for the purpose of preparing her article.

413 The defence of fair protected report focuses upon the substance of what was said, and the extent to which the article complained of is a fair analysis or fair summary, expressed with substantial accuracy, of what was said on the privileged occasion in Parliament.

414 By reference to the paragraph numbers in the matter complained of (see [12] above), the following conclusions may be expressed:

(a) paragraph 4 - this is a substantially accurate account of what the Minister said in Parliament, referring to “Fawlty Towers” ;

(b) paragraph 5 - the Minister referred to complaints by guests who had written to the Trust complaining about the management of Jenolan Caves House “over recent years” - the reference to “60 complaints … this year alone” in paragraph 5 is not a substantially accurate of what the Minister said in Parliament - the guest complaints mentioned by the Minister in Parliament include “The worst dinner experience we have ever encountered anywhere … appalling” , “Caves House was filthy and unorganised” , “The room occupied by me was not very clean and the toilet and bathroom were dirty” - these statements in Parliament provided an appropriate foundation for references to “dirty toilets … filthy rooms and below average meals” in paragraph 5, but there was no reference to “rude staff” by the Minister in Parliament, the appropriate inference being that this was information obtained by Ms Silmalis from Mr Ward, and that this was not a statement made on a privileged occasion;

(c) paragraph 6 - the Minister referred in Parliament to a complaint including “ [I am] not amused” and the article used the words “We are not amused” - this was a substantially accurate account of what the Minister said in Parliament;

(d) paragraph 7 - this statement is a substantially accurate account of what was said in Parliament concerning the Government’s intention to introduce legislation to break the 99-year lease;

(e) paragraph 8 - this appears to be a substantially accurate statement of what was said in Parliament concerning the lease and the Plaintiff;

(f) paragraph 9 - this appears to be a substantially accurate report of what was said in Parliament concerning asbestos issues and late rent payments with additional information, provided by Mr Ward, concerning five default notices issued to the Plaintiff;

(g) paragraph 10 - the Minister did refer in Parliament to rising visitor numbers to the caves and falling occupancy rates at Jenolan Caves House, however, the percentages referred to in the article do not appear in Hansard;

(h) paragraph 11 - the statement in the article that “Mr Debus said the complaint letter showed guests were unimpressed with their hotel stay” is a substantially accurate summary of what the Minister said in Parliament;

(i) paragraph 12 - the words attributed to the Minister constitute a direct quotation of words used by the Minister in Parliament;

(j) paragraph 13 - the words used in the article are a direct quotation of words used by the Minister in Parliament;

415 It will be seen from the above analysis that Ms Silmalis, at times, quoted directly from what the Minister said in Parliament, and sometimes paraphrased accurately what was said on the privileged occasion. However, there were additional words used in paragraph 5 which did not accurately record what the Minister said in Parliament.

416 Matter does not constitute a report of proceedings merely because it repeats information obtained from those proceedings. Attribution is required, but this does not necessarily demand a direct quote or acknowledgement. However, it must appear that the published matter bears the character of a report of the proceedings in question. It is not enough that the proceedings are a source of information, or the subject of an expression of opinion: Rogers v Nationwide News Pty Limited at 336 [18]. It is pertinent to consider whether a reader would know, or not know, the extent to which the matter that conveyed the defamatory imputation went beyond what was said on the privileged occasion: Rogers v Nationwide News Pty Limited at 336-337 [19].

417 Applying these principles, the defence of fair protected report is not made out by the Defendant in this case. Although direct attribution to a statement made in Parliament on a privileged occasion is not an essential requirement, the absence of such an attribution here is accompanied by a mixture of statements, some of which were not made on a privileged occasion. The statement in paragraph [5] concerning “60 complaints … this year alone” is not a substantially accurate summary of what was said in Parliament. A reader of the matter complained of would not know the extent to which statements were made on a privileged occasion.

418 Accordingly, the Defendant has not established a defence of fair protected report.

Grounds of Defeasance

419 In a Reply filed on 7 February 2007, the Plaintiff pleaded that certain defences of the Defendant, if established, ought be defeated. The Plaintiff contended that the defence of qualified privilege was defeated by express malice and the absence of good faith, which was said to have actuated the Defendant in publishing the matter complained of.

420 It is sufficient to record my rejection of the Plaintiff’s claim of malice and absence of good faith. The reasons for this conclusion are based upon my acceptance of the evidence of Ms Silmalis, Ms Weaver and Ms Miller on a range of topics considered in this judgment.

421 With respect to the defence of comment, the Plaintiff submitted that the Defendant’s servants or agents did not have the opinion represented by the comment. I accept the evidence of Ms Silmalis and Ms Weaver that they believed the imputations were true and I reject this ground for defeasance.

422 I am satisfied that no basis has been demonstrated to defeat any of the defences established by the Defendant.

Damages

423 I have determined that the Defendant has a complete defence to the Plaintiff’s claim by reference to the defence of substantial truth. I have considered the other defences relied upon as well, in the event that an appeal is brought and error is found with respect to any of my findings concerning the defence of substantial truth. I have determined that some, but not all, of the other defences relied upon by the Defendant have been made out.

424 Because of my conclusions, it is strictly not necessary for me to deal with the question of damages. However, I will consider that issue against the possibility that my findings in respect of liability are erroneous.

Submissions of Parties

425 The Plaintiff claims general damages and aggravated damages. General damages serve three functions - to act as a consolation to the Plaintiff for the distress he suffered from the publication of the statement, to repair the harm to his reputation (including, where relevant, his business reputation) and as a vindication to his reputation in the eyes of the public. Damage and injury to reputation is presumed. It flows from the act of publication to others, and evidence does not have to be called to prove it in fact occurred. The Plaintiff called witnesses with respect to his position and standing (Mr Caulfield, Ms Duffy, Mr Hann, Ms Honeysett, Ms O’Ryan, Mr Richardson and Mr Stracey). In addition, the Plaintiff adduced evidence from himself and others concerning his reaction to the publication and his hurt to feelings. Evidence was also adduced from the Plaintiff and others concerning the attitude of others to him following the publication.

426 The Plaintiff relied as well upon the mode and extent of publication of “The Sunday Telegraph” with an estimated readership in the period July 2005-June 2006 of 1,897,000 in New South Wales and 26,000 in Queensland. The Plaintiff relied upon the absence of apology from the Defendant.

427 The Plaintiff sought aggravated damages in accordance with s.46 Defamation Act 1974 (NSW).

428 The Defendant emphasised that any assessment of damages must be made in conformity with ss.46 and 46A Defamation Act 1974 (NSW). The Defendant submitted that any general damages awarded to the Plaintiff must find a place within a range marked out by the range of general damages available in personal injury actions, and that whilst there can be no precise mathematical comparison between such damages and damages for defamation, attention must be paid to the nature of the injury done by defamation compared with the consequences of disabling physical injury.

429 With respect to the Plaintiff’s claim for aggravated damages, the Defendant submitted that such damages are not constituted by a separate sum of general damages, but can form part of an award of general damages in circumstances where the conduct of the Defendant is proved to have been improper, unjustifiable or lacking in bona fides. However bona fide persistence in an unsuccessful defence is not a matter of aggravation: Triggell v Pheeney (1951) 82 CLR 497 at 514; Coyne v Citizen Finance Limited [1990-1991] 172 CLR 211 at 237.

430 The Defendant submitted that an appropriate award of damages in this case, should the Plaintiff succeed in his claim, would be modest. The Defendant said that it is important to recall that, at the time of publication on 20 November 2005, the Plaintiff was in heated dispute with the New South Wales Government over the lease of Jenolan Caves House. During the course of the Parliamentary debate on 12 October 2005, the Minister, Mr Debus, had made a range of stinging remarks concerning the Plaintiff’s management of Jenolan Caves House, and his suitability to continue as lessee and manager. Those remarks, some of which were repeated in the articles, were sharply critical of the Plaintiff and his reputation.

431 The Defendant submitted that it was also important to recall that, in early December 2005, shortly after the articles were published, receivers and managers had been appointed to Jenolan Caves House, effectively ending the Plaintiff’s occupation.

432 It was submitted that the evidence about the Plaintiff’s hurt feelings, and the damage to his reputation, failed to distinguish damage which flowed from his existing dispute with the Government and the appointment of receivers and managers on the one hand, and any damage caused by the articles. The Defendant pointed to evidence of what it described as a conspiracy theory of the Plaintiff - that the Defendant and the Government were conspiring to harm him. The Defendant submitted that the Plaintiff’s belief about a conspiracy was without foundation, but it lay at the heart of his reaction to the articles.

433 The Defendant submitted that, at the time of publication on 20 November 2005, the Plaintiff was distressed by the very real and imminent prospect of being evicted from Jenolan Caves House. Further, the Defendant submitted that evidence adduced with respect to the Plaintiff’s reputation, involved no attempt to differentiate between the harm which resulted from the articles complained of, and that which inevitably resulted from the fact that his business was taken away from him following the appointment of receivers and managers, and as a consequence of the Minister’s speech in Parliament.

434 The Defendant submitted that, having regard to these matters, particular care must be taken to distinguish the harm actually caused by the articles from the harm to the Plaintiff’s reputation caused by his actual eviction, the hurt to feelings which flowed from his misguided conspiracy theory and the hurt to feelings which flowed from the words spoken from the Minister in Parliament.

435 The Defendant also submitted that the Plaintiff’s attempt to distance himself from the management of Jenolan Caves House was a factor which weighed heavily against him in an assessment of damages. It was submitted that the Plaintiff had displayed very poor credit as a witness generally, and that his evidence about his hurt feelings should not be accepted at its face value.

Decision

436 There is some artificiality in an assessment of damages made in the circumstances of this case. It will be necessary to consider what damages would have been appropriate, having regard to available verdicts in the Plaintiff’s favour with respect to all, or some only, of the imputations.

437 As a general observation, it is necessary to keep in mind that there were a number of events which were impacting upon the Plaintiff’s reputation as at 20 November 2005. There was already action in train by the Government to terminate the lease and to remove the Plaintiff from his occupancy of Jenolan Caves House. Further, the receivers and managers were taking action with respect to the Plaintiff and Jenolan Caves House. On top of these events came the publication in “The Sunday Telegraph” on 20 November 2005.

438 I accept that this publication in a Sunday newspaper, with a wide readership in New South Wales and Queensland, would be damaging to the reputation of the Plaintiff. However, the Plaintiff’s reputation was not unsullied at that time, with public statements being made about him and the business, accompanied by the action of Government and creditors adverse information concerning the Plaintiff with respect to the same subject matter as that touched upon in the matter complained of.

439 No doubt, the effect of the publication was to inform a much larger group of persons of what was happening, at the Government level, with respect to the Plaintiff and Jenolan Caves House. However, there was much adverse to the Plaintiff’s reputation already in the public arena.

440 If the Defendant had failed completely with its defences in this case, I would have calculated general damages in the sum of $75,000.00.

441 With respect to aggravated damages, if the Defendant had failed completely with its defences, it would have been as a result of bona fide persistence in unsuccessful defences. That is not a matter of aggravation. Even if the Defendant had failed completely with its defences, I would not have been satisfied that the conduct of the Defendant had been proved to be improper, unjustifiable or lacking in bona fides. If I was wrong in that conclusion, and a basis for aggravated damages had been made out, I would have allowed a sum not exceeding $10,000.00 in this respect.

442 The conclusions with respect to damages which I have expressed above arise from the notional complete failure of the Defendant to establish its defences, including a failure to establish the substantial truth of imputations 7(a) and 7(b). It is necessary for me to consider an alternative scenario.

443 This scenario involves a finding that the Defendant has established the defence of substantial truth with respect to imputations 7(a) and 7(b), but has not demonstrated a defence of substantial truth with respect to the particular allegations contained in the remaining imputations. For present purposes, I will approach this assessment upon the basis of a failure by the Defendant to succeed on any, or all, of the particular imputations by way of defence of substantial truth. Assessment of damages on this scenario commences with an acceptance that it was substantially true that the Plaintiff was unfit to manage Jenolan Caves House and it was substantially true that he was incompetent in the management of Jenolan Caves House. Despite these general imputations being found to be substantially true, this calculation is approached upon the basis that the particular allegations were not found to be substantially true.

444 There is a significant element of artificiality about this approach. However, I will undertake it for the purpose of explaining my reasoning on damages in this respect. It is difficult to see how anything other than a very small award of general damages could be made in circumstances where it had been demonstrated as substantially true that the Plaintiff was unfit and incompetent to manage an establishment such as Jenolan Caves House, but that a number of specific deficiencies in management had not been made good against him. The damage to reputation arising from findings such as this would be small indeed. On this scenario, an award of general damages not exceeding $10,000.00 would have been appropriate. There would be no proper basis for an award of aggravated damages on this scenario, and I would make no allowance in that respect.

Conclusion and Orders

445 The Defendant has succeeded in establishing a complete defence to the Plaintiff’s claim.

446 I make the following orders:

(a) verdict and judgment for the Defendant;

(b) the Plaintiff is to pay the Defendant’s costs of the proceedings.

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CITATION:	Field v Nationwide News Pty Limited [2009] NSWSC 1285
HEARING DATE(S):	31 March 2008, 1 April 2008, 2 April 2008, 3 April 2008, 4 April 2008, 7 April 2008, 8 April 2008, 9 April 2008, 10 April 2008, 11 April 2008, 14 April 2008, 15 April 2008, 16 April 2008, 17 April 2008, 18 April 2008, 6 May 2008, 21 October 2008, 11 December 2008, 10 February 2009, 11 February 2009, 12 February 2009, 13 February 2009, 16 February 2009, 17 February 2009, 25 February 2009, 26 February 2009, 27 February 2009, 2 March 2009
JUDGMENT DATE :	26 November 2009
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Verdict and judgment for the Defendant. 2. Plaintiff is to pay the Defendant’s costs of the proceedings.
CATCHWORDS:	DEFAMATION - second-stage trial after jury trial under s.7A Defamation Act 1974 - eight imputations - two general imputations that Plaintiff was unfit to manage Jenolan Caves House and was incompetent in the management of Jenolan Caves House - six specific imputations alleging bad management in particular respects - substantial truth - contextual truth - qualified privilege - fair comment - fair protected report - verdict for the Defendant
LEGISLATION CITED:	Defamation Act 1974 (NSW) Wrongs Act 1958 (Vic) Civil Law (Wrongs) Act 2002 (ACT) Defamation Act 1989 (NT) Defamation Act 1957 (Tas) Evidence Act 1995
CATEGORY:	Principal judgment
CASES CITED:	Singleton v Ffrench (1986) 5 NSWLR 425 Greek Herald Pty Limited v Nikolopoulos (2001) 54 NSWLR 165 Favell v Queensland Newspapers Pty Limited (2005) 79 ALJR 1716 Ali v Nationwide News Pty Limited [2008] NSWCA 183 HSH Hotels (Australia) Limited v Multiplex Constructions Pty Limited [2004] NSWCA 302 Howden v Truth & Sportsman Limited [1937] 58 CLR 416 Sutherland v Stopes [1925] AC 47 Green v Schneller [2000] NSWSC 548 Fawcett v John Fairfax Publications Pty Limited [2008] NSWSC 139 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 Millane v Nationwide News Pty Limited [2004] NSWSC 853 John Fairfax Publications Pty Limited v Jones [2004] NSWCA 205 Hepburn v TCN Channel 9 Pty Limited (1984) 1 NSWLR 387 Chakravati v Advertiser Newspapers Limited (1998) 193 CLR 519 David Syme & Co Limited v Hore-Lacy [2000] 1 VR 667 Nationwide News Pty Limited v Moodie (2003) 28 WAR 314 Elliott v West Australian Newspapers (2008) 250 ALR 363 John Fairfax Publications Limited v Zunter [2006] NSWCA 227 Kriss v John Fairfax Publications Pty Limited [2007] NSWSC 830 Petritsis v Hellenic Herald Pty Limited [1978] 2 NSWLR 174 John Fairfax Publications Pty Limited v O’Shane [2005] NSWCA 164 NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Rogers v Nationwide News Pty Limited (2003) 216 CLR 327 Morgan v John Fairfax & Sons Limited (1990) 20 NSWLR 511 Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58 Triggell v Pheeney (1951) 82 CLR 497 Coyne v Citizen Finance Limited [1990-1991] 172 CLR 211
PARTIES:	Archer Field (Plaintiff) Nationwide News Pty Limited (Defendant)
FILE NUMBER(S):	SC 20421/05
COUNSEL:	Mr C Evatt; Mr R Rasmussen: Ms L Evans; Ms EM Picker (Plaintiff) Mr TD Blackburn SC; Mr J Hmelnitsky (Defendant)
SOLICITORS:	Bale Boshev Lawyers (Plaintiff) Blake Dawson Waldron (Defendant)