Hanson v Burston

Case [2023] FCAFC 124

FEDERAL COURT OF AUSTRALIA

Hanson v Burston [2023] FCAFC 124

Appeal from: Burston v Hanson [2022] FCA 1235 and Burston v Hanson(No 2) [2023] FCA 112
File number(s): NSD 925 of 2022
Judgment of: WIGNEY, WHEELAHAN AND ABRAHAM JJ
Date of judgment: 16 August 2023
Catchwords:

DEFAMATION – where comments were made during an oral interview broadcast on national television – where it was pleaded that the interview conveyed imputations that the respondent sexually abused a female staffer in his parliamentary office (fourth imputation), and that the respondent physically assaulted someone without provocation (sixth imputation) – appeal from the primary judge’s decision that the fourth and sixth imputations were carried – appeal from the primary judge’s decision that the fourth and sixth imputations were not substantially true – whether the primary judge erred in finding that the fourth and sixth imputations were carried – whether the primary judge erred in finding that the substantial truth of the fourth and sixth imputations had not been proven

HELD – the fourth imputation was carried – the substantial truth of the fourth imputation had been proven – the sixth imputation was not carried – appeal allowed, with costs

Legislation: Defamation Act 2005 (NSW)
Cases cited:

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632

Bazzi v Dutton [2022] FCAFC 84; (2022) 289 FCR 1

Burston v Hanson [2022] FCA 1235

Burston v Hanson (No 2) [2023] FCA 113

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716

Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165

Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336

Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652; (2015) 237 FCR 33

Lee v Lee [2019] HCA 28; (2019) 266 CLR 129

Lewis v Daily Telegraph Ltd [1964] AC 234

Nguyen v Director of Public Prosecutions [2023] NSWCCA 42

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Slim v Daily Telegraph Ltd [1968] 2 QB 157

Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149

V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 86
Date of hearing: 16 May 2023
Counsel for the Appellant: Ms S T Chrysanthou SC and Mr T Smartt
Solicitor for the Appellant: Danny Eid Lawyers
Counsel for the Respondent: Mr N G Olson
Solicitor for the Respondent: Mark O’Brien Legal

ORDERS

NSD 925 of 2022
BETWEEN:

PAULINE LEE HANSON

Appellant
AND:

BRIAN BURSTON

Respondent

ORDER MADE BY:

WIGNEY, WHEELAHAN AND ABRAHAM JJ

DATE OF ORDER:

16 AUGUST 2023

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.Orders 1 and 2 made by the primary judge in NSD 652 of 2020 on 19 October 2022 are set…

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Hanson v Burston [2023] FCAFC 124
Case
[2023] FCAFC 124
Decision Date

CaseChat Overview and Summary

In the appeal of Burston v Hanson, the respondent, Pauline Lee Hanson, sought to overturn the primary judge's decision that certain defamatory imputations made during an oral interview broadcast on national television were not substantially true. The appeal specifically focused on two imputations: the fourth, which alleged that the respondent sexually abused a female staffer in his parliamentary office, and the sixth, which alleged that the respondent physically assaulted someone without provocation. The appeal was heard in the Federal Court of Australia.

The legal issues before the court were whether the primary judge erred in finding that the fourth and sixth imputations were carried and whether the primary judge erred in finding that the substantial truth of the fourth and sixth imputations had not been proven. The respondent argued that the primary judge had not correctly characterised the phrase "sexual abuse" and had not given it its ordinary meaning. The respondent also argued that the primary judge had failed to consider the egregious nature of the respondent's conduct, its repetitiveness, and the power imbalance that existed.

The court found that the primary judge had correctly characterised the phrase "sexual abuse" and had given it its ordinary meaning. The court also found that the primary judge had given due recognition to the egregious nature of the respondent's conduct, its repetitiveness, and the power imbalance which existed. However, the court found that the primary judge had erred in finding that the fourth and sixth imputations were not substantially true. The court found that the substantial truth of the fourth imputation had been proven, but the sixth imputation was not carried. Accordingly, the appeal was allowed, and the primary judgment was set aside. The court ordered that judgment be entered for the respondent and that the respondent pay the appellant's costs of the proceedings and this appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. Orders 1 and 2 made by the primary judge in NSD 652 of 2020 on 19 October 2022 are set aside and in place thereof it be ordered that judgment be entered for the respondent (Pauline Lee Hanson).

3. Orders 1 and 2 made by the primary judge in NSD 652 of 2020 on 22 February 2023 are set aside and in place thereof it be ordered that the applicant (Brian Burston) pay the respondent’s (Pauline Lee Hanson) costs of the proceedings.

4. The respondent (Brian Burston) is to pay the appellant’s (Pauline Lee Hanson) costs of this appeal to be agreed or assessed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons below, the appellant has established that although the fourth imputation was carried, the defence of substantial truth was established, and that the sixth imputation was not carried. Accordingly, the appeal in relation to Burston v Hanson [2022] FCA 1235 (Liability Judgment or LJ) is allowed. It follows that it is unnecessary to consider the remaining grounds of appeal. The primary judgment The primary judge sets out the imputations at LJ [3]-[12] with the second matter complained of (2MCO), the Today Show interview, being detailed at LJ [6]-[8]. It is convenient to first briefly summarise the first and third matters complained of, which are not the subject of the liability appeal. The first matter complained of was a Facebook post, dated 12 February 2019, from which three imputations were pleaded. The first imputation, that Brian Burston sexually harassed staff in his office, was carried: LJ [133]; it was established that it was substantially true: LJ [171], and see LJ [237]; statutory qualified privilege was established: LJ [237]; and malice was not established: LJ [250]. The second imputation, that Brian Burston, an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment, was carried: LJ [136]; the primary judge tended to the view that substantial truth was not established: LJ [196]; statutory qualified privilege was established: LJ [239]; and malice was not established: LJ [250]. The third imputation, that Brian Burston, an Australian Senator, brought the Senate into disrepute by his shocking behaviour towards his staff, was not carried: LJ [137]; the primary judge was of the view that it would be difficult to prove it was substantially true: LJ [199]; statutory qualified privilege would likely be established: LJ [240]; and malice was not established: LJ [250]. The third matter complained of was a text message sent by Ms Hanson to Mrs Burston, from which two imputations were pleaded. The seventh imputation, that Brian Burston sexually harassed numerous female staff, was carried: LJ [159]; it was substantially true: LJ [171]; common law privilege was not established: LJ [223]; statutory qualified privilege was established: LJ [238]; and malice was not established: LJ [254]. The eighth imputation, that Brian Burston behaved disgracefully by cheating on his wife with one of his female staffers, was not carried: LJ [162]; it was likely substantially true: LJ [200]; common law privilege was not established: LJ [223]; and malice was likely established: LJ [254]. Returning to the 2MCO, an interview on the Today Show. The relevant aspect of the interview was succinctly described by the primary judge at LJ [54]-[58] as follows: [54]By way of broader context, which is a matter of public record, on 26 and 28 March 2019, the Australian Broadcasting Corporation broadcasted a widely publicised television documentary made by the media organisation Al Jazeera titled “How to Sell a Massacre” (the Al-Jazeera documentary), based upon a lengthy investigation into gun rights lobbying in the United States. During the Al Jazeera documentary, a journalist had posed as a member of the National Rifle Association (NRA), a very well-known United States gun rights lobby group. That journalist, in that ostensible NRA capacity, met in Washington DC with Ms Hanson, Mr Ashby, and a member of One Nation and party leader at the time in Queensland, Mr Steve Dickson.[55]The covertly recorded footage from that meeting included the apparent soliciting of political donations by Mr Ashby and Mr Dickson from the Al Jazeera journalist, whom they had had been duped into thinking represented the NRA, in return for seeking to soften gun laws in Australia. The recorded footage includes a portion that the Today Show interviewer, Ms Deborah Knight, played to Ms Hanson of what Mr Dickson had said as follows: “If they [that is, the NRA] threw $10 million at us, we could fucking win a heap of seats, plus a shitload of seats in the Senate”.[56]Segments of the video of the meeting with the Al Jazeera journalist are also displayed during the Today Show interview. Ms Hanson states during that interview that Mr Ashby and Mr Dickson were “led to believe that if you could get some funding, what would that mean?” Some of the subtitles of the interview are cut off by the large Today Show graphic at the bottom of the screen. However, in the video played to Ms Hanson during the interview, Mr Ashby and Mr Dickson apparently refer to One Nation holding a certain number of seats in government, and that if they held eight senate seats they would “have the whole Government by the balls”, amongst other matters.[57]Upon examination of the tendered transcript and footage from the Today Show interview, Ms Knight’s line of questioning was primarily based on the aforementioned Al Jazeera footage, the resultant public reaction to One Nation’s alleged attempt to solicit funds from the NRA in return for attempts to soften gun laws in Australia and an allegation against Ms Hanson that she suggested the Port Arthur massacre was a government conspiracy. Separate to this primary line of questioning, at 05:21 of the transcript reproduced above at [6] of these reasons, Ms Knight asked Ms Hanson the following questions:

Ratio Decidendi

Legal Principle Established

The respondent submitted that the primary judge correctly characterised the phrase “sexual abuse” and gave it its ordinary meaning. He submitted that it is not appropriate to read it down so that it means little more than sexual harassment, because Ms Hanson referred to both “sexual abuse and harassment”, which must be understood to have different meanings and exist on opposite ends of a spectrum, as found by the primary judge. The question of whether Mr Burston’s behaviour was properly characterised as sexual abuse was a matter of impression and judgment. The respondent submitted that the primary judge gave due recognition to the egregious nature of what Mr Burston was found to have done, its repetitiveness, and the power imbalance which existed, referring to LJ [172]. The respondent challenged the appellant’s submission that the primary judge failed to consider these matters, noting that submission was factually incorrect and should be rejected. It was also submitted that although it was not a factor expressly adverted to (although there was a reference at LJ [104]), the primary judge was able to observe Ms Leach and Ms Vairy’s demeanour as they gave evidence, and was able to form an impression from those observations about the impact of Mr Burston’s conduct on them. That advantage, it was submitted, is not available to this Court. The respondent submitted that ultimately, the primary judge’s dissatisfaction that the fourth imputation was substantially true was based on the evidence not being sufficiently cogent to justify a finding as serious as “sexual abuse”. It was submitted that the appellant’s submissions did not demonstrate any error in that conclusion.ConsiderationImputation conveyed Although this ground was developed orally by the appellant during the appeal, it was only rather faintly argued. It was conceded that this argument was not as strong as in relation to the sixth imputation. It will be recalled that the fourth and fifth imputations, that the respondent sexually abused, and harassed a female staffer, were found to have been carried. The primary judge rejected the submission that Ms Hanson had not said it was Mr Burston who had committed the conduct. His Honour was correct to do so. Any other meaning is entirely artificial, and fails to properly consider the words used, in their context. That being so, leaving aside the content of the phrase sexual abuse, which we address below, an ordinary reasonable person would understand from the plain words conveyed, that Mr Burston sexually abused and harassed a female staffer in his parliamentary office. Objectively, that is the singular natural and ordinary meaning of the words spoken. Even if the phrase “sexual abuse and harassment” is considered as a composite expression as contended for by the appellant, that does not mean that an ordinary reasonable person would understand the phrase only conveyed sexual harassment. Sexual abuse and sexual harassment are different concepts, albeit what would be understood as to the meaning of each of the concepts in this case is coloured by the same context. It is also to be recalled that the context in this case includes that this statement was said in an interview which was recorded live, and that the statement could have been seen as having been said in the heat of the moment as deflection. It was not a scripted statement involving precision of language.