Hockey v Fairfax Media Publications Pty Ltd

[2015] FCA 652

FEDERAL COURT OF AUSTRALIA

Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652

Citation:

Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652

Parties:

JOSEPH BENEDICT HOCKEY v FAIRFAX MEDIA PUBLICATIONS PTY LIMITED ACN 003 357 720

JOSEPH BENEDICT HOCKEY v THE AGE COMPANY LIMITED ACN 004 262 702

JOSEPH BENEDICT HOCKEY v THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LTD ACN 008 394 063

File numbers:

NSD 489 of 2014
NSD 491 of 2014
NSD 492 of 2014

Judge:

WHITE J

Date of judgment:

30 June 2015

Catchwords:

DEFAMATION – multiple publications – whether pleaded imputations conveyed – meaning of “corruption” – consideration of multiple related publications by large media organisations in various formats – whether newspaper headlines, posters, or tweets should be considered in isolation from related newspaper articles

DEFAMATION – defences – qualified privilege – whether respondents’ conduct was reasonable – whether requirement of reasonableness applies to respondents’ conduct in publishing entire matter, or defamatory aspects of the matter only – whether objective truth of matters reported is relevant to reasonableness under Defamation Act 2005 (NSW) and counterparts

DEFAMATION – defences – qualified privilege – whether respondents were actuated by malice – attribution of one employee’s malice – circumstance in which “innocent conduit” gives further expression of malice

DEFAMATION – remedies – assessment of damages

Legislation:

Commonwealth Electoral Act 1918 (Cth) Pt XX
Defamation Act 1974 (NSW) s 22
Defamation Act 2005 (NSW) ss 30
Defamation Amendment Act 2002 (NSW)

Cases cited:

A v Ipec Australia Ltd [1973] VR 39
Ali v Nationwide News Ltd [2008] NSWCA 183
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Associated Newspapers Ltd v Dingle [1964] AC 371
Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Barrow v Bolt [2013] VSC 226
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Broome v Cassell & Co Ltd [1972] AC 1027
Browne v Dunn (1893) 6 R 67 (HL)
Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44
Charleston v News Group Newspapers Ltd [1995] 2 AC 65
Crampton v Nugawela (1996) 41 NSWLR 176
Cripps v Vakras [2014] VSC 279
Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Egger v Viscount Chelmsford [1965] 1 QB 248
Evatt v Nationwide News Pty Ltd [1999] NSWCA 99
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Farquhar v Bottom [1980] 2 NSWLR 380
Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 AC 273
GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd [2000] 1 WLR 2571
Griffith v Australian Broadcasting Corporation [2010] NSWCA 257
Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254
Horrocks v Lowe [1975] AC 135
Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504
Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44, [2007] 1 AC 359
John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190
John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484
John Fairfax Publications Pty Ltd v O’Shane(No 2) [2005] NSWCA 291
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50, (2003) 201 ALR 77
Jones v John Fairfax Publications Pty Ltd [2002] NSWSC 1210
Korean Times Pty Ltd v Pak [2011] NSWCA 365
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Makim v John Fairfax & Sons Ltd (unreported, Supreme Court of New South Wales, Hunt J, 15 June 1990)
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Morgan v John Fairfax and Sons Ltd (No 2) (1991) 23 NSWLR 374
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059; (2006) 69 NSWLR 150
Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674
Purnell v BusinessF1 Magazine Ltd [2007] EWCA Civ 744; [2008] 1 WLR 1
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Rayney v Western Australia (No 2) [2009] WASC 133
Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Savige v News Ltd [1932] SASR 240
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Spautz v Williams [1983] 2 NSWLR 506
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Sun Life Assurance Co of Canada v WH Smith and Son Ltd (1933) 150 LT 211
Ten Group Pty Ltd v Cornes [2012] SASCFC 99, (2012) 114 SASR 46
Toogood v Spyring (1834) 149 ER 1044
Triggell v Pheeney (1951) 82 CLR 497
West v Mirror Newspapers Ltd (unreported, New South Wales Court of Appeal, Glass JA, 14 May 1973)
World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712
Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697

Date of hearing:

9-12, 16-17 March 2015

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

522

Counsel for the Applicant:

Mr B McClintock SC with Ms S Chrysanthou

Solicitors for the Applicant:

Johnson Winter & Slattery

Counsel for the Respondents:

Dr M Collins QC with Mr S Dawson

Solicitors for the Respondents:

Banki Haddock Fiora

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 489 of 2014

BETWEEN:	JOSEPH BENEDICT HOCKEY Applicant
AND:	FAIRFAX MEDIA PUBLICATIONS PTY LIMITED ACN 003 357 720 Respondent

JUDGE:	WHITE J
DATE OF ORDER:	30 JUNE 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The matter is adjourned to a date to be fixed by the Court for the hearing of submissions with respect to injunctions, interest, costs and the form of the orders appropriate to give effect to the Court’s findings.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 491 of 2014

BETWEEN:	JOSEPH BENEDICT HOCKEY Applicant
AND:	THE AGE COMPANY LIMITED ACN 004 262 702 Respondent

JUDGE:	WHITE J
DATE OF ORDER:	30 JUNE 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The matter is adjourned to a date to be fixed by the Court for the hearing of submissions with respect to injunctions, interest, costs and the form of the orders appropriate to give effect to the Court’s findings.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 492 of 2014

BETWEEN:	JOSEPH BENEDICT HOCKEY Applicant
AND:	THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LTD ACN 008 394 063 Respondent

JUDGE:	WHITE J
DATE OF ORDER:	30 JUNE 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The matter is adjourned to a date to be fixed by the Court for the hearing of submissions with respect to costs and the form of the orders appropriate to give effect to the Court’s findings.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 489 of 2014

BETWEEN:	JOSEPH BENEDICT HOCKEY Applicant
AND:	FAIRFAX MEDIA PUBLICATIONS PTY LIMITED ACN 003 357 720 Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 491 of 2014

BETWEEN:	JOSEPH BENEDICT HOCKEY Applicant
AND:	THE AGE COMPANY LIMITED ACN 004 262 702 Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 492 of 2014

BETWEEN:	JOSEPH BENEDICT HOCKEY Applicant
AND:	THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LTD ACN 008 394 063 Respondent

JUDGE:	WHITE J
DATE:	30 JUNE 2015
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

Introduction	[1]
The published articles	[12]
The articles in the SMH	[13]
The articles in The Age	[45]
The Canberra Times	[54]
The SMH poster	[58]
The online publications	[61]
Defamatory meaning	[62]
General principles	[63]
Do the SMH printed articles convey the pleaded imputations?	[74]
The submissions of Mr Hockey	[75]
Relevant matters of context	[89]
Imputations (a) and (b)	[93]
Imputations (c) and (d)	[98]
Imputation (f)	[104]
Imputation (e)	[106]
Consideration	[113]
Do The Age printed articles convey the pleaded imputations?	[146]
Do The Canberra Times printed articles convey the pleaded imputations?	[155]
The SMH poster	[160]
The tablet apps	[173]
The websites	[182]
SMH mobile electronic devices	[190]
The Age mobile electronic devices	[193]
The Age tweets	[195]
Summary	[214]
Qualified privilege	[215]
Common law qualified privilege	[218]
The s 30 defence of qualified privilege	[220]
The SMH poster and the first two AgeTwitter matters	[231]
The reasonableness of the respondents’ conduct in publishing the articles	[249]
The events of 19-21 March 2014	[250]
The preparation of the Nicholls article	[278]
The preparation of the Kenny article	[301]
Identifying the relevant conduct	[308]
The objective truth of the matters in the Nicholls article	[321]
Privileged access?	[333]
Consideration of reasonableness	[353]
Common law – Lange qualified privilege	[373]
Conclusion on qualified privilege	[375]
Malice	[376]
Principles	[378]
Overview	[385]
Mr Goodsir’s motive	[396]
Malice and the SMH	[416]
Malice and the SMH poster	[418]
Malice in relation to The Age and The Canberra Times	[422]
Damages	[439]
The extent of publication	[447]
Findings of fact bearing on the assessments	[455]
Identifying the causes of hurt and harm	[468]
Damage to reputation	[477]
Respondents’ submission concerning hurt and distress	[483]
Vindication	[498]
Aggravated damages	[502]
Assessment	[515]
Injunctions	[518]
Summary	[520]

Introduction

1. On 5 May 2014, each of the Sydney Morning Herald (the SMH), The Age and The Canberra Times published articles regarding Mr Hockey, the Federal Treasurer.  Mr Hockey is a member of the Liberal Party of Australia and the elected member for the seat of North Sydney in the Australian Parliament.  He has been the Federal Treasurer since 18 September 2013.

2. The articles said that Mr Hockey was providing “privileged access” to a “select group” in return for donations to the Liberal Party via a “secretive” fundraising body, the North Sydney Forum, whose activities were not disclosed fully to election funding authorities.  Apart from the print version of The Canberra Times, each publication included prominently the words “Treasurer for Sale” or “Treasurer Hockey for Sale”. 

3. Each of the SMH, The Age and The Canberra Times also published articles on their various online platforms.  The online publications contained articles, or provided links to articles, with a similar content to the substantive part of the printed articles.  Some, being “tweets”, comprised only the words “Treasurer for Sale” or “Treasurer Hockey for Sale”.

4. In addition, the SMH promoted its article with a poster, referred to sometimes as a “placard”, which included in large and bold font the words “Treasurer for Sale”.

5. In three actions heard together, Mr Hockey sues the respondents, the publishers of the SMH, The Age and The Canberra Times, for defamation.  He alleges that the articles and the SMH poster conveyed some or all of the following defamatory imputations:

   (a)He accepted bribes paid to influence the decisions he made as Treasurer of the Commonwealth of Australia;

   (b)He was prepared to accept bribes paid to influence the decisions he made as Treasurer of the Commonwealth of Australia;

   (c)He corruptly solicited payments to influence his decisions as Treasurer of the Commonwealth of Australia;

   (d)He is corrupt in that he was prepared to accept payments to influence his decisions as Treasurer of the Commonwealth of Australia;

   (e)He corruptly sells privileged access to himself to a select group which includes business people and business lobbyists in return for donations to the Liberal Party;

   (f)He knowingly permitted a Liberal Party fundraising forum with which he was associated to accept money from the corrupt Obeid family.

6. Imputations (e) and (f) were pleaded in respect of some articles only.  The imputation in para (a) was pleaded as the primary imputation.  Those in (b) and (c) were pleaded in the alternative to (a) and those in (d), (e) and (f) were pleaded as alternatives to (b) and (c). Although Mr Hockey relied on each of the pleaded imputations, ultimately it was imputation (e) which was at the forefront of his submissions.

7. The respondents deny that the articles conveyed any of the pleaded imputations, and contend that the defence of qualified privilege at common law and under s 30 of the Defamation Act 2005 (NSW) and its counterparts in each State and Territory is applicable in any event.

8. Mr Hockey disputes that any defence of qualified privilege is available and contends that, even if otherwise available, it is defeated because the respondents’ publications were actuated by malice. 

9. He claims damages, including aggravated damages, and injunctions to restrain the further publication of the offending articles. 

10. For the reasons which follow, I uphold Mr Hockey’s claim that the SMH poster and two matters published on Twitter by The Age with the words “Treasurer for Sale” and “Treasurer Hockey for Sale” were defamatory of him.  I find that the respondents have not made out their claims of qualified privilege and find that, even if otherwise available, these defence would have been defeated in the case of the SMH articles and the SMH poster by the malice actuating their publication.  I assess Mr Hockey’s damages in respect of the publication of the SMH poster at $120,000 and in the case of the two tweets by The Age at $80,000.

11. I find that Mr Hockey’s remaining claims have not been established.

    The published articles

12. Each article and the SMH poster will have to be considered separately.  It is convenient to commence with the articles published in the printed versions of the SMH, The Age and The Canberra Times.

    The articles in the SMH

13. Mr Hockey sues on a suite of articles published on pages one, six and seven of the SMH on 5 May 2014.  These articles appear under headlines “Treasurer for Sale”, “The price tag on Joe Hockey”, and “Networking event referred to ICAC” respectively.  For convenience, I will refer to them as the Nicholls article, the Kenny article and the Hartcher article.

14. The front page of the SMH on 5 May 2014 had a large photograph of Mr Hockey and adjacent to it a prominent headline: “Treasurer for Sale”.  Above that headline and immediately below the SMH masthead, was an overline in white against a red background: “Exclusive: Joe Hockey’s secretive fund‑raising body”.

15. Under the headline “Treasurer for Sale” and arranged side by side were three dot‑pointed sub‑headlines, in large font, albeit smaller than the principal headline.  For convenience I will number these three dot‑pointed headlines:

    1.        North Sydney Forum charges up to $22,000 for access to Treasurer

    2.        VIP members remain secret, disclosing fee only as party donation

    3.        Forum took $30,000 in donations from Obeid‑linked company

16. The article which followed (the Nicholls article) was written by Sean Nicholls, the SMH’s State Political Editor and appeared under his by‑line.  It described the North Sydney Forum (the NSF) as “a campaign fund‑raising body run by Mr Hockey’s North Sydney Federal Electoral Conference (FEC)”. 

17. It was common ground at the trial that the references to “Obeid” in the sub‑headline and in the various articles were, and would have been understood by readers to be, references to a former Minister in the New South Wales Government and to some members of his family and that, at the time of publication, the name “Obeid” had come to be associated in New South Wales and elsewhere with corruption.

18. The Nicholls article commenced on page one under the sub‑headlines and continued on pages six and seven.  It commenced with the following (I have numbered the paragraphs for convenience):

    (1)Treasurer Joe Hockey is offering privileged access to a select group including business people and industry lobbyists in return for tens of thousands of dollars in donations to the Liberal Party via a secretive fund‑raising body whose activities are not fully disclosed to election funding authorities.

    (2)The Independent Commission Against Corruption is probing Liberal fund‑raising bodies such as the Millennium Forum and questioning their influence on political favours in NSW.

    (3)Mr Hockey offers access to one of the country’s highest political offices in return for annual payments.

    (4)The donors are members of the North Sydney Forum, a campaign fundraising body run by Mr Hockey’s North Sydney Federal Electoral Conference (FEC).  In return for annual fees of up to $22,000, members are rewarded with “VIP” meetings with Mr Hockey, often in private boardrooms.

    (5)The North Sydney FEC officials who run the forum – which is an incorporated entity of the Liberal Party – say its membership lists and therefore the identities of its donors are “confidential”.  Mr Hockey also says details of who he is meeting and what is discussed are confidential.

19. The article then outlined some details of members of the NSF:

    (6)What little information is available reveals members of the forum include National Australia Bank and the influential Financial Services Council, whose chief executive is former NSW Liberal leader John Brogden. 

    (7)The FSC’s members, including financial advice and funds management firms, stand to benefit from the changes to the Future of Financial Advice (FOFA) laws being considered by the federal government, which would involve a winding back of consumer protections introduced by Labor.  NAB would also benefit from the changes.

    (8)The chairman of the forum is John Hart, who is also the chief executive of Restaurant and Catering Australia – a hospitality industry lobby group whose members stand to benefit from a government‑ordered Productivity Commission review of the Fair Work Act that is expected to examine penalty rates.

    (9)Mr Hart also sits on Prime Minister Tony Abbott’s business advisory council.

20. The Nicholls article then referred to Australian Water Holdings Pty Ltd (AWH) as a former member and in doing so referred to Mr Obeid: 

    (10)In March, it was revealed a former member of the North Sydney Forum was controversial infrastructure company Australian Water Holdings (AWH), which has been linked to the family of corrupt former Labor power‑broker Eddie Obeid and is under investigation by the ICAC over its attempts to win lucrative government contracts. 

    (11)When AWH’s links to the Obeid family were revealed last year, the North Sydney FEC returned an $11,000 forum membership fee and AWH’s membership of the forum was ended.  In March, the North Sydney FEC revealed it had returned another $22,000 in membership fees from AWH, whose former chairman is Liberal Party senator and former assistant treasurer Arthur Sinodinos. 

    (12)Senator Sinodinos stood aside as assistant treasurer in March, after giving evidence at the ICAC about AWH’s attempts to win a billion‑dollar contract with the NSW government.  Before that, he was responsible for implementing the government’s FOFA reforms. 

    (13)During the three years AWH was a member of the forum, the company’s chief executive was Liberal fund‑raiser and former lobbyist Nick Di Girolamo, whose gift of a $3000 bottle of Penfolds Grange Hermitage to Barry O’Farrell shortly after his March 2011 election win led to his resignation as premier last month, after he gave false evidence to the ICAC.

    (14)North Sydney Forum deputy chairman Robert Orrell said he was “sure” Mr Di Girolamo – a close friend of Eddie Obeid jnr, who was employed by AWH – had attended private boardroom meetings with Mr Hockey. 

    (15)However, he was adamant Mr Obeid jnr did not attend any meetings. 

    (16)The North Sydney Forum was established in May 2009, shortly after Mr Hockey became shadow treasurer in February, by Joseph Carrozzi, managing partner at professional services firm PriceWaterhouseCoopers.

    (17)Mr Carrozzi is also chairman of the Italian Chamber of Commerce and Industry in Australia and was a board member of the organisation when Mr Di Girolamo was its chairman.

    (18)He said he could not recall how AWH became a member of the forum but denied it was through this link.  He said the chamber was not a forum member.

1. Part way through para (11), the SMH inserted a referral to its editorial on page 14 by a bold notation “Forum must come clean on donors”.

2. The Nicholls article then went on to convey information provided to Mr Nicholls by Mr Carrozzi and Mr Orrell:

   (19)Mr Carrozzi, who said he had known Mr Hockey for 20 years, said he was “honoured to be asked” to establish the forum, which was “essentially there to provide a network and insight for small businesses”.

   (20)“Members get an opportunity to sit down and chat with Joe.  We’ve had other ministers, state and federal, participate as well”.

   (21)Mr Carrozzi said NSW Transport Minister Gladys Berejiklian and Premier Mike Baird – until recently treasurer – had participated in the forum’s functions for members. 

   (22)Past forum members include wholesale distribution and marketing firm Metcash and business services group Servcorp, founded by long‑time Liberal Party supporter Alf Moufarrige.

   (23)In 2008, it emerged Mr Moufarrige had given former Treasurer Peter Costello six bottles of Penfolds Grange – reportedly worth about $3,000 in total – as a thank you gift for opening a Melbourne building. 

   (24)Mr Carrozzi said Mr Hockey “sits down regularly” with members of the forum.  Mr Di Girolamo “may have attended one or two” meetings with Mr Hockey but Mr Carrozzi stressed “he was certainly not a regular attendee”.

   (25)He said Mr Obeid jnr was “certainly not at any meetings I attended with Mr Hockey”.

   (26)Mr Orrell said the forum had had about 12 lunches each year, “typically in a member’s boardroom”.

   (27)“It’s genuinely an exchange of information” he said.  “Joe just goes around the table and talks about issues”.

3. The Nicholls article then referred to the membership structure of the NSF, saying:

   (28)The North Sydney Forum membership structure offers “full membership” for an annual fee of $5,500, for which members are entitled to five boardroom events.

   (29)The fee for corporate and business members is $11,000 which offers an extra “VIP boardroom function” while private patrons paying $22,000 enjoy the additional benefit of “10 boardroom events”.

4. The Nicholls article then reported a statement of Mr Orrell that “money raised by the [NSF] was often distributed to Liberal Party marginal seats” and continued:

   (31)However, the forum does not lodge its own disclosures to the NSW Election Funding Authority.

   (32)In its disclosures, the NSW division of the Liberal Party declares membership fees – regarded as donations for the purposes of the election funding act – but does not state they are for the North Sydney Forum.  This practice masks who is donating directly to North Sydney Forum and the identity of its members. 

   (33)A spokesman for NSW Election Funding Authority said: “There is no record of the North Sydney Forum in the EFA system”.

   (34)Occasionally members name the North Sydney Forum in their disclosures to the EFA but there is no requirement to do so.

5. The article then went on to assert that the structure of the NSF is similar to that of “vehicles” established by other Liberal MPs, saying:

   (35)The structure of the North Sydney Forum is based on that of similar vehicles established by other Liberal MPs, such as the Wentworth Forum, which was set up for Communications Minister Malcolm Turnbull in August 2007. 

   (36)The Wentworth Forum was established by the former Federal Liberal Party Treasurer Michael Yabsley to raise funds for Mr Turnbull’s re‑election to the eastern suburbs seat of Wentworth following a redistribution in 2004 that made it a less safe Liberal seat.  It operated between August 2007 and late 2009 – for six months when Mr Turnbull was environment minister but primarily while he was shadow treasurer and then opposition leader – and gave members access to exclusive functions he attended.  It also had a sliding scale of membership fees from $5,500 to $55,000.

   (37)The Wentworth Forum was based on the Millennium Forum, the Liberal Party’s main fundraising body, which was established by Mr Yabsley in the late 1990s to replicate corporate fundraising practices.

   (38)Millennium Forum members are regularly invited to events hosted by NSW and federal ministers. 

   (39)Last week the chairman of the Millennium Forum, Paul Nicolaou, resigned after ICAC heard allegations it and another entity, the Free Enterprise Foundation, were used to disguise payments from prohibited donors including property donors to bankroll the Liberal Party’s campaign to win the 2011 NSW election.

6. Finally, the Nicholls article referred to questions which had been sent to the NSW Liberal Party and Mr Hockey:

   (40)Detailed questions were sent to the NSW Liberal Party about the North Sydney Forum, how it operates and why its membership is not disclosed to authorities.  A spokeswoman responded that the forum was “covered by the Australian Electoral Act with donations disclosed to the AEC in accordance with the law by the NSW Division of the party and funds are used for the work of the party”.

   (41)Questions were also sent to Mr Hockey inviting him to disclose details of his meetings with members.  A spokeswoman responded: “Questions about the function and administration of the North Sydney Forum should be addressed to them.  The Treasurer’s diary is confidential.”

7. Part way through para (40), the SMH inserted in bold an extract from the quoted statements of Mr Carrozzi set out earlier, as follows:

   “Members get an opportunity to sit down and chat with Joe.”

   Joseph Carrozzi, founder

8. The article concluded with the note “Do you know more?” and gave Mr Nicholls’ email address at Fairfax Media for any response.

9. As noted earlier, Mr Nicholls’ article ran over pages one, six and seven.  The portion on page one ceased part‑way through the paragraph numbered [10] above.  The portions on pages six and seven comprised almost the whole of the bottom half of both pages and were under a prominent headline which ran across both pages:

   Treasurer up for sale with secretive fund‑raising forum that charges up to $22,000 for membership and coveted access.

10. The front page of the SMH also contained an extract from its editorial on page 14 as follows:

    This practice of politicians effectively selling access is a disquieting development in our political culture.  It’s time for the North Sydney Forum to come clean about who are Mr Hockey’s financial backers and what they get for their largesse.  It is too simplistic for Mr Hockey to claim he is somehow at arm’s length from the activities of the forum.

    Mr Hockey does not sue on the editorial separately, but did rely on this extract.

11. The front page also contained a referral to an article by another journalist, Mr Kenny, (the Kenny article) which said:

    The price tag on Joe Hockey

    Mark Kenny, Analysis, Page 6

12. Pages six and seven had at their top headlines, described by Mr Goodsir, the Editor‑in‑Chief of the SMH, as “strap headlines”, stating, “NEWS | POLITICAL DONATIONS” and “POLITICAL DONATIONS | NEWS” respectively. 

13. The Kenny article appeared under two headings on page six: first, one which was partly in blue print and partly in black print, “Campaign funds Fair go questioned”; and secondly, a prominent bold headline, “The price tag on Joe Hockey”.  There then followed the word “analysis”, Mr Kenny’s by‑line and his description as “Chief Political Correspondent”. 

14. The Kenny article was as follows (again with the paragraphs numbered for convenience):

    (1)Nobody is suggesting Joe Hockey is corrupt.  But it is increasingly clear the Treasurer is party to a process that is corrupting Australia’s democratic integrity. 

    (2)As in the US, political representation increasingly turns on how much cash you have, and where you are prepared to direct it.

    (3)A week from now, the Treasurer will rise to the dispatch box in Canberra and deliver a federal budget, his first, and undoubtedly one of the most significant in many years.  He will ask Australians to take a leap of faith: to take him on trust. 

    (4)Trust that he is acting purely in the national interest; that the harsh medicine proscribed (sic) for pensioners and families is the correct formula for the economy; that the big end of town will match their sacrifice.

    (5)That trust must come under scrutiny in light of the revelation that Hockey’s centrality to the Government has become a commodity – a product to sell – in the ruthless search for more campaign funds.

    (6)Through vehicles such as the North Sydney Forum, the most senior public offices have been quietly privatised to be sold on as political access.  It has been done in a way that is deliberately opaque, under the radar and disguised as something else. Rather than solicit donations from companies looking to curry favour or buy influence, the forum charges exorbitant annual “membership fees”, well in excess of the disclosure requirements under electoral donations rules. 

    (7)Have no illusion, this is an entity created expressly to further the Liberal Party’s interests, to wit, the re‑election of Joe Hockey.  Hockey is not the personal recipient of any funds but it is hard to draw a total distinction between the forum’s interests and his own, given the former is dedicated to the re‑election of the latter. 

    (8)It is one of a number of vehicles used by MPs on both sides of politics for years.  Former Treasurer Peter Costello’s Higgins 200 Club was reported to have $900,000 in assets as recently as two years ago, long after he left politics.

    (9)Such vehicles are within the rules.  But should they be?  By marketing Hockey’s pivotal role in economic decision‑making, the North Sydney Forum may be said to be offering something that is not really its to sell: gold‑card entry to one of our highest public offices. 

    (10)What these well‑connected companies and industry groups such as the Financial Services Council and the National Australia Bank, have received as a return on their investment remains unclear. 

    (11)But it’s a legitimate question, given the financial services industry stands to gain from policy decisions favourable to them, such as the government’s commitment to rolling back consumer protection and financial advice laws. 

    (12)Politicians are fond of invoking the fair go as the quintessential Australian ethic.  But it is hard to discern that fair go for voters when special access is being sold to the rich and powerful and the money used to run party political campaigns.  

15. Pages six and seven also contained a number of graphics spread over the two pages.  First, there was a large photograph of Mr Hockey.  Secondly, there was an extract from the North Sydney Forum website homepage.  That extract contained three photographs of Mr Hockey and, under the name North Sydney Forum, the words “Business and community leaders supporting Joe Hockey MP”.  It included the following words:

    By joining the North Sydney Forum you will have the opportunity to participate in a regular program of events including boardroom lunches with Joe Hockey, focused on key policy areas that are nominated by Forum members.

16. The graphics on page six then set out another extract from the NSF website which detailed the NSF membership packages:

17. On page seven, under the heading “Who’s Who”, the graphics had small photographs of Mr Hart, Mr Orrell, Mr Carrozzi, Mr Di Girolamo, Mr Obeid Jnr, Mr Brogden and Senator Sinodinos, with a short note about each.

18. The graphics then identified NAB and FSC as members of the Forum and Servcorp and Metcash as “One‑time forum members”.

19. At the foot of the graphics and running over both pages six and seven were the words “How It Works” with the following three numbered steps set out side by side:

20. Within the section on page six containing the continuation of Mr Nicholls’ article, the SMH set out seven questions which it had directed to the NSW Liberal Party and the Party’s response as follows:

    Questions for NSW Liberal Party

    1.Who are the current corporate and individual members of the North Sydney Forum?  Can you please provide a breakdown of companies and individuals by membership class etc.

    2.What is the total value of membership fees and donations to the forum since it was established?

    3.What information about forum membership fees is disclosed to the NSW Election Funding Authority or Australian Electoral Commission by the Liberal Party?

    4.Does the Liberal Party provide the authority or commission with the names of the members of the forum?  If not, why not?

    5.Why does the Liberal Party not lodge a separate disclosure return for the forum?

    6.How does the party determine where (ie which seats) funds raised through memberships and donations to the forum are distributed?

    7.Will you please confirm that the membership and other funds are distributed to seats outside North Sydney and, if possible, provide a list of the seats to which funds have been directed.

    The response:

    “North Sydney Forum is a fund‑raising body of North Sydney FEC, as such it reports to the FEC who in turn report to the NSW Liberal Party.  It is covered by the Australian Electoral Act with donations disclosed to the AEC in accordance with the law by the NSW Division of the party and funds are used for the work of the party.”

21. Within the section on page seven, the SMH set out 12 questions which it had directed to Mr Hockey, together with the response provided by his office, as follows:

    Questions for Joe Hockey

    1.Who are the current members of the North Sydney Forum?

    2.What role did you have in setting it up and why was it set up?

    3.What is the extent of your involvement in forum administration?

    4.How many VIP briefings/meetings did you grant forum members in [the] past 12 months?  Where were they held, who attended, what was discussed?

    5.How many of these have occurred since you became Treasurer?

    6.How many other meetings did you grant forum members in [the] past 12 months?  Where were they held, who attended, what was discussed?

    7.How many of these have occurred since you became Treasurer?

    8.What discussions have you had with forum member the Financial Services Council regarding the Future of Financial Advice legislation?  Who else was present?

    9.What discussions have you had with forum chairman John Hart regarding the review of the Fair Work Act?  Who else was present? 

    10.How many forum‑related meetings have you attended with Nick Di Girolamo? 

    11.How many forum‑related meetings have you attended with Eddie Obeid jnr? 

    12.How many forum‑related meetings have you attended with Arthur Sinodinos?

    The Response:

    “Questions about the function and administration of the North Sydney Forum should be addressed to them.  The Treasurer’s diary is confidential.”

22. Finally, page seven contained another article by Mr Nicholls under the headline “Networking event referred to ICAC” (the Hartcher article).  It reported the referral to the Independent Commission Against Corruption in New South Wales (the ICAC) of a fundraising event organised by the Georges River Club at which Mr Hartcher had been guest of honour.  At the time of the event, Mr Hartcher was a Minister in the New South Wales Government.  The article reported on membership of the Georges River Club as follows (using paragraph numbering which reflects the location of the paragraphs in the article):

    (4)According to emails sent to prospective members, joining the Georges River Club offered “an investment that will open up opportunities and provide access to marketing possibilities that are normally out of reach for most businesses.

    (5)“Membership of the GRC can provide you with so much more, for example, the opportunity to share ideas with other business leaders, influence policy and decision makers and have sway with government.”

    (6)Gold memberships were offered for $5000, silver $2,500 and bronze for $1,000.  The event was held shortly before the September 2012 local government elections at which Cr Daniel was elected.

    The Hartcher article concluded with the following:

    (16)ICAC is investigating allegations Mr Hartcher and two other central coast MPs, Darren Webber and Chris Spence, solicited illegal donations for the Liberal Party through an alleged slush fund called Eightbyfive.

    (17)     Mr Hartcher did not respond to a request for comment.

23. The Hartcher article did not contain any reference to Mr Hockey or to the NSF.  Nevertheless, it was part of the publication on which Mr Hockey relied in his claims based on the print version of the SMH.  The Hartcher article was not included in any of the other publications about which Mr Hockey complained.

24. Although Mr Hockey relied on the extract from the SMH’s editorial appearing on page one, he did not otherwise complain of the editorial, and it is not necessary to refer to it in these reasons.

    The articles in The Age

25. The Nicholls and Kenny articles were also published in The Age on 5 May 2014.  Their content was the same as the articles published in the SMH, but the headlines and layout differed in some respects. 

26. The Nicholls article commenced on page one opposite a prominent photo of Mr Hockey and continued on page four.  It too appeared under a large bold headline “Treasurer for Sale”.  That headline was beneath an overline “Exclusive    Party donations linked to Hockey’s secret ‘forum’ ”.  The word “Exclusive” appeared in yellow against a red background and the balance of the overline was white against a red background.  Page one on The Age also contained three dot‑pointed sub‑headlines.  These were arranged vertically and differed from those in the SMH, having been written by Mr Fuller, the Print Editor of The Age:

    ŸBusinesses, lobbyists pay for privileged access

    Ÿ“Forum” chaired by hospitality industry lobbyist

    ŸAustralian Water Holdings made donations.

27. Page one also contained a cross reference to the Kenny article under the heading “Analysis Mark Kenny” with an extract from the Kenny article in bold:

    This is an entity created expressly for the purpose of furthering the Liberal Party’s interests. 

28. The continuation of the Nicholls article on page four was under a prominent bold headline “Businesses, lobbyists pay to get up close” which was, in turn, beneath an overline “Treasurer for sale Donations link”.

29. Immediately before the paragraph which in the Nicholls article in the SMH I have numbered 28, The Age included in bold an excerpt of the statement attributed to Mr Carrozzi “Members get an opportunity to sit down and chat with Joe”.

30. The bold headline to the Kenny article on page five was “Is Hockey’s ear on the auction block?”.  That heading appeared under an overline “Cash for conversation”. 

31. The graphics on pages four and five of The Age article were the same as those published in the SMH. 

32. Page four of The Age also carried a small article under the heading “Pyne calls for donations ban on unions, companies”.  The flavour of that article is seen in its first two paragraphs:

    Senior coalition frontbencher Christopher Pyne has called for a ban on political donations from corporations and unions. 

    In a departure from Liberal Party policy, Mr Pyne told ABC TV on Sunday that only individuals should be allowed to donate to political parties. 

33. There are other minor differences between the SMH and The Age articles but it was not suggested that these were material.

    The Canberra Times

34. The printed edition of The Canberra Times on 5 May 2014 also carried the Nicholls and Kenny articles.  The Nicholls article had less prominence in The Canberra Times as it was one of five articles on, or commencing on, page one.  It appeared under the headline “Paying their way: how a select group buys access to the Treasurer”.  The page one article also contained a small photograph of Mr Hockey with an accompanying notation “Confidential: Joe Hockey offered privileged access in return for donations to a fund‑raising forum”. 

1. Unlike the SMH and The Age, The Canberra Times did not use the headline “Treasurer for Sale”.  Nor did it carry an overline or any dot‑pointed sub‑headlines.  Page one did contain a small and illegible excerpt of that part of the graphic concerning the membership packages opposite the following notation:

   Inside

   →How it works

   →Analysis

   Page 4

2. On page four, The Canberra Times carried the continuation of the Nicholls article under a headline “Paying their way: how a select group buys access”.  The statement by Mr Carrozzi “Members get an opportunity to sit down and chat with Joe” was set out in bold part‑way through the continuation of the Nicholls article on page four.

3. There was no separate headline to the Kenny article but the graphics, which appeared immediately above the Kenny article, followed a headline “There’s a price tag on influence and that’s not a fair go”. 

   The SMH poster

4. The SMH poster contained at its head the SMH masthead.  This occupied approximately one quarter of the poster.  Then followed the following words:

   Exclusive

   Treasurer

   For sale

   Herald

   Investigation

5. The word “Exclusive” was in large red font against a white background.  The words “Treasurer for Sale” were in slightly larger black font against a white background.  The words “Herald Investigation” were in slightly smaller font and were in white against a black background. 

6. Mr Cubby, the deputy print editor of the SMH, determined the content of the poster.  His evidence as to the purpose of the poster, which was not contested by Mr Hockey (and indeed relied upon by him), was as follows:

   [33]Posters are short and to the point.  The number of words in a poster will always be limited, as they need to have a font size that will be readable to a person driving by or walking across the other side of the road from, a newsagency. 

   The online publications

7. I will refer later to the publications in the various online platforms.  I note at this stage that several contained links to the Nicholls article and the graphics, although the headlines and the format varied. 

   Defamatory meaning

8. The respondents acknowledged that, if their publications conveyed the meanings pleaded by Mr Hockey, they were defamatory of him.  The contest between the parties on this aspect of the matter was whether the publications did convey the pleaded imputations.

   General principles

9. The principles to be applied in the determination of this issue are settled, having been stated in numerous authorities: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, (2009) 238 CLR 460 at [5]‑[6]; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50, (2003) 201 ALR 77 at [26]; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505‑6; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164‑5; Farquhar v Bottom [1980] 2 NSWLR 380 at 386‑7; Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 69‑74. The question is whether ordinary reasonable readers would have understood the matters complained of in the defamatory senses pleaded. The ordinary reasonable meaning of a matter may be either its literal meaning or that which is implied or inferred by the matter. It includes inferences and conclusions which the ordinary reasonable person draws from the words used, taking into account the observation of Lord Reid in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245, that the reader may engage in a certain amount of “loose thinking”. Lord Reid went onto to say:

   The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look at it again before coming to a conclusion and acting on it.  But formulated reasons are very often an afterthought.

10. Ordinary reasonable readers are taken to be persons of ordinary intelligence, experience and education, who are neither perverse nor morbid nor suspicious of mind, nor avid for scandal.  They do not live in ivory towers and can and do read between the lines in the light of their general knowledge and experience.   They do not engage in over‑elaborate analysis in search for hidden meanings, nor do they adopt a strained or forced interpretation.  They are not lawyers and their capacity for implication may be greater than that of lawyers.

11. The ordinary reasonable reader does not look at the matter complained of in isolation but rather in the whole context in which it is published: John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190 at 195. The context includes all the surrounding circumstances.

12. The ordinary reasonable person is taken to have read the whole of a newspaper article and not just the headline or the particular portions of which complaint is made: A v Ipec Australia Ltd [1973] VR 39; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646; Charleston v News Group at 71‑3.  As will be seen, this is an important consideration in the present case.

13. The more sensational an article in a newspaper, the less likely it is that the ordinary reasonable reader will read it with the degree of analytical care which may otherwise be given to a book and the less the degree of accuracy which may be expected by the reader: Marsden at 165.  Conversely, the ordinary reasonable reader of a serious publication may be taken to read it more cautiously and critically, especially having regard to the opportunity to reflect on its contents. 

14. Generally, courts do not take a narrow view of the meaning conveyed to reasonable readers by words which are imprecise, ambiguous, loose, fanciful or unusual: Marsden at 165.

15. In determining what is reasonable in any case, a distinction must be drawn between what ordinary reasonable readers (drawing on their own knowledge and experience of human affairs) could understand from what the publisher has said in the matter and the conclusion which the readers could reach by taking into account their own beliefs which have been excited by what was published.  It is the former, and not the latter, which is pertinent. 

16. In relation to the impact of headlines, McHugh J said in John Fairfax Publications Pty Ltd v Rivkin at [26]:

    [26]… A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If "[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together." But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article.

    (Citations omitted)

17. Similarly, in Mirror Newspapers v World Hosts at 646, Aickin J noted that the emphasis by way of headline or other method given by a publisher is not to be ignored.  To say that consideration must be given to the publication as a whole does not mean that the Court must give equal significance to each part of the publication.

18. The meaning which the respondents intended to convey by the words they published is irrelevant to the ascertainment of their natural and ordinary meaning.  Even if they did not intend their words to defame Mr Hockey, they will still be liable if the ordinary reasonable reader understood them in that way.  Similarly, evidence as to the actual understanding of the words by those who read them is immaterial. 

19. The determination of the natural and ordinary meaning of words involves the application of the “single meaning” rule.  This rule was explained by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173‑5:

    [When] words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some would have understood them as bearing others of those meanings.  But none of this matters.  What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear.  That is “the natural and ordinary meaning” of words in an action for libel. 

    …

    … The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law.  The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact.  But the recognition that there may be more than one meaning which reasonable men might understand words to bear does not absolve the jury from the duty of deciding upon one of those meanings as being the only “natural and ordinary meaning” of the words.  Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the “right” meaning.  And so the unexpressed major premise, that any particular combination of words can bear but a single “natural and ordinary meaning” which is “right”, survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel. 

    But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single “right” meaning as “the natural and ordinary meaning” of the words complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words are capable of bearing and the choice of one “right” meaning which they do bear disappears.

    (Emphasis added)

    See also Charleston v News Group Newspapers Ltd at 71‑2; and Ten Group Pty Ltd v Cornes [2012] SASCFC 99, (2012) 114 SASR 46 at [34], [47]‑[50].

    Do the SMH printed articles convey the pleaded imputations?

20. As noted earlier, the primary imputation pleaded by Mr Hockey to arise from the SMH printed articles is that he accepted bribes to influence decisions which he made as Treasurer of the Commonwealth of Australia.  Although Mr Hockey did not abandon that imputation, or any of the other pleaded imputations, his case in relation to the SMH articles focused principally on alternative (e), namely, that he “corruptly sells privileged access to himself to a select group which includes business people and business lobbyists in return for donations to the Liberal Party”. 

    The submissions of Mr Hockey

21. Mr Hockey’s counsel began by emphasising the headline “Treasurer for Sale”.  He submitted that the ordinary reasonable reader would understand that something which is for sale is something which can be bought.  The headline was therefore reasonably understood as indicating that the Treasurer could be bought, which was tantamount to an allegation of corruption.  The reader’s understanding that this was so would have been confirmed by the overline appearing above the headline and, in particular, by the reference to a “secretive” fundraising body.  Readers would have understood, counsel submitted, that they were being told that the fundraising body was secretive because there was something wrong about it.

22. Counsel submitted that ordinary reasonable readers would have understood that they were being told something significant.  The presence of Mr Hockey’s photograph, the headline and their location on the front page would, by themselves, have indicated that that was so.  In these circumstances, it is to be expected, he submitted, that the headline would have had the effect of setting in the mind of ordinary reasonable readers the tone of the article and would have influenced their understanding of what followed. 

23. Mr Hockey’s counsel submitted that, far from the initial impression created by the headline and overline having been displaced by what followed, it was in significant respects reinforced.  Readers’ impression that the SMH was reporting that some sinister activity had occurred would have been confirmed by the first dot-pointed sub‑headline which implied that NSF members were paying $22,000 for access which was not available to others; by the name “Obeid” in the third dot‑pointed sub‑headline which “inject[ed] the concept of corruption” because the name Obeid is “synonymous with corruption”; by the references in the extract on page one from the editorial to politicians “selling access” being a “disquieting development”, to “coming clean” and to what was received by Mr Hockey’s “backers” in return for their “largesse”, which implied that something untoward and secretive was going on; and by the bold notation on page one referring the reader to Mr Kenny’s article “The price tag on Joe Hockey”, which implied that Mr Hockey was receiving money personally. 

24. Counsel placed particular emphasis on the first paragraph in the Nicholls article (which for convenience I will repeat):

    Treasurer Joe Hockey is offering privileged access to a select group including business people and industry lobbyists in return for tens of thousands of dollars in donations to the Liberal Party via a secretive fund‑raising body whose activities are not fully disclosed to election funding authorities.

    In relation to this paragraph counsel submitted:

    As I cross‑examined the witnesses, your Honour, and put to them, that is a corrupt act.  There can’t be any doubt about it.  If you said to someone, any person who was asked this question, “Look, the Federal Treasurer is offering select and privileged access in return for tens of thousands of dollars of donations to the Liberal Party”, that is corruption.  There’s no question.  There can be no question about it.

25. Thus, the submission was that the ordinary reasonable reader would have understood that the first paragraph, by itself, conveyed that Mr Hockey was acting corruptly in terms of pleaded imputation (e), by selling privileged access to himself to a select group, including business people and business lobbyists, in return for donations to the Liberal Party.  Counsel had earlier described the type of corruption alleged as a form of “influence peddling”.  He submitted that the reference to the offer being to a select group, in return for donations to the Liberal Party via a “secretive” fundraising body implied to the ordinary reasonable reader improper conduct.  That understanding was reinforced by the statement that the activities of the “secretive” fundraising body were not disclosed fully to election funding authorities, again implying something untoward. 

26. Counsel submitted that the statement in para (2) of the Nicholls article that the ICAC is “probing” Liberal fundraising bodies such as the Millennium Forum and “questioning their influence” on “political favours” in New South Wales would have caused the ordinary and reasonable reader to draw a connection between the NSF and the bodies being investigated, and have made them think that the NSF itself may be the subject of investigation.  The statement served in any event to show a link between Mr Hockey, on the one hand, and corruption, on the other.  He submitted that the reader would also have understood the term “political favours” as another word for “corruption”.  This was made clear, he submitted, by para (3):

    Mr Hockey offers access to one of the country’s highest political offices in return for annual payments.

    In relation to this paragraph, counsel also submitted:

    Every reasonable person, everyone, … would see that as an allegation of corruption.  It can’t be anything else.  And if it were true that that was what my client was doing it would plainly be corrupt.  Everyone would see it like that.

27. Thus, counsel submitted that, having read this far, the ordinary reasonable reader would have understood the SMH to be implying that Mr Hockey was acting corruptly.  

28. Counsel referred to further aspects of the Nicholls article: the reference in para (4) to “VIP” meetings with Mr Hockey being provided “in return” for the annual fees; the claims of confidentiality in para (5) and to “what little information is available” in para (6) which, he submitted, was suggestive of there being something to hide; the reference in paras (7) and (8) to persons or entities who “stand to benefit” from legislative or regulatory changes contemplated by the Federal government (with the implication that these persons or entities were paying the money because they stood to benefit from the changes); the linking to the name Obeid and to AWH in nine paragraphs (paras (10)‑(18)); and the linking in para (35) of the NSF with the Millennium Forum which was, in turn, linked in para (39) with an ICAC investigation.  Counsel submitted that the ordinary reasonable reader was thereby invited to understand that activities of the NSF were in the same category.

29. Next, counsel drew attention to the heading running across the continuation of the Nicholls article on pages six and seven.  He emphasised the expressions “Treasurer up for sale”, “secretive” and “coveted access”. 

30. Counsel emphasised the references to the name Obeid in the third of the dot‑pointed sub‑headlines, in the body of the Nicholls article and in the graphics.  He contended that these were both gratuitous and “eloquent” of corruption and contributed significantly to the understanding of the ordinary reasonable reader that corrupt conduct by Mr Hockey was being revealed to them.

31. In relation to the Kenny article, counsel emphasised the headline which conveyed to the ordinary reasonable reader that there was a price at which Mr Hockey could be bought. 

32. Counsel submitted that, in this context, the ordinary reasonable reader would not have taken the opening sentence in the Kenny article (“Nobody is suggesting Joe Hockey is corrupt”) at face value.  They would instead have understood that the SMH was saying exactly the opposite.  In any event, given the force of the impression created by the time the reader reached the Kenny article, the reader would have ignored or discounted what Mr Kenny said in the first sentence.  Counsel submitted that the conjunction “but” with which the second sentence of the article commenced also served to weaken the force of the first sentence. 

33. Counsel emphasised in particular para (5) in the Kenny article, which would have conveyed to the reader, he submitted, that trust in Mr Hockey was questionable, as he was now “a product to sell” in the “ruthless search” for more campaign funds.  Paragraph (6) also conveyed, counsel submitted, the same impression.  He made a like submission with respect to the sentence in para (9) which referred to the marketing of Mr Hockey’s pivotal role in economic decision making, and by reference to paras (10) and (11) which referred to the sale of “special access” and to the uncertainty of the return which “well‑connected companies and industry groups” had received “on their investment”.

34. Counsel also emphasised the photographs of Mr Di Girolamo and Mr Obeid.  The former had been the chief executive officer of AWH, and the person who had given Mr O’Farrell, the former Premier of New South Wales, the $3,000 bottle of Grange which had “brought [him] undone”, so that the mere mention of Mr Di Girolamo was suggestive of corruption.  The reference to Mr Obeid Jnr had given “a specious glow of corruption” to what had been written about Mr Hockey.

    Relevant matters of context

35. The ascertainment of the meaning which the SMH printed articles conveyed to ordinary reasonable readers should also take account of the circumstance that many such readers are likely, before reading the articles, to have seen the SMH poster.  As will be seen later, I conclude that the SMH poster, considered by itself, did convey a defamatory imputation.  It is accordingly appropriate to proceed on the basis that the content of the poster may have served to condition those who had seen the poster to expect that the SMH had unearthed a form of corrupt conduct by Mr Hockey.

1. Another relevant circumstance is that the SMH articles were published at a time when it can be taken that there was a heightened consciousness in New South Wales in particular about corruption arising from the receipt of benefits by public officials from persons who may benefit from their decisions.  As already noted, it was common ground in the trial that the name Obeid had become identified with corruption following findings by the ICAC concerning activities of Mr Obeid, a former minister in the NSW State Government.  On 8 April 2014, the SMH had reported evidence said to have been given to the ICAC by Mr Nicolaou, the Chief Executive of the Australian Hotels Association in New South Wales, that he had arranged a meeting for Mr Di Girolamo with Mr Newman, then Lord Mayor of Brisbane, on the basis that Mr Di Girolamo would make a donation of $5,000 to Mr Newman’s re‑election fund.  Mr O’Farrell had resigned as Premier of New South Wales on 14 April 2014 (only three weeks before the SMH articles were published) following his acknowledgment that he had given incorrect evidence at the ICAC concerning his receipt of a bottle of Penfolds Grange.  Senator Sinodinos had stood aside as Assistant Federal Treasurer on 19 March 2014 (only seven weeks before the SMH published the articles) following evidence at the ICAC as to activities of AWH at a time when he had been its chairman. 

2. I record these matters only for the purpose of identifying a relevant part of the context in which the understanding of the ordinary reasonable reader is to be assessed.  I am not to be taken as expressing any view as to the propriety or otherwise of the conduct of Mr Obeid, Mr Newman, Mr Di Girolamo, Mr O’Farrell, Senator Sinodinos or of AWH. 

3. I consider that the heightened consciousness to which I have just referred is part of the context in which the understanding of the ordinary reasonable reader of the SMH articles is to be assessed because, by reason of these events, the ordinary reasonable reader may have been more ready to understand the SMH articles as conveying an imputation of corruption. 

   Imputations (a) and (b)

4. It is convenient to consider first the pleaded imputations (a) and (b) set out earlier.  They are that Mr Hockey accepted, or was prepared to accept, bribes paid to influence decisions he made as Federal Treasurer.  Putting to one side the tautological aspects of imputations in these terms, they are to the effect that Mr Hockey himself accepted, or was prepared to accept, payments of a particular character, namely, payments which were bribes made for the purpose of influencing decisions he made in his capacity as Treasurer. 

5. The word “bribe” does not have a precise meaning as it is capable of encompassing more than one form of dishonest conduct by, or in relation to, a public official.  However, I consider that the ordinary reasonable reader would understand that a bribe usually involves the elements of a payment to a public official personally or to someone else on the official’s behalf; a reasonably close relationship between the payment, on the one hand, and an expected decision or action by the public official, on the other; and the payment being made to secure or induce a benefit to the payer from the decisions or action in question.  The word bribe is not in ordinary understanding used to refer to the payments made by donors to political parties, or to political candidates, which are unconnected with any particular executive decision making, even if the motivation of the donors is to promote goodwill by the recipient towards themselves.

6. In these circumstances, the ordinary reasonable reader would not, in my view, have understood the SMH printed articles, read as a whole and in context, as conveying that Mr Hockey had accepted, or was prepared to accept, bribes to influence the decisions which he made as Treasurer.  There is no suggestion of payments being made for the purpose of securing a benefit to the payer from a particular decision of Mr Hockey, or of any relationship between a payment and a particular decision.  None of the three articles conveys in any way that Mr Hockey had accepted personally the payments in question.  Nor is there any suggestion of payment being made to those close to Mr Hockey so that he obtained, indirectly, a private benefit.  On the contrary, ordinary reasonable readers would have understood that the printed articles were referring to payments which were in the nature of political donations to the Liberal Party, albeit paid as membership fees to the NSF. 

7. Apart from anything else, the articles make it plain that the payments are made to the NSF, and not to Mr Hockey personally.  See paras (1), (4), (5) and (28)‑(37) in the Nicholls article and paras (1), (6) and (9) in the Kenny article.  The graphics on page six and seven make plain that the payments are made as membership fees of the NSF, that the NSW Liberal Party lodges a “consolidated disclosure” including the membership fees to the Election Funding Authority, and that the NSW Liberal Party then distributes the fees to other campaigns.  This is not the stuff of bribes. 

8. For these reasons I find that the articles in the printed SMH did not convey the pleaded imputations (a) and (b). 

   Imputations (c) and (d)

9. It is difficult to discern any material difference between pleaded imputation (d) and pleaded imputation (b).  Counsel for Mr Hockey did not identify any such difference.  I find that the SMH printed articles did not convey that imputation, for the same reasons as given in relation to pleaded imputations (a) and (b). 

10. Counsel for the respondents submitted that pleaded imputation (c) was not conveyed.  By this imputation, Mr Hockey alleged that the articles in the SMH conveyed that he “corruptly solicited payments to influence his decisions as Treasurer of the Commonwealth of Australia”.  Counsel focused on the word “solicited”.  He submitted that soliciting involves active conduct by which a person seeks, by entreaty, earnest or respectful request or endeavours, to obtain an outcome.  Counsel submitted that there was nothing in the printed articles suggesting that Mr Hockey had sought any payment from anyone at all, whether in the form of a membership to the NSF, a donation to the Liberal Party or a payment to influence his decisions. 

11. This submission can be accepted only in part.  Contrary to the submission of counsel, paras (1) and (3) of the Nicholls article stated expressly that Mr Hockey was offering access to persons in return for payments.  In context, these were payments to the NSF.  The extract from the editorial on page one contained a statement to like effect.  The graphics on pages six and seven included an extract from the NSF website which, with three photographs of Mr Hockey, contained a statement in the nature of an overview of the benefits of joining the NSF. 

12. I consider that these aspects of the articles conveyed to the ordinary reasonable reader that Mr Hockey was engaged in a form of encouragement of persons to join the NSF and to pay the fees which such membership entailed.  The ordinary reasonable reader would understand that to be a form of soliciting.

13. However, I consider the respondents’ submission that the articles do not convey any statement that Mr Hockey was soliciting payments “to influence his decisions as Treasurer” should be accepted.  For the reasons already given, the articles make it plain that the fundraising is for the purposes of the Liberal Party or Mr Hockey’s own election campaign, rather than any decision to be made by him in his capacity as Treasurer, and I consider that the ordinary reasonable reader would have understood them in that way. 

14. For these reasons, I find that the ordinary reasonable reader would not have understood the printed articles in the SMH as conveying any of the pleaded imputations (c) and (d).

    Imputation (f)

15. Mr Hockey’s counsel did not make any discrete submissions with respect to pleaded imputation (f).  That is the imputation that Mr Hockey “knowingly permitted a Liberal party fundraising forum with which he was associated to accept money from the corrupt Obeid family”. 

16. I find that the ordinary reasonable reader would not have understood this imputation to be conveyed.  Although the Nicholls article in particular refers to the membership of AWH and said that it had been “linked to the family of corrupt former Labor power‑broker Eddie Obeid” there is no statement at all that the NSF had accepted money from Mr Obeid or his family.  Further still, there is no suggestion at all in the articles that Mr Hockey had “knowingly permitted” the NSF to accept money from the Obeid family.

    Imputation (e)

17. As noted earlier, although Mr Hockey did not formally abandon reliance on imputations (a)‑(d) and (f), they were not at the forefront of his case as presented.  Instead, his counsel focused on imputation (e).  This is the imputation that Mr Hockey “corruptly sells privileged access to himself to a select group which includes business people and business lobbyists in return for donations to the Liberal Party”. 

18. Counsel for the respondents submitted that ordinary reasonable readers would not have understood the print articles to be conveying either of those meanings.  He submitted that the “clear message” conveyed by the printed articles was follows:

    (a)it is possible to obtain access to Mr Hockey in his capacity as Treasurer for the payment of a fee;

    (b)the fee is styled as a membership fee to join the NSF which, depending on the level of membership, provides exclusive members’ only access to Mr Hockey at various functions throughout the year;

    (c)the fee is, in reality, a political donation to the Liberal Party; and

    (d)it has not been possible to find out from electoral records, the NSF itself, or Mr Hockey, the identity of the NSF’s members.

19. The prominent headline “Treasurer for Sale” and “The price tag on Joe Hockey”, the overline on page one, the three dot‑pointed sub‑headlines on page one and the bold “tags” used in the course of the Nicholls article are important to the understanding of the ordinary reasonable reader, even when considered in the context of the article as a whole.  Headlines are significant in attracting the attention of readers and in shaping their understanding of what follows.  That is a principal reason for their use.  They assist the reader to identify the gist of the article to which they relate.  In the passage from Rivkin quoted earlier, McHugh J referred to the significance which the ordinary reasonable reader may attach to “conspicuous headlines, headings and captions”.  Likewise, in Mirror Newspapers at 646, Aickin J noted the emphasis which can be conveyed by a headline. 

20. The headline and opening paragraphs of an article are sometimes described in journalism as “valuable real estate” because of their capacity to inform the reader of the essence of the article and to induce the reader to continue through the remainder of the article.

21. The respondents’ submissions acknowledged that the headline “Treasurer for Sale” was “strong and eye‑catching”, but counsel submitted that it would nevertheless have been read and understood in its context.  Important aspects of that context were the overline “Exclusive: Joe Hockey’s secretive fundraising body” which appeared immediately above the prominent headline; the three dot‑pointed sub‑headlines; the opening paragraph of the Nicholls article; the remaining paragraphs on page one of the SMH; and the extract from the editorial which was printed on page one. 

22. The respondents submitted that the reasonable reader would have understood from those passages in particular that the subject of the article was access to the Treasurer.  That is because of the repeated mention of such access: in the first dot‑pointed sub‑headline, in paras (1) (“privileged access”) and (3) (“access to one of the country’s highest political offices in return for annual payments”) of the Nicholls article; and in the extract from the editorial.  Counsel also submitted that the headline to the continuation of the Nicholls article on pages six and seven of the SMH (“Treasurer up for sale with secretive fund‑raising forum that charges up to $22,000 for membership and coveted access”) would have confirmed to the reasonable reader that the words “Treasurer for Sale” related to access to the Treasurer being used as a means of fundraising and not for payments to Mr Hockey personally.  That understanding would have been confirmed to the reasonable reader, it was submitted, by the references in the Nicholls article to current and former members of the NSF and to the activities of the NSF as described in the statements attributed to Mr Carrozzi and Mr Orrell.

23. Next, the graphics outlining the respective membership levels and the benefits applicable to each level would have made it obvious to readers that the articles were about access to the Treasurer in return for what were, in effect, donations to the Liberal Party. 

    Consideration

24. The word “corrupt” and its cognates are capable of a variety of meanings when used in relation to those in public office.  Account must be taken of this in considering what was conveyed to the ordinary reasonable reader.  In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138, Gleeson CJ gave the following examples of the meaning of the word “corrupt” which, depending on context, may be applicable in a given case:

    [I]t can mean that a person takes bribes, or that he abuses power entrusted to him, or that he improperly obtains private benefits from a public position. 

    Gleeson CJ went on to note that the range of possible meanings of the word “corrupt” when used in connection with public officials had been enlarged by the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act). It was not suggested in the present case that regard should be had to the statutory definitions or to the understanding of ordinary reasonable readers of corruption as defined in the ICAC Act.

25. The examples given by Gleeson CJ are helpful (but not definitive) in considering whether the SMH articles conveyed an imputation of corrupt conduct to the ordinary reasonable reader.  The first two of the alternative meanings can be put to one side as being inapplicable in the context of pleaded imputation (e).  It is the third alternative which requires consideration. 

26. The ordinary reasonable reader would not regard every private benefit obtained by politicians and ministers from their office as being improper.  Some such benefits are provided for expressly in the established entitlements; some can arise intrinsically from the office; and others are an accepted incident of the office.  Ordinary reasonable readers are likely to think that politicians and ministers may obtain a range of private benefits from their office, which are unremarkable and do not involve any suggestion of corruption.  On the other hand, ordinary reasonable readers are likely to regard some forms of attempts to obtain personal benefits from the exploitation of a politician’s office, or the influence it affords, as a form of corruption.  In particular, ordinary reasonable readers are likely to regard a Minister, especially a Minister holding the high office of Treasurer, making access to him or her conditional on a donation to the Minister’s political party as both improper and a form of corrupt conduct.  Between these extremes there is no doubt a range of conduct, some of which ordinary reasonable readers would regard as corrupt and some not. 

27. The ordinary reasonable reader may be taken to have some understanding of political fundraising and the activities associated with it.  They would understand that political parties do raise funds with which to conduct election campaigns and that the major parties have permanent directorates or secretariats which must be financed.  They would understand that political parties adopt a variety of fundraising stratagems, but rely very much on donations from party members and supporters as well as others. 

28. The ordinary reasonable reader would, in my opinion, be aware that it is common for parliamentarians and candidates for election to hold fundraising events at which the attraction for attendance is that a prominent Parliamentarian, a Minister, or even a Premier or Prime Minister will be guest speaker.  It is the prospect of hearing this person speak, or meeting them afterwards as they mingle, as well perhaps as the attendee’s own political allegiance, which is “exploited” in the promotion of these events.  Mr Hockey annexed to his affidavit an apparent example of this kind of fundraising in the form of an article published in the SMH and The Age on 6 May 2014.  The headline to the article in the SMH was “Lunch with Shorten for $3,300: Labor offers business leaders exclusive access” and the headline in The Age “Meet Bill Shorten for just $3,300”.  The opening paragraphs in this article were:

    Labor is offering business leaders exclusive access to Opposition Leader Bill Shorten before the federal budget, but it comes at a high price – $3,300 for a boardroom lunch. 

    ...

    An email from the Director of the Federal Labor Business Forum, Kate Dykes, urges would‑be attendees to “avoid disappointment” as tickets to the Shorten event are strictly limited. 

    The high‑priced fund‑raiser is due to be held on Thursday at an undisclosed location in the Sydney CBD and is billed as a boardroom lunch with the Opposition Leader.  The $3,300 price is for non‑members of the forum; for members the event will cost $2,500.

29. Ordinary reasonable readers do not, in my opinion, regard such practices as corrupt, even though they understand that the guest speaker is obtaining a benefit for the candidate or their party from the “allure” of the office they hold.  They are an accepted form of political fundraising.

30. I also consider that the ordinary reasonable readers would have some understanding of the requirement for public disclosure of public donations.  They would also understand the rationale for the requirement of disclosure.

31. Against this background, I consider that some readers may reasonably have understood some of the initial passages in the SMH printed articles to be stating that Mr Hockey was making improper use of his important office as Treasurer by agreeing to see persons if they made a contribution to his own campaign funds or to the Liberal Party.  They are likely to have understood from these particular paragraphs that the SMH was indicating that Mr Hockey was engaged in a form of corrupt conduct. The headline “Treasurer for Sale”, the overline referring to a “secretive fundraising body” and the first, second and third paragraphs of the Nicholls article in particular may have created an impression to that effect in the mind of some reasonable readers.  The first and third paragraphs in the Nicholls article could, considered by themselves, be understood on one view as suggesting that it was Mr Hockey personally who was offering access to himself in exchange for payment or that Mr Hockey imposed, as a condition of his agreeing to see persons in his capacity as Treasurer, that they make donations to the Liberal Party.  Alternatively, such readers could have understood the SMH to be saying that Mr Hockey was seeking to profit from his office by agreeing to see those who had made significant contributions towards his re‑election.  It is also pertinent that the second paragraph links Liberal Party fundraising bodies to possible corruption by its reference to the ICAC probe of the Millennium Forum, another Liberal Party fundraising body.

32. I also consider that para 4 of the Nicholls article, whether by itself or in conjunction with the paragraphs to which I have just referred, may have been understood by some ordinary reasonable readers as indicating that members of the NSF were entitled to one‑on‑one meetings with Mr Hockey.  That too may have suggested to them that the articles were imputing corrupt conduct to Mr Hockey in his provision of privileged access.

1. Nevertheless, I accept that it is appropriate to proceed on the basis that there would have been a large number of persons, perhaps in the tens of thousands, who read the bare tweets and who did not read further. 

   Findings of fact bearing on the assessments

2. Mr Hockey has been the member for North Sydney in the Australian Parliament since 1996.  Before his election, he worked from time to time as a banking and finance lawyer with a prominent national firm, as a Senior Policy Advisor to the New South Wales Treasurer and, later, as Director of Policy for Mr Fahey, then Premier of New South Wales.  From 1998 to 2001, Mr Hockey was the Minister for Financial Services and Regulation; between 2001 and 2004 he was Minister for Small Business and Tourism; from 2004 to 2006 he was Minister for Human Services and, in January 2007, he was elevated to the Cabinet upon his appointment as Minister for Employment and Workplace Relations and Minister assisting the Prime Minister for the Public Service.  In the period between 2007 and September 2013, when the Liberal‑National Coalition was in opposition, Mr Hockey was variously Shadow Minister for Health and Aging and Manager of Opposition Business in the House of Representatives, Shadow Minister for Finance, and Shadow Treasurer.  He became the Federal Treasurer on the election of the Coalition on 18 September 2013. 

3. The evidence indicates that Mr Hockey is a person of integrity.  That finding would not be made any more emphatic by the inclusion of an adjective. 

4. Mr Hockey was first alerted to the respondents’ publications shortly after midnight on 4 May 2014 as a result of a telephone call from Ms Daley, his Press Secretary.  She read to him the headline “Treasurer for Sale” and other parts of the articles published in the SMH.  Mr Hockey then read parts of the articles online on the websites of the SMH, The Age and The Canberra Times.

5. Mr Hockey described his reaction to the publication of the articles as being one of complete surprise, shock, anger, disbelief, disappointment and concern as to the impact they would have on his family.  He regarded the articles as conveying the suggestion that he was “on the take” and therefore as accusing him of being corrupt.  He said that the articles went to “the heart of my integrity – they were about my character and my honesty”.  He also thought that the articles were a form of “payback” for his insistence on a correction and apology in respect of the articles published on 21 March 2014.

6. Mr Hockey said that he either observed personally, or was informed, that the SMH and The Age articles were the subject of television and radio commentary on the morning of 5 May 2014. 

7. Mr Hockey described the suggestion that he had personally and corruptly benefited from payments made to influence his decisions as Treasurer as being “immensely hurtful and upsetting”. He continued:

   [60]My reputation is one of the most important things to me.  I feel as if the matters complained of were deliberately published during the week of the budget so as to cause me maximum disruption to my budget preparation work.  They were designed to cause hurt and pain, which they did.  I also feel hurt because of the apology published in respect of the Sydney Morning Herald article by Mark Kenny and Sean Nicholls on 20 March 2014.  I feel that because I obtained that apology, Mr Kenny and Mr Nicholls sought to get back at me by publishing the matters complained of which they wrote about me.  I also believe that journalists at the Sydney Morning Herald were annoyed at me because there were no organised leaks provided to the Sydney Morning Herald or The Age in the days leading up to the budget.

   ...

   [62]As a result of the publication of the matters complained of, I feared for the safety of my family because of the emotive nature of the allegation that I was “for sale”.  It exposed my family to ridicule and given what I knew was in the Budget, I was very concerned for the safety and reputation of my family. 

   [63]I have no doubt that as a result of publication of the matters complained of, there will be many readers who will believe the allegations made against me.  There also will be many readers who will have doubt as to whether or not the allegations are true.  It suggests that the decisions that were announced in the Budget were driven by money and support that I had received from members of the North Sydney Forum rather than the national interest.  This causes me significant hurt. 

8. The distress which Mr Hockey experienced was exacerbated by the fact that he was to deliver his first budget as Federal Treasurer on 13 May 2014.  This meant that in the week commencing 5 May 2014, he was heavily preoccupied with matters relating to the final preparation of the budget and its presentation and yet was diverted by having to deal with matters arising from the publications about which he complains. 

9. Mr Hockey went on to say that he continues to be upset about the allegation and has sought to restore his reputation by bringing the present proceedings.

10. I accept Mr Hockey’s evidence about these matters. 

11. Mr Hockey led evidence in affidavit form from a number of witnesses.  These were Mr Burnes (the owner and Chief Executive Officer of AOT Group Pty Ltd (a travel company) and the former State Treasurer of the Victorian Division of the Liberal Party who has known Mr Hockey since 1999), Mr Fahey (the former Premier of New South Wales), Mr Francis (a tennis centre operator who is also responsible for a charitable foundation supported in a significant way by Mr Hockey), Mr Hawke (the former Prime Minister), Mr Lovett (Mr Hockey’s Chief of Staff), and Ms Daley, his Press Secretary.  Apart from Ms Daley none of these persons was required for cross‑examination.  I accept their evidence. 

12. It is not necessary to outline the evidence of these witnesses in detail.  It is sufficient to say that I accept that their evidence establishes that Mr Hockey has a reputation among those with whom he works and mixes for honesty, integrity, decency and genuineness. 

13. The upsetting effect on Mr Hockey of the articles was apparent to many of the witnesses.  Several have noticed that he has become more subdued and pensive since 5 May 2014.  It is significant that Mr Hockey had been affected in this way because he is accustomed as a politician to being the subject of criticism, including robust criticism.  He has not been affected in the way which he now reports by the criticisms in the past. 

14. On the same day as the publication, Mr Hockey’s solicitors sent to Mr Hywood, and copied to others including Mr Holden and Mr Goodsir, an email demanding a retraction and apology in each of the SMH, The Age and The Canberra Times in respect of the Nicholls article and the Kenny article.  Mr Coleman, the In‑house Counsel of Fairfax Media Ltd provided an initial response later that same day.  Mr Hockey’s solicitors renewed the demand for the apologies by an email to Mr Coleman on 6 May and, on this occasion, included a like demand in respect of the SMH poster.  By letter dated 6 May 2014, Mr Coleman, on behalf of Fairfax Media, declined to provide apologies but said “if Mr Hockey wants to respond to the articles in an article suitable for publication, the various publications would be interested in publishing it”.  Mr Hockey did not take up that invitation.  These proceedings were commenced on 20 May 2014. 

    Identifying the causes of hurt and harm

15. The findings so far reflect the evidence given in relation to all the publications on which Mr Hockey sued.  However, on my findings, Mr Hockey is entitled to damages only in respect of the hurt and harm caused by the SMH poster and the first two Twitter matters. 

16. Mr Hockey’s evidence did not distinguish between the effect on him of the printed and online articles in the SMH, The Age and The Canberra Times, on the one hand, and the SMH poster and the two Twitter matters, on the other.  It would be inappropriate to attribute the whole of the hurt and harm of Mr Hockey to the latter publications.  Mr Hockey’s evidence indicates that much of the hurt and harm in respect of which he seeks compensation is attributable to the publications which I have found not to be defamatory.  I refer in particular to Mr Hockey’s evidence that it was “the articles” which offended him because they went to the heart of his integrity; that with advance notice he would have sought to have the articles corrected; that it was the reading of “the articles” which made him think they were a form of “payback”; that it was the availability of the printed articles which led him to avoid eye contact with others on the morning of 5 May 2014 when having his morning cup of coffee; and that it was the front pages of the SMH and The Age which he had seen displayed on televisions that morning and which were the subject of public discussion.

17. I also note that Mr Hockey said that part of his hurt arose because of his belief that Mr Nicholls and Mr Kenny had been seeking to get back at him, yet, on my findings that was not the case.

18. Other than in limited respects, the case presented on Mr Hockey’s behalf did not seek to distinguish between the effect on him caused by the SMH poster and the first two Twitter matters, on the one hand, and the remaining publications.  Mr Hockey did not make any attempt to establish that he had suffered separate and distinct damage as a result of the conduct of any individual respondent, nor did he submit that the damage he had suffered varied according to the medium of publication. 

19. Mr Hockey did not say that he had himself seen the SMH poster.  He said only that he was “aware” that the SMH had sought to promote its sales by the posters.  His wife informed him of the content of the poster later on 5 May. 

20. Mr Hockey deposed in relation to the SMH poster:

    [50]The placards were very damaging to my reputation, in particular because they were placed in my own electorate and near where I lived.  They caused enormous hurt to me because I knew that they would be seen by my family and friends.  Any person walking or driving past the placards would see the words “Treasurer for Sale” and take that to mean that I, as the Treasurer of Australia, was corrupt.  I am hurt that the Sydney Morning Herald clearly [was] trying to sell more newspapers at the expense of my reputation.  It is beyond belief that the Sydney Morning Herald could have acted so brazenly against me.

21. The evidence did not establish that Mr Hockey had himself seen The Age Twitter matters: only that he is “aware” of them.

22. Mr Hockey also spoke of the effect of the phrase “Treasurer for Sale”:

    [61]I am particularly hurt by the use of the phrase “Treasurer for Sale” in various of the matters complained of, which is offensive and repugnant.  At no stage was I ever asked to respond to a question by the respondents as to whether or not I was “for sale”, and obviously had I been asked, I would have responded that I am not for sale. 

23. It is the effects of the publication of the words “Treasurer for Sale” in the SMH poster and on Twitter for which Mr Hockey is to be compensated. 

    Damage to reputation

24. In addition to relying on the presumption of damage to reputation, Mr Hockey adduced evidence of damage which had in fact occurred.  Evidence is admissible for this purpose: Mirror Newspapers v Fitzpatrick at 657 and 665; Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 510‑512. Mr Lovett, Mr Hockey’s Chief of Staff annexed to his affidavit some of the negative emails which Mr Hockey’s office had received after the publications on 5 May 2014. Exhibit A61 comprised a number of negative emails and messages received by the respondent following the publication. Mr Hockey tendered other material as well, including a tweet from the former Prime Minister, Mr Fraser, indicating negative views about him in the light of the articles.

25. In some respects, the utility of this material is limited.  First, the negative reactions to Mr Hockey appear to arise from the articles which I have found were not defamatory, and not identifiably from the SMH poster or the first two Twitter matters.  It is possible that reader reactions were in part informed by these particular publications but it is much more likely that they were informed by the publications which I have found not to be defamatory. 

26. Secondly, many of the communications from readers do not indicate that they understood any of the publications as conveying any of the imputations alleged by Mr Hockey in the three proceedings. 

27. Thirdly, it is appropriate to keep in mind that many of those providing the communications upon which both Mr Hockey and the respondents relied are likely to have had firm views about Mr Hockey, whether favourable or unfavourable, even before 5 May 2014.  That is an ordinary incident of political life.  This being so, it is probable that in many cases the various publications on 5 May did not cause any material alteration of the readers’ views about Mr Hockey.  I accept in this respect the following submission by the respondents:

    It is a fact of life for any prominent politician for a major party that, at any given time, a very significant proportion of the Australian community will have already made up their minds about him or her, whether positively or negatively, and will not have their views shifted by any particular news item.  Some will dismiss whatever they read on the basis that it does not accord with their views or because they assume a bias on the part of the item; others will read items in a manner that reinforces their existing views.  These matters tend against a contention that the matters complained of will have had any significant, or lasting, impact upon the reputation of the applicant in the eyes of the Australian community. 

28. I do not regard these matters as indicating that Mr Hockey has not suffered any damage to reputation.  Merely because the views of some may not have shifted does not mean that the estimation of others may not have diminished, or that the adverse views held by some may not have become more entrenched.  However, I accept that these are matters of which account must be taken in assessing the extent of the loss.

29. An important consideration bearing upon the element of reparation for damage to reputation is that Mr Hockey does not appear to have suffered any diminution of reputation among his parliamentary and ministerial colleagues arising from the publications.  He continues as the Federal Treasurer.  There is no evidence of any suggestion that he should step aside because of the matters revealed in the publications or while some investigation of his conduct is undertaken.

    Respondents’ submission concerning hurt and distress

30. The respondents submitted that the damages should incorporate only a modest component on account of the hurt to Mr Hockey’s feelings.  Their first submission was that Mr Hockey’s evidence concerning his hurt feelings should not be accepted at face value. 

31. The respondents referred to evidence from Mr Hockey that he had “barely” read the matters of which he complained and had not focused on every single word or graphic.  In my opinion, this paraphrase of Mr Hockey’s evidence does not accurately convey the gist of what he said, but even if it does, it does not undermine Mr Hockey’s evidence of his reaction to the articles.  I would regard it as understandable that Mr Hockey, once having formed the perception that the articles contained material of a hurtful nature, would not have focused on every word or graphic or have wished to read the articles closely. 

32. Next, the respondents referred to apparent inconsistent conduct by Mr Hockey.  This concerned the omission of Mr Hockey to take any action concerning the NSF, despite his evidence that he regarded its conduct in attributing words to him, and making promises concerning him, as “massively overplayed”, “inaccurate”, “clearly misleading” and “of grave concern to him”.  The submission of the respondents, as I understood it, was to the effect that the weight which might otherwise be attached to Mr Hockey’s claims of being upset by the subject articles should be tempered by the circumstance that, although using similar language to describe other matters which he claimed to be incorrect, he had failed to take action in relation to those matters.

33. In order to understand this submission, it is necessary to refer to some of Mr Hockey’s evidence, including his evidence about the establishment of the NSF in April 2009:

    Q:It was your idea, wasn’t it, in conjunction with the President of the North Sydney Federal Electorate Conference?

    A:At the time, Dr Collins, there was no Chamber of Commerce in North Sydney and I was very keen to set up a Chamber of Commerce and I discussed it with Robert Orrell, who was a small businessman, and said that there was a need to set up a chamber of sorts, a business networking group in the local area. 

    Q:Yes.  Now, Mr Orrell, he was already the President of the Federal Electorate Conference in your electorate?

    A:He may have been at the time.  Yes.

    Q:And he had been your Campaign Director at the time of your first election to the Federal Parliament?

    A:From memory, yes.

    ...

    Q:But it wasn’t a Chamber of Commerce in the ordinary sense, was it, Treasurer, because the intention was always that membership fees would become donations to the Liberal Party?

    A:Well, that was a decision of Mr Orrell.

    ...

    Q:I just want to suggest to you that the entire purpose of the forum was to capitalise upon your personal franchise and fundraising ability?

    A:Well you will need to ask the people that set it up.

    Q:Yes.  Well, are you saying you didn’t have that understanding?

    A:I would have worked with my Conference to establish it.  But there were many other forms of fundraising around at the time.

34. Mr Hockey was cross‑examined about the contents of the homepage on the NSF website.  He said that it was wrong for the homepage to say that the NSF “is vitally important to Joe’s ongoing success and the development of effective Coalition policy”, and that its statement that “the exchange of ideas and policy input is needed to help build the financial resources to support Joe going into the future” was “massively overplayed”.  Mr Hockey was cross‑examined about an email concerning an NSF lunch held on 7 March 2014 in the private dining room at ARIA.  The email included the tag line describing the NSF as “Business and community leaders supporting Joe Hockey MP”.  Mr Hockey said this was not an accurate description of the NSF, and that it would have been more accurate to say “Business and community leaders supporting the Liberal Party” and that the NSF was “a forum for the exchange of ideas”.

35. Later, Mr Hockey was cross‑examined about the NSF membership application form which included the statement from its Chairman, Mr Hart, that the NSF “has been established to develop a membership‑based network of businesses and community leaders with a common purpose to exchange ideas and provide resources for Joe Hockey”.  Mr Hockey said that, despite these passages, “the original purpose was to establish a business networking forum.  And the Liberal Party was running it, and in turn, if they obviously were interested in making it a fundraising vehicle as well, that’s up to them”.

36. The membership application form issued by the NSF provided an alternative for persons who did not wish to join it, in the following terms “Sorry, I am unable to join the North Sydney Forum, but please accept my donation to assist Joe Hockey”.  Mr Hockey said that insofar as the statement referred to him, it was “clearly misleading” and “a matter of grave concern” to him. 

37. Mr Hockey then gave the following evidence in relation to the NSF membership form:

    Q:Now it’s a matter of concern to you, isn’t it, that this form is so gravely misleading?

    A:       Well, it is.  As I understand it, it entirely is, yes.

    Q:After these articles were published, Treasurer, did you not conduct any investigation into the operations of the NSF, and what it was doing by reference to your name?

    A:Well, no, because I’ve been working as Treasurer of Australia, doing my job for the people of Australia, and in relation to the articles themselves, after consulting with my lawyers, the – well, I can’t say what the advice was, can I, your Honour, but, you know, it is patently clear that the claims made against me, from my perspective, were defamatory. 

1. As I have indicated, the respondents’ submission seemed to be that Mr Hockey’s description of his hurt should not be accepted at face value because of his failure to take action to correct the NSF material which he considered to be “misleading” and “massively overplayed”.

2. I am not prepared to act on this submission.  I had the firm impression that Mr Hockey sought in his cross‑examination to distance himself, to an extent, from the both establishment and the operations of the NSF.  In particular, it was very apparent that Mr Hockey sought to distance himself from the fundraising activities of the NSF.  The answers of Mr Hockey on which counsel for the respondents relied have to be viewed in that context.  I am not satisfied therefore that they provide a firm foundation for a finding of inconsistent conduct which would undermine Mr Hockey’s evidence about the effect on him personally of the subject publications. 

3. The third aspect of the respondents’ submissions on this topic, related to the political context in which the publications were made.  The respondents submitted that the Court should take account of the fact that the publications occurred in an environment in which it is commonplace for political discourse to be marked by robust and vilificatory language.  The respondents tendered evidence of Mr Hockey himself using such language in relation to his political opponents, referring to their “lies”, to them being “shrill and hysterical”, to them being “hypocrites” and to being “a disgrace”.  Mr Hockey admitted in his cross‑examination that “robust language is part and parcel of life in a robust democracy”, that there are in this country “constant heated debates about both policy and personality”, and that he gives as good as he gets when it comes to criticism of his political opponents.  The respondents did not contend that the circumstance that the publications occurred in such an environment meant that Mr Hockey’s reputation had not been damaged, only that the degree of damage he had suffered would have been tempered by the understanding of readers of the way in which political discourse is carried out. 

4. I do not regard this as a significant consideration.  It is one thing for the public to have become accustomed to robust and vituperative language from politicians: their expectations as to the manner of discourse by those who report and comment on political and governmental matters, especially by responsible newspapers such as the SMH and The Age, is another.  

5. The respondents said expressly that they did not seek an adverse finding as to Mr Hockey’s credit.  They submitted nevertheless that there were aspects of his evidence which were “unsatisfactory” and which should be “approached with caution”. 

6. I do not consider it necessary to canvass the matters upon which the respondents relied in support of this submission in any detail. It is fair to say that there were some aspects of Mr Hockey’s evidence which were not entirely satisfactory.  However, it is commonly the case that some aspects of a witness’ evidence can be shown to be unreliable, or given in an unsatisfactory manner, without this undermining the reliability of the witness’ evidence more generally.  It was obvious in this case that Mr Hockey did have difficulty at times in recognising that the way in which questions should be answered in a courtroom differs from that to which he may be accustomed in the political environment.  However, I did not regard that circumstance, or the other criticisms which the respondents made of his evidence, as undermining the reliability of his evidence concerning the hurt which the publications have caused him. 

7. There remains the fact, however, that much of Mr Hockey’s hurt and distress was said by him to result from publications which I have found were not defamatory.

   Vindication

8. The respondents submitted that this was not a case in which the damages should be assessed so as to afford a complete vindication to Mr Hockey.  They drew attention to the substantial publicity which the trial itself had received and which the Court can expect its judgment will receive.  They submitted that, in that circumstance, the Court’s judgment, to the extent that it upholds Mr Hockey’s claims, will provide a substantial public vindication of his reputation and, accordingly, that this is not a case in which the damages should be assessed so as “to convince a bystander of the baselessness of the charge”: Broome v Cassell & Co Ltd [1972] AC 1027 at 1071.

9. It was obvious that this trial attracted substantial public interest.  That was evident in the attendance in the public gallery and in the substantial media coverage of the trial.  I accept that the Court could proceed on the basis that, having regard in particular to the prominent position held by Mr Hockey, its judgment is also likely to receive substantial publicity.

10. Should this circumstance operate as a modifying factor on the assessment of damages?  In England, in Associated Newspapers Ltd v Dingle [1964] AC 371, the House of Lords rejected a submission to this effect: at 400‑1, 404, 407, 408‑9 and 419. Lord Morton said (at 404):

    Such a method of assessing damages would do less than justice to the plaintiff, in my view, and it is based upon suppositions which may be unfounded.  A judge cannot tell how widely his judgment will be reported and read, nor can he tell how far the plaintiff’s general reputation will be improved by his complimentary remarks.  A simple verdict of a jury in favour of the plaintiff will no doubt have a good effect on his reputation, and it is surely impossible to set a monetary value upon the difference, if any, between the effect of a jury’s finding and the effect of a judge’s finding plus a compliment from him.

11. The decision of the Court of Appeal in Purnell v BusinessF1 Magazine Ltd [2007] EWCA Civ 744; [2008] 1 WLR 1 may suggest some softening of this view, at least when there has been a prior judgment rejecting a plea of justification. However, I consider that the approach in Dingle should be applied.  First, damages are the principal means by which the Court speaks to provide vindication.  Secondly, although the outcome of the cases may well attract considerable publicity, it may be doubted that members of the public generally will read these reasons.  It is more likely that they will have regard to the “headline judgment” constituted by the awards.  Thirdly, it would be undesirable to introduce, in effect, two tiers of damages for defamation: the first when the case is tried by a judge alone and reasons published, and the other when the case is tried by jury and no reasons published. 

    Aggravated damages

12. In the case of the SMH, the pleaded particulars of aggravated damages were as follows:

    (a)The publication by the respondent of a grossly defamatory placard in order to increase sales of the Sydney Morning Herald at the expense of the applicant’s reputation;

    (b)The continued publication by the respondent of the third matter complained of on the internet despite the respondent being put on notice as to the defamatory nature of the matter;

    (c)The applicant’s knowledge of the falsity of the imputations;

    (d)The over sensational, extravagant and unfair presentation of the matters complained of indicating an intent to injure the applicant;

    (e)The failure to apologise to the applicant in terms reasonably requested by way of letter dated 5 May 2014. 

13. Although not identically expressed, the particulars of aggravated damages pleaded in the case of the publications by The Age were essentially the same as those contained in (b)‑(e).

14. In my opinion, with one exception, none of these matters warrants the awards including aggravated damages.  Particular (a) is, in relation to the publication of the SMH poster, no more than a plea of the same matter for which damages are to be awarded.  Aggravated damages are included to compensate an applicant for the additional hurt or injury to reputation brought about by conduct of the publisher over and above that caused by the publication itself.

15. In relation to (b), the continued publication of the articles on the internet cannot, in the light of my findings, aggravate the conduct of the SMH in publishing the SMH poster.  Particular (c) refers to the applicant’s own knowledge of the falsity of the imputations, but is not in and of itself an aggravating circumstance: Barrow v Bolt [2013] VSC 226 at [23]. Particular (d) seems more directed to the printed articles rather than the SMH poster.

16. The failure to apologise is an aggravating factor.  On my findings, the refusal of the SMH and The Age to provide apologies was justified in relation to most of the publications, but it was, nevertheless, open to them to recognise their wrong in relation to the SMH poster and the Twitter matters respectively, and they did not do so. 

17. I do not attach significance to the fact that Mr Hockey did not take up the invitation to provide his own responsive article.  That course would be more adapted to a circumstance in which publication of the other side of a story would be appropriate.  It is not a substitute for an apology recognising the wrong done by that which has already been published.

18. Similar considerations apply in relation to the Twitter matters. 

19. In his oral submissions, counsel for Mr Hockey submitted that other matters warranted an award of aggravated damages.  The first was Mr Hockey’s belief that the articles had been published as a form of “payback” to him.  However, damages are not being awarded for the articles. 

20. Next, counsel for Mr Hockey referred to aspects of the manner of the conduct of the respondents’ defences.  He submitted that the plea of statutory qualified privilege in relation to the publication of the SMH poster and the first two Twitter matters was “hopeless”.  The precise manner in which this could, if so, warrant aggravated damages was not articulated but, in any event, I do not regard the respondents’ defences of qualified privilege as warranting the epithet “hopeless”.

21. Next, counsel for Mr Hockey submitted that the respondents’ conduct in seeking to establish the truth of the some of the matters bearing upon the establishment and operation of the NSF was such as to warrant aggravated damages.  Counsel contended that the respondents “well knew” that their assertion of the relevance of these matters was incorrect.  He submitted that the respondents had relied on an “illegitimate pleading” so as to justify an entitlement to cross‑examine Mr Hockey, and to “embarrass and further smear him” in circumstances in which they knew that the imputations were not true.  Counsel went further, submitting that the respondents’ cross‑examination of Mr Hockey was “improper, unjustifiable and lacking in bona fides”.  The claim included a submission that the cross‑examination had been conducted for an improper purpose, namely, to embarrass Mr Hockey.  Counsel elaborated these submissions (which were tantamount to allegations of unprofessional conduct by the respondents’ legal representatives) in a way which it is not necessary to repeat. 

22. I reject these submissions.  It should go without saying that allegations of improper conduct of the kind which counsel, on behalf of Mr Hockey, imputed to the respondents’ counsel and solicitors should not be made lightly.  Counsel should ensure that such submissions have a proper basis.  Such a basis will seldom exist when there is more than one view reasonably open as to the law bearing on the admissibility of the evidence in question.  That is this case.  As already noted, I have found that much of the cross‑examination of the respondents’ counsel which was impugned as part of this submission, did go to relevant matters.  Even if the view which I have adopted is wrong, it would not be appropriate to conclude that the position of the respondents did not have a reasonable basis.

23. I also add that it is evident that counsel for Mr Hockey was, with respect to him, acting under a misapprehension in his submission as to the relevance of the impugned cross‑examination. Counsel overlooked that it was not until s 22 was amended with effect from 2002 that it was couched in terms relevantly identical to the present s 30. In fact, counsel put to the Court wrongly that s 22 of the 1974 Act which was considered by Hunt J in Makim v John Fairfax and on which he relied was in relevantly the same terms as the present s 30 of the 2005 Act. For the reasons already given, the differences between s 22 as originally enacted and s 30 are material, and, in my opinion, made the attacks by counsel on the conduct of the respondents’ case inappropriate.

24. Accordingly, I reject the submission that aggravated damages are warranted on this account.

    Assessment

25. I have found that each of the SMH poster and the first two Twitter matters conveyed pleaded imputations (c) and (d).  I accept the submission of counsel for Mr Hockey that a defamatory allegation of corruption by a politician is a serious defamation.  The damages should reflect that seriousness.  The defamatory imputations in this case are not the most serious form of defamation of this kind, however, as allegations that Mr Hockey had taken bribes, or was prepared to take bribes, in his office as Treasurer would be even more serious.

26. The assessments must take account of the various factors which I have identified.  It is not a scientific exercise and there is no single “right” result.  The significance of each of the individual factors which I have mentioned varies from case to case.  In these cases, compensation for the hurt done to Mr Hockey is a particularly important consideration but the other two purposes are also pertinent.  The awards cannot compensate Mr Hockey for all the hurt which he has experienced, because much of it results from publications which I have found not to be defamatory.  Mr Hockey would have suffered that hurt and any loss of reputation involved independently of the publication of the SMH poster and the first two Twitter matters.  As noted earlier, it is not possible to identify the hurt or damage occasioned by each publication.  Inevitably therefore, there is some arbitrariness in the awards. 

27. I consider that an award of $120,000 is appropriate in respect of the SMH poster and an award of $80,000 in respect of the two matters published on Twitter by The Age.  The second of these awards is less than would otherwise have been the case so as to avoid double compensation of Mr Hockey and because I consider that they are likely to have been read and “taken in” by fewer persons than in the case of the SMH poster.  Given the relationships between the respondents, I do not believe that the separation out of the awards in this way will cause injustice between them. 

    Injunctions

28. In each action, Mr Hockey also seeks relief by way of injunction restraining future publication of the defamatory imputations. 

29. In their final submissions, the parties asked that this aspect of Mr Hockey’s claims for relief be deferred until after the Court had published its findings, in order that their submissions could be directed to the matters found to be defamatory.  Accordingly, I will hear from the parties further with respect to the claims for injunctions. 

    Summary

30. In summary, I uphold Mr Hockey’s claims only with respect to the publication of the SMH poster and the first two matters published on Twitter by The Age.  I award damages of $120,000 and $80,000 respectively in relation to those claims. 

31. Mr Hockey’s claims with respect to the other publications which were the subject of the respective proceedings are dismissed. 

32. I will hear from the parties with respect to injunctions, interest and costs and as to the form of the orders which are appropriate in the light of these findings.

I certify that the preceding five hundred and twenty-two (522) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate:

Dated:       30 June 2015