Jensen v Nationwide News Pty Ltd [No 13]
[2019] WASC 451
•20 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: JENSEN -v- NATIONWIDE NEWS PTY LTD & ANOR [No 13] [2019] WASC 451
CORAM: QUINLAN CJ
HEARD: 8, 9, 13, 14, 15, 16, 17, 20, 21, 24 MAY 2019 & 3 JULY 2019
DELIVERED : 20 DECEMBER 2019
FILE NO/S: CIV 1535 of 2016
BETWEEN: DENNIS GEOFFREY JENSEN
Plaintiff
AND
NATIONWIDE NEWS PTY LIMITED
First Defendant
ANDREW BURRELL
Second Defendant
Catchwords:
Defamation - Publications made by way of newspaper articles, online articles and tweets - Claim by former Member of Parliament - Imputations in relation to Plaintiff's living arrangements - Imputation in relation to use of parliamentary letterhead
Defences - Justification - Whether imputations substantially true
Defences - Qualified privilege - Whether occasion of qualified privilege - Political communication - Reasonableness of conduct - Failure to make reasonable enquiries - Failure to provide opportunity to respond
Damages - Extent of publication and republication - Effect on plaintiff - Aggravating circumstances - Failure to apologise - Further and continued publication - Conduct of litigation
Damages - Economic loss - Special damage - Causation - Loss of preselection for Federal election - Loss at Federal election - Failure to obtain subsequent alternative employment - Andrews damages
Jury finds some but not all imputations to be defamatory - Imputation not found to be defamatory subject to appeal - Provisional findings made in relation to imputation not found to be defamatory
Legislation:
Civil Liability Act 2002 (WA)
Defamation Act 2005 (WA)Result:
Judgment for the plaintiff
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett & Mr A J Tharby First Defendant : Mr T Blackburn SC & Mr J D MacLaurin Second Defendant : Mr T Blackburn SC & Mr J D MacLaurin Solicitors:
Plaintiff : Bennett + Co First Defendant : MacPherson & Kelley Lawyers Second Defendant : MacPherson & Kelley Lawyers Case(s) referred to in decision(s):
Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 366
Bristow v Adams [2012] NSWCA 166
Broome v Cassell & Co Ltd [1972] AC 1027
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176
Fairfax Publications Pty Ltd v Kermode (2011) 81 NSWLR 157
Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538
Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Jensen v Nationwide New Pty Ltd [2019] WASCA 77
Jensen v Nationwide New Pty Ltd [No 12] [2019] WASC 250
Jensen v Nationwide New Pty Ltd [No 8] [2019] WASC 170
Jensen v Nationwide New Pty Ltd [No 9] [2019] WASC 171
John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mirror Newspapers Ltd v Fitzpatrick (1984) 1 NSWLR 643
Polly Peck (Holdings) v Trelford [1986] QB 1000
R v Dawes [1992] 2 Qd R 435
Rayney v The State of Western Australia (No 9) [2017] WASC 367
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451
Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211
Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104
Todd v Swan Television & Radio Broadcasters Pty Ltd [2001] WASC 334; (2001) 25 WAR 284
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Table of Contents
Introduction
The alleged defamatory imputations
A jury determines the extent of defamatory meanings
The effect of the jury's verdict
Summary of the issues for determination
Standard of proof and overview of witnesses
Onus and Standard of Proof
Witnesses
Factual background
Dr Jensen's early work history and entry into Parliament
The Skywarriors
Dr Jensen's living arrangements
Mr Burrell's work history and the lead-up to 2016 preselection
The events leading up the publications
Mr Burrell's Evidence
The anonymous package
Preparations for a story and contact with Source A
Mr Burrell speaks with Sean Conway
Mr Burrell speaks with Dr Jensen
Cross-examination arising from the Listing
Dr Jensen's evidence as to the conversation with Mr Burrell
Dr Hoad's evidence in relation to the 31 March article
Assessment of witnesses' evidence
Assessment of Dr Jensen as a witness
Assessment of Mr Burrell as a witness
Assessment of Dr Hoad as a witness
The failure to call Mr Conway - a Jones v Dunkel inference?
Findings as to the events leading up to the publications
Pleas of Justification - Truth
The parliamentary letterhead imputation – Defence of truth
Is the Curtis Brown letter genuine?
Did Dr Jensen send the Curtis Brown letter?
The best interests imputation – Defence of truth
Qualified privilege
General principles
Occasion of privilege – political communication
Was the defendants' conduct reasonable?
Reasonableness of the conduct in publishing the 31 March publications
Reasonableness of the conduct in publishing the 1 April publications
Malice
Conclusions in relation to liability
Damages
Damages in respect of the 1 April publications
The extent of publication and republication
Damages for non-economic loss - general principles
The effect of the defamation on Dr Jensen
Aggravating conduct?
The amount of non-economic loss
Damages for economic loss
Damages in respect of the parliamentary letterhead imputation
Conclusion
Schedule A – The 31 March Article
Schedule B – The 1 April Article
Schedule C – Pleadings of Aggravated Conduct
QUINLAN CJ:
Introduction
1On 31 March 2016, readers of The Australian newspaper, when turning to page four, were met with the following article at the top of the page:[1]
[1] Exhibit 31 (the 31 March Article). The full text of the 31 March Article is reproduced in Schedule A to these reasons.
2An article in the same terms (under the headline 'MP Dennis Jensen used official stationery to spruik his novel') also appeared on the website of The Australian that day.[2] In addition, Mr Andrew Burrell, the author of the article, posted a link to the internet article on his Twitter page along with the tweet, 'Revealed: Liberal MP Dennis Jensen writes of steamy sex and war with Indonesia in his unpublished novel'.[3]
[2] Exhibit 38 (the 31 March Internet Article).
[3] Exhibit 39 (the 31 March Tweet). The 31 March Article, the 31 March Internet Article and the 31 March Tweet are referred to in these reasons, collectively, as the 31 March publications.
3The following day, 1 April 2016, a follow‑up article appeared on page six of The Australian:[4]
[4] Exhibit 1 (the 1 April Article). The full text of the 1 April Article is reproduced in Schedule B to these reasons.
4Again, the article appeared (under the headline: 'New chapter as Dennis Jensen leaves family home and electorate') on The Australian's website[5] and was the subject of a tweet by Mr Burrell headed: 'Liberal MP Dennis Jensen leaves family home and electorate, hasn't given up on racy novel'.[6]
[5] Exhibit 2 (the 1 April Internet Article).
[6] Exhibit 3 (the 1 April Tweet). The 1 April Article, the 1 April Internet Article and the 1 April Tweet are referred to in these reasons, collectively, as the 1 April publications. The 31 March publications and the 1 April publications are referred to, collectively, as the publications.
5As reflected in each of the articles, the plaintiff, Dr Dennis Jensen, was at the time the Liberal member for the federal seat of Tangney in Western Australia. Dr Jensen was facing a challenge to his preselection for that seat by Mr Ben Morton, a former State Director of the Liberal Party.
6The preselection meeting was scheduled for 3 April 2016.
7Dr Jensen lost the preselection to Mr Morton by a vote of 57 votes to 7.
8Dr Jensen claims that the 31 March publications and the 1 April publications were defamatory of him. He claims compensation in the form of both general damages and loss of earnings against the publisher of The Australian, Nationwide News Pty Ltd (the first defendant) and Mr Burrell (the second defendant).
9The defendants deny any liability in respect of the publications.
The alleged defamatory imputations
10Dr Jensen variously alleged that five defamatory imputations were conveyed by the publications.
11In relation to the 31 March publications, Dr Jensen contended that each of them conveyed the meaning that he:
(a) is a hypocritical purveyor of smut;[7] and
(b) improperly exploited his position as a federal Member of Parliament by using his parliamentary letterhead to seek to obtain a personal financial benefit, namely, a publishing deal for his book, 'The Skywarriors'.[8]
[7] Fifth Amended Statement of Claim dated 16 May 2019 (Statement of Claim) [6.1], [10.1], [14.1]. This imputation is referred to in these reasons as 'the purveyor of smut imputation'.
[8] Statement of Claim [6.2], [10.2], [14.2]. This imputation is referred to in these reasons as 'the parliamentary letterhead imputation'.
12Dr Jensen alleged that the 1 April publications carried four meanings defamatory of him, namely that Dr Jensen:
(a)by leaving the family home to live with his new girlfriend, is a person devoid of the family values expected of a Member of Parliament;[9]
(b)by leaving the family home to live with his new girlfriend, is a person devoid of the high moral standard expected of a Member of Parliament;[10]
(c)by abandoning his electorate to live in Halls Head, failed to act in the best interests of persons residing in the division of Tangney for whom he was elected to represent; [11] and
(d)improperly exploited his position as a federal Member of Parliament by using his parliamentary letterhead to seek to obtain a personal financial benefit, namely, a publishing deal for his book, 'The Skywarriors'.[12]
[9] Statement of Claim [21.1], [29.1], [37.1]. This imputation is referred to in these reasons as 'the family values imputation'.
[10] Statement of Claim [21.2], [29.2], [37.2]. This imputation is referred to in these reasons as 'the moral standards imputation'.
[11] Statement of Claim [21.3], [29.3], [37.3]. This imputation is referred to in these reasons as 'the best interests imputation'.
[12] Statement of Claim [21.4], [29.4], [38.2].
13As is apparent, Dr Jensen alleged that the parliamentary letterhead imputation was conveyed by both the 31 March publications and the 1 April publications.[13]
[13] Dr Jensen had also pleaded that the 1 April publications conveyed the purveyor of smut imputation, on the basis that it they were composite publications with the 31 March publications: Statement of Claim [22], [30], [38.1]. That case was not pursued at trial (see Ts (3 May) 555, 570-575).
A jury determines the extent of defamatory meanings
14On 6 and 7 May 2019 a trial of separate issues was conducted before me and a jury to determine whether the various publications carried the meanings contended for by Dr Jensen and whether those meanings were defamatory.[14]
[14] The reasons for the order for a trial of separate issues (and the issues to be tried) can be found in Jensen v Nationwide New Pty Ltd[No 8] [2019] WASC 170 (Jensen [No 8]) and Jensen v Nationwide New Pty Ltd[No 9] [2019] WASC 171 (Jensen [No 9]).
15The jury found that the 31 March publications did not convey the purveyor of smut imputation.
16The jury found that both the 31 March publications and the 1 April publications conveyed the parliamentary letterhead imputation. The jury was not, however, satisfied that the parliamentary letterhead imputation was defamatory of Dr Jensen.
17The jury was satisfied, in relation to the 1 April publications, that each of the following meanings were conveyed by those publications and that they were defamatory of Dr Jensen:
(a)that, by leaving the family home to live with his new girlfriend, he is a person devoid of the family values expected of a Member of Parliament (i.e. the family values imputation);
(b)that, by leaving the family home to live with his new girlfriend, he is a person devoid of the high moral standard expected of a Member of Parliament (i.e. the moral standards imputation); and
(c)that, by abandoning his electorate to live in Halls Head, he failed to act in the best interests of persons residing in the division of Tangney for whom he was elected to represent (i.e. the best interests imputation).
The effect of the jury's verdict
18The effect of the jury's verdict is that Dr Jensen does not have a claim for defamation in relation to the 31 March publications, for the reasons that, first, the purveyor of smut imputation was not established and, secondly, and the parliamentary letterhead imputation was not defamatory.
19For this reason, there can be no judgment or award of damages in relation to those publications or those imputations.
20Following the jury's verdict, on 8 May 2018, I commenced hearing a separate trial in relation to the remaining issues in Dr Jensen's action, in accordance with my decisions in Jensen [No 8] and Jensen [No 9].
21On that day, Dr Jensen also lodged an appeal in relation to the jury's verdict, and in particular, in relation to the jury's verdict that Dr Jensen had not established that the parliamentary letterhead imputation was defamatory. Dr Jensen sought an urgent hearing of that appeal to enable the trial before me to proceed on the basis of the 'corrected' answers to the questions posed to jury (in the event that the appeal were successful).[15]
[15] Jensen v Nationwide New Pty Ltd [2019] WASCA 77 [15] (Buss P & Beech JA).
22On 9 May 2019 the Court of Appeal refused Dr Jensen's application for expedition. In the reasons later published by the Court, Buss P and Beech JA observed that:[16]
Thirdly, considerations of efficient case management did not support the making of the expedition order sought by the appellant. In addition to the points already made, it would, as the appellant accepted before us, be open to seek orders from Quinlan CJ, or otherwise request his Honour, to provisionally determine issues of defences and damages arising from the disputed imputations. Such a course would be entirely conventional. Of course, whether it is appropriate is a question for the trial judge, and one on which we express no opinion.
[16] Jensen v Nationwide New Pty Ltd [2019] WASCA 77 [20] (Buss P & Beech JA).
23The trial before me resumed on 9 May 2019.
24At the commencement of the hearing on that day, counsel for Dr Jensen confirmed that the jury's verdict in relation to the purveyor of smut imputation did not, and would not, form part of Dr Jensen's appeal.[17] That is, in his appeal, Dr Jensen seeks only to challenge the finding that the parliamentary letterhead imputation was not defamatory.
[17] Ts (9 May 2019) 845-846.
25After hearing further submissions from the parties, I concluded that (in light of the jury's verdict) it was appropriate for me to conduct the balance of the trial on the basis that I would make provisional findings as to the remaining pleaded issues concerning the parliamentary letterhead imputation. Those issues include the defence of justification by way of truth and the defence of qualified privilege, together with the quantum of damages, if any, that would be payable in respect of that imputation.
26As a consequence, this trial was conducted on the basis that I would determine all of the pleaded issues as they related to the parliamentary letterhead imputation.
27There being no challenge to the jury's verdict in relation to the purveyor of smut imputation, it is not appropriate that I determine the issues relating to that imputation (including the defendants' plea that it was true). I, therefore, make no findings in that regard.
Summary of the issues for determination
28The issues to be determined by me are as follows.
29First, in relation to the parliamentary letterhead imputation and the best interests imputation, the defendants plead the defence of justification, namely, that those defamatory imputations are substantially true. The defendants rely upon the defence of truth both at common law and pursuant to s 25 of the Defamation Act 2005 (WA).[18]
[18] Amended Substituted Defence and Counterclaim dated 1 February 2019 (Defence) [7B], [11B], [15B], [23A], [23B], [31A], [31B], [39A], [39B]. The Defence also pleaded a Polly Peck defence (see Polly Peck (Holdings) v Trelford [1986] QB 1000) of truth in relation to a variant of the parliamentary letterhead imputation (Defence [7C], [11C], [15C], [23C], [31C], [39C]) (see West Australian Newspapers Ltd v Elliott [2008] WASCA 172). The defendants did not pursue the Polly Peck defences at trial (Ts (3 May 2019) 553. The counterclaim pleaded in the Defence was also discontinued, by consent, on 6 May 2019 (Ts (6 May) 639-640.
30The defendants do not plead the defence of truth in relation to the remaining imputations, namely, the family values imputation and the moral standards imputation.
31The defence of qualified privilege, however, is pleaded in relation to the entirety of the 31 March publications and the 1 April publications. That defence is relied upon pursuant to both s 30 of the Defamation Act and the common law defence recognised in Lange v Australian Broadcasting Corporation.[19]
[19] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (Lange).
32In this context, I note that the Defence pleads the occasion of qualified privilege compendiously in relation to each of the 31 March publications and the 1 April publications,[20] rather than by reference to the particular defamatory imputations said to be contained in them. Whether the test for qualified privilege is to be applied to the publications as a whole, or to the individual defamatory imputations conveyed by them, is a matter of controversy between the parties and one which I have addressed below.
[20] Defence [45].
33All aspects of the defence of qualified privilege remain in issue between the parties, including, in each instance, whether there was the requisite interest or apparent interest giving rise to an occasion of privilege.[21] Nevertheless, the most significant issue between the parties in relation to the defence of qualified privilege is whether the defendants have proved that their conduct in publishing the material about Dr Jensen was reasonable in the circumstances.[22]
[21] Fourth Amended Reply and Defence to Counterclaim dated 8 February 2019 (Reply) [2], [5].
[22] See s 30(3) of the Defamation Act and, in relation to the Lange defence, Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 (Hockey) [373] (White J).
34In addition, Dr Jensen, pleads that the 31 March publications[23] and the 1 April publications[24] were actuated by malice, thus defeating any defence of qualified privilege. While the pleadings as to malice are extensive and detailed, essentially Dr Jensen alleges that the 31 March publications and the 1 April publications were actuated by the improper motive of 'tarnishing the reputation of Dr Jensen' and thereby (i.e. for the purpose of) influencing the outcome of the preselection on 3 April 2016. It does not overstate Dr Jensen's case in this regard to say that he alleges that Mr Burrell was a conscious and deliberate party to a scheme, with an unidentified person, calculated to damage Dr Jensen's prospects in the preselection.[25]
[23] Reply [4].
[24] Reply [7].
[25] See Plaintiff's Closing Submissions dated 23 May 2019 [28].
35Finally, depending upon whether and, if so which, defamatory imputations are not defensible, it is necessary to assess the quantum of damages payable to Dr Jensen.
36In this respect, a number of issues arise in relation to damages.
37First, Dr Jensen pleads that the circumstances of the publication of the defamatory material are such as to warrant an award of aggravated damages. A finding in that regard would affect both the quantum of general damages and whether the statutory cap imposed by s 35 of the Defamation Act may be exceeded.
38Secondly, Dr Jensen brings a claim for special damage in respect of economic loss said to arise from his loss of preselection for the seat of Tangney and his inability to obtain alternative employment. That issue requires a determination as to whether Dr Jensen has proven a causal connection between any defamatory statements made of him and the loss of his seat in Parliament and the fact that he has been unable to obtain alternative employment.
39If the pleaded claim for special damage is not established, an issue arises as to whether Dr Jensen should be awarded damages to reflect an allowance for the general effect on his 'employability' (in what might best be described as a form of 'Andrews damages').[26]
[26] See Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 (Andrews); Todd v Swan Television & Radio Broadcasters Pty Ltd [2001] WASC 334; (2001) 25 WAR 284 [58] (Steytler J).
40In relation to the issues to be decided, I should note that, despite some ambiguity in the pleadings, the defendants admitted that each of the publications was relevantly 'published' for the purposes of the cause of action in defamation.[27] In that regard, however, I observe that the publisher or publishers, and so the relevant defendant for each publication, was not identical.
[27] Ts (30 April 2019) 440-443.
41In particular:
(a)the 31 March Article, the 31 March Internet Article, 1 April Article and the 1 April Internet Article were each published by both defendants, Nationwide News Pty Ltd and Mr Burrell;
(b)the 31 March Tweet and the 1 April Tweet were published only by the second defendant, Mr Burrell. In relation to the tweets, the defendants also accepted that, as each tweet included a link to the internet article corresponding to the tweet, the tweets conveyed the same information as the respective internet article. That is, the 31 March Tweet included the 31 March Internet Article and the 1 April Tweet included the 1 April Internet Article.[28]
[28] Ts (3 May 2019) 555.
42Notwithstanding that there was, technically, some divergence in relation to publications published by each defendant, the parties essentially conducted the case without regard to the distinction between the defendants. That is, in terms of the issues to be determined by me, such as reasonableness, malice or the quantum of damages, the resolution of the issues was common to both defendants.
43The conduct relied upon by the defendants, for example, to establish the reasonableness of the defendants' conduct, was the conduct of Mr Burrell. The evidence could not yield different answers to those issues as between the defendants. This is particularly so in relation to the tweets which, while published only by Mr Burrell, will yield the same answers in relation to those issues as are reached in relation to the articles and internet articles.
44Similarly, Dr Jensen conducted the case on the basis that there should be a single award of damages against the defendants and I was not asked to apportion any damages award between the defendants. In relation to each individual publication, of course, there is a single cause of action.[29]
[29] Defamation Act s 8.
45Accordingly, in the course of resolving the issues before me I have, where appropriate and convenient adopted language and made findings that refer to the publications and defendants collectively (notwithstanding that they apply, strictly, to both defendants in relation to the articles and internet articles, and to Mr Burrell only, in relation to the tweets). The reasons which follow should be so understood.
46Before turning to the evidence, it is appropriate to make some preliminary observations in relation to the standard of proof and the witnesses.
Standard of proof and overview of witnesses
Onus and Standard of Proof
47As will be apparent from this brief summary of the issues, a number of the pleaded issues involve quite serious allegations. The defendants' plea of truth in relation to the parliamentary letterhead imputation and the best interests imputation (particularly the former) seek findings of impropriety or unprofessionalism in relation to Dr Jensen. Similarly, Dr Jensen's plea of malice alleges significant wrongdoing on the part of Mr Burrell, not only as to his motivation in writing the various articles, but also in the conduct of the litigation.[30]
[30] Dr Jensen's submissions characterised Mr Burrell's evidence as involving a 'monstrous' and 'fundamental lie' (Plaintiff's Closing Submissions dated 23 May 2019 [20], [28]) and alleged that his account of receiving anonymous material in relation to Dr Jensen was a 'fabrication' [5] and included the fabrication of evidence in the form of the envelope in which it was delivered [28].
48These, and other allegations, are serious ones, in relation to which the onus of proof variously rests with Dr Jensen or the defendants. The standard of proof, of course, remains at all times the balance of probabilities. There is no intermediate standard of proof between satisfaction beyond reasonable doubt and satisfaction on the balance of probabilities.[31]
[31] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 366, 362-363 (Dixon J); Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521-522 (Barwick CJ, Kitto, Taylor, Menzies & Windeyer JJ).
49Nevertheless, satisfaction on the balance of probabilities must take into account the nature and consequence of the fact or facts to be proved, the seriousness of any allegation made, the inherent unlikelihood of an occurrence of a given description and the gravity of the consequences flowing from a particular finding.[32]
[32] Briginshaw v Briginshaw, 362 (Dixon J).
50I take all of these matters into account when assessing the evidence, and arriving at findings and conclusions in the present case. In the end I am guided by Sir Owen Dixon's observation that:[33]
The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
[33] Briginshaw v Briginshaw, 361 (Dixon J).
Witnesses
51In addition to a substantial volume of documentary evidence, Dr Jensen called three witnesses to give evidence: himself, Dr Trudy Hoad (his wife),[34] and Ms Victoria Gutierrez. Ms Gutierrez' evidence was confined to issues concerning the parliamentary letterhead imputation.
[34] Following her marriage to Dr Jensen in January 2017, Dr Hoad has adopted the name Dr Trudy Jensen. Nevertheless, in order to distinguish between her and the plaintiff and to avoid any confusion, I have referred to Dr Trudy Jensen in these reasons as Dr Hoad. No disrespect is intended by that nomenclature.
52The defendants called Mr Burrell and evidence from five of the preselectors at the 3 April 2016 Tangney preselection: Mr Cameron Schuster, Mr Godfrey Lowe, Mr Jonathan Youngs, Mr Daniel Earl and Mr Bruce McGregor. Mr Lowe also gave evidence in relation to certain matters arising from his previous employment in Dr Jensen's office from 2006 to 2008. That evidence was, principally, relevant to the parliamentary letterhead imputation.
53Before turning to the factual issues in detail, I begin by setting out the factual background leading up to the publications, in so far as that background may be regarded as uncontroversial.
Factual background
Dr Jensen's early work history and entry into Parliament
54Dr Jensen was, at the time of trial, 57 years of age and was born in South Africa.
55He migrated to Australia in 1982, initially living in South Australia and then later in Victoria.
56Dr Jensen studied in Victoria, being awarded a Bachelor of Applied Science from the Royal Melbourne Institute of Technology and later a Master of Science and PhD (again in science) from Melbourne and Monash Universities, respectively.
57Following his doctoral studies, Dr Jensen worked as a research scientist at CSIRO in Victoria from 1995 to 1999. He married his first wife, Susan, in 1991 and they had two daughters in 1994 and 1996 respectively.
58In 1999, Dr Jensen took a position as a defence analyst with the Defence Science and Technology Organisation within the Department of Defence. The placement was at the HMAS Stirling Naval Base at Garden Island and, as a consequence, Dr Jensen and his family moved to Western Australia and settled in the Mandurah area where he acquired a property at Halls Head (the Halls Head property). Their third child was born in 2001.
59Dr Jensen joined the Liberal party in Western Australia in 2003 (having previously been a member in Victoria) and developed an interest in running for a seat in Parliament.
60In 2004, when the Hon Daryl Williams AM QC announced his retirement as the member for the seat of Tangney, Dr Jensen was preselected and endorsed as the new Liberal candidate for Tangney.
61He contested the federal election that year and was elected as the Member for Tangney. The two party preferred vote was 61.75% (up from 57.97% in 2001).[35] Tangney is, and was at the time, a safe Liberal seat.
[35] Exhibit 107.
62Dr Jensen thereafter served as the Member for Tangney until the 2016 federal election. During that time, he served as Deputy Chair of the Education and Employment Standing Committee, a member of the Joint Standing Committee on Foreign Affairs, Defence and Trade (including as Deputy Chair of the Defence subcommittee), and as Deputy Chair, and later Chair, of the Petitions Committee. Dr Jensen was never appointed to the Ministry or Shadow Ministry during his service in Parliament.
63Prior to his loss of preselection on 3 April 2016, Dr Jensen had previously had difficulties with his preselection as the Liberal member for Tangney.
64In 2006, for example, Dr Jensen was challenged by two candidates for preselection and lost the local preselection (and an appeal to the appeals and disciplinary committee of the Liberal party).[36] While Dr Jensen lost the preselection, he was ultimately endorsed as the candidate by the State Council of the Liberal party. In this regard, it is the State Council that actually endorses candidates.[37] The State Council consists of approximately 130 persons, including the State and National President, the State Executive, Divisional delegates and others.[38]
[36] Ts (13 May 2019) 959-960 (Jensen).
[37] Ts (9 May 2019) 873 (Schuster).
[38] Exhibit 34 (see especially cl 64).
65Again, in 2009, there was another preselection contest for the Division of Tangney, in which Dr Jensen was challenged by two candidates. He again lost the local preselection. Notwithstanding the loss of preselection, Dr Jensen was again endorsed by the State Council (which, on this occasion, Dr Jensen gave evidence, conducted its own preselection process).[39]
[39] Ts (13 May 2019) 961 (Jensen).
The Skywarriors
66Meanwhile, in approximately 1998 or 1999, Dr Jensen who had an interest in 'techno-thrillers' by authors such as Tom Clancy, decided to write a novel.
67He worked on the novel, which he ultimately called The Skywarriors, from that time until approximately 2003. The novel concerns a war between Australian and Indonesia, following a coup d'etat in Indonesia led by the protagonist of the novel, General Rajiv Rono. During the course of the war, the Indonesian forces are, for a time, backed by Chinese naval forces. The Chinese forces withdraw from the war prior to the final hostilities. The novel concludes with the surrender by the Indonesian commander (although an epilogue hints at a possible sequel and the return of General Rono).
68Dr Jensen gave evidence that he endeavoured to have The Skywarriors published at the time of its completion but was not successful.
69Following his election to Parliament, in mid-2007, Dr Jensen again considered seeking to have The Skywarriors published.[40]
[40] Ts (13 May 2019) 980 (Jensen).
70At that time he sought advice from his staff, including Mr Lowe and Ms Trish Phelan, as to the wisdom of having it published. Both Dr Jensen and Mr Lowe gave evidence that Dr Jensen was advised against seeking to have the book published.
71As the events of 2007, and in particular whether Dr Jensen in fact sought a publishing deal, are in dispute I have dealt with them in more detail later in these reasons.
Dr Jensen's living arrangements
72At the time of his initial election as the member for Tangney in 2004, Dr Jensen was living at the Halls Head property with his family. Halls Head is not within the electorate of Tangney.
73Following the preselection contest in 2006, Dr Jensen and his then wife acquired a property in Leeming, within the electorate of Tangney. Dr Jensen gave evidence that there were two reasons for the move. The first was due to the fact that his not residing in the electorate had been put against him in the 2006 preselection battle. Secondly, with a young family, Leeming provided ready access to the public schools in the area. The property in Halls Head was maintained as a weekender and holiday retreat.[41]
[41] Ts (13 May 2019) 953.
74In July 2014, Dr Jensen's wife, Susan, decided to leave the marriage. She expressed to Dr Jensen the wish to remain in the Leeming property, as their son had just commenced schooling at Perth Modern School. Dr Jensen, therefore, moved to the Halls Head property.[42]
[42] Ts (13 May 2019) 953-954.
75In December 2014, Dr Jensen's former wife moved to Melbourne. The Leeming property was sold in February 2015.[43] By that time Dr Jensen had already changed his residential address to Halls Head and in February 2015 updated his parliamentary Register of Member's Interests upon the disposal of the Leeming property.[44]
[43] Ts (13 May 2019) 945.
[44] Exhibit 60.
76In November 2014, Dr Jensen met Dr Trudy Hoad. They met online and started living together, more or less permanently, from December 2014. From that time, they divided their time between Dr Hoad's unit in Nedlands (and later Crawley) during the week and at Halls Head on weekends. Dr Hoad was registered as Dr Jensen's partner on the parliamentary Register of Partners from December 2014.
77Dr Jensen and Dr Hoad have since married, marrying on 25 January 2017. After they married, Dr Hoad moved permanently into the Halls Head property, where she and Dr Jensen have lived ever since.
Mr Burrell's work history and the lead-up to 2016 preselection
78At the time of trial Mr Burrell was 47 years of age. He was, at all material times, the chief reporter for Western Australia at The Australian newspaper. Prior to that, Mr Burrell was a senior business reporter for The Australian.[45]
[45] Ts (17 May 2019) 1467 (Burrell).
79Mr Burrell has been a journalist for 25 years and has previously worked for the Albany Advertiser, the Kalgoorlie Miner, and The Australian Financial Review in various capacities. While employed with The Australian Financial Review, Mr Burrell spent time working in Sydney, Jakarta and, for a brief period, China.[46]
[46] Ts (17 May 2019) 1471 (Burrell).
80He commenced working at The Australian in early 2010, formally becoming the chief reporter for Western Australia in 2014.
81Mr Burrell held that position up to trial, including throughout 2016.
82In around October 2015, speculation began to be publicly aired that Mr Morton, the outgoing State Director of the Liberal Party, might challenge Dr Jensen for the preselection for the seat of Tangney.[47] Dr Jensen gave evidence that he became aware of such speculation earlier in 2015.[48]
[47] Ts (9 May 2019) 907 (Schuster).
[48] Ts (13 May 2019) 969 (Jensen).
83As a consequence of those rumours, on 17 October 2015 Dr Jensen asked Mr Morton, by text message whether he intended to challenge Dr Jensen for the preselection. Mr Morton gave a non‑committal reply.[49]
[49] Exhibit 41.
84The speculation evidently continued into early 2016.
85Towards the end of January 2016, Mr Burrell decided to write a story in relation to the 'looming preselection battle' for the seat of Tangney. As preparation for the story, Mr Burrell called Dr Jensen's office on 28 January 2016 and asked to speak with Dr Jensen or somebody on his behalf. Mr Burrell was directed to Dr Jensen's senior advisor, Sean Conway. He had never spoken with Mr Conway before.
86Mr Burrell raised with Mr Conway the issue of the preselection, in light of the rumours that Mr Morton may seek preselection for the seat of Tangney. Mr Conway advised Mr Burrell that Dr Jensen would not be commenting on any matters to do with preselection.[50] The conversation then continued as a 'background' or 'off the record' conversation as to Dr Jensen's prospects in a preselection contest. Dr Jensen gave evidence, which I accept, that he was not aware that Mr Conway had spoken with Mr Burrell on this occasion until after the commencement of these proceedings.[51]
[50] Ts (17 May 2019) 1478 (Burrell).
[51] Ts (14 May 2019) 1108 (Jensen).
87Mr Burrell wrote an article for The Australian in relation to the issue of the potential preselection challenge which was published on 30 January 2016, both online,[52] and in the print edition of the Weekend Australian newspaper.[53]
[52] Exhibit 27 (under the headline 'Abbott critic faces preselection challenge from Lib director').
[53] Exhibit 128 (under the headline 'Abbott turncoat faces likely challenge from former chief').
88On 26 February 2016, Mr Morton contacted Dr Jensen and advised that he, Mr Morton, intended to challenge Dr Jensen for the preselection for the electorate of Tangney. That same day, by email, Mr Morton advised senior office holders within the Liberal party of that intention.[54]
[54] Exhibit 42.
89After that point, Dr Jensen worked towards securing the preselection in the upcoming contest (which was ultimately scheduled for 3 April 2016). He was provided with the list of preselection delegates and arranged meetings to discuss his candidacy.[55] Dr Jensen maintained a running sheet of his discussions with preselectors, which was tendered in evidence as to Dr Jensen's state of mind in relation to his prospects in the preselection.[56] His view, in the days prior to the preselection, was that the preselection was on a 'knife edge'.[57]
[55] Ts (13 May 2019) 971 (Jensen).
[56] Exhibit 50; see Ts (13 May 2019) 1001 (Jensen).
[57] Ts (13 May 2019) 984 (Jensen).
90During that period, Dr Hoad also sent a copy of a letter addressed to each of the preselectors providing her perspective on Dr Jensen's personal and professional qualities.[58]
[58] Exhibit 44.
91Dr Hoad's letter was undated, although she gave evidence that it was sent approximately one month before the preselection meeting.[59] This recollection is generally consistent with evidence given by Mr Lowe, who received a copy of the letter from Dr Hoad (Mr Lowe being a pre‑selector). Mr Lowe's copy of the letter[60] was recorded by him as having been received on 11 March 2016. I accept Mr Lowe's evidence in that regard, and I find that the letter from Dr Hoad was sent to preselectors on or about that date.
[59] Ts (16 May 2019) 1277.
[60] Exhibit 123.
92The events that occurred next are a matter of controversy. They include:
(a)the circumstances in which Mr Burrell came to write the 31 March publications;
(b)the steps taken by Mr Burrell prior to the 31 March publications and 1 April publications; and
(c)in particular, the conversation between Dr Jensen and Mr Burrell on 30 March 2016.
93In relation to those issues, I propose, first, to address each witnesses' evidence separately, commencing with Mr Burrell's (as he appears first in the relevant narrative).
The events leading up the publications
Mr Burrell's Evidence
The anonymous package
94Mr Burrell gave evidence in examination-in-chief, that, at some point in the days preceding the 31 March publications, he received a yellow envelope addressed to him.[61] He gave evidence that he found it at his desk in the week of 23 March to 30 March 2016.[62] Later, in cross-examination, he was taken to an electronic copy of a Word document prepared by him, entitled 'Jensen-novel', the metadata of which states that it was created on 22 March 2016.[63]
[61] Exhibit 124 is the original envelope and the contents identified by Mr Burrell. Copies of the individual documents included in those contents are also Exhibit 35 (the parliamentary letter) and Exhibit 45 (the Extract from The Skywarriors),
[62] Ts (20 May 2019) 1574 (Burrell).
[63] Exhibit 137; Ts (20 May 2019) 1580-1581 (Burrell).
95Mr Burrell gave evidence that he did not know, and still does not know, who prepared the envelope[64] or who left it at his desk.[65] While the envelope has a postage stamp on it, it is not postmarked, and so is unlikely to have arrived in the mail.[66]
[64] Ts (17 May 2019) 1486 (Burrell).
[65] Ts (20 May 2019) 1574 (Burrell).
[66] Ts (20 May 2019) 1565 (Burrell).
96Mr Burrell initially gave evidence that the envelope contained three separate documents.
97First, an anonymous typed letter (the anonymous letter) which read as follows:[67]
[67] Exhibit 124.
Dennis Jensen
Hi -
Thought you might like these papers related to Dennis Jensen.
People are amazed that he spent his first term in Parliament writing a novel - see parts of it attached and then spent time (and using his parliamentary letterhead) trying to get it published.
It is truly awful - I can only suggest you keep a bucket handy when you read it.
Also interesting that his local divisional council has organized the Annual
General Meeting for Tangney on the night of Thursday 25 February – a sitting day.This is to make it as difficult as possible for him to attend – in the hope that they won't have to listen to another dreadful speech.
Mind you, his anniversary of a decade in Parliament, at another council meeting passed without him attending. Unfortunately he did send a video.
98Secondly, Mr Burrell identified a letter, purportedly signed by Dr Jensen, and addressed to Ms Gutierrez at Curtis Brown (the Curtis Brown letter):[68]
[68] Exhibit 35.
99Curtis Brown (Australia) Pty Ltd (Curtis Brown) was, and is, a large literary agency that has an office in Paddington, New South Wales.[69]
[69] Ts (9 May 2019) 854, 859 (Gutierrez).
100Finally, Mr Burrell gave evidence that the envelope contained a 50‑page extract from The Skywarriors (the Extract).[70] There can be no doubt that the Extract is in fact a true copy of an extract from Dr Jensen's book. Save for slight differences in formatting (which affect the page numbering) the Extract is identical to the opening three chapters of the full manuscript.[71]
[70] Exhibit 45.
[71] Exhibit 46. Indeed both the Extract and the full novel contain the same typographical error in the header, which reads 'The Skywarriorss'.
101The anonymous letter, the Curtis Brown letter and the Extract were the only documents identified by Mr Burrell as being contained in the envelope. At the beginning of cross-examination, Mr Burrell confirmed that the three documents were the full contents of the envelope, which he recalled receiving and had never forgotten.[72] That evidence came under sustained challenge later in the cross-examination, including as to whether the provision of the documents was indeed anonymous. I will return to that evidence later.
[72] Ts (20 May 2019) 1565-1566 (Burrell).
Preparations for a story and contact with Source A
102Mr Burrell gave evidence that, having read the documents, he thought it might make a story, although he said he did not communicate with anyone about it immediately. At some later point, he said, he communicated with Mr James Madden, the Deputy National Chief of Staff and Ms Paige Taylor, the Western Australian editor for The Australian.[73]
[73] Ts (17 May 2019) 1488-1489 (Burrell).
103On the morning of 30 March 2016, Mr Burrell had contact with a number of persons.
104First, he had a series of exchanges by text message with a person Mr Burrell identified as a confidential source (Source A).[74] The first text message was a photograph from Mr Burrell to Source A at 9.48 am. The photograph was of part of a 'sex scene' on page 28 of the Extract. Mr Burrell later confirmed in cross-examination that he had previously spoken to Source A about the extract from the book, to ask Source A if he had ever heard whether Dr Jensen had published a book.
[74] Exhibit 97.
105It is clear from the text messages themselves that Mr Burrell did speak to Source A prior to the exchanges. First, the photograph of the extract is not preceded by any explanation in the text message thread: this suggests it was preceded by some form of conversation. More tellingly, Source A stated in a text at 10.05am: 'I hope his letter to the publisher was not on his MP letterhead'. There was nothing in the text messages from Mr Burrell suggesting that there was such a letter. The fact that Source A was aware of the existence of a 'letter to the publisher' supports the inference that he obtained that information in an earlier conversation with Mr Burrell. That inference is most likely, and I so find. [75]
[75] Mr Burrell initially said in cross-examination that he had not had a conversation with Source A and told him about a letter, although he later accepted that he did speak with Source A prior to the text messages (Ts 1721, 21 May).
106Secondly, Mr Burrell also had contact, on the morning of 30 March 2016 with other employees of The Australian. In this regard, Mr Burrell identified, in cross-examination, a series of emails that he sent to Mr Madden and Ms Patricia Rees, the National Chief of Staff:
(a)At 10.33am he emailed a scanned copy of the Curtis Brown letter;[76]
(b)At 10.34am he emailed pages 27 and 28 of the Extract (containing the 'sex scene');[77]
(c)At 10.55am he emailed (to Mr Madden only) what he described as a 'listing', being a summary of the proposed story for the editors (the Listing).[78]
[76] Exhibit 138.
[77] Exhibit 139.
[78] Exhibit 140.
107In examination-in-chief, Mr Burrell gave evidence that he also spoke to Mr Madden that morning and that Mr Madden requested that he get a photograph of Dr Jensen.[79] In cross-examination, Mr Burrell stated that that request had probably come from Ms Taylor, who had spoken to Mr Madden. He later said that it was very difficult to recall whether he spoke to Mr Madden directly or through Ms Taylor.[80]
[79] Ts (17 May 2019) 1489 (Burrell).
[80] Ts (20 May 2019) 1604-1605 (Burrell).
108In any event, at 12.24pm Mr Burrell sent a further text to Source A stating: 'Don't suppose you know his home address? We have been told to photograph him today?'.
109In response, at 12.31pm, Source A sent Mr Burrell a PDF copy of the applications for the Tangney preselection. That document consisted of eight pages; four pages of Mr Morton's application and four pages of Dr Jensen's application.[81] The copy of Dr Jensen's application included his residential address at Halls Head and described his marital status as 'partnered'.
[81] Exhibit 129; Ts (17 May 2019) 1508-1509.
110Mr Burrell and Source A continued their text exchange in relation to Dr Jensen's address, the fact that it was not in the electorate of Tangney and the fact that his marital status was listed as 'partnered'.[82]
[82] Exhibit 97.
111Before leaving that exchange, it is convenient at this point that I make certain findings about Source A. Mr Burrell gave evidence in relation to his previous dealings with Source A, including in relation to his promises of confidentiality (a matter which was the subject of challenge in cross examination).
112Mr Burrell was not asked, or required, to identify the identity of Source A in the course of his evidence (although he did identify that Source A was male).[83] Nevertheless, as it may be relevant to other issues, it is appropriate that I make the following findings in relation to Source A.
[83] Ts (20 May 2019) 1588 (Burrell).
113Clearly Mr Burrell regarded Source A as being a person who would be likely to have information in relation to Dr Jensen.[84] Source A was also clearly a person who had access to the preselection applications of both Dr Jensen and Mr Morton (and indeed was able to forward them to Mr Burrell within seven minutes of Mr Burrell's request for Dr Jensen's address). As a number of witnesses,[85] and indeed contemporaneous documentation,[86] confirmed, the preselection applications were confidential. They would not be in wide circulation. They would, however, have been available to delegates for the preselection and other persons within the administration of the Liberal party.
[84] See the reference to his 'strong understanding' at Ts (20 May 2019) 1584.
[85] Ts (9 May 2019) 901-902 (Schuster), (13 May 2019) 971, (Jensen), (16 May 2019) 1353 (Lowe).
[86] Exhibit 33.
114On the basis of all of this evidence, in my view, the strong inference is available that Source A was a member of the Liberal party or a person closely associated with the Liberal party. I so find. This is perhaps not surprising. Mr Burrell gave evidence that he had contacts within all political parties.[87] For completeness, I also record that, for the reasons I gave in the course of the trial, I am satisfied that neither Mr Conway nor Mr Morton is Source A.[88]
[87] Ts (17 May 2019) 1473 (Burrell).
[88] Ts (20 May 2019) 1587-1588.
115Moreover, I find that Source A was a person who was not a supporter of Dr Jensen within the Liberal party. This is, in my view the proper conclusion to be drawn from the apparent mirth with which Source A responded to the 'sex scene', his preparedness to assist in,[89] and keep confidential[90] the fact of, a proposed article in relation to Dr Jensen that (at the very least) would not cast him in a favourable light. Source A was also prepared to breach the confidentiality that attached to the preselection applications. Mr Burrell confirmed in cross-examination that Source A was opposed to the re‑election of Dr Jensen.[91]
[89] By providing the preselection application forms for Dr Jensen and Mr Morton.
[90] Exhibit 97: 'I know nothing' (11.53am).
[91] Ts (21 May 2019) 1720 (Burrell).
Mr Burrell speaks with Sean Conway
116Following the text exchanges with Source A that day (the last of which was at 12.41pm[92]) Mr Burrell took steps to contact Dr Jensen.
[92] Exhibit 97: 'I don't know' (12.41pm).
117Mr Burrell called Dr Jensen's electoral office and had a conversation with Mr Conway.[93] In cross-examination, Mr Burrell said that he thought he called Mr Conway in the morning. His telephone records, however, record the call between Mr Burrell's telephone and Dr Jensen's office as commencing at 1.14pm (WST), which I find to be the time of the call.[94]
[93] Ts (17 May 2019) 1492 (Burrell).
[94] Exhibit 147 (the telephone records are expressed in Coordinated Universal Time: the call is recorded at 5:14:50 UTC).
118Mr Burrell gave evidence that he raised with Mr Conway his understanding that Dr Jensen had written a book. Mr Conway responded that he didn't know anything about a book and that he would have Dr Jensen call Mr Burrell.[95]
[95] Ts (17 May 2019) 1493-1494 (Burrell).
119Mr Burrell gave evidence that he then raised Dr Jensen's living arrangements with Mr Conway. His evidence-in-chief was as follows:[96]
Right. Now, doing the best you can, what did you say to Mr Conway?---From - to the best of my recollection, I said, "I - I've heard that Dennis - or I understand that - that - that Dennis is living in Halls Head, which is outside the electorate. Is that because, you know, he had a marriage breakdown or what's - what are the reasons behind that?" and Mr Conway said words to the effect, "Yes. He's living in Halls Head. He has been living - it's - it's - he has got - he has got a family holiday retreat down there. He has been living in Halls Head since his marriage broke down. He's now living there with his new girlfriend."
Right. Did he say anything to you to the effect of when that move took place?---He didn't specify.
What did he say to you?---He said words to the effect that it had been relatively recent.
Right. And do you recall saying anything back to Mr Conway in response to that or was that the end of the conversation or what? Was more said in that conversation?---I - I don't think anything more substantial was - was said.
So that was the end of the conversation, was it?---Yes. I think the conversation would have ended with Sean Conway saying something like, "Well, I will - you know, I will get Dennis to call you."
[96] Ts (17 May 2019) 1496 (Burrell).
120Shortly after, Mr Burrell was asked about this reference to the move being 'relatively recent':[97]
[W]hat did you understand, what was in your mind, by the use of the words, Mr Conway's words, "relatively recently". What did you think?‑‑‑I didn't have a specific time in mind. I assumed it wasn't in the preceding days or weeks, but I had the strong impression that it was - it had happened relatively recently, and certainly in that current Parliamentary term.
[97] Ts (17 May 2019) 1497 (Burrell).
121This evidence was the subject of substantial cross-examination.
122In that regard, it was put to Mr Burrell, and he accepted, that the witness statements that he had originally filed prior to trial said that he had had two conversations with Mr Conway (on 30 March and 31 March respectively), but that he had changed his position after reviewing his telephone records.[98]
[98] Ts (21 May 2019) 1635 (Burrell).
123Mr Burrell confirmed that, in his original statement, dated 18 October 2018, he had recounted that Mr Conway had said that Dr Jensen was living in Halls Head 'with his girlfriend'. It was put to Mr Burrell that when he had recounted the conversation earlier in his evidence, he had added the word 'new' (as in 'new girlfriend'). Mr Burrell responded that to the best of his recollection, Mr Conway said 'new girlfriend'.[99]
[99] Ts (21 May 2019) 1638 (Burrell).
124When pressed as to the first statement, Mr Burrell said: [100]
I was not trying to reproduce the exact words he spoke. I couldn't recall them. I was saying what he has - the - as best - to the best of my recollection at the time, he said words to the effect, "girlfriend".
[100] Ts (21 May 2019) 1637 (Burrell).
125Mr Burrell at first denied that he knew that there was some significance to him having used the word 'new' in the 1 April Article. When taken to an email exchange between himself, Ms Rees, Mr Madden and Ms Taylor on 4 April 2016 referring to Dr Jensen's complaints about the 1 April Article, Mr Burrell accepted that he knew, at that date, that there was a significance in the use of the word 'new'. [101]
[101] Ts (21 May 2019) 1637-1638 (Burrell). See Exhibit 146.
126Mr Burrell was also cross-examined in relation to his use of the word 'recently' and confirmed that he did not ask Mr Conway the name of the 'new girlfriend' or when any of the things had occurred (i.e. what date Dr Jensen moved, when (or how) his marriage had broken down or when he had got a new girlfriend).[102]
[102] Ts (21 May 2019) 1639, 1674 (Burrell).
Mr Burrell speaks with Dr Jensen
127Mr Burrell gave evidence that, following his conversation with Mr Conway on 30 March 2016, he received a telephone call from Dr Jensen. The telephone records of both Dr Jensen[103] and Mr Burrell[104] reveal that there were in fact four telephone calls from Dr Jensen's mobile telephone to Mr Burrell's landline: the first commencing at 2.20pm and totalling approximately 15 minutes.
[103] Exhibit 47, commencing at sequence no. 429.
[104] Exhibit 147, commencing at sequence no. 500.
128Both Dr Jensen[105] and Mr Burrell,[106] however, recall a single conversation. I am satisfied that there was, in effect, one conversation, albeit that it took place over four calls, commencing at approximately 2.20pm.
[105] Ts (13 May 2019) 979 (Jensen).
[106] Ts (17 May 2019) 1497-1498 (Burrell).
129In his evidence-in-chief, Mr Burrell recounted the conversation as follows:[107]
Right. And, doing the best you can, what was said? When you took the call, did Dr Jensen say something?---He would've said who it was, and I think I said words to the effect, "I'm calling about the book that you wrote some time ago."
All right. And what did Dr Jensen say?---I can't recall specifically what he said next, but I think I said words to the effect that, "I've got –" no, I think I said – I'm just trying to remember what I said. I think I said, "I've got a copy of your book that – you know, with a letter to Curtis Brown. You were seeking to have it published back in 2007."
Did you say anything about – at that point in the conversation, did you say anything about the nature of the letter that you had, what it was, what kind of letter it was?---I said it was a letter, "Signed by you on your Parliamentary letterhead."
…And did Dr Jensen say something to you?---Well, when I originally asked about the book and whether he had marketed to a literary agency, he denied that.
[107] Ts (17 May 2019) 1498 (Burrell).
130Mr Burrell repeated again that he had said 'I have got a copy of your book' and continued:
And that I believed, "It's something you tried to have published back in 2007."
Yes?---He - - -
And what did you say about the letterhead?---Well, he initially denied seeking to have the book published.
Yes?---And then I said words to the effect to him, "Well, I've got a copy of a letter signed by you on your Parliamentary letterhead to Curtis Brown, a literary agent, that was sent back in 2007." He said words to the effect, "Well, okay. I accept that, I sent the letter."
131Mr Burrell went on to recount the balance of the conversation, including that he had asked Dr Jensen whether it was appropriate for a Member of Parliament to be writing such a book, to which Dr Jensen responded 'No', or 'These aren't my current thoughts', or something along those lines.[108]
[108] Ts (17 May 2019) 1499 (Burrell).
132The conclusion of the conversation was described by Mr Burrell as follows:[109]
… He said that he would prefer that people didn't know about the fact that he had written this book and that he would prefer I didn't write a story about it. I said words to the effect, "Well, it's - you know, I'm going to write something, but it's not up to me whether it's published in tomorrow's paper. That's up to the - the editors of the newspaper."
[109] Ts (17 May 2019) 1500 (Burrell).
133Mr Burrell gave evidence that he did not ask Dr Jensen about his living arrangements as he 'had already received the information from Mr Conway' and, also, that he had assumed that Mr Conway would have told Dr Jensen that he had discussed Dr Jensen's living arrangements with Mr Conway.[110]
[110] Ts (20 May 2019) 1533 (Burrell).
134Mr Burrell was taken back to the conversation with Dr Jensen in cross-examination. It was put to Mr Burrell, as was the case, that Mr Burrell had given evidence in examination-in-chief (twice) that he had told Dr Jensen that he had a 'copy' of the book. Mr Burrell accepted that if he had said to Dr Jensen that he had a copy of the book, rather than an extract, that he would have been lying. He said:[111]
If I had said copy to him, yes, I guess I was lying. You're asking me to remember a conversation from three years ago, but I'm doing my best.
[111] Ts (21 May 2019) 1646 (Burrell).
135In relation to the Curtis Brown letter, Mr Burrell denied that he said to Dr Jensen 'I've got the proof' that Dr Jensen had sent the letter. He repeated his evidence that he said: 'Well, I've got a copy of a letter on your parliamentary letterhead, signed by you, sent to Curtis Brown, the literary agent, asking for the book to be published.'[112]
[112] Ts (21 May 2019) 1647 (Burrell).
136A little later in cross-examination, however, Mr Burrell said that he did not believe he said to Dr Jensen 'you sent it'. Indeed, he said 'to the best of my recollection, I didn't use the word sent … It was Dr Jensen who said that'.[113]
[113] Ts (21 May 2019) 1649 (Burrell).
137Returning later to the issue of the letter, the following exchange took place in cross-examination: [114]
And you accept, don't you, that you don't have a perfect memory?---Yes.
You accept, don't you, the difference between saying, "I've got a letter you sent to Curtis Brown," and, "I've got a letter on parliamentary letterhead." There's a nuance, one or the other?---It's a nuance?
Yes. Dr - you heard Dr Jensen say you never mentioned parliamentary letterhead to him? Now, you had a clear recollection of this conversation?---Well, I can recall saying that to him.
You heard him say it would have been a red flag to him if you had said that?---Well, I can recall saying that to him.
Are you sure that wishes aren't a bit farther than memory? You - in retrospect, you hoped you had said to him but you don't have a clear recollection?---No. I can - I can recollect saying that, and I know that as a journalist that was the key point of - one of the key points of the story, so I would have put it to him.
[114] Ts (21 May 2019) 1656 (Burrell).
138In the course of cross-examination in relation to his conversation with Dr Jensen, Mr Burrell identified handwritten notes made by him at the time of the conversation.[115] The handwritten notes refer to the novel and the period over which it was written, but do not refer Curtis Brown or the Curtis Brown letter. That said, however, the notes are clearly not a complete record of the conversation and, in my view, are of little assistance in determining what was said in the conversation.
[115] Exhibit 148 (a typed transcription of the notes is contained in Answers to Interrogatories sworn by Mr Burrell on 15 May 2017 was Exhibit 148A).
139Mr Burrell also accepted, in cross-examination, that he did not make contact with Curtis Brown prior to writing the 31 March Article. He said that was because he planned to ask Dr Jensen.[116]
[116] Ts (20 May 2019) 1584 (Burrell).
140It is also uncontroversial that, following the 31 March publications, Mr Burrell did not attempt to make any contact with Dr Jensen or Dr Hoad prior to the publication of the 1 April publications.[117]
[117] Ts (21 May 2019) 1687 (Burrell).
Cross-examination arising from the Listing
141As noted above, Mr Burrell's evidence that he received the anonymous letter, the Curtis Brown letter and the Extract in an envelope from an anonymous source came under sustained attacked in cross-examination.
142It is convenient to refer to that cross-examination now.
143It arose from the Listing that Mr Burrell emailed to Mr Madden at 10.55am on 30 March 2016.[118] The Listing contained a summary of the proposed story (in effect, a first draft of the 31 March Article).[119] It was prepared prior to Mr Burrell having had any contact with Dr Jensen on that day.
[118] Exhibit 140.
[119] Ts (20 May 2019) 1594 (Burrell).
144The Listing incudes the plot summary of The Skywarriors that was later to appear in the 31 March article, including reference to the war being between a 'coalition of Indonesia and China' and that the 'Indonesians enlist the aid of China, which sends personnel and equipment'. That description of the plot of The Skywarriors is an accurate one: China does indeed appear as part of the narrative of the book.
145Mr Burrell was taken to the Extract, and, following a brief adjournment to enable him to review it, accepted in cross-examination that there is no reference, at all, to China in the Extract. That is, the Extract, and the other documents identified by Mr Burrell as being contained in the envelope that he received anonymously, could not have supplied the information necessary to write the plot summary referred to in the Listing and in the 31 March Article.
146That plot information (particularly that involving China) relied upon by Mr Burrell therefore must have come from elsewhere.
147When Mr Burrell confirmed this, following the brief adjournment, he proffered the following explanation:[120]
[120] Ts (20 May 2019) 1598-1599 (Burrell).
Can you explain to his Honour how at 10.55 am on 30 March 2016 you were able to write to Mr Madden the document that we have got as exhibit 140?---All I can think of is that there was some sort of synopsis that was attached to this extract of the manuscript that came in this envelope, that I saw that on the day, and it's - and - and then misplaced it soon after because I don't recall seeing a synopsis, but it's - it's the only logical explanation for me being able to say that - you know, for me to be able to give a - a succinct summary here of what the book - the entire book was about. I also recall that Ms Gutierrez from Curtis Brown mentioned in her evidence that they required that each person submitting a book or an extract of a book or - or a manuscript was required to submit a - you know, a cover letter, a synopsis and a few sample chapters - - -
Well, we've got - keep going.
…
THE WITNESS: So all I can think of is that I did have a synopsis on the day.
BENNETT, MR: Well, we've gone through six lists of documents, five affidavits. I've got two more affidavits of discovery to show you, none of which mention this. I've got your affidavit of 8 October, which doesn't mention a synopsis. I've got your witness statement that doesn't mention a synopsis. Your evidence-in-chief and your evidence this afternoon cross-examination - none of which mentioned a synopsis. There's another alternative, isn't there, Mr Burrell? You know who sent the material and you spoke to the person and they told you something?‑‑‑No. No.
You find that amusing, do you?---I have - I find it very amusing because I have no idea who sent it to me.
Well, the only way you could know the plot to be able to summarise it at 10.55 am is if you had read something or you had been told something. Do you accept that?---Yes.
And if you had read something, the eight affidavits - the eight list of documents - seven affidavits of discovery and your affidavit of 8 October 2018 - would have referred to a document, wouldn't it?---I - I don't recall seeing a synopsis, but it's the only logical explanation for the fact that I seemed to know at 10.55, even before speaking to Dr Jensen about what the book is about, that it was actually about - that - that China was involved.
Well, let me go back. You've made every search possible for documents, haven't you?---Yes.
You have put all the documents that came in the orange envelope inside it for storage?---No.
Exhibit 124. Except for two documents, the Gutierrez letter and the extract?---That's correct.
All right. So if there were any other documents, they would be inside the yellow envelope?---Not necessarily. No.
Where else would they be?---I don't know.
Well – so what you want his Honour to believe is that an undiscovered document that you don't remember ever seeing it – seeing must be the source of your special knowledge?---I say that because I know that I didn't speak to anyone about it one – with 100 per cent certainty. I've summarised the plot here. …
148It is this evidence (and further cross-examination in relation to the issue) that Dr Jensen submitted revealed a 'conscious and deliberate lie' on the part of Mr Burrell: a 'monstrous lie' to conceal that Mr Burrell knew the identity of the person who sent the material and that he was 'consciously and deliberately' involved in the publication of material damaging to Dr Jensen's reputation and fatal to his prospects of achieving preselection. In this regard, Dr Jensen submitted, Mr Burrell (or the source of the information) came up with the idea of an anonymous package to protect the source's identity.[121]
[121] See Plaintiff's Submissions dated 23 May 2019 [1], [5], [20], [28].
149Needless to say, this is a submission of the utmost gravity, alleging, in effect, an elaborate fraud upon the Court. If accepted, it would, as Dr Jensen submitted, provide overwhelming evidence of malice on the part of the defendants.
150Whether that has been established I shall address later. It suffices to note, however, that whatever be the conclusion in that regard, this aspect of Mr Burrell's cross-examination will be relevant to the assessment of the reliability of his account of the events leading to the publication of the 31 March publications.
151Turning then to Dr Jensen's evidence as to his conversation with Mr Burrell.
Dr Jensen's evidence as to the conversation with Mr Burrell
152Dr Jensen gave evidence that he first became aware of Mr Burrell's interest in The Skywarriors when he received a phone call from Mr Conway on 30 March 2016 advising that Mr Burrell had called. Dr Jensen said it was in the middle of the afternoon.
153Dr Jensen called Mr Burrell and (in what he also recalled as one conversation) recounted it as follows:[122]
Can you tell his Honour the - your recollection of the conversation as best you can?---Yes. Mr Burrell said to me, "I believe that you wrote a book about a war between Australia, Indonesia and China," and I said, "Yes, I did." And then he said, "I hear that you wrote that during the parliamentary term," and I said, "No, I didn't. I wrote it prior to Parliament." And he said, "And you sent it seeking publication," and I said, "No, I did not." And he said, "Yes, you did. I've got proof that you did." I asked him about the proof and he said - he didn't say what the proof was, but he said that, "Don't assume that" - I can't remember if he said literary agent or publisher, "Don't assume that they are the ones that leaked to me." He also said, "Do you think that it is proper that a Member of Parliament be writing and seeking to publish a book with a fictitious war against two large and important nations in our region?" And I said, "No, I don't. I don't think it was appropriate." He asked me if my views on that had changed and I said "yes". I - what was the other thing that was - yes. So I also - I was somewhat nonplussed, your - your Honour. I couldn't see where this was going and I said, "Well, this must have something to do with preselection," and I got no response on that from Mr Burrell. And I said, "Well, what's this about? What - what it's going to be?" And he said, "I don't know if it's going to get published, but it will just be something light-hearted." So there were certainly no red flags in my mind. It - I thought that it would be something that would be maybe a somewhat embarrassing laugh in something like the Strewth section of the paper, but beyond that, I really - I couldn't see where it was going.
[122] Ts (13 May 2019) 979-980 (Jensen).
154Two aspects of this account were developed further in Dr Jensen's evidence‑in-chief.
155In relation to his initial denial of having sent the book seeking publication, Dr Jensen said that his recollection was that, while he had considered seeking to have the book published in 2007, following the strong advice from his staff not to do so, it had not been sent.[123] His explanation for having agreed with Mr Burrell that he had sent it was as follows:[124]
Well, when he had first confronted - when he first said, "You sent the book for publication." I said, "No, I didn't," because that was my firm recollection. But he said that he had proof that he did and I accepted that, you know, being the experienced journalist with The Australian that he was, that he would have done the due diligence and made sure that, yes, I had sent it. I also - I also know that with a lot of these types of things, that it is the denial that gets you more than the actual thing itself. And I was very much aware that I was in a preselection. So although my recollection firmly was that I hadn't sent it. I couldn't be 100 per cent sure nine years later. So I accepted his assertion. I wasn't obviously happy to accept the assertion, but I accepted it.
[123] Ts (13 May 2019) 980 (Jensen).
[124] Ts (13 May 2019) 981 (Jensen).
156Secondly, in relation Dr Jensen's reference to there being no 'red flags' arising from the conversation with Mr Burrell, Dr Jensen gave evidence that when he ultimately saw the 31 March Article, his reaction was, in part, due to matters that were not discussed with him. He said:[125]
… The sex wasn't discussed. The letterhead wasn't discussed. I mean, either of those would have been red flags to me because I would have known straightaway where the article was going. After - after 11 years of political experience, you certainly develop a bit of a - an instinct for something like that and certainly letterhead and sex are two things that, obviously, are going to have great impact now. As I said the previous day, there had been no red flags. I had even forgotten about the sexing. I mean, it was nine years prior and I hadn't revisited the book.
[125] Ts (13 May 2019) 985 (Jensen).
157Dr Jensen was challenged in cross-examination in relation to his recollection as to whether he in fact sent the Curtis Brown letter. I will return to that evidence later in relation to the defence of truth to the parliamentary letterhead imputation.
158As to whether Mr Burrell had referred to a parliamentary letterhead in their telephone conversation, Dr Jensen remained adamant that it had not been referred to:[126]
When Andrew Burrell, rang you, he said this to you, didn't he, or to this effect, "I have a letter in front of me signed by you on your Parliamentary letterhead to literary agent Curtis Brown asking for your book to be published in 2007". He said that to you, didn't he?---No, he did not. He said that he had proof of sending – proof that I had sent the book to a literary agent – for a start, letterhead. I was – as I've said in my evidence, I was really nonplussed and confused about what the angle with this story was going to be. I mean, if the word "letterhead" had been mentioned, do you think I would be asking Mr Burrell at the end of it what is the story about, only to be told, "Well, it's a light-hearted – it will be a light-hearted piece. Don't know if it will be published".
And you said, I suggest to you, words to Mr Burrell to this effect, "Yes. I did send that letter"?---No. I didn't say I sent a letter. I accepted that I had sent a copy of the manuscript. There was no discussion of a letter and there was no discussion of letterhead.
[126] Ts (14 May 2019) 1120 (Jensen).
159In relation to this dispute as to whether Mr Burrell referred to the parliamentary letterhead, there is an aspect of Dr Hoad's evidence that may be relevant to that issue.
Dr Hoad's evidence in relation to the 31 March article
160Dr Hoad gave evidence in relation to her observations of Dr Jensen when they first became aware of the 31 March Article.
161In her evidence-in-chief, Dr Hoad was asked:[127]
And did you observe any reaction on the part of Dr Jensen?---Dennis was furious. He said, "Now, I can see where the journalist was going. Yesterday when he called me he neglected to tell me anything about publishing a sex scene or the fact that he suggested I had sent this to be published to a literary agent on Parliamentary letterhead." He said, "When he rang me yesterday, he simply asked whether I had written a book about a fictitious war between Australia and Indonesia and China." He said none of the other stuff was asked or mentioned. He said, "Now, I have some understanding of where Mr Burrell was going with this."
[127] Ts (15 May 2019) 1261 (Hoad).
162This, of course, amounts to a contemporaneous account of Dr Jensen's reaction to the 31 March Article. Dr Hoad's evidence that Dr Jensen said, on 31 March 2016, that Mr Burrell had not said anything about the parliamentary letterhead is consistent with Dr Jensen's evidence at trial.
163This evidence was received without objection and was not the subject of cross-examination. I note the lack of objection because it might have been argued that the statement was strictly inadmissible as a prior consistent statement, although it might also be sufficiently contemporaneous to be admissible as part of the res gestae.[128]
[128] R v Dawes [1992] 2 Qd R 435, 436-437 (McPherson SPJ).
164At any rate, the unchallenged evidence would be admissible to rebut any suggestion of recent invention on Dr Jensen's part.
Assessment of witnesses' evidence
165In making findings as to the events leading up to the publications, and in particular in relation to Mr Burrell's conversations with Mr Conway and Dr Jensen on 30 March 2019, it is necessary that I set out some general observations in relation to the evidence of Dr Jensen, Dr Hoad and Mr Burrell.
Assessment of Dr Jensen as a witness
166Dr Jensen initially gave evidence over approximately 2.5 days from 13 May 2019 to 15 May 2019. On 3 July 2019, the defendants applied for leave to reopen the trial for the purposes of further cross-examination. I allowed that application[129] and Dr Jensen was further cross-examined on that day.
[129] Jensen v Nationwide New Pty Ltd[No 12] [2019] WASC 250.
167Dr Jensen was reasonable and measured in his evidence in chief, albeit that he could be garrulous in some of his answers. In cross-examination, there were occasions upon which Dr Jensen was defensive or indignant. That defensiveness meant that, on occasion, his answers were expressed with a greater certainty and force than was appropriate in the circumstances. An example of this was Dr Jensen's response to cross-examination in relation to this attack, on Twitter, of a high school principal in relation to whom he had a sense of grievance.[130]
[130] Ts (15 May 2019) 1189-1193 (Jensen).
168This and other instances[131] suggest that Dr Jensen can, at times, be given over to a sense of righteous indignation, a personality trait that appeared to be on display to a number of the preselectors on 3 April 2016, who variously gave evidence that he was hectoring, arrogant and aggressive.[132] While I accept this to be the case, it did not adversely affect my view of Dr Jensen's credibility generally.[133] In particular, I find that Dr Jensen was, generally, an honest witness and, save for the two matters referred to below, was generally reliable in his account of the events in relation to which he gave evidence.
40.5 on or about 31 March 2016 at 1:01pm, the Second Defendant wrote and the Defendants published on The Australian Website and the Plaintiff read the article entitled "Dennis Jensen admits mistakes over attempt to publish steamy novel" (with a hyperlink to this electronic publication having also been published by the Second Defendant on or about 30 March 2016 at 7:33pm on his Twitter Page) which article commented upon and reproduced the following extracts of the Plaintiff's book and was therefore conduct calculated to embarrass and humiliate the Plaintiff in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book:
...
The novel contains some surprisingly graphic sex scenes. One of the female protagonists has breasts "as firm as they had been in her late teems" and moans in delight as her lover gropes "her inner thigh until he felt the warn [sic] wetness with hand". "She pulled his trousers off, ripped the underpants off excitedly, and took him in her mouth," Dr Jensen writes. ...
40.6 on or about 1 April 2016, the First Defendant published and the Plaintiff read:
40.6.1 at page 13 of The Australian Newspaper the article entitled "Strewth!";
40.6.2 on The Australian Website the article entitled "Strewth: the steamy age of Dennis Jensen" (being the same article referred to in the preceding sub-paragraph but with an alternative heading);
which article commented upon and reproduced the following extract from the Plaintiff's book and was therefore conduct calculated to embarrass and humiliate the Plaintiff in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book:
Strewth has yet to recover from our colleague Andrew Burrell's revelations yesterday about Liberal MP Dennis Jensen's novel The Sky Warriors and its tracts of erotica. Exhibit A: "She pulled his trousers off, ripped the underpants off excitedly, and took him in her mouth." ...
40.7 on or about 3 April 2016 at 1:58pm, the Second Defendant wrote and the Defendants published on The Australian Website, and the Plaintiff read, the article entitled "Dennis Jensen loses preselection for Tangney" (with a hyperlink to this electronic publication having also been published by the Second Defendant on or about 2 April 2016 at 9:21pm on his Twitter Page and also by re-tweet) which contained the following hyperlink to the 31 March 2016 Internet Article the effect of which was to perpetuate the 31 March 2016 Internet Article:
...
The Australian revealed last week that Dr Jensen used his parliamentary letterhead to spruik a racy novel he wrote about Australia going to war with Indonesian and China
...
and included the following comment in respect of the Plaintiff's book and was therefore conduct calculated to embarrass the Plaintiff in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book:
…
The novel also contains a graphic sex scene.
...
40.8 on or about 3 April 2016 at 4:27pm, the First Defendant published on The Australian Website the article entitled "Jensen misses out on Tangney preselection", which article contained the following comment in respect of the Plaintiff's book and was therefore conduct calculated to embarrass and humiliate the Plaintiff in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book:
Liberal pre-selectors have dumped West Australian MP Dennis Jensen as the candidate for Tangney after extracts from a novel he wrote containing graphic sex scenes were publicly leaked.
...
40.9 on or about 4 April 2016, the Second Defendant wrote and the Defendants published and the Plaintiff read:
40.9.1 at page 4 of The Australian Newspaper the article entitled "Liberal MP storms out after losing preselection";
40.9.2 on The Australian Website the article entitled "Liberal MP Dennis Jensen storms out after losing preselection" (with a hyperlink to this electronic publication having also been published by the Second Defendant on or about 3 April 2016 at 5:03pm on his Twitter Page);
which article contained the following comment in respect of the Plaintiff's book and was therefore conduct calculated to perpetuate the defamatory allegations and embarrass and humiliate the Plaintiff in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book:
...
The Australian revealed last week that Dr Jensen used his parliamentary letterhead to spruik a racy novel he wrote about Australia going to war with Indonesia and China.
...
40.10 on or about 4 April 2016, the First Defendant published and the Plaintiff read:
40.10.1 at page 9 of The Australian Newspaper the article entitled "Strewth!";
40.10.2on The Australian Website the article entitled "Strewth: sweating ballots" (being the same article referred to in the preceding sub-paragraph but with an alternative heading);
which article made the following comment in respect of the Plaintiff's book and was therefore conduct calculated to embarrass and humiliate the Plaintiff in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book:
Dennis Jensen was excited, but he was nervous, too. Everything had led to this very moment for the Liberal MP, but even with the blood roaring in his veins, his nerve endings tingling with electricity, his heart pumping away like Errol Flynn on a free weekend, he was unable to stop wondering: could he attain a preselection? His breath quickening, he reached out to feel his support, hoping it would be firmer than it had been in past years when he'd needed an emergency dose of John Howard and state executive to get up. "Do it now, please," shouted the voice in his head in a frenzy of longing, "don't wait any longer!" Then someone else's voice — altogether calmer — sounded in the room: "Anyone for Dennis?" Alas for Jensen, the answer proved to be almost entirely "no".
...
40.11 on or about 4 April 2016 at 11:52am, the First Defendant published on The Australian Website, and the Plaintiff read, the article entitled "Dennis Jensen can only blame himself for losing preselection: Michael Kroger" (with a hyperlink to this electronic publication having also been published by the Second Defendant on or about 3 April 2016 at 7:48pm on his Twitter Page) which contained the following hyperlink to the 31 March 2016 Internet Article the effect of which was to further publish or attempt to publish the 31 March 2016 Internet Article:
...
After losing yesterday's preselection ballot by a 57-7 landslide, Dr Jensen yesterday alleged a "smear campaign" against him and threatened legal action over revelations in The Australian that he used his parliamentary letterhead to spruik a racy novel he wrote about Australia going to war with Indonesia and China.
...
and included the reference to the Plaintiff's "racy novel", being conduct calculated to embarrass and humiliate the Plaintiff in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book.
40.12 on or about 4 April 2016 at 5:48pm, the First Defendant published on The Australian Website, and the Plaintiff read, the article entitled "WA Liberal MP sues over 'smut' reports", which article contained the following comment in respect of the Plaintiff's book and was therefore conduct calculated to embarrass and humiliate the Plaintiff and deter him from prosecuting this within action in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book:
...
The loss came after The Australian newspaper reported racy extracts from a novel the MP penned in 2002, then claimed he had recently left his family home within the electorate to live with his new girlfriend.
...
40.13 on or about 5 April 2016 the Second Defendant wrote and the Defendants published, and the Plaintiff read:
40.13.1at page 5 of The Australian Newspaper the article entitled "Liberal factions brawl over Kroger campaign to take control"; and
40.13.2 on The Australian Website the article entitled "Dennis Jensen turns on party after losing preselection battle" (being the same article referred to in the preceding sub-paragraph but with an alternative heading);
which article contained the following comment and was therefore conduct calculated to publicly suggest that there was no substance to the Plaintiff's action and thereby deter him from prosecuting the within action:
...
Dr Jensen yesterday sued The Australian over the reports, which he claimed had led WA Liberal Party powerbroker Nick Goiran, the leader of the Christian Right, to withdraw support for his preselection.
The Australian intends to defend the suit.
...
40.14 on or about 6 April 2016, the First Defendant published, and the Plaintiff read:
40.14.1 at page 11 of The Australian Newspaper the article entitled "Strewth!";
40.14.2 on The Australian Website the article entitled "Strewth: Dennis Jensen office's position vacant" (being the same article referred to in the preceding sub-paragraph but with an alternative heading);
which article made the following comment in respect of the Plaintiff's book and was therefore conduct calculated to embarrass and humiliate the Plaintiff in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book:
It's possibly not the job with the greatest level of security in the world given that preselection misfortune the other day, but Dennis Jensen – the Liberal MP and noted author of thrillers with incidental steamy bits – is advertising for an electorate officer.
The probation period is optimistically set at three months but, on the plus side, the job does, a bit like Jensen's fiction, call for "excellent oral and written communication skill".
40.14A on 7 April 2016, the Plaintiff requested an apology from the Second Defendant and the Second Defendant refused, as set out in the following text message exchange:
40.15 on or about 8 April 2016 the Second Defendant wrote and the Defendants published, and the Plaintiff read:
40.15.1 at page 4 of The Australian Newspaper the article entitled "Jensen: his love, she wrote them a letter"; and
40.15.2on The Australian Website the article entitled "Dennis Jensen preselection: his love, she wrote them a letter" (being the same article referred to in the preceding sub-paragraph but with an alternative heading and with a hyperlink to this electronic publication having also been published by the Second Defendant on his Twitter Page on or about 7 April 2016 at 3:27pm and on or about 7 April 2016 at 5:12pm);
the text of which is set out below, which article was calculated to publicly debate and question the Plaintiff's action against the Defendants and thereby improperly attempt to deter him from prosecuting the within action:
Liberal Party members in the blue-ribbon West Australian seat of Tangney were told last month that federal MP Dennis Jensen had split from his wife and started a new relationship, undermining his claim that media coverage caused the influential Christian Right to abandon him.
It has emerged that Dr Jensen's girlfriend, Trudy Hoad, took the unusual step of writing to all Liberal preselectors about the MP's strengths as a politician and to detail his marriage breakdown.
Dr Jensen claims Christian preselectors withdrew their support for him after a story in The Australian last week noted that he had split up with his wife and no longer lived in Tangney.
The inference in the story would have been "very distasteful" to Christians, he said.
He claimed the vote had previously been on a "knife edge" and the story caused him to be dumped at last Sunday's preselection vote.
However, the letter obtained by The Australian this week shows Ms Hoad had already provided Liberal preselectors with confirmation of Dr Jensen's new living arrangements.
In the letter, she details the MP's divorce from his former wife and describes him as "my partner in life" and a man of integrity, strength and honesty.
"Dennis's other passion, I soon realised, was his family and the concept of family, and very sadly for him his family had been torn apart by divorce, something he had not initiated, never envisaged and would never have countenanced," she wrote last month. "Despite his obvious grief over the demise of his marriage and separation of the family, Dennis showed great strength and was always positive about his situation."
Ms Hoad wrote of her deep love and admiration for Dr Jensen. "For any of you who still don't know, aside from having a seriously 'good' man as your representative in Tangney, you have a smart, thinking, deeply analytical and committed person who will always seek to deal with the important issues on the minds of constituents, even at the risk of his own career prospects."
Former Liberal Party state director Ben Morton won the Tangney preselection vote 57-7, sparking Dr Jensen's claims that he lost only because of a "smear campaign" against him.
An earlier article in The Australian revealed that Dr Jensen had used parliamentary letterhead to spruik a novel he had written about Australia going to war with Indonesia and China, which included descriptions of graphic sex.
Senior figures in the Liberal Party have dismissed Dr Jensen's complaints.
This week, Victorian powerbroker Michael Kroger said the MP had only himself to blame for his resounding loss and that the media reports had "nothing to do with the result".
"It does surprise me that members of parliament — not just Dennis, but many members of parliament — think they have a job for life, and they don't," he said.
It was the third time Liberal members in Tangney have rejected Dr Jensen. In 2006, John Howard intervened to save him after he lost preselection. Three years later, he was saved by the Liberal Party state council.
Last weekend's preselection vote is strongly expected to be endorsed by the Liberal Party state council on Saturday, spelling the end of Dr Jensen's career after 12 years in federal parliament. Dr Jensen yesterday declined to comment.
40.16 on or about 13 April 2016, the First Defendant published, and the Plaintiff read:
40.16.1at page 5 of The Australian Newspaper the article entitled "Jensen's 'rattling yarn' on Amazon"; and
40.16.2on The Australian Website the article entitled "Dennis Jensen selling his 'rattling yarn' on Amazon for $6.51" (being the same article referred to in the preceding sub-paragraph but with an alternative heading);
the text of which is set out below, which article was calculated to denigrate the Plaintiff and improperly attempt to deter the Plaintiff from prosecuting the Plaintiff's action against the Defendants:
Disendorsed Liberal MP Dennis Jensen has launched Skywarriors, the "rattling, fast-paced yarn" he once did not want to be linked to, and is inviting Australians to get to know its "red-blooded characters" by paying $6.51 on Amazon.
The MP for Tangney said it was surprisingly easy to self-publish on Kindle, and he chose as the cover art a photograph of himself in an F-18 taken at the Williamtown RAAF base in 2009 while on an attachment for parliamentarians who wanted to familiarise themselves with the Australian Defence Force.
The Australian revealed last month Dr Jensen used his parliamentary letterhead in 2007 to seek a publishing deal for what he described as his "controversial" first book about a fictional war between Australia and a coalition of Indonesia and China.
Dr Jensen claimed that graphic sex in the book was used by The Australian to make him out as "a purveyor of smut". He also claimed Christian preselectors withdrew their support for him after The Australian noted he had split up with his wife and no longer lived in Tangney.
However, preselectors were already aware of his living arrangements because Dr Jensen's partner, Trudy Hoad, earlier wrote a letter detailing his marriage breakdown and highlighting his qualities.
Liberal preselectors this month chose the party's former state director Ben Morton to contest Tangney at the next federal election. The vote was 57-7.
Yesterday, Dr Jensen reflected on what went wrong between him and his party colleagues. Without regret, he said he did not do some of the unpleasant things that "unfortunately are way too much part of the job" of a parliamentarian. "I was a good member, when you have a look at the election results it clearly shows that," he said.
"But what I wasn't so great at was branch-stacking and massaging overgrown Liberal office bearers' egos."
Dr Jensen has launched legal action against The Australian over reports published ahead of his preselection contest. The Australian is defending the suit.
40.17 on or about 9 May 2016 at 5:37pm the Second Defendant wrote and the Defendants published at 5:37pm on The Australian Website, and the Plaintiff read, the article entitled "Federal election 2016: Dennis Jensen to contest WA seat of Tangney" (with a hyperlink to this electronic publication having also been published by the Second Defendant on or about 9 May 2016 at 12:41am on his Twitter Page), an extract of which is set out below, which article was calculated to publicly denigrate the Plaintiff's action against the Defendants and thereby improperly attempt to deter the Plaintiff from prosecuting the within action:
...
The Australian revealed last month Dr Jensen used his parliamentary letterhead in 2007 to seek a publishing deal for what he described as his "controversial" first book about a fictional war between Australia and a coalition of Indonesia and China. Dr Jensen claimed that graphic sex in the book was used by The Australian to make him out as "a purveyor of smut". He claimed Christian preselectors withdrew their support for him after The Australian noted he had split up with his wife and no longer lived in Tangney. However, preselectors were already aware of his living arrangements because Dr Jensen's partner, Trudy Hoad, earlier wrote a letter detailing his marriage breakdown and highlighting his qualities. Liberal preselectors chose Mr Morton over Dr Jensen by 57 votes to seven. Dr Jensen has launched legal action against The Australian over the reports. The Australian is defending the suit.
40.18 on or about 10 May 2016, the First Defendant published, and the Plaintiff read:
40.18.1at page 13 of The Australian Newspaper the article entitled "Strewth!"; and
40.18.2 on The Australian Website the article entitled "Strewth: Bill Shorten is going the triple" (being the same article referred to in the preceding sub-paragraph but with an alternative heading);
which article made the following comment in respect of the Plaintiff's book and was therefore conduct calculated to embarrass and humiliate the Plaintiff in circumstances where the only sexualised excerpt from the book comprised 157 words out of a 69,000 word book:
...
... In the meantime, don't forget Jensen's novel The Skywarriors (a "thriller with incidental steamy bits" — Strewth, April 6) is available for download at Amazon for just $6.51. There are only two reviews so far, but both give it five stars. "The writing is breathtaking in much the same way as carbon monoxide is breathtaking," says one. The other is a little more wholehearted: "I love it!!!"
40.19on or about 11 August 2017, the Second Defendant co-wrote and the Defendants published, and the Plaintiff read:
40.19.1at page 5 of The Australian Newspaper the article entitled "ExLib MP defects to Bernardi"; and
40.19.2on The Australian Website the article entitled "Ex-Liberal MP Jensen defects to Bernardi's New Party" (being the same article referred to in the preceding sub-paragraph but with an alternate heading and with a hyperlink to this electronic publication having also been published by the Second Defendant on his Twitter Page on or about 11 August 2017 at 8:06 am);
an extract of which is set out below, which part of the article was calculated to publicly denigrate the Plaintiff's action against the Defendants and thereby improperly attempt to deter the Plaintiff from pursuing the within action:
"[The Plaintiff] has launched legal action against The Australian over reports published ahead of his preselection contest last year. The Australian is defending the suit.
Dr Jensen's legal action includes his claims that a story that described graphic sex in a book he wrote was used by The Australian to make him out as "a purveyor of smut"."
40.20 on 12 December 2017 the Defendants filed a Further Amended Defence and Counterclaim by which they pleaded defences of truth at common law and justification under section 25 of the Defamation Act 2005 (WA) and provided particulars by which the Defendants, without foundation:
40.20.1made various assertions of knowledge, awareness and state of mind on the part of the Plaintiff;
40.20.2referred to plural 'sexual scenes' and 'sexually charged passages' in the Plaintiff's book, The Sky Warriors;
40.20.3alleged that the Plaintiff sent a letter to Curtis Brown (Australia) Pty Ltd (Curtis Brown) notwithstanding:
(a)Curtis Brown's letter to the Supreme Court dated 20 October 2017;
(b) Curtis Brown's log of manuscripts submitted in 2007;
(c) Bennett + Co's letter to Macpherson Kelly dated 24 October 2017,
each of which identified that Curtis Brown did not have any record of any work submitted to them by the Plaintiff or entitled 'The Sky Warriors' and that had such a work been submitted Curtis Brown would have had such a record;
40.20.4alleged, by use of the words 'among others', that the Plaintiff had sent the letter to other prospective publishers;
40.20.5alleged, by use of the plural words 'conversations and discussions with publishers or prospective publishers … promoting his book', that the Plaintiff had contacted multiple publishers or prospective publishers;
40.20.6alleged that the Plaintiff 'purported to live at a rental property in Booragoon';
40.21 on 21 May 2018, the Defendants purported to file a Second Further Re-Amended Defence and Counterclaim by which they pleaded defences of truth at common law and justification under section 25 of the Defamation Act 2005 (WA) and provided particulars by which the Defendants maintained the allegations identified in sub-paragraphs 40.20.3, 40.20.4 and 40.20.5, hereof and further alleged that the Plaintiff "held himself out as residing in the seat of Tangney in a Booragoon property";
40.22 on 29 May 2018, the Defendants purported to file a Third Further ReAmended Defence and Counterclaim by which they pleaded defences of truth at common law and justification under section 25 of the Defamation Act 2005 (WA) and provided particulars by which the Defendants maintained the allegations identified in sub-paragraphs 40.20.3, 40.20.4, 40.20.5 and 40.21, hereof; 40.23 on 12 June 2018, the Defendants filed a Substituted Defence and Counterclaim by which they pleaded defences of truth at common law 38 Statement of Claim and justification under section 25 of the Defamation Act 2005 (WA) and provided particulars by which the Defendants maintained the allegations identified in paragraphs 40.20.3, 40.20.4, 40.20.5 and 40.21, hereof.
40.23 the Defendants wrote the articles in the terms and manner in which they did despite having in their possession only 50 pages of the book, The Sky Warriors;
40.24the Defendants wrote the 31 March Publications and 1 April Publications with the intention of causing political damage to the Plaintiff for the benefit of Mr Ben Morton;
Particulars
The Defendants' intention is evidenced by alternatively to be inferred from:
(i)the Defendants' failure to identify, in the articles or in the proceedings, the source of the information the subject of the articles;
(ii)the sensational terms in which the articles were written;
(iii)the articles' reference to Christian voters;
(iv) the juxtaposition of the Plaintiff's living arrangements with Mr Morton's living arrangements within the 1 April Publications;
(v)the Defendants' conduct in publishing subsequent articles of and concerning the Plaintiff and the subject matter of the articles, namely the subsequent articles pleaded in paragraphs 40.5 to 40.19 hereof;
(iv) the Defendants not seeking legal advice as to the content of the articles which were on their face defamatory;
(v)the Second Defendant's text messages with a person unknown to the Plaintiff on 30 March 2016 by which the Second Defendant:
(a) sent a picture of a page of the draft of the book that featured the sex scene to the person;
(b) informed the person that the story to be published about Dr Jensen (i.e. the 31 March Publications) would "run big tomorrow", notwithstanding the matter pleaded at paragraph 3.2.3(c) hereof; and
(c) asked the person to keep the story secret.
(d) requested the Plaintiff's address from the person;(e) informed the person that he had been told that the defendants were sending a photographer to photograph the Plaintiff;
(f) sought information regarding the Plaintiff's marital status from the person.
Further particulars may be provided after further discovery is given and in any event prior to trial.
40.25the Defendants failed to make any enquiry of Ms Victoria Gutierrez or Curtis Brown prior to publishing the 31 March Publications and 1 April Publications;
40.26the Defendants failed to make any enquiry of the Plaintiff regarding his living arrangements before publishing the 1 April Publications;
40.27the Defendants failed to make any enquiry of the Plaintiff's then partner (now wife), Dr Trudy Hoad (now Dr Trudy Jensen) regarding her living arrangements before publishing the 1 April Publications;
40.30Ms Victoria Laurie, a journalist employed by the First Defendant and Ms Paige Taylor, a journalist employed by the Second Defendant, avoiding service of subpoenas issued by the Plaintiff;
40.31on or about 25 November 2018, the First Defendant published, and the Plaintiff read, at page 5 of The Australian Newspaper an article entitled "Journo's sources ruled off limits" and on The Australian Website an article entitled "Journo's sources ruled off limits in case linked to former MP", which article, notwithstanding the Plaintiff denies using his parliamentary letterhead to promote his book, contained the following statements which repeated the substance of the 31 March Publications:
"Dr Jensen is suing Burrell and Nationwide News (publisher of The Australian) over articles published in 2016 that said Dr Jensen had written a novel containing a "surprisingly graphic" sex scene, had used his parliamentary letterhead in an attempt to have it published and wrote to a literary agent stating that his identity was to remain a closely guarded secret. Burrell, who is The Australian's chief reporter in Western Australia, also wrote that Dr Jensen had left the family home to live with his new girlfriend, had admitted it was wrong to use parliamentary letterhead to promote the publication of his book and conceded he should not have used official stationery to send sample chapters to literary agents."
and was therefore conduct calculated to embarrass and humiliate the Plaintiff and to publicly suggest that there was no substance to the Plaintiff's action;
40.32on or about 25 November 2018, the Second Defendant:
40.32.1 tweeted a link to the online version of the article with the comment "Journos sources off limits."; and
40.32.2 retweeted a tweet by Ms Taylor which linked to the online version of the article, by which the Second Defendant sought to attract and attracted publicity to the article and was therefore conduct calculated to embarrass and humiliate the Plaintiff and to publicly suggest that there was no substance to the Plaintiff's action;
40.33in circumstances where the Plaintiff filed and served his witness statement on 10 October 2018 and in that statement disclosed that he felt that his daughter Madeline Ruby Jensen had lost respect for the Plaintiff as her father as the Plaintiff did not have a job and because of the way the Plaintiff had been made out in the media but had not been able to discuss this with Madeline:
40.33.1 filed and served on 5 November 2018 a witness statement of Madeline Ruby Jensen in which she gave detailed personal reasons as to why she did not have a good relationship with the Plaintiff as her father;
40.33.2by email letter sent 12 November 2018 at 12.19pm from the Defendants' solicitors to the Plaintiff's solicitors (which letter came to the attention of the Plaintiff) wrote:
"We refer to our client's witness statements.
We request that you remind your client not to attempt to send any messages to our clients' witnesses discouraging them to give evidence, and that any such actions would constitute a contempt of Court."
40.33.3such letter having the effect that the Plaintiff considered himself unable to contact his daughter thereafter until the trial of the within matter;
40.33.4on 15 March 2019 whilst the Plaintiff was in cross-examination the Defendants informed the Court that they did not intend to call Madeline Ruby Jensen to give evidence at the trial; which conduct caused the Plaintiff hurt and distress in that the Plaintiff considered that such conduct compromised his ability to restore any parental loving relationship with his daughter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BC
Principal Associate to the Honourable Chief Justice Quinlan
19 DECEMBER 2019
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