Lazos v West Australian Newspapers Ltd [No 2] - [2024] WASC 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   LAZOS -v- WEST AUSTRALIAN NEWSPAPERS LTD [No 2] [2024] WASC 238
CORAM:   TOTTLE J
HEARD:   29, 30, 31 JANUARY 2024
DELIVERED          :   5 JULY 2024
FILE NO/S:   CIV 1404 of 2020
BETWEEN:   PETROS LAZOS
Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD
Defendant

Catchwords:

Defamation - Newspaper article - Imputation - Defamatory meaning conveyed by article - Article conveyed the plaintiff was dishonest in his conduct as a government official

Defamation - Defences - Fair summary of public documents and fair report of proceedings of public concern - Whether fairness to be assessed by reference to the entire matter published or the defamatory aspects only - 'Matter' is understood as the matter to the extent to which it gives rise to defamatory imputations

Defamation - Defence - Fair summary of public documents - Consideration of meaning of 'public document' - Email from government spokesperson to journalist not a public document

Defamation - Defence - Fair summary of public document - Matter not a summary of a public document where matter does not bear the character of a summary of a public document

Defamation - Defence - Fair summary of public document - Fairness compromised by the inclusion of other material

Defamation - Defence - Fair report of proceedings of public concern – Where matter does not bear the character of a report of proceedings - Where summary of multiple proceedings taken in combination compromises fairness

Defamation - Defence - Common law qualified privilege - Mass media publication - No reciprocity of duty and interest

Defamation - Defence - Lange qualified privilege - Reasonableness of conduct - Where conduct in publishing the matter was unreasonable

Defamation - Defence - Statutory qualified privilege - Reasonableness of conduct - Where conduct in publishing the matter was unreasonable

Defamation - Damages - Damage to reputation presumed - Hurt and distress - Where hurt and distress caused to family members compounds hurt and distress felt personally

Defamation - Damages - Aggravated damages - Damage aggravated by continuation of publication of article to time of trial

Legislation:

Defamation Act 2005 (SA)
Defamation Act 2005 (Vic)
Defamation Act 2005 (WA)
Magistrates Court Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett & Dr M Douglas
Defendant	:	Mr R Anderson KC & Mr P McCarthy

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Steedman Stagg

Cases referred to in decision:

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37
Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9
Anderson v Nationwide News Pty Ltd (1964) 64 SR (NSW) 376
Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225
Bazzi v Dutton [2022] FCAFC 84; (2022) 289 FCR 1
Blackshaw v Lord [1984] QB 1
Bristow v Adams [2012] NSWCA 166
Burchett v Kane [1980] 2 NSWLR 266
Campbell v Associated Newspapers Ltd (1948) 48 SR (NSW) 301
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] UKHL 3; AC 1027
Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1Qd R 89
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44; 386 ALR 36
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Costello & Abbott v Random House Australia Pty Ltd (1999) 137 ACTR 1
Crampton v Nugawela (1996) 41 NSWLR 176
Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325, 99 NSWLR 173
Curistan v Times Newspapers Ltd [2008] EWCA Civ 432
Defteros v Google LLC [2021] VSCA 167
Dingle v Associated Newspapers Ltd [1964] AC 371
Evatt v Nationwide News Pty Ltd [1999] NSWCA 99
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Feldman v Nationwide News Pty Ltd [2020] NSWCA 260; (2020) 103 NSWLR 307
Feldman v Polaris Media Ltd [No 2] 2018 NSWSC 1035
Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56
Google Inc v Duffy (2017) 129 SASR 304
Griffıth v Australian Broadcasting Corporation [2010] NSWCA 257
Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687
Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Jensen v Nationwide News Pty Ltd & Anor [No 13] [2019] WASC 451
John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291
John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 [25]; (2003) 77 ALJR 1657
Kimber v Press Association Ltd [1893] 2QB 65
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lewis v Daily Telegraph Ltd [1964] AC 234, 258; [1963] 2 All ER 151
Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VCSA 104
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Nasif v Seven Network (Operations) Ltd [2021] FCA 1286
Nationwide News Pty Ltd v Rogers [2002] NSWCA 71
President of the Legislative Council of Western Australia v Corruption and Crime Commission [No 2] [2021] WASC 223
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Roberts v Bass [2002] HCA 57; [2002] 212 CLR 1
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195
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) 182 CLR 211
Stocker v Stocker [2020] AC 593
Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Wagner v Harbour Radio Pty Ltd [2018] QSC 201
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Wraydeh v Fairfax Media Publications Pty Ltd [2021] NSWCA 153

TOTTLE J:

Introduction

The plaintiff, a former junior officer in the public service, sues for damages for defamation. The action arises from the publication by the defendant of articles about the plaintiff in three editions of the Weekend West newspaper on Saturday, 6 April 2019. Those editions were the print edition, an online subscriber edition, and an edition separately available online at The West Australian website. An image of the article as it appeared in the print edition is reproduced in appendix A.[1]
[1] Exhibit 46.
The online article was first made available for downloading on 6 April 2019 and was still available to be downloaded at the time of the trial. The content of the online article is not materially different from the content of the print and online subscriber editions. The online article is reproduced in appendix B to these reasons.[2] Unless it is necessary to distinguish between them, I will refer to the articles as 'the Article'.
[2] Exhibit 52.

The evidence

The plaintiff's case was supported by his own evidence and evidence given by his brother Mr Konstantinos (Kosta) Lazos. The plaintiff's evidence was directed primarily to supporting his claim for damages. The plaintiff was the subject of extensive cross‑examination during which his credit was challenged. I comment on the plaintiff's credit when dealing with the damages issue.
The defendant called Mr Peter de Kruijff, the author of the Article, Mr Peter Law, who was newspaper's Chief of Staff, Mr Mark Mallabone who was the Deputy Editor, Mr Troy de Ruyter, who was the Night Editor, and Mr Anthony De Ceglie, the defendant's Editor‑in‑Chief. Unlike the other defendant's witnesses Mr De Ceglie was not involved in the publication of the Article. Unsurprisingly, as each of them acknowledged, the recollections of Mr de Kruijff, Mr Mallabone, Mr Law and Mr De Ruyter of their respective participation in the preparation and publication of the Article were very hazy. My impression was that much of their evidence was reconstructed with assistance from the very limited number of contemporaneous documents and by reference to their usual practice in preparing stories for publication.

The facts

Between 1995 and 2018 the plaintiff worked in the Media Monitoring Unit of the Department of Premier and Cabinet of the State Government of Western Australia. The plaintiff commenced employment as a 'level 1' public servant (the most junior level).[3] He was subsequently promoted to 'level 2'. The plaintiff became a supervisor within the Media Monitoring Unit but he was not promoted beyond level 2. In cross-examination, the plaintiff accepted that he 'was entitled to be referred to as a senior public official'.[4] Without intending any disrespect to the plaintiff, to describe him as 'a senior public official' would be misleading. He was a junior officer in the public service.
[3] ts 51; the plaintiff gave evidence to the effect that level 1 was the most junior level and that the person 'directly overseeing the unit was a level 6 or 7'.
[4] ts 57.
In about 2003 the plaintiff was appointed to act as a delegate of the Community and Public Service Union.[5] In his capacity as a union delegate, in about 2017, the plaintiff was involved in discussions with Mr Darren Foster (at the time the Director-General of the Department of Premier and Cabinet) over a proposal advanced by Mr Foster to close the Media Monitoring Unit and outsource the function of monitoring the media. The plaintiff opposed the proposal, and it did not proceed.[6]
[5] ts 33.
[6] ts 36.
In 2018, the plaintiff was involved in a workplace conflict with a colleague in the Media Monitoring Unit.[7] The subject matter of the conflict is presently irrelevant. The colleague made a complaint about the plaintiff the substance of which was that the plaintiff was living in the centre of Perth but claiming travel allowances on the basis that he was living in Karrinyup. In fact, the plaintiff was living with his parents and other members of his family in the family home in Karrinyup but he maintained an apartment in the centre of Perth.[8]
[7] ts 92.
[8] ts 33.
In November 2018, the plaintiff was approached by police detectives who told him that they were investigating allegations of fraud made against him. The plaintiff permitted the detectives to inspect his apartment in the City and his family home in Karrinyup.[9] The plaintiff was arrested and interviewed by the detectives and subsequently charged with two offences. The offences included one count of fraud.[10] It was alleged the plaintiff had fraudulently gained a pecuniary benefit of $116.35. The figure of $116.35 was the sum of five amounts of $23.27 representing claims for travel expenses made by the plaintiff over five consecutive days in late July and early August 2018.
[9] ts 37 ‑ 38.
[10] Exhibit 20 (the Prosecution notice in respect of charge number PE969/2019).
The plaintiff was suspended from his employment without pay. Correspondence was exchanged between Mr Foster and a lawyer with the Community and Public Service Union acting on the plaintiff's behalf.[11]
[11] ts 33 and 39; Exhibit 21.
The plaintiff appeared in the Magistrates Court on 21 January 2019 when he pleaded not guilty to the fraud charge. The other charge against him was dismissed.[12]
[12] Charge numbered PE1639/2019; Exhibit 22.
On 5 April 2019, Mr Foster was called to give evidence to the Joint Standing Committee on the Corruption and Crime Commission of the Western Australian State Parliament. During his evidence Mr Foster disclosed the existence of a prosecution of a Department of Premier and Cabinet employee for fraud. Although Mr Foster did not identify the plaintiff in his evidence, the prosecution to which he referred was the prosecution of the plaintiff. Mr Foster's evidence was to the effect that the prosecution was commenced after he had initiated an internal investigation. Mr Foster did not disclose to the Joint Standing Committee that the pecuniary benefit the subject of the charge was $116.35.
In the early afternoon of 5 April 2019, the ABC in its radio news bulletins reported that a 'staffer' at the Department of Premier and Cabinet was facing fraud charges relating to travel entitlements.[13] One bulletin contained a short quote from Mr Foster, in which he described the plaintiff as a 'junior officer'.[14]
[13] Exhibits 34 and 35.
[14] Exhibit 42.
On Channel 10's '10 News First' programme broadcast at 5.17 pm on 5 April 2019, the plaintiff was referred to as a member of the State Government's media team and was identified by name. The words spoken by the Channel 10 newsreader were as follows:[15]
A member of the State Government's media team has been stood down from work without pay and charged with fraud. Peter Lazos is accused of claiming more than $40,000 in travel allowances he wasn't entitled to. It's understood Mr Lazos claimed travel to and from a home in Karrinyup when he was actually living several streets away from his office in west Perth. A parliamentary committee was told a private investigator was called in before referring the matter to police.
[15] Exhibits 43 and 53.
The statements that Mr Lazos was accused of claiming more than $40,000 in travel allowances and that he was 'actually living several streets away from his office' were factually wrong. As recorded above, the amount of the charge was $116.25 and Mr Lazos was living in Karrinyup and not several streets away from his office in West Perth.
Mr Peter Law was monitoring the media coverage of other media outlets and saw the segment of the '10 News First' broadcast concerning the plaintiff.[16] He thought the story was of interest and warranted further investigation. Although, when he gave his evidence, Mr Law could not 'really recall' his thinking, his evidence was that he considered that as a public servant had been stood down from his job and charged with fraud involving taxpayers' money, the story was worth publishing in the public interest.[17]
[16] ts 242.
[17] ts 243, 245.
Mr Law assigned Mr de Kruijff to follow up the Channel 10 story and write a lead length article.[18] Mr de Kruijff had been asked to write what he described as 'a straight factual article' that he anticipated would be included in the second edition of the newspaper that was known as the 'metro edition'.[19]
[18] ts 164.
[19] ts 165.
Among other steps taken to prepare the story, at about 5.50 pm on 5 April 2019, Mr de Kruijff spoke on the telephone to the Honourable Alison Xamon MLC, who as a member of the Joint Standing Committee, had participated in the hearing earlier in the day. Mr de Kruijff obtained quotes from Ms Xamon.[20] Mr de Kruijff typed out the quotes given to him by Ms Xamon and 'checked back that those were correct'.[21]
[20] ts 167.
[21] Exhibit 39, ts 167, 189 - 190.
Subsequently, Mr de Kruijff had a telephone conversation with Ms Nadia Miraudo, a media officer within the Department of Premier and Cabinet with the title 'Acting Manager Communications'. Mr de Kruijff was put in touch with Ms Miraudo by a contact within the Department of Premier and Cabinet, Ms Lannie Le‑Patterson, to whom he had spoken on the telephone. After their telephone conversation, Mr de Kruijff and Ms Miraudo exchanged emails and in that exchange Ms Miraudo informed Mr de Kruijff that following a tip‑off an investigation had been undertaken by the Department, the plaintiff had been charged with fraud, and he had been suspended without pay.[22]
[22] Exhibit 29.
Mr de Kruijff also looked up the plaintiff's name on LinkedIn and Facebook. The plaintiff's LinkedIn profile disclosed the plaintiff's employment history with the State government. Mr de Kruijff was able to see some photographs on the plaintiff's Facebook page.[23] Each of the LinkedIn and Facebook pages had dialogue boxes that if clicked disclosed the plaintiff's mobile telephone number.[24] Additionally, both the LinkedIn and Facebook pages had direct messaging features that would have enabled Mr de Kruijff to send a message to the plaintiff. Mr de Kruijff had the means to contact the plaintiff on the evening of the 5 April 2019 had he wished to do so.
[23] ts 168.
[24] Exhibit 19 (page 53), exhibit 64, ts 41, 119, 201.
Mr de Kruijff did not attempt to contact the plaintiff to obtain a comment from him. He did not regard it as relevant to do so.[25]
[25] ts 201.
Mr de Kruijff spoke to the Deputy Editor of the newspaper, Mr Mallabone, about the story.[26] At 7.47 pm, Mr de Kruijff sent Mr Mallabone an email into which he had embedded a link to the plaintiff's LinkedIn profile.[27]
[26] ts 168.
[27] Exhibit 32.
Mr Mallabone's evidence was to the effect that he was only 'vaguely aware' of the story that day but he did remember having a concern that the photograph to be used in conjunction with the Article was a photograph of the plaintiff and not a third party.[28] Mr Mallabone had no recollection of reading the Article on the evening of 5 April 2019 but having read it before giving evidence considered that the story was one people would be interested in reading because he thought it went to 'trust in the government' and 'there was a serious question to be asked about whether or not someone within the government had fallen short of the standards that the average person and the average reader of the paper would expect of someone in that role'.[29] In cross-examination, Mr Mallabone maintained that his editorial judgment would have been exactly the same if he had known that the allegation against the plaintiff concerned $116.35. He said, 'there's no such thing as a minor fraud' and it was not a 'trivial matter'.[30]
[28] ts 210, 211, 221.
[29] ts 214.
[30] ts 222.
At some point Mr de Kruijff looked up the plaintiff's name on the 'eCourts' portal and ascertained that there was a charge of fraud associated with the plaintiff's name and that he had pleaded not guilty.[31]
[31] ts 167.
When preparing the Article Mr de Kruijff did not have a transcript of the proceeding in the Magistrates Court on 21 January 2019, he did not have the prosecution notice or any other document relating to the fraud proceedings and he did not have a transcript of the Joint Standing Committee proceedings.[32] Neither Mr de Kruijff nor any other of the defendant's journalists had attended the Joint Standing Committee proceedings. Mr de Kruijff accepted that contacting the Police to find out about the charge was an obvious inquiry to make but could not recall whether he did so.[33] I find that he did not do so. Had he done so, I think this would have been recorded by him in the email to which I refer in the next paragraph.
[32] ts 176, 183.
[33] ts 207.
At 8.04 pm on 5 April 2019, Mr de Kruijff sent a draft of the Article to the defendant's legal counsel. The email was copied to, among others, Mr Law.[34] Mr Law sent Mr de Kruijff an email asking him whether he had checked 'eCourts for the listing' to which Mr de Kruijff replied by email to the effect that he had checked 'eCourts' and gave details of the hearing on 16 May 2019. In his reply email to Mr Law, Mr de Kruijff also said:[35]
DPC has confirmed his identity.
Channel 10 reported he rorted $40,000 but DPC said that was incorrect, they did not say how much it was.
[34] ts 169.
[35] Exhibit 33.
When giving evidence Mr de Kruijff said either Ms Le‑Patterson or Ms Miraudo had told him the amount of $40,000 was incorrect.[36] Mr de Kruijff could not recall whether he had asked Ms Le‑Patterson or Ms Miraudo what the correct amount was.[37] It is unlikely that he did so because had he done so, there was no reason why Ms Le‑Patterson or Ms Miraudo would not have disclosed the correct amount of the alleged pecuniary benefit to him and, in turn, had he been told the amount it is likely he would have mentioned the amount to Mr Law.
[36] ts 170.
[37] ts 170.
Mr De Ruyter was the night editor of the newspaper on 5 April 2019. His responsibilities included deciding the placement of the Article on the page and selecting the photograph. Mr De Ruyter could not recall whether he wrote the headline but he did not think so (Mr de Kruijff's evidence was that he did not write the headline or select the photograph).[38] Mr De Ruyter accepted it was his role to check the headline if someone else wrote it. The evidence points to the author of the headline being either Mr de Kruijff or Mr De Ruyter. Mr de Kruijff firmly denied that he wrote the headline whereas Mr De Ruyter's evidence was equivocal. While it is not a matter of significance, on balance, it is more likely that Mr De Ruyter wrote the headline. I accept his evidence that he had no input into the text of the Article itself. Mr De Ruyter's evidence was to the effect that it was not his role to check the Article for factual accuracy.[39] He was not involved in the presentation or uploading of the online version of the Article.
[38] ts 172, 232 - 233.
[39] ts 236.

At the plaintiff's trial on 16 May 2019 the prosecutor informed the magistrate that he was not persuaded there was a reasonable prospect of conviction and said that it would be unethical to proceed to trial and offered no evidence.[40] The plaintiff was acquitted. The defendant continued to publish the online article but it did not publish a follow up article to the effect that the plaintiff had been acquitted. At trial it was demonstrated that the online article is the first matter that appears when the plaintiff’s name is searched using the Google search engine.[41]
[40] Exhibit 49.
[41] ts 180.
None of the defendant's witnesses explained why there had been no reporting of the fact the plaintiff had been acquitted of the fraud charge. Mr de Kruijff no longer works for the defendant. He was unable to recall when he had learned the plaintiff had been acquitted of the fraud charge. He said he had told the Courts Editor about the case. Mr Mallabone was not sure when he became aware the plaintiff had been acquitted of the fraud charge. He could not explain why, if it was in the public interest to publish an article raising the serious question of whether there had been a failure to comply with the high standards expected of public servants, it was not in the public interest to publish an article disclosing that the high standards had been met.[42]
[42] ts 219.
Mr Mallabone gave evidence about the circulation of The West Australian and the number of times the subscriber and online versions of the Article were viewed. His evidence established the following:
(a)186,000 print copies of the 6 April 2019 edition of the Weekend West were sold.[43]
(b)The online subscriber edition (also referred to as the 'digital replica editions' of the 6 April 2019 Weekend West received 89,180 'pageviews' from 531 'users',[44] on that edition's release date (my understanding is that the term 'users' does not equate with individuals but is to be equated with the internet address referrable to a subscriber ‑ in other words the term 'users' admits the possibility that several individuals utilising one subscription may each have viewed the online subscriber edition).[45]
(c)The online version of the article (that is the version available by 'clicking' on the article on the 'The West Australian website') was accessed on 2122 occasions by 1931 'users' during the month of April 2019 (again 'users' is not to be equated with individuals but with separate internet addresses).[46]
[43] ts 214; Exhibit 77.
[44] During re-examination (ts 226 ‑ 227) Mr Mallabone clarified that the term 'user', in a digital context, should be understood as a metric to record the access to sites which does not necessarily reflect an individual person. This metric is dependent on different variables relating to how people interact with their devices and subscription.
[45] ts 216; Exhibit 80.
[46] ts 217; Exhibit 80.
I find, as Mr Mallabone accepted, that the circulation statistics cannot accurately reflect the number of people who read the hard copy edition of the paper,[47] and that the data analytics reports cannot accurately determine how many people access the digital editions given the understanding of the 'user' metric.
[47] ts 220.
On 29 July 2019 the plaintiff's lawyers served a 'concerns notice' on the defendant.[48] The concerns notice disclosed that the plaintiff was acquitted of the fraud charge on 16 May 2019 and recorded the prosecutor's remarks to the effect that there was no reasonable prospect of a conviction and it would be unethical to proceed with the trial.
[48] Exhibit 55.
The plaintiff also served a 'concerns notice' on Network Ten Pty Ltd in respect of the Channel Ten news broadcast on 5 April 2019. The plaintiff accepted that he complained the Article and the Channel Ten news broadcast conveyed the same defamatory meanings, as the plaintiff put it, '… they both insinuated that I defrauded the public purse by different figures'.[49]
[49] ts 89.
On 6 May 2020, the plaintiff commenced defamation proceedings against Network Ten Pty Ltd in respect of the broadcast on 5 April 2019 and a follow-up broadcast on 23 August 2019. The proceedings were settled. The settlement was recorded in an instrument entitled 'Settlement and Release Agreement' executed on 19 May 2021 that provided for the payment to the plaintiff of the sum of $115,000.[50] This amount was expressed to be inclusive of costs. No apology was provided by Network Ten Pty Ltd. The settlement instrument recorded that settlement had been reached at a court ordered mediation. The plaintiff adduced no evidence as to the costs incurred by him. In closing submissions, the plaintiff's counsel, in effect, invited me to infer that the mediation would have occurred after pleadings and after significant costs had been incurred by the parties including the plaintiff.
[50] Exhibit 57.
Judges frequently warn parties that defamation actions are notoriously expensive, and I am prepared to infer that the plaintiff incurred significant costs in pursing his action against Network Ten to the stage of mediation. It is, however, unsatisfactory that evidence of the actual costs incurred was not adduced. Based on my understanding of the steps usually taken in defamation actions defended by media organisations and my experience of the costs of litigation generally, I estimate that the plaintiff's costs including disbursements would have been in the region of $45,000.
On 8 January 2022, the plaintiff reached a settlement with the Department of Premier and Cabinet in relation to disputes about his employment. His employment as a member of the public service came to an end. The plaintiff now works in hospitality as the manager of a restaurant at a yacht club in Perth and undertakes building management work.[51]
[51] ts 31.
I deal with the issue of damages later in these reasons. In that context, I make further factual findings.

Issues and summary of conclusions

The issues are as follows:
(a)Were one or more of the defamatory imputations pleaded by the plaintiff conveyed by the Article?
(b)If any one or more of the imputations are found to have been conveyed by the Article, and are found to be defamatory, whether the publication is protected by one or more substantive defences, namely:
(i)fair report of proceedings of public concern - s 29 of the Defamation Act 2005 (WA).
(ii)Fair summary of public documents within the meaning of s 28 of the Defamation Act.
(iii)The matter complained of was published on an occasion of qualified privilege pursuant to s 30 of the Defamation Act, or at common law including in accordance with the implied constitutional freedom in relation to the publication of government or political matters.
(c)If any of the imputations were found to have been conveyed by the Article and the defences fail, what damages should be awarded.
For the reasons given below I have concluded that:
(a)The Article conveyed the imputation that the plaintiff was dishonest in his conduct as a government official.
(b)The defendant has not established the defences upon which it relies.
(c)The plaintiff should receive an award of general damages in the sum of $180,000.

The defamatory meaning

Applicable principles

The primary principles that guide the court in determining whether imputations are conveyed by 'matters complained of' and the authorities from which the principles are derived were set out by Chaney J in Rayney v Western Australia.[52] The principles are as follows:
[52] Rayney v The State of Western Australia [No 9] [2017] WASC 367 [50] ‑ [57]. And see Kirby J's statement of the principles in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 [134].
(a)The meaning of the words is to be ascertained by the sense in which fair-minded ordinary reasonable members of the general community would understand the published words.[53]
(b)The ordinary person does not live in an ivory tower and is not inhibited by a knowledge of the rules of construction. The ordinary reasonable reader can and does read between the lines in the light of their general knowledge and experience of worldly affairs.[54]
(c)A reader may be acting reasonably even though they engage in 'a certain amount of loose thinking'.[55]
(d)The ordinary reasonable reader does not formulate reasons in their own mind: they get a general impression and one can expect them to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.[56]
(e)Although an ordinary reasonable reader may engage in some loose thinking, they are not a person 'avid for scandal'. A reasonable reader considers the publication as a whole. They try to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If '[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together'. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article.[57]
(f)The mode and manner of publication is material to a consideration of the meaning of the words. The reader of a book, for example, is assumed to read it with more care than they would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader.[58]
(g)The meaning of the words is not determined by the evidence of the plaintiff as to what he understood the words to mean, nor by the evidence of the defendant as to what the defendant intended the words to mean. The meaning is to be determined by an assessment of the ordinary reasonable person's understanding of the words.[59]
(h)The ordinary reasonable reader does not interpret the publication in a precise manner, but rather forms a general impression of the meaning from the words used.[60]
(i)Whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory.[61]
[53] Lewis v Daily Telegraph Ltd [1964] AC 234, 258; [1963] 2 All ER 151, 154.
[54] Lewis v Daily Telegraph Ltd (154).
[55] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 [25]; (2003) 77 ALJR 1657, 1661.
[56] John Fairfax Publications Pty Ltd v Rivkin (1661).
[57] John Fairfax Publications Pty Ltd v Rivkin (1661).
[58] Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 [19].
[59] Griffith v John Fairfax Publications Pty Ltd [19].
[60] Lewis v Daily Telegraph (285).
[61] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52.
Reflecting that the mode and manner of publication is material to a consideration of the meaning of the words, in Stocker v Stocker,[62] Lord Kerr of Tonaghmore JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin JJSC agreed) observed that 'the hypothetical reader should be considered to be a person who would read the publication … and react to it in a way that reflected the circumstances in which it was made',[63] and went on to express agreement with the observations made in earlier cases that social media is a casual medium and an impressionistic approach is the most appropriate approach to determining the meanings that a social media post conveys to the ordinary reasonable reader.[64]
[62] Stocker v Stocker [2020] AC 593 at 605 [39].
[63] Stocker v Stocker [39].
[64] Stocker v Stocker [41] - [43], Bazzi v Dutton [2022] FCAFC 84; (2022) 289 FCR 1 [29].
Emphasis, presentation, context, irony, sneers and other rhetorical devices can reinforce or negate a meaning that the same words said or read in isolation of the circumstances of their communication would have conveyed.[65]
[65] Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44; 386 ALR 36 [39] (Rares J).
Several principles have been developed where the matter complained of includes statements that a person has been charged with a criminal offence. Those principles were also considered by Chaney J in Rayney and, relevantly, are as follows:
(a)A report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence.[66]
(b)The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although they know that many persons charged with a criminal offence are ultimately convicted, they are also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.[67]
(c)Statements concerning police investigations into a plaintiff commonly give rise to three possible defamatory meanings namely that the plaintiff is guilty, that there are reasonable grounds to suspect that the plaintiff is guilty, or that there are grounds for investigating whether the plaintiff is guilty.[68]
[66] Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, 300 - 301.
[67] Mirror Newspapers Ltd v Harrison (300 – 301).
[68] Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195 [238].
The decisions of the High Court in Mirror Newspapers Ltd v Harrison,[69] and Favell v Queensland Newspapers Pty Ltd,[70] illustrate the analysis to be undertaken when it is contended that newspaper reports either impute or are capable of imputing guilt of a criminal offence.
[69] Mirror Newspapers Ltd v Harrison.
[70] Favell v Queensland Newspapers Pty Ltd.
In Mirror Newspapers Ltd v Harrison, Mason J (as his Honour then was) (with whom Wilson J agreed, and Gibbs CJ and Brennan J agreed subject to presently immaterial reservations) described the report on which the plaintiff sued as follows:[71]
[71] Mirror Newspapers Ltd v Harrison (295 - 296).
The report was published on the first and second pages of the "Daily Mirror" newspaper on 14 August 1980.
On the front page, in headlines two inches high, the article says:
BALDWIN: 4 ARRESTS'
and, in smaller type:
'3 MEN, WOMAN HELD IN RAIDS'.
The headline on the second page is:
'BALDWIN - 4 ARRESTED'
and, in smaller type:
'Police raid city homes.'
On each of the two pages there is a photograph of the plaintiff (with part of his face blocked out) as one of the three men arrested. The article states that the arrests were made 'in dawn raids today over the bashing of State Labour M. P. Peter Baldwin'. Mr. Baldwin is said to have been 'viciously bashed by at least two men' and to have suffered 'shocking facial injuries and a fractured skull and requiring more than 50 stitches in his wounds' necessitating 'almost two weeks in hospital'. The article reminds its readers that Mr. Baldwin had earlier made allegations of vote-rigging and of the infiltration of organized crime into inner-City Labor Party branches, and implies that the attack upon him was in reprisal for those allegations.
The arrests are said to have followed a month of 'intensive investigation by a special squad of detectives' who had 'worked around the clock to fulfil a directive from the Deputy Premier, Mr. Ferguson, that the culprits be found'. The article says that a fourth man may be arrested and that all five are expected to appear in Court later that day, to be charged with 'conspiracy and fraud'. The article states that tight security will surround the Court when they so appear.
The two imputations at issue are in the following terms:
(i) That the plaintiff was directly or indirectly involved in the vicious bashing of Mr. Peter Baldwin on the night of 17th July 1980 whereby Mr. Baldwin suffered shocking facial injuries and a fractured skull, required treatment consisting of more than fifty stitches in his wounds and spent almost two weeks in hospital;
(ii) That the plaintiff was guilty of a criminal offence in connection with the said bashing.
In his judgment Mason J referred to several of the principles to which I have referred earlier in these reasons and said:[72]
As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.
…
The question which remains is whether the melodramatic account published in the appellant's newspaper is capable of bearing the imputation that the respondent was guilty. The report focuses attention on the violence of the attack on Mr. Baldwin, the intensive nature of the investigation and the circumstance that "a special squad of detectives" "worked around the clock to fulfil a directive from the Deputy Premier, Mr. Ferguson, that the culprits be found". No doubt this suggests that the matter was regarded as important by the Government and by the police. But I fail to understand how a reasonable reader would read it as meaning that the plaintiff was guilty of the offence or that he was involved in the attack on Mr. Baldwin.
(Emphasis supplied)
[72] Mirror Newspapers Ltd v Harrison (300 - 301) (303).
In Favell v Queensland Newspapers Pty Ltd,[73] the High Court was concerned with whether the article (the text of which I set out below) was capable of conveying defamatory imputations that (a) the appellants committed the crime of arson (b) the appellants were reasonably suspected by the police of committing the crime of arson and (c) the second appellant (Mrs Favell) lied about neighbourhood reactions to the proposed development of the Griffith Street property.
[73] Favell v Queensland Newspapers Pty Ltd.
DEVELOPMENT SITE DESTROYED – FIRE GUTS RIVERSIDE MANSION
A MULTIMILLION-dollar Brisbane home which is the subject of a controversial development application burned down early yesterday morning.
Owners of the house on the Brisbane River at New Farm, which has views across the city, had applied to build a five-storey block of units.
Barrister Paul Favell, his lawyer wife Diana and his three teenage children will return home from holiday in Rome to find the Griffith St home gutted.
Firefighters took almost two hours to extinguish the blaze which started about 4 am yesterday morning and caused severe structural damage.
Speaking from Rome, a distressed Ms Favell told The Sunday Mail:
'We are devastated and we're just trying to get home as soon as possible.
'We had some cousins house-sitting and we're just so glad they weren't in the house at the time.'
Relatives arrived to see the multi-storey house - which has security gates and a private river pontoon and boat - gutted.
Mr Favell's sister, who did not wish to be identified, said: 'I'm just in shock. The women who were house-sitting would usually have been home but they decided to stay somewhere else instead.'
It is understood neighbours had planned a meeting to protest against the impending unit development.
Neighbour Margaret Morrisey said: 'None of us are happy about the application.
'The ambience of New Farm is being destroyed because of all these units going up.'
Another neighbour, Peter Campbell, said about a dozen residents had planned to attend the meeting.
'People want to keep the character of the street and keep it the way it is,' he said.
Asked whether the planned meeting would go ahead Mrs Morrisey said: 'No, the meeting won't go ahead now. It's all gone.'
Asked about the reaction from neighbours to the application for development on the property Ms Favell said: 'We provided copies of the plans to both neighbours and they were fine about it.'
Police said investigations into the cause of the fire were continuing.
Detective Senior Constable John Kilburn from the arson investigation unit said the cause of the fire was not known.
'All fires are treated as suspicious until otherwise disproved and we will follow all lines of inquiry,' he said.
A Queensland Fire and Rescue spokesman said security, the location of the house and debris had hindered firefighters.'

In their joint judgment Gleeson CJ, McHugh, Gummow and Heydon JJ said: [74]
[74] Favell v Queensland Newspapers Pty Ltd[14].
As to imputation (a), an article which is capable of conveying the meaning that there are reasonable grounds for suspicion of arson, and which also states and elaborates those grounds, taking as the introduction to an account of the fire the existence of the controversial development proposal, and developing the story by giving the neighbours' point of view, could reasonably be found by a jury to convey that the suspicion is well-founded and that the suspects are guilty. An article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire.
Thus, a jury could reasonably conclude that several of the following grounds pointed to the fire being deliberately lit and that it was more likely than not that the appellants were responsible for it because they had a motive for destroying the existing building:
(1)the appellants wished to build a five-storey block of units and knew that the development would be strongly opposed by residents of the surrounding neighbourhood;
(2)the prospect of getting approval for building the units would be improved if there were no existing building on the site;
(3)the absence from the premises of relatives of the appellants who were supposed to be minding the house was unexplained;
(4)the fire started at 4 am;
(5)the security gates at the premises made it unlikely that, if the fire was deliberately started, the person or persons responsible could have gained access to the premises without the assistance of the appellants or their agents;
(6)the second appellant had attempted to create the false impression that the development was not controversial; and
(7)the appellants were absent overseas when their house was burnt down.
When all these matters are taken into account, a jury could reasonably conclude that "it would put an incredible strain on human experience" if the appellants' proposal to redevelop their property was not facilitated by the fortuitous occurrence of a fire.
In John Fairfax Publications Pty Ltd v Obeid,[75] in the context of considering imputations of bribery and corruption, McColl JA (with whom Sheller and McClellan JJA agreed) expressed a degree of scepticism about the ordinary reasonable reader's appreciation of the presumption of innocence. Her Honour said:[76]
It is, in my opinion, a pious presumption to conclude that the ordinary reasonable reader is mindful of the presumption of innocence whenever accusations or allegations are made particularly when the defamatory statements are made in circumstances unrelated to, or remote from, the operation of the criminal justice system. Indeed doubts have been expressed about the proposition that the ordinary reasonable reader would be mindful of the presumption of innocence even in the context of a report of police charges. In Lewis v Daily Telegraph Ltd (at 285), Lord Devlin observed that a simple statement the "the plaintiff's affairs are being inquired into" would not injure the plaintiff's reputation "if everybody bore in mind, as they ought to, that no man is guilty until he is proved so but unfortunately they do not."

The text of the Article

[75] John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485.

[76] John Fairfax Publications Pty Ltd v Obeid [70].

The text of the article published in the print and online subscriber editions was as follows:[77]
[77] Exhibit 46 and 52. (The paragraphs have been numbered for reference purposes).
Top public official faces fraud charge
1A long-serving public official has been suspended without pay from the top State Government office as he faces a fraud charge.
2Petros Lazos, pictured, who has worked for decades in government and recently within the Department of Premier and Cabinet, has pleaded not guilty to the charge and is going through the Magistrates court.
3A Department of Premier and Cabinet spokeswoman said it launched an investigation of an employee last year after a tip‑off.
4'The matter was referred to police,' she said. 'The employee was charged with fraud and suspended without pay pending the court case.'
5That an investigation had occurred was unearthed in a government committee hearing into crime and corruption issues yesterday where MPs grilled DPC director-general Darren Foster and director of corporate services Gary Meyers.
6Greens government integrity spokeswoman Alison Xamon said during the hearing it was indicated the resulting report out of the DPC investigation of one of its employees could be made public. 'I certainly hope it is made public,' she said.
7'I think that the general public wants to feel confident that when corruption has been alleged or uncovered that all efforts are being made to ensure that our processes are improved so that they can't happen again.'
8'Throughout the course of (recent) public hearings and through subsequent CCC reports, concerns around the culture of whistleblowing in particular and a lackadaisical approach to policies and procedures has seemed to have been a bit of a recurring theme (in government) and that is of concern.'
9The revelation comes just weeks after the Corruption and Crime Commission released a report on the former commissioner for the WA Government in Japan—whose role fell under the auspice of DPC until June, 2017—containing allegations he rorted more than $500,000.
The online version of the article appeared under the headline 'Top WA public official Petros Lazos faces fraud charge' and the photograph of the plaintiff that appeared under the headline was captioned 'Petros Lazos has been suspended without pay'. In the online version the word 'pictured' that appeared in the second paragraph of the print and online subscriber editions was not included, otherwise, the articles were in identical terms.

The imputations

The plaintiff contends that the articles conveyed the following imputations:[78]
(a)the plaintiff was dishonest in his conduct as a government official; alternatively;
(b)there were reasonable grounds to suspect that the plaintiff was dishonest in his conduct as a government official;
(c)there were reasonable grounds to suspect that the plaintiff is guilty of criminal fraud; alternatively,
(d)there were reasonable grounds to suspect that the plaintiff had defrauded the State Government of thousands of dollars or more.

Analysis and conclusion

[78] Plaintiff's closing submissions [168], [173].

As set out in the authorities the court must undertake an objective evaluation to determine whether an ordinary reasonable reader would have understood the articles to have conveyed any particular imputation or meaning. As Rares J observed in Chau v Australian Broadcasting Corporation (No 3):[79]
The process necessarily is imperfect because by the time that the tribunal of fact must decide this question, the matter complained of will have been played several times, counsel will have emphasised factors of it that support the conclusion that favours their respective client and the debate will have focussed around the pleaded imputations as the formulation of the meanings that the publication would or would not have conveyed.
[79] Chau v Australian Broadcasting Corporation (No 3) [31].
Although Rares J's observations were made in the context of a television broadcast, a very similar process of vigorous debate and detailed analysis at trial precedes a determination of whether a newspaper article conveys defamatory imputations.
I will deal first with characteristics of the ordinary reasonable reader of the Weekend West. The print edition of the Weekend West is published in tabloid form. The online subscriber edition reproduces images of the printed pages. In his submissions, the plaintiff referred to the Weekend West as a tabloid newspaper in a pejorative sense meaning that it was characterised by sensationalist and 'salacious' journalism. Even if I were to accept that characterisation, it does not assist in identifying the characteristics of the ordinary reasonable reader because the Weekend West is the only state-wide print newspaper published in Western Australia on Saturdays and it is the sister publication to The West Australian, the only state-wide print newspaper published in Western Australia.
Accordingly, those who want to read about current events in print in this State will be drawn to the Weekend West. In short, its readership is drawn from all sections of the community.
In my view, in 2019 the ordinary reasonable reader of the Weekend West had no characteristics that distinguished them from members of the community generally. I consider they would have approached the Article in the manner of the hypothetical ordinary reasonable reader described in the authorities to which I have referred.
While I acknowledge the force of the observations made by Lord Kerr in Stocker v Stocker about social media, in my view, digital news services are not to be equated with social media (albeit that social media posts are often linked to stories published by digital news services).
In my view the ordinary reasonable reader reads a news story published by a digital news service with more attention than they would bring to a social media post. That said, however, the ordinary reasonable reader of a digital news service is as prone to forming a general impression of a digital news report as they are to forming a general impression of a print news report.
Turning to the Article, these general observations may be made.
The Article was the 'lead' news story on page 9 (a lead news story is a story of between 300 and 350 words that is the main story on a page).[80] The ordinary reasonable reader's attention would be drawn to the Article by the prominence on the page of the headline and its text, in particular (in the print edition) the emphasis on 'Top public official' and by the inclusion of the plaintiff's photograph. The headline both drew the reader's attention to the Article and gave the Article dramatic impact.
[80] ts 164, Mr De Krujiff.
The headline taken with the description in the opening two paragraphs of the Article to the plaintiff as a 'long-serving public official' who has worked for 'decades' within the Department of Premier and Cabinet coupled with the use of the words 'revelation' and 'rorting' in the final paragraph give the Article a sensationalist overtone.
The plaintiff had been a public servant for approximately 23 years, but he held no official position in the sense of 'holding an office' and he performed no duties that would be regarded as 'official duties'. By no means did he warrant the description 'Top Public Official'.
The Article was not lengthy. Its content was not such as to draw the ordinary reasonable reader into undertaking a close and considered analysis. Rather the ordinary reasonable reader would have formed a general and superficial impression of the contents of the Article.
The defendant characterised the imputation that the plaintiff was dishonest in his conduct as a government official as 'the guilt imputation'. Its contentions in relation to this imputation were to the following effect:[81]
(a)There is no sensible basis upon which the guilt imputation could arise because the Article is clear that the plaintiff is facing charges, that is allegations, and he has pleaded not guilty. Whilst he has been suspended without pay, his employment has not been terminated as it might be if there was some underlying suggestion that he was guilty.
(b)In contrast to the article considered by the High Court in Favell v Queensland Newspapers there is nothing in the Article that would support a finding that the Article carried the imputation that the plaintiff was guilty.
(c)The reporting in this case is much closer to the factual account of the charging of the plaintiff in Mirror v Harrison that was held to be incapable of conveying a meaning of guilt.
(d)That in formulating this imputation, for reasons that are unexplained, the plaintiff has departed from the language used in the Article ('faces a fraud charge' and 'charged with fraud') and this should result in the rejection of the guilt imputation.
[81] Defendant's submissions filed 22 January 2024 [4.2] - [4.6].
It is unnecessary to consider whether it is a pious presumption that the ordinary reasonable reader of the Article would be mindful of the presumption of innocence because, contrary to the defendant's contentions, in my view the Article has several features that taken together insinuate the plaintiff was guilty of dishonesty.
First, the plaintiff is introduced as a 'Top public official' and 'a long serving public official'. The incorrect description 'Top public official' and the reference in the concluding paragraph to allegations that the State Government's former commissioner in Japan (a person who truly was a senior public official) had allegedly 'rorted more than $500,000' frame the story. Taken together they are calculated to conjure in the reader's mind the image of a public service 'fat cat' who has used his position to advantage himself.
Secondly, the Article states the plaintiff has not only been charged with fraud but also suspended without pay. The reference to the plaintiff being suspended without pay is emphasised. It appears twice in the print and subscriber versions of the Article and three times in the online version. The defendant contended, in effect, that the references to the plaintiff being suspended without pay rather than having his employment terminated negated the existence of an underlying suggestion that the plaintiff was guilty. With respect, I do not agree. Suspending a person without pay would be viewed by the ordinary reasonable reader as a severe disciplinary sanction. And a sanction consistent with the Department of Premier and Cabinet having formed a very adverse view of the plaintiff suggesting that it was only a matter of time before the plaintiff was convicted and at which point his employment would be terminated.
Thirdly, the reference to the investigation being 'unearthed' in a government committee hearing goes beyond a straight factual statement about the charge and creates the impression the plaintiff had been involved in something sinister that had been concealed.
Fourthly, the underlying sinister theme is developed further by the references in the quoted remarks from Ms Xamon about making public a report of the Department of Premier and Cabinet's investigation. The ordinary reasonable reader would conclude several things. First, that the words 'the DPC investigation of one of its employees' was a reference to an investigation into the plaintiff's conduct and, secondly, that Ms Xamon's hope that the 'resulting report' would be made public so the public could be confident that 'our processes are improved so that they can't happen again' was a reference to improving processes so that conduct of the kind the plaintiff had in fact engaged in could not happen again. That is so even though Ms Xamon is quoted as referring to what is to occur 'when corruption has been alleged or uncovered'. I consider the ordinary reasonable reader engaging in some loose thinking and formulating a general impression of what was being said in the Article would understand the point of making the report public was to ensure that processes are improved so the corruption that has been uncovered, rather than merely alleged, could not happen again. Put another way, the ordinary reasonable reader would understand the report to be not only a report about the plaintiff's conduct but about conduct on the plaintiff's part of a particular kind; that is, conduct that requires an improvement in processes so that it could not happen again.
Fifthly, although Ms Xamon's quoted remarks that, '[t]hroughout the course of (recent) public hearings and subsequent CCC reports, concerns around the culture of whistleblowing in particular and a lackadaisical approach to policies and procedures has seemed to have been a recurring theme (in government) and that is of concern', were remarks of a general nature and not expressly linked to the plaintiff, the ordinary reasonable reader would draw a link between the fact that the investigation into the plaintiff's conduct that led to the criminal charge was the result of a 'tip-off' and Ms Xamon's concerns about 'whistleblowing', thereby reinforcing the impression of guilt.
Sixthly, the reference in the final paragraph to 'the Corruption and Crime Commission report into the former commissioner for the WA Government in Japan' suggests that the conduct of the plaintiff as a 'Top public official' can be compared with the conduct of the 'former commissioner' who had allegedly 'rorted more than $500,000'.
Seventhly, that the guilt imputation departed from the words used in the Article is not an unusual feature of an imputation in a defamation action and it does not negate the imputation.
In my judgment, when the Article is read as a whole, the features to which I have referred combine to constitute a clear insinuation that the plaintiff is guilty of dishonest conduct in his capacity as a government official. While a lawyer who read the Article might reflect upon the presumption of innocence when reading the Article and be cautious in drawing conclusions of guilt from it, in my view, the ordinary reasonable reader would not be so restrained and would draw the conclusion the plaintiff had acted dishonestly.
The view expressed in the preceding paragraph reflects the analysis I have undertaken and, in so far as I am able to stand back and identify my own response to the Article divorced from the detailed analysis undertaken during the trial, it reflects my response to the Article. I am satisfied the ordinary reasonable reader would draw the imputation the plaintiff had been dishonest in his conduct as a government official. The imputation was clearly defamatory of the plaintiff.
The plaintiff pleaded the imputations in the alternative. Having found the guilt imputation (the most serious imputation) was conveyed by the Article it is unnecessary for me to consider the alternative imputations pleaded by the plaintiff.

Fair summary and fair report defences

Relying on s 28 and s 29 of the Defamation Act, the defendant pleaded the Article was a fair summary of various public documents and a fair report of proceedings of public concern. There is a substantial overlap in the principles that govern these defences and there is a substantial overlap in the application of the principles to the Article. It is convenient to consider the defences together.

The pleaded defences

The defendant pleaded the Article was a fair report of the following proceedings of public concern:[82]
(a)Western Australian Police prosecution proceedings PE 969 of 2019 and PE 1639 of 2019 against the plaintiff in the Magistrates Court (fraud proceedings);
(b)proceedings of the Western Australian Parliament's Joint Standing Committee on the Corruption and Crime Commission (the Committee) held on Friday, 5 April 2019 (Joint Standing Committee proceedings);
(c)proceedings:
(i)of the Western Australian Parliament on 12 March 2019 in respect of which the Corruption and Crime Commission (CCC) report entitled 'Report on WA Commissioner in Japan' dated 12 March 2019 (CCC Report), was tabled; and
(ii)of the sitting of the Legislative Assembly of the Western Australian Parliament on 13 March 2019 during which there was debate about the CCC Report.
[82] Amended substituted defence 16 October 2023 [13.1].
The defendant supported the fair report of public proceedings defence by pleading the following particulars:[83]
(a)Documents filed in the fraud proceedings were available to the public pursuant to s 33(8) of the Magistrates Court Act 2004 (WA),[84] the proceedings were heard in open court on 21 January 2019 and gave rise to the publication of a transcript.
(b)The Joint Standing Committee proceedings were transcribed and the transcript was, and remains, available for download by the public from the website of the Western Australian Parliament.
(c)The Joint Standing Committee proceedings gave rise to a fair summary of a report of those proceedings being provided by Ms Xamon to Mr de Kruijff on 5 April 2019.
(d)The fraud proceedings and the Joint Standing Committee proceedings gave rise to summaries of those proceedings being reported by Network Ten Pty Ltd on its television program '10 News First' on 5 April 2019 and by the ABC in radio news bulletins broadcast between 12 noon and 3 pm on 5 April 2019.
(e)When the Article was published it was anticipated that the trial in the fraud proceedings would be held in open court on 16 May 2019.
[83] Amended substituted defence 16 October 2023 [13] Particulars A.
[84] Magistrates Court Act 2004 (WA) s 33(8) provides: On an application by a person the Court, unless it has good reason not to do so, shall give the person leave, either unconditionally or on any conditions the Court imposes, to inspect, obtain a copy of, view or listen to, any information held by the Court in relation to any case that has been or is being dealt with by it.

Two points should be noted at this stage. First, although the defence refers to a debate in the State Parliament on 13 March 2019 no reliance was placed on a summary or report of that debate. Secondly, even though the defendant referred in particulars to the ABC and the Channel Ten publications, the defendant pleaded the Article was a report of proceedings of public concern, not that it was or was contained in an earlier published report of proceedings of public concern.
The defendant contended the Article was a fair summary of the following public documents:[85]
(a)documents comprising the court file made available for inspection in the fraud proceedings - a public document within the meaning of s 28(4)(e)(iii)) (the Court documents);
(b)information available on the Department of Justice eCourts website in relation to the plaintiff's fraud proceedings - being information contained in a public document within the meaning of s 28(4)(d) or s 28(4)(e)(iii) (the eCourts information);
(c)the Joint Standing Committee Proceedings Transcript - a public document within the meaning of s 28(4)(a) or s 28(4)(d) or s 28(4)(f) (the JSC Transcript);
(d)emails sent by the Department of Premier and Cabinet to the defendant - a public document within the meaning of s 28(4)(d) or s 28(4)(f) (Ms Miraudo's emails); and
(e)the Corruption and Crime Commission Report - a public document within the meaning of s 28(4)(c)(ii) or s 28(4)(d) (the CCC Report).

The statutory provisions

[85] Amended substituted defence 16 October 2023 [13.2] and Particulars B.

Section 28(1) of the Defamation Act provides:
Defence for publication of public documents
(1)It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in –
(a)a public document or a fair copy of a public document; or
(b)a fair summary of, or a fair extract from, a public document.
'Public document' is defined in section 28(4) and relevantly provides:
(4)in this section –
public document means -
(a)Any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law
(b)…
(c)…
(d)Any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public;
(e)Any record or other document open to inspection by the public that is kept
(i)by an Australian jurisdiction;
(ii)by a statutory authority of an Australian jurisdiction;
(iii)by an Australian court; or
(iv)under legislation of an Australian jurisdiction
(f)Any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section.
Section 29 of the Defamation Act provides:
Defences of fair report of proceedings of public concern
(1)It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
(2)It is a defence to the publication of defamatory matter if the defendant proves that:
(a)the matter was, or was contained in, an earlier published report of proceedings of public concern;
(b)the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and
(c)the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.
(3)A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.
Section 29(4) defines the expression 'proceedings of public concern' to mean, among other things, 'any proceedings in public of a parliamentary body',[86] and 'any proceedings in public of a court or arbitral tribunal of any country'.[87]

The applicable principles

[86] Defamation Act 2005 (WA) s 29(4)(a).

[87] Defamation Act 2005 (WA) s 29(4)(e).

In Rogers v Nationwide News Pty Ltd,[88] Gleeson CJ and Gummow J explained the policy that underlies the common law's protection of fair reports of court proceedings and the subsequent embodiment of the common law defence in s 24 of the Defamation Act 1974 (NSW) (since repealed and replaced with s 29 of the Defamation Act 2005 (NSW)) as follows:
The policy of the common law's protection of fair reports of court proceedings, and of the legislative extension of the common law in s 24 of the Act, is that it is in the public interest that there should be open administration of justice. That interest is served by protecting persons who publish fair and accurate reports of court proceedings so that a reader of the report will see a substantially correct record of what was said and done in court.
[88] Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327.
In Feldman v Nationwide News Pty Ltd,[89] Bell P (as his Honour then was), (with whom Macfarlan and Payne JJA agreed) summarised the principles governing the fair report defence as follows:[90]
[89] Feldman v NationwideNews Pty Ltd [2020] NSWCA 260; (2020) 103 NSWLR 307.
[90] Feldman v NationwideNews Pty Ltd [109] - [116] (Bell P) - citation of authorities omitted.
In order to be fair, a report need not be a complete report of the proceedings in question, nor need it be accurate in every respect.
However, a report must be "substantially accurate"…
The question of whether a report is substantially accurate is a question of fact.
The relevant question is not whether the report is fair or unfair to any particular person; the question is whether it substantially records what was said and done.
If the report is fair, in the sense of reporting with substantial accuracy what in fact was said and done in the proceedings, it does not matter that statements made in the course of those proceedings and included in the report were themselves irrelevant to the material issues in those proceedings.
If the report is fair, it does not matter if those statements so reported are themselves factually untrue.
Recently, in Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111, Blue J at [561] summarised the relevant principles in the context of the corresponding common law defence as follows:
To be a fair and accurate report, the defamatory matter [must]:
•be a report of the court proceedings or that part thereof of which it purports to be a report: it is not sufficient that the proceedings are the source of information, or the subject, of an expression of opinion;
•be a substantially accurate expression of the court proceedings or the part thereof of which it purports to be a report; and
•not substantially alter the impression that an ordinary reasonable recipient would have gained if present during the proceedings." (footnotes omitted)
Pursuant to s 29(3), the statutory defence may be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.
With respect to s 29(3) of the Act, the tone of voice used in a radio or television broadcast or the prominence given to a report can be factors relevant to whether the report was published honestly.
Additional points relevant to both defences include the following.
First, in determining whether a report is 'substantially accurate' the court will consider whether any errors, including errors of omission, substantially alter the impression that the reader would have received had that person been present in the proceeding.[91] An omission will not be material unless it could 'in the mind of a reasonable [person] render the report unfair'.[92] An abridged or condensed report may constitute a report for the purposes of s 29 of the Defamation Act, provided that it is fair and does not by suppression of some matter 'give an entirely false and unjust impression to the prejudice of one of the parties concerned'.[93] By parity of reasoning these principles guide the assessment of whether a summary is a fair summary of a public document.
[91] Wagner v Harbour Radio Pty Ltd [2018] QSC 201 (Flanagan J) at 701 citing Chakravarti v Advertiser Newspapers Ltd at 526; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380.
[92] Kimber v Press Association Ltd [1893] 2QB 65 at 72 (Lord Esher MR), at 74 (Lopes LJ) and 76 ‑ 77 (Kay LJ).
[93] Gatley on Libel and Slander 13^th Edition (2022) par 14-040 and the cases there cited.
Secondly, the matter must bear the character of a report or a summary of a public document. In Rogers v Nationwide News Pty Ltd,[94] Gleeson CJ and Gummow J observed:[95]
Matter does not constitute a report of proceedings merely because it repeats information obtained from those proceedings. To take an example from Grech v Odhams Press Ltd (31), if a statement made by a witness in a proceeding is fairly and accurately reported, and attributed to the witness who made it, then the protection may be attracted; it would be otherwise if, without attribution to the witness or the proceedings, the substance of the statement were merely repeated. The importance of attribution, and the making of what purports to be a report of proceedings, as distinct from the mere repetition of information that emerges in the course of proceedings, is illustrated by Burchett v Kane (32). The requirement of attribution does not necessarily require direct quotation and acknowledgment; but it must appear that the published matter bears the character of a report of the proceedings in question. It is not enough that the proceedings are a source of information, or the subject of an expression of opinion. (footnotes omitted)
[94] Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327.
[95] Rogers v Nationwide News Pty Ltd [18].
In Burchett v Kane,[96] Samuels JA cited with approval the observation of Asprey JA in Anderson v Nationwide News Pty Ltd,[97] that a report was:[98]
[A] factual recounting of an event or situation. It is essentially descriptive of an event or series of events and, since it is limited to an account of events that have happened, it cannot properly include the independent comments or opinions of the reporter.
[96] Burchett v Kane [1980] 2 NSWLR 266.
[97] Anderson v Nationwide News Pty Ltd (1964) 64 SR (NSW) 376.
[98] Burchett v Kane [37].
Samuels JA (with whom Mahoney JA agreed) concluded that the real substance of the newspaper report in question in that case (a report of questions and answers in proceedings before the Senate of the Commonwealth Parliament) was not what was said by the Senators but what had been said by a witness in his evidence to a United States Senate Committee.[99]
[99] Burchett v Kane [38] and [45].
The importance of attribution was put in this way by Mason P in Nationwide News Pty Ltd v Rogers:[100]
The essential point is that a requirement of attribution places the onus on the reporter to differentiate between the event reported (here court proceedings) upon which the reporter's privilege is derivative, on the one hand; and background information, statements of fact or the reporter's own commentary, on the other hand. The reader is thus enabled to assess and weigh the information by recognising its various sources. Since, ex hypothesi one is dealing with defamatory material it is not unreasonable to require such discrimination.
[100] Nationwide News Pty Ltd v Rogers [2002] NSWCA 71 [10].
In Herron v HarperCollins Publishers Australia Pty Ltd,[101] the defendant publisher contended that a chapter in a book was a fair report of the proceedings of the Royal Commission into Deep Sleep Therapy or a fair summary of the New South Wales, Report of the Royal Commission into Deep Sleep Therapy. In rejecting these defences, Jagot J accepted the applicant's submission to the effect that for the purposes of s 28 and s 29 of the Defamation Act 2005 (NSW), a summary or a report must be characterised objectively as a summary or a report, and where by its subject-matter it is not able to be so characterised, it does not matter that it contains references to proceedings or a published document, especially where they are intermixed with other material.[102]
[101] Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687.
[102] Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [873] [892] ‑ [893], the decision was overturned on appeal but her Honour's conclusions in relation to the protected report defences were not challenged, Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68.
In Nasif v Seven Network (Operations) Ltd,[103] the defendant broadcaster argued the matter complained of was a fair summary of an Annual Information Statement or AIS lodged by a charity. In rejecting the defence, Abraham J cited Herron for the proposition that the matter must bear the character of a 'summary' of a public document and cited Rogers for the proposition that it is not sufficient that the public document is the source for the matter complained of, but it must be apparent that the matter is purporting to summarise the contents of a public document. Her Honour said:[104]
The evaluation of whether the Seven News Report is a fair summary of the 2017 AIS is taken from the position of the ordinary reasonable viewer seeing the Report as a whole rather than dissecting it or only viewing some parts of it: Cummings v Fairfax Digital Australia & New Zealand Pty Limited; Cummings v Fairfax Media Publications Pty Limited [2017] NSWSC 657 at [88] (Cummings). It "is not whether some parts of the publication fairly summarise what was contained in the [2017 AIS], but whether the publication as a whole can be so described": Cummings at [89]. Where there is some extraneous material included, being material that does not arguably summarise the pleadings, the publication as a whole may be deprived of its categorisation as a fair summary of the relevant public document: Cummings at [89]. To be fair and accurate, a report need not be a complete report or be accurate in every respect; it must be substantially accurate. This is a question of fact: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1998) 193 CLR 519 at [42]. There may be errors in the summary, but the protection of the defence will not be lost unless there is a "substantial misrepresentation of material fact which is prejudicial to the [applicant's] reputation": Cummings at [102].
[103] Nasif v Seven Network (Operations) Ltd [2021] FCA 1286.
[104] Nasif v Seven Network (Operations) Ltd (159).
The broadcast contained a reference to the 'most recently reported financials'. Abraham J held this was insufficient to constitute a fair summary of the public document in question the 'AIS 2017'. Her Honour reasoned as follows:[105]
I accept the applicants' submission that the reference to "most recently reported financials" would not have, in the circumstances, been understood by the ordinary reasonable viewer to be a reference to the 2017 AIS. The reference to most recently reported financials does not identify that item. First, nothing in the story identifies that what was being reported was the financial position in 2017. Second, the AIS is a particular type of document, and not one which the ordinary reasonable viewer would know of or consider to be financials (as used in the Report). It is a document relevant only to charities, and even then, depending on the size of the charity the document is not necessarily required to be completed each year. As previously explained, I do not accept the respondents' submission that the ordinary reasonable viewer would have understood the reference to be to the 2017 AIS merely because it was the only "financial" publicly available. I do not accept the underlying premise has been established or that, even if it was, that the inference contended for arises.
[105] Nasif v Seven Network (Operations) Ltd (169).
Thirdly, the intermingling of extraneous material may deprive a report from constituting a fair and accurate report. The point was expressed this way by Kirby J in Chakravarti v Advertiser Newspapers Ltd:[106]
It is not enough that the challenged report be generally fair. It must also be accurate. It must be a report of the proceedings described. To the extent that it goes beyond a report, and the reporter engages in comment, description and elaboration of the reporter's own, the privilege provided for a "report" will be inapplicable and may be entirely lost. The tendency for journalists to intersperse descriptive reports with adjectives and comments of their own is not new. It was remarked upon soon after the statutory provision was first introduced. The practice of adding commentary to reports has not diminished since that time. It appears in the subject articles. Excessive commentary or misleading headlines which amount to commentary run the risk of depriving the text of the quality of fairness essential to attract the privilege. (Footnotes omitted)
[106] Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 [153(1)].
The passage of Kirby J's judgment in Chakravarti quoted in the preceding paragraph was cited with approval by Arden LJ in Curistan v Times Newspapers Ltd,[107] who held that:[108]
… [R]eporting privilege will be lost if the quality of fairness required for reporting privilege is lost by intermingling extraneous material with the material for which privilege is claimed.
[107] Curistan v Times Newspapers Ltd [2008] EWCA Civ 432. [33] [35] [47] and [51].
[108] Curistan v Times Newspapers Ltd [33] [35] [47] and [51].
In an earlier passage in Curistan, her Ladyship cited the 'memorable' passage from Lord Denning's speech in Dingle v Associated Newspapers Ltd,[109] in which his Lordship held as follows:[110]
But here comes the question: Suppose that the reports in other newspapers were privileged, as they were in this case, cannot they be referred to in order to mitigate damage? I think the answer must be 'No'. If a newspaper seeks to rely on the privilege attaching to a parliamentary paper, it can print an extract from the parliamentary paper and can make any fair comment on it. And it can reasonably expect other newspapers to do the same. But if it adds its own spice and prints a story to the same effect as the parliamentary paper, and garnishes and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law. None of its story on that occasion is privileged. It has "put the meat on the bones" and must answer for the whole joint. If it cannot justify it, it must pay damages: and it cannot diminish these by reference to the privileged reports which it and others may have given previously.
[109] Dingle v Associated Newspapers Ltd [1964] AC 371.
[110] Dingle v Associated Newspapers Ltd, (411).
Fourthly, before considering the fairness of a summary or report, it is necessary to determine the meanings conveyed by the publication. In Chakravarti Brennan CJ and McHugh J observed:[111]
The first matter is that, in our view, where a defendant pleads a defence of fair and accurate report in answer to an action for defamation, it is necessary for the tribunal of fact to determine what meanings the publication has before it determines the fairness of the report. The reason for that is that, until the defamatory meaning of the publication is determined, it is not possible to know whether the report is an answer to the plaintiff's claim. A defendant does not lose a defence of fair and accurate report because it is inaccurate in respect of a distinct defamatory imputation which the plaintiff does not sue upon. A plea of fair and accurate report is a plea in confession and avoidance of the plaintiff's claim. Until the plaintiff's claim is defined, the tribunal of fact cannot know what the plea confesses and avoids. Nor can the Court determine whether the report in defaming the plaintiff is nevertheless fair.
[111] Chakravarti v Advertiser Newspapers Ltd [2].

The plaintiff gave evidence about the effect of the publication of the Article on his family. The substance of his evidence was that the publication of the Article was a cause of anxiety and stress for his parents in particular but also for his siblings. His evidence was to the effect that seeing the distress caused to his family was 'deeply upsetting' for him.[200]
[200] ts 48 - 49.
The plaintiff described the effect of the publication of the Article on his career as follows:[201]
Well, up – up to that point, when I was charged and up to this article, I had ambitions of getting back into the media office. When this came out, I – I felt that this completely destroyed any chance of being seen as credible in – in the office environment or having any scope of a career path in the media. And even if I was to leave the department and try to seek any further role in the media, it would be impossible to deal with the main media source in Perth, being The West. I couldn't be a media adviser or liaison or officer for any other department or – it would have been impossible.
So what did you do?---I focused on the hospitality stuff, which is – pays a lot less than my previous roles within the media. I felt like I had lost my status. There was a certain pride to working in the Department of Premier and Cabinet, and I took that very seriously and held it close to my heart. People would, you know, have conversations with me in the past and you're, you know, doing media for a very high profile department. And all of a sudden, it was – you know, I was now waiting tables and serving people and running around trying to, you know, get as many caretaker building manager roles as possible to supplement these roles, none of which pays as much as my – you know, my media career was doing. Plus, that – that – I was fortunate enough when I joined the Department of Premier and Cabinet under the Richard Court Cabinet to be offered the Gold State superannuation award scheme, the one that MPs used to enjoy, and I – I took that on board. I took – I accepted the offer and I contributed six per cent of my – of my pay into the super, and the government was matching with a further six per cent. So my intentions were always to have a longstanding career with the government to retirement age and I had a very, very good superannuation scheme in place, and all that – the prospects of continuing that were destroyed with this one article.
[201] ts 44.
The plaintiff explained that there was no improvement in his social life following his acquittal of the fraud charge in May 2019. His explanation was as follows:[202]
After you were acquitted, did you change anything about your social life, what you had told his Honour that - - -?---When I was – when I was acquitted, you know, I felt that I could, you know, try to start going out more often, my social life, but the – when I did, or attempts to do so, I was always confronted by people, whether the gathering is small or – small or large, conversation quite often turned to "How are you – how are you doing? What's happening with this thing? Is this saga going on? I felt that I continually had to explain to them that I was acquitted, because it wasn't reported anywhere, and this – the article still looming over my head.
When you say the article is still looming over your head, was ‑ ‑ ‑?‑‑‑The insinuation that I was guilty.
Were you aware as to the – whether the online article remained available?---Yes, the online – I first checked for the online article over that weekend when The West first came out. I saw it there, and then, to my astonishment – I check it quite regularly, and to my astonishment, it remained online to this day.
[202] ts 46.
The plaintiff described the effect of the publication on his 'general fitness and health routine' as follows:[203]
I was very active, very healthy. I was very positive. Had a positive outlook on life. I would exercise either in the gym or do martial arts two, three times a week. It was They were social activities for me. interaction with other, you know, like-minded, fit people. All desire to do that just – it lost its – I lost the vitality and desire to continue with those sports that I enjoyed. Been doing martial arts since I was 15 years old and now it took all the enjoyment out of it. This – it hampered the enjoyment, my ability to enjoy intimacy with my partner. It completely destroyed my libido. I would go to family events and my dad continued to say to me, "Are you happy? You've got to be happy in life. You have to be." And I was just – I went from being the most talkative, fun, joking, positive person in the family to now an introvert that would sit there like a fly on the wall, and I couldn't partake in conversations, and if – if somehow I was involved in something, the conversation quite often would turn to me, would make me sink into this lower form of unhappiness.
[203] ts 46 - 47.
As noted earlier, the plaintiff's evidence about the effect of the publication of the Article was challenged vigorously in cross‑examination. The defendant's senior counsel asked the plaintiff whether it was correct that for the month after the Article was published he 'didn't go anywhere except with his sister to the beach'. The plaintiff's first answer to this question was:[204]
To my recollection, I wasn't going anywhere from the time I was charged.
[204] ts 78.
The plaintiff's second answer was 'yes' and he went on to agree that 'it was equally correct to say' that the Article was 'a complete dampener on [his] ability to enjoy the moment' and '[he] immediately started declining invitations to events'.[205] The plaintiff was cross‑examined at some length to the effect that his evidence that he went nowhere other to the beach with his sister was incorrect because he had gone to the cinema on 9 and 30 April 2019.[206] It was suggested to the plaintiff that he was 'falsely seeking to attribute [his] circumstances to the publication of the article in the Weekend West'.
[205] ts 78.
[206] ts 78 - 82.
I do not accept that the plaintiff was engaging in a deliberate attempt to attribute his circumstances to the publication of the Article. Three points may be made. First, the plaintiff did not give evidence‑in‑chief to the effect that he did not go anywhere other than to the beach with his sister after the publication of the Article, the proposition was put to him in cross-examination, without the opportunity for the plaintiff to elucidate what he understood by the phrase 'wasn't going anywhere'. Secondly, when the proposition was first put to him, his answer was 'I wasn't going anywhere from the time I was charged' which undermines the notion that his subsequent evidence was deliberately false. Thirdly, and not unreasonably, it is clear that the plaintiff understood the phrase 'wasn't going anywhere' in a figurative rather than a literal sense. That is, he understood the phrase 'wasn't going anywhere' to mean that 'wasn't going to events or functions' and that going to the cinema with his cousin on two occasions in April (that the plaintiff was accompanied by his cousin was subsequently established) was not, in the plaintiff's understanding, going out to an event of function.
The plaintiff was cross-examined to establish that other matters (his conflict with the work colleague who had initiated the complaint against him, his arrest and the subsequent search of his apartment and his parent's home, the fact that he had been charged and had appeared in court and the fact he had been suspended without pay) had contributed to the deterioration in his enjoyment of life and his withdrawal from his formerly active social circle.[207] The substance of the plaintiff's response to this line of cross-examination was to the effect that they were matters that were unpleasant but which did not stress him.[208] He explained that the other matters did not cause him to feel stress because he knew he had done nothing wrong.[209] The plaintiff's evidence was that he was angry and frustrated but not distressed.[210]
[207] ts 91 - 98.
[208] ts 93.
[209] ts 93.
[210] ts 96.
The plaintiff accepted that the Channel Ten news broadcast defamed him in the same manner as the Article but the effect of his evidence was that the broadcast did not contribute to the deterioration in his enjoyment of life.[211] The plaintiff did not see the Channel Ten news broadcast at the time it was broadcast and he only became aware of what was said in the broadcast when he obtained a transcript by which time he had read the Article.[212]
[211] ts 98 - 99.
[212] ts 88.
I accept that the plaintiff may have regarded the work conflict, the police investigation and charge and the suspension from his employment as matters that he could manage whereas he could not manage what was said in the media about him but, even so, I have difficulty in accepting that the plaintiff was as sanguine about the effect of those other matters on his life and well-being. I do not suggest that the plaintiff was dishonest in his evidence. Rather, in my view, subconsciously the plaintiff has subordinated the negative effect of those matters to the effects felt by the publication of the Article and there may have been an element of subconscious rationalisation in his characterisation of those events as 'unpleasant' as opposed to 'stressful'. Objectively, however, the conflict in the workplace, the police investigation and the criminal charge, and the suspension without pay are all matters that would create stress for even the most resilient of personalities. That they adversely affected the plaintiff to a material extent is evidenced by the first answer that he gave when cross-examined about 'going out':
To my recollection, I wasn't going anywhere from the time I was charged.
The plaintiff gave evidence that his health had deteriorated since the publication of the Article.[213] The plaintiff's evidence was that in the first week after publication 'he was feeling a lot of anxiety and [his] heart was racing and beating' and he went to see his local GP who advised him to be calm and meditate.[214] The plaintiff gave evidence that in October 2021 when having dinner with friends and 'talking about [his] life and what was going', he felt chest pains and passed out.[215] The plaintiff was taken to the Emergency Department of Fiona Stanley Hospital and his condition was investigated and he was discharged but no cause of the pain he had experienced was identified.[216] Subsequently, the plaintiff developed palpitations and, in May 2022, when performing a stress echo test on a treadmill to investigate the palpitations the plaintiff experienced an unusually rapid heart rate. He drove himself to the Emergency Department of Sir Charles Gairdner Hospital and his condition stabilised.[217]
[213] ts 99.
[214] ts 47.
[215] ts 47.
[216] Exhibit 58.
[217] Exhibit 62.
In the plaintiff's evidence-in-chief, he disclosed the existence of his LinkedIn account and his Facebook account. The purpose of this evidence was to demonstrate that the plaintiff's contact details could have been discovered by Mr de Kruijff. When cross-examined about his Instagram account it was put to the plaintiff, in effect, that he had deliberately not disclosed the existence of his Instagram account because it contained posts that, contrary to his evidence, demonstrated that the plaintiff had not lost his enjoyment in life.[218] Much of the re‑examination of the plaintiff was directed to establishing that the majority of the images shown on his Instagram account after the publication of the Article show the plaintiff in a work context. It is unnecessary to refer to the detail of the evidence. I accept that there are a small number of posts to the Instagram account in the post‑publication period that show the plaintiff driving his Ford Mustang[219] but I accept that the majority of the posts (and there were not many)[220] show the plaintiff in a work context. The Instagram posts do not support the defendant's contention that the plaintiff exaggerated the extent to which his social activities have declined. I do not accept that the plaintiff had deliberately not disclosed his Instagram account.
[218] ts 102 - 110.
[219] Exhibit 85 and ts 104 - 107.
[220] Exhibit 85 and ts 109 - 116.
On 6 April 2019, and subsequently, the plaintiff exchanged messages with friends about the Article.[221] In one instance the plaintiff sent a copy of the Article to a friend. The plaintiff was cross-examined about the messages.[222] In the plaintiff's friends' messages to him, they expressed their support for him and made some observations on the Article. In his messages, the plaintiff attributed the publication of the Article to conflict he had experienced in the workplace and a 'media beat up' and generally expressed an attitude of defiance. Ultimately, I do not find the messages helpful in assessing the effect of the publication of the Article on the plaintiff or in assessing the attitude of his friends towards him after the publication. My impression is that there was a degree of well-intentioned artificiality in the messages. The plaintiff's friends were primarily concerned to support him and the plaintiff was trying 'to put on a brave face' on what had occurred.

Analysis and conclusions

[221] Exhibits 45 and 46.

[222] ts 122 - 133.

Subject to the reservation expressed at [246] I accept the plaintiff's account of the effects of the publication of the Article on him and his family as being generally accurate. Pulling the various aspects of the evidence together I make these observations,
First, I am satisfied that the publication of the Article caused the plaintiff considerable hurt and distress. As I have explained I consider the plaintiff started to curtail his social life from the time he was charged on 12 December 2018 but the negative effects of the difficulties the plaintiff had encountered to that point were eclipsed by the profoundly adverse effect of the publication of the Article imputing that the plaintiff had been dishonest in his conduct as a government official in the Saturday edition of the only state-wide print newspaper circulating in Western Australia (and of which 186,000 print copies were sold). This is not to suggest that in assessing the hurt and distress the plaintiff experienced the matters the plaintiff characterised as 'unpleasant' are to be ignored. While those matters are relevant, in a practical sense, it is impossible to disentangle the effect of those matters from the effect of the publication of the Article and express a comparative assessment in percentage terms. The assessment of the hurt and distress caused by the defamation is a matter of impression.
Secondly, I infer that a major cause of the plaintiff's distress lay in his perception of how others regarded him and his inability to address the impression he perceived had been created by the Article. I accept that the plaintiff avoided social events in order to avoid questions about the proceedings and that he became increasingly introverted whereas formerly he had been gregarious and outgoing. I am comfortably satisfied that the publication of the Article substantially diminished the plaintiff's enjoyment of life.
Thirdly, in the week following the publication of the Article the plaintiff felt so anxious that his heart was 'racing' and he sought advice from his general medical practitioner and that is a matter that must be taken into account in the assessment of damages. In the absence of medical evidence, I am not persuaded that the episodes of ill-health that led to the two occasions on which the plaintiff attended the emergency departments of hospitals were caused by the publication of the Article.
Fourthly, while there was no independent evidence of damage to the plaintiff's reputation, such damage is presumed. I do not rely on the plaintiff's evidence that the publication of the Article would make it difficult to pursue a career in the media in Western Australia as evidence of damage to his reputation but I accept that he genuinely held the opinion that his prospects for a career in the media had been damaged and that this contributed to the distress he felt.
Fifthly, the plaintiff's circumstances are not sufficiently analogous to the circumstances in which Andrews damages are awarded for a general loss of business to justify an award of damages on that basis.
Sixthly, the plaintiff is not entitled to compensation for the distress experienced by members of his family but witnessing their distress compounded the hurt he felt and in that way the effect of the publication of the Article on his family is relevant.
Seventhly, as the plaintiff acknowledged, his complaint about the Article and the complaint he made about the Channel Ten broadcast was effectively the same ‑ both matters 'insinuated that he had defrauded the public purse'. It is, however, understandable that the Article caused the plaintiff a greater level of hurt and distress than the Channel 10 broadcast for the following four reasons. First, the plaintiff did not learn what had been said in the Channel 10 broadcast until after he had read the Article. Secondly, television is a transient medium and the duration of the Channel 10 broadcast was 41 seconds. Thirdly, by way of contrast, the Article appeared in three editions of the Weekend West, including the print edition. Fourthly, the Article continued to be published on the 'The West Australian' website. Notwithstanding these matters, the defendant's liability to the plaintiff for damages for the publication of the Article is mitigated by the compensation the plaintiff received from Ten Network Pty Ltd for the Channel Ten broadcast.
Eighthly, the plaintiff was cross-examined robustly. I am not persuaded, however, that the cross-examination demonstrated a lack of bona fides on the part of the defendant or otherwise constituted conduct that was improper or unjustifiable.
Ninthly, I accept the plaintiff's evidence that the continued publication of the online version of the Article aggravated the hurt felt by him. The continued publication of the online article for a period of approximately five years, notwithstanding both the service of the plaintiff's concerns notice which informed the defendant that the plaintiff had been acquitted and the subsequent commencement of proceedings, appears calculated to aggravate the plaintiff's hurt. It extended the life of the defamatory imputation and I have no doubt that the hurt this caused contributed to the continued deterioration in the plaintiff's enjoyment of life. The defendant's decision to continue to publish the Article, especially following the acquittal of the plaintiff, is difficult to understand. None of the defendant's witnesses sought to give an explanation. There is no apparent editorial justification for continuing to report that the plaintiff had been charged without also reporting he had been acquitted. In my judgment, the continued publication of the Article online very significantly aggravated the hurt felt by the plaintiff and he is entitled to a substantial increase in compensatory damages.
If the compensation received by the plaintiff from Ten Network Pty Ltd was to be ignored, I would assess the damages, including aggravated damages, to be awarded to the plaintiff in the sum of $250,000. For the reasons given, however, account must be taken of the compensation received by the plaintiff from Ten Network Pty Ltd in respect of the defamation in the Channel 10 broadcast. Making the allowance of $45,000 for costs to which I referred earlier, the sum to be deducted from my assessment of $250,000, is $70,000 reducing the award to be made to the plaintiff to $180,000. I will hear from the parties in relation to interest and costs.

Appendix A

Appendix B

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MH
Associate to the Honourable Justice Tottle
5 JULY 2024