Macquarie Radio Network Pty Ltd v Arthur Dent - [2007] NSWCA 261

NEW SOUTH WALES COURT OF APPEAL

CITATION: Macquarie Radio Network Pty Ltd v Arthur Dent [2007] NSWCA 261

FILE NUMBER(S):
40244/06

HEARING DATE(S): 1 March 2007

JUDGMENT DATE: 27 September 2007

PARTIES:
Macquarie Radio Network Pty Ltd (Appellant)
Arthur Dent (Respondent)

JUDGMENT OF: Mason P Beazley JA Basten JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20018/03

LOWER COURT JUDICIAL OFFICER: Bell J

LOWER COURT DATE OF DECISION: 5 April 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
Arthur Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186

COUNSEL:
B R McClintock SC (Appellant)
C A Evatt; C J Dibb (Respondent)

SOLICITORS:
Banki Haddock Fiora (Appellant)
Carters the Law Firm (Respondent)

CATCHWORDS:
DEFAMATION – protected report – report of court proceedings in newspaper article – report inaccurate – newspaper article subsequently discussed on talkback radio – defamatory imputations contained in radio host’s broadcast – whether comments of radio host a fair summary of the protected report for purposes of s 24(3) of the Defamation Act 1974 (NSW) – whether ordinary reasonable listener could differentiate between comments of radio host and content of Herald article
DEFAMATION – report of court proceedings in newspaper article – newspaper article subsequently discussed on talkback radio – defamatory imputations contained in radio host’s broadcast – broadcast material was partly proper material for comment under s 30 of the Defamation Act to the extent it included the content of the protected report – whether imputations represented opinions which might reasonably be held

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW) s 56
Defamation Act 1974 (NSW) ss 7A, 7A(4), 24, 24(1), 24(2), 24(3), 24(4), 29(1), 30, 30(3)(b), 31, 33, 34, Sch 2 cl 2(5)
Social Security Act 1991 (Cth), s 94(1)
Suitors’ Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW) s 75A

CASES CITED:
Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313
Arthur Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186
Burchett v Kane [1980] 2 NSWLR 266
Carleton v Australian Broadcasting Corporation (2002) 172 FLR 398; [2002] ACTSC 127
Hunt v The Star Newspaper Co-Ltd [1908] 2 KB 309
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164
Nationwide News Pty Ltd v Christopher Michael Rogers [2002] NSWCA 71
Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349
New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Rogers v Nationwide News Pty Limited (2003) 216 CLR 327; [2003] HCA 52
Sutherland v ACP Publishing Pty Limited [2000] NSWSC 1139
Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376
Thompson v Truth and Sportsman Limited (1934) 34 SR (NSW) 21
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58
Report of the Law Reform Commission (New South Wales) on Defamation (LRC 11 1971)
The Australian Concise Oxford Dictionary 2nd edition (1995) Melbourne, Oxford University Press

DECISION:
The appeal is dismissed with costs.

JUDGMENT:

- 40 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40244/06
MASON P
BEAZLEY JA
BASTEN JA
27 September 2007

Macquarie Radio Network Pty Ltd v Arthur Dent

Headnote

On 12 June 2002, Ray Hadley, a broadcaster on the radio station 2GB, of which the appellant is licensee, broadcast a statement about the respondent, based upon a report published that morning in the newspaper, The Sydney Morning Herald. The broadcast and the Herald article upon which it was based related to a damages claim which was then being heard in the District Court, brought by the respondent in respect of injuries he suffered in a parachute jump. The respondent claimed that the radio broadcast was defamatory of him and he brought proceedings against the appellant claiming damages for defamation.

Following a trial before a jury pursuant to s 7A of the Defamation Act 1974 (NSW) (the Defamation Act), the jury found that three imputations were conveyed by the broadcast and were defamatory of the respondent.

The matter came before Bell J pursuant to s 7A(4) of the Defamation Act for determination of the defences and if applicable, the damages to which the respondent was entitled. The appellant defended the defamation proceedings on a number of bases, including that the broadcast was a ‘fair summary’ of ‘protected report’ within the meaning of ss 24(3) and 24(4) of the Defamation Act or was ‘comment’ within the meaning of s 30 of the Defamation Act.

Her Honour rejected all defences raised by the appellant and ordered a verdict and judgment in favour of the respondent in the sum of $65,000. The appellant was granted leave to appeal from her Honour’s rejection of the defences provided by ss 24(3), (4) and 30.

Held per BEAZLEY JA (MASON P agreeing):

(1) A report does not need to be a substantially accurate report in order to be properly classified as a ‘protected report’ for the purposes of s 24(1): [30]
Rogers v Nationwide News Pty Limited (2003) 216 CLR 327; [2003] HCA 52 (cited)

(2) If the ordinary reasonable listener would not have distinguished between the material in the broadcast so as to appreciate what was derived from the Herald article and what Mr Hadley added there would not be a fair summary of the Herald article so the defence under s 24(3) would not be available. Whether the ordinary reasonable listener would have differentiated the material was a question of fact: [44]-[46]
(3) Section 24(4) of the Defamation Act provided for a defence where what was published was said to be a ‘protected report’ but was not in fact a ‘protected report’ under s 24. As the Herald article was a ‘protected report’ pursuant to Sch 2 cl 2(5), there was no defence available to the appellant under s 24(4): [32]-[33]
(4) An appellate court is, in general, in as good a position as the trial judge to decide upon the proper inference to be drawn from undisputed facts. In accordance with the constraints on its functions, however, an appellate court should not intervene merely because a different view of the facts might be available or because it might draw a different inference: [48]-[50]
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9; (applied) Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 (cited)

(5) While the ordinary reasonable listener would have understood that part of Mr Hadley’s broadcast was differentiated from the contents of the Herald article, her Honour was correct in finding that the ordinary reasonable listener would have understood that some of the broadcast material came from the Herald article when that was not the case: [52]-[63]
(6) The question of ‘fair summary’ has to be determined by reference to the later publication as a whole. In circumstances where a later publication adds, in a significant way and without sufficient differentiation, to the material that is contained in the ‘protected report’, it is not sufficient for there to be a mix of material, some of which accurately and fairly summarises what is in the ‘protected report’ and some of which does not, if the reader or listener cannot decipher the extent to which the matter that conveyed the defamatory imputations went beyond what was in the protected report. In this case, that differentiation could not be made. As a result, there was no error in her Honour’s conclusion that the broadcast was not a ‘fair summary’ of the Herald report: [66]
Rogers v Nationwide News Pty Limited (2003) 216 CLR 327; [2003] HCA 52 (followed)

(7) The defence under s 24(3) was not directed to the question whether the ‘protected report’ conveyed the imputations but was directed to protecting the later publication of a ‘protected report’. In this case the broadcast did not have the protection of s 24(3): [73]
Rogers v Nationwide News Pty Limited (2003) 216 CLR 327; [2003] HCA 52 (followed)

(8) The defence of comment related to the defamatory imputations, not the published matter. However, regard may be had to the published matter: [85]
New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340; John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 (cited)

(9)          To the extent that the broadcast material included the content of the Herald article, it was proper material for comment under s 30(3)(b) of the Defamation Act: [103]
(10)        Imputations (a) and (c) were opinions which might reasonably be based on the Herald article. As a result, the respondent’s causes of action based on imputations (a) and (c) were defeated by the defence of comment: [105], [109]-[110]
(11)        Imputation (b) was not an opinion that might reasonably have been based on the Herald article. Therefore, the defence of comment was not available. As the damage to the respondent’s reputation and the hurt and distress suffered was not divisible between the three imputations, no interference should be made to her Honour’s award of damages: [106]-[108], [110], [113]
Held per BASTEN JA (dissenting):
(12) If a defendant asserts that it has a defence under s 24(3) of the Defamation Act for a defamatory publication, it will be necessary to consider whether the later publication, even if it does not adopt the precise language of the protected report, nevertheless falls within the terminology of that section. The material contained in lines 73-77, 199-204 and 207-209 constituted a fair summary of the protected report: [123]
(13) To the extent that the publication goes beyond the terms of s 24(3), there may be a defence of ‘fair comment’ if it constitutes a comment ‘based on’ proper material for comment; a protected report constitutes proper material: s 30(1) and (3): [124]
(14)        In relation to imputation (a), the existence of a possible explanation did not mean that the coincidence of the two circumstances identified was not reasonably capable of supporting the defamatory imputation. However, if the respondent was capable of engaging in skydiving, at the intensity of almost once per day for 30 years, the inference that he was capable of, but deliberating avoiding work, was reasonably open: [129]
(15)        In relation to imputation (b), the fact that two circumstances were ‘not necessarily inconsistent’ did not mean that the existence of one may not provide a reasonable basis for doubting the other. As such imputation (b) was reasonably open. No different reasoning was adopted in relation to imputation (c), each imputation in effect involving the same elements: [131]-[132]
(16)        Because part of the material constituted a fair summary of a protected report and part constituted fair comment, based on proper material for comment, the appeal should be upheld: [133]

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40244/06
MASON P
BEAZLEY JA
BASTEN JA
27 September 2007

Macquarie Radio Network Pty Ltd v Arthur Dent

Judgment

MASON P: I agree with Beazley JA.
BEAZLEY JA: On 12 June 2002, Ray Hadley, a broadcaster on the radio station 2GB, of which the appellant is licensee, broadcast a statement about the respondent, based upon a report published that morning in the newspaper The Sydney Morning Herald (the Herald article). The broadcast (and the Herald article upon which it was based) related to a damages claim which was then being heard in the District Court, brought by the respondent in respect of injuries he suffered in a parachute jump. The respondent claimed that the radio broadcast was defamatory of him and he brought proceedings against the appellant claiming damages for defamation.
The appellant defended the defamation proceedings on a number of bases, including that the broadcast was a ‘protected report’ within the meaning of ss 24(3) and 24(4) of the Defamation Act 1974 (NSW) (the Defamation Act) (now repealed), or was ‘comment’ within the meaning of s 30 of the Defamation Act.
Following a trial before a jury pursuant to s 7A of the Defamation Act, the jury found that the following imputations were conveyed by the broadcast and were defamatory of the respondent:
(a) The [respondent] is a malingerer.
(b)The [respondent] fraudulently obtained a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps.
(c)The [respondent] received a disability pension even though he was well enough to work.
The matter came before Bell J pursuant to s 7A(4) of the Defamation Act for determination of the defences and if applicable the damages to which the respondent was entitled. Her Honour rejected all defences raised by the appellant, including, relevantly, the defences under ss 24(3) and (4) and the ‘comment’ defence under ss 30(3)(b), 33 and 34. Her Honour awarded damages to the respondent in the sum of $65,000 and ordered a verdict and judgment for that amount in his favour.
The appellant was granted leave to appeal from her Honour’s rejection of the defences under ss 24(3) and (4) and the defence of comment.
Background
The respondent was injured in a skydiving accident in October 1997. For many years prior to that, commencing in the early 1980s, the respondent had been in receipt of unemployment benefits, as a result of being unable to obtain work in the metallurgy industry where he had been employed, due to a downturn in that industry. He had found alternative employment for a short time but then had been unemployed since about 1982. In the meantime, he had pursued his interest in skydiving, although not in a remunerative capacity sufficient to affect his entitlement to unemployment benefits.
During this period, the respondent made two separate applications for a disability pension, both of which were rejected. He said he first did so in 1992, when the Government dropped the “disability rate” from 80 per cent to 20 per cent. I understand the respondent to mean by this that a person had an entitlement to a disability pension if the person could establish that the disability from which they suffered interfered with their work capacity by at least 20 per cent, rather than 80 per cent as had previously been required.
At the time the respondent first applied for a disability pension, he was suffering from back problems, which had commenced in 1972, when he had a motorcycle accident in which he “badly” hurt his lower back. Notwithstanding the injury to his back, the respondent had remained in constant employment until approximately 1982, when the downturn in the metallurgy industry occurred.
The respondent made a second application for a disability pension in 1996 as a result of having injured his knee the previous year. That application was also rejected. Notwithstanding that the respondent had back and knee injuries, he continued to skydive, until his accident in October 1997. After that accident, the respondent again applied for and was granted a disability pension.
As already explained, the respondent commenced proceedings in the District Court, claiming damages for the injuries that he received in the skydiving accident. The hearing of the proceedings commenced before Judge Ainslie-Wallace on 11 June 2002. During the course of his evidence, the respondent gave the history of being in receipt of social security benefits to the effect that I have just outlined.
On 12 June 2002, an article was published in the Herald under the byline of journalist Leonie Lamont and headed, “Who dares wins – or sues”. The article reported as follows:
Two middle-aged men injured in dare devil sporting pursuits launched separate actions in the Sydney District Court yesterday, claiming damages as result of alleged negligence by the sports’ organisers, and others.
…
In another case, a Mittagong man in his early 40’s who changed his name to Arthur Dent after the figure from the Hitchhikers Guide to the Galaxy – is suing after an October 1997 incident when his leg strap snagged on a hook on a plane during skydiving.
Mr Dent, pictured, says he has done about 10,000 jumps and was on the plane to video parachutists. He is claiming unspecified damages. He told Judge Anne Ainslie-Wallace he had impaired memory, difficulty concentrating, pain in his back, arm and leg, lost teeth and suffered shock, anxiety and depression. The Court heard Mr Dent had been on a disability pension since 1972 after a motorcycle accident.” (Emphasis added)
Later that morning, Mr Hadley referred to the Herald article in the course of his broadcast. Relevantly, he said (keeping the line numbers as they appeared in Exhibit F in the proceedings before Bell J):
“71… A couple of
72more ridiculous liability claims today mentioned in the Herald. One of
73them a person has given evidence that he made 10,000 parachute
74jumps before suffering some injuries. Apparently he got caught on
75some sort of hook on the aircraft. I don’t know the extent of the
76injuries it is not documented but the bloke has told the court he had
77been on a disability pension since 1972 since a motorcycle accident.
78Now call me stupid, call me naïve, call me whatever you like but how
79does someone on a disability pension who is unable to work, because
80I would imagine he is not able-bodied. You see it is not stress or
81some sort of mental problem. He’s been on a disability pension
82because he had a motorcycle accident. Now if you can’t work and
83          you’re on a disability pension, how do you keep skydiving?
…
199        And a fellow called Arthur Dent, who apparently changed
200his name from Mittagong is suing after a skydiving incident in which
201his leg strap snagged on a hook on a plane. He told Judge Anne
202Ainslie-Wallace he had impaired memory, difficulty concentrating,
203pain in his back, arm and leg, lost teeth and suffered shock, anxiety
204        and depression. I get depressed reading about it.
206         … The
207court heard Mr Dent had been on a disability pension since 1972 after
208a motorcycle accident. But Mr Dent told the court he’s done about
20910,000 parachute jumps. How does a man on a disability pension
210continue to jump out of a plane? If you can’t work, one would assume
211you’re not well enough to jump out of planes but he does.
…
360HADLEY: And the same with I mean I would never I don’t want to jump out of a
361plane. Everyone tells me it’s a wonderful thing and you should try it.
362Leave me out of it, but this bloke jumped out of a plane 10,000 times.
363        MATT: Yup.
364HADLEY: And, I mean by its very nature once you get off the ground in a plane
365with a parachute on I would imagine every time you jump out of the
366plane you are taking you know exactly your life in your hands.
367MATT: Well I agree I agree totally and I think that you know it’s obviously just
368been a shift in everyone’s attitude but we need to shift back and that
369is that we have got to take some responsibility for our own actions
370        that’s for sure.” (Emphases added)
Later, during the broadcast, Mr Hadley had a conversation with a listener, who questioned how someone, on a disability allowance, could afford to engage in parachute jumping. Mr Hadley responded:
“498Well if we are to believe the paper today, he’s been on the same
499allowance since 1972. It’s now 2002 and in that period of time he has
500made 20,000 or is it 10,000 jumps. It’s a lot of jumps anyway. 10,000
501        jumps.”
The listener commented:
“502      My goodness since 1972.”
Mr Hadley responded:
“503      Hmmm. After a motorcycle accident I think it was.”
Bell J found that the concluding sentence of the Herald article did not accurately reflect the evidence given in the respondent’s damages case in the District Court. Her Honour also concluded that Mr Hadley’s statements at lines 77 and 207 contained the same misrepresentation as the Herald article. It was for this reason that the appellant’s defence under s 24(2), that the broadcast was a ‘fair protected report’, failed. Leave to appeal against that part of her Honour’s decision was refused.
The section 24(3) and (4) defences

The appellant’s essential argument on the appeal was that Mr Hadley’s broadcast was a later publication of a ‘protected report’, or a ‘fair summary’ of a ‘protected report’, within the meaning of s 24(3), or alternatively was a fair summary of a purported protected report within the meaning of s 24(4) of the Defamation Act, notwithstanding that the underlying report upon which the broadcast was based was inaccurate and notwithstanding that the broadcast itself repeated the inaccuracy.
Section 24 of the Defamation Act provides:
“24 Protected reports—Schedule 2
(1)In this section, protected report means a report of proceedings specified in clause 2 of Schedule 2 as proceedings for the purposes of this definition.
(2)There is a defence for the publication of a fair protected report.
(3)Where a protected report is published by any person, there is a defence for a later publication by another person of the protected report or a copy of the protected report, or of a fair extract or fair abstract from, or fair summary of, the protected report, if the second person does not, at the time of the later publication, have knowledge which should make him or her aware that the protected report is not fair.
(4)Where material purporting to be a protected report is published by any person, there is a defence for a later publication by another person of the material or a copy of the material or of a fair extract or fair abstract from, or fair summary of, the material, if the second person does not, at the time of the later publication, have knowledge which should make him or her aware that the material is not a protected report or is not fair.”
Section 24(1): ‘Protected report’
It is important at the outset to understand the various matters that arise under the defences for which provision is made under s 24. First, s 24(1) introduces the concept of a ‘protected report’. Relevantly, pursuant to Sch 2 cl 2(5), a report of proceedings in a public court is a specified ‘protected report’.
Section 24(2): Fair protected report
Section 24(2) provides a defence in respect of the publication of a ‘fair protected report’. A ‘fair protected report’ is one that is a substantially accurate account of what took place in the relevant proceedings: Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58 per Hunt J at 63. See also: Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376; Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313; Burchett v Kane [1980] 2 NSWLR 266.
Hunt J’s construction of the meaning of ‘fair protected report’ reflects the proposal made by the Law Reform Commission in its Report of the Law Reform Commission (New South Wales) on Defamation (LRC 11 1971) at [126]:
“… To be fair a report must achieve a standard of accuracy. ‘The report need not be verbatim, but to be privileged it must accurately express what took place. Errors may occur; but if they are such as not substantially to alter the impression that the reader would have received had he been present at the trial, the protection is not lost. If, however, there is a substantial misrepresentation of a material fact prejudicial to the plaintiff’s reputation, the report must be regarded as unfair …’: Thom v Associated Newspapers Ltd (1964) SR 376, at p 380.”
Section 24(3): Later publication
Sections 24(3) and (4) relate to the later publication of a ‘protected report’ or material purporting to be a ‘protected report’, respectively. It is important to note the difference between a defence under subs (2) and the defences which govern later publication under subss (3) and (4). Subsection (3) relates to the later publication of a ‘protected report’, not a ‘fair protected report’. Subsection (4) relates to the later publication of ‘material purporting to be a protected report’. ‘Material purporting to be a protected report’ is neither a ‘protected report’ nor a ‘fair protected report’.
The Law Reform Commission reported on subss (3) and (4) in these terms:
“127Section 24(3) of the Bill makes an innovation. ‘Protected reports' in newspapers and other journals, and broadcast reports, are a large part of the material upon which informed discussion of matters of public interest must be based. Such discussion must involve repetition of the reported matter or publication of the substance of the reported matter, in whole or in part. The law should not inhibit such discussion. But it would do so if a person engaging in the discussion were at risk in defamation in case of some hidden unfairness in a protected report previously published by some one else. Section 24(3) therefore gives a defence to a person who publishes matter in reliance on a protected report which he does not have grounds for knowing to be unfair, being a protected report previously published by some one else.
128Section 24(4) is analogous to section 24(3), but deals with the case of publication of matter in reliance on what purports to be a protected report but in fact is not. In the cases dealt with by s 24(3), (4), the real author of the harm to the plaintiff is the original publisher of matter bearing a deceptive appearance. A victim of the deception who republishes the material for a proper purpose ought not to be liable in defamation."
Although Bell J found that the 2GB broadcast contained the same misrepresentation as the Herald article, there was no contention that Mr Hadley knew or had any knowledge such that he ought to have known, that the Herald article was not accurate. Rather, the issue as it eventually emerged, was whether Mr Hadley’s comments were a ‘fair summary’ of the Herald article, within the meaning of s 24(3), or alternatively, was a ‘fair summary’ of ‘material purporting to be a protected report’. It appears that at first instance, senior counsel for the appellant finally relied upon s 24(3). That was also the basis upon which he argued the matter on the appeal, although the defence under s 24(4) was not abandoned.
Before dealing with the question whether Mr Hadley’s broadcast was a ‘fair summary’ for the purposes of either or both ss 24(3) and (4), it is convenient to deal first with the respondent’s contention that the defences under ss 24(3) and (4) are not available where the underlying report is inaccurate.
It was submitted that a report which contains a substantial misrepresentation of evidence cannot be a ‘protected report’ for the purposes of s 24. It was argued that to be “protected”, a report must be substantially accurate. Counsel for the respondent relied, in support of this proposition, upon the statements of Gleeson CJ and Gummow J in Rogers v Nationwide News Pty Limited (2003) 216 CLR 327; [2003] HCA 52, especially at [18].
In Rogers, Gleeson CJ and Gummow J, at [15], referred to the underlying policy of s 24, namely, the public interest in the open administration of justice. They observed that:
“… interest [in the open administration of justice] 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”: see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 324.”
At [18], in the passage upon which the respondent relies, their Honours said:
“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 [1958] 2 QB 275 at 285, 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 [1980] 2 NSWLR 266. 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.” (Original emphasis)
In my opinion, their Honours were not stating that a ‘protected report’ for the purposes of s 24(1) had to be substantially accurate. Rather, the focus in that paragraph was upon what constituted a ‘protected report’. It was in that context that the question of attribution was significant. See also Nationwide News Pty Ltd v Christopher Michael Rogers [2002] NSWCA 71, per Mason P, who emphasised the need for attribution, either express or implied, to the source. His Honour said at [10]:
“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.”
The respondent did not dispute that the Herald article was a ‘report’. Rather, he argued that it was not a ‘protected report’. If the Herald article was not a ‘protected report’, it followed that the radio broadcast could not have the protection provided by s 24.
In my opinion, the respondent’s argument on this point should be rejected. As I have already stated above, a report of court proceedings is a ‘protected report’. It does not need to be a substantially accurate report in order to be properly classified as a ‘protected report’ for the purposes of s 24(1). A ‘protected report’ must be substantially accurate for the purposes of s 24(2), which provides for the defence of ‘fair protected report’. However, s 24(3) does not require that the later publication be of a ‘fair protected report’. This is apparent from the language of s 24(3). Should there be any doubt about this, it is resolved by the later comments of Gleeson CJ and Gummow J in Rogers v Nationwide News Pty Limited at [21], where their Honours said:
“The legislative purpose of s 24(3) is to provide a defence to a person who publishes matter in reliance upon a protected report previously published by someone else, where that person does not have grounds for knowing the report to be unfair.” (Emphasis added)
Their Honours referred to paras [127]-[128] of the Law Reform Commission Report to which reference is made above. Heydon J, at [150], also referred to the Law Reform Commission’s Report, stating that the language of subs (3) and (4):
“… identifies the mischief being remedied as the risk that a person who is engaging in ‘informed discussion of matters of public interest’ may commit the tort of defamation ‘in case of some hidden unfairness in a protected report previously published by some one else’ because it is ‘matter bearing a deceptive appearance’.”
See to similar effect Hayne J at [52].
Section 24(4) is directed to another circumstance altogether. It provides for a defence where what is published is said to be a ‘protected report’, but is not in fact a ‘protected report’. This could occur, for example, where the report purported to be, but was not, a report of one of the proceedings specified in Sch 2 cl 2. It could also occur where there was a later publication of material that did not have sufficient attribution so as to be properly characterised as a ‘protected report’ in the sense discussed by Gleeson CJ and Gummow J in Rogers v Nationwide News Pty Limited and by Mason P in that case in the Court of Appeal. Neither of these circumstances apply here.
In this case, it was not suggested that the Herald article was not a report of the District Court proceedings. For the reasons I have given, it was a ‘protected report’. The question for determination, therefore, is whether the appellant was protected from the defamatory effect of the broadcast by the defence of later publication under s 24(3). I should state immediately that in my opinion, there is no defence available to the appellant under s 24(4), for the reasons I have given at [32].
The s 24(3) defence – fair summary of a protected report
The appellant’s reliance on the s 24 defences was based upon lines 72-74; 76-77; 81-82; 199-204; 207-209; 362; 498-501; and 503. I will adopt her Honour’s reference to these lines as the particularised lines. Those particularised lines contain the statements that the respondent had done 10,000 parachute jumps and was on a disability pension. On one occasion, at line 77, Mr Hadley used the words “since 1972 since a motorcycle accident”. At line 82, he used the words “because he had a motorcycle accident”. At lines 207-208 he said “since 1972 after a motorcycle accident” (emphases added).
The trial judge approached the question whether the broadcast was a ‘fair summary’ of the Herald article first by analysing and comparing the content of the relevant portions of both. Her Honour considered, at [113], that the following statements were made in the Herald article:
1. The [respondent] has done about ten thousand jumps;
2. He was on the plane in October 1997 to video parachutists;
3.He had been on a disability pension since 1972 after a motorcycle accident.
At [114], her Honour set out lines 79-82 of Mr Hadley’s broadcast and analysed their content at [115] as follows:
“The assertions made by Mr Hadley that (i) the [respondent] was unable to work; (ii) was to be imagined to be not able-bodied; (iii) it is not stress or some sort of mental problem and (iv) was on the disability pension because he had a motorcycle accident …”
Her Honour said that these assertions were “statements added by Mr Hadley” and not taken from the Herald article. Her Honour considered that this material was not distinguished from the particularised lines, although I note in passing that line 52 was included in this material. However, no point was taken about that and I do not consider that anything turns on it. Her Honour continued at [115]:
“The ordinary reasonable listener would have understood the assertions that the [respondent] is not suffering from stress or some sort of mental problem and that he had been on the disability pension because of the motorcycle accident to have formed part of the Herald report. It is the material added by Mr Hadley that in combination with the assertion that the [respondent] has done ten thousand parachute jumps [sic] gives rise to the imputations.”
The appellant did not contend that this summary of lines 79-82 was incorrect. Rather, it was submitted that this material was distinguished from the particularised lines, which, it was argued, were a fair summary of the Herald article and that in any event the assertion in item (iv) that the respondent “was on the disability pension because he had a motorcycle accident” was to be found in the Herald article. In other words, it was submitted that there was no difference between that assertion and the statement that the respondent had been on a disability pension since 1972 after a motorcycle accident.
It was suggested that her Honour, in finding that there was no differentiation, had possibly led herself into error at [114] by not quoting the whole of Mr Hadley’s statement, which, relevantly, commenced at line 78, where he said:
“78Now call me stupid, call me naïve, call me whatever you like but …”
It was also submitted that her Honour failed to recognise that Mr Hadley's “statement” was in fact a question, albeit, no doubt, asked rhetorically and that, too, may have added to her misunderstanding of the material. It is convenient to deal with this last matter first.
The structure of speech, for example, the making of a statement or exclamation, or the asking of a question, rhetorical or otherwise, may be relevant, even critical, to a proper understanding of published material, both written and oral. Likewise, the manner of delivery may be relevant in the case of an oral publication. However, in this case, I consider that her Honour’s use of the word “stated” to introduce lines 79-82 of the broadcast was merely the use of a common device to introduce quoted material and no significance should be attributed to it.
In any event, I consider that the characterisation of Mr Hadley’s comment as a question, rhetorical or otherwise, rather than a statement, is somewhat debateable, as Mr Hadley changed grammatical tack during the course of the comment. For that reason also, I do not consider that her Honour’s reference at [114] to Mr Hadley having “stated” the material that followed, to be relevant to the determination of the question whether there was a differentiation of that material from the Herald article, or to be indicative of any misunderstanding on her Honour’s part.
I should add that the Court had the opportunity to hear a tape of the broadcast. However, there was nothing in Mr Hadley’s intonation and manner of delivery when speaking the words at lines 79-82, or lines 78-82, that would assist with the question whether there was any relevant differentiation. Accordingly, one is forced back to what was said.
Senior counsel for the appellant accepted that if the ordinary reasonable listener would not have distinguished between the material at lines 79-82 and the particularised lines, there would not have been a fair summary of the Herald article so that the defence under s 24(3) would not have been available.
Senior counsel for the appellant also accepted that it was a question of fact whether the ordinary reasonable listener would have differentiated the material and acknowledged the fact finding function of the trial judge. However, he submitted that this was a discrete category of fact, in the sense that it was not based upon the direct evidence of witnesses, so that the trial judge did not enjoy any particular advantage in the assessment of evidence over that of an appellate court reliant only on the Herald article and a transcript of the broadcast.
It followed, on this submission, that this Court could determine for itself whether there was a sufficient differentiation in the material so as to enable the ordinary reasonable listener to appreciate what was derived from the Herald article and what Mr Hadley added.
An appeal to this Court is by way of rehearing: the Supreme Court Act 1970 (NSW) (the Supreme Court Act): s 75A. The Court’s powers on a rehearing are defined by s 75A(6) and include the drawing of inferences and the making of findings of fact: subs (6)(b). Pursuant to subs (10), the Court may make any finding, give any judgment, or make any order which ought to have been given in the court below.
In Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9, the High Court pointed out that an appellate court was:
"[I]n general … in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed … In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."
Although senior counsel for the appellant did not refer to this authority, I am of the opinion that the submission he made as to the trial judge's fact-finding in this case being within a discrete category and not based upon the evidence of witnesses, makes the statement of the High Court in Warren v Coombes applicable here. However, it is also important to bear in mind that the authorities establish, as part of the principles which govern the role of an appellate court, that finality of litigation is to be encouraged. In addition, there is the principle, now enshrined in s 56 of the Civil Procedure Act 2005 (NSW), that the just, quick and cheap determination of disputes is to guide to the court's practices.

This principle applies to appeals, although it does not override the appellate court’s function as discussed in Warren v Coombes. However, as is apparent from the passage to which I have referred, Warren v Coombes maintains respect for the trial judge’s finding. Underlying that respect is the knowledge of the courts that fact finding is not immutable. One judge may make findings of facts on the evidence with which another judge would not agree. That does not make the fact finding wrong. It merely illustrates that particular evidence can be assessed differently by different fact finders: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 per Gleeson CJ and Kirby J at [3]-[5]. This is even more so where findings are made inferentially. An appellate court, in accordance with the constraints on its functions, should not intervene merely because a different view of the facts might be available or because it might draw a different inference.
With those principles in mind, I turn to the issues raised by the parties. The first question is whether her Honour was correct at [115] in finding there was no differentiation in the broadcast material.
The broadcast is fully set out above at [13]. It is convenient to repeat the relevant part of the broadcast here, including the introductory words upon which the appellant relies, so as to understand the import of the appellant’s submission:
“78Now call me stupid, call me naïve, call me whatever you like but how
79does someone on a disability pension who is unable to work, because
80I would imagine he is not able-bodied. You see it is not stress or
81some sort of mental problem. He’s been on a disability pension
82 because he had a motorcycle accident.”
I consider that, initially, there was a clear differentiation in the broadcast material from the particularised lines. The differentiation is apparent from the words used by Mr Hadley at line 78, “Now call me stupid, call me naïve, call me whatever you like”. However, the fact that there was an initial differentiation, or indeed a differentiation in any other part of the broadcast, is not necessarily determinative of whether the ordinary reasonable listener would have been able to distinguish between what was contained in the Herald article as said to be properly reflected in the particularised lines and what Mr Hadley said, relevantly at lines 79-82. It thus needs to be determined whether that differentiation was maintained.
When regard is had to the introductory words used by Mr Hadley at line 78 and what immediately follows, it is apparent, in my opinion, that there was a mixture of material, some of which arguably maintained the differentiation and some which appeared to be material that the ordinary reasonable listener would have understood to have been derived from the Herald article. Thus, the comment “I would imagine he is not able-bodied” is sufficiently differentiated because of the use of the phrase, “I would imagine”, which personalises it as Mr Hadley’s own contribution.
However, the phrase “is unable to work” is more problematic. Taken on its own, the phrase appears to state a fact. The factual aspect of the assertion is re-emphasised shortly afterwards at lines 82-83 when Mr Hadley reiterates: “Now if you can’t work and you’re on a disability pension, how do you keep skydiving?” However, the phrase cannot be read in isolation. The phrase was set within a longer phrase, which in part is rhetorical and in other parts is differentiated: “but how does someone on a disability pension who is unable to work, because I would imagine he is not able-bodied” and is then immediately followed by the statement: “You see it is not stress or some sort of mental problem”, which I consider to be undifferentiated.
In seeking to determine whether there was sufficient differentiation of the statement “is unable to work” from the particularised lines, it is necessary to bear in mind the context in which the ordinary reasonable listener would have heard the broadcast. There had been a reference to the Herald article at the commencement of the broadcast. It would have been apparent from Mr Hadley’s comment at line 78, “Now call me stupid [etc]”, that he was continuing to react to the contents of the Herald article. That he was ‘reacting’ to the material is also apparent from the way Mr Hadley commences this phrase, “but how does someone [etc]”. However, he then makes the references to the respondent being on a disability pension and being unable to work. In my opinion, given the short time over which the listener would have heard this material and given its apparently factual nature, the listener would not have differentiated the material and would have understood it to have come from the Herald article. Indeed, the non-differentiation is emphasised by the differentiation in the introductory comment at line 78 and by the comment, “I would imagine he is not able-bodied”, which followed it.
The next phrase, “You see it is not stress or some sort of mental problem” is also undifferentiated. Although, in this phrase, it is apparent from Mr Hadley’s language that he is not quoting directly from the Herald article, the way in which he referred to the article as a whole in his broadcast is not by way of quotation from the Herald article. Material does not, of course, need to be a direct quote to be a ‘fair summary’. However, this phrase is relayed in the same form as is the material which is taken from the Herald article. For example, Mr Hadley says at the beginning of this part of the broadcast:
“More ridiculous liability claims today mentioned in the Herald. One of them a person has given evidence that he made 10,000 parachute jumps before suffering some injuries. Apparently he got caught on some sort of hook on the aircraft.” (Emphasis added)
The emphasised portion is conveyed by way of a report of what is contained in the Herald article, rather than being in the form of a direct quote. That is perfectly acceptable in itself. As Mason P pointed out in Nationwide News v Rogers, attribution is the essential requirement. However, if the same style is then used for the material which is not derived from the ‘protected report’, it may be more difficult for a listener to differentiate between what was derived from the ‘protected report’ and what the commentator added, unless the differentiation is otherwise made apparent. This is particularly so in the case of a radio broadcast where the listener has but one opportunity to hear the words. A listener’s understanding of material is thus likely to be more impressionistic than in the case of a written publication, where a reader is able to re-read material, so that if material appears to have a factual content, it is likely to be understood as forming part of the material in the ‘protected report’.
Coming back then to the comment with which I am presently dealing, “you see it is not stress or some sort of mental problem”, I consider that the ordinary reasonable listener would have understood that something to that effect had been said in the Herald article. It was not, so that phrase was also undifferentiated.
That then leaves the final phrase “He's been on a disability pension because he had a motorcycle accident”. In my opinion, there can be no doubt that the ordinary reasonable listener would have understood that phrase as being from the Herald article. Indeed, the appellant relies on this being so, contending that it accurately reflects what was in the Herald article. For the reasons I give below, I consider that is correct.
Although Mr Hadley introduced the material at lines 78-82 with the self-deprecating comment, “[n]ow call me stupid, call me naïve [etc]” and except for the phrase “I would imagine he is not able-bodied”, he delivered the material at lines 78-82 in a way that did not differentiate his comments from the contents of the Herald article. Rather, save for the phrases that I have identified, the ordinary reasonable listener would have understood that the broadcast material was to be found in the Herald article.
Her Honour, at [115], found that the ordinary reasonable listener would have understood that Mr Hadley’s assertion that the respondent was not suffering from stress or some sort of mental problem and that he had been on a disability pension to have come from the Herald article. As is apparent from the above analysis I agree with that assessment, although I consider that the ordinary reasonable listener would also have understood the first assertion, that the respondent was “unable to work” to also form part of the Herald article.
Taking the passage as a whole, I am of the opinion that although her Honour did not include the opening words “Now call me stupid [etc]” at line 78 when analysing the material at 79-82, her Honour was correct in finding that the ordinary reasonable listener would have understood some of the material in the particularised lines to have come from the Herald article. The appellant’s point was that it did. In my opinion, for the reasons I give below, that is correct only in relation to the material at lines 81-82: “He’s been on a disability pension because [etc]”.As I have explained, I consider that the differentiation in line 78, as well as in 80, emphasises the lack of differentiation in the balance of the material.
‘Fair summary’
The question which then follows and which her Honour next considered, at [116], was whether this material was a ‘fair summary’ of what was in the Herald article. The appellant said that it clearly was, because what Mr Hadley said was to be found in the Herald article. This question is also a question of fact and the principles to which I have referred above, relating to the fact finding role of both the trial judge and an appellate court, again apply.
Her Honour after observing at [116] that the parties had not focussed attention on the meaning of a ‘fair summary’ of a ‘protected report’ for the purposes of s 24(3), concluded that the particularised lines were not a fair summary of the Herald article, because “the listener does not know that some of the statements that are attributed to [the Herald article] are Mr Hadley's additions” (emphasis added).
Her Honour referred to the observations of Gleeson CJ and Gummow J in Rogers v Nationwide News Pty Limited at [18] and [19]. I have already referred to the passage at [18]: see [27] above, where their Honours observed that matter did not constitute a ‘protected report’ merely because it repeated information obtained from the legal proceedings upon which it was based. At [19] Gleeson CJ and Gummow J pointed out that in respect of the matter complained of in that case, being the article in the Daily Telegraph:
"… a reader of the article would not know the extent to which the matter that conveyed the imputation defamatory of the appellant went beyond what Hill J had said.”
The appellant’s emphasis in defending Mr Hadley’s broadcast as a ‘fair summary’ of a ‘protected report’ focussed on the statement, “he had been on a disability pension [etc]”. As I have said, this and the reference to the number of parachute jumps, was the focus of the material in the particularised lines. The appellant submitted that her Honour erred at [115] in finding that the statement at lines 81-82: “He’s been on a disability pension because he had a motorcycle accident” was something added by Mr Hadley and that it was no different from the statement that “[the respondent] had been on a disability pension since 1972 after a motorcycle accident”, in the Herald article. It was said that both conveyed a causal link between receipt of the disability pension and the motorcycle accident. The appellant sought to draw support for this argument by pointing out that this finding at [115] was inconsistent with her Honour’s earlier finding at [106] in relation to the misrepresentation in the Herald article (emphases added).
At [106], Bell J’s focus was on the word “since 1972” in the Herald article. Her Honour found that the statement misrepresented the respondent’s evidence in the District Court proceedings. At that point I do not think that her Honour was focussing upon whether the Herald article was drawing a causal connection between the receipt of the pension and the motorcycle accident and in my opinion, her Honour did not draw a causal connection. It appears from the language in [106] that her Honour’s concern was with the time reference, which was wildly inaccurate. It was for that reason that the defence under s 24(2) failed.
Notwithstanding my understanding of her Honour’s finding, I am of the opinion that the two comments, that is the one in the Herald article and that in Mr Hadley's broadcast, are substantially to the same effect. I consider that the ordinary reasonable reader of the Herald article would have drawn a causative link between the receipt of the disability pension and the motorcycle accident. That causative link is drawn in the words used by Mr Hadley. To the extent, therefore, that her Honour found at [115] that the comment “He’s been on a disability pension [etc]” was not to be found in the Herald article and was added by Mr Hadley, I consider that her Honour erred.
However, the question of ‘fair summary’ of a ‘protected report’ is not determined by reference to whether some of the statements made fairly summarises what was in the ‘protected report’. The question of ‘fair summary’ has to be determined by reference to the later publication as a whole.
An evaluative process is involved in determining whether a later publication is a ‘fair summary’ and matters of emphasis and degree come into play. The presence of inconsequential additions or inaccuracies may not mean that a publication is not a ‘fair summary’ for the purposes of s 24(3). However, that is not this case. Although Mr Hadley’s comment that “He’s been on a disability pension because he had a motorcycle accident” was an accurate report of what was in the Herald article and that was a significant and substantial part of the Herald article, the added comments were also significant and substantial and added both nuance and gravity to the material in the Herald article.
In circumstances where a later publication adds, in a significant way and without sufficient differentiation, to the material that is contained in the protected report, it is not sufficient for there to be a mix of material, some of which accurately and fairly summarises what is in the ‘protected report’ and some of which does not. If the reader or listener cannot decipher the extent to which the matter that conveyed the defamatory imputations went beyond the material in the protected report, the protection afforded by s 24(3) is not available: see Gleeson CJ and Gummow J in Rogers v Nationwide News Pty Limited.In this case, that differentiation could not be made. There was thus no error in her Honour’s conclusion that this was not a ‘fair summary’ of the Herald report.
The appellant further submitted that, in any event, Mr Hadley’s broadcast was protected by s 24(3) because each of the imputations which were found to be defamatory of the respondent were to be found in the Herald article. That is not the test under s 24(3). The test is as was stated in Rogers v Nationwide News Pty Limited, to which I have referred. The defence under s 24(3) is not directed to the question whether the ‘protected report’ conveyed the imputation or imputations. Rather, s 24(3) is directed to protecting the later publication of a ‘protected report’. For the reasons I have given, I do not consider that the broadcast had the protection of s 24(3).
However, in deference to the appellant’s argument relating to the imputations, I will deal with this submission briefly. I have agreed with the appellant’s argument that her Honour erred in finding that the statement relating to the disability pension at lines 81-82 was material added by Mr Hadley. For the appellant’s submission to succeed it would need to be established that the defamatory imputations were conveyed entirely from the statement that “[the respondent] had been on a disability pension since 1972 after a motorcycle accident” or “because of a motorcycle accident”, in combination with the reference to 10,000 parachute jumps.
It is possible that the first imputation, that is, that the respondent is a malingerer, is conveyed by the Herald article. The circumstance that a person is on a disability pension, but can still parachute jump as extensively as did the respondent, might convey that the person is one who “exaggerates or feigns illness in order to avoid work”:see “malingerer” as defined: “The Australian Concise Oxford Dictionary”, 2nd ed, (1995) Melbourne, Oxford University Press. If it can be said that that imputation is conveyed, it is likely that the imputation the respondent “received a disability pension even though he was well enough to work” (imputation (c)) is conveyed. Her Honour, when dealing with the defence of comment, came to a different conclusion in respect of these imputations as I explain more fully below.
However, I do not consider that the combination of material that the respondent had done 10,000 parachute jumps and had been on a disability pension since 1972 after a motorcycle accident conveys that he “fraudulently obtained a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps” (imputation (b)). There is nothing in the combination of material which conveys that the respondent engaged in fraud.
My conclusion that Mr Hadley’s broadcast was not a ‘fair summary’ is reinforced by the view I have reached, should this approach be relevant, that at least one of the imputations is not conveyed by the Herald article. The fact that two imputations may have been conveyed by the Herald article is not sufficient, for the reasons I have given, to establish that Mr Hadley's broadcast was a ‘fair summary’ of that article. It follows, in my opinion, that the first ground of appeal should be rejected.
The defence of comment
The appellant also submitted that to the extent there was intermingled material, some of that material amounted to comment, so that the defence provided by s 30 was available. There is no doubt that both defences can run: Thompson v Truth and Sportsman Limited (1934) 34 SR (NSW) 21. In that case, the Privy Council was concerned with the correctness of a direction to the jury in which the trial judge had said that there could not be a plea of fair comment (which at that time was an available defence at common law) combined with the statutory defence of fair and accurate report. The Privy Council, at 24, held that the trial judge’s direction was erroneous. The Council said:
“In their Lordships’ opinion the learned judge misdirected the jury on the plea of fair comment. The general plea of absence of guilt includes a plea of fair comment, and, if the article contains comment, which is separable from the report of the proceedings, their Lordships entertain no doubt that the part which contains the report may be defended under the statutory plea and the part which consists of fair comment may be defended under the general plea. The necessary elements for success in these 2 pleas are different, and the jury should be directed accordingly.”
Their Lordships then referred to the opinion of Fletcher Moulton LJ in Hunt v The Star Newspaper Co-Ltd [1908] 2 KB 309 at 319-320 where his Lordship said:
“… comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v Chapman (1853) 3 C & K 286. The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negotiated by the reader seeing the grounds upon which the unfavourable inference is based. But if the facts and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair-minded [readers] to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant of the language he uses … In the next place, in order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails.”

Although I have rejected the defence under s 24(3), the question remains whether the appellant has made out the defence of comment.
The defence of comment is contained in Div 7 of the Defamation Act.
Section 29(1) provides that the defence or exclusion of liability in cases of fair comment on a matter of public interest is modified as appears in the Division and is not available except in accordance with Div 7.
Section 30 prescribes what is proper material for comment. It includes a ‘protected report’. As s 30 is integral to the defence of comment and to the issue on the appeal, I will return to that section shortly. Under s 31, the defence of comment is not available unless the comment relates to a matter of public interest. The respondent did not contend at trial that the defence of comment was defeated by reason that the comment did not relate to a matter of public interest for the purposes of s 31.
Sections 33 and 34 provide for the defence of comment of a servant or agent of the defendant and the comment of a stranger respectively. Sections 33 and 34 operate subject to ss 30 and 31. As her Honour rejected the respondent's argument that the statements made by “Irene”, the call-in listener, gave rise to the imputations, only s 33, that is, the defence of comment of a servant or agent, is relevant.
The defence of comment relates to the defamatory imputations, not the published matter: see New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340; John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [36]. However, although the defence of comment is directed to the imputation, it remains permissible and indeed, necessary, to have regard to the published matter. To do otherwise would be artificial. As Giles JA explained in O’Shane at [40]:
“Clarity without context is a mirage, and when the imputation is found in the published matter its character must take colour from that matter.”
See also Sutherland v ACP Publishing Pty Limited [2000] NSWSC 1139 at [21].
In Nationwide News Pty Ltd v Rogers Mason P, in an obiter comment, said at [15]:
“Fair comment may itself be based upon a fair report (see Defamation Act 1974, s 30(1), Pevan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 320-2, 335-6). But the case law requires a clear differentiation between that which is (fairly) reported and the (fair) comment based thereon. Proper differentiation requires that the publication purport to record the statement made on the privileged occasion ...”
In Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 Brownie AJA (Mason P and Beazley JA agreeing) stated at [54] that, having regard to the law’s encouragement and protection of freedom of speech and discussion in respect of matters of public interest, it was apparent why the law provided a defence of comment to a newspaper if it published a letter containing a defamatory comment on a matter of public interest. His Honour observed, however, that there was no apparent reason why a newspaper should be protected if it published something that was not what the letter writer said.
Proper material for comment
The trial judge rejected the defence of comment upon the basis that each of the imputations was not based on proper material for comment. The meaning of ‘proper material for comment’ is contained in s 30 of the Defamation Act, which provides:
“30 Proper material
(1)For the purposes of this section … proper material for comment means material which … would … by reason that it is a protected report within the meaning of section 24 … be material on which comment might be based for the purposes of the defence …
(2) …
(3)The defences under this Division are available as to any comment if, but only if:
(a)the comment is based on proper material for comment, or
(b)the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.”
At trial, the respondent’s answer to the case based on comment was that each of the imputations would have been understood by the ordinary listener as a statement of fact and thus outside the ambit of the defence.
Bell J observed at [124] that none of the imputations was to be found as an express assertion in Mr Hadley’s broadcast, but that each was a conclusion derived from it. Her Honour commented that the imputations were each closely related and that each appeared to arise from the comments made by Mr Hadley in lines 72-86, 199-211 and 498-501 of his broadcast. Her Honour, at [127], rejected the respondent’s submission that all the statements would have been understood by the ordinary reasonable listener as statements of fact. Rather, her Honour considered that the language used by Mr Hadley was, in places, suggestive of a conclusion or inference he had drawn from the Herald article. Her Honour included in that category the words at 82-85, namely:
“… now if you can't work and you're on a disability pension, how do you keep skydiving? One would imagine a fair bit of effort’s involved in skydiving. Perhaps not as much effort as is required to work five days a week.”
The respondent has not challenged her Honour’s finding that the particularised lines were not statements of fact.
Her Honour, then, at [133] stated her conclusion which the appellant challenges as erroneous. Her Honour said:
“If one accepts Mr McClintock’s submission that the language to which I have referred in [127] is suggestive of the expression of an opinion, and that each of the imputations was conveyed as comment, it remains necessary that the defendant establish that in each case the comment was based on proper material for comment. The lines particularised as a fair summary of the Herald report do not include the assertions at [114] above. This material was not conveyed as comment but rather it was identified as part of the basis for it. It was not proper material for comment.”
The material at [114] to which her Honour referred was that contained at lines 79-82 of the broadcast, which for convenience I repeat here:
“[H]ow does someone on a disability pension who is unable to work, because I would imagine he is not able-bodied. You see it is not stress or some sort of mental problem. He’s been on a disability pension because he had a motorcycle accident.”
The appellant challenges her Honour’s finding at [133]. The appellant submitted that if the trial judge was wrong in her findings at [114]-[116], then her Honour’s finding at [133] was also wrong. I have concluded that her Honour’s finding at [116] that the particularised lines did not constitute a fair summary of a ‘protected report’ was not erroneous. It follows, therefore, that this challenge to her Honour’s finding at [133] must be rejected.
Opinion reasonably based on proper material for comment
The appellant further contended that her Honour erred in finding that Mr Hadley’s opinions could not reasonably be based on so much of the material as was proper material for comment. This challenge relates to her Honour’s reasoning at [134]-[137] of the judgment and is based upon the proposition that to the extent that the imputations pleaded were conveyed by the Herald article, they were protected by s 30(3)(b), because each imputation was to some extent based on proper material for comment.
Her Honour rejected the appellant’s case based on s 30(3)(b). Her Honour said, at [134]:
“Mr McClintock referred to s 30(3)(b) which provides that it is a defence to any comment if the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.”
Her Honour referred to the judgment of Giles JA in Fairfax Publications Pty Ltd v O’Shane, where his Honour said, at [64], in respect of the defence based on s 30(3)(b):
“Did the comments in the imputations represent opinions which might reasonably be based on this material? The question is necessarily hypothetical, and the appellant has what is sometimes called the persuasive burden. The conjunction in ‘might reasonably’ has some internal tension; the test is objective, although ‘might’ allows latitude to the hypothetical opinion-holder. The test of opinions which might reasonably be based on the material differs from that of honesty at common law; in Sims v Wran at 325 Hunt J said:
‘The introduction of the concept of reasonableness in lieu of that of honesty as the test to determine whether a particular statement is a comment places a far greater burden upon the defendant in establishing his defence. That greater burden was no doubt intended by the legislature to offset the advantage which the statutory variant gives to the defendant by permitting the continued availability of the defence of comment notwithstanding the defendant's failure to establish the truth or the existence of the whole of the material upon which his comment was based.’”
Bell J then analysed the imputations against the material for comment on the assumption that the particularised lines were proper material for comment. Her Honour noted that the proper material for comment upon which the appellant relied was the summary of the Herald article. Her Honour concluded that the comments in the imputations did not represent opinions that might reasonably be held.
Her Honour considered that, in respect of imputation (a), “that [the respondent] is a malingerer”, the circumstance that a person had been in receipt of a disability pension since 1972 after a motorcycle accident and had executed 10,000 parachute jumps was not capable of reasonably supporting the conclusion that he had feigned physical or psychological symptoms in order to avoid work and/or to receive the disability pension. Her Honour said at [135]:
“A person may be able to skydive and yet be entitled to a disability pension based upon a true report of physical or psychological symptoms.”
Her Honour observed that imputation (b), that the respondent “fraudulently obtained a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps”, appeared to be related to the circumstances in which the respondent applied for and was granted the disability pension. Her Honour observed, at [136] in particular, that there were no submissions directed to the significance of the word “obtaining” as distinct from “continuing to receive” the disability pension. Her Honour noted that the imputation linked the obtaining of the pension and the absence of an entitlement to it, to the ability to make 10,000 parachute jumps. The “fraud” contained within the imputation was, therefore, the continuing to receive the pension to which he was not entitled because of his ability to engage in skydiving. Her Honour considered that the material relied upon did not provide a reasonable basis for the opinion in the imputation. This was, essentially, for the same reason that her Honour had concluded that the material was not capable of reasonably supporting the allegation in imputation (a), namely, that the ability to engage in skydiving was not necessarily inconsistent with some incapacity that entitled the person to obtain and remain a recipient of the disability pension.
In relation to imputation (c), that the respondent “received a disability pension even though he was well enough to work”, her Honour stated her conclusion that the fact that a person was in receipt of a disability pension and engaged in skydiving, did not reasonably support the imputation that the recipient was well enough to work.
The appellant submitted that her Honour’s conclusion in respect of each imputation was erroneous and that each imputation might reasonably be based on that part of the broadcast that repeated what was in the Herald article. It was said that to that extent, the comment was based on proper material for comment. It was then submitted that the conclusion could readily be drawn from the Herald article that a man was a malingerer, or acted fraudulently, in the sense alleged in the imputation, or that he was well enough to work, notwithstanding the fact that he was receiving a disability pension because he could engage in this extensive skydiving activity.
Bell J proceeded upon the assumption that the summary of the Herald article that did appear in the broadcast, that the respondent had given evidence of making 10,000 parachute jumps and that he had been on a disability pension since 1972 after a motorcycle accident, was, to some extent, proper material for comment within s 30(3)(b). In my opinion, to the extent that the broadcast material included the content of the Herald article, it was proper material for comment. The question is whether the comments contained in the imputations might reasonably be based on this material.
I have already referred in some detail to the function of an appellate court and to its role in the fact-finding process. An appeal to this Court is by way of rehearing: s 75A, and whilst a court will not interfere with a trial judge’s decision on a question of fact merely because it has a different opinion, it nonetheless has an obligation to do so if it considers that the finding of fact is wrong.
Imputation (a) was that the respondent is a malingerer, that is someone who feigns an illness so as not to work. In my opinion, imputation (a) is an opinion that might reasonably be based on the Herald article. It might be reasonable to have the opinion that a person who was on a disability pension not only could not work, but would not be able to engage in a vigorous physical activity such as is involved in skydiving. It is not the only opinion that could be had, as is apparent from her Honour’s own reasoned view on this imputation. However, that is not the test as explained by Giles JA in Fairfax Publications Pty Ltd v O’Shane.
However, I am not persuaded that imputation (b) is an opinion that might reasonably be based on the Herald article, principally for the reasons expressed by her Honour. Fraud involves the notion of deception. “Feigning”, which is integral to the concept of malingering, means “pretending to be affected by”, in this case some disability, sufficient to be on a disability pension: The Australian Concise Oxford Dictionary. Although a “pretence” could result in an ultimate deception, it is of a significantly different character. A fraud of its nature almost invariably involves some degree of criminality or wrongdoing that would be sufficient for criminal or other proceedings to be brought against the person engaging in the fraud under a range of statutes that have criminal or quasi-criminal effect. “Malingering” does not bear that notion, or at least does not necessarily do so unless the conduct amounts in some way to fraud.
This in itself is a reason to distinguish between the two imputations, a point I make because Bell J considered that the imputations were closely related. Whilst I do not disagree that the imputations are related, I consider that there is a difference between imputation (a) and (b) of such a degree that I have come to a different conclusion from her Honour in respect of imputation (b). Further, imputation (b) not only alleged fraud, that is the engaging in conduct that involved deception, the fraud alleged was in “obtain[ing] a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps”. As Bell J emphasised, the imputation focuses on the obtaining of the pension. Her Honour accepted that the imputation extended to an opinion that the respondent was fraudulently continuing to receive the pension for the stated reason. I would not accept that notion. The imputation, as found by the jury, was that the respondent had “fraudulently obtained a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps”.
The connection with the parachute jumps engages a form of hindsight reasoning – if, after having obtained a disability pension, a person undertakes a massive number of parachute jumps, that person must have fraudulently obtained the disability pension. This of course is a non-sequitur. Whilst illogicality does not necessarily mean an opinion might not reasonably be held, it certainly undermines the likelihood that that would be the case and in my opinion, does so here. For all of these reasons I am of the opinion that imputation (b) is not an opinion that might reasonably be based on the Herald article.
That leaves imputation (c). In my opinion, this is closer in concept to imputation (a) and is an opinion that might reasonably be based upon the contents of the Herald article.
The consequence of this conclusion is that the respondent’s causes of action based on imputations (a) and (c) are defeated by the defence of comment. However, the cause of action based on imputation (b) has been established by the jury’s verdict and the respondent is entitled to damages for the injury to his reputation. Bell J assessed damages in the sum of $65,000 and this has not been the subject of challenge, although I suspect that is because the appellant approached the appeal on a ‘win all/lose all’ basis. Nonetheless, some consideration should be given to whether that assessment should stand.
Her Honour did not assess damages in relation to each cause of action. Rather, her Honour did a global assessment, having regard to the harm she considered the respondent suffered from the publication. Her Honour had also found earlier that the imputations were closely related, a matter upon which I have already commented. It was undoubtedly for that reason that her Honour did not consider that the cause of action in respect of each imputation called for separate damages awards. The damage, in effect, was the same.
That is sufficient not to interfere with the award. But in any event, imputation (b) is a serious imputation and in my opinion, is sufficient to support the award.
This was one broadcast and the imputation that has succeeded came out of the broadcast as a whole. The damage to the respondent’s reputation and the hurt and distress he suffered was not divisible, in my opinion, between the three imputations. Rather, it was a single episode of harm and damage. That being so, I would not interfere with her Honour’s award of damages.
Accordingly, I would propose that the appeal be dismissed with costs.
BASTEN JA: The background to this appeal has been set out by Beazley JA and need not be repeated here.
In October 1997 Mr Dent suffered an injury in a skydiving accident. After that incident, he obtained a disability pension, but also sued for damages, in the District Court. He had been involved in two motorcycle accidents in 1972, one of which he described in the proceedings below as a “bad” accident, after which he had had “a lot of problems” with his back: Tcpt, 28/11/05, pp 10, 11. Nevertheless, he remained in employment until 1982. Thereafter he was unemployed. He also stated that he had been engaged in parachuting since September 1969 and had done about 10,000 jumps: see Arthur Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186 at [102] (Bell J summarising the facts at the trial from which this appeal was brought).
Further, in the course of his evidence in the District Court, he was asked whether, in February 2001, he had spoken with a “mental or psychological consultant”. The following exchange took place:
“Q.Did you also tell her that you’d been on a disability pension due to back problems from the 1972 motorbike accident?
A.           I don’t remember talking to her. I don’t remember.
Q.           But that is the case?
A.           That is the case.”
This statement was ambiguous: it was unclear whether Mr Dent was agreeing with the proposition that he had told a psychologist something, or with the suggestion that, even if he did not remember making the statement, its contents were true. The following day, 12 June 2002, an article published in the Sydney Morning Herald contained reference to the case, in terms set out at [12] above. The summary given by the reporter, understandably, resolved the ambiguity without alluding to it. Nevertheless, she correctly attributed the statement to Mr Dent.

The key passage in the comments made by Mr Hadley on Radio 2GB later that morning (set out at [13] above) made reference to the article in the Sydney Morning Herald and included the following statements:
“I don’t know the extent of the injuries it is not documented but the bloke has told the court he had been on a disability pension since 1972 since a motorcycle accident. Now call me stupid, call me naïve, call me whatever you like but how does someone on a disability pension who is unable to work, because I would imagine he is not able-bodied. You see it is not stress or some sort of mental problem. He’s been on a disability pension because he had a motorcycle accident. Now if you can’t work and you’re on a disability pension, how do you keep skydiving?”
The imputations held by the jury to be conveyed were as follows:
(a) The plaintiff is a malingerer.
(b)The plaintiff fraudulently obtained a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps.
(c)The plaintiff received a disability pension even though he was well enough to work.
The trial judge identified four assertions made by Mr Hadley in the critical passage, some of which were repeated in substantially the same form in other extracts from the broadcast. The assertions were that the plaintiff:
(i) was unable to work;
(ii) was not able-bodied;
(iii)was not disabled because of stress or some sort of mental problem, and
(iv)was on a disability pension because he had had a motorcycle accident.
It may be said of each of these four propositions that they did not involve direct quotation from the plaintiff’s evidence in Court or from the Herald report thereof. However, each was an inference which might accurately and reasonably have been derived from it. Thus, the reasonable reader would understand that a person who was on a disability pension had claimed that he was unable to work, because of his disability. As a matter of law such a reader would have been right: Social Security Act 1991 (Cth), s 94(1). The other three comments are, in truth, three aspects of one statement, namely that his disability had resulted from a motorcycle accident, which probably involved a physical injury, so as to render him not able-bodied. That distinguished the disability from one caused by stress or a mental problem, which might not be inconsistent with the physical activity of skydiving. Of course, physical and mental problems are not necessarily discrete, but may co-exist. However, the evidence on which the newspaper report was based referred to “back problems” as the reason for the disability pension, there being no reference to stress or mental problems flowing from the physical injuries. The assumption that the pension had been claimed on the basis of a physical injury, according to Mr Dent’s evidence as understood by the reporter, was not only correct, it was a reasonable one in circumstances where there was reference to a motorcycle accident, and no other direct cause. After correctly recounting the report that Mr Dent had been on a pension “since” the motorcycle accident in 1972, Mr Hadley inferred that the pension resulted from the accident and, by implication, an injury suffered in it. That was, as Beazley JA has explained, a reasonable inference and was in fact a correct understanding of the evidence given in the District Court.
If a defendant asserts that it has a defence under s 24(3) of the Defamation Act 1974 (NSW) for a defamatory publication, because it is the later publication of a “protected report” or of a “fair extract or fair abstract from, or fair summary of” the protected report it will be necessary to consider whether the later publication, even if it does not adopt the precise language of the protected report, nevertheless falls within that terminology. The material contained in the first passage (at lines 73-77), in the second passage (at lines 199-204) and in a third short passage (at lines 207-209) constituted a fair summary of the protected report.
To the extent that the publication goes beyond the terms of s 24(3), there may nevertheless be a defence of “fair comment” if it constitutes a comment “based on” proper material for comment; a protected report will constitute proper material: s 30(1) and (3). However, where both the material upon which the comment is based, and the comment itself, are included in the matter complained of, the defence of fair comment will only relate to that matter which is comment: s 35. It follows that, as under the general law, it will usually be necessary to distinguish comment from the material upon which it is based. The fact that such a distinction must be drawn for the purposes of applying the relevant legal principles does not mean that the distinction can easily be drawn in particular circumstances: see John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [15]-[35] (Giles JA).
In the present case, the distinction has limited practical significance. As already explained, the critical assertions identified by the primary judge at [2006] NSWSC 186 [115] and set out above at [121] either involved a paraphrase of (and therefore a summary, in that parts of the protected report are omitted) or inferences by way of comment based on the protected report, so that, if “fair” they will engage a relevant defence, either as a fair extract, abstract from, or summary of the protected report, or as a fair comment based on the protected report as proper material for comment.
In this case the sting in the imputations derive more from the comment rather than the summary. The key passages each follow a repetition of some part of the content of the article in the Sydney Morning Herald, followed by a change of linguistic direction. In relation to the first passage, a summary (lines 73-77) is followed by the commentary introduced with the words (lines 78-79):
“Now call me stupid, call me naïve, call me whatever you like but how does someone on a disability pension ….”
The second passage, following an extract from the report (lines 199-204) continued prior to the comment (at lines 205-210):
“I don’t quite, I don’t understand the claim but I more particularly don’t understand this. The court heard Mr Dent had been on a disability pension since 1972 after a motorcycle accident. But Mr Dent told the court he’s done about 10,000 parachute jumps. How does a man on a disability pension continue to jump out of a plane? … .”
The first introductory passage started as a question and sidestepped into explanation, before returning to a question (line 83). The second introductory passage was an expression of puzzlement, followed by a brief recapitulation and then turned into a question with a final comment. The sting in each case came in the comments, understood in their context, which involved the restatement of the report. It follows that I do not agree with the conclusion reached by the primary judge at [115] that the additional material is not “distinguished from” that upon which it is based. However, if there were doubt about that, it would be because the rephrasing is so closely related to the original report that the two are difficult to distinguish, one expressing the other in different language, except to the extent that questions are raised, which must be treated as comment.
The trial judge dealt in turn with each of the imputations, by reference to the opinions which might reasonably be held on the basis of the protected report. That test appears to be derived from s 30(3)(b): see John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [60]. In Carleton v Australian Broadcasting Corporation (2002) 172 FLR 398; [2002] ACTSC 127, at [266] Higgins J asked if there was “any lack of reasonable connection between the material commented on and the comment itself”. In terms, s 30(3) allowed the defence if the comment “is based on” proper material for comment, in par (a). The requirement that it “represents an opinion which might reasonably be based on that material” occurred only in par (b), which dealt, as an alternative to (a), with comment based “to some extent” on “proper material for comment”. In any event, the test adopted by the trial judge was not unfavourable to Mr Dent. At [135], her Honour stated:
“Turning firstly to imputation (a), the plaintiff is a malingerer. The circumstance that a person has been in receipt of a disability pension since 1972 after a motorcycle accident and that he has executed ten thousand parachute jumps is not capable of reasonably supporting the conclusion that he or she has feigned physical or psychological symptoms in order to avoid work and/or receive the disability pension. A person may [be] able to skydive and yet be entitled to a disability pension based upon a true report of physical or psychological symptoms.”
As an abstract proposition, the possibility of an alternative explanation may well be available. However, the existence of a possible explanation does not mean that the coincidence of the two circumstances identified is not reasonably capable of supporting the defamatory imputation. No doubt people with significant disabilities can participate in skydiving. Many people with disabilities are also able to engage in work. One inference from the material presented might be that whatever the physical problems suffered by Mr Dent as a result of his motorcycle accident, he was genuinely unable to work but was able to engage in skydiving. However, if he were capable of engaging in skydiving, at the intensity of almost once per day for 30 years, the inference that he was capable of, but deliberating avoiding, work was also reasonably open.
In relation to imputation (b), her Honour noted that the case was presented not merely by reference to the initial obtaining of the pension, but to the conduct involved “in continuing to receive the pension to which he was not entitled because of his ability to engage in skydiving”: at [136]. That approach should be adhered to on appeal; indeed the Respondent did not contend to the contrary. Her Honour held:
“Again, the circumstance that the plaintiff was in receipt of a disability pension since 1972 after a motorcycle accident does not provide a reasonable basis for the opinion in the imputation. The ability to engage in skydiving is not necessarily inconsistent with some incapacity that entitles a person to obtain and remain a recipient of the disability pension.”
The same error is to be found in this reasoning as in relation to imputation (a). The fact that two circumstances are “not necessarily inconsistent” does not mean that the existence of one may not provide a reasonable basis for doubting the other.
No different reasoning was adopted in relation to imputation (c), each imputation in effect involving the same elements: see [137].
It follows, in my view, that because part of the material constituted a fair summary of a protected report, and part constituted fair comment , based on proper material for comment, the appeal should be upheld. I would make the following orders:
(1)Appeal allowed and orders made in the Common Law Division on 5 April 2006 set aside.
(2) In lieu thereof order that judgment be entered for the Appellant.
(3)Order that the Respondent pay the Appellant’s costs of the trial.
(4) Order that the Respondent the Appellant’s costs in this Court.
(5)Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

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LAST UPDATED: 27 September 2007