Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd

[2022] NSWCA 150

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150

Hearing dates:

11, 12 April 2022

Decision date:

18 August 2022

Before:

Leeming JA at [1];
Mitchelmore JA at [293];
Simpson AJA at [294].

Decision:

In 2021/240231:

Grant leave to appeal if leave be necessary, but dismiss the appeal with costs.

In 2021/303842:

Grant leave to appeal, dispense with the requirements of filing and service of a notice of appeal, and dismiss the appeal with costs.

In 2021/343783:

Dismiss the summons with costs.

Catchwords:

DEFAMATION – imputations – whether imputations conveyed by publications – plaintiff alleged alternative imputations - whether plaintiff entitled to decision that publication conveyed primary imputation as opposed to imputation most accurately reflected in publication – “single meaning rule” considered – contextual truth – whether contextual imputations conveyed

DEFAMATION – justification – report of plaintiff’s offensive language mis-stated – plaintiff said to colleague “if you weren’t so young I’d come up there and rip your head off and shit down your throat” – reported as threat to “slit” colleague’s throat – significance of conditionality of language – significance of impossibility of literal meaning of plaintiff’s language – whether publication nevertheless substantially true

DEFAMATION – honest opinion – fact/opinion distinction – significance of non-verbal and contextual aspects of publication – whether factual statements and opinion inextricably intermingled – whether opinion based on proper material

DEFAMATION – offer of amends – offer to publish “correction” – offer did not include acknowledgement of error or statement of correct position – offer to publish matters claimed by plaintiff – offer held not to amount to correction for purposes of statutory defence

APPEALS – principles governing appellate review – principles vary depending on nature of challenge – no obligation to resolve non-dispositive submissions – consideration of principle of judicial economy – consideration of “substantial wrong or miscarriage” precondition to ordering new trial – UCPR r 51.53 considered – significance of rule in case of judge-alone trial – significance of rule if evidence found to be wrongly rejected – relation between rule and s 56 of Civil Procedure Act 2005 (NSW)

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Common Law Procedure Act 1853 (NSW), s 37

Criminal Appeal Act 1912 (NSW), s 6

Criminal Code (Qld), s 377

Criminal Law Amendment Act 1883 (NSW), s 423

Defamation Act 1974 (NSW), Division 7 of Part 3

Defamation Act 2005 (NSW), ss 15, 24, 25, 26, 31, 35, 38

Defamation Amendment Act 2020 (NSW)

District Court Act 1973 (NSW), s 127

Evidence Act 1995 (NSW), s 144

Fair Work Act 2009 (Cth), s 789FD

Jury Act 1977 (NSW), s 68C

Supreme Court Act 1970 (NSW), s 75A

Supreme Court Rules 1970 (NSW), Pt 51 r 16, Pt 51 r 23

Uniform Civil Procedure Rules 2005 (NSW), r 14.18, 14.30, 51.36, 51.53

Cases Cited:

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

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

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (2011) 244 CLR 1; [2011] HCA 18

Bailey v WIN Television NSW Pty Ltd (2020) 104 NSWLR 541; [2020] NSWCA 352

Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; [1996] HCA 47

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Bray v Ford [1896] AC 44

Brunner v Greenslade [1971] Ch 993

Carr v Hood (1808) 1 Camp 355n; 170 ER 983

Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60

Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190

Chen v State of New South Wales [2016] NSWCA 177

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

Cornes v Ten Group Pty Ltd (2011) 114 SASR 1; [2011] SASC 104

Cornes v Ten Group Pty Ltd (2012) 114 SASR 46; [2012] SASCFC 99

Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12

Dakhyl v Labouchere [1908] 2 KB 325n

Donoghue v Hayes (1831) Ir Ex 265

Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46

Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79; [2015] NSWCA 154

Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172

Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174

Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News (2020) 102 NSWLR 733; [2020] NSWCA 56

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Fraser v Holmes [2009] NSWCA 36; 253 ALR 538

Gatto v Australian Broadcasting Corporation [2022] VSCA 66

Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48

Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; 1 WLR 3024

Gulic v Boral Transport Ltd [2016] NSWCA 269

Gumina v Williams (No 2) (1990) 3 WAR 351

Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981

Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290

Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68

Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540

Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hunt v Star Newspaper Company Ltd [1908] 2 KB 309

John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164; [2005] Aust Torts Rep 81-789

Kemsley v Foot [1952] AC 345

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

Lewis v Daily Telegraph Ltd [1964] AC 234

Massoud v Radio 2GB Sydney Pty Ltd; Massoud v Fox Sports Australia Ltd; Massoud v Commonwealth Broadcasting Corporation Pty Ltd; Massoud v Nine Digital Pty Ltd; Massoud v Nationwide News Pty Ltd [2021] NSWDC 336

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259

NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210

O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; [1970] HCA 52

Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71

Pamplin v Express Newspapers Ltd [1988] 1 WLR 116

Paolucci v Makedyn Pty Ltd [2021] NSWCA 215

Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; [1993] HCA 64

PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312

Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34

R v Ireland [1997] 1 All ER 112

Radin v The Law Society of New South Wales [1997] NSWCA 257

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16

Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (No 2) [1994] HCA 66; 68 ALJR 179

Royal Bank of Canada v IRC [1972] Ch 665

State of New South Wales v IG Index plc (2007) 17 VR 7; [2007] VSCA 212

State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220

Stocker v Stocker [2020] AC 593; [2019] UKSC 17

Stuart v Lovell (1817) 2 Stark 93; 171 ER 583

Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69

Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273

Telnikoff v Matusevitch [1992] AC 343

Tory v Megna [2007] NSWCA 13

Tuberville v Savage (1669) 86 ER 684

Un v Chow [2018] NSWCA 287

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816

West v Dick [1969] 2 Ch 424

White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; [1985] HCA 12

Zhang v ROC Services (NSW) Pty Ltd; National Transport Insurance by its manager NTI Ltd v Zhang (2016) 93 NSWLR 561; [2016] NSWCA 370

Texts Cited:

J Carter, The Construction of Commercial Contracts (Hart Publishing, 2013)

M Collins, The Law of Defamation and the Internet (2nd ed Oxford University Press, 2005)

N Duxbury, The Intricacies of Dicta and Dissent (Cambridge University Press, 2021)

S Gageler, “Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process” (2011) 37(2) Monash University Law Review 1

K Gould, “The proper focus of defamation defences and the challenge of inconsistency” (2010) 33 Australian Bar Review 258

A Kenyon, “Six Years of Australian Uniform Defamation law: Damages, Opinion and Defence Meanings” (2012) 35 UNSWLJ 31

P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005)

D Price, K Duodu and N Cain, Defamation: Law, Procedure and Practice (Sweet & Maxwell, 4th ed 2010)

D Rolph, “A critique of the national, uniform defamation laws” (2008) 16 Torts Law Journal 207

A Scalia and B Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West 2012)

Category:

Principal judgment

Parties:

Josh Massoud (Appellant and Applicant)
Nationwide News Pty Ltd (First Respondent in 2021/240231 and 2021/343783)
Radio 2GB Sydney Pty Ltd (Second Respondent in 2021/240231 and 2021/343783)
Fox Sports Australia Pty Ltd (First Respondent in 2021/303842)
Commonwealth Broadcasting Corporation Pty Ltd (Second Respondent in 2021/303842)
Nine Digital Pty Ltd (Third Respondent in 2021/303842)

Representation:

Counsel:
T Molomby SC, L Goodchild (Mr Massoud)
D Sibtain, T Senior (Respondents)

Solicitors:
O’Brien Criminal and Civil Solicitors (Mr Massoud)
Grant McAvaney (Nationwide News Pty Ltd)
Banki Haddock Fiora (Radio 2GB Sydney and Commonwealth Broadcasting Corporation)
Baker McKenzie (Fox Sports Australia Pty Ltd)
Thomson Geer Lawyers (Nine Digital Pty Ltd)

File Number(s):

2021/240231; 2021/303842; 2021/343783

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWDC 336

Date of Decision:

29 July 2021

Before:

Gibson DCJ

File Number(s):

2019/133854; 2019/133954; 2019/133979; 2019/134011; 2019/134071

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Josh Massoud was a sports journalist employed by Channel 7 in Sydney. He believed that a colleague had posted an exclusive story on social media, contrary to an embargo, shortly before it went to air. He identified the person who posted the story, a junior colleague working in Queensland, and said to him, “If you weren’t so young, I’d come up there and rip your head off and shit down your throat”. Mr Massoud was initially suspended and then dismissed from his employment.

A number of newspaper, radio, television and online publications covered Mr Massoud’s suspension and dismissal. Many stated that he had threatened to “slit” the throat of a young colleague. Mr Massoud brought five actions against five publishers based on 16 publications. The publishers relied on defences of substantial truth, contextual truth, honest opinion and (in the case of Radio 2GB Sydney) an offer of amends. They also said that Mr Massoud had not suffered any damage to his reputation.

The District Court entered verdicts for all defendants. The primary judge found that many of the publications conveyed the primary imputation for which Mr Massoud contended, although for some she found that a secondary imputation was conveyed, and for two none of the imputations was conveyed. All of the imputations were found to be substantially true, save for one instance where the publication conveyed the imputation that Mr Massoud was never a respected journalist. Her Honour rejected a defence of honest opinion, but upheld defences of contextual truth for all imputations. Her Honour also found that the offer of amends was a complete defence to the Radio 2GB Sydney publications, and that in any event, Mr Massoud was not entitled to damages or injunctive relief.

Mr Massoud appealed from the judgments in favour of Nationwide News and Radio 2GB Sydney, and sought leave to appeal from the judgments in favour of the other three publishers. Fox Sports by notice of contention challenged the rejection of its honest opinion defence. The Court of Appeal (per Leeming JA, with Mitchelmore JA and Simpson AJA agreeing) granted leave to the extent leave was necessary, but dismissed the appeals. The principal issues in the Court of Appeal and their resolution were:

1. Whether the primary judge had erred in determining whether Mr Massoud’s secondary imputation better encapsulated the publication, as opposed to whether the primary imputation he alleged was conveyed.

Held that Mr Massoud was entitled to a determination of whether the primary imputation for which he contended was conveyed, and that the appeals should be determined on that basis: at [51]-[55], [65].

Consideration of the “single meaning rule” and Gatto v Australian Broadcasting Corporation [2022] VSCA 66: at [55]-[57], [66].

2. Whether the primary judge wrongly rejected questions asked in chief and in re-examination.

Held that the Court was unpersuaded there was any error in rejecting the questions, and that even if there were, Mr Massoud had failed to establish any substantial wrong or miscarriage so as to warrant a new trial: at [92]-[114].

Consideration of UCPR r 51.53, its antecedents, the significance of the absence of evidence as to Mr Massoud’s answers to the questions, the importance of s 56 of the Civil Procedure Act 2005 (NSW) and the trial not being before a jury to r 51.53.

Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1, Bray v Ford [1896] AC 44, Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290, State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 and Tory v Megna [2007] NSWCA 13, considered.

3. Whether the primary judge had erred in having regard to her own viewing of the film “Stand By Me” in which the words “I’ll rip off your head and shit down your throat” were used.

Held that it was not established that the primary judge had seen the film, but that even if her Honour had, there was no error: at [115]-[125].

Consideration of the differences between judge-alone trial and trial by jury, the significance of s 144 of the Evidence Act 1995 (NSW) and the reasons given by a judge.

Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (No 2) [1994] HCA 66; 68 ALJR 179, Jury Act 1977 (NSW), s 68C and Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190, considered.

4. The words spoken by Mr Massoud, and the words in the imputations conveyed by the defendants’ publications did not bear their literal meaning. There was no basis for interfering with the rejection by the primary judge of Mr Massoud as a witness of credit, or her Honour’s findings that the words were spoken angrily, with intent to belittle and intimidate, rather than with “black humour”. The primary judge correctly held that the imputations were substantially true: at [126]-[162].

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 and Stocker v Stocker [2020] AC 593; [2019] UKSC 17, applied.

5. The honest opinion defence was made out. The imputation that Mr Massoud was never a respected journalist was, viewed in context, an expression of opinion, properly based on factual material in the publication: at [209]-[217].

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60, O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; [1970] HCA 52 and Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; [1993] HCA 64, considered.

6. Radio 2GB Sydney’s offer of amends was not a “correction” within the meaning of s 18 of the Defamation Act. Although containing the word “correction”, it did not acknowledge any error nor did it state what the correct position was. It merely offered to add what Mr Massoud said he had said and what he denied he had said: at [230]-[232].

7. It was not necessary fully to determine the grounds challenging the findings on contextual truth and no relief: at [275]-[278], [280]-[281], [286]-[288].

Consideration of the principle of judicial economy, the circumstances in which non-dispositive issues should not be determined by an intermediate court of appeal, and the weight to be given to reasons on non-dispositive issues: at [34]-[40].

Radin v The Law Society of New South Wales [1997] NSWCA 257, Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49, Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540 considered and applied.

Judgment

1. LEEMING JA: These three proceedings in the Court of Appeal arise out of the concurrent hearing of five actions over parts or all of 11 days in late April and May 2021 resulting in a lengthy judgment of the District Court of 648 paragraphs over 187 pages: Massoud v Radio 2GB Sydney Pty Ltd; Massoud v Fox Sports Australia Pty Ltd; Massoud v Commonwealth Broadcasting Corporation Pty Ltd; Massoud v Nine Digital Pty Ltd; Massoud v Nationwide News Pty Ltd [2021] NSWDC 336. All five actions brought by Mr Josh Massoud for defamation were dismissed, with Mr Massoud being ordered to pay the defendants’ costs.

2. In May 2018, Mr Massoud was employed as a sports journalist by Channel 7 in Sydney. On the afternoon of 1 May 2018, he made an abusive call to an 18 year old employee, Mr Jack Warren, in the Maroochydore newsroom. Mr Massoud said he had become aware that day that a high profile rugby league player who had left his Queensland club was relocating to Sydney. He said it was an exclusive story and he had written the live voice over script for it to be presented on the 6pm news. At around 5:30pm, Mr Warren posted the story on Twitter. He also posted the words of the tweet in a Facebook Messenger workplace chat group, after which he received a message from a social media producer from the Sydney newsroom asking for the post to be taken down. It was removed shortly thereafter. There was contemporaneous evidence suggesting that the story was not labelled “exclusive” and a deal of testimonial evidence that Mr Warren had not in fact made any mistake. However, the primary documents were not themselves tendered, and there was also a suggestion in the evidence that the absence of an “exclusive” label was insufficient to conclude that a story could be posted. The parties were agreed that nothing turned on whether Mr Warren had made a mistake or had been entitled to assume that the story should be posted.

3. Mr Massoud believed his story was embargoed and that Mr Warren should not have posted the story. Once again, nothing turns on whether that belief was well-founded or otherwise. Mr Massoud made a series of telephone calls to identify that it was Mr Warren who had posted the story, was given his number and then called him to complain. There is no longer any dispute that Mr Massoud used these words:

“If you weren’t so young, I’d come up there and rip your head off and shit down your throat.”

4. Mr Massoud was initially suspended and then dismissed from his employment.

5. The incident was widely reported in print and electronic media, not always in precisely the same terms, but unambiguously describing Mr Massoud’s use of language, and his suspension and dismissal. Media outlets which reported the incident included Radio 2GB Sydney Pty Ltd (which publishes “The Ray Hadley Morning Show” on the radio station 2GB and an associated website), Nationwide News Pty Ltd (the publisher of the Daily Telegraph and the Sunday Telegraph), Fox Sports Australia Pty Ltd (the publisher of “The Fox League Channel”), Nine Digital Pty Ltd (the publisher of an online publication “Wide World of Sports”) and Commonwealth Broadcasting Corporation Pty Ltd (which operates a radio station called KIIS 106.5; in what follows I shall refer to the publisher as “KIIS”).

6. Mr Massoud commenced proceedings against each publisher, alleging that the publications conveyed imputations that defamed him. Each publisher filed a defence. The claims were governed by the Defamation Act 2005 (NSW) as it stood at the time of the publications. That Act has subsequently been amended in ways which do not affect the present proceedings. Annexed to these reasons is a summary of the publications on which Mr Massoud sued, the imputations he claimed were conveyed, those found to have been conveyed, and the defences upheld by the primary judge.

4. Mr Massoud brought five separate proceedings against the five publishers for defamation, based on 16 publications in May, September and November 2018 and February 2019. Mr Massoud’s claims against two other publishers were compromised, a point which potentially bears upon the last grounds of Mr Massoud’s appeals. The publications (or transcripts of them) are reproduced as annexures to [8] of the judgment at first instance and some are reproduced in these reasons. Speaking generally, the primary imputation alleged to have been conveyed by each publication is that Mr Massoud threatened to slit a junior work colleague’s throat, or made graphic threats to kill him. Accepting the parties’ agreement that the words “slit your throat” were not used, it seems likely that at some stage the words “shit down your throat” were misheard or perhaps misread, or the phrase “rip your head off” conflated to “rip out your throat” then mis-recorded as “slit your throat” (the latter expression appears on notes made within 24 hours of the incident). “Slitting” a throat is a widely known expression, but the words found to have been used by Mr Massoud are, at least in my experience, much less familiar, and it is easy to see how they might have been confused or misheard.

5. Exhibit M, a very short article in the Sunday Telegraph on 20 May 2018, is representative of many of the print media publications.

9. The article wrongly states that Mr Warren was 22 and was a “cub reporter”, errors which are repeated in some other publications. Nothing turns on this. The article also wrongly states that Mr Massoud threatened to slit the young reporter’s throat, but accurately states that Mr Massoud threatened to shit down his neck, following which he was dismissed. This is at the heart of the dispute. Mr Massoud’s defamation actions largely turn upon his claim that his reputation was harmed by publication of items stating that he had been dismissed following his threatening that he would slit the throat of a young colleague, when in fact he was dismissed following his threatening that he would rip off the head and shit down the throat of a young colleague.

10. Both of Messrs Massoud and Warren gave evidence and were cross-examined. So were other employees at Mr Warren’s workplace, including those whom Mr Massoud had spoken to immediately before calling Mr Warren, and those who were present with Mr Warren during and in the immediate aftermath of the call. Mr Massoud said that he was not angry during the phone call with Mr Warren, and did not intend to threaten or intimidate him. The judge rejected Mr Massoud’s evidence, finding that he was not a witness of credit. Parts of Mr Massoud’s appeal challenge those findings, and it will be necessary in what follows to address the evidence and submissions bearing on this in some detail.

11. The balance of these reasons takes the following form:

Overview of the appeal and application for leave to appeal

The respondents’ publications on which Mr Massoud sued

The imputations alleged and found at trial

The publishers’ defences alleged and determined at trial

Procedural background in the Court of Appeal

Issues on appeal

The rejection of the primary imputations pleaded by Mr Massoud (grounds 1 and 2)

Challenge to findings for Exhibits F, J, L, M, N, O and Q

Ground 2 – the imputations in Exhibits G and H

Justification (ground 3)

Introduction

The reasons of the primary judge

The appellant’s submissions

Separate challenge to the rejection of questions asked in chief

Separate challenge to “private research” by the primary judge

The challenge to the defence of justification fails

Notice of contention – honest opinion

The broadcast

Pleadings

The reasons of the primary judge

Submissions on notice of contention

What is the “matter” for the purposes of s 31(1)(a)?

Expressions of opinion and statements of fact

Three false issues

The opinion was not hopelessly intertwined with the facts

The words carrying the defamatory imputation were expressions of opinion

The offer of amends by Radio 2GB Sydney (grounds 8 and 9)

The parties’ submissions

Consideration

The challenges to the alternative findings of the primary judge (grounds 4-7)

Contextual truth – overview

Was it substantially true that Mr Massoud was a bully and the type of person who threatened and intimidated his work colleagues?

Were the contextual imputations conveyed?

Damages (grounds 11-12)

Conclusion and orders

Annexure

Overview of the appeal and application for leave to appeal

The respondents’ publications on which Mr Massoud sued

12. The 16 publications upon which Mr Massoud sued fall into three time periods. Most were made in the first three weeks of May 2018, immediately after his phone conversation, suspension and dismissal. In that timeframe:

1. Two (Exhibits A and B) were online publications on the Radio 2GB Sydney website on 3 and 4 May 2018;

2. One (Exhibit G) was a radio broadcast on 4 May 2018 involving Mr Kyle Sandilands by KIIS (the transcript is reproduced when dealing with contextual truth);

3. Six were made by Nationwide News, in the Daily Telegraph of 4 May 2018 (Exhibit J, which is reproduced in its entirety below), in the Sunday Telegraph of 13 and 20 May 2018 (Exhibits K and M, the latter of which is reproduced in its entirety above), and in online publications on 3, 12 and 13 May 2018 (Exhibits H, L and P);

4. One was an online publication on 3 May 2018 by Nine Digital (Exhibit Q).

13. There were further publications in September and November 2018:

1. One was a television broadcast by Fox Sports on 21 September 2018 (Exhibit F, which is described in detail when dealing with the notice of contention concerning the defence of honest opinion);

2. One was a radio broadcast by Mr Ray Hadley (Exhibit C) and one was an online publication on the Radio 2GB Sydney website (Exhibit D), each on 5 November 2018;

3. Two were made by Nationwide News, one online and one in the Daily Telegraph, on 5 and 6 November 2018 (Exhibits N and O, the latter is reproduced below when dealing with contextual truth).

14. Finally, there was a further radio broadcast on Radio 2GB Sydney by Mr Hadley on 21 February 2019 (Exhibit E).

The imputations alleged and found at trial

15. Mr Massoud alleged that every publication conveyed at least two, and sometimes three, imputations which were defamatory. Invariably, the pleadings alleged a primary imputation and, in the alternative, one or two secondary imputations by way of fallback. The primary imputation in each case involved explicit extreme violence, such as “that he threatened to slit a junior colleague’s throat”, “that he made graphic threats to kill a young colleague”, “that he threatened to slit the throat of a 22-year-old cub reporter” and so on. The secondary imputations were more general: “that he threatened a young man with violence” and imputations to that general effect. Exceptionally, Exhibit F, the Fox Sports comedy skit, was also alleged to convey the imputation that Mr Massoud “was never a respected journalist”.

16. In relation to two of the publications, her Honour found that neither of the pleaded imputations was conveyed.

17. One was a radio broadcast (Exhibit G) which sought to elicit humour from the notion that anyone could be offended by a threat to slit a colleague’s neck. After a reporter states “Channel Seven’s NRL reporter has been stood down, accused of threatening to slit a colleague’s neck. Josh Massoud has been suspended”, Mr Sandilands states “Is that not allowed?” and says “I’m always threatening to slit Intern Pete’s neck”, and banter continues between him and the other presenters. Her Honour was conscious of and referred to Smith B’s statement in Donoghue v Hayes (1831) Ir Ex 265 at 266 that “If a man in jest conveys a serious imputation, he jests at his peril”. Nonetheless, her Honour found at [85] that the use of ridicule would have made it clear to the reasonable listener that the whole situation was some kind of misunderstanding, and that, coupled with words which made it plain that Mr Massoud was “accused” of using the words, and that an investigation was “pending”, meant that neither the first nor the second pleaded imputation was conveyed.

18. The other, an online publication by Nationwide News on the “Daily Telegraph” website which was Exhibit H, used prominent inverted commas and made it clear that it was reporting a claim. The headline read “Channel 7 journo Josh Massoud ‘threatened to slit colleague’s throat’”. Her Honour proceeded on the basis that it was not necessary for the publisher to endorse the claim, and considered that “[t]he question is whether [Nationwide] News has been sufficiently careful to talk about smoke rather than fire”: at [92]. Her Honour applied what had been said by Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 and concluded that this was a case where the ordinary reasonable reader would not consider either of the plaintiff’s pleaded imputations to be conveyed: at [94]-[96].

19. However, her Honour also addressed the possibility that she might be wrong about those two publications, and treated them in the alternative as conveying imputations that Mr Massoud threatened to slit a colleague’s throat (Exhibit G) and threatened a young colleague with violence (Exhibit H): at [86] and [96].

20. In relation to seven of the publications, her Honour found the primary imputation for which Mr Massoud contended was conveyed. There is no challenge to those findings. In relation to the remaining seven publications (Exhibits F, J, L, M, N, O and Q), her Honour found that the publication conveyed the secondary imputation propounded by Mr Massoud in the alternative, namely, that he threatened a young colleague with violence. Mr Massoud submits that those findings are erroneous, because her Honour failed to address whether the primary imputation alleged by him was conveyed.

21. Separately, in respect of Exhibit F (the skit published by Fox Sports), her Honour found that an imputation that Mr Massoud was never a respected journalist was also conveyed.

The publishers’ defences alleged and determined at trial

22. Each of the publishers advanced defences of justification and contextual truth under ss 25 and 26 of the Defamation Act 2005 (NSW). The contextual imputations alleged to have been conveyed by each publication were that “the plaintiff is a bully” and “the plaintiff is the type of person who threatens and intimidates his work colleagues”. Lengthy particulars of those defences were pleaded, and it will be necessary to review some of the evidence adduced, and the findings made by the primary judge when dealing with grounds 3 and 5 of the appeal and application for leave to appeal.

23. Each of the publishers also advanced a substantial case of mitigation of damages. Radio 2GB Sydney in addition relied on the non-acceptance of a letter of amends.

24. Her Honour upheld almost the entirety of the publishers’ defences of justification, and the entirety of their defences of contextual truth. Her Honour found that both the primary imputations to the effect that Mr Massoud threatened to kill, or slit the throat of, a young reporter, and the secondary imputations that he threatened a young reporter with violence, were substantially true. Her Honour rejected the justification defence for the imputation that Mr Massoud was never a respected journalist, but found that the contextual imputations that Mr Massoud was a bully and the type of person who threatens and intimidates work colleagues succeeded in relation to that imputation: at [523]-[529]. Her Honour also found that if, contrary to her view, the other imputations propounded by Mr Massoud were not justified, the truth of the contextual imputations meant that Mr Massoud’s reputation had suffered no further harm: at [522].

25. In relation to Exhibit F, the primary judge rejected a defence of honest opinion under s 31: at [531]-[550].

26. However, her Honour found that an offer of amends by 2GB Sydney was a complete defence to all five publications by it: at [551]-[580].

27. Finally, in relation to remedies, her Honour found that if she had erred in any or all of her findings as to justification and/or contextual truth, she would not have awarded damages: at [581]-[641]. Her Honour also stated that this would not have been a case for injunctive relief: at [642]-[647].

Procedural background in the Court of Appeal

28. The five actions in the District Court were heard together, with the primary judge producing a single set of reasons for the five judgments entered in favour of the defendants. Mr Massoud took the view that he had an appeal as of right in relation to the judgments entered in favour of Nationwide News and Radio 2GB Sydney, but needed leave to appeal from the judgments in favour of the other three defendants. Nationwide News and Radio 2GB Sydney took the view that leave was required, on the basis that Mr Massoud did not have a credible claim against Nationwide News and Radio 2GB Sydney for damages of $100,000 or more: District Court Act 1973 (NSW), s 127(2)(c). Mr Massoud then served a back-up summons seeking leave to appeal if leave be required. That was a separate proceeding (2021/343783).

29. There was very substantial overlap in Mr Massoud’s notice of appeal from the judgments entered in favour of Nationwide News and Radio 2GB Sydney, and his draft notice of appeal in his application for leave from the judgments entered in favour of Fox Sports, KIIS and Nine Digital. The only differences are that grounds 8 and 9 of the appeal concern the offer of amends which relates only to the five Radio 2GB Sydney publications. Otherwise, the grounds of the appeal and the proposed appeal deal with separate publications reflecting the different respondents, but rely on substantially the same arguments.

30. The most efficient course is to pass over Mr Massoud’s procedural choices and where possible deal with the points sought to be raised against all respondents collectively, as if there had been a single appeal. (A single appeal may be brought from more than one judgment or order in more than one proceeding; indeed Mr Massoud’s appeal against the judgments in favour of Nationwide News and Radio 2GB Sydney proceeded on that basis.) That reflects how the argument was run in this Court, as well as the fact that the respondents made common cause retaining the same counsel to appear on behalf of them all.

31. Both applications for leave to appeal were heard concurrently with Mr Massoud’s purported appeal as of right, the competency of which was challenged. Contrary to the respondents’ submissions, the competency of the appeal need not be the first issue for determination. Despite the quantity of pages devoted by both sides to this arid issue, the Court was not directed to the most salient authorities, which are collected in Un v Chow [2018] NSWCA 287 at [14], including what was said at NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210 at [23]-[25] and Chen v State of New South Wales [2016] NSWCA 177 at [13]-[18], to which may be added Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [19]. It is to say the least arguable that the existence and extent of a notice of appeal should not turn on whether the plaintiff brings five separate proceedings, or one consolidated proceeding complaining of the same matters against the same defendants. After all, multiple actions against multiple defendants have been permitted in a single originating process since the enactment of s 37 of the Common Law Procedure Act 1853 (NSW): see Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34 at 45-46. If that is so, then it would appear that whether an appeal lies as of right does not depend upon the amount of Mr Massoud’s claims against only Nationwide News and Radio 2GB Sydney. But even if it is not established that the $100,000 threshold in s 127(2)(c) is exceeded, there is a parallel application for leave, and leave cannot be determined without regard to the underlying merits. The respondents conceded, properly, that some of the grounds were reasonably arguable. This is a plain case for granting leave if leave be necessary, especially bearing in mind the obligation upon this Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The fact that the parties’ representatives wish to debate every point dividing them does not diminish the force of s 56 of the Civil Procedure Act 2005 (NSW); to the contrary, it highlights the significance of attending to the points in issue in that matter, as was observed in Paolucci v Makedyn Pty Ltd [2021] NSWCA 215 at [8]. As was said in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [57], “[u]nduly technical and costly disputes about non-essential issues are clearly to be avoided”. I shall return below to this theme which is an aspect of the principle of judicial economy.

Issues on appeal

32. Mr Massoud’s appeal and application for leave to appeal challenge most of the findings against him. The principles of appellate review applicable to each ground vary depending on the nature of the challenge. Some aspects of Mr Massoud’s appeal require him to discharge a very substantial onus. The challenges to the conclusions that the defences under ss 25 and 26 are made out involve a review of her Honour’s findings of primary fact, which were expressly influenced by demeanour, to which the restraint in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 applies. Insofar as Mr Massoud also challenges the decision not to admit certain evidence bearing upon the meaning of the words he used; this is the review of a discretionary procedural decision which if made out would result in a new trial, and accordingly involves a heightened burden of a different kind.

33. On the other hand, other aspects of Mr Massoud’s appeal impose a less onerous burden. He challenges the approach taken by the primary judge in declining to find seven of his primary imputations made out, on the basis that imputations relied on in the alternative better captured the publication. On these grounds, this Court is in the same position as the primary judge. As will be seen, the respondents’ oral submissions did not strenuously defend the correctness of this aspect of her Honour’s approach.

34. For its part, while Fox Sports does not dispute that the imputation that Mr Massoud was never a respected journalist was conveyed by Exhibit F and was not justified, by a notice of contention it contends that this Court should find that her Honour erred in rejecting its defence of honest opinion under s 31. Once again, this Court is in substantially the same position as the primary judge on the issues raised by that notice of contention.

35. There is a further distinction in the issues determined by the primary judge which are raised on appeal. Some, notably the defence of justification, were dispositive of the outcome of some of Mr Massoud’s actions. Others, including the defences of contextual truth and the assessment of damages, proceeded on an alternative basis, contrary to her Honour’s findings, and were not themselves dispositive of most of the actions. Her Honour is not to be criticised for making notional findings on the multitude of issues presented by the parties. Doing so accords with the conventional approach in trial courts. In Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7], the general rule was enunciated that “a judge should determine all issues before him or her to assist the appeal process and obviate recourse to a new trial”. See further PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 at [15] and the cases there cited, where it was said that while a litigant is not entitled to insist that a trial court determine non-dispositive issues and give reasons for doing so, nevertheless when a court chooses not to do so it is generally advisable to explain why that course is being taken. The primary judge took an intermediate course. In relation to some non-dispositive aspects, her Honour said that she would be briefer than she would otherwise have been. In a promptly produced judgment which was nonetheless very substantial, no sound criticism could be based on that approach.

32. The position on appeal is different. This Court need not determine all of the issues raised on appeal. It must determine those which are dispositive, but it will be seen in due course that here there are dozens of non-dispositive issues which have no effect on the outcome whatsoever. And appellate courts are, emphatically, not under the same general obligation as trial courts to determine all issues.

33. This Court should follow the approach described by Kiefel CJ, Gageler and Keane JJ, with which Bell, Nettle, Gordon and Edelman JJ agreed at [101], as the firmly embedded notion of judicial economy in Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8]:

“The principle that an appellate Court should confine itself to determining only those issues which it considers to be dispositive of the justiciable controversy raised by the appeal before it is so much embedded in a common law system of adjudication that we have no name for it. In some other systems, it is known as ‘judicial economy’. Judicial economy promotes judicial efficiency in a common law system not only by narrowing the scope of the issues that need to be determined in the individual case but also by ensuring that such pronouncements as are made by appellate Courts on contested issues of law are limited to those that have the status of precedent.

Within the integrated Australian legal system, the mere potential for an appeal to be brought, by special leave, to the High Court provides no reason for an intermediate court of appeal to sacrifice those efficiencies. That is not to deny that there will be occasions when departure from judicial economy will enhance the overall efficiency of the system or that the prospect of an appeal being brought, by special leave, to this Court in a particular case can give rise to such an occasion. There is accordingly no reason to deny that, ‘although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground’. But a non-universal rule making it important for intermediate courts of appeal to consider whether to deal with all grounds of appeal is quite different from a rule that always or even ordinarily requires those courts to deal with all grounds of appeal. It is important to the efficiency of the system as a whole that intermediate courts of appeal should not feel compelled to treat determination of non-dispositive issues in appeals before them as the norm.” (footnotes omitted)

38. That economical approach is not novel. As this Court said in Radin v The Law Society of New South Wales [1997] NSWCA 257, it is an “almost daily occurrence” for this Court to resolve appeals on a narrower basis than the submissions tendered to it. However, it reflects a departure from the statements in Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 at [105] and Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (2011) 244 CLR 1; [2011] HCA 18 at [56] that it was desirable and important for intermediate courts of appeal to deal with all grounds of appeal, rather than merely those which are decisive. It is quite plain that the High Court in Boensch v Pascoe was departing from its earlier approach, for both those decisions are footnoted. The more restrained approach serves to lessen the risk of conflicts (or perceived conflicts) between non-dispositive dicta of intermediate appellate courts.

39. The result is that there is a distinction between the approach at first instance and on appeal, but this reflects the feature of the Australian legal system that a litigant generally enjoys an appeal as of right from a final determination, with a second appeal only by way of leave or special leave, and thus the risk of the cost and delay of remitter when a further appeal is allowed from the decision of an intermediate appellate court is much smaller. Recent examples of this Court applying the traditional approach reaffirmed in Boensch v Pascoe may be seen in White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 at [133]-[134], Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273 at [1], [2], [90] and Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65 at [113]-[114].

40. To be clear, there is no inhibition against an intermediate appellate court resolving a non-dispositive point, and there may be sound reasons for doing so, especially if it is fully argued and may have significance beyond the instant litigation. Such aspects of the reasons have some precedential effect. In Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540 at [26] it was said that “intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them”. Of course, the weight to be given would be influenced by whether or not the point was argued, whether the argument was regarded as complete, and whether the court was purporting to resolve the non-dispositive point definitively. If everything in a court’s reasons for judgment that is not dispositive is to be regarded as obiter dicta, then there are obiter dicta and there are obiter dicta. There is a line of authority, associated with Sir Robert Megarry VC, identifying and giving precedential weight to what he described as “judicial dicta” – passages which were “neither of the ratio nor merely obiter dicta”, which represented “considered judgment[s] on a point fully argued”: see Brunner v Greenslade [1971] Ch 993 at 1002-3, West v Dick [1969] 2 Ch 424 at 431-2 and Royal Bank of Canada v IRC [1972] Ch 665 at 682-4, and the discussion in N Duxbury, The Intricacies of Dicta and Dissent (Cambridge University Press, 2021) at pp 93-100. Such judicial dicta warrant the deference identified in Hill v Zuda Pty Ltd. Whether or not to give reasons for determining a non-dispositive point is left to the individual appellate court’s judgment in any particular case. The court’s decision on whether or not to do so will be informed by a wide range of factors, including the nature of the point, the quality of the parties’ submissions, the judges’ confidence in the conclusion reached and the likelihood of the point arising in future cases. This is the force of the High Court’s emphasis in Boensch v Pascoe that it was for intermediate appellate courts to consider whether to determine non-dispositive points.

41. But a cautious approach accords with the familiar incremental approach of the common law, which “proceeds by determining those points and only those points necessary to a decision”, as explained in Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [225]-[229]. In a developing area, such as the tort of misfeasance in public office, or a novel tortious duty of care, a cautious approach is followed. The same may be seen elsewhere. Indeed, it is so deeply embedded that it may pass without notice. Thus, in construing a contract, a court does not resolve all aspects of the disputed clause. “All that is required is a solution to a particular problem or set of problems. The only relevant purpose lies in resolving the particular dispute”: J Carter, The Construction of Commercial Contracts (Hart Publishing, 2013), p 11, cited in Zhang v ROC Services (NSW) Pty Ltd; National Transport Insurance by its manager NTI Ltd v Zhang (2016) 93 NSWLR 561; [2016] NSWCA 370 at [83]. Likewise, the traditional approach to construction of legislation, elaborately articulated in S Gageler, “Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process” (2011) 37(2) Monash University Law Review 1 esp at 3 and 7, where (anticipating the passage in Boensch v Pascoe reproduced above) emphasis was given to the proposition that “a court is justified and obliged authoritatively to determine the meaning of a statutory text only so far as the attribution of meaning to the text is necessary to enable that court to discern the content of the law that must be applied to determine the rights of the parties who are in dispute in the individual case”.

42. Applying those principles, it is convenient to address the issues in a slightly different order from the notices of appeal:

1. Did the primary judge err in approaching seven of the publications by asking which of Mr Massoud’s imputations more correctly encapsulated what was said, rather than determining whether the primary imputation was conveyed and, if not, whether the alternative imputation was conveyed? (ground 1)

2. Did the primary judge err in finding that no imputation was conveyed by Exhibits G and H? (ground 2)

3. Did the primary judge err in upholding the defence of justification in relation to all imputations save that Mr Massoud was never a respected journalist? (ground 3, and ground 10 of the appeal and ground 8 of the proposed appeal)

4. Did the primary judge err in dismissing the defence of honest opinion in relation to Exhibit F? (notice of contention)

5. Did the primary judge err in upholding 2GB Sydney’s defence based upon its offer of amends? (grounds 8 and 9 of the appeal)

6. Did the primary judge err in determining, in the alternative, that contextual truth was a defence to all imputations? (grounds 4-7)

7. Did the primary judge err in concluding that no damages should be ordered? (grounds 11-12 of the appeal, grounds 9-10 of the proposed appeal)

The rejection of the primary imputations pleaded by Mr Massoud (grounds 1 and 2)

43. Ground 1 of the appeal and application for leave to appeal was (when the grounds are read together):

“The court below erred in law in finding in relation to Exhibits F, J, L, M, N, O and Q that the imputation conveyed was the alternative imputation pleaded rather than the primary imputation.”

44. Mr Massoud’s pleading identified for each matter complained of a primary imputation and one or more alternative imputations. In most cases, the allegation was that Mr Massoud “threatened to slit the throat of a young colleague; alternatively, that he threatened a young colleague with violence”. Mr Massoud’s position was made clear during final address:

“HER HONOUR: What does the word ‘alternatively’ mean?

MOLOMBY: It means if your Honour wasn’t satisfied that the first imputation arose, your Honour would consider whether the second one did.

HER HONOUR: I have to do this alternative exercise for every single publication?

MOLOMBY: Only if your Honour found that the first imputation didn’t arise, yes.

HER HONOUR: What happens if I find the first imputation doesn’t arise because the matter complained of conveys reasonable suspicion of guilt but not guilt? That’s the end of it?

MOLOMBY: That would be a decision in relation to the alternative as well and your Honour wouldn’t have to look at them twice.

HER HONOUR: Your submission is, ‘That he threatened to slit a junior colleague’s throat,’ is the imputation that’s conveyed but that if that isn’t the case you want to plead this alternative imputation, ‘That he threatened a young colleague with violence.’ ... This isn’t a fallback imputation, is it?

MOLOMBY: It is. That’s how it was intended.

HER HONOUR: You’re saying it’s a fallback. If you want to deal with it on that basis, okay.”

45. For seven of the publications (Exhibits A, B, C, D, E, K and P) the primary imputation was made out. However, for Exhibits G and H no imputation was found to have been conveyed (giving rise to ground 2), while for exhibits F, J, L, M, N, O and Q only the alternative imputation was found to have been conveyed. Exhibit F was also found to convey an imputation that Mr Massoud was never a respected journalist.

Challenge to findings for Exhibits F, J, L, M, N, O and Q

46. Mr Massoud submitted that “the error was to have chosen from the imputations the one that was regarded as best encapsulating what was said in the publication, rather than dealing first with the primary imputation pleaded, and continuing to the alternative only if the primary imputation was found not to have been conveyed”. He submitted that it was implicit in the reasons that the primary imputations were conveyed, and that:

“Once that was established, there was no cause to move on to consider the alternative imputation. It was no part of the court’s task to choose between the imputations. They should have been considered in the order in which they were pleaded”.

47. The respondents’ written submissions said:

“The determination of the natural and ordinary meaning of words involves the application of the ‘single meaning’ rule. Although different people might have understood the meanings conveyed by the matters in different ways, the task of the primary Judge was to determine a single objective meaning in respect of each matter: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171-175; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; 237 FCR 33 at [73], ABC v Chau Chak Wing [2019] FCAFC 125 at [32]; Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 at [88].”

48. Secondly, it was said that there was “no reason to conclude from the judgment that the primary judge adopted a process other than to consider the primary imputation before the alternative imputation”. They added that “[t]o the extent that the primary Judge found that a ‘fall-back’ imputation more accurately encapsulated what was said in a matter, it was implicit that her Honour had considered and rejected the primary imputation posited by the Appellant as representing the single meaning conveyed by the relevant matter.” The respondents said that:

“In any event, even if the primary Judge had not adopted that linear approach to determining meaning, there was no error in law in her Honour selecting which of the two alternative imputations pleaded by the Appellant in respect of each matter most accurately encapsulated the single meaning of the matter. The Appellant cites no authority to the contrary.”

49. Thirdly, the respondents submitted, very robustly:

“the Appellant chose to plead his imputations as alternatives. The Appellant’s submissions on this issue evince a fundamental misunderstanding of the role of the tribunal of fact when determining meaning. It was precisely the task of the primary judge to determine the ‘one and only meaning’ from the primary and alternative imputations pleaded by the Appellant that the ordinary reasonable person would have understood the entirety of the relevant matters to bear”.

50. I disagree with most of the respondents’ submissions.

51. First, the reasons of the primary judge dealing with these publications consistently record her understanding that the task was not to determine whether the imputation which was Mr Massoud’s primary case was made out, but which of his imputations better encapsulated what had been published. Thus the reasons proceed (in each case, the emphasis is mine):

1. Exhibit F: “Which of imputations (a) and (b) is conveyed? Unlike the [Nationwide] News publications, the Fox publication gives a very high profile to the ‘shit down your neck’ part of the threat. That is more than just threatening to slit a person’s throat, in that it paints a vivid and disgusting picture of defiling a corpse, as well as the use of a four-letter word. In those circumstances, the imputation that more accurately encapsulates what was said is imputation (b)”: at [76];

2. Exhibit J: “Which of the imputations correctly encapsulates what was said? The plaintiff said more than just threatening to slit the young colleague’s throat. In those circumstances, imputation (b) best reflects what was said and is thus conveyed”: at [100];

3. Exhibit L: “The reference is to slitting the throat and shitting down the neck, which is more accurately reflected in imputation (b), and that is the imputation I find to be conveyed”: at [110];

4. Exhibit M: “The content of the threat goes beyond imputation (a) because of the ‘shit’ reference, and is captured best by imputation (b); that is the imputation I find to be conveyed”: at [113];

5. Exhibit O: “The threat goes beyond the text of imputation (a) and it is imputation (b) I find to be conveyed”: at [119]. The reasoning in relation to Exhibit N was to substantially the same effect: at [116];

6. Exhibit Q: “As the threat goes beyond merely slitting the throat, imputation (b) best encapsulates the meaning, that is the imputation which I find to be conveyed”: at [128].

52. This approach was quite different from the submissions made in closing address. By way of example, in relation to Exhibit M, the following was said:

“HER HONOUR: Exhibit M is the fifth matter complained of [published by] Nationwide is it?

SIBTAIN: Yes. The first imputation that [is] sued upon is that he threatened to slit the throat of a 22 year old cub reporter and there’s a fallback that he threatened a young colleague with violence.

HER HONOUR: I’m just taking [it] that Mr Molomby [is] saying that they threatened to slit the throat is the one that he wants.

MOLOMBY: Correct, your Honour.

HER HONOUR: If I’m satisfied that that’s conveyed, I don’t need to worry about [the alternative].”

53. Secondly, contrary to the respondents’ submissions, the reasons dealing with these imputations do not implicitly reject the primary imputation for which Mr Massoud contended. Indeed, as Mr Massoud submitted, the reasoning reproduced above amounts to an implicit acknowledgement that the primary imputation was conveyed. Mr Sibtain acknowledged as much when the appeal was heard.

54. Thirdly, the question is not whether there was an error of law in what occurred. Mr Massoud enjoys a right of appeal by way of rehearing in this Court, and the issue of meaning was determined not by a jury but by a judge who gave reasons. If her Honour was wrong simply as a matter of fact, then this Court will intervene. That is so independently of the standard of review which is applicable (a point to which I shall return), noting that material mistake of fact is a basis for review on the principles stated in House v The King.

55. Fourthly, in marked contrast with the respondents’ written submissions, counsel for the respondents made no real attempt in oral address to defend the strident submissions advanced in support of the “single meaning rule”. Mr Sibtain conceded that Mr Molomby had asked the primary judge to consider both imputations proffered in the alternative, and had not been put to an election (T78.24-33). Mr Molomby’s submissions in reply contended that the respondents’ reliance upon the “single meaning rule” was quite wrong. This was the point conveyed at the beginning of his submissions in reply:

“The respondents contradict the appellant’s argument about the finding of the alternative imputation by reference to the ‘single meaning’ rule. They misunderstand and misapply that rule. The ‘single meaning’ rule is about the fact that the same meaning can often be expressed in multiple ways, and that the court needs to determine which of those ways is its most appropriate expression. It does not mean that a publication cannot convey multiple meanings, as the Full Federal Court noted in one of the authorities cited by the respondents, ABC v Chau Chak Wing [2019] FCAFC 125 at [33].

…

In each case, the ‘fall-back’ imputation was a different imputation from the primary imputation. They could not have stood as alternatives if that was not so. There was no scope for application of the ‘single meaning’ rule in the circumstances. Its application, if there were any, would have been to adjudicate between, as formulations of the primary meaning, ‘he threatened to cut X’s throat,’ ‘he threatened to slit X’s throat,’ ‘he threatened to kill X by slitting his throat’, ‘he said that he would cut X’s neck,’ etc. The rule works within the limits of the material giving rise to a single imputation, not across material giving rise to another imputation. The trial judge herself recognised that the ‘fall-back’ imputation was founded on material beyond that on which the primary imputation was founded. That inescapably acknowledged that the primary imputation was conveyed. Her Honour simply decided that there was other material not encapsulated in the primary imputation, which should be included. To the contrary, the court’s task was to adjudicate on the case as put before it by the parties. Her Honour clearly understood what that was. The failure to do that was a procedural error. Her Honour was obliged to consider whether the primary imputation was conveyed exactly as she would have been if no alternative imputation had been pleaded.”

56. When members of this Court then inquired of the respondents how the approach taken was sought to be defended, there was the following exchange:

“LEEMING JA: Just before you do, so that I can be clear because I raised this with your opponent, your written submissions say that there is an easy answer. This is just an application of something called the single meaning rule. He says that’s just wrong. Are you pressing the submission that what her Honour did was some application of the single meaning rule?

SIBTAIN: I press this: the single meaning rule, until it’s been dispensed with, it’s lost some of its force in the context of where the tribunal of fact is a judge, but the tribunal of fact has to find the meaning that best encapsulates what was said.

SIMPSON AJA: No, it doesn’t. No, that is not right. The tribunal of fact has to decide whether the imputations propounded by the plaintiff sequentially, if they’re alternatives, are conveyed.

SIBTAIN: What your Honour Simpson AJA has just put to me I’m not cavilling with that. I’m submitting that the single meaning rule, in the way in which we understand it, is an attempt to avoid the extremities of meaning and to discount the extremities of meaning and find the most appropriate meaning that captures what the ordinary reasonable reader within the appropriate range would find from it. Engaging with what your Honour Simpson AJA has just put to me, what that means is, if there is a range of alternatives presented and the first is too extreme then, in the quest for the single meaning, that imputation is not conveyed and the tribunal of fact goes to the next imputation to see whether or not it falls within the meaning, properly conveyed, to the ordinary reasonable reader and both meanings would not be found to have been conveyed or a range of meaning. The quest is for the single meaning, but your Honour will have [seen from] my submissions I’ve not cavilled with what your Honour has put to me about the sequential approach.”

57. The “single meaning rule” is rather more nuanced than the respondents contended. It certainly does not mean that a plaintiff is precluded from alleging that a publication conveys more than one imputation. As was noted in the passage from Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125 at [33] to which Mr Massoud referred in his submission in reply, “An applicant may allege that a published matter conveys two or more distinct defamatory imputations, and may allege imputations in the alternative (Federal Court Rules, r 16.06), and subject to any defences, will succeed if one or more of those imputations is found to be conveyed.” The position is identical in the District Court, save that the “applicant” is a plaintiff, the general rule authorising inconsistent allegations of fact in the alternative comparable to r 16.06 is UCPR r 14.18 and in addition two or more imputations must not be alleged to have been made by the same publication unless they differ in substance: UCPR r 14.30(3). This is on all fours with the description in D Price, K Duodu and N Cain, Defamation: Law, Procedure and Practice (Sweet & Maxwell, 4^th ed 2010) at [2-14]:

“The single meaning rule

It is often said that there can be only one natural and ordinary meaning and, where appropriate, one innuendo meaning. This is an oversimplification. To say of C that he is a thief, adulterer and drunk does not mean that C can only select one allegation in respect of which to complain, although he may choose to do so. A newspaper or magazine article, for example, can level a number of allegations against a claimant which will be listed in his particulars of claim. The effect of the ‘single meaning rule’ is that where there are legitimate but contradictory interpretations of the words, the court cannot recognise the reality, which is that a number of reasonable readers would have interpreted the words in one way and the remainder in the alternative. The court must determine one ‘correct’ meaning out of the conflicting interpretations.”

58. Consistently with that approach, the respondents made no challenge to the finding that Exhibit F, whatever it conveyed about any threats made by Mr Massoud, also conveyed the imputation that Mr Massoud was never a respected journalist.

59. When once the respondents’ attention was focussed upon the process employed by the primary judge in choosing the alternative imputation rather than the primary imputation for which Mr Massoud had contended, in substance the respondents conceded that the primary judge had erred, in deciding seven of the imputations without considering Mr Massoud’s primary case.

60. This may be seen, by way of example, in Exhibit J, a short item in the Daily Telegraph published by Nationwide News on 4 May 2018. The entirety of the article was as follows:

61. The primary judge addressed this publication at [97]-[100]. The pleaded imputations were “[t]hat he threatened to slit a rookie colleague’s throat” or alternatively, “[t]hat he threatened a young colleague with violence”. Her Honour noted the references to “claimed” and “allegation” and the inverted commas around the language ascribed to Mr Massoud, and the reference to a pending internal investigation, all of which suggested that there had as yet not been a conclusive finding. However, her Honour observed that the headline “Out Over Throat Threat” was the real difficulty, which conveyed an imputation that Mr Massoud was out because he made a threat. Her Honour regarded the headline as outweighing the careful language of the publication. Her Honour then continued at [100]:

“Which of the imputations correctly encapsulates what was said? The plaintiff said more than just threatening to slit the young colleague’s throat. In those circumstances, imputation (b) best reflects what was said and is thus conveyed.”

62. I respectfully disagree with this reasoning. Mr Massoud was entitled to an adjudication on the basis which was pleaded and clearly enunciated during the closing submissions, namely, for the Court to determine whether the primary imputation was conveyed, and if not, whether the fall-back imputation was conveyed. Even if that was not always the case in all jurisdictions, that is the settled approach in New South Wales: see Australian Broadcasting Corporation v Chau Chak Wing at [16]-[18] (explaining why what was said in Gumina v Williams (No 2) (1990) 3 WAR 351 at 364 did “not reflect modern pleading and trial practice in defamation proceedings”). That process did not occur. It is clear that the imputation that Mr Massoud threatened to slit a rookie colleague’s throat is conveyed. That is the natural reading of the opening sentence, nothing in what follows detracts from it, and the “ordinary reasonable people” who are “of ordinary intelligence, experience and education” and who are “not avid for scandal” and “fair-minded” (the traditional formulations of the mythical reader or listener or viewer are collected in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at [6]) would not regard what was conveyed as merely a contested claim that such a threat had been made. Indeed, Mr Sibtain accepted as much, in the event this Court concluded that the process of determining which imputation was conveyed was flawed.

63. The question as to what this Court should do was then constructively addressed by Mr Sibtain:

“SIBTAIN: To answer then the question at the end of yesterday from Simpson AJA what happens if this Court is of the view that her Honour erred in finding that the second meaning was conveyed? For the reasons we’ve just been discussing, I cannot submit, and I do not submit, that imputation A was not conveyed. My submission is that it is sufficiently clear from the process engaged in by the primary judge where her Honour found that it was the inclusion of additional material that led to her Honour’s finding on imputation B in each of those relevant matters, that she understood that the material or elements of imputation A were conveyed. So I don’t make the submission that imputation A was not conveyed and I don't think I’m able to make that submission. As a matter of practicality, which is also what I understand your Honour Simpson AJA’s question to be addressed to, my submission is that if this Court is ordering a retrial, of course, it’s a matter that should be determined at the retrial, but if this Court is not ordering a retrial, then this Court is in an equally good position to determine the question of meaning.

SIMPSON AJA: I just want to be sure I understand, if we take the view that the approach was wrong, the process was wrong, then we make the finding that in each case imputation A was conveyed? You’re not putting any argument that, because of the use of words alleged and claimed and so on imputation A was not conveyed?

SIBTAIN: I don’t think I’m able to do that because at trial below, in relation to - I might just turn up the submissions I made. I don’t know if I conducted it in relation to each of those matters in the same way below and I don’t think I can put a submission that's inconsistent with that.”

64. The stance taken by Mr Sibtain was an appropriate one. For that reason, and another addressed below, there is no need to go through each of the seven publications which are the subject of ground 1 of the appeal and application for leave to appeal. Ground 1 is made out.

65. It may be noted that there is no dispute that seven other publications (Exhibits A, B, C, D, E, K and P) conveyed Mr Massoud’s primary alleged imputation that Mr Massoud threated to slit the throat of a colleague or made graphic threats to kill a colleague. If the seven additional publications which are the subject of ground 1 convey the primary imputation too, then they will be answered or not answered by the other defences, notably justification. The challenge in ground 3 to the finding of justification arises in relation to unchallenged findings by the primary judge that the primary imputation was conveyed in those publications, and must be determined in any event, and until and unless that finding on justification is set aside, ground 1 will have no impact upon the outcome of the appeal or the application for leave to appeal. In short, while ground 1 is a logical starting point, it is immaterial to the outcome of the appeal and application for leave to appeal until and unless Mr Massoud succeeds in overturning later aspects of the analysis. That is another reason for not addressing each of the seven publications found to convey a secondary imputation.

66. There is one final complexity. On the day after this appeal was heard, the Victorian Court of Appeal delivered judgment in Gatto v Australian Broadcasting Corporation [2022] VSCA 66. The joint judgment of Beach, Walker and Macaulay JJA addressed the single meaning rule, and the nature of the appeal when complaint was made as to the imputation found by a judge sitting alone. By reference to the analysis by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [48]-[49], their Honours asked whether in light of the single meaning rule appellate review engaged the principles in House v The King. Their Honours’ conclusion on this issue is found at [52]:

“On the other hand, as Gageler J observed, there may be categories of cases where other considerations affect the standard of judicial review. In our opinion, defamation law is such a category, by reason of its unique and somewhat artificial mode of analysis. The ultimate conclusion as to the single meaning conveyed by the publication is derived as a matter of impression, by choosing an answer between or among a range of legitimate and reasonable answers (being those imputations the publication is capable of conveying). Thus, the legal criterion applied has features that tolerate a range of outcomes. For that reason, we consider that, while we have not had the benefit of full argument, the better view is that in a defamation trial by judge alone, the appropriate standard of review by an appellate court of the trial judge’s determination of the single meaning of the publication is to be approached by reference to the House v The King standard. In that context, the question is not whether this Court has formed a different view from that of the trial judge, but whether the trial judge’s determination was reasonably open.” (footnote omitted)

67. Needless to say, neither side in the present appeal had addressed this. I was assisted by receiving a joint note from the parties drawing attention to this decision (and another) and indicating a preparedness to make further submissions if required. It is possible to resolve these appeals without determining the impact of that passage from Gatto. It is with respect difficult to reconcile that approach with the “real review” which, axiomatically, is to be conducted on an appeal by way of rehearing involving a challenge to whether or not an imputation has been conveyed by a publication which is in writing or on electronic media. Further, what was said, tentatively, in that obiter passage of Gatto would in any event need to be assessed against what was held as a matter of ratio in Bailey v WIN Television NSW Pty Ltd (2020) 104 NSWLR 541; [2020] NSWCA 352 (a decision to which the Victorian Court of Appeal may not have been referred, consistently with their Honours’ acknowledgement that they had not heard full argument and the absence of any reference to it). There Simpson AJA, with whom Meagher JA agreed, identified at [46] the test applicable to appellate review of whether an imputation was conveyed by a publication which was a telecast news item and a Facebook posting which did not in any sense depend on impressions about the credibility or reliability of witnesses formed by the trial judge as one governed by Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9. White JA dissented on this issue and upheld the finding by the primary judge that the relevant imputation was not conveyed. However, there is nothing in his Honour’s reasons to suggest that he was doing other than applying a real review of a finding of fact not dependent in any way upon the advantages of the trial judge, in accordance with Warren v Coombes. The same may be said of the reasoning in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68 at [19]-[84] (delivered just over a fortnight after Gatto), overturning some of the findings of the primary judge that the imputations alleged by the plaintiffs were not made out.

68. In light of my conclusions on justification, it is unnecessary to take this ground any further. Nor was there any need to trouble the parties with further time and expense in making submissions based on Gatto. It is sufficient to proceed, favourably to Mr Massoud, on the basis that in each of Exhibits F, J, L, M, N, O and Q the primary imputation to the effect that Mr Massoud threated to slit a colleague’s throat was conveyed.

Ground 2 – the imputations in Exhibits G and H

69. This ground is quite distinct from ground 1 but should be resolved in the same way. Ground 2 of each of the appeal and application for leave to appeal was that “the court below erred in law in finding that no imputation was conveyed by [Exhibits G and H]”. Exhibit G was a comedic piece broadcast on KIIS; Exhibit H was a website publication by Nationwide News. But once again, nothing whatsoever turns upon this ground until and unless the findings upholding the publishers’ defences are set aside. If the defences of justification and contextual truth and the conclusion that no damages should be awarded are all set aside, then this ground would potentially matter, because if made out they would impact upon the relief to which Mr Massoud is entitled. In principle, Mr Massoud might be entitled to seek slightly more damages if there were 16 defamatory publications of substantially the same imputation than if there were 14, although that is more controversial than one might first think, having regard to the need to avoid double compensation: see for example the reasoning in Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 at [159]-[162]. More substantially, if Mr Massoud were entitled to injunctive relief, that would only extend to Exhibits G and H if these grounds were made out.

70. But on the view I have taken, nothing turns on these grounds, because KIIS and Nationwide News have other defences which are complete answers to them, even if they convey the imputations for which Mr Massoud contends. There is no suggestion that there is any broader principle involved in determining whether these two exhibits conveyed the imputations pleaded by Mr Massoud, and there are ample issues in this appeal and application for leave to appeal which more directly bear upon the outcome and which need to be determined in any event. In those circumstances, I decline to deal with them, in accordance with Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8] and [101].

Justification (ground 3)

Introduction

71. Ground 3 of the appeal and application for leave to appeal was that “[t]he court below erred in upholding the defence of justification on the basis that there was no significant difference between what the respondents had represented the appellant as having said, and what he in fact said”. At all material times, s 25 of the Act made it a defence if the defendant proved that the defamatory imputations carried by the matter of which the plaintiff complains were substantially true. “Substantially true” is defined in s 4 to mean “true in substance or not materially different from the truth”.

72. This was the most elaborately argued ground of the appeal and application for leave to appeal. It is the heart of the appeal.

73. In part this ground turned upon a challenge to the trial judge’s demeanour-based findings of primary fact, and in part it turned upon her Honour’s reasoning. An important part turned upon a challenge to the tone of the conversation between Mr Massoud and Mr Warren. As Mr Massoud put it, “[t]he issue involving this conversation is not so much its content, but the way in which the phrase in question was said, and with what intention”. He said that it was neither an act of bullying nor a threat, but rather intended “to blow off steam” and was spoken in jest, as an attempt at black humour. The primary judge disbelieved Mr Massoud. Her Honour found that Mr Massoud was angry, made a violent threat designed to provoke fear, and that Mr Warren was in shock and distress after the telephone call. Mr Massoud contends that this Court should overturn that finding and instead find that he was a credible witness.

74. There were also some more discrete aspects, including a challenge to the rejection of a handful of questions, and a claim that her Honour had relied on material not in evidence.

75. This section of the judgment addresses (a) her Honour’s reasons, (b) the parties’ submissions, (c) a challenge to the rejection of some questions, (d) a discrete complaint about the judge conducting “private research”, and (e) the factual challenge to Mr Massoud’s credibility and the tone of his conversation with Mr Warren.

The reasons of the primary judge

76. The primary judge addressed the defence of justification in three portions of her judgment.

77. After noting that it was not necessary to establish that every detail conveyed by the imputation was true by reference to Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 at [105], her Honour considered at some length at [135]-[144] the reasoning in Stocker v Stocker [2020] AC 593; [2019] UKSC 17, which concerned a statement by a wife that her husband had “tried to strangle her”. Her Honour said at [138] that:

“Stocker v Stocker underscores the defendants’ submission that, while the defence of justification focuses on the truth of the imputation, the imputation must be considered in context and the matter complained of be construed as a whole within that context. This is of particular relevance to those publications which convey an imputation along the lines that the plaintiff threatened a young colleague with violence.”

“His voice started raising, and it became so loud it was shouting, and I couldn’t get a word in edgeways, I was having trouble sort of concentrating and hearing what he was saying because it was so loud, and it was quite aggressive, and I was starting to feel a bit rattled. I said to him, ‘you can’t talk to me like that, if you continue to talk to me like that I will hang up’. He continued with that, the tone didn’t drop.”

253. Ms Tepper did hang up on him, and said that Mr Massoud had been speaking so loudly in an open floor that other people could hear the exchange, which she said “was a bit humiliating actually”. She said “It’s not something that I was used to, my other colleagues certainly didn’t speak to each other like that, and I hadn’t been spoken to like that before. I had to take a moment to compose myself, I walked away, went to the bathroom, came back, composed myself, and sat down.” She was very surprised to receive an email from Mr Massoud a few minutes later, sent to her supervisors and copied to her:

“I’ve just tried to sort out an important job with katrina tepper in the pic desk and been hung up on.

I want to make an official complaint about her behaviour and unprofessional attitude.”

254. In response, Ms Tepper wrote her own complaint. It was written less than two hours after the conversation (her email was sent at 1.30pm, Mr Massoud’s at 12.07pm, and Mr Massoud’s was some 15 minutes after the conversation). Her email referred to Mr Massoud’s aggressive tone, that he had ceased to listen to her, that “I have never had rude and aggressive treatment from a colleague like that before” and that “I do not speak to my colleagues rudely nor do I expect to be spoke to rudely” and “I believe I do not need to tolerate aggressive or rude behaviour from anyone – especially when I’m trying to find solutions to issues raised”.

255. Mr Massoud was asked whether he disagreed with anything in the letter. He said that his recollection was so poor that he was unable to identify anything in it that was wrong.

256. The primary judge said at [425]-[427]:

“… Ms Tepper had not made any errors, and she was trying to help the plaintiff, not hinder him. It is another example of the plaintiff responding with abuse and threats where the person he was attacking was just trying to do their job. In this case, his attack included a complaint to her boss.

The behaviour described by Ms Tepper is a pattern of behaviour seen in the plaintiff’s other dealings with staff. He would shout, use abuse and bad language and, if he did not get what he wanted, he would threaten to complain, or complain, as a form of intimidation. Fear of his complaints was also a significant issue for Ms Taylor, and the reason why she had raised his treatment of her with Channel 7 executives.

In the case of Ms Tepper, Mr Molomby SC submits that this was an ‘isolated incident’ and that she ‘never had any other incidents with the plaintiff’ (submissions, 12 May 2021, paragraph 115). However, this was because her supervisor and the staff in her section made sure she did not have to deal with the plaintiff again, as she said in her evidence (T 584). The evidence of Mr Morrison suggests that this was one of several such arrangements, as staff continued to tell Mr Morrison that they did not want to work with the plaintiff; towards the end, hardly anyone wanted to do so.”

257. Her Honour described the evidence from Mr Mobbs, who worked with Mr Massoud as a journalist just before Mr Massoud left News Corporation, at [433]-[443]. Mr Massoud believed that Mr Mobbs had leaked a story; Mr Mobbs denied this, and said that another journalist had been working independently on the story, and her Honour accepted his account at [441]. Once again, Mr Mobbs’ account included his evidence that “he had never been spoken to in that way before, and has never been spoken to in that way since”. There was a performance review of Mr Massoud the following day (Friday 30 May 2014), and on the following Monday he received a formal reprimand, in writing, which included:

“The fact that you admitted your behaviour was totally unacceptable under any circumstances and the fact that you have withdrawn your accusations against [the other journalist] has been noted.

However, I do wish to reiterate that your acknowledgement does not explain, justify or excuse your behaviour. Accordingly we find that your behaviour in this matter is unsatisfactory ….:”

258. The details of Ms Taylor’s evidence need not be reproduced; there is more than enough profanity in these reasons as it is. It is sufficient to reproduce what her Honour said at [386]:

“This was a significant attack on Ms Taylor which caused her to consider resigning and which, from her demeanour in the witness box, I am satisfied upsets [her] to this day. The plaintiff’s conduct included obscene and abusive language as well as intimidating conduct, notably making these remarks in a public place while standing less than a metre away from her. I am satisfied that this conduct amounts to the conduct addressed in both contextual imputations.”

259. There was a great deal of other evidence bearing upon whether Mr Massoud was a bully and used threatening and intimidating language to his work colleagues. It need not be summarised. What has already been said suffices to disclose the enormity of a challenge to her Honour’s findings of fact based on this evidence.

260. Mr Massoud sought to discharge that burden over paragraphs 150-174 of his submissions in chief. The main theme of those submissions was that the conduct was reprehensible but did not amount to bullying. A letter sent to Mr Mobbs and his superiors, saying that Mr Massoud had lost confidence in them, could not be seen as bullying. Complaints by Mr Massoud that the companies’ lawyers were “fucking morons” and “clueless” could not amount to bullying. In relation to Ms Taylor, it was said that “there is no consideration of the difference between abuse and bullying”, and in relation to all of the incidents, Mr Massoud submitted “While the first of these incidents is abusive, and the last is insulting, and all involve objectionable behaviour, none is correctly characterised as bullying”, contrary to her Honour’s finding at [405]. Mr Massoud relied on the fact that the people with whom he worked most closely at Channel 7, while describing him as “aggressive, hot-headed, passionate, a go-getter, prickly, difficult” and “aggressive, abusive, hot-headed” did not describe him as a bully. The submission concluded:

“The picture that emerges is of someone driven for the best result who on occasions became irrationally and aggressively intolerant of things that got in the way. His reactions were not personally targeted in the sense of having people he liked to attack, but directed at whoever he saw as the cause of the problem, or a barrier to its resolution.

It is notable that the appellant’s behaviour, however it is categorised, never included acts or threats of physical violence. The only behaviour in the evidence that can be characterised as threats, apart from the controversy about the conversation with Mr Warren, consists of a threat to resign (to Mr Mobbs) and to complain about the other person (to Ms Taylor about the Dally M awards).

These threats are not of the same quality as those to be understood as involved in the second contextual imputation’s ‘threatens and intimidates his work colleagues’. The evidence supplies no support for the appellant threatening in the way it would be understood in that imputation, bearing in mind that the imputation is said to be conveyed by a reference to threatening to kill or slit a throat. The evidence cannot support the second contextual imputation.”

261. I do not accept Mr Massoud’s submissions. A series of former colleagues gave evidence, which the primary judge accepted, that Mr Massoud spoke to them in a way in which they had never been spoken to previously and had never been spoken to subsequently. There was no challenge, nor could there be, to the findings of primary fact to that effect in relation to Ms Tepper, Mr Mobbs and Ms Taylor. There can be no real doubt that it was open to the primary judge to find that each was threatened and intimidated by Mr Massoud. It is true that there is no evidence of Mr Massoud deploying threats involving violence to those people. Contrary to Mr Massoud’s submission, that does not mean that the second contextual imputation is not substantially true. The issue is not the precise way in which Mr Massoud used language and conduct to intimidate and threaten colleagues, but whether his language and conduct had that purpose and achieved that effect. There is an abundance of evidence that it did. The challenge to the substantial truth of the second contextual imputation fails.

262. The first contextual imputation, that Mr Massoud was a bully, is more problematic, because evidently Mr Massoud contends for a narrow definition of bullying, which cannot extend to abusive conduct towards his superiors, or to lawyers when it was not made in their presence, or to Ms Taylor. Mr Massoud’s written submissions repeatedly denied that the conduct to which the witnesses deposed amounted to bullying, but did not define what bullying is. This was raised during the hearing:

“SIMPSON AJA: What do you say bullying is? It’s all very well to say, ‘This is not bullying’, what is bullying?

MOLOMBY: If I might just have a second on that. Bullying - and I’m not saying this from a dictionary, this is my submission - it can mean different things in different contexts. For example, if one speaks of a schoolyard bully relating to a primary school, one will have different things in mind from if one is speaking of adults in a context like this. Just to acknowledge that there can be differences in different contexts. As between adults, it’s someone trying to overbear someone else, impose their will in some respect on someone else where the someone else is in a disadvantaged position to resist.

That doesn’t necessarily mean that the bully is of a higher status and the other person is of a lower status, but that often is the case, because it’s that that gives rise to the disadvantaged position to resist. It’s an exercise of some degree of personal power. It involves personal power between people and it's one trying to put the other one under the thumb, if I could use a colloquial expression, in some ways exploiting the fact that the other person is in a disadvantaged position to deal with it or resist.”

263. I agree that bullying can mean different things in different contexts, and that the bullying in a primary schoolyard by a child learning to socialise is quite distinct from bullying in a workplace. One definition of workplace bullying, that in s 789FD of the Fair Work Act 2009 (Cth), has as an element that one or more individuals “repeatedly behaves unreasonably towards” one or more workers and that behaviour creates a risk to health and safety. I doubt that a completely satisfactory definition is available, and there will always be forms of conduct which while universally condemned as inappropriate and offensive, might yield a difference of views as to whether they amount to bullying.

264. But it is sufficient to take the definition on which Mr Massoud relied. Attempting to overbear an inferior, or putting another under one’s thumb, is not an inaccurate description of Mr Massoud’s exchange with Ms Tepper (evidently he regarded a female member of the picture desk as inferior to a journalist), or his abusive behaviour towards Ms Taylor, or his unjustified blame of Mr Mobbs for being involved in stealing a story. The findings of primary fact are findings that he tried to overbear and subject to his will people he regarded as inferiors. This ground is not made out.

Were the contextual imputations conveyed?

265. Mr Massoud contended that her Honour was wrong in finding that in every case, both of the contextual imputations were conveyed. The respondents defended the entirety of her Honour’s findings.

266. The reality is somewhere in between. This may be seen by examples. Perhaps the clearest case is Exhibit B. The website post stated “Ray Hadley broke the story about Massoud’s bullying”. When confronted with this in oral address, Mr Molomby came close to conceding, if he did not concede, that the contextual imputation that Mr Massoud was a bully was, contrary to this aspect of ground 4 of his appeal against Radio 2GB Sydney, conveyed.

267. Another relatively clear case is Exhibit O, an article in the Daily Telegraph published six months after the event, on 6 November 2018:

268. The primary judge said at [218] that the ordinary reasonable reader should have no difficulty in understanding that the matter conveyed that Mr Massoud was a bully and that he threatened and intimidated work colleagues, including the producer referred to. In this Court, Mr Massoud accepted that the article referred directly to bullying. After all, its second sentence explicitly refers to his resignation “amid a bullying controversy”. Mr Massoud nonetheless said that the issue was “whether it suggests that the appellant behaved in that way on other occasions or that his character was that of a bully”. It was submitted that the extreme nature of the conduct suggested it was an atypical incident, and because the conduct was spontaneous, and likely to have occurred at random, there was nothing to suggest it was recurrent or a pattern of behaviour.

269. I do not agree. The essence of Mr Massoud’s submission is that a single incident of bullying was insufficient to convey an imputation that Mr Massoud was a bully, even when that incident is referred to as a “bullying controversy”. I think her Honour was correct to find that the article conveyed that Mr Massoud was a bully.

270. On the other hand, it is much harder to see how the contextual imputation that Mr Massoud was a bully emerges from Exhibit F. Her Honour noted that the host stated that Mr Massoud was “dismissed after threatening a young reporter” and concluded at [191] that “[t]he ordinary reasonable reader would be quick to pick up that the plaintiff’s threats were workplace issues of the bullying kind, requiring action by Human Resources”. It is tolerably clear that the second contextual imputation, that Mr Massoud is the type of person who threatens and intimidates his work colleagues, is conveyed, but it is much less clear that the imputation that he is a bully is conveyed. If Mr Massoud is correct to proceed on the basis that bullying amounts to an exploitation of power, or placing another under one’s thumb, then the only thing that indicates any power imbalance is the description of the reporter who was threatened as “young”. On the other hand, on one view all threatening and intimidation of work colleagues may amount to bullying, although in these reasons it is not necessary to express a concluded view on what the reader or viewer or listener to the publications would regard as bullying.

271. The position is even more artificial in the case of the doubly alternative findings in relation to Exhibits G and H (it will be recalled that the primary judge found that neither conveyed any of Mr Massoud’s imputations). Consider the radio broadcast on KIIS that was Exhibit G. It involves interchanges between a sports reporter (SR), the hosts Kyle Sandilands and “Jackie O”, and the voice of “Intern Pete”. The entirety of the transcript was as follows:

“SR: Channel Seven’s NRL reporter has been stood down, accused of threatening to slit a colleague’s neck, Josh Massoud has been suspended.

KS: Is that not allowed?

SR: (laughs) and an investigation is pending. Yeah not really.

KS: I’m always threatening to slit Intern Pete’s neck.

SR: Well you don’t really say it like that.

KS: Yeah I do!

JO: I think he does sometimes Roger.

KS: Pete I’ve said some pretty bad things, I’ve threatened you with many things right?

IP: Yeah but I don’t take anything seriously.

KS: Bashings, whippings, lashings, murder... I’ve threatened to murder you.

IP: Yeah but I’m still here.

KS: Here you are like a dirty smell.

IP: You gotta take it all with a grain of salt.

KS: So but um- so

SR: I guess we just run on different rules here.

KS: Yeah we run on Kyle rules here.

SR: [laughs] exactly.

KS: See I’m running the whole joint. It’s pretty hard to come and complain to me about me.

JO: You are HR.

KS: I am HR.

JO: You’ve taken over HR

KS: I thought it meant his royal highness.

SR: Kyle Sandilands yeah [laughs].

KS: I didn’t know.

SR: The Kiss-Cast is next.”

272. There is no background music or sound effects. The words are delivered at pace (the entire exchange – more than 170 words – takes place in 54 seconds). The goal was comedy or satire, which is often more difficult on radio, without the benefit of visual cues. Many might think that goal was not achieved, but nothing turns on that for the purpose of the law of defamation. On the assumption – contrary to her finding – that Exhibit G conveyed Mr Massoud’s imputation that he threatened to slit a colleague’s throat, her Honour found that both contextual imputations were also conveyed: at [195]. With respect, that may be doubted. The inquiry is quite artificial, because it proceeds on the premise that (contrary to her Honour’s view) the imputation that Mr Massoud threatened to slit a colleague’s throat is conveyed, notwithstanding the obvious exaggeration and attempt at humour. Making that assumption, it is difficult to see how the broadcast also conveyed the respondents’ contextual imputation that he was a bully.

273. It would be possible to follow her Honour’s example and address whether each of the publications conveyed each of the contextual imputations. In this Court, Mr Massoud assayed that task in writing. In oral submissions, counsel declined to descend to that level of detail, relying instead on a general submission, formulated as follows:

“would the reader not, if you like, settle for the obvious? Meaning without going and looking for others. If the reader was prompted to go somewhere else, the next question is where would the reader go? In our submission these articles or the description of what happened in relation to the threat to slit the throat, don’t point the reader in the direction which the respondents urge of bullying. They point the reader in the direction, if the reader goes this far, of violence or craziness.”

274. The submission acknowledged the strength of the finding that the second contextual imputation was conveyed, and focussed upon the difficulties in concluding that the publications conveyed that Mr Massoud was a bully.

275. There is an attraction in addressing the points at a general level, but enough has already been said, by reference to Exhibits B, F, G, and O, that the outcome will inevitably turn upon an examination of the entire publication, and will vary from publication to publication.

276. This Court is not obliged to resolve each point that Mr Massoud chooses to raise. No aspect of this ground has any consequence on the outcome of the appeal. Nor does it have any significance for any other contextual truth defence in other litigation. No issue of principle arises.

277. Litigation such as the present involves a potentially exponential expansion of issues. The plaintiff brought multiple proceedings, claiming multiple imputations across 16 publications. As part of their defence, the defendants asserted multiple contextual imputations, saying that in each case the contextual imputation outweighed each of the plaintiff’s primary imputations. The primary judge diligently resolved all of those submissions, although doing so contributed as much as anything else to a judgment of 648 paragraphs, and notwithstanding that (save in the case of one of the secondary imputations conveyed by Exhibit F) the reasoning was entirely in the alternative and not dispositive of the litigation. On appeal, the plaintiff challenged the entirety of her Honour’s reasoning, but declined (in relation to the challenge to the contextual imputations) to engage in oral submissions in relation to any particular publication.

274. This Court should resist any temptation to be drawn into this unnecessary multiplication of arid issues, brought about by the parties’ enthusiasm to keep issues in play. I have considered reviewing each of Mr Massoud’s submissions in relation to the contextual imputations found in relation to each publication by the primary judge. I decline to do so. It serves no end. In all cases there are separate and independent reasons for dismissing the appeal even if Mr Massoud were wholly successful in challenging the defence of contextual truth. In the case of all publications save for the secondary imputation from Exhibit F, that is because the defence of justification is made out. In the case of the secondary imputation conveyed by Exhibit F, that is because the defence of honest opinion is made out. In accordance with the principle of judicial economy referred to above, these grounds need not, and should not, be determined.

Damages (grounds 11-12)

279. The final two grounds of the appeal and the application for leave to appeal challenged her Honour’s notional assessment of damages of nil. Counsel did not address damages orally, save to confirm that (contrary to what had originally been sought) if the judgments were set aside, it would not be possible for this Court to assess damages. That concession was correctly made.

280. There are occasions when this Court should determine issues of law which do not alter the result of the appeal, but which have an importance going beyond the dispute between the particular parties. It is plain that the challenge to damages is not such a case, at least in relation to the principal imputations conveyed by the publications. Mr Massoud commenced his written submissions on damages with the following:

“There is no dispute about the relevant principles. The issue is their application to the facts of the case, and to an extent what those facts are.”

281. Further, in fairness to her Honour, who produced a very substantial judgment after a two week trial of five separate actions, she acknowledged at [597] that there was a degree of artificiality in making findings in the alternative on the basis that none of the defences she had in fact upheld had been made out, and said that her analysis would be brief. Once again, in accordance with the principle of judicial economy it is inappropriate to address these grounds.

282. However, there is one aspect that warrants elaboration. The primary judge found that all of the imputations alleged by Mr Massoud were justified, save for the imputation conveyed by Exhibit F that Mr Massoud was never a respected journalist. In this Court, Fox Sports neither disputed that the imputation was conveyed, nor cavilled with the finding that it was not justified. I have concluded that the defence of honest opinion is made out. However, her Honour was not so satisfied, and so let it be assumed that I am wrong about that. Her Honour nonetheless would have found that no damages should be ordered. Was there appellable error in that finding? That question can be answered without any elaborate analysis of the harm to Mr Massoud or the mitigating factors. I do so putting to one side the $75,000 Mr Massoud obtained by way of settlement with two other publishers, because although evidence of this was tendered in accordance with s 38(1)(d), there is nothing to suggest that those publications conveyed any imputation that Mr Massoud was never a respected journalist, and it is at least more likely than not that they did not.

283. There was evidence that, prior to around 2010, Mr Massoud was a respected sports journalist. However, there were also findings that he had persisted in threatening and abusive conduct over many years, to a wide range of people – including work colleagues, lawyers retained by his employer, and taxi drivers. None of the people who were abused by Mr Massoud would regard him as a respected sports journalist. No one who knew of Mr Massoud’s misconduct would regard him as a respected sports journalist. What damages would Mr Massoud have suffered in 2018 for the publication of a skit which conveyed that a man who was not in fact a respected sports journalist and had not been for years was never a respected sports journalist? No submissions were addressed to this permutation, just as no substantive submissions were directed to damages generally. However, my present view is that no error is shown in her Honour’s ultimate conclusion that damages would be nil. Her Honour relied on the reasoning in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116, where Neill LJ said:

“There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in s 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.”

284. Of this principle, Lord Hobhouse in Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; 1 WLR 3024 at [54] said that it addressed:

“the situation where a plaintiff is entitled to a verdict in his favour on the justification issue but the evidence properly before the jury on the issue of justification has disclosed that the reputation to which he is entitled is so depreciated that the damages which he should be awarded for the damage to his reputation by the (ex hypothesi) defamatory publication should be reduced below the level that would be appropriate for a plaintiff with an impeccable reputation, maybe even to a nominal figure.”

285. The question is whether on the present hypothesis the order for nil damages notionally awarded by the primary judge would be manifestly inadequate or otherwise disclose House v The King error: see for example Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at [75]-[76]. I do not consider that such error would be made out.

286. For completeness, I note that Mr Massoud devoted no fewer than four pages of his submissions to injunctive relief. His counsel addressed orally on the topic. Mr Molomby’s point was that there should be a review of the traditional reticence to grant injunctive relief, because of legislative change. It was put:

“As a result of amendments in effect since 1 July 2021, if an unsuccessful defendant repeats or continues publication more than three years after the date of first publication, the successful plaintiff is barred from suing again. The only condition is that the continuing publication be in a form not materially different from the first publication, In relation to a continuing unchanged presence on a website, that condition is obviously satisfied.”

287. The primary judge received a similar submission. Her Honour observed at [646]-[647] that:

“Mr Molomby SC also puts before me what he calls some ‘novel propositions’ as to the asserted inadequacy of the amendments to the Act which became law on 1 July 2021 concerning, inter alia, the asserted impact of the single publication rule on injunctions. They are not in fact novel; he made these same submissions to the Department of Communities and Justice prior to the enactment of those amendments.

As I would not be prepared to make any injunctive orders for the reasons set out above, I decline to take part in a discussion of Mr Molomby SC’s concerns with these reforms, as I consider this would ‘exceed the limits of the judicial role’ (Burrows v Macpherson and Kelly [2021] NSWCA 148 at [162]).”

288. I have concluded that the orders dismissing Mr Massoud’s actions were correct. There is no need to engage with the change in the law which Mr Massoud has sought to advance at trial and in this Court. The primary judge was, with respect, entirely correct to decline to do so. This Court should follow the same course. The propositions advanced by Mr Molomby should await a case in which their resolution will affect the outcome.

Conclusion and orders

289. The conclusions reached above may be summarised as follows:

1. Mr Massoud is correct to contend that he was entitled to a trial on the basis of the primary imputations alleged in his pleadings, even if the primary judge were of the view that an imputation only put forward as a fallback better captured what was conveyed by the publication.

2. Mr Massoud has failed to establish error in the defence of justification upheld by the primary judge which is a complete answer to the entirety of his case save for the imputation in Exhibit F that he was never a respected journalist.

3. Fox Sports has established that the primary judge erred in rejecting its defence of honest opinion in respect of the imputation in Exhibit F that Mr Massoud was never a respected journalist.

4. If Radio 2GB Sydney were otherwise liable, its offer of amends would not be a defence, and the primary judge erred in concluding to the contrary.

5. It is unnecessary to engage fully with the other grounds of appeal Mr Massoud has raised, none of which can alter the result in this Court.

290. For those reasons, while there should be a grant of leave to appeal against Fox Sports, KIIS and Nine Digital, and also a grant of leave to appeal if leave be necessary to appeal against the judgments in favour of Nationwide News and Radio 2GB Sydney, all of the proceedings Mr Massoud has brought should be dismissed.

291. Mr Massoud has enjoyed some success in relation to the findings of a minority of the imputations, and in relation to the offer of amends. But his appeal and application for leave to appeal were brought with the knowledge that he could only obtain a judgment in his favour if he succeeded on multiple bases. In those circumstances, costs should follow the event being the outcome of the appeal.

292. I propose these orders:

In 2021/240231, grant leave to appeal if leave be necessary, but dismiss the appeal with costs.

In 2021/303842, grant leave to appeal, dispense with the requirements of filing and service of a notice of appeal, and dismiss the appeal with costs.

In 2021/343783, dismiss the summons with costs.

293. MITCHELMORE JA: I agree with Leeming JA.

294. SIMPSON AJA: I agree with Leeming JA.

Annexure

The first and second columns in the table below identify each publication by exhibit, publisher, date and headline (or in the case of radio broadcasts, a quote from the broadcast). The third column identifies the imputations which Mr Massoud alleged in the alternative were conveyed, with the finding by the primary judge in bold (in the case of exhibits G and H, no imputation was found to be conveyed, but the primary judge proceeded in the alternative to find that the underlined imputation was conveyed). The fourth column identifies the defences which the primary judge held to have been made out.

Exhibit, date and publisher	Title or quote	Imputations alleged (those found in bold)	Defences upheld by primary judge
Exhibit A Radio 2GB website 3 May 2018	“Senior Channel 7 reporter allegedly threatened to slit colleague’s throat”	(a) That he threatened to slit a junior colleague’s throat (b) That he threatened a young colleague with violence	Justification; Contextual truth; Letter of amends
Exhibit B Radio 2GB website 4 May 2018	“Karma’s a bitch’, Ray Hadley unleashes on ‘grub’ Josh Massoud”	(a) That he made graphic threats to kill a young colleague (b) That he threatened a young man with violence	Justification; Contextual truth; Letter of amends
Exhibit C Radio 2GB broadcast 5 November 2018	“What a grubby little fellow”	(a) That he made graphic threats to kill a young colleague (b) That he threatened to cut the throat of a young colleague (c) That he threatened a young man with violence	Justification; Contextual truth; Letter of amends
Exhibit D Radio 2GB website 5 November 2018	“Former NRL player confronts rugby league journalist Josh Massoud”	(a) That he made graphic threats to kill a young colleague (b) That he threatened to cut the throat of a young colleague (c) That he threatened a young man with violence	Justification; Contextual truth; Letter of amends
Exhibit E Radio 2GB broadcast 21 February 2019	“that couldn’t be a bad thing for the Eels’ chances in 2019”	(a) That he wanted to slit someone’s throat (b) That he threatened to slit the throat of an 18-year-old cadet (c) That he threatened a young colleague with violence	Justification; Contextual truth; Letter of amends
Exhibit F Fox Sports 21 September 2018	“The Professor’s Farewell Tour 2018”, episode 28	(a) That he threatened to slit a young reporter’s throat (b) That he threatened a young reporter with violence (c) That he was never a respected journalist	Justification (only imputation (b)); Contextual truth (both imputations)
Exhibit G Commonwealth Broadcasting Corporation 4 May 2018	“I’m always threatening to slit Intern Pete’s neck”	(a) That he threatened to slit a colleague’s throat (b) That he threatened a colleague with violence	Justification; Contextual truth
Exhibit H Nationwide News Ltd website 3 May 2018	“Channel 7 journo Josh Massoud ‘threatened to slit colleague’s throat’”	(a) That he threatened to slit a colleague’s throat (b) That he threatened a colleague with violence	Justification; Contextual truth
Exhibit J Daily Telegraph 4 May 2018	“Out Over Throat Threat”	(a) That he threatened to slit a rookie colleague’s throat (b) That he threatened a young colleague with violence	Justification; Contextual truth
Exhibit K Sunday Telegraph 13 May 2018	“Six-figure sum sought for Josh ‘to go away’”	(a) That he threatened to slit the throat of a young colleague (b) That he threatened a young colleague with violence	Justification; Contextual truth
Exhibit L Nationwide News Ltd website 13 May 2018	“Channel 7’s former NRL reporter Josh Massoud seeking six-figure payout after threatening co-worker”	(a) That he threatened to slit the throat of a young colleague (b) That he threatened a young colleague with violence	Justification; Contextual truth
Exhibit M Daily Telegraph 20 May 2018	“Massoud Gone”	(a) That he threatened to slit the throat of a 22-year old cub reporter (b) That he threatened a young colleague with violence	Justification; Contextual truth
Exhibit N Nationwide News website 4 November 2018	“Former sports journalist Josh Massoud spotted driving ice cream van	(a) That he threatened to slit a 22-year-old colleague’s neck (b) That he threatened a young colleague with violence	Justification; Contextual truth
Exhibit O Daily Telegraph 6 November 2018	“New gig is cold comfort for ex-journo”	(a) That he threatened to slit a 22-year-old colleague’s neck (b) That he threatened a young colleague with violence	Justification; Contextual truth
Exhibit P Nationwide News Facebook post 12 May 2018	“Channel 7 sports reporter Josh Massoud is demanding a six-figure payout from the network after being suspended for allegedly threatening to ‘slit’ the throat of a young colleague”	(a) That he threatened to slit a 22-year old colleague’s throat (b) That he threatened a young colleague with violence	Justification; Contextual truth
Exhibit Q Nine Digital “Wide World of Sports” website 3 May 2018	Seven reporter Josh Massoud threatened to ‘slit’ colleague’s throat”	(a) That he threatened to slit a junior colleague’s throat (b) That he threatened a young colleague with violence	Justification; Contextual truth

Amendments

27 April 2023 - "6:00pm" amended to "6pm" in [2]

- "in" inserted after "issue" in [31] so it reads "the points in issue in that matter"

- comma inserted after "slitting his throat" in the quote in [55]

- "was" amended to "were" in [88] so it reads "the words 'If you weren't so young' were tantamount"

- "disclaimed" amended to "disclaimer" in [90]

- "they" amended to "the words" in [109] so it reads "The fact that the words were used"

- "refers" inserted before "records" in [119] so it reads "The transcript to which [309] refers records"

- MNC corrected from "[1994] HCA 66" to "[1993] HCA 41" in [122]

- "and" amended to "at" in [123] so it reads "in arriving at that conclusion"

- "he" amended to "[it]" in [136(g)] so it reads "after [it] was put"

- "[in]" inserted in [147] so it reads "about him being [in] shock"

- "the" amended to "this" in [165] so it reads "For the purposes of this section"

- the word "bad" removed in [251] so it reads "pattern of behaviour"

- "colleagues'" amended to "colleague's" in [272] so it reads "to slit a colleague's throat"

Decision last updated: 27 April 2023