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

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

26 – 30 April, 3 – 5 May, 13 – 14 May and 27 May 2021, 11 June 2021(submissions)

Date of orders:

29 July 2021

Decision date:

29 July 2021

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Orders:

(1) Judgment for the defendant in Massoud v Radio 2GB Sydney Pty Ltd (2019/00133854).

(2) Judgment for the defendant in Massoud v Fox Sports Australia Pty Ltd (2019/00134071).

(3) Judgment for the defendant in Massoud v Commonwealth Broadcasting Corporation Pty Ltd (2019/001333079).

(4) Judgment for the defendant in Massoud v Nine Digital Pty Ltd (2019/00134011).

(5) Judgment for the defendant in Massoud v Nationwide News Pty Ltd (2019/00134071).

(6) The plaintiff to pay the defendants’ costs, with liberty to apply.

(7) Exhibits retained until further order.

Catchwords:

TORT – defamation – plaintiff suspended and dismissed from his employment as a journalist for telling an 18-year-old cadet that if he weren’t so young, the plaintiff would rip his head off and shit down his throat – plaintiff brings proceedings against five media organisations for misquoting what he said in otherwise factually correct reports – defences of justification and contextual truth – judgment for defendants

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56 – 58

Defamation Act 2005 (NSW) ss, 3, 4, 14, 15, 18, 25, 26, 31, 34 and 38

Evidence Act 1995 (NSW) ss 60 and 91

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228

Ager v Canjex Publishing Ltd (2005) 259 DLR (4th) 77

Agustin-Bunch v Smith [2021] VSC 158

Ainsworth v Burden [2005] NSWCA 174

Ali v Nationwide News Pty Ltd [2008] NSWCA 183

Allen v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 2 December 1988)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510

Australian Competition and Consumer Commission v Social-Lites Pty Ltd [2017] FCA 398

Barton v Armstrong [1969] 2 NSWR 451

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154

Bellino v Queensland Newspapers Pty Ltd [2019] FCA 1380

Bennette v Cohen [2009] NSWCA 60

Brown v Maurice Blackburn Cashman (2013) 45 VR 22

Burrows v Macpherson and Kelly [2021] NSWCA 148

Burstein v Times Newspapers Ltd (2001) 1 WLR 579

Carolan v Fairfax Media Publications Pty Ltd (no 7) [2017] NSWSC 351

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232

Charan v Nationwide News Pty Ltd [2018] VSC 3

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185

Clark v Norton [1910] VLR 494

Coleman v Power (2004) 220 CLR 1

Cooper-Flynn v Radio Telefis Eireann [2004] IESC 27

Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99

Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255

Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519

Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd [2018] NSWCA 325

Customs and Excise Commissioners v A & Another [2003] 2 All ER 736 at 754

Dank v Nationwide News Pty Ltd [2016] NSWSC 295

Davis v Nationwide News Pty Ltd [2008] NSWSC 693

De Kauwe v Cohen [2021] WASC 25

Digi-Tech (Australia) Ltd v Brand & Ors (2004) 62 IPR 184

Donoghue v Hayes (1831) Exch of Pleas 265

Eatock v Bolt [2011] FCA 1103

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] NSWCA 172

Fairfax Media Publications v Zeccola [2015] NSWCA 329

Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612

Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838

Giani v Queensland Television Ltd & Ors [2015] QDC 286

Goldsmith v Sperrings Ltd [1977] 1 WLR 478

Green v Fairfax Media Publications Pty Ltd [2020] WASC 250

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

Hill v Westfield & Anor [2003] NSWSC 437

Hobbs v C T Tinling & Co; Hobbs v Nottingham Journal Ltd [1929] 2 KB 1

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

Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770

Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90

Humphries v TWT Ltd [1993] ACTSC 24; 113 FLR 402

Humphries v TWT Ltd [1993] FCA 577; 120 ALR 693

Hutley v Cosco [2021] NSWCA 17

Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36

John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485

John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657

Jones v Sutton (No 2) [2005] NSWCA 203

Lewis v Daily Telegraph [1964] AC 234

Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293

Maiselv Financial Times Ltd [1915] 3 KB 336

Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 520

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293

Mohareb v Booth [2020] NSWCA 49

Nail v News Group Newspapers Ltd and others; Nail v Jones and Another [2005] 1 All ER 1040

O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89

O’Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655

O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166

Oyston v St Patrick's College [2013] NSWCA 135

Palmer v McGowan [2021] FCA 430

Pamplin v Express Newspapers Ltd [1988] 1 WLR 116

Pearse v Viva Energy Refining Pty Ltd [2017] FWC 3817

Pedavoli v John Fairfax Publications Pty Ltd [2014] NSWSC 1476

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175

Plato Films Ltd v Speidel [1961] AC 1090

R v Ireland [1997] 1 All ER 112

Rochfort v John Fairfax &Sons Ltd [1972] 1 NSWLR 16

Sands v Channel Seven Adelaide Pty Ltd and Anor (2009) 104 SASR 452

State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 160 ALR 588

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15

Stocker v Stocker [2019] UKSC 17

Sutherland v Stopes [1925] AC 47

Tauafaga v TCN Channel 9 Pty Ltd [2013] NSWSC 8

Thornton v Telegraph Media Group Limited(No.2) [2011] EWHC 1884

Tuberville v Savage (1669) 86 ER 684

V’Landys v Australian Broadcasting Corporation (No.3) [2021] FCA 500

Watson v Foxman (1995) 49 NSWLR 315

Zoef v Nationwide News Pty Ltd [2016] NSWCA 283

Texts Cited:

“A Comparative Study of Defamation Costs Across Europe”, Oxford University, 2008 ( Rolph, Defamation Law (Thomson Reuters (Professional) Australia, 2015)

J G Fleming, “Retraction and Reply: Alternative Remedies for Defamation” (1978) 12 U Col L Rev 15

New South Wales Government Gazette, No 132, 26 June 2020, at p. 3045

New South Wales Government Gazette, No 247, 11 June 2021

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005, at p. 17636

Category:

Principal judgment

Parties:

Plaintiff:
Josh Massoud

Defendants:
Radio 2GB Sydney Pty Ltd ABN 89 010 853 317 (19/133854)
Fox Sports Australia Pty Limited (19/133954)
Commonwealth Broadcasting Corporation Pty Ltd (19/133979)
Nine Digital Pty Ltd (19/134011)
Nationwide News Pty. Limited (19/134071)

Representation:

Counsel:
Plaintiff:
Mr T Molomby SC with Ms L Goodchild

Defendants:
Mr D Sibtain With Mr T Senior

Solicitors:
Plaintiff:
O'Brien Criminal and Civil Solicitors

Defendants:
Banki Haddock Fiora(19/133854)
Baker & McKenzie(19/133954)
Banki Haddock Fiora (19/133979)
Thomson Geer (19/134011)
Nationwide News Pty. Limited (19/134071)

File Number(s):

2019/00133854; 2019/00133954; 2019/00133979; 2019/00134011; 2019/00134071

Publication restriction:

Nil

Index to Judgment

Para
The plaintiff’s actions for defamation	1
The issues for determination	5
The matters complained of	8
The capacity of the matters complained of to convey the imputations	9
The ordinary reasonable reader/listener/viewer	25
Radio 2GB	31
- Exhibit A: 3 May 2018 2GB website publication	32
- Exhibit B: 4 May 2018 website	39
- Exhibit C: 5 May 2018 radio broadcast	50
- Exhibit D: 5 November 2018 website	57
- Exhibit E: 21 February 2019 radio broadcast	62
The proceedings against Fox Sports	69
- Exhibit F: 21 September 2018 television broadcast	70
Commonwealth Broadcasting Corporation (CBC)	78
- Exhibit G: 4 May 2018 radio broadcast	79
Nationwide News Pty Ltd	87
- Exhibit H: 3 May 2018 website publication	88
- Exhibit J: Daily Telegraph 4 May 2018	97
- Exhibit K: Sunday Telegraph 13 May 2018	101
- Exhibit L: 13 May 2018 online publication	106
- Exhibit M: Telegraph article 20 May 2018	111
- Exhibit N: 5 November 2018 Daily Telegraph	114
- Exhibit O: 6 November 2018 Daily Telegraph	117
- Exhibit P: 12 May 2018 social media post	120
Nine Digital Pty Ltd	125
- Exhibit Q: 3 May 2018 online publication	126
Conclusions concerning the capacity of the matters complained of	129
The defences	132
The defence of justification	133
The defence of contextual justification	145
The defence of contextual justification: capacity issues	148
- Exhibit A: 3 May 2018 2GB online publication	160
- Exhibit B: 4 May 2018 2GB online publication	168
- Exhibit C: 5 November 2018 2GB Ray Hadley broadcast	176
- Exhibit D: 5 November 2018 2GB website publication	181
- Exhibit E: 21 February 2019 2GB Ray Hadley broadcast	185
- Exhibit F: 21 September 2018 Fox Sports “The Professor’s Farewell Tour 2018”	189
- Exhibit G: 4 May 2018 KIIS FM broadcast	193
- Exhibit H: 3 May 2018 Sunday Telegraph website publication	196
- Exhibit J: 4 May 2018 Daily Telegraph	199
- Exhibit K: 13 May 2018 Daily Telegraph	202
- Exhibit L: 14 May 2018 Daily Telegraph website	206
- Exhibit M: 20 May 2018 Daily Telegraph	208
- Exhibit N: 5 November 2018 Daily Telegraph website	212
- Exhibit O: 6 November 2018 Daily Telegraph print publication	216
- Exhibit P: 12 May 2018 Daily Telegraph Facebook	220
- Exhibit Q: 3 May 2018 Wide World of Sport website publication	223
Conclusions concerning the capacity of the contextual imputations	227
The evidence concerning the justification defences	228
The credit of witnesses	242
- Evidence of the telephone calls made on 1 May 2018	247
- Exhibit 1	252
- Jim Wilson	271
- Emma Dallimore	280
- Luke McGarry	288
- The plaintiff’s evidence of the conversation with Mr Warren	301
- Mr Warren’s version of the call	315
- Mr Morrison	340
- Evidence of other witnesses concerning the telephone call	354
- Report from Katie Toney	355
- The evidence of Ms Toney	358
- Ms Fuller	369
- Evidence of other conduct	372
The defendants’ application to amend the particulars of justification	373
- The plaintiff’s behaviour towards Ms Taylor	377
-Conclusions concerning the incidents involving Saskia Taylor	402
- The plaintiff’s behaviour at Nationwide News	406
- 2010 – The Legion Cabs incident	411
- Ms Tepper	423
- Heath Kelly	428
- May 2014 – the Jamal Idris story and Adam Mobbs	433
- Other behaviour at Channel 7	444
- Fox Sports	453
Ruling on admissibility of cross-examination concerning the Judy Davis defamation proceedings	454
Whose evidence should be accepted?	467
Is the defence of justification made out to the imputations pleaded by the plaintiff?	472
Imputations that the plaintiff threatened to slit the throat of a young colleague	474
Imputations that the plaintiff made graphic threats to kill a young colleague	484
Imputations that the plaintiff threatened a young reporter/colleague with violence	487
The imputation that the plaintiff was never a respected journalist	490
Truth of the contextual imputations	495
The imputation that the plaintiff was a bully	500
The imputation that the plaintiff was the type of person who threatens and intimidates his work colleagues	510
Whether further harm has occurred to the plaintiff’s reputation	514
Contextual imputations and the Fox imputation	523
The honest opinion defence to Fox Sports proceedings	531
Fact or opinion?	536
Proper material for comment?	542
The defence of offer of amends	551
The relevant statutory provisions	555
The Concerns Notice and the Offer to Make Amends	561
The plaintiff’s challenge to the adequacy of the offer to make amends	563
2GB’s submissions	565
Did 2GB publish a reasonable correction in respect of the defamatory imputations to which it was addressed?	566
The absence of an apology and an offer of compensation	568
Failure to remove the matter complained of	570
Conclusions concerning 2GB’s defence of offer of amends	575
Damages	581
The relevant principles	582
Hurt to feelings and reputation damage	587
Extent of publication	592
The seriousness of the imputations	593
Mitigation	594
The legislation	598
Mitigating factors: the truth defence	599
Mitigating factors: other awards of damages	608
Mitigating factors: whether evidence of particular acts of misconduct may be relied upon	611
Aggravated damages	621
Knowledge of falsity	626
Failure to apologise	628
Further publication on social media and continued publication on the website up to trial	630
Persisting in a plea of justification	632
The cap	633
Calculation of the damages: the holistic approach	636
The application for a permanent injunction	642
Costs	648
Orders

Judgment

The plaintiff’s actions for defamation

1. The plaintiff, Mr Josh Massoud, brings proceedings against five media organisations for defamation, for a total of sixteen publications, occurring over three periods of time (May 2018, November 2018 and February 2019). Each of these publications refers to the circumstances in which the plaintiff was suspended pending an investigation by his employer’s Human Resources department. Six of the matters complained of (Exhibits D, E, F, M, N and O), which postdate the plaintiff’s dismissal on 17 May 2018 from his employment, additionally refer to him as a disgraced journalist now driving an ice cream truck.

2. It is not in dispute that the plaintiff’s dismissal occurred as a result of his words and conduct during a series of telephone calls he made to work colleagues on 1 May 2018, culminating in an abusive call he made to an 18-year-old employee in a regional office. The trial issues relate to the difference between the abusive and threatening sentence the plaintiff made which largely caused to his dismissal and the sentence which the matters complained of state that the plaintiff said.

3. The single imputation the plaintiff pleads in relation to each publication, in general terms, is that he threatened to slit a young work colleague’s throat or, alternatively, made graphic threats to kill him. It is agreed that what he actually said to the 18-year-old work colleague was:

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

4. The five separate actions, the subject of this judgment are brought against five unrelated media organisations. Five of the sixteen publications are made by Radio Sydney 2GB Pty Ltd (“2GB”), eight of the publications are made by Nationwide News Pty Ltd (“News”) and one publication is made by each of Fox Sports Australia Pty Ltd (“Fox”), Commonwealth Broadcasting Corporation Pty Ltd (“KIIS”) and Nine Digital Pty Ltd (“Nine”). The proceedings were heard together and the parties agree that the evidence in one proceedings would be the evidence in the others.

The issues for determination

5. The issues for determination are as follows:

1. Whether any of the 16 matters complained of published by the five defendants in these proceedings convey the imputations pleaded in the amended statement of claim (defamatory meaning was not put in issue).

2. Whether the defence of justification is made out in relation to the plaintiff’s imputations.

3. Whether any of the 16 matters complained of convey the contextual imputations pleaded by the defendants (defamatory meaning was not put in issue).

4. Whether, by reason of the substantial truth of the contextual imputations (or so many of them as our proven true), the plaintiff’s reputation would not have been further harmed by the publication of the plaintiff’s imputations for which the defence of justification has failed.

5. Whether the defence of honest opinion is made out in relation to the publication by Fox.

6. Whether the defence of offer to make amends is made out in relation to the publications by 2GB.

7. Damages issues, including the plaintiff’s claim for aggravated damages and mitigating factors.

6. This is only a brief summary of the main issues in this lengthy judgment.

7. It has been necessary for me to make alternative findings in certain circumstances. However, in relation to whether I should make findings on all issues in dispute between the parties, I have been guided by what the Court of Appeal said in Digi-Tech (Australia) Ltd v Brand & Ors (2004) 62 IPR 184 at 228 [282], namely “[p]rolixity is an enemy of comprehensibility and, indeed, cogency.” I acknowledge that some or all of the conclusions that I express in these reasons may be found to be erroneous, but that does not justify increasing the number of findings, a step which may in fact increase the possibility of error (see Schiemann LJ in Customs and Excise Commissioners v A & Another [2003] 2 All ER 736 at 754 [83], endorsed by the Court of Appeal in Digi-Tech at 229 [286]).

The matters complained of

8. The matters complained of are as follows:

Each Matter Complained of	Exhibits	Date
Radio 2GB Sydney Pty Ltd ABN 89 010 853 317 (19/133854)
First Matter Complained of	Exhibit A	03 May 2018
Second Matter Complained of	Exhibit B	04 May 2018
Third Matter Complained of	Exhibit C	05 November 2018
Fourth Matter Complained of	Exhibit D	05 November 2018
Fifth Matter Complained of	Exhibit E	21 February 2019
FOX SPORTS AUSTRALIA PTY LIMITED (19/133954)
Matter Complained of	Exhibit F	21 September 2018
Commonwealth Broadcasting Corporation Pty Ltd (19/133979)
Matter Complained of	Exhibit G	04 May 2018
NATIONWIDE NEWS PTY. LIMITED (19/134071)
First Matter Complained of	Exhibit H	03 May 2018
Second Matter Complained of	Exhibit J	04 May 2018
Third Matter Complained of	Exhibit K	13 May 2018
Fourth Matter Complained of	Exhibit L	13 May 2018
Fifth Matter Complained of	Exhibit M	20 May 2018
Sixth Matter Complained of	Exhibit N	05 November 2018
Seventh Matter Complained of	Exhibit O	06 November 2018
Eighth Matter Complained of	Exhibit P	12 May 2018
Nine Digital Pty Ltd (19/134011)
First Matter Complained of	Exhibit Q	03 May 2018

The capacity of the matters complained of to convey the imputations

9. As noted above, each of the sixteen matters complained of is pleaded to give rise to one imputation, but that imputation is expressed, for each publication, as a series of variants (as to this rather unusual pleading practice, which seems to have found favour in the Federal Court, see Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [14] – [15] per Lee J).

10. The test for defamatory imputations at trial is whether, on the balance of probabilities, the meaning contended for by the plaintiff was conveyed to the ordinary reasonable reader, a person “of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal”, who “does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs” and who does not engage in over-elaborate analysis in search for hidden meanings, nor adopt a strained or forced interpretation (O’Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655 at [48] per McCallum J).

9. In general terms, the defendants submit that that no imputations are conveyed in any of the publications because the words are reported only as allegations of what was said. Additionally, the context is a work dispute, whether the matters complained of refer to the plaintiff’s dismissal or not, and the plaintiff’s words would not have been construed as a real threat to kill.

10. Mr Molomby SC makes a similarly broad submission that in each publication “the allegation against the plaintiff is formulated in a very small number of precise and clear words, with minimal context” (submissions, p. 1) and that, regardless of context, the imputation is therefore conveyed.

11. Both these submissions are too broad, and do not take into account either the role of context in determining meaning or the wider applicability of the Mirror Newspapers Ltd v Harrison principles to civil allegations as explained in Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd [2018] NSWCA 325. Both these issues are discussed at length in Cummings, where the issue was whether a report of civil proceedings conveyed imputations as allegations of fact “or, as the appellants describe them, “guilt imputations”” (at [105]).

12. Mr Molomby SC submitted that the principles enunciated in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300 applied only to reports of a person being charged with a criminal offence and was inapt in the context of reports of civil allegations, adding that, as Lord Devlin stated in Lewis v Daily Telegraph [1964] AC 234 at 294, “[f]or the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it.” In other words, the republication of defamatory hearsay is sufficient for the imputation to arise regardless of what else is contained in the publication. For the reasons set out below, neither of these submissions is correct.

13. Dealing first with the importance of context, where the defamatory hearsay forms only part of the matter complained of, the rule that the publication must be read as a whole is “particularly important”, because it is the context that shows whether the statement “is refuted or undermined by other parts of the publication” (John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [27] per McHugh J). (That examination may also, of course, determine whether the defamatory hearsay was in fact adopted by the republisher, as McHugh J goes on to point out.)

14. The same point was made by McColl JA in John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 at [96], where her Honour stated that, while the re-publisher of defamatory hearsay is liable for its repetition, the nature of that liability turns upon the context in which the publication occurred, namely what defamatory imputations were conveyed having regard to the publication as a whole. It is in this context that the court embarks on factual considerations of the kind set out in Cummings at [134], namely whether greater prominence to the allegations and to the denial is given, headlines, the order in which the matters are dealt with and the language used.

15. The question of whether, in the context of civil proceedings, someone has been accused of certain conduct conveys an imputation that the person is guilty of the conduct, is discussed in Cummings at [113] to [130]. It has long been recognised that, where a publication does no more than state that a person has been charged with a criminal offence, a recognised exception, known as the Harrison principle, applies. Mr Molomby SC’s submission is that the Harrison principle is only applicable in the context of reports of criminal charges. However, McColl JA concluded, after careful examination of the many cases where the Harrison principle has been applied “analogously” in the context of civil proceedings (Cummings at [121]), that it applied to reports of civil proceedings as well.

16. The rationale for this extension is that, where there is a report of an allegation made in civil proceedings, the truth of which was yet to be determined, the context in which the defamatory hearsay was published is not one of guilt but of reasonable suspicion. In Cummings at [126], McColl JA cites, in support of this extension, observations by Rares J in Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 at 108. These were not defamation proceedings, but a media application for access to the court file in Federal Court proceedings in order to obtain the applicants’ statement of claim. There was concern that repetition of their contents would amount to “guilt imputations” (to use the appellant’s terminology in Cummings). Rares J held that it would be contrary to the principle of open justice to restrict public access to pleadings in civil proceedings, stating (at [108]), that members of the public understood that it was fundamental to the open administration of justice that courts have allegations made in them which were untested at various stages of the proceedings leading up to judgment.

17. McColl JA also referred to the observations of Bleby J in Sands v Channel Seven Adelaide Pty Ltd and Anor (2009) 104 SASR 452 at [301]:

“There was certainly no adoption of the allegation. I accept the submission of the ABC that reasonable listeners and readers of the publications must be taken to understand that Court proceedings involve the resolution of competing claims by opposing litigants, and that it is not until judgement that one or other of those versions is found to be true. A reasonable listener and reader would not assume that all allegations made in court proceedings have a reasonable basis. Rather, the reasonable listener and reader will approach allegations made in court on a somewhat sceptical basis, aware that the allegations represent only one side of the story.”

20. The appellant in Cummings sought to argue that police charges should be dealt with differently because the allegations came from an official source, namely the police service, adding that in Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 589, Pincus J observed that the High Court in Harrison had not suggested that the same rule would apply to allegations “published as having an unofficial source”. The Court of Appeal in Cummings nevertheless accepted, for the reasons set out above, that the principle could be applied analogously to civil proceedings, by reason of the ordinary reasonable reader or listener approaching allegations made in court in a similar fashion.

21. However, the real difficulty is whether the Harrison principle should be applied analogously to descriptions of disputes between parties which have not been commenced in court, but which involve the investigation a dispute such as workplace conduct. As to matters complained of published in May 2018 in particular, the defendants submit that, in the context of a workplace dispute, the ordinary reasonable reader or listener, hearing of the dispute and understanding that there was an investigation which was ongoing, would not find that “guilt imputations” were conveyed.

22. The correct way to determine whether the “guilt imputations” are conveyed is set out by McColl JA in Cummings at [134]. The relevant features are as follows:

1. Whether the matter complained of gives greater prominence to the allegations than they do to the denials.

2. Whether there is use of a headline designed to catch the eye and give the reader a predisposition as to what follows, in which circumstances the headline may assume more importance than what follows.

3. The significance of the order in which matters are dealt with, such as the placing of more exciting material in the introductory paragraphs.

4. Use of “vivid language”. I would add that, in addition, language used to suggest uncertainty, such as the use of the word “alleged” or putting the statements made in inverted commas to indicate what the allegation is, should be taken into account.

5. The prominence given to the story (for example, a story on the first page, as was the case in Cummings).

23. The context and contents of the matters complained of are as McColl JA notes at [138] – [140], today’s ordinary reasonable readers and listeners are exposed on almost a daily basis to accounts, not only of criminal or civil proceedings, but even “more run-of-the-mill disputes”, and expect there to be two sides to the story. However, McColl JA restricts the generosity of the analogy to proceedings brought within the structure of the courts. Her Honour does not suggest that disputes outside the court system would be viewed as being the same. For these reasons, the references to an investigation into workplace conduct in which the plaintiff is represented by a lawyer does not provide sufficient context for the defendants’ arguments to succeed.

24. It is arguable that in today’s Internet world, the ordinary reasonable reader and listener would be not merely “somewhat sceptical” of what they read, as Bleby J stated in Sands at 301, but actively sceptical, when reading allegations of a dispute where the word “alleged” is liberally applied. However, to draw inferences of the kind suggested by the defendants in relation to a publication describing a dispute outside the court system is going too far. The question of context arising from the matters complained of describing a work dispute must be determined on the content and presentation of each article, and not by inference to the reader or listener being “well sensitised to the legal process of making allegations” (Cummings at [139]).

The ordinary reasonable reader/listener/viewer

25. The relevant principles are helpfully set out by Flick J in Bellino v Queensland Newspapers Pty Ltd [2019] FCA 1380 at [13] - [16]. As Flick J notes, the “ordinary reasonable reader” is variously said to be of fair, average intelligence, experience and education; he or she is also fair-minded and neither perverse, morbid nor suspicious of mind, nor avid for scandal.

26. When applying the “ordinary reasonable reader” test in determining what implications or inferences would be drawn from a publication, it is important to note that the ordinary reasonable reader is not a lawyer who parses and analyses the publication, but that the publication is being read by someone who views the publication casually and is prone to a degree of “loose thinking”, particularly in the case of transient publications such as radio broadcasts.

27. “The ordinary reasonable reader” does not live in an “ivory tower”, but can, and does, read between the lines, in the light of general knowledge and experience of worldly affairs. While such a reader does not search for hidden meanings or adopt strained or forced interpretations, he or she would nevertheless draw implications, especially derogatory implications, more freely than a lawyer would.

28. The facts in this case also raise an interesting question of the ordinary reasonable reader’s understanding of community standards of conduct, in terms of how a media report of the use of a “four-letter word” such as the word “shit” (specifically, a threat to shit down the throat of someone) should be presented to readers. I have carefully preserved the use of asterisks and dots (where these are used) in order to ensure that this aspect of the publication is not overlooked.

29. The imputations must arise in their natural and ordinary meaning. The role of context is vital here, as publications of the kind the subject of these proceedings assume that their readers are taking into account their general knowledge and experience, which would include some understanding of workplace conduct and what amounts to bullying, unlike more esoteric areas of asserted misconduct, such as insider trading (Hill v Westfield & Anor [2003] NSWSC 437 at [10] – [14].

30. The entire publication must be considered to have been read, and such a reader would consider the context as a whole, although taking into account emphasis that may be given by conspicuous headlines or captions.

Radio 2GB

31. Five of the publications were made by 2GB.

Exhibit A: 3 May 2018 2GB website publication

32. I first note two problems in terms of the content of this publication:

1. Exhibit A is a website publication which contained, according to paragraph 3 of the statement of claim, “photographs of the plaintiff”, with the heading “Senior Channel 7 reporter allegedly threatened to slit colleagues throat”. However, the copy of the matter complained of attached to the statement of claim, and tendered at the hearing, shows a photograph of a large commercial building with the logo “7 Network”, and does not attach any photographs of the plaintiff. The presence of this photograph tends to underline that the dispute in question is a work dispute.

2. Paragraph 15 of the text of the matter complained of as attached to the statement of claim contains the words: “Click PLAY below for more details” and is followed by a link to the Ray Hadley morning show, with a picture of a person I presume is Mr Hadley. The words “…er [sic] accused of threatening regional staff” appear. Contrary to the provisions of Part 14.30 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the text of whatever Mr Hadley said in this broadcast is not reproduced as part of the matter complained of. I was not addressed concerning the contents of this link, or provided with any information about it. Accordingly, I have treated this link as if it does not form part of the matter complained of (as is noted below, there is a similar problem with a link in the second matter complained of).

33. The imputations pleaded are:

1. That he threatened to slit a junior colleague’s throat

Alternatively,

2. That he threatened a young colleague with violence

34. Mr Molomby SC relies upon the word “slit” in the heading and in line 9 and the reference to “graphic and violent threats” and submits that the mere use of these words amounts to an assertion that the plaintiff had spoken these words, regardless of the words “allegedly”, “accused” and “believed”, the reference to the Seven News Sydney director, Mr Morrison, meeting with “Massoud and his lawyers” and the reference to “more to come”. Mr Molomby SC’s submission is that words such as “allegedly”, or even a portrayal of the allegation being denied, cannot detract from the publisher’s liability, as merely by repeating the accusation, however phrased; the publisher is repeating the allegation of another person of commission of a wrong, and is liable as a “re-publisher” of that defamatory statement.

35. The first issue for consideration is whether the matter complained of is reporting what occurred as facts, or whether it is reporting that a dispute has arisen. The following features should be noted:

1. The use of the word “allegedly” in the headline and in line 5 and the word “alleged” in line 9.

2. The use of the word “accused” in line 4.

3. The use of the word “believed” in line 7.

4. The description of the current state of the allegations, namely that the Seven News Sydney director “met with Massoud and his lawyers alongside Channel Seven’s human resources team”, which is followed by the words: “More to come”.

36. It is clear from the story the publication tells that this is a workplace dispute involving a telephone call by the plaintiff to a junior colleague. The context of the threat as being a workplace dispute is clear from the headline reference to colleague, the reference to junior staff member in lines 3 to 4, the threats to a 21-year-old reporter at one of Channel Seven’s regional Queensland offices in lines 5 to 6 and a description of the subject of the dispute between them in lines 7 to 10, which culminated in the threat. This is reinforced by the reference to the meeting between the plaintiff and the Seven News director “alongside Channel Seven’s human resources team”. It is clear from the concluding paragraphs that this is being dealt with as an employment issue and not as, for example, a police matter.

37. The ordinary reasonable reader, reading between the lines and capable of a degree of loose thinking, would read to the description of events as a workplace dispute which was being investigated. The fact that the plaintiff has retained legal advisors and that there was “more to come” is indicative of an ongoing enquiry rather than a concluded result. However, there is no denial of the statement, or statement of the plaintiff’s position. Despite the use of the word “alleged”, the publication would convey to the ordinary reasonable reader an imputation amounting to a repetition of the libel, namely that the plaintiff has been suspended and faces dismissal because he spoke these words.

38. The content of the threat is clearly set out in the headline. The imputation preferred by the plaintiff (imputation (a)) is capable of being conveyed. Although no challenge to the defamatory nature of the imputation was made, I also formally record that the imputation is defamatory.

Exhibit B: 4 May 2018 website

39. The second matter complained of is headed: “‘Karma’s a bitch’, Ray Hadley unleashes on ‘grub’ Josh Massoud”.

40. As was the case with the first matter complained of, a portion of this publication appears not to be included in the matter complained of. This is an excerpt from a prior broadcast containing a call from a Christine Clark, the link to which is set out in paragraph 32. Contrary to the provisions of UCPR r 14.30, the text of what is said is not set out. Nor have I been provided with the linked article referred to in lines 29 and 30.

41. These passages are, however, mere surplusage, in terms of the overwhelming nature of the attacks on the plaintiff in the remaining parts of the publication, which are clearly sufficient to convey the imputation pleaded.

42. The imputations pleaded are:

1. That he made graphic threats to kill a young colleague

Alternatively

2. That he threatened a young colleague with violence

43. The following portions of the matter complained of are pointed to by the defendants as indicating that the accusations are merely accusations:

1. the use of the word “alleged” in line 5.

2. The use of the word “accused” in line 6.

3. The sentence: “Channel 7 lawyers have since met with Massoud to discuss his future… At this stage, the staffer hasn’t taken any legal action.

44. The defendants submit that the references to the plaintiff being stood down over alleged vile threats towards a junior colleague mean that this is clearly portrayed as a workplace dispute and as such, the making of a literal threat of violence, as pleaded in the imputations, would not be conveyed. There is no suggestion the police were called, or that the plaintiff was arrested, in circumstances where the ordinary reasonable reader would expect police involvement over such a threat.

45. However, the overwhelmingly accusatory nature of the remaining material easily outweighs these feeble attempts to portray the allegations as being merely allegations. In particular, in line 10, Mr Hadley reveals that the conduct of which the plaintiff was accused (described in line 13 as “the story about Massoud’s bullying”) had prompted him to reveal the plaintiff’s “history of disgusting behaviour”.

46. The fact that the threat was made in the context of a work dispute does not mean that the imputation pleaded was not conveyed. To suggest that an imputation of making a threat is not conveyed unless the police are called is a misconceived submission.

47. This brings me to the question of which imputation of the two is conveyed. In the course of oral submissions, Mr Molomby SC indicated that his imputation of preference was imputation (a), namely that the plaintiff made graphic threats to kill a young colleague.

48. I am satisfied that this imputation, which closely follows the words in line 6 of the publication, is reasonably capable of being conveyed. The matter complained of does not in fact refer to a threat to cut the throat of the young colleague.

44. Imputation (a) is accordingly conveyed. As is the case with all the imputations pleaded, I was not addressed as to whether such an imputation is defamatory. I formally note that I am satisfied that all of the imputations pleaded by the plaintiff and all of the contextual imputations pleaded by the defendants satisfy the relevant requirements to be determined to be defamatory.

Exhibit C: 5 May 2018 radio broadcast

50. The matter complained of is a broadcast by Mr Ray Hadley on 2GB dated 5 November 2018.

51. The imputations pleaded are as follows:

1. That he made graphic threats to kill a young colleague

Alternatively

2. That he threatened to cut the throat of a young colleague

Alternatively

3. That he threatened a young colleague with violence

52. The terms of the matter complained of could not be clearer. Lines 12 – 14 state:

“Anyway, this character of course lost his job at Channel 7 in May after allegedly making graphic threats to kill a 21-year-old staff member based in regional Queensland. It was a breach over an embargo. There was allegedly a threat to cut the throat of the young worker.”

53. Although the word “allegedly” is used twice, the use of the words is preceded by a paragraph stating that he did not think much of the plaintiff before these events “and it turns out I was right” and goes on to state, twice, that the plaintiff is universally disliked, concluding that “the only one celebrating your demise louder than me other people you’ve bagged, along with me over the years… What a grubby little fellow.”

54. In circumstances such as these, the use of the word “allegedly” is pointless. The clear message of the broadcast as a whole is that the plaintiff lost his job because of the conduct attributed to him, namely making graphic threats to kill a 21-year-old staff member which included a threat to cut the throat of the young worker.

55. Which of these alternative imputations is conveyed?

56. In the course of oral submissions, Mr Molomby SC indicated that, of the three alternatives pleaded, his imputation of choice was imputation (a), namely that the plaintiff made graphic threats to kill a young colleague. This is clearly conveyed by the passage from the matter complained of set out above, as well as defamatory. (As is the case with the other publications, the other two imputations pleaded would both be capable of arising, but only as alternatives, as this is how they are pleaded.)

Exhibit D: 5 November 2018 website

57. This website publication is headed “Former NRL player confronts dumped rugby league journalist Josh Massoud”.

58. The imputations pleaded are:

1. That he made graphic threats to kill a young colleague

Alternatively

2. That he threatened to slit the throat of a young colleague

Alternatively

3. That he threatened a young colleague with violence

59. The matter complained of sets out, in lines 3 and 4, that the plaintiff had reappeared “five months after resigning in disgrace from Channel Seven”. It is then stated that Ray Hadley’s “exclusive” had “revealed the incident which led to the journalist’s demise.” That incident is described in the following lines as “making graphic threats to kill a Channel Seven colleague” and threatening to “’slit” the 21-year-old throat and “shit down his neck” after the cadet breached an embargo on one of his stories. The plaintiff is described as hiring legal representation and being allowed to resign after being “confronted with his appalling behaviour”.

60. The defendants submit that because this is a workplace argument, the fact of making a graphic threat to kill and/or slitting the colleague’s throat cannot be conveyed as actual threats of a criminal nature. For the same reasons as set out above, I reject this argument. It is not necessary for the police to be involved or for criminal proceedings to be foreshadowed where threats of this nature are made in the workplace.

61. Which imputation is conveyed? In the course of oral submissions, when asked to state his preference, Mr Molomby SC indicated his preference for imputation (a), namely the imputation that the plaintiff made graphic threats to kill a young colleague. I am satisfied that this imputation is conveyed and defamatory.

Exhibit E: 21 February 2019 radio broadcast

62. The fifth and final publication by 2GB is a radio broadcast by Mr Ray Hadley, made approximately nine months after the plaintiff’s dismissal.

63. The imputations pleaded are as follows:

1. That he wanted to slit someone’s throat

Alternatively

2. That he threatened to slit the throat of an 18-year-old cadet

Alternatively

3. That he threatened a young colleague with violence

64. Mr Hadley opens his remarks about the plaintiff by stating that the plaintiff was terminated by mutual agreement “for reasons I’ll go into a bit later”. He starts outlining those reasons by stating that he suspected, given the allegation was “wanting to slit some bloke’s throat”, the plaintiff’s services must have been attractive to the Parramatta club because they were looking for a way for dealing with media they did not like, and that this would be why they had sought the plaintiff’s services. He then describes the incident leading to the plaintiff’s dismissal as follows:

“You might remember that I mentioned that Massoud, for whom I have no regard whatsoever prior to his personal attacks on me over a sustained period, he was terminated by agreement with Channel 7 after he allegedly threatened to slit the throat of an 18-year-old cadet after the young cadet inadvertently posted a Massoud story on a social media post before it was broadcast. So that’s what happened.”

65. Although the word “allegedly” is used, it has no work to do in a context of his employment being described, in the above extracts, as being terminated for this reason. The context of the plaintiff’s conduct on the occasion leading to his termination is a series of statements by Mr Hadley and verse to him, including that “given his history” (line 18) it was not a bad thing that the Parramatta club should have no association with him.

66. Which imputation is conveyed? In the course of oral submissions, Mr Molomby SC vacillated between imputations (a) and (b).

67. Imputation (a) is not conveyed; the matter complained of refers to a workplace dispute in which a threat was made, and not to a desire by the plaintiff to slit someone’s throat.

68. Imputation (b) accurately reflects the workplace background to the threat identifies that the plaintiff threatened to do so. This imputation is conveyed and defamatory.

The proceedings against Fox Sports

69. The plaintiff brings proceedings for one publication made by Fox, namely episode 28 of “The Professor’s Farewell Tour 2018”, a television program broadcast on 21 September 2018.

Exhibit F: 21 September 2018 television broadcast

70. The imputations pleaded are:

1. That he threatened to slit a young reporter’s throat

Alternatively

2. That he threatened a young reporter with violence

3. That he was never a respected journalist

71. The tone and content of this publication make it clear that this is intended to be a comedy skit. It is part of a “Super Fan Quiz” on sports issues, for which there are two competing teams. In this quiz, it is the turn of the “Normals” team to answer a question, and the question that is put to them (“True or false? Josh Massoud was a respected Rugby League Journalist?”) First, the presenter states:

“Earlier this year, Rugby League Reporter Josh Massoud was dismissed after threatening a young reporter. This show came to his support revealing that the phrase he used is part of everyday vernacular here at Fox league.”

72. The skit is followed by a scene showing five men on computers in a work environment, where the first and second speakers are greeting each other by saying “Hey, slit your throat!” and “Shit down your neck!” Then the first man says “Piss in your eye”, whereupon he is rebuked by the others, saying that this is a workplace and that, if he talks like that again, “I will slit your throat and shit down your neck”. The first man apologises but the response is to ask for “the number for HR”.

73. The “question” for the team appears to be whether “Piss in your eye” is offensive, but the presenter gives the answer “no it’s not”, and goes on to ask the real question: “True or false? Josh Massoud was a respected Rugby League Journalist?”

74. The quiz player who responds: “Is he driving an ice cream truck now – I heard that – yeah – but false, false.” He then adds, in response to prompting, that it is “massively false” because the plaintiff “was never respected”. The presenter then says, “let’s go with that” and “let’s move on”.

75. The ordinary reasonable viewer would draw from the material in the skit that the plaintiff threatened a young reporter, and that a phrase he used was to slit the young reporter’s throat.

76. Which of imputations (a) and (b) is conveyed? Unlike the 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).

77. The ordinary reasonable viewer would similarly have little difficulty in treating a question as to whether the plaintiff was a respected rugby league journalist being answered in the way that it was conveyed an imputation that the plaintiff was never a respected journalist. Imputation (c) is accordingly conveyed.

Commonwealth Broadcasting Corporation (CBC)

78. The publication made by KIIS was a radio broadcast on 4 May 2018.

Exhibit G: 4 May 2018 radio broadcast

79. The imputations pleaded are as follows:

1. That he threatened to slit a colleague’s throat

Alternatively

2. That he threatened a colleague with violence

80. The news portion identifying the plaintiff is a two-sentence news announcement that a Channel 7 NRL reporter “has been stood down, accused of threatening to slit a colleague’s neck, Josh Massoud has been suspended… [interruption by Mr Sandilands] and an investigation is pending”

81. An interruption by Kyle Sandilands is then made, to ask, “Is that not allowed?” in the middle of these words, to which the announcer, after completing the sentence, replies “yeah not really”. Mr Sandilands then says ”I am always threatening to slit Intern Pete’s neck”. to which the announcer responds “well you don’t really say it like that”. Mr Sandilands says to Intern Pete, “I’ve threatened you with many things right”, to which intern Pete replies, “Yeah but I don’t take anything seriously”. Mr Sandilands then adds, “I’ve threatened to murder you” and Intern Pete responds, “You gotta take it all with a grain of salt”. Mr Sandilands concludes by saying “I am HR” and that complaining to him about his own conduct would be difficult.

82. The tone of voice and obviously friendly exchange of repartee between Mr Sandilands and the young intern (“Intern Pete”) he freely acknowledges having threatened to murder both paint a picture of a great fuss being made over nothing. The opening words might be capable of conveying the imputation pleaded if it were not for the ensuing conversation, which is to the effect that people say things in the work place that should not be taken seriously as they are not threats at all. The matter complained of as a whole would convey to the ordinary reasonable listener the impression that the accusations the subject of the pending investigation were ridiculous, and not that the plaintiff has in fact made a threat to slit a colleagues throat, or even that he threatened a colleague with violence.

83. The response of all the speakers to the story is one of ridicule. Not only is the investigation treated as a joke, but so is the process of complaining to Human Resources, in circumstances where the ordinary reasonable reader is told by the announcer, Intern Pete and Mr Sandilands that the matter is a joke. The announcer is laughing for much of the time (see lines 7, 35 and 48), including during reading the sentence referring to the plaintiff.

84. The mere fact that there is laughter and the matter treated as a joke does not rob a publication of defamatory meaning, because “If a man in jest conveys a serious imputation, he jests at his peril” (Donoghue v Hayes (1831) Exch of Pleas 265 at 266 per Smith B, cited in Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99 at [199]. However, the joke is not on the plaintiff, but on the plaintiff’s accuser, whose conduct in making a complaint about words which at best were part of some work argument is portrayed as ridiculous and a big fuss over nothing.

85. The ordinary reasonable listener would not distil either of the imputations pleaded by the plaintiff from a publication which not only uses the words “accused” and says the investigation is “pending” but, most importantly, which uses ridicule to underline that the whole situation is some kind of misunderstanding.

86. As neither of the imputations pleaded is conveyed, judgment will be entered for the defendant. Alternative findings (as to imputation (a), since only throat-slitting is mentioned) are nevertheless set out in the rest of this judgment for this publication.

Nationwide News Pty Ltd

87. The plaintiff brings proceedings for eight publications made by Nationwide News Pty Ltd.

Exhibit H: 3 May 2018 website publication

88. Exhibit H is headed “Channel 7 journo Josh Massoud ‘threated to slit colleague’s throat’”. The imputations pleaded are:

1. That he threatened to slit a rookie colleague’s throat

Alternatively

2. That he threatened a young colleague with violence

89. Does the matter complained of convey that the plaintiff has in fact threatened to slit a rookie reporter’s throat, or merely been accused of saying this? The following passages are relevant to the consideration of what the ordinary reasonable reader would make of this article and the meanings which would be conveyed:

1. The publication uses inverted commas in the heading (“threatened to slit colleague’s throat”) and the first paragraph (“slit” and “shit down”) to identify what was claimed to have been said. The use of the inverted commas, particularly in the heading, suggests that the headline is intended as a quotation from a person who has accused him of it.

2. The publication uses the word “claimed” in line 5, “claims: in-line 10 and “allegedly” in line 15.

3. The context is clearly identified as being a workplace dispute between the Seven’s Human Resources representatives and Seven Sydney News director, Mr Morrison on the one hand, and the plaintiff and his lawyer. The matter states that the plaintiff “had a lawyer present” as he “addressed” the claims. The plaintiff is described as having been “stood down pending an internal investigation by Seven”.

4. The two parties to the dispute, the plaintiff and Mr Morrison, are shown in photographs. This underlines the description of there being a pending investigation where facts are in dispute, claims are being “addressed” and no final determination has been made.

5. The story ends by stating that the plaintiff “did not return the Daily Telegraph’s call” and that Channel 7 “was yet to respond to questions this afternoon”. This reinforces the general impression of an ongoing dispute.

90. Mr Molomby SC submitted, in relation to each of the matters complained of, that merely republishing the allegation was sufficient to convey the imputation. It made no difference that words such as “claimed” and “alleged” were used; mere repetition was enough.

91. I agree with Mr Molomby SC that it is not necessary for the publisher to endorse the claim. However, the context in which the words conveying the imputation are published must be given its proper weight: Lewis v Daily Telegraph Ltd. Each imputation has to be considered in the context of the entire matter complained of. It does not follow, however, that each part of the publication must be given equal significance. The opening words of an article may set the tone, but this does not necessarily negate contrary statements in the following paragraphs. In particular, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements.

92. The question is whether News has been sufficiently careful to talk about smoke rather than fire. In Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185, Wigney J observed at [1]:

“As long ago as 1963, Lord Devlin warned, in the context of an appeal in a defamation action, that: “[a] man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire”. His Lordship also observed that “loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded”: Lewis v Daily Telegraph Ltd [1964] AC 234 at 285.”

93. In Chau, Wigney J found that an imputation of bribery had been conveyed by reason of the manner of presentation of the matter complained of, in that the language, tone and content of the article went well beyond imputing mere suspicion. His Honour added that, as Lord Devlin pointed out in Lewis v Daily Telegraph at 285, “loose talk” about investigations, allegations or suspicions can very easily convey the impression of guilt, and that was essentially what had occurred. The publisher’s language was not only imprecise, ambiguous and loose, but also sensational and derisory. The language used was also, for the most part, not the language of mere allegation or suspicion, but rather the language of assertion or uncontroverted fact.

94. Three features of the story are important. First, the ordinary reasonable reader would note the statement is referred to as a claim which was being “addressed” (both “claimed” and “addressed” are used twice at the beginning of the story) by the plaintiff in an investigation where he had a lawyer present. Second, the plaintiff is not referred to in any critical way, but described as a “rugby league expert”, whereas the young man making the allegation is a “cub reporter” whose mistake with one of the plaintiff’s stories led to the discussion in which the words were spoken. This creates a picture of an experienced journalist being accused by a cub reporter who has made a mistake. Third, the story concludes by noting that neither side responded to calls from the journalist, which adds to the impression created by the uses of the word “addressed” (at the beginning of the story), namely that the plaintiff was challenging the version of the conversation given by the cub reporter.

95. The ordinary reasonable reader would assume, from the description of the dispute, that there was an investigation into whether or not the plaintiff had said these words and that the plaintiff was addressing these matters, in the sense that he did not accept the words attributed to him.

96. Viewing the matter complained of as a whole, given the facts as set out and the context of the dispute, in circumstances where the plaintiff is addressing the allegations made against him with the assistance of a lawyer, the ordinary reasonable reader would not consider either of the alternative imputations pleaded by the plaintiff to be conveyed. No lesser imputation of being reasonably suspected is pleaded and accordingly the plaintiff’s claim for this publication fails on the threshold of absence of defamatory meaning. Alternative findings (as to imputation (b), which more correctly encapsulates what the plaintiff said) have, however, been made in relation to this judgment in the event that this finding is in error.

Exhibit J: Daily Telegraph 4 May 2018

97. This four-paragraph article, headed “Out over throat threat” , is pleaded to convey the following imputations:

1. That he threatened to slit a rookie colleague’s throat

Alternatively

2. That he threatened a young colleague with violence

98. The following features may be noted:

1. The words ‘claimed” (lines 5 and 18) and “allegation” (line 15) are used.

2. Inverted commas are used for the words “slit” and “shit down”, conveying the impression that these are quotations.

3. The “allegation was discussed” at a meeting between the plaintiff, his lawyer, the Seven Human Resources representatives and Mr Morrison, where the plaintiff “addressed claims that he threatened a cub reporter…and also abused a producer”.

4. The concluding sentence states that the plaintiff “is understood to have been stood down pending an internal investigation”, not that there has been a conclusive finding.

99. The real difficulty, however, is the heading “Out Over Throat Threat”, which conveys an imputation that the plaintiff is out because he made a threat. This headline outweighs the careful language of the publication.

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.

Exhibit K: Sunday Telegraph 13 May 2018

101. This is a newspaper article headed “Six-figure sum sought for Josh ‘to go away’”.

102. The matter complained of sets out that the plaintiff has retained a tough lawyer (in that he is compared to the “uncompromising” lawyer of Hunter S Thompson) who is famous for his string of (what are inferable as) victories for “some of the highest-profile media operatives” who are not only named but described (for example, Mark Llewellyn “tipped a bucket” and Tracey Spicer was sacked). Armed with this lawyer, the “angry” plaintiff is described as “demanding a six-figure payout from Channel 7 after being suspended for allegedly threatening to “slit” the throat of a young colleague”. The reason for the suspension is repeated at lines 32 – 38, again with the use of “allegedly” and with “slit” being put in inverted commas.

103. The imputations pleaded are:

1. That he threatened to slit the throat of a young colleague

Alternatively

2. That he threatened a young colleague with violence

104. The reason for the involvement of the lawyer is “the amount” of the ‘go away’ payment sought by the plaintiff. The clear implication is that the plaintiff made the statements attributed to him and the sole issue for negotiation is how much money he should be paid to ‘go away’.

105. The full text of the threat is slitting the throat, and accordingly it is imputation (a) which I find to be conveyed.

Exhibit L: 13 May 2018 online publication

106. This news item is headed “Channel 7’s former NRL reporter Josh Massoud seeking six-figure payout after threatening co-worker”.

107. The imputations pleaded are:

1. That he threatened to slit the throat of a young colleague

Alternatively

2. That he threatened a young colleague with violence

108. The language of the heading could not be clearer, and must completely negate any impact from the use of the word “allegedly” in lines 4 and 17.

109. The reference to threatening to slit Mr Jack Warren’s throat is contained in line 17 (Mr Warren’s age is given as 22 in this publication, but he is still described as a “young” reporter).

110. 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.

Exhibit M: Telegraph article 20 May 2018

111. This publication, headed “Massoud Gone”, is pleaded to convey the following imputations:

1. That he threatened to slit the throat of a 22-year old cub reporter

Alternatively

2. That he threatened a young colleague with violence

112. The terms of this publication are clear: the plaintiff was suspended “after threatening to “slit” the throat and “…t [sic: this is a reference to “shit”] down” the neck of a 22-year-old cub reporter”.

113. 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.

Exhibit N: 5 November 2018 Daily Telegraph

114. This news story, headed “Former sports journalist Josh Massoud spotted driving ice cream van”, is pleaded to convey the following imputations:

1. That he threatened to slit a 22-year old colleague’s neck

Alternatively

2. That he threatened a young colleague with violence

115. The reference in lines 7 – 8 to “five months after resigning from Channel 7” is underlined in the print copy tendered, and clearly contains a link to an earlier article. Once again, the text of this article is not identified and I have not been addressed as to whether the material in the link forms part of the matter complained of. Fortunately for the plaintiff, the rest of the matter complained of clearly conveys the meaning pleaded, starting with a statement that the plaintiff had a “controversial argument with a junior reporter”, in the course of which he “reportedly” threatened to “slit” a 22-year-old colleague’s neck and “s*** [sic] down” it after the cadet breached an embargo on one of his stories. The publication goes on to say that the plaintiff “is said to have reduced the man to tears and also abused a Sydney-based producer over the same incident”.

116. The reference to shitting down the neck goes beyond imputation (a) and accordingly it is imputation (b) I find to be conveyed.

Exhibit O: 6 November 2018 Daily Telegraph

117. This news item is headed “New gig is cold comfort for ex-journo”. The imputations pleaded are:

1. That he threatened to slit a 22-year old colleague’s neck

Alternatively

2. That he threatened a young colleague with violence

118. The terms of this publication are clear: the plaintiff is a disgraced journalist who “resigned from Channel 7 after a bullying controversy”. He “reportedly” threatened to “slit” a 22-year-old’s neck and “s…[sic: this is a reference to “shit’] down it” after the cadet breached an embargo. The cadet was reduced to tears by the plaintiff “who also abused a producer over the same incident”.

119. The threat goes beyond the text of imputation (a) and it is imputation (b) I find to be conveyed.

Exhibit P: 12 May 2018 social media post

120. This is a social media post, the entirety of which reads:

“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.”

121. There is no reference in the matter complained of to the “young colleague” being 22 years old. The copy of the post does not suggest that any article is attached, and I was not addressed as to whether any link was included or, if it were, what the consequences were (as to which, see Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [204] – [213] per White J). I assume the reference to the 22-year-old is an error by the pleader. Given that the post refers to the colleague as “young”, it makes no difference to capacity issues.

122. The imputations pleaded are:

1. That he threatened to slit a 22-year old colleague’s throat

Alternatively

2. That he threatened a young colleague with violence

123. The fact that the plaintiff is demanding a substantial amount of compensation for being suspended for what he is alleged to have said does cast some shadow, but not sufficient to prevent the imputation from being conveyed.

124. As Mr Molomby SC preferred the first imputation, and it accurately encapsulates what was asserted to have been said, that is the imputation which I find to be conveyed and defamatory.

Nine Digital Pty Ltd

125. The claim against Nine is made for a website report dated 3 May 2018.

Exhibit Q: 3 May 2018 online publication

126. The headline for this publication - “Seven reporter John Massoud threatened to “slit” colleague’s throat” – does not mince words, and neither does the description of the incident, which adds that the plaintiff “also” abused a producer. Words such as “alleged” and “reportedly” go nowhere in such circumstances.

127. The imputations pleaded are:

1. That he threatened to slit a junior colleague’s throat

Alternatively

2. That he threatened a young colleague with violence

128. 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.

Conclusions concerning the capacity of the matters complained of

129. The plaintiff has been successful on capacity in 14 of the 16 publications. The defendants have been successful in relation to Exhibits G (KIIS) and H (the first of the eight publications made by News).

Publications

Imputations conveyed

Radio 2GB

Exhibit A: 3 May 2018 2GB website publication

That he threatened to slit a junior colleague’s throat

Exhibit B: 4 May 2018 website

That he made graphic threats to kill a young colleague

Exhibit C: 5 May 2018 radio broadcast

That he made graphic threats to kill a young colleague

Exhibit D: 5 November 2018 website

That he made graphic threats to kill a young colleague

Exhibit E: 21 February 2019 radio broadcast

That he threatened to slit the throat of an 18-year-old cadet

Fox Sports

Exhibit F: 21 September 2018 television broadcast

That he threatened a young reporter with violence;

That he was never a respected journalist.

Commonwealth Broadcasting Corporation (CBC)

Exhibit G: 4 May 2018 radio broadcast

No imputation being conveyed;

That he threatened to slit a colleague’s throat (as an alternative finding)

Nationwide News Pty Ltd

Exhibit H: 3 May 2018 website publication

No imputation being conveyed;

That he threatened a young colleague with violence. (as an alternative finding)

Exhibit J: Daily Telegraph 4 May 2018

That he threatened a young colleague with violence

Exhibit K: Sunday Telegraph 13 May 2018

That he threatened to slit the throat of a young colleague

Exhibit L: 13 May 2018 online publication

That he threatened a young colleague with violence

Exhibit M: Telegraph article 20 May 2018

That he threatened a young colleague with violence

Exhibit N: 5 November 2018 Daily Telegraph

That he threatened a young colleague with violence

Exhibit O: 6 November 2018 Daily Telegraph

That he threatened a young colleague with violence

Exhibit P: 12 May 2018 social media post

That he threatened to slit a 22-year old colleague’s throat

Nine Digital Pty Ltd

Exhibit Q: 3 May 2018 online publication

That he threatened a young colleague with violence

130. The imputation conveyed by each of Exhibits A, E, G (but as an alternative finding in the event that I have erred in holding the imputations pleaded were not conveyed), K and P is an imputation, to put it generally, that the plaintiff threatened to slit the throat of a young colleague. Exhibits B, C, D, F, H (but as an alternative finding in the event that I have erred), J, L, M, N, O and Q convey an imputation, to put it generally, that the plaintiff threatened a young colleague with violence. An additional imputation conveyed by Exhibit F (Fox) is that the plaintiff was never a respected journalist.

131. As noted above, I have continued to make findings on liability and quantum, on an alternative basis, as to the two publications (Exhibits G and H) where the imputations have not been made out, in the event that such findings are of any assistance in appellate consideration of this judgment.

The defences

132. I shall first consider the defences pleaded under ss 25 and 26 of Defamation Act 2005 (NSW) (“the Act”). The additional defences pleaded by 2GB (offer to make amends) and Fox (honest opinion) are set out following my findings as to ss 25 and 26.

The defence of justification

133. The defence of justification pursuant to s 25 of the Act is pleaded by the defendants in all five proceedings.

134. In s 4 of the Act, the phrase “substantially true” is defined as “true in substance or not materially different from the truth”. In Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981, White J explained this definition as follows:

“[105] The s 4 definition means that a respondent is not required to establish the truth of every detail conveyed by the imputation. Instead, a respondent must prove that the imputations conveyed were true in substance or were not materially different from the truth. If the substance of the imputation is true, then the defence will not be defeated by some error in detail. The Court of Appeal in New South Wales explained the position in relation to the defence of substantial truth when considering s 15 of the Defamation Act 1974 (NSW) in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [138] (Spigelman CJ, Beazley JA, McColl JA, McClellan CJ at CL and Bergin CJ in Eq):

In order to establish imputation 12 was substantially true, the appellant had to establish that every material part of it was true: Howden v Truth & Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416 (at 419) per Starke J; (at 420) per Dixon J; (at 424 - 425) per Evatt J. However this does not mean the appellant had to prove the truth of every detail of the words established as defamatory (Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 (at [85]) per Gillard J), rather the defence of substantial truth is concerned with meeting the sting of the defamation: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 (at [274]) per Gillard AJA (Winneke ACJ generally agreeing and Warren AJA agreeing). As Lord Shaw of Dunfermline explained in Sutherland v Stopes [1925] AC 47 (at 79):

“It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out. To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it.”

[Emphasis in the original removed]

See also Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 at [104] ‑ [105].”

135. In Stocker v Stocker [2019] UKSC 17, the Supreme Court stressed the importance of the justification defence meeting the sting of the libel without taking an unduly legalistic approach to the elements of proof. The facts in Stocker v Stocker are of relevance to these proceedings, given Mr Molomby SC’s reference to slitting throats as a serious criminal act, as the defamation claim was brought by a husband against his wife for her statement that he had “tried to strangle” her. The husband argued at trial that the meaning to be given to the words “tried to strangle me” was that he tried to kill her, whereas the defendant argued that, “in the context of domestic violence, the words do not impute an intention to kill” (at [5] per Lord Kerr).

136. Similarly to some of the submissions in these proceedings, the trial judge was asked by counsel for the plaintiff to consider how the words “tried to strangle” had been used in different contexts. The trial judge accepted that the most likely explanation for the husband placing his hands around his wife’s neck was that he was attempting to silence her rather than kill her, which meant that the husband’s conduct in placing his hands around her neck with such force is to leave red marks did not amount to proof of the imputation pleaded by the plaintiff. The trial judge also rejected the plea of justification to the imputation that the plaintiff was a dangerous man, although he had been arrested three times, including for ‘gun issues’ (at [21]) and made threats, though not of immediate violence against her.

137. The vice in this finding (as well as in the judgment of the Court of Appeal, which upheld it) was that the word “strangle” was “removed from its context” (at [26]) and the court accordingly had failed to “conduct a realistic exploration of how the ordinary reader of the post would have understood it” (at [47]). When applied to the evidence in support of the plea of justification, the fact that the husband grasped his wife’s throat so tightly as to leave red marks visible to police officers two hours later was capable, in the context of domestic violence (breach of a non-molestation order), of establishing justification to an imputation that the husband had tried to strangle his wife. In addition, The Supreme Court was satisfied (at [61]) that, coupled with the statements amounting to future threats that he made on this occasion, this was sufficient to establish the defence of justification to an imputation that he was a dangerous and disreputable man, which was the justification the wife sought to establish. The defence of justification was accordingly made out and the appeal was accordingly allowed.

138. 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.

139. As to both s 25 and s 26 issues, the approach taken by the plaintiff is similar to that taken in Stocker v Stocker, namely that the defendant made no threat at all. What the plaintiff admits he said, namely that if Mr Warren was not so young he would rip off his head and shit down his neck, is simply the use of a common formulation in everyday language, similar to, for example, “If you weren’t so tired, I’d ask you to carry my bag” (submissions, paragraph 30). The language (which the plaintiff described the following day as “dark humour” and a quote from an old movie) was not that of a threat or of bullying, or indeed far removed from Aunty Jack’s threat to “rip your bloody arms off”.

140. Mr Molomby SC draws my attention to Tuberville v Savage (1669) 86 ER 684, where the plaintiff put his hand on his sword and said, “If it were not assize time, I would not take such language from you”. The court held that this was a declaration by the plaintiff that he would not assault the person to whom he addressed these words.

141. However, the danger of relying upon such old authority in general (and Tuberville v Savage in particular) was stressed by the Court of Appeal (Criminal Division) in R v Ireland [1997] 1 All ER 112:

“Our attention was drawn to a number of cases concerning the definition of assault, some of them of some antiquity. It is of importance that an assault does not necessarily include a battery, and the distinction is important in this case. It has been recognised for many centuries that putting a person in fear may amount to an assault. The early cases pre-date the invention of the telephone. We must apply the law to conditions as they are in the twentieth century. In Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684 T laid his hand upon his sword saying, 'If it were not assize-time, I would not take such language'. It was held that the act could have amounted to an assault but for 'the declaration … that he would not assault him, the Judges being in town'. Pointing an imitation or toy gun at the victim, dangerous driving and kidnapping have all been held to be capable of amounting to an assault.”

142. The Court went on to add (at 117 – 8) that making a threat over the telephone (which was the case in these proceedings, as well as in R v Ireland) could just as easily “in the world in which we live” be received as a threat as words spoken face to face.

143. The defendants submit that the words they reported and the words the plaintiff agreed he said were both a graphic threat of deadly violence, with no material difference between slitting a throat and ripping off a head. In particular, the rider “if you weren’t so young” does not rob what was said of its disgustingly violent and intimidatory content; the reference to being “so young” is part of the insult, not a promise to refrain from the act. The words would cause fear and trepidation and would be intended to do so, as otherwise, Mr Sibtain asks rhetorically, why would they be said? The threat of violence was designed to intimidate Mr Warren and pull him into line, an effect it clearly had on him, given his response to the phone call.

1. Second, the adequacy of a monetary offer is not to be judged by reference to the range of damages that the plaintiff would receive at trial. McCallum J explained in Pedavoli at [100] that this would overlook the reparation achieved by the mandatory components of the offer, particularly the requirement to publish a reasonable correction.

2. Third, viewing the amount to be awarded conformably with the observations of the Court of Appeal in Zoef, I have accepted the submissions of this defendant (and indeed all defendants) that any amount of damages to be awarded, if any, should be derisory or indeed zero.

Failure to remove the matter complained of

570. When is it an appropriate step to offer to remove a publication, and when is it appropriate to offer a correction?

571. Mr Molomby SC acknowledges that the description of what occurred is, apart from the words used, entirely accurate. It is not in dispute that the plaintiff was suspended and then terminated for his conduct involving not only Mr Warren but others. In fact, the description of the suspension and investigation was so accurate that Mr Molomby SC put it to Mr Morrison, with some vigour, that somebody at Channel 7 must have leaked the story (T 446 – 9).

572. Nor is there any challenge to the description of the dispute between Mr Hadley and the plaintiff, or to the descriptions given of the plaintiff as a disgraced and disliked former journalist now reduced to driving an ice cream van.

573. The sole error in these publications lay in specific words attributed to the plaintiff which led to his dismissal, namely whether he added “if you weren’t so young” and did not say “slit”. That is a matter appropriate for a correction at best. In those circumstances, the plaintiff was not entitled to expect the matters to be removed in their entirety.

574. I do not accept Mr Molomby SC’s submissions that readers seeing only a correction would make the assumptions he suggests. It is a matter of public notoriety that online publications regularly feature corrections (generally at the end of the publication) which set out what was said wrongly and what the correction is. It is also a matter of public notoriety that defamation actions are settled on the basis of such corrections. Members of the public do not have an “apology or nothing” mentality, and neither do they assume the worst unless the publication is taken down.

Conclusions concerning 2GB’s defence of offer of amends

575. I assume, for the purpose of my findings on this defence, that the defences of justification and contextual justification have failed. For the reasons set out in the section of this judgment on damages, I would still not have been prepared to award the plaintiff any damages (Zoef v Nationwide News Pty Ltd at [71], but cf Pedavoli v Fairfax Media Publications Pty Ltd at [100]).

576. If an offer to correct the sole error in the matters by setting out (under the heading) the corrected version of what the plaintiff said, with the proposed short explanation as to what the difference was, would this have been sufficient for the purposes of the defence?

577. There would be very few cases where publication of a correction of an error without more (except payment of costs) would be sufficient, but the special characteristics of this case are such that this is one of those very few cases.

578. If the words spoken by the plaintiff which caused his dismissal were wrong, the readers were entitled to know what he really said. Removal of the matters and/or an apology stating that he did not use those words would not have achieved this. Viewed objectively, all the plaintiff should be entitled to seek is correction of the wrong words by a prominent placement of the right words.

579. Why did the plaintiff not include what he actually said in his proposed Apology? It may be because what the plaintiff actually said was arguably worse, in one way, than what was attributed to him by Exhibits A – E, as in four of the five 2GB matters there is no reference to the second part of the sentence, namely the “shit down your neck” statement. It is these words, rather than the threat to slit the throat, which reveal the vileness of what the plaintiff actually said. It evokes desecration of a corpse and requires the publication of a swear word. This part of the plaintiff’s threat to Mr Warren was described as “too graphic to publish” in Exhibit A and left out of the others except Exhibit D.

580. Taking into account the factors outlined by McCallum J in Pedavoli at [100], the reasonableness of the correction, including the extent of its reach, coupled with the offer to pay reasonable costs, is sufficiently established to result in an alternative finding upholding the respondent’s defence under s 18 of the Act.

Damages

581. The plaintiff sues on 16 articles, published over three main time periods. The plaintiff has failed on all claims. My findings in relation to damages include alternative findings in relation to publications where I have held that the defendants have been successful.

The relevant principles

582. Although the principles to be applied in assessing general compensatory damages for defamation (prior to as well as after the Act was enacted) were the subject of extensive submissions from Mr Molomby SC, these are not in dispute. McCallum J, in Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838 at [22], helpfully summarises these in one sentence, stating that the purposes of an award of damages for defamation are “consolation for the personal distress and hurt caused to [the plaintiff] by the publication, reparation for the harm done to [the plaintiff’s] personal and (if relevant) business reputation and vindication of [the plaintiff’s] reputation”, citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60.

583. McCallum J’s method of application of those principles to the damages sought by the plaintiff is also helpful in the present case, as Gayle (where a total of 28 publications were sued upon) required assessment of damages for a range of publications. There are, however, significant factual differences in the present case:

1. There are five separate defendants in these proceedings, whereas in Gayle there were three related media corporations.

2. There are three “waves” of separate publication times, over a period of about 8 months, over which the publications were made, whereas in Gayle the publications were all made over a 5-day period.

3. There are significant and very different issues of mitigation of damages to take into account, ranging from two prior settlements to the truth of the imputations and contextual imputations.

584. As McCallum J sets out in Gayle at [23], the court’s task, in assessing the amount to be awarded for the purposes identified by the High Court in Carson, is to identify all of the relevant factors, to assess their significance and to make an evaluative judgement as to the appropriate award, guided by the provisions of the Act in general and s 34 in particular, to ensure there is an appropriate and rational relationship between the harm are sustained and the quantum of damages awarded.

585. In doing so it is necessary to take into account (unless the cap is lifted by the award of aggravated damages) the statutory maximum damages to be awarded. During the trial that figure was $ 421,000 (Gazette No 132 of 26 June 2020 p. 3045) but it was increased to $432,500 (Gazette No 247 of 11 June 2021).

586. The proportionality required by s 34 should reflect the high value accorded to a person’s reputation. The reputation in question was long considered to be the reputation the plaintiff had up to the time of publication: Rochfort v John Fairfax &Sons Ltd [1972] 1 NSWLR 16 at 22 per Sugerman ACJ. Rochfort was overruled in Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, where McColl JA noted the continuing nature of damage to reputation done by defamatory publications. Evidence of post-publication material that goes to a plaintiff’s reputation is therefore admissible to ensure that the damages awarded accurately reflect the plaintiff’s reputation at the time the damages are awarded. Its admission should, however, be approached with caution and must be carefully confined (at [245]).

Hurt to feelings and reputation damage

587. Mr Molomby SC submits, and I accept, that the plaintiff had a public profile and reputation as an experienced and talented journalist (submissions, paragraphs 6 – 11). He was one of a team which won awards for breaking controversial stories (Exhibit R); I agree that as a result he would have attracted animosity for these reports, and that care must be taken not to regard that as a sign of bad reputation.

588. The problem for the plaintiff is not that he attracted animosity through his excellent journalism, but that he threw that good reputation away when he made a series of career-ending phone calls on 1 May 2021 which led to his suspension and sacking. Additionally, as Exhibit 1 makes clear, the plaintiff already had a history of this kind of behaviour not only with colleagues at Channel 7, but in dealing with third parties such as Ms Taylor. The plaintiff’s resignation letter from News and the evidence of the News witnesses confirms that this was conduct of long standing. The result is that the truth of the imputations and contextual imputations prevails.

589. As McCallum J noted in Gayle at [30], “the court must be astute not to compensate the plaintiff for an imputation not pleaded”. That statement is of particular relevance in the present case, as the plaintiff’s complaint is restricted to the inaccuracy of the words attributed to him in publications which otherwise accurately portrayed the circumstances of his suspension and dismissal and the fact that his ongoing reputation is that of a disgraced former journalist. This is a characteristic rarely seen in defamation actions, although it was also a feature in Mr Dank’s litigation.

590. The evidence given by the plaintiff’s witnesses of his hurt to feelings and reputation damage was limited:

1. Mr Cordner, the father of a prominent football player who had met the plaintiff during his journalistic activities, said only that the plaintiff was devastated by the termination of his employment, and did not refer at all to the misreporting of what the plaintiff was accused of saying about Mr Warren. I accept that evidence as correct. The plaintiff’s distress was at the loss of his job. Mr Cordner said nothing about hurt caused by any of the publications.

2. Ms Sullivan, the executive producer of the ABC program “Offsiders”, a sports program on which the plaintiff regularly appeared, was aware of some of the online publications setting out what the plaintiff was asserted to have said. However, when told what the plaintiff actually said, Ms Sullivan acknowledged that persons who knew what the plaintiff had actually said would think less of him as a result.

3. Mr Phelan, who worked with the plaintiff at Channel 7 and Mr Sattler, who came into contact with the plaintiff when he was at News, both gave evidence that the plaintiff had a good reputation as a journalist. As to damage to reputation, they did not refer to reading any of the matters in any detail, apart from a generalised reference to Ray Hadley. Their evidence added little to the evidence of hurt to feelings.

591. There is no doubt that the plaintiff had a public reputation for some years as a good journalist; the defendant’s witnesses said so as well (See, for example, Mr Morrison at T 422 and Mr Wilson at T 473). The reputational damage he suffered after being suspended and dismissed for his conduct must, however, be factored into any consideration of both hurt to feelings and damage to reputation. The hurt to the plaintiff’s feelings came, I find, from the humiliation of the correctly-reported termination of his employment for his conduct, and not from the misreporting of what he had said to Mr Warren.

Extent of publication

592. The defendants made admissions as to the net circulation and estimated readership in relation to each of the matters complained of. It is clear from the evidence as well as the closeness of the dates that there would be substantial overlap in these figures (in other words, the same reader on different days). I should not assume that everyone who read a newspaper read the articles about the plaintiff, although the same cannot be said for the radio and television publications. This is a case where a submission similar to that made by Mr Gayle was made, namely that the allegations would have been read by “millions” of people in Australia. I accept that each of the publications sued upon was read by a very substantial number of persons.

The seriousness of the imputations

593. Mr Molomby SC submits that the imputations pleaded are extremely serious (submissions, paragraph 11), including the imputation that the plaintiff was never a respected journalist. I accept that the imputations of slitting the throat and threatening a young colleague with violence are serious, but it is important to see them in a work context, as opposed to a threat made outside the confines of a work dispute.

Mitigation

594. The starting point for any consideration of damages must be to give full weight to the hurt to feelings suffered by the plaintiff. In Ali v Nationwide News Pty Ltd [2008] NSWCA 183, Tobias and McColl JJA endorsed (at [77]) the observation of Miles CJ in Humphries v TWT Ltd [1993] ACTSC 24; 113 FLR 402 at 418 - 19, that the defendant in a defamation action must take the plaintiff as it finds him or her, including any particular sensitivities the plaintiff may possess (a finding not disturbed on appeal: Humphries v TWT Ltd [1993] FCA 577; 120 ALR 693). As Sackville AJA noted in Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [94], it must be the evidence adduced by the defendants in mitigation of the plaintiff's damages that persuades a court to award only a modest or derisory sum as damages.

595. The defendants have all particularised mitigation in the defence. The following is taken from the Fox proceedings:

“10. If (which is denied) the plaintiff is found to have suffered any damage as a result of the publication of any of the matters complained of and/or any of the imputations particularised in the Statement of Claim (which is denied), then the defendant intends to rely upon the following facts and matters in mitigation of such damage:

(a) the substantial truth of the Plaintiff’s Imputations and the Contextual Imputations (or so many of them as are established by the defendant to be substantially true);

(b) the plaintiff's general bad reputation within the media and sports industries, being that of:

(i) a bully;

(ii) rude;

(iii) aggressive;

(iv) disrespectful;

(v) a person who intimidates his colleagues;

(vi) a journalist who makes errors in stories, embellishes stories and makes up stories.

(c) the facts, matters and circumstances proven in evidence in support of the defences pleaded in this Defence;

(d) the circumstances in which it is proved the matters complained of were published;

(e) the background context to which (a) to (d) above comprised;

(f) any damages or compensation payable to the plaintiff as a result of proceedings brought by the plaintiff for damages in relation to the publication of matter having the same meaning or effect as the matters complained of, including NSW District Court proceedings brought against:

(i) The Misfits Media Company Pty Ltd;

(ii) Australian Radio Network Pty Limited;

(iii) Nine Digital Pty Ltd;

(iv) Nationwide News Pty Limited;

(v) 2GB Sydney Pty Limited; and

(vi) DAZN Group;

(g) any compensation payable to the plaintiffs as a result of the issue of a concerns notice by or on behalf of the plaintiff in relation to the publication of matter having the same meaning or effect as the matters complained of.”

596. The above list demonstrates that there is a wide range of substantial mitigating factors to be taken into account in any consideration of damages for these publications.

597. The findings I have made in favour of the defendants for justification and contextual truth relate to all the publications. In relation to Exhibit F (the Fox publication), I have found that the defences of justification failed in relation to the imputation that the plaintiff was never a respected journalist. However, the defence of contextual justification succeeded. There is a degree of artificiality in making alternative findings in those circumstances, and my observations will accordingly be brief.

The legislation

598. Section 38 provides:

“38 Factors in mitigation of damages

(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—

(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or

(b) the defendant has published a correction of the defamatory matter; or

(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.

(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.”

Mitigating factors: the truth defence

599. The plaintiff has failed in relation to justification and contextual truth.

600. The similarity of the remaining imputations to each other make it a difficult exercise to speculate as to what damages would be awarded if some part of those findings were wrong. In practical terms, however, the evidence of truth is such that either derisory damages (Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 at [179]- [180] and [49]-[52] citing Pamplin v Express Newspapers Ltd [1988] 1 WLR 116) or no damages at all (Dank v Nationwide News Pty Ltd [2016] NSWSC 295) should be awarded.

601. In Pamplin, where damages of a halfpenny were awarded, 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.”

602. In Dank, McCallum J commented (at [75]) on the halfpenny award as follows:

“The need to nominate a nominal sum in this jurisdiction may be doubted. The Defamation Act 2005 expressly contemplates the possibility that, even where no defence to a defamatory publication has been established, the judicial officer may determine that no amount of damages should be awarded. So much is explicit in the requirement to determine “the amount of damages (if any) that should be awarded to the plaintiff.”

603. These observations were cited with approval in Charan v Nationwide News Pty Ltd [2018] VSC 3 at [765] – [768], where a defence of justification succeeded. As to the assessment of damages for imputations where the plaintiff failed, I note the observation of the trial judge that alternative findings as to damages in such cases are particularly difficult.

604. An appeal in Charan was dismissed ([2019] VSCA 36), with the Court merely noting (at [3]) the trial judge’s observations as to damages.

605. As was the case in Charan, Mr Massoud has failed in all claims. The question, if he had succeeded, would have been whether the evidence of his conduct, including his prior conduct as a journalist as well as his conduct on 1 May 2018, should reduce an award of damages to a vanishing point.

603. I reject Mr Molomby SC’s submission that the conduct leading to such a vanishing point has to consist of other conduct at the same level. It is not necessary for the defendants to establish that threats of a similar nature were made to other persons. What must be established is conduct capable of responding to the imputation pleaded.

604. If I have erred in any or all of my findings as to justification and/or contextual truth, I would not have awarded damages to the plaintiff for any of the publications given the evidence led in support of them.

Mitigating factors: other awards of damages

608. An important consideration in Gayle, as in the present case, is the correct approach to the mitigating factors identified in s 38(1)(d) of the Act, which permits a defendant to rely on the fact that the plaintiff has brought proceedings against other defendants for damages for defamation in relation to publications of matter having the same or similar meaning or effect. The court must be astute to avoid double or triple compensation.

609. In the present case, there are two sources of damages to take into account:

1. The plaintiff received two payments of $35,000 and $40,000 (Exhibit 16). Both were inclusive of costs. I have no information as to what those costs were.

2. If the plaintiff was to receive damages in proceedings brought against one or more of the defendants, those awards would have to be considered in a manner similar to that adopted by McCallum J in Gayle.

610. Accordingly, if damages were to be awarded, some allowance should be made for these awards. I would reject Mr Molomby SC’s submission that mere reference to these sums is insufficient to activate s 38.

Mitigating factors: whether evidence of particular acts of misconduct may be relied upon

611. In O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at 91, Meagher JA stated:

“The reputation evidence is subject to two fundamental rules. The first is that the evidence must relate to ‘the relevant sector’ of the plaintiff’s reputation. Fast, if the plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation as a good golfer. Similarly if the libel is that he is dishonest, it is not to the point for the defendant to demonstrate that he is a reckless motorist….The other is that evidence of bad reputation must be limited to general reputation, evidence of specific incidents being inadmissible.

612. The rule that evidence of particular acts of misconduct are not admissible in mitigation of damages has two important qualifications.

613. The first of these is that evidence of particular acts of misconduct will be admissible in mitigation of damages where they are relevant to prove in support of a plea of justification. That has been the case here.

614. The second, and perhaps the more controversial, is that some courts have said that evidence of particular acts will be admissible where they are “directly relevant to the context in which a defamatory publication came to be made” (Burstein v Times Newspapers Ltd (2001) 1 WLR 579 at 596 per May LJ). This is to overcome the injustice of a plaintiff who has misconducted himself in the same sector of his life as that to which the libel relates recovering damages on the same generous basis as one who has an unblemished record in the relevant area of activity.

615. The status of Burstein in Australia is controversial but Saunders J, in the British Columbia Court of Appeal, in Ager v Canjex Publishing Ltd (2005) 259 DLR (4^th) 77 at [60], embraced the reasoning of May LJ and stated:

“In my view, the reasoning in Burstein is persuasive. To the extent that the factors relied upon in mitigation of damages were otherwise particularised in the statement of defence, that they were supported by evidence and that they are directly connected to the subject matter of the defamatory publication, they were factors to be considered in an assessment of damages.”

616. The Supreme Court of Ireland has also permitted specific acts of misconduct relevant to the issue of a plaintiff’s reputation which had already been admitted for other purposes to be considered in the context of mitigation of damages: Cooper-Flynn v Radio Telefis Eireann [2004] IESC 27.

617. In the present proceedings, the particular acts of misconduct are admissible because they are relevant to prove in support of a plea of justification, so these observations would only be relevant if my findings in relation to some or all of the imputations were in error.

618. I consider that there is another circumstance in which evidence of a particular act of misconduct would be admissible, and this would be if the particular act or acts of misconduct are specifically identified in the matter complained of. This would apply to publications of the kind seen in Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612, where the plaintiff’s involvement in drugs and prostitution, leading to her conviction for drug offences, were discussed at length in the matter complained of, which also wrongly accused of improper conduct with a prison officer. It is hard to imagine a court not permitting evidence of the conduct referred to in the matter complained of in circumstances where no imputation could be pleaded because (as Basten JA notes) to do so would amount to an abuse of process.

619. In the present case, that includes the circumstances of his dismissal and statements that he is a disgraced former journalist. On this basis, it would be relevant, in terms of mitigation, to take into account, in relation to certain of the publications, that they record the plaintiff as having been investigated and dismissed from his employment by reason of his conduct in the workplace in circumstances where the overwhelming truth of what was published would crush the falsity of the wrong statement attributed to the plaintiff.

620. The overwhelming nature of that accuracy is what distinguishes these proceedings from other defamation awards, apart from Mr Dank and Mr Charan.

Aggravated damages

621. The plaintiff particularised a claim for aggravated damages in each case on the basis of the plaintiff’s knowledge that the imputations are false and the defendants’ refusal to publish an apology for the matter complained of, notwithstanding a Concerns Notice sent on 6 March 2019.

622. The following should also be noted:

1. In the News proceedings, the plaintiff particularised an additional claim for aggravated damages, namely the further republication of the 1st, 4th and 6th matters complained of on social media which was a natural and probable consequence of the publication of those matters.

2. In the 2GB Proceedings, the plaintiff particularised an additional claim for aggravated damages, namely the further republication of the 1st, 2nd and 4th matters complained of on social media which was a natural and probable consequence of the publication of those matters.

3. In the Nine Proceedings, the plaintiff particularised an additional claim for aggravated damages, namely the further republication of the matter complained of on social media which was a natural and probable consequence of the publication of those matters.

623. I was not addressed as to how these further publications increased the plaintiff’s hurt.

624. At the commencement of the hearing, Mr Molomby SC raised two additional grounds in relation to all the publications, namely the maintaining of the publications online up to the trial and persisting with a justification plea (and, I infer, a claim in mitigation of bad reputation) when the defendants and their legal advisers knew or ought to have known that the defences were hopeless.

625. I briefly set out my observations as to why I would not have awarded aggravated damages for knowledge of falsity, failure to apologise, failure to take down the matters and persisting with a plea of justification.

Knowledge of falsity

626. In V’Landys v Australian Broadcasting Corporation (No.3) [2021] FCA 500 (“V’Landys”), Wigney J stated at [187]:

“The first of the additional particulars was that he knew that the pleaded imputations were false. It is at best questionable whether an applicant’s knowledge that the defamatory imputations were false provides a proper basis for the award of aggravated damages. Though it is unnecessary to decide the matter, the better view would appear to be that knowledge of the falsity of the imputations is a matter that goes to general compensatory damages and would not alone be sufficient to justify an award of aggravated damages. Indeed it has, in relatively recent times, been held that “mere knowledge by the [applicant] that an imputation was false cannot (without more) found an entitlement to aggravated damages”: Barrow v Bolt [2013] VSC 226 at [10]-[24]; Flegg v Hallett [2015] QSC 167 at [243]-[245]; see also Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [778]-[779]; Wagner v Nine Network Australia Pty Ltd [2019] QSC 284 at [217]-[228], [224]-[228] (appeal ground two, which related to the trial judge’s reasoning concerning the relevance of the knowledge of the falsity of the imputations to the question of aggravated damages was rejected on appeal in Nine Network Australia Pty Ltd v Wagner (2020) 385 ALR 328; [2020] QCA 221 at [175]-[179]).”

627. I agree with these observations. No such grounds have been made out in these proceedings.

Failure to apologise

628. In V’Landys at [189], Wigney J stated:

“The third additional particular was that the ABC and Ms Meldrum-Hanna had not apologised. There is no dispute that the ABC and Ms Meldrum-Hanna had not apologised to Mr V’landys. That was no doubt because they believed that there was nothing to apologise for because they did not accept that the imputations alleged by Mr V’landys had been conveyed by the report. Their belief in that regard has been vindicated. Even if, as events transpire, the Full Court, on appeal, finds that some or all of the imputations were conveyed, it would not necessarily follow that an award of aggravated damages would be warranted on the basis of the absence of an apology. That is because, on just about any view, the defence advanced by the ABC and Ms Meldrum-Hanna was bona fide and not unreasonable.”

629. While in the present case the plaintiff has been unsuccessful in relation to all but the Fox imputation of never being a respected journalist (although on justification only), even if he had failed on some or all of the remaining imputations, “on just about any view”, to use Wigney J’s expression, the defences advanced by each of the defendants were bona fide and not unreasonable. This was always a very narrow claim for damages brought on the basis that, while the plaintiff was dismissed for his bullying conduct, he was dismissed, in part, on the basis of a statement different to that attributed to him in each of the matters complained of.

Further publication on social media and continued publication on the website up to trial

630. In V’Landys at [188], Wigney J stated:

“The second of the additional particulars was that the report remained on the ABC’s website. The finding that the report did not convey the pleaded imputations justifies the continued publication of the report. Even if that finding is overturned on appeal and some of the imputations are found to have been conveyed, it is at best questionable whether the continued publication of the report would alone justify an award of aggravated damages in all the circumstances. That is because the defence of this proceeding by the ABC and Ms Meldrum-Hanna was undoubtedly bona fide and reasonable. The continued publication of the report in those circumstances could not be said to be “unjustifiable”, “improper” or “a lack of bona fides”: Triggell v Pheeney(1951) 82 CLR 497 at 514.

631. I agree with these observations. The publications were bona fide and reasonable.

Persisting in a plea of justification

632. In view of my findings I see no need to address this head of damage.

The cap

633. If aggravated damages are awarded, the construction of s 35(2) of the Act and the issue of lifting of the cap on damages (Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 at [249]) do not arise.

634. Given that the issue of the applicability of aggravated damages and potential lifting of the cap are relevant as to quantum, it is preferable to defer the calculation of damages until after the findings concerning aggravated damages are made.

635. I set out my observations as to the approach to damages to take in cases such as the present, where there are five different defendants and two damages payments.

Calculation of the damages: the holistic approach

636. Although I would not award damages to the plaintiff, I should note that, in Gayle, the defendants submitted that the correct approach was for the court to assess damages holistically, as though there were a single dispute involving the publication of a single series of articles within three geographical areas.

637. In Gayle, McCallum J set out her calculation of the sum to be awarded in each case as follows:

“Had that been the task, having regard to the factors discussed above, I would have assessed the damages against The Age Company Pty Ltd in the amount of $250,000; against Fairfax Media Publications Pty Ltd in the amount of $200,000 and against The Federal Capital Press of Australia Pty Ltd in the amount of $100,000. However, it is necessary to stand back from the sum of those amounts so as to avoid double or triple compensation, while also bearing in mind that the syndicated publication of the articles by each defendant did increase the scope of publication and cause some separate hurt and harm to Mr Gayle. Taking the holistic approach contended for by the defendants, I consider the appropriate total award to be an amount of $300,000.”

638. This approach was endorsed on appeal: 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] NSWCA 172 at [159] – [162].

639. In the present case, there are five very different media companies publishing at very different times, and the number of publications is also a factor to take into account.

640. As was the case in Charan, I see little point in embarking on an exercise posited on a series of alternatives. As was the case in Dank, the plaintiff’s reputation is so damaged by the truth (not only of the imputations he pleads but also of those he does not plead) that any award should be reduced to a vanishing point.

641. Taking all of the above into account, I consider that the mitigating factors, including evidence of the plaintiff’s conduct that was accurately reported (save for the words he spoke and for which he was dismissed), is so overwhelming that no damages should be awarded, even on the Gayle principles.

The application for a permanent injunction

642. The plaintiff also seeks an injunction restraining all of the defendants from publishing the imputations.

643. I would not have been prepared to make such an order. First, such orders are not ordinarily made against the proprietor of a mainstream media publisher, for the reasons explained by McCallum J in Carolan v Fairfax Media Publications Pty Ltd (no 7) [2017] NSWSC 351 at [13] – [15]:

“So far as I am aware, the proposition that a permanent injunction should ordinarily accompany an award of damages following the unsuccessful defence of a common law claim is unknown in any other field. The court would not, without more, make an order restraining the unsuccessful defendant in a professional negligence or motor vehicle accident claim from acting negligently in the future. I accept that the analogy is imperfect but it is appropriate to test what appears to be a premise of the plaintiff’s argument. I do not think it can be said, without qualification, that the restraint of speech - even indefensible speech - necessarily or ordinarily serves the public interest.

Nor can it be said, without qualification, that the public interest is “not offended” by the restraint of indefensible defamation. The public interest is offended by any court-imposed restraint that is not reasonably necessary in the circumstances. It is tempting to think that is particularly so in the case of injunctions to restrain publication, since such orders necessarily impair or take away a person’s freedom of speech. Upon reflection, however, it is difficult to articulate any principled basis for placing defamation in a special category in this context; any restraint of ordinary freedom imposed by order of the court warrants the same caution.

In my view, as a matter of principle, the critical factor in determining whether to grant a final prohibitory injunction in aid of a claim for defamation should be an assessment of the existence and degree of any threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings. Such an order should only be made where the court is satisfied that the order is reasonably necessary to address that threat or risk.”

644. The question is whether the existence of an ongoing risk of sufficient magnitude to overcome the force of the considerations set out by McCallum J has been made out. That is not the case here.

645. Second, these otherwise wholly correct publications are the subject of a narrow and precise complaint. The best the plaintiff could expect is the correction of what was said to set out what he did say. The plaintiff never sought such a correction and does not do so now.

646. 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.

647. 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]).

Costs

648. Costs should follow the event. I have granted liberty to apply.

Orders:

1. Judgment for the defendant in Massoud v Radio 2GB Sydney Pty Ltd (2019/00133854).

2. Judgment for the defendant in Massoud v Fox Sports Australia Pty Ltd (2019/00134071).

3. Judgment for the defendant in Massoud v Commonwealth Broadcasting Corporation Pty Ltd (2019/001333079).

4. Judgment for the defendant in Massoud v Nine Digital Pty Ltd (2019/00134011).

5. Judgment for the defendant in Massoud v Nationwide News Pty Ltd (2019/00134071).

6. The plaintiff to pay the defendants’ costs, with liberty to apply.

7. Exhibits retained until further order.

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Clearer Version of the Exhibit K & M

Decision last updated: 29 July 2021