Mond v The Age Company Pty Limited

[2025] FCA 442

FEDERAL COURT OF AUSTRALIA

Mond v The Age Company Pty Limited [2025] FCA 442  

File number(s):

VID 228 of 2022

Judgment of:

WHEELAHAN J

Date of judgment:

8 May 2025

Catchwords:

DEFAMATION – publication of print and online newspaper articles – whether the print and online articles were defamatory – ordinary reasonable reader’s understanding of the articles – alternative Hore-Lacy meanings – some of the print and online articles were defamatory of the applicant – whether the fourth respondent was a publisher of the articles – the fourth respondent was a publisher – publication is not confined to composing or writing the defamatory matter – the process of publication – the serious harm element in s 10A of the Defamation Act 2005 (Vic) – whether the applicant established serious harm to reputation as a result of the defamatory publications – serious harm to reputation established – harm to reputation in an objectively important aspect of the applicant’s standing – extent of publication significant – whether the respondents established any defences to the publication of the matters – defences of common law and statutory justification – s 25 of the Defamation Act 2005 – defence of justification not made out – defences of honest opinion or fair comment – s 31 of the Defamation Act – defences of honest opinion and fair comment not made out – defence of public interest – s 29A of the Defamation Act – not reasonable to believe publication was in the public interest – defence of public interest not made out – assessment of damages – damages for non-economic loss under s 35 of the Defamation Act 2005 – whether increased damages on account of aggravating conduct should be assessed – absent a lack of justification or impropriety ordinary features of litigation do not sound in aggravation – no aggravated damages awarded

PRACTICE AND PROCEDURE – findings of defamatory meaning must be fairly within the pleadings – permissible variants of defamatory meaning within the pleadings – Court will not look for imputations outside of bounds of pleaded case

Legislation:

Evidence Act 1995 (Cth) ss 78, 126K, 136

Judiciary Act 1903 (Cth) s 79

Defamation Act 1974 (NSW)

Defamation Act 2005 (Vic) ss 3(c), 10A, 11(2), 25, 29A, 31, 31(4)(c), 34, 35, 36, 47

Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic) s 21

Transport Accident Act 1986 (Vic) s 93(2)(b)

Workplace Rehabilitation and Compensation Act 2013 (Vic) s 327

Defamation Act 2013 (UK) s 1

Cases cited:

Advertiser-News Weekend Publishing Company Ltd v Manock (2005) 91 SASR 206

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Amaca Pty Ltdv Booth [2011] HCA 53; 246 CLR 36

Amaca Pty Ltd v Ellis [2010] HCA 5; 240 CLR 111

Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186; 57 NSWLR 338

Amersi v Leslie [2023] EWCA Civ 1469

Anderson v Nationwide News Pty Ltd [2001] VSC 335; 3 VR 619

Associated Newspapers Ltd v Dingle [1964] AC 371

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

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345

Backwell v AAA [1997] 1 VR 182

Banks v Cadwalladr [2023] KB 524; [2023] EWCA Civ 219

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674

Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969

Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300

Bonnington Castings Ltd v Wardlaw [1956] AC 613

Brandi v Mingot (1976) 12 ALR 551

Bus v Sydney County Council (1989) 167 CLR 78

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

Cassell & Co Ltd v Broome [1972] AC 1027

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519

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

Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports ¶80-691

Cheng Albert v Tse Wai Chun Paul [2000] HKCFA 35; [2000] 4 HKC 1

Cherneskey v Armadale Publishers Ltd [1979] 1 SCR 1067

Cooke v MGN Ltd [2015] 1 WLR 895; [2014] WHC 2831

Cooper v Lawson (1838) 8 A and E 746; 112 ER 1020

Coyne v Citizen Finance Ltd (1991) 172 CLR 211

David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667

Deeming v Pesutto (No 3) [2024] FCA 1430

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Economou v De Freitas [2018] EWCA Civ 2591

Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77; (2018) 97 NSWLR 547

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

Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; 273 CLR 346

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171

Greenwich v Latham [2024] FCA 1050

Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31

Hayson v The Age Company Pty Ltd [2019] FCA 1538

Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1

Howden v Truth & Sportsman Ltd (1937) 58 CLR 416

Jones v Dunkel (1959) 101 CLR 298

Lachaux v Independent Print Ltd [2020] AC 612; [2019] UKSC 27

Lewis v Australian Capital Territory [2020] HCA 26; 271 CLR 192

Lewis v Daily Telegraph Ltd [1964] AC 234

Lloyd v David Syme & Co Ltd [1986] AC 350

London Artists Ltd v Littler [1969] 2 QB 375

Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104; (2014) 43 VR 348

Massoud v Nationwide News Pty Ltd [2022] NSWCA 150; (2022) 109 NSWLR 469

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632

Nassif v Seven Network (Operations) Ltd [2021] FCA 1286

Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432

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

Palmer v McGowan (No 5) [2022] FCA 893; 404 ALR 621

Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192

Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118

Praed v Graham (1889) 24 QBD 53

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Purkess v Crittenden (1965) 114 CLR 164

Rader v Haines [2022] NSWCA 198

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460

Ratcliffe v Evans [1892] QB 524

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500

Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4

Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327

Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223; (2023) 303 FCR 372

Selkirk v Wyatt [2024] FCAFC 48; (2024) 302 FCR 541

Shakil-Ur-Rahman v ARY Network Ltd [2017] 4 WLR 22; [2016] EWHC 3110 (QB)

Sharma v Singh [2007] EWHC 2988 (QB)

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Sivananthan v Vasikaran [2022] EWHC 2938 (KB)

Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB)

Soultanov v The Age Co Ltd [2009] VSC 145; (2009) 23 VR 182

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; 387 ALR 123

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348

Sube v News Group Newspapers [2018] EWHC 1234 (QB)

Supaphien v Chaiyabarn [2023] ACTSC 240

Sutherland v Stopes [1925] AC 47

SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362

Templeton v Jones [1984] 1 NZLR 44

Teubner v Humble (1963) 108 CLR 491

Transport Accident Commission v Katanas [2017] HCA 32; 262 CLR 550

Triggell v Pheeney (1951) 82 CLR 497

Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149

“Truth” (New Zealand) Ltd v Holloway [1960] 1 WLR 997

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

Webb v Bloch (1928) 41 CLR 331

WIC Radio Ltd v Simpson [2008] 2 SCR 420

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448

Division:

General Division

Registry:

Victoria

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

532

Date of hearing:

19 – 20, 23 – 27 October 2023, 1 – 2 November 2023, 9 February 2024

Counsel for the applicant

Mr A T Strahan KC with Ms N Hickey

Solicitor for the applicant

Sinsigalli Foster

Counsel for the respondent

Ms R L Enbom KC with Mr M J Hoyne

Solicitor for the respondent

Thomson Geer

ORDERS

VID 228 of 2022

BETWEEN:

DAVID MOND

Applicant

AND:

THE AGE COMPANY PTY LIMITED

First Respondent

FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720)

Second Respondent

STEPHEN BROOK (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	WHEELAHAN J
DATE OF ORDER:	8 MAY 2025

THE COURT ORDERS THAT:

1.By 4.00pm on 12 May 2025, the respondents file and serve submissions on the questions of interest, costs and permanent injunction, limited to four pages, in 1.5 spacing and 12 point font.

2.By 4.00pm on 14 May 2025, the applicant file and serve submissions in response, limited to four pages, in 1.5 spacing and 12 point font.

3.The outstanding questions, including the terms of final orders, be fixed for hearing at 10.15am on 15 May 2025.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction	[1]
The publications	[4]
Overview of the issues in the proceeding	[9]
Brief background	[10]
Issue (1): did the fourth respondent publish the matters the subject of this proceeding?	[33]
Publication of the 5 May 2021 articles	[49]
Publication of the 13 December 2021 articles	[54]
Publication of the 18 February 2022 articles	[59]
The fourth respondent was a publisher of the matters	[64]
Issue (2): the imputations	[72]
Imputations – the 5 May 2021 articles	[92]
Imputations – the 5 May 2021 print article	[93]
Imputations – the 5 May 2021 online article	[106]
Imputations – the 13 December 2021 articles	[117]
Applicant’s imputation 11(a)	[129]
Applicant’s imputation 11(c)	[131]
Applicant’s imputation 11(d)	[132]
Applicant’s imputation 11(e)	[133]
Respondents’ alternative imputation 27(a)	[135]
Respondents’ alternative imputation 27(b)	[138]
Applicant’s imputations alleged in paragraph 11B	[139]
Imputations – the 18 February 2022 articles	[140]
Applicant’s imputation 13(a)	[152]
Applicant’s imputations 13(c) and (e)	[153]
Applicant’s imputations 13(d) and (f)	[154]
Respondents’ alternative imputations	[156]
The background facts in more detail	[158]
Witnesses	[159]
The applicant	[159]
Rachel Mihalovich	[162]
Barry Mond	[163]
Betty Mond	[164]
Adam Slonim	[165]
Adam Hyman	[166]
Samantha Hutchinson	[167]
Stephen Brook	[168]
Rabbi Dr Benjamin Elton	[172]
Witnesses not called	[175]
The organisation of the Jerusalem Day event	[182]
Enquiries from the Haaretz newspaper	[217]
Other enquiries by the media	[220]
The board meeting	[223]
The aftermath of the board meeting	[224]
Rabbi Genende stated that there was no “rift”	[234]
Other expressions of disagreement	[239]
The apology issued by the board of the Caulfield Shule to Mr Adam Slonim	[248]
The inauguration of Rabbi Rabin at the Caulfield Shule	[294]
The circumstances surrounding the publication of the articles	[301]
The Editorial Code of Conduct	[302]
The Journalist Code of Ethics	[309]
The 5 May 2021 articles	[310]
The 13 December 2021 articles	[331]
The 18 February 2022 articles	[352]
Issue (3): serious harm	[365]
Serious harm – 5 May 2021 articles	[386]
Serious harm – 13 December 2021 and 18 February 2022 articles	[387]
Serious harm – the applicant’s submissions	[387]
Serious harm – the respondents’ submissions	[390]
Serious harm – consideration	[397]
Issue (4): justification	[413]
Justification – the 13 December 2021 articles	[421]
The applicant did consult Rabbi Genende	[425]
The apology to Mr Adam Slonim	[433]
Justification – the 18 February 2022 articles	[442]
Issue (5): honest opinion and fair comment	[446]
The common law defence of fair comment	[447]
The statutory defences of honest opinion	[450]
Comment or Opinion – the 13 December 2021 articles	[454]
Comment or Opinion – the 18 February 2022 articles	[466]
Issue (6): public interest – s 29A defence	[470]
Issue (7): damages	[489]
Aggravation	[497]
The assessment of damages	[517]
Conclusions	[531]

WHEELAHAN J:

Introduction

1. The applicant is a Melbourne businessman and accountant. At the times relevant to this proceeding, he was the president, and then immediate past president, of the Caulfield Hebrew Congregation Inc, which is also known as the Caulfield Shule. The applicant seeks damages and other relief in respect of the mainstream publication of print and online articles which he alleges were defamatory of him.

2. There are four respondents. The first respondent, The Age Company Pty Ltd (The Age), is the publisher of The Age newspaper and of the content on its website, and is alleged to be vicariously liable for the conduct of the third respondent, Mr Stephen Brook. The second respondent, Fairfax Media Publications Pty Ltd (Fairfax Media), is the publisher of the content on the website associated with The Sydney Morning Herald, and is alleged to be vicariously liable for the conduct of the fourth respondent, Ms Samantha Hutchinson. The third respondent, Mr Brook, is a journalist employed by The Age, and is one of two journalists under whose by-line the articles were published. The fourth respondent, Ms Hutchinson, is a journalist employed by Fairfax Media, and is the other journalist under whose by-line the articles were published. No issue in relation to the allegations of publication arises in relation to the first, second, or third respondents. However, Ms Hutchinson denies that she was a publisher of the articles, and that issue therefore falls for determination.

3. The trial of the proceeding was fragmented. This occurred because the estimated trial length given by the parties at the case management hearing, and the time that the Court set aside for the trial between its other commitments, proved to be insufficient. At the conclusion of evidence, and at the request of the Court, the parties presented an agreed list of issues, comprising 55 in number. Within those 55 issues were sub-issues, and issues that were contingent upon the determination of other issues. I mention this to indicate that there were some complexities in the case, which have taken some time to consider.

   The publications

4. There are seven distinct articles that comprise the matters that are the subject of the applicant’s claims. The articles were published in the “CBD” column of The Age newspaper and online. The seven articles can be grouped into three sets of publications –

   (1)the 5 May 2021 articles, comprising –

   (a)a print article published in The Age newspaper dated 5 May 2021 and titled, Uproar over invitation to convicted spy (the first matter); and

   (b)an online article published on The Age website dated 5 May 2021 and titled Orthodox uproar over invitation to convicted spy (the second matter);

   (2)the 13 December 2021 articles, comprising –

   (a)a print article published in The Age newspaper dated 13 December 2021 and titled, Trouble across the board in Caulfield (the third matter); and

   (b)an online article published on The Age website dated 13 December 2021 and titled Trouble across the board at Caulfield Shule (the fourth matter); and

   (3)the 18 February 2022 articles, comprising –

   (a)a print article published in The Age newspaper dated 18 February 2022 and titled, RABBI RIFT SEEMS NOT FULLY HEALED (the fifth matter);

   (b)an online article published on The Age website dated 18 February 2022 and titled RENEWAL (the sixth matter); and

   (c)an online article published on The Sydney Morning Herald website dated 18 February 2022 and also titled RENEWAL (the seventh matter).

5. In addition to the primary publication of the seven matters, the applicant alleges that the first, second, third and fourth matters were subsequently published by hyperlinks appearing in the online versions of the later articles.

6. The text of each of the seven matters is set out in the schedules to this judgment, together with copies of the pages in which the articles were published so as to show how they would have appeared to the ordinary reasonable reader.

7. There are some material differences between the first and the second matters dated 5 May 2021 to which I will refer later. The text of the third and the fourth matters that were dated 13 December 2021 is the same, although the headings differ slightly. And the text of the three matters dated 18 February 2022 is the same, although the heading of the print matter is different from the online matters.

8. I will address the imputations that the applicant alleges were conveyed by the matters later in these reasons. It will also be necessary to consider alternative imputations alleged by the respondents in support of their statutory and common law defences.

   Overview of the issues in the proceeding

9. As I mentioned above, the agreed list of issues itemised 55 issues for determination. I have given attention to all the issues raised by the parties, but I have addressed them within my own framework of analysis. In broad outline, the main issues that arise for determination are as follows –

   Issue (1):        

   Was the fourth respondent, Ms Hutchinson, a publisher of any of the articles?

   Issue (2):

   Did the articles convey any, and if so what, imputations that were defamatory of the applicant, and which are within the applicant’s pleaded case?

   Issue (3):

   In respect of any defamatory publication occurring after 1 July 2021, has the applicant established that he suffered serious harm to his reputation as a result of the relevant publication?

   Issues (4), (5), and (6):

   If any of the articles were defamatory of the applicant, and if (where relevant) he suffered serious harm to his reputation as a result, then have the respondents established any of their positive defences, namely –

   (a)common law or statutory justification;

   (b)honest opinion or fair comment; or

   (c)public interest in respect of publications after 1 July 2021?

   I have grouped these issues together because their resolution is inter-dependent.

   Issue (7):

   If the applicant has established any cause of action, in what sum should damages be assessed, and is the applicant entitled to the remedy of an injunction?

   Brief background

10. Before going to the issues in more detail, I will set out some background, which comprises findings that I make on some basic issues. When addressing the facts in more detail, it will be necessary to make further findings.

11. The applicant is a practising accountant, and is aged in his early 70s. He is married to his wife Betty, and is close to his brother, Barry Mond. He was born in Melbourne, where he grew up. Over the years, he has had a successful career in business and in his profession of accountancy. He is a former treasurer of the Victorian Liberal Party. He has been part of the social fabric of the community of Melbourne, including as a follower of AFL football, being for many years an enthusiastic supporter of the Carlton Football Club.

12. Growing up, the applicant and his family were members of the congregation of a shule in North Carlton, before the applicant moved with his wife to Doncaster in 1981, and then to Caulfield in 1989. Upon moving to Caulfield, the applicant became a member of the Caulfield Shule, with which his extended family had an existing association, with his brother Mr Barry Mond having been involved with the Caulfield Shule since 1981. The Caulfield Shule is one of many congregations in Caulfield, and in terms of membership is one of the largest in Victoria.

1. The applicant’s faith is a very significant part of his everyday life. At the times relevant to this proceeding, the applicant attended the Caulfield Shule almost daily, and developed close social relationships with many other members of the Congregation. The applicant’s involvement with the Caulfield Shule extended to his election as president of the Congregation, which was an office that he held from September 2018 to October 2021.

2. Although I will use the terms Caulfield Shule and Caulfield Hebrew Congregation interchangeably, it is necessary to identify that Caulfield Hebrew Congregation Inc is an incorporated association, and has a constitution which provides for such things as its purposes, membership, a board of management, an executive, meetings, and diverse powers of both the Congregation and its board of management. The board of management is elected, and is responsible for the control and management of the business and affairs of the Congregation.

3. The constitution of the Congregation provides for the appointment by the board of officials of the Congregation, such as ministers, assistant ministers, chazzanim (or cantors), and other officers. However, the constitution makes no express reference to such persons having a role on the board or the executive of the Congregation. Officials of the Congregation are guided in the performance of their duties and in all matters affecting the interests of the Congregation by directions from the president. However, in spiritual matters, officials of the Congregation are not subject to any direction of the board.

4. The evidence was that there are different ways in which members of the Jewish community practise and express their faith. The Caulfield Shule is a modern Orthodox congregation that was established after the Second World War by many Holocaust survivors. Under its constitution, one of its purposes is to uphold and foster the aims of Zionism, which is elaborated upon in its constitution. There are other congregations in Melbourne where members practise their faith with different emphases, and which will be well-known to members of the Jewish community and others. One such congregation is under the umbrella of the Mizrachi Organisation. Mizrachi also has a shule in Caulfield, which is located close to the Caulfield Shule. Mizrachi has some common features with the Caulfield Shule, including its adherence to the Ashkenazi rites, and the promotion of Zionism, but there is no formal association between the two organisations.

5. During the time the applicant served as president of the Caulfield Shule in 2020 and 2021, the State of Victoria was subject to lockdowns, social distancing requirements, and other restrictions as a result of the outbreak of the COVID-19 virus. These restrictions affected people’s ability to attend religious services and to pray in places of worship. The restrictions presented many challenges to the Caulfield Shule, including their effect on fundraising, because members of the Shule were not able to use their synagogue seats. Funds raised from synagogue seats comprised the bulk of the Caulfield Shule’s revenue. The applicant had to confront these issues, and took a number of steps to address them such as personally making financial contributions, and making hundreds of calls to members of the Congregation. Ms Rachel Mihalovich, the Chief Executive Officer of the Shule at the time, spoke highly in her evidence of the applicant’s leadership of the Shule during this difficult period, and during his term as president generally.

6. On 14 April 2021, Dr Danny Lamm, who was the president of Mizrachi, spoke to Mr Mond at an event organised by Mizrachi to mark Israeli Independence Day, known as Yom Ha’atzmaut. Although organised by Mizrachi, the event was held at the Caulfield Shule, which had a larger capacity than the Mizrachi Shule and was more suitable having regard to COVID-related capacity restrictions that were in place at the time. Dr Lamm asked Mr Mond whether Mizrachi could also use the Caulfield Shule for an upcoming event to be held on 9 May 2021 to mark Jerusalem Day, which is known as Yom Yerushalayim, to which the applicant agreed. At the conclusion of the Independence Day event Dr Lamm announced to those present that the Jerusalem Day event would also be celebrated at the Caulfield Shule.

7. A week later, on 21 April 2021, Dr Lamm left a voicemail message for Mr Mond in which he told him that the guest speaker for the Jerusalem Day event would be Jonathan Pollard. The proposal was that Mr Pollard would speak at the event from Israel by means of a recorded video.

8. Jonathan Pollard is an Israeli resident who is a controversial figure within Jewish circles. It is well known within sections of the Jewish community in the United States and Australia that Mr Pollard is a United States citizen who was sentenced to a term of imprisonment of 30 years in the United States from about 1987 for spying for Israel and other countries. Mr Pollard was released from prison in about 2015, and in about late 2020 after completing his parole he left the United States to live in Israel.

9. In a sermon given at The Great Synagogue in Sydney in January 2021, Rabbi Dr Benjamin Elton, who was called as a witness by the respondents, explained his view that Mr Pollard should not be celebrated, valorised, or honoured, and that to do so would severely damage the standing of diaspora Jews. Rabbi Elton said that Australian loyalties matter, and that it was essential that everyone understand that they matter. Of Mr Pollard, Rabbi Elton said in his sermon –

   Not only was he a traitor, but he undermined the central platform of diaspora Zionism, that we support the State of Israel but we are implacably loyal to our home nations, until such time as we choose to live in Israel and become Israeli citizens. Pollard’s actions blew a hole in that delicate understanding.

10. In evidence, Rabbi Elton went further, and stated his opinion that it would be contrary to the teachings of the Torah in a broad sense to celebrate someone like Mr Pollard, while acknowledging that his view was not one that was universally held.

11. The proposal that Mr Pollard speak at the Jerusalem Day event at the Caulfield Shule led to differences of opinion between some members of the Jewish community, and between members of the board of the Shule. Rabbi Genende, who was the spiritual leader of the Congregation at the time, spoke to the applicant of concerns relating to the proposal. The board engaged in some email exchanges upon being informed that Mr Pollard would be the speaker at the Jerusalem Day event. Subsequently, Rabbi Genende sent an email to the board expressing his opposition to having Mr Pollard speak, which was expressed in fairly direct terms, supported by reasoning. At a meeting on 3 May 2021 which Rabbi Genende attended, the board discussed the Rabbi’s concerns. A motion that the Congregation withdraw from the event was defeated by a majority.

12. In the meantime, the proposal to have Mr Pollard speak at the Jerusalem Day event was reported in the media, initially in Israel, and then in Melbourne. On 3 May 2021, the Israeli Haaretz newspaper reported online that the invitation to Mr Pollard to speak at the event in Australia had raised controversy. Haaretz attributed to Mr Jeremy Leibler, president of the Zionist Federation of Australia, views that were opposed to having Mr Pollard speak. The Haaretz article also referred to the email that Rabbi Genende had sent to the board of the Caulfield Hebrew Congregation expressing his opposition to the proposal to have Mr Pollard speak, and set out some extracts from the email. The Haaretz article also claimed that the congregational rabbi, who was identified as Rabbi Genende, had not been consulted.

13. Two days later, on 5 May 2021, the first and second matters were published in The Age newspaper in print and online as part of its CBD column, which was a weekday column that normally appeared prominently on page two of the print edition of The Age newspaper. The general subject matter of these articles was the controversy that the invitation to Mr Pollard had generated. Mr Mond claims that these publications were defamatory of him in meanings that I will set out later and consider. There were other print and online articles at around this time that reported on the controversy surrounding the Jerusalem Day event, including in The Australian Jewish News.

14. The Jerusalem Day event proceeded at the Caulfield Shule on 9 May 2021. Mr Pollard spoke at the event via a recorded video, and the event was well attended.

15. Mr Mond and other board members decided to retire from the board of the Congregation at the Annual General Meeting that was to take place on 29 August 2021. This was reported by The Australian Jewish News on 6 August 2021 under the headline “CHC mass resignation”. The article included some quotations that were attributed to a member of the Congregation, Mr Adam Slonim, that were disparaging of the board. The claim of mass resignation was later retracted by The Australian Jewish News, which issued a correction stating that the members of the board were not resigning but were retiring. In that context, on 13 August 2021 the applicant sent a circular email to the members of the Congregation addressing the circumstances of the retirement of the members of the board. In the course of that email, the applicant made some references to Mr Slonim. Mr Slonim claimed that the applicant’s circular email was defamatory of him, and engaged solicitors who on 17 August 2021 served a concerns notice addressed to the Congregation and the applicant.

16. After the applicant and the old board had retired from their positions, and a new board was elected, the new board made an apology to Mr Slonim. The new board published its apology to Mr Slonim by a circular email to the members of the Congregation dated 8 December 2021.

17. On 13 December 2021, the third and fourth matters were published in the CBD column of The Age in print and online. Amongst other things, the third and fourth matters alluded to the first and second matters, and to the applicant’s circular email that referred to Mr Slonim, and to the board’s apology to Mr Slonim. Again, I will identify and consider later in these reasons the meanings that the applicant claims the matters conveyed.

18. In late 2021, Rabbi Genende’s term as senior rabbi of the Caulfield Shule came to an end, and a new rabbi, Rabbi Rabin, commenced his term of appointment. On 12 February 2022, a ceremony to inaugurate Rabbi Rabin as the senior rabbi was held at the Caufield Shule.

19. On 18 February 2022, the fifth, sixth, and seventh matters were published in the CBD column in print in The Age newspaper, and online on The Age and The Sydney Morning Herald websites. These matters alluded to the earlier matters published in the CBD column and claimed that attendances at the inauguration ceremony for Rabbi Rabin were low, and that divisions in the synagogue still existed. The applicant claims that these matters were defamatory of him in meanings that I will set out later and consider.

20. Fairfax Media is also alleged to be liable for the publication of the online articles of 5 May 2021 and 13 December 2021 on the ground that its online article of 18 February 2022 contained hyperlinks to those articles.

    Issue (1): did the fourth respondent publish the matters the subject of this proceeding?

21. The first issue to address is whether the fourth respondent, Ms Hutchinson, was a publisher of the seven matters. As I have mentioned, Ms Hutchinson, who was a journalist with The Sydney Morning Herald, denies that she is liable as a publisher. I will set out the circumstances in which that dispute arises.

22. The print and online articles were published with by-lines that identified both Mr Brook and Ms Hutchinson. In addition, the print articles were published in The Age newspaper under a banner which contained photographs of Mr Brook and Ms Hutchinson and which is reproduced below –

23. An editorial code of conduct titled “Australian Metro Publishing – Editorial Code of Conduct”, which applied to all Australian Metro Publishing editorial employees, including staff at The Sydney Morning Herald and The Age, provided under a heading that referred to plagiarism and attribution –

    Bylines should be carried only on material that is substantially the work of the bylined journalist.

24. Both Ms Hutchinson and Mr Brook accepted that the Code of Conduct applied to them, and Ms Hutchinson accepted that both she and Mr Brook were held out as co-columnists of the CBD column.

25. However, Ms Hutchinson’s case essentially is that Mr Brook composed those parts of the CBD columns on which the applicant’s claims are founded, and that she did not take responsibility for anything that Mr Brook wrote. Ms Hutchinson’s case is that because she did not compose the words sued upon, she is not liable as a publisher.

26. The applicant made the following allegations in the further amended statement of claim –

    (a)the CBD column is a marquee gossip column published prominently by The Age online and in print and Fairfax Media, relevantly, online, of which Mr Brook and Ms Hutchinson are or were at all material times the columnists; and

    (b)in the particulars to the allegations of publication of the matters by the respondents, that the “lead authors” of the matters were Mr Brook and Ms Hutchinson.

27. By their further amended defence the respondents denied that Ms Hutchinson was an author of, or in any way involved in, or otherwise published or caused the articles to be published.

28. Prior to trial, the solicitors for the parties engaged in correspondence in relation to the question of publication. In a letter to the solicitors for the respondents dated 16 August 2023, the solicitors for the applicant claimed that Ms Hutchinson was an active participant in the publication of the matters. This claim was made in support of an invitation to the respondents to admit that Ms Hutchinson was a publisher of the matters. In support of this invitation, the solicitors for the applicant relied on the following claims that were said to be based upon their review of discovered documents –

    It is apparent that Ms Hutchinson participated actively in the production of each of the relevant CBD Columns. Her approval of and overt participation in the matters complained of is apparent from the following:

    1.The content of the CBD Column was published jointly under the names of Mr Brook and Ms Hutchinson.

    2.The columnists worked up the matters to be published in a joint document.

    3.Ms Hutchinson was on notice at all material times of all the content that was to go out under her name, whether or not she wrote it.

    4.The practice of the journalists was to amend each other’s work if they had an issue with it. They also sometimes wrote content jointly. Other times they did not amend each other’s work.

    5.When they did not amend each other’s work, it can be readily inferred that it was because they had nothing to add or change and thereby sanctioned the contents.

    6.Ms Hutchinson chose not to amend the matters complained of even though she had the opportunity to do so. She thereby sanctioned and endorsed the contents.

    7.Further, in relation to the December 2021 publications, Ms Hutchinson formatted the topic ideas which included the word SHUL, and formatted the document as a whole.

    8.Further, in relation to the February 2022 publications, Ms Hutchinson wrote the term “Shule” in the Melbourne column, and formatted the document as a whole.

29. The letter then referred to the leading High Court authorities concerning liability for publication of defamatory matter.

30. In the applicant’s written opening at trial, counsel for the applicant stated that the case against Ms Hutchinson was that she and Mr Brook worked on a joint document, knowing that it would be published under their joint by-lines, and that Ms Hutchinson was therefore liable as a publisher. On the other hand, counsel for the respondents in their written and oral openings pointed to the applicant’s allegation in the particulars of the further amended statement of claim that the fourth respondent was an “author” of the articles, and stated that Ms Hutchinson was not an author, but that Mr Brook was the sole author.

31. Both Mr Brook and Ms Hutchinson gave evidence in relation to the composition of the articles the subject of this proceeding. Ms Hutchinson gave evidence in a straight-forward manner, and in relation to her evidence as to primary facts, impressed me as being reliable. On issues other than publication, Mr Brook’s evidence will be considered later. For present purposes, there is no aspect of the presentation of either Mr Brook or Ms Hutchinson as witnesses that bears upon my evaluation of the evidence of primary facts going to publication. Those facts include admitted facts arising from the applicant’s service of a notice to admit and the respondents’ response to that notice, being an amended notice of dispute. In referring to primary facts, I am excluding the evidence of Ms Hutchinson and Mr Brook that used the term “author”, and its derivatives, because that is an ultimate conclusion. Both addressed questions from counsel and gave evidence that used the word “author”, which in context must be taken to have referred to the actual composition or writing of the articles. By way of example, Ms Hutchinson denied that she was an “author” of the articles.

32. The following are my findings in relation to the disputed claims of publication of the articles based upon the evidence and the relevant admitted facts.

33. At the time each of the matters was published, Mr Brook was employed at The Age in Melbourne, and Ms Hutchinson was employed by The Sydney Morning Herald in Sydney. Both were engaged as columnists for the CBD column, which was published by both newspapers and on their respective websites. However, the published columns were not usually identical because they were tailored to the different markets of Sydney and Melbourne. Many items in the CBD column were published only in The Age or The Sydney Morning Herald, but not both. However, sometimes items that had a national flavour were published in the CBD columns of both newspapers. Mr Brook and Ms Hutchinson worked together on the CBD columns in this way until about May 2022 when Ms Hutchinson left to join the Australian Financial Review.

34. The system for the preparation of the CBD columns commenced with a shared Google document that was created by either Mr Brook or Ms Hutchinson. This was a document stored in the cloud to which Mr Brook and Ms Hutchinson had access. I understood the evidence to be that both could work on a Google document concurrently, and that it was possible for each to see the other person’s changes to the document in real time, depending upon what part of the document was viewable on the screen. As Ms Hutchinson put it, “we would be one on top of the other”. Later in the process, an editor was also given access to the shared document.

35. The Google documents that led to the CBD columns for 5 May 2021, 13 December 2021, and 18 February 2022, evolved. They evolved from the planning stages, where ideas for content were recorded in a table containing separate columns for Sydney and Melbourne. Each of Mr Brook and Ms Hutchinson then entered text in the shared document as it developed. The text included drafts of what became components of the CBD columns. Through this process, Mr Brook composed each of the matters the subject of the applicant’s claims. Ms Hutchinson did not contribute to their composition. Nor did she contribute any ideas, or research any of the matters in issue.

36. After the Google documents were completed, the text was transferred to a publishing platform known as “Ink”. For the CBD column, two publishing shells within Ink were created: one for Sydney, and the other for Melbourne. Editorial and production staff of The Sydney Morning Herald then worked on the Sydney shell, and corresponding staff at The Age worked on the Melbourne shell. That process of production through the Ink platform typically resulted in several more versions of the columns before final publication.

    Publication of the 5 May 2021 articles

1. Mr Brook and Ms Hutchinson worked on a shared Google document for the 5 May 2021 CBD column. In the planning table under “Melbourne” Mr Brook entered “Shul”. There were at least five different versions of the column prior to publication. The column was published online at 12.01 am on 5 May 2021, and in the print edition of The Age of 5 May 2021.

2. Mr Brook gave evidence, which I accept, that he and Ms Hutchinson spoke to each other about the 5 May article at an early stage. The substance of that conversation was that Mr Brook informed Ms Hutchinson what he was planning to write, in response to which Ms Hutchinson stated that she knew nothing about the matter, and had no contacts or information that would be helpful, and that she would leave the research and the writing to Mr Brook.

3. In a Google document for the CBD column dated 4 May 2021 and time-stamped at 13:41, both Mr Brook and Ms Hutchinson worked in the document. Mr Brook wrote a draft of the matter that is in issue. Ms Hutchinson did not make any revisions to Mr Brook’s draft.

4. In a Google document for the CBD column dated 4 May 2021 and time-stamped at 17:59, Mr Brook amended the draft of the matter in issue, Ms Hutchinson did not amend the draft of the matter, and there was another matter in the document drafted by Ms Hutchinson concerning the Society restaurant that Mr Brook did amend.

5. Mr Brook created the Ink shell for the 5 May 2021 article published in The Age. There were no revisions by Ms Hutchinson to the column on the Ink shell.

   Publication of the 13 December 2021 articles

6. As with the 5 May 2021 article, Mr Brook and Ms Hutchinson worked in a joint document that led to the 13 December 2021 publications. There were at least four different versions of the column prior to publication. The CBD column was published online at 5:00 am on 13 December 2021, and in the print edition of The Age of 13 December 2021.

7. In a Google document for the CBD column dated 12 December 2021 and time-stamped at 14:18, each of Mr Brook and Ms Hutchinson contributed topic ideas. In the “Mel” column Mr Brook wrote “SHUL”, and each of Mr Brook and Ms Hutchinson suggested other ideas in the draft.

8. In a Google document for the CBD column dated 12 December 2021 and time-stamped at 17:22, Mr Brook and Ms Hutchinson deleted some of the topic ideas, Mr Brook amended the draft of the matter in issue, Ms Hutchinson did not make any revisions to the draft of the matter in issue, and Mr Brook and Ms Hutchinson both contributed to an item concerning Alan Jones.

9. As with the 5 May 2021 article, Mr Brook created the Ink shell for the 13 December 2021 article. Ms Hutchinson did not make any revisions to the article within the Ink shell.

10. Neither Mr Brook nor Ms Hutchinson gave evidence of any conversation with each other about the 13 December 2021 article.

    Publication of the 18 February 2022 articles

11. In relation to the 18 February 2022 articles, Mr Brook and Ms Hutchinson worked on a joint draft document. There were at least seven different versions of the column prior to publication. The column was published online at 5:00 am on 18 February 2022 on The Age and The Sydney Morning Herald websites, and in the print edition of The Age dated 18 February 2022.

12. In a Google document for the CBD column dated 17 February 2022 and timestamped at 12:10, Ms Hutchinson wrote the term “Shule” in the Melbourne column.

13. In a further version of the Google document dated 17 February 2022 and timestamped at 17:28, Mr Brook wrote a draft of the matter that is in issue. Ms Hutchinson did not make any revisions to the draft. Mr Brook made amendments to content that Ms Hutchinson drafted in relation to another item concerning Josh Frydenberg and Eddie McGuire, and Ms Hutchinson made amendments to Mr Brook’s text in relation to another matter concerning the Superbowl.

14. Mr Brook also created the Ink shell for the 18 February 2022 article, and Ms Hutchinson did not make any revisions to the article within the Ink shell.

15. Neither Mr Brook nor Ms Hutchinson gave evidence of any conversation with each other about the 18 February 2022 article.

    The fourth respondent was a publisher of the matters

16. At trial, counsel for the respondents maintained that the applicant’s pleaded case in relation to Ms Hutchinson’s liability for publication was confined to authorship of the matters, relying on the applicant’s pleas that the “lead authors” of the articles were Mr Brook and Ms Hutchinson, which reflected the fact that their names appeared in the by‑lines. Counsel for the respondents submitted that, on the evidence, Ms Hutchinson was not an author of any of the matters, and that she had nothing to do with their writing.

17. It is trite that liability for publication is not confined to those who compose or write defamatory matter. The following statement from the old text Folkard on Slander and Libel (5^th ed, 1891) was approved by Isaacs J in Webb v Bloch (1928) 41 CLR 331 at 363–364 –

    The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.

18. More recently, in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; 273 CLR 346 (Voller), Kiefel CJ, Keane and Gleeson JJ at [23] described publication as “the process by which a defamatory statement or communication is conveyed”. Any act of participation in the communication of defamatory matter to a third party is sufficient to make a respondent a publisher, such that, as their honours held at [32] –

    a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.

19. To similar effect, Gageler and Gordon JJ held at [62] –

    every intentional participant in a process directed to making matter available for comprehension by a third party is a “publisher” of the matter upon the matter becoming available to be comprehended by the third party.

20. The references to intention and voluntary participation relate to the process of publication, and not to any intention to publish defamatory matter or knowledge of the defamatory nature of the matter. Intention in that sense is not relevant to liability for publication, because the tort is one of strict liability and the actionable wrong is the publication: see Voller at [27], [66].

21. Ms Hutchinson worked at The Sydney Morning Herald from August 2020 to May 2022 as a senior columnist for the CBD column. From February 2021, she worked on the CBD column with Mr Brook in the way described at [45]–[62] above. True, she did not herself type into the joint Google document the words that comprised the articles. But she actively and voluntarily participated in the process by which the joint document evolved. She was at the relevant times a voluntary and active participant in the process by which those columns were published. Ms Hutchinson gave evidence in cross-examination that she knew that the CBD columns were published under the joint by-line, and that she did not object to that process at any point in time. I find that at all relevant times Ms Hutchinson knew that the publication which resulted from the joint Google documents on which she and Mr Brook worked would be published under their joint names, and that she authorised publication of the CBD column in this form. Ms Hutchinson thereby gave her imprimatur to the publication of each of the matters in issue. For these reasons, Ms Hutchinson was a publisher of the articles in the legal sense explained in the majority judgments in Voller.

22. Further, Ms Hutchinson may be described as an author of the articles. The respondents’ case treated the concept of authorship in a narrow sense, as being synonymous with the primary composition of, or the primary writing of the actual words used in the articles. It was on this basis that Ms Hutchinson denied in evidence-in-chief that she was the author of any of the articles. But this is only one sense in which there might be authorship. Ms Hutchinson gave her imprimatur to the articles by her agreement to the process of publication in which she participated in the planning stages, and worked on the joint Google document, knowing that she would be named in the by‑line as one of the writers of the CBD column. By doing so, Ms Hutchinson was an author in the sense of being one of two co-authors with Mr Brook, neither of whom wrote everything, but both of whom assumed authorship for what was published. For these reasons, the findings of publication of the articles by Ms Hutchinson are within the scope of the applicant’s pleaded case.

23. It follows that Fairfax Media is vicariously liable for the publications in issue to the extent that Ms Hutchinson is found to be liable.

    Issue (2): the imputations

24. The significance of words is in their meaning. Until the meanings of the matters in issue are determined, and unless it is held that a matter is defamatory in some meaning about which an applicant complains, there is no occasion to address serious harm (which is an element of the cause of action in relation to publications on and after 1 July 2021), or to address defences such as justification, honest opinion, fair comment, or public interest.

25. The principles applicable to the ascertainment of defamatory meaning are not controversial. The meaning of written words, and the question whether in the meanings so found a matter is defamatory, are evaluated against the objective standard of the ordinary reasonable reader. The ordinary reasonable reader is an ordinary decent person, being of ordinary intelligence, experience, and education, who brings to the question his or her general knowledge and experience of worldly affairs: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 (Radio 2UE) at [4]–[6], [39]–[40] (French CJ, Gummow, Kiefel and Bell JJ). The ordinary reasonable reader is a lay person, and not a lawyer, and does not examine an impugned publication over-zealously, but is someone who views the publication casually and is prone to a degree of loose thinking. The understanding of the ordinary reasonable reader is not the same as a lawyer’s understanding. Therefore, a publication such as a newspaper column should not be approached as if it were an exercise in statutory construction, where “a court construing a statutory provision must strive to give meaning to every word of the provision”: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ).

26. The imputed knowledge of worldly affairs allows for the ordinary reasonable reader to read between the lines, and to draw inferences, implications, and conclusions much more freely than a lawyer, especially derogatory implications: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641 (Mason and Jacobs JJ, Gibbs J and Stephen J agreeing); Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 at [11]; Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 at [32] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). Therefore, it is often the case that it is the broad impression conveyed by an impugned publication that falls for consideration, and not the meaning of each word under analysis: Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 (Lord Devlin). There are, however, limits on the extent to which the ordinary reasonable reader may engage in loose thinking or reading between the lines. While the ordinary reasonable reader’s knowledge and experience in worldly affairs will permit the drawing of inferences, available meanings might not extend to a meaning that is the result of drawing an inference upon an inference that is not suggested by a reasonable reading of the language, or to a meaning that would be understood by some readers only as a result of some prejudice: see Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301–302 (Mason J). Of course, everything depends upon the words that are used in the publication and the broad impression that the publication conveys.

27. Because meaning is to be determined by reference to an objective standard, the audience to whom a matter is published is taken to have a uniform view of meaning. Although different people might in fact have understood the meanings conveyed by a matter in different ways, the Court must arrive at a single objective meaning. The test is not what an ordinarily reasonable reader could understand the matter to mean, as with the question of capacity arising in interlocutory disputes about pleadings or whether a case should be left to a jury. For that reason, care must be exercised in applying some judicial statements that are concerned with interlocutory questions of capacity, as distinct from the factual question of actual meaning. Thus, it is not sufficient for an applicant to demonstrate that some members of the audience might have understood the matter in the way alleged, or that the publication was reasonably capable of bearing the defamatory meanings alleged, for they are not the issues. The issue is the single meaning that an objective audience composed of ordinary decent persons should collectively have understood the matter to bear. The single meaning rule, coupled with the objective standard of the ordinary reasonable reader, is an important stabilising element of the cause of action in defamation, and has been described as representing “a fair and workable method for deciding whether the words under consideration are to be treated as defamatory”: Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300 at [21] (Lord Nicholls of Birkenhead).

28. The single meaning rule does not mean that an applicant is confined to a single imputation or sting arising from a defamatory matter. That is not what the single meaning rule is about. As the Full Court explained in Australian Broadcasting Corporation v Chau Chak Wing (2019) [2019] FCAFC 125; (2019) 271 FCR 632 (ABC v Wing) at [33], an applicant may allege two or more distinct defamatory imputations, and may allege imputations in the alternative: see also Massoud v Nationwide News Pty Ltd [2022] NSWCA 150; (2022) 109 NSWLR 469 (Massoud) at [57] (Leeming JA, Mitchelmore JA and Simpson AJA agreeing).

29. Whether words in the meanings found to be conveyed are defamatory of an applicant is also determined objectively by reference to the standards of the community generally: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507 (Brennan J, with whom Gibbs CJ, Stephen J, Murphy J and Wilson J agreed). What is involved is a loss of standing in some respect amongst ordinary decent persons who will apply general community standards: Radio 2UE at [39]–[40]; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [54] (Gummow, Hayne and Bell JJ). The reference to loss of standing includes by reason of disparagement of an applicant, and by imputations that have a tendency to cause people to shun and avoid an applicant. In addition, in relation to matters published after 1 July 2021, by operation of s 10A of the Defamation Act 2005 (Vic), actual damage to reputation in the form of “serious harm” must be demonstrated as an element of the cause of action. However, because the tort of defamation is concerned with the supposed impact of a matter on an applicant’s reputation amongst those to whom it is communicated, it is not concerned with the publication of matter which is merely false, or which embarrasses an applicant, or which results in injury to feelings. Embarrassment or injury to feelings may result from a publication, but publication of defamatory meaning in the estimation of the ordinary reasonable reader, and (since 1 July 2021) resultant serious harm to reputation, is the essence of the cause of action.

30. All of the imputations alleged by the applicant are said to arise from the natural and ordinary meaning of the articles. There is no reliance on any true innuendoes. Therefore, no imputations are alleged to turn on what the articles conveyed to the ordinary reasonable reader with knowledge of any special facts that would be known to members of the Caulfield Hebrew Congregation, or the Orthodox Jewish community more generally: see Duncan and Neill on Defamation (Butterworths, 1983) at [4.18(b)].

31. It is well to remember that under the Defamation Act, and corresponding uniform legislation across Australia, it is the publication of defamatory matter that constitutes the cause of action, and not the publication of imputations. Under s 8 of the Act, the publication of a matter gives rise to a single cause of action even if more than one defamatory imputation is conveyed. The object of adopting on a uniform basis the common law position that it is the publication of defamatory matter that constitutes the actionable tort was to do away with the complexities that had arisen in New South Wales, where under the Defamation Act 1974 (NSW) each imputation was a separate cause of action: see the extra-curial observations of Levine J recorded in the Second Reading Speech of the New South Wales Bill, set out in Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [37] (McColl JA). However, the ascertainment of the defamatory meaning of a matter by a court is not at large. An applicant’s case is shaped by the meanings alleged in the statement of claim, which will generally confine the questions of meaning for determination: Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 (Chakravarti) at [17]–[21] (Brennan CJ and McHugh J). Although it is the publication of the matter that constitutes the tort, the pleading of meanings identifies the field of inquiry at trial: Advertiser-News Weekend Publishing Company Ltd v Manock (2005) 91 SASR 206 at [76] (Doyle CJ, with whom Vanstone J and White J agreed). At least as far as an applicant’s meanings are concerned, the case may extend to meanings that are comprehended in, or are less injurious than, or are a mere shade or nuance of the pleaded meaning: Chakravarti at [21]–[22] (Brennan CJ and McHugh J), [60] (Gaudron and Gummow JJ), [139] at points 3 and 4 (Kirby J). Whether, and to what extent, an applicant may be permitted at trial to depart from the pleaded meanings will be resolved by considerations of fairness and practical justice.

32. At trial the Court is concerned with making findings directed to the single natural meaning that would be conveyed to the ordinary reasonable reader and is not concerned with identifying the outer boundaries of possible meanings. The terms of the imputations alleged by an applicant are therefore important. An applicant is entitled to bring a proceeding for defamation seeking vindication on some point which will usually be the subject of a pleaded imputation: see the discussion by the Full Court in ABC v Wing at [87], citing Associated Newspapers Ltd v Dingle [1964] AC 371 at 396 (Lord Radcliffe). In framing imputations, an applicant is entitled to disclaim meanings as being outside the pleaded case, at least where those other meanings are separate and distinct and not bound up with or material variants of the meanings that have been pleaded, as the facts of Templeton v Jones [1984] 1 NZLR 448 illustrate. There is often a tension between what defamatory meanings an applicant alleges a matter conveys, and those meanings in respect of which a respondent might maintain defences such as justification or fair comment. Framing imputations therefore carries risk. If an applicant pleads imputations that are strained, or which incorporate contestable or extravagant elements, or which are otherwise contrived for the purpose of establishing the serious harm element or heading off defences to more natural or less serious imputations, an applicant runs the risk that a court will find that the applicant has failed to establish a defamatory meaning within the bounds of the pleaded case: see for example Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; 387 ALR 123 at [53] (Lee J).

1. In this case, the respondents have pleaded their own meanings in relation to all of the matters as an alternative to their denial of the applicant’s imputations. The respondents rely on their alternative meanings in support of defences of common law justification, the statutory defence of honest opinion, and the common law defence of fair comment. These alternative meanings are referred to colloquially as Hore-Lacy meanings: see David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667. This form of pleading is permissible for the reasons, and to the extent, explained in ABC v Wing at [15]–[23]. A collateral incident of a respondent pleading an alternative meaning may also be to make explicit the respondent’s ground for denying the applicant’s pleaded imputations: Chakravarti at [8] (Brennan CJ and McHugh J). The principles explained in ABC v Wing may extend to Hore-Lacy meanings in support of a common law defence of fair comment: see Soultanov v The Age Co Ltd [2009] VSC 145; (2009) 23 VR 182 (Kaye J). That is because, like justification, a fair comment defence is a defence of confession and avoidance where the ascertainment of defamatory meaning is the first step in scrutinising the elements of the defence, such as whether the publication amounted to comment, whether the comment was based upon true facts, and whether the comment was one that could reasonably be made by an honest person: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 (Manock) at [83]–[85] (Gummow, Hayne and Heydon JJ). Similar considerations may arise in relation to the statutory defence of honest opinion under s 31 of the Defamation Act. For the statutory defence to operate, the defence must be addressed to the matter in its defamatory sense: see Lloyd v David Syme & Co Ltd [1986] AC 350 at 365 (PC); Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 at [180] (Abraham J). However, it is the matter and not the language of the court’s findings as to defamatory meaning which is the subject of scrutiny for the purposes of considering whether the statutory defence of honest opinion is made out: Massoud at [194]–[195]. The rationale of allowing the pleading of alternate meanings is to permit a respondent to defend the publication of the matter in meanings which are comprehended by, or which are a variant of and not more injurious than one of the meanings alleged by the applicant and which, on the respondent’s case, are true, or amount to fair comment or honest opinion. A Hore-Lacy plea within these permissible bounds will be a pleading of a defence to the matter in a meaning on which the applicant would be entitled to succeed at trial.

2. The task of the Court is therefore to make findings about whether the applicant has established by reference to the standard of the ordinary reasonable reader that the matters conveyed a meaning that was defamatory of the applicant that is fairly within the bounds of his pleaded case. In making findings as to meaning, I have given careful attention to whether the meanings found are fairly within the case argued at trial. That is because it would be procedurally unfair to the respondents to allow the applicant to succeed on a defamatory meaning that was not fairly within the imputations that the applicant pleaded and which the respondents addressed at trial, including by formulating and advancing defences to alternative meanings. I have also had regard to the fact that some meanings are alleged by the applicant to be primary meanings, and others are alleged cumulatively and in the alternative.

3. At trial, senior counsel for the applicant submitted that while the applicant maintained reliance on his imputations in the terms in which they were formulated, and disputed the respondents’ alternative meanings, the applicant would nonetheless be entitled to succeed if the Court found that a publication was defamatory of him in a meaning that was a permissible variant of one of the imputations that had been pleaded. On the other hand, senior counsel for the respondents submitted in closing that the applicant did not seek a “verdict” on the respondents’ alternative meanings because the applicant claimed that they were not conveyed. The word “verdict” is apt to a jury trial, but I understood senior counsel for the respondents to be referring to a judgment of the Court.

4. I do not accept the respondents’ submissions on this issue, and I accept the applicant’s submissions in part. There are two important points. First, the cause of action in defamation is constituted by the publication of the matter, and not the imputations. The imputations pleaded by the applicant shape the issues at trial, but the issues at trial are also informed by the respondents’ pleadings. In this respect, it is noteworthy that the respondents’ further amended defence, which maintained their reliance on alternative meanings, was filed on 20 October 2023, which was the second day of trial.

5. Secondly, in Chakravarti at [19] Brennan CJ and McHugh J stated that a plaintiff may not seek a “verdict” on a meaning different to that pleaded, but the terms of what their Honours said are important –

   A plaintiff who pleads a false innuendo thereby confines the meanings relied on. The plaintiff cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis.

   (Emphasis added.)

6. The emphasised words highlight that the different meaning which their Honours had in contemplation was one that so altered the substance of the meaning pleaded by the plaintiff that it raised different issues by way of defence. A similar observation was made by Gaudron and Gummow JJ at [60] –

   As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.

   (Emphasis added.)

7. In this case a fundamental premise of the respondents’ pleading of their alternative Hore-Lacy meanings is that, as an alternative to their denial that the applicant’s meanings were conveyed, the respondents must be taken to advance their meanings as being bound up with the applicant’s imputations, and as being permissible variants in the way explained in ABC v Wing such that they are meanings on which the applicant would be entitled to succeed at trial. It is only on this premise that the respondents are able to plead defences that are directed to their own alternative meanings.

8. As Gaudron and Gummow JJ indicated in Chakravarti at [60], there will often be no unfairness in treating an alternative meaning advanced by a respondent as being within the applicant’s case. There are qualifications, three of which I will mention. The first is where an applicant, expressly or by implication, nails his or her colours to the mast and thereby excludes any meanings other than those in the strict terms pleaded by the applicant. This has arisen in cases involving the guilt/suspicion dichotomy where an imputation of guilt may be pleaded by an applicant in terms which necessarily exclude lesser or different imputations. In those circumstances, to entertain findings in relation to lesser or different imputations such as reasonable suspicion or reason to investigate would be to engage with false issues, and might result in a denial of procedural fairness to a respondent who may not have advanced positive defences to lesser, unpleaded imputations. The second is where the imputations formulated by an applicant contain necessary elements, the absence of which materially changes the substance of the case. It is to be recalled that the framing of imputations by an applicant is an area of choice for the applicant: see ABC v Wing at [16]. In framing imputations, the applicant defines the territory on which the applicant’s claims of defamatory meaning are to be considered. The third qualification is that while there might be no unfairness in treating a respondent’s alternative meaning as a permissible variant of an applicant’s meaning, unfairness may arise if the Court were to go further and entertain variants on variants, that is, variants of the respondent’s alternative meanings. These are examples only, and there are no hard and fast rules for dealing with these types of issues because circumstances will differ.

9. Because of the importance of pleadings, and the way in which a trial is conducted to the making of findings of defamatory meaning, if an applicant fails to establish a defamatory meaning within the bounds of the pleaded case, the Court will not be expected to pick over the carcasses of the applicant’s failed imputations and piece together a different case.

10. The applicant has primarily advanced his meanings, or meanings not different in substance. The applicant disputed the terms of the respondents’ alternative meanings. The formulations of both sides constitute the boundaries within which questions of defamatory meaning may fairly be determined, but bearing in mind that the respondents’ meanings are advanced only as alternative expressions of the applicant’s case, and on the premise that the respondents’ primary position is to deny that the matters were defamatory in the meanings alleged by the applicant. Therefore, the respondents’ alternative meanings do not constitute admissions by the respondents.

11. The pleadings show that while the applicant’s primary position was to deny the alternative imputations pleaded by the respondents, the applicant advanced an alternative position on the premise that the Court found the matters to be defamatory in the Hore-Lacy meanings alleged by the respondents. This is apparent from paragraphs 7, 8, and 9 of the applicant’s reply dated 18 August 2022 to the respondents’ defence. In those paragraphs the applicant made allegations that are contingent upon the Court accepting the alternative meanings alleged by the respondents. This is consistent with the position taken by senior counsel for the applicant in closing submissions. It is also consistent with the position taken by senior counsel for the applicant in opening, where he accepted in response to a question from the Court that the applicant’s elaborate imputations included permissible lesser variants. Therefore, this is not a case where the applicant disclaimed, expressly or by implication, reliance on the respondents’ alternative meanings as permissible variants of his own meanings on which he was entitled to succeed. And because the respondents advanced positive defences by reference to their own alternative meanings, there is no injustice to the respondents should the Court entertain making findings that are variants of the applicant’s meanings which are within the bounds of the respondents’ alternative meanings.

    Imputations – the 5 May 2021 articles

12. The 5 May 2021 articles are set out in the First Schedule. There is a difference between the text of the print article which appeared in The Age newspaper, and the online article. In evidence, Mr Brook stated that the difference was likely the result of editorial staff reducing the length of the print article in order to fit within the available space in the newspaper. There are also differences between the imputations which are alleged in respect of the two articles. I will therefore address the first and second matters separately.

    Imputations – the 5 May 2021 print article

13. In relation to the first matter, the applicant alleges in paragraph 9 of the further amended statement of claim that it was defamatory of him and conveyed the following meanings, or meanings not different in substance –

    (a)Mr Mond is a person so lacking in judgment that he recklessly agreed to host a convicted spy at an important event for Melbourne’s Orthodox Jewish community without appropriate consultation;

    ...

    (c)Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community by reason of the matters alleged in (a);

    (d)further and alternatively to (c), Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community by recklessly agreeing to host a convicted spy at an important event for Melbourne’s Orthodox Jewish community without appropriate consultation.

14. In opening, the applicant submitted that permissible variants of imputation (c) that were applicable to the 5 May 2021 print and online articles were –

    (a)Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community by recklessly agreeing to host a convicted spy at an important event for Melbourne’s Orthodox Jewish community without appropriate consultation.

    (b)Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community when he condoned treason by supporting and sanctioning the conduct of Jonathan Pollard who is a convicted spy. [Online version only]

15. The respondents submitted that the applicant’s pleaded imputations in respect of all of the publications were unduly convoluted and rolled-up. Embedded within most of the imputations are multiple stings. As I will identify, there is also a degree of overstatement in elements of the imputations alleged by the applicant, including the applicant’s variant imputations that were advanced in argument. Each of the above imputations in relation to the first matter rolls up different charges in a compendious way. Imputation (a) rolls up lacking in judgment, recklessness, and the absence of appropriate consultation. Imputation (c) adds to the list of rolled-up charges by introducing a charge that the applicant was a disruptive person. Imputation (d), which was introduced by amendment, is an alternative way of putting imputation (c), but as with the other imputations and variant imputation (a), relies on the absence of appropriate consultation as a necessary element.

16. I am required to assess how the ordinary reasonable reader would regard the CBD column. The applicant characterised the CBD column in the further amended statement of claim as a “marquee gossip column”. As a result of this plea, the question whether the CBD column comprised gossip became a point of contention at trial, with Mr Brook rejecting that characterisation, equating gossip with unconfirmed information.

17. I do not accept the evidence of Mr Brook that the CBD column was not in the nature of a gossip column. Gossip is not accurately characterised as being limited to unconfirmed information. Contrary to the evidence of Mr Brook, the CBD columns that were in evidence clearly comprised gossip. That is because often the source of information in the columns was not disclosed. All of the articles about the Caulfield Hebrew Congregation conveyed the exposure of disagreements behind the scenes, thereby giving the appearance of gossip. Other topics covered by the CBD columns in evidence included:

    (1)when the Society restaurant in Melbourne was likely to open;

    (2)an account of a City of Stonnington council meeting, where there was a quotation attributed to the Stonnington mayor referring to the CBD column as a “gossip column in The Age”;

    (3)a suggestion that a federal member of Parliament, Mr Katter might be planning for a life outside politics;

    (4)a reference to what Christmas gifts were given to Sky News staff;

    (5)an account of the then federal Treasurer Mr Josh Frydenberg attending a secondary school and addressing an economics class, accompanied by speculation as to what connections with the school secured Mr Frydenberg’s attendance and a reference to “our source at the tuck shop”; and

    (6)an account of Mr “Eddie Everywhere” Maguire attending the Super Bowl in the United States.

18. One of the items was even written about the respondents’ solicitor in this proceeding, referring to him as a “man-about-town” and “sports tragic” who also jetted over to the Super Bowl only to be forced to return to Melbourne to attend to a legal matter and who gave his Super Bowl ticket to a former Hawthorn AFL footballer. All this might have been of interest to the readers of The Age in Melbourne, and I am not to be taken as being critical of the CBD column, or the engaging style in which it was written. But however well written, this was not public interest journalism or reporting the news of the day. It was gossip.

19. The ordinary reasonable reader would regard the style of the CBD column as conveying a mixture of facts and opinions, and as incorporating some elements that were mocking in tone. The column was written in a way that attracted attention and was easily absorbed by a reader. The items in the CBD column “name checked” people by placing their names in bold, thereby drawing attention to their identities. Each item within the CBD column was usually short in length. The first matter was typical. It was pithy. As a result, the ordinary reasonable reader would have read the first matter quickly and in its entirety. The ordinary reasonable reader would have taken away the main points. It was not the type of piece that the ordinary reasonable reader would have analysed in any depth. The same observations apply to each of the other matters on which the applicant sues. As a result of these characteristics, it is more the impression conveyed by each of the matters that is important, rather than any deep analysis of the individual words that made up the items.

20. The overall impression conveyed by the first matter was to inform the reader of the existence of disputation in the Orthodox Jewish community in relation to a decision to have Mr Pollard, a convicted spy, speak at a Jerusalem Day event. On the one hand, Rabbi Genende and Mr Jeremy Leibler were presented as opposing the decision. Against that, Dr Lamm, who was said to have extended the invitation to Mr Pollard, was presented as defending the decision.

21. The imputations alleged by the applicant in relation to the first matter were not conveyed to the ordinary reasonable reader. As I have mentioned, the focus of the article is on the existence of a controversy, or “uproar” in the Orthodox Jewish community as a result of Dr Lamm inviting Mr Pollard to speak at an event which the applicant agreed to host. Mr Pollard is described in the article as a controversial figure. Controversy attracted controversy. Two sources of that controversy were identified: Rabbi Genende who described the proposal as “misguided and potentially damaging” and in respect of whom a “rift” was said to have resulted; and Mr Jeremy Leibler who said that one had to question the judgment of selecting Mr Pollard as a keynote speaker for the event.

22. While the article identified the existence of an issue relating to the wisdom of having Mr Pollard speak at the Jerusalem Day event, and identified points of disagreement about the event, it did not convey to the ordinary reasonable reader that the applicant agreed to host the event without consultation. This is a necessary element running through each of the imputations alleged by the applicant in relation to the 5 May 2021 print article. But the article says nothing about whether consultation was required, or expected, or took place. If anything, the article conveys that there was consultation between Dr Lamm and the applicant. Whether that level of consultation was sufficient, or appropriate, or not, is not something upon which the article touches. The applicant submitted that the references in the article to fingers being pointed, and Rabbi Genende firing off an angry missive, supported an element of the imputations that the applicant did not appropriately consult. This is a very long stretch. Nor would the ordinary reasonable reader understand the first matter as conveying the strident elements of the rolled‑up imputations relating to the applicant’s character that are alleged, involving recklessness and the charge that the applicant is a disruptive person. The meanings conveyed by the matter, so far as they concern the applicant, impugn his judgment. However, a bare imputation concerning the applicant’s judgment is not a meaning which is fairly within the applicant’s pleaded case.

1. While I am on this topic, ss 35(2A) and (2B) of the Defamation Act provide for “aggravated damages” in the following terms –

   (2A)Subsection (1) does not limit the court’s power to award aggravated damages if an award of aggravated damages is warranted in the circumstances.

   (2B)An award of aggravated damages is to be made separately to any award of damages for non-economic loss to which subsection (1) applies.

2. The object of these provisions is that the maximum damages amount does not preclude an award of “aggravated damages” on top of an award of damages for non-economic loss to which the limit in s 35(1) applies. I do not construe these provisions as requiring that a separate award of “aggravated damages” must be made in any case where aggravating conduct contributes to the harm suffered by an applicant which informs the assessment of damages for non-economic loss in the conventional and accepted way. The subsections do not mandate that consequence where the maximum damages amount is not exceeded. Rather, the subsections are concerned with a situation where the maximum damages amount would be exceeded by an award of “aggravated damages”. In that situation, the award must be separate, and the cap does not apply to the separate award of aggravated damages. However, other requirements will apply to an any award of “aggravated damages”, namely the requirement in s 34 that there must be an appropriate and rational relationship between the harm sustained by the applicant and the amount of damages awarded, and the requirement in s 36 that the court is to disregard the malice or other state of mind of the respondents except to the extent that it affects the harm sustained by the applicant.

3. Any conduct of a publisher supporting an award of increased damages on account of aggravation must be unjustified, improper or lacking bona fides, but does not have to be actionable in itself: Rush at [441]. Damages on account of aggravation may be founded upon conduct of a respondent that occurs after publication, such as in the course of litigation. The conduct of a defence to a defamation proceeding “may be taken into consideration not only as evidencing malice at the time of publication, or afterwards, as, for instance, filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable”: Triggell v Pheeney (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ); Carson at 65 (Mason CJ, Deane, Dawson and Gaudron JJ). One of the reasons for the threshold referred to in Triggell v Pheeney is the unfairness that would result if proper conduct in the pursuit of a legitimate defence exposed a publisher to increased damages on that account: Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237 (Toohey J), citing Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379 (Samuels JA).

4. There may be many things that an applicant might resent about a defamation proceeding. An applicant might resent that the publisher denies the imputations alleged by the applicant when meaning is usually a triable issue. An applicant might resent the fact that a publisher advances positive defences. An applicant might resent having to give discovery. An applicant might resent the publisher making submissions to the court by way of opposing the applicant’s claim. An applicant might resent giving evidence including by way of cross-examination. Questions in cross-examination might be direct. Lines of defence might misfire. But absent some lack of justification, or impropriety, or lack of bona fides, these ordinary features of litigation do not sound in increased damages on account of aggravation.

5. To make a finding that particular conduct of a publisher, relied on by an applicant in aggravation, increased the harm to an applicant requires evidence. The evidence may be direct evidence, but like any fact in issue, increased harm may be an inference drawn from all the circumstances. Damages on account of aggravation are often awarded for increased hurt to feelings, but they may also be awarded on account of increased damage to reputation or increased injury generally: Lower Murray at [118] (Warren CJ, Tate and Beach JJA). Absent cogent evidence that conduct claimed to be aggravating caused increased harm to an applicant, claims of aggravation have a tendency to slide into impermissible claims of a punitive character which focus on a critique of the conduct of the publisher and its legal representatives rather than the injury suffered by the applicant.

6. In this case, the applicant included in his further amended statement of claim extensive particulars of aggravated damages. These particulars had all the hallmarks of a “kitchen sink” approach to a claim of aggravation. I will not set out the particulars, because they are so lengthy. Many of the claims can be described as lawyers’ points. The particulars included a detailed appraisal of the respondents’ pleading of their defences and convey a level of indignation that the respondents would defend the proceeding. That level of indignation was misplaced in circumstances where there were many contestable issues that have required careful consideration. Those contestable issues start with the applicant’s imputations directed to the 5 May 2021 articles which I have found were not conveyed. They include the respondents’ claim that the applicant did not consult Rabbi Genende in relation to the decision to host Mr Pollard, which had a proper basis in the way it was argued at trial notwithstanding that I have rejected it. The particulars also include a detailed attack on the respondents’ conduct in publishing the matters and in defending the proceeding in circumstances where there were triable issues of primary fact and evaluation.

7. The applicant made sweeping claims in the further amended statement of claim that the respondents had alleged truth and comment defences in their original defence filed 22 July 2022 that were unjustifiable, and claiming that the defences were abandoned. The applicant’s claims in this regard were pleaded as depending upon facts alleged by the applicant in his reply which “if true made the truth defences unjustifiable”, and otherwise by reference to the applicant’s answers to interrogatories and discrete facts admitted by the respondents in response to a notice to admit. All the matters alleged in the particulars in this regard relied to some extent upon acceptance of the applicant’s case to falsify the defences that had been alleged. Further, I do not accept the applicant’s characterisation that all the defences were abandoned. The defences were re-fashioned, but key elements survived. The matters alleged in relation to the respondents’ defences did not provide a secure basis on which to allege aggravating conduct of the respondents in the conduct of the proceeding in circumstances where that conduct must rise to conduct that was unjustifiable, improper, or lacking bona fides in order to support a claim of increased damages.

8. In evidence-in-chief, the applicant was taken to the particulars of the opinions expressed in the matters in support of the defence of honest opinion and fair comment. Those opinions were alleged to include that the applicant was “lacking in judgment”, that the applicant’s decision to agree to host the address by a convicted spy was “reckless” and “autocratic”, that the applicant’s personality was “reckless and “autocratic”, that the applicant failed to undertake “appropriate” consultation, that the applicant was a “disruptive person”, and that the applicant “condones treason”. The applicant gave evidence that he was devastated when he read those particulars of the defence, that it made him feel terrible and worthless, and that he read it as the complete destruction of his reputation. I do not consider that the applicant’s reaction to the respondents’ pleading of their fair comment defence warrants an increase in compensatory damages on account of aggravation. For the large part, the pleaded statements of opinion were responsive to the imputations that the applicant pleaded, some aspects of which I have rejected. There was nothing improper about the respondents pleading at least a common law defence of fair comment based upon objective meanings that were founded upon elements of the applicant’s imputations.

9. The applicant claimed that the pleading and then abandonment by the respondents of the statutory defence of triviality to the 5 May 2021 articles was an aggravating factor. In evidence-in-chief the applicant was taken to this plea and gave evidence that he had read it, and that he was very upset about it, explaining that the matter was serious and not trivial. In circumstances where I have found that the 5 May 2021 articles were not defamatory of the applicant in a meaning pleaded by the applicant, I give no weight to the pleading by the respondents of a defence of triviality as an aggravating factor.

10. The applicant was also taken in evidence-in-chief to a passage of transcript of the opening of senior counsel for the respondents where a paragraph of the 5 May 2021 articles was addressed, submitting –

    We say this paragraph is accurate, your Honour. Mr Mond did agree to host the event, and he did so without consulting Rabbi Genende.

11. The applicant was asked about how he felt when he heard that part of the opening, and he responded by stating that it was not true, and that he had felt sick. Now, there was nothing unjustified or improper about the above submission. Although I have rejected the respondents’ claim that the applicant agreed to host the event involving Jonathan Pollard without consulting Rabbi Genende, there was a proper basis to make the allegation. This was an instance where the applicant felt aggrieved by the content of the respondents’ defence, but by itself that is not sufficient to sound in an increase in compensatory damages on account of aggravation.

12. A claim of aggravation that featured prominently in the applicant’s closing submissions was that the respondents had given an inaccurate and incomplete account in framing assumed facts that were provided to the expert witness, Rabbi Elton. Senior counsel for the applicant clarified in oral closing submissions that no criticisms of counsel or their instructing solicitors were made, but that the criticisms were directed to their clients. I find that the assumed facts given to Rabbi Elton were incomplete, although they did include reference to the applicant’s telephone conversation with Rabbi Genende on 22 April 2021 which was an important component of the case. But the assumptions did not include further telephone conversations between the applicant and Rabbi Genende, or the fact that Rabbi Genende addressed the board of the Congregation at its meeting on 3 May 2021. Why Rabbi Elton was not given the complete statement of agreed facts but only an incomplete summary was not addressed by evidence. However, I am not prepared to find that the conduct of the respondents’ legal representatives in briefing the expert witness was unjustifiable, improper, or lacking bona fides where senior counsel for the applicant disclaimed criticism of them, and where an equally probable explanation is a combination of carelessness, and a failure to think through the consequences in a way that was actually injurious to the respondents’ interests and likely to misfire. It was not in the respondents’ interests to provide Rabbi Elton with an incomplete statement of assumed facts because it was liable to render his opinions inadmissible or at the very least as carrying little weight, which is what has occurred. Moreover, there was no evidence adduced from the applicant that the instructions provided to Rabbi Elton increased his hurt. Further, I do not infer that there was any additional harm caused to the applicant’s reputation in circumstances where this was not put to Rabbi Elton in cross-examination, and where Rabbi Elton had in any event expressed firm views in the public domain about the wisdom of having any association with Jonathan Pollard. In the absence of any cogent evidence that the applicant suffered increased harm on account of the instructions given to Rabbi Elton, this is an example of a lawyer’s point, amounting to little more than a critique of the conduct of the case by the legal representatives of the respondents.

13. The applicant submitted that further grounds of aggravation arose as a result of the respondents’ closing submissions, which “rubbed salt into the wound”. Only one aspect of the respondents’ submissions requires individual consideration. Otherwise, there was nothing in this submission. The respondents’ closing submissions were measured, and were based upon proper material. The suggested indignation of the applicant as a consequence of the respondents’ closing submissions is not a sufficient ground for increasing damages on account of aggravation.

14. The one aspect of the respondents’ closing submissions that I will consider separately is the respondents’ submission in relation to the applicant’s telephone conversation with Rabbi Genende on 29 April 2021. I addressed that submission at [211] above and rejected it, finding that it lacked foundation. However, I do not find that the making of the submission was unjustified, improper or lacking bona fides in the sense required to support a claim of increased damages. Rather, this was an instance of a submission that had an ostensible foundation, but in fact lacked a foundation, and was likely the product of a forensic decision that was ill-conceived and in circumstances where senior counsel for the applicant disclaimed any personal criticism of those acting for the respondents.

15. As for the lengthy particulars of aggravated damages directed to the circumstances of publication, they can be dealt with by addressing the evidence of the applicant. There was very little evidence that was adduced to address the subject matter of the particulars of aggravated damages concerning the process of publication, as distinct from the applicant’s general evidence about the hurt that he suffered as a result of the fact of publication of each of the matters. For instance, the applicant gave no evidence that he suffered additional hurt because Mr Brook did not contact him. Rather, the applicant’s evidence was that he did not speak to journalists. The applicant gave no evidence that he suffered additional hurt because the respondents published the matters in contravention of the Code of Conduct, which was one of the claims made. Other matters relied on in aggravation were just part and parcel of the fact of publication, including the breadth of publication, the tone of the articles, and the fact that the sources were not disclosed. The applicant claimed that the publication of the matters was part of a campaign by the respondents against the applicant. This was not put to Mr Brook in cross-examination. The applicant claimed that the respondents were motivated by profit, which having regard to s 36 of the Defamation Act I do not regard as an aggravating feature of the act of publication because that state of mind did not increase the harm suffered by the applicant. The applicant claimed that the respondents’ failure to apologise and remove the articles from online access, or to make any offer of amends in response to the concerns notice were aggravating factors. In circumstances where I have found that the 5 May 2021 articles were not defamatory of the applicant in the way claimed, and where there were tenable defences to the publication of the other matters, and a tenable defence that the applicant failed to show that he suffered serious harm, I do not accept the submission that the failure to apologise and take down the articles were aggravating factors.

    The assessment of damages

16. Although I give little weight to the applicant’s claims of aggravation, it is important to emphasise that the hurt that the applicant suffered as a result of the publication of the 13 December 2021 and 18 February 2022 articles is a matter for compensation, and I do take significant account of it.

17. There are issues that arise in relation to whether the hurt that the applicant suffered as a result of the publication of the articles and about which he gave evidence can be disentangled from other potential causes. Disentanglement issues might also be said to arise in relation to other things that were liable to have caused the applicant anxiety and hurt, such as other publications concerning the hosting of Mr Pollard, the new board’s apology to Mr Slonim which the applicant said in cross-examination reflected badly upon him, Rabbi Rabin’s failure to acknowledge the applicant at his inauguration, and Rabbi Rabin’s statement to the applicant about the reactions of people when he mentioned the applicant’s name. However, the applicant was not cross-examined about the effect of these other circumstances on the hurt, anxiety, depression, and feelings of doom about which he gave evidence, and therefore I give them little weight: see Purkess v Crittenden (1965) 114 CLR 164.

18. The applicant gave evidence about the effects of the publication of the 5 May 2021 articles upon him. As a result of those articles he experienced feelings of unhappiness, he felt dispirited, and said that he ceased attending the Shule after he finished his presidency. He felt that there were people unhappy about him as a result of what was reported. Others observed the applicant’s unhappiness. Mr Barry Mond, Ms Mihalovich, and the applicant’s wife gave evidence about their observations of the applicant’s level of upset. The applicant perceived that the 5 May 2021 articles caused medical conditions for which he attended upon his local doctor and specialists. He was later diagnosed as suffering from depression and anxiety.

19. The publication of the 13 December 2021 and 18 February 2022 articles aggravated the hurt and anxiety from which the applicant was already suffering. The applicant is entitled to compensation for this aggravation.

20. As a result of the publication of the 13 December 2021 articles the applicant was observed by Ms Mihalovich to be very anxious, upset, and uptight, and she heard him express a belief that the articles were an unfair portrayal of everything. Mr Barry Mond gave evidence that a few days after the publication the applicant did not attend work, and had been unable to get out of bed, citing depression. Mrs Mond said that the 13 December 2021 articles made the situation worse, and that she overheard the applicant speaking about it to others. Mrs Mond heard the applicant crying. It affected their social life. The applicant became forgetful, angry and could not cope.

21. Mrs Mond described the 18 February 2022 articles as the nail in the coffin, giving evidence that the applicant was not the same person. Mrs Mond was extremely upset in giving this evidence. Mr Barry Mond perceived that the applicant was upset about what The Age was doing to the applicant, and was shocked to hear that the applicant had been seeing a psychiatrist, although the applicant did not give evidence as to this. Nor did the applicant give evidence that he was undergoing any treatment, such as by medication, to treat any of his conditions. Ms Mihalovich gave evidence that the applicant was really consumed with being upset and anxious about the continuous slurs at the end of his presidency of the Congregation that were occurring in a public forum.

22. The three sets of articles generally had significant effects on the applicant’s relationship with his wife and family. He became socially withdrawn. He had feelings of anxiety and doom. He had other physical symptoms that persisted that he attributed to the publications, including feelings of dizziness for which he consulted a specialist in March 2023. The effect of the 13 December 2021 and 18 February 2022 articles was to exacerbate and prolong the feelings of depression and hurt that the applicant was experiencing as a result of the 5 May 2021 articles in the context of other events. I take account of the aggravating effect of the 13 December 2021 and 18 February 2022 articles on the applicant’s situation.

1. The respondents submitted that the applicant had delayed in commencing proceedings, and had served a concerns notice only shortly prior to the expiry of the 12 month limitation period. The respondents submitted that this was evidence that the applicant was not unduly troubled by the articles, citing Rader at [22]. There are three significant problems with this submission. The first is that the idea that the applicant was not unduly troubled by the articles is against the weight of the evidence. The second is that this was never put to the applicant in cross-examination. The third is that the respondents’ citation of Rader is misplaced. What the respondents cited from Rader was the consideration of a factual issue that went to whether delay was relevant to the evaluation of whether serious harm had been demonstrated in that case. Findings of fact in other cases are not precedents: Teubner v Humble (1963) 108 CLR 491 at 503 (Windeyer J), cited in Bus v Sydney County Council (1989) 167 CLR 78 at 89 (Mason CJ, Deane, Dawson and Toohey JJ).

2. The applicant is entitled to an award of damages by way of vindication. In relation to the 13 December 2021 articles, they conveyed that the applicant had failed to consult Rabbi Genende in relation to deciding to host a speech by a convicted spy, which I have found was false. That sting contributed to the overall impression conveyed by the articles that the applicant had caused trouble at the Caulfield Shule which still lingered, and which in combination with the reference to the negative and unfair email about Mr Slonim was a foundation for the cutting remark at the end of the articles which questioned the applicant’s emotional intelligence. Now, in assessing damages I do take account of my finding that the applicant’s email about Mr Slonim was negative and unfair: see the discussion in ABC v Wing at [89]–[93]. The award of damages should not accommodate vindication of that element of the articles. But the justification of that element is not a defence to the publications. The false reference to the failure to consult Rabbi Genende was a contributing component to a publication that was disparaging and mocking of the applicant in relation to his work as president of the Caulfield Shule which was such a significant part of his life, and to which he had devoted so much time and energy.

3. The applicant is also entitled to have his reputation vindicated in relation to the publication of the 18 February 2022 articles. Those articles repeated the false claim that the applicant did not consult Rabbi Genende in relation to the decision to host a speech by a convicted spy resulting in a rift. That claim was linked to the impression conveyed by the articles that the applicant’s failure to consult contributed to “bad times” and long-lasting divisions. All versions of the article conveyed that impression, but it was particularly clear in the print article as a result of the headline, “RABBI RIFT SEEMS NOT FULLY HEALED”. As with the 13 December 2021 articles, I do take into consideration the fact that one of the stings of the 18 February 2022 articles has been justified, namely the negative and unfair references to Mr Slonim in the August 2021 email. The award of damages should be ameliorated on that account. However, the publication of the whole of the article was tortious, and the applicant is entitled to vindication in relation to the failure to consult sting, and the overall sting that the applicant caused bad times and divisions in the Shule which had endured.

4. The respondents submitted that there were substantial mitigating factors that should be taken into account in assessing damages. The respondents submitted that the applicant courted controversy by agreeing to host a speech by Mr Pollard, and that on the assumption that the Court found that there was consultation with Rabbi Genende, the consultation was not fulsome. The respondents also submitted that the applicant’s 13 August 2021 email that referred to Mr Slonim was condescending, ill-considered, and defamatory, and that it was not surprising that it attracted media attention, and that the fact of the email and the apology were already known to the members of the Caulfield Hebrew Congregation.

5. I have already dealt with the 13 August 2021 email, and I do take it into consideration as a matter in mitigation of damage. As for the other matters urged by the respondents in mitigation of damage, I do not see that by agreeing to host Mr Pollard that the applicant brought upon himself an attack of the type made in the 13 December 2021 and 18 February 2022 articles. Nor do I consider that a sting that the applicant failed to consult with the Rabbi resulting in a rift is mitigated by the suggestion that there might have been more consultation than there was. The applicant certainly invited controversy and invited the critical opinions that were reported in the 5 May 2021 articles, but the personal nature of the attacks on the applicant in the latter articles were a step too far.

6. The applicant’s written closing submissions annexed a table of damages awarded in other cases over the last few years. There is little utility in looking at awards of damages in other cases and drawing comparisons. Damage to reputation is not a commodity having a market value. No two cases are truly comparable, and one award is never really a precedent for another case: see Rogers at [66] and [69] (Hayne J, with whom in relation to the question of damages, Gleeson CJ and Gummow J at [35] agreed). Further, judgments about damages “are not to be overborne by what other minds have judged right and proper for other situations”: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125 (Barwick CJ, Kitto and Menzies JJ). In addition, assessments of damages in previous cases are of limited value for the further reason that the maximum damages amount in s 35(2) of the Defamation Act since 1 July 2021 has the effect of creating a scale with the maximum amount reserved for the most serious case, where no scale imposed by statute previously existed.

7. Taking account of the statutory provisions to which I referred at [491]–[496], the extent of publication, and all the inextricable considerations to which I have referred above including the mitigating factors, I assess the applicant’s damages in the global sum of $120,000.

   Conclusions

8. There will be judgment for the applicant against the respondents in the sum of $120,000 plus statutory interest.

9. I will hear the parties on the calculation of interest, costs, and the remedy of permanent injunction that is sought by the applicant.

I certify that the preceding five hundred and thirty-two (532) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

Associate:

Dated: 8 May 2025

FIRST SCHEDULE

5 MAY 2021 ARTICLES

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Uproar over invitation to convicted spy

1.Melbourne’s Orthodox Jewish community is in uproar after a convicted spy was invited to be the keynote speaker at an event on Sunday marking the annual Jerusalem Day.

2.Fingers are being pointed at two senior members of the Orthodox community after Johathan Pollard, a US citizen who spied for Israel and other countries and served 30 years in jail, was invited to deliver an online address to mark the anniversary of the reunification of the Old City of Jerusalem during the 1967 Six-Day War.

3.Pollard, who emigrated to Jerusalem after his release from the US, is a polarising figure in Jewish circles.

4.He was invited to speak by prominent dentist Danny Lamm, outgoing president of Synagogue Mizrachi in Caulfield.

5.David Mond, the former Victorian Liberal Party treasurer who is president of the board of Caulfield Shule, agreed to host the event, prompting a rift with Rabbi Ralph Genende, the senior Caulfield Shule rabbi, who fired off an angry missive describing the action as “misguided and potentially damaging”.

6.The controversy has gone global, with Jeremy Leibler, president of the Zionist Federation of Australia, telling Israel’s Haaretz newspaper that “one has to question the judgment of selecting him as a keynote speaker for such an event”.

7.Lamm told CBD that he invited Pollard to speak at a religious event. “My invitation to him was not a political message whatsoever. On the basis of his love of Jerusalem, I invited him to speak”.

ONLINE ARTICLE

Orthodox uproar over invitation to convicted spy

1.Melbourne’s Orthodox Jewish community is in uproar after a convicted spy was invited to be the keynote speaker at an event on Sunday marking the annual Jerusalem Day.

2.Fingers are being pointed at two senior members of the Orthodox community after Jonathan Pollard, a US citizen who spied for Israel and other countries and served 30 years in jail, was invited to deliver an online address to mark the anniversary of the reunification of the Old City of Jerusalem during the 1967 Six-Day War.

3.Pollard, who emigrated to Jerusalem after his release from the US, is a polarising figure in Jewish circles.

4.He was invited to speak by prominent dentist Danny Lamm, outgoing president of Synagogue Mizrachi in Caulfield.

5.David Mond, former Victorian Liberal Party treasurer who is president of the board of Caulfield Shule, agreed to host the event, prompting a rift with Rabbi Ralph Genende, the senior Caulfield Shule rabbi, who was not consulted and fired off an angry missive describing the action as “misguided and potentially damaging”.

6.“It sends a message to the Jewish community and especially to young Jews, that it is acceptable to betray one’s country, one’s staunchest ally and friend.”

7.The controversy has gone global, with Jeremy Leibler, president of Zionist Federation of Australia, telling Israel’s Haaretz newspaper that “one has to question the judgment of selecting him as a keynote speaker for such an event”.

8.Lamm told CBD that he invited Pollard to speak at a religious event. “My invitation to him was not a political message whatsoever. On the basis of his love of Jerusalem, I invited him to speak.”

SECOND SCHEDULE

13 DECEMBER 2021 ARTICLES

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Trouble across the board in Caulfield

1.As one bystander puts it: “The fun at Caulfield Shule never ends.”

2.When last we caught up with the synagogue in May, CBD noted a rift between board president David Mond, a former Victorian Liberal Party Treasurer, and Senior Rabbi Ralph Genende, over Mond’s lack of consultation in deciding to host a speech by a convicted spy.

3.Now both men have moved on, and Rabbi Daniel Rabin is in charge, while the board president is Howard Zeimer.

4.But the impact of Mond’s previous actions lingers. In August, he emailed Shule members and detailed his pride at his achievements as president over the previous three years.

5.But as a result of that missive, last week the board of Caulfield Hebrew Congregation was forced to issue an extraordinary apology to member Adam Slonim.

6.“These references to Mr Slonim were negative and unfair and shouldn’t have been included in the email,” the board said.

7.“The board wishes to apologise to Mr Slonim for this and express its sincere regret for any hurt or embarrassment caused.”

8.Sounds like lawyers at 10 paces, but neither Slonim nor CMC chief executive Rachel Mihalovich would comment. What a mess for President Zeimer to clean up.

9.Incidentally, Slonim is an adjunct fellow at Victoria University, and founder of Blended Learning Group, which “assists organisations with leadership through emotional intelligence”. Presumably, he is available for hire.

ONLINE ARTICLE

Trouble across the board at Caulfield Schule

1.As one bystander puts it: “The fun at Caulfield Shule never ends.”

2.When last we caught up with the synagogue in May, CBD noted a rift between board president David Mond, a former Victorian Liberal Party treasurer, and Senior Rabbi Ralph Genende, over Mond’s lack of consultation in deciding to host a speech by a convicted spy.

3.Now both men have moved on, and Rabbi Daniel Rabin is in charge, while the board present is Howard Zeimer.

4.But the impact of Mond’s previous actions lingers. In August, he emailed Shule members and detailed his pride at his achievements as president over the previous three years.

5.But as a result of that missive, last week the board of Caulfield Hebrew Congregation was forced to issue an extraordinary apology to member Adam Slonim.

6.“These references to Mr Slonim were negative and unfair and shouldn’t have been included in the email,” the board said.

7.“The board wishes to apologise to Mr Slonim for this and express its sincere regret for any hurt or embarrassment caused.”

8.Sounds like lawyers at 10 paces, but neither Slonim nor CHC chief executive Rachel Mihalovich would comment. What a mess for president Zeimer to clean up.

9.Incidentally, Slonim is an adjunct fellow at Victoria University, and founder of Blended Learning Group, which “assists organisations with leadership through emotional intelligence”. Presumably, he is available for hire.

THIRD SCHEDULE

18 FEBRUARY 2022 ARTICLES

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RABBI RIFT SEEMS NOT FULLY HEALED

1.Down in the Bagel Belt, Caulfield Shule is attempting to put the bad times behind it.

2.Readers will recall that last May, CBD noted a rift at the synagogue between board president David Mond, a former Victorian Liberal Party Treasurer, and Senior Rabbi Ralph Genende, over Mond’s failure to consult the rabbi over hosting a speech by a convicted spy.

3.Both men moved on, but in December the board of Caulfield Hebrew Congregation was forced to issue an apology to member Adam Slonim after Mond made “negative and unfair” references in his farewell email.

4.Last Sunday Rabbi Daniel Raben had his official induction.

5.Alas, the divisions at the synagogue still exist and attendance wasn’t quite the full house it could have been. Fellow rabbis were thin on the ground. One notable absentee was Raben’s predecessor, Rabbi Grenende. Otherwise engaged some said. A snub, others said. And Rabbi Grenende himself? No comment.

ONLINE ARTICLES (BOTH THE AGE AND SMH)

RENEWAL

1.Down in the Bagel Belt, Caulfield Shule is attempting to put the bad times behind it.

2.Readers will recall that last May, CBD noted a rift at the synagogue between board president David Mond, a former Victorian Liberal Party Treasurer, and Senior Rabbi Ralph Genende, over Mond’s failure to consult the rabbi over hosting a speech by a convicted spy.

3.Both men moved on, but in December the board of Caulfield Hebrew Congregation was forced to issue an apology to member Adam Slonim after Mond made “negative and unfair” references in his farewell email.

4.Last Sunday Rabbi Daniel Raben had his official induction.

5.Alas, the divisions at the synagogue still exist and attendance wasn’t quite the full house it could have been. Fellow rabbis were thin on the ground.

6.One notable absentee was Raben’s predecessor, Rabbi Grenende. Otherwise engaged some said. A snub, others said. And Rabbi Grenende himself? No comment.

FOURTH SCHEDULE

(1)       5 MAY 2021 PRINT ARTICLE

(2)       5 MAY 2021 ONLINE ARTICLE

(3)       13 DECEMBER 2021 PRINT ARTICLE

(4)       13 DECEMBER 2021 ONLINE ARTICLE

(5)       18 FEBRUARY 2022 PRINT ARTICLE

(6)       18 FEBRUARY 2022 THE AGE ONLINE ARTICLE

(7)       18 FEBRUARY 2022 SMH ONLINE ARTICLE

SCHEDULE OF PARTIES

VID 228 of 2022
Respondents
Fourth Respondent:	SAMANTHA HUTCHINSON