O'Brien v Australian Broadcasting Corporation

[2017] NSWCA 338

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338

Hearing dates:

1 May 2017; last submissions 26 May 2017.

Decision date:

18 December 2017

Before:

McColl JA at [1],
Macfarlan JA at [210],
Leeming JA at [227]

Decision:

Appeal dismissed with costs

Catchwords:

DEFAMATION – defences – fair comment at common law – where journalist plaintiff wrote articles published in The Sun Herald reporting cover-up of discovery of toxic substances at levels above health limits on land used by children as a playground – where articles illustrated by photographs of children in playground – where no tests conducted in playground area – where no discovery of such toxic substances on nearby land – where articles criticised by Media Watch programme – where plaintiff pleaded imputations of trickery and irresponsible journalism – whether Media Watch opinion based on proper material for comment

 

DEFAMATION – defences – honest opinion – s 31, Defamation Act 2005 (NSW)

 

DEFAMATION – defences – justification – whether imputations of trickery and irresponsible journalism substantially true – s 25, Defamation Act 2005 (NSW)

DEFAMATION – defences – contextual truth – whether plaintiff’s reputation not further harmed by her defamatory imputations because of substantial truth of contextual imputations – s 26, Defamation Act 2005 (NSW)

Legislation Cited:

Defamation Act 2005 (NSW)
Defamation Act 2005 (Qld)
Evidence Act 1995 (NSW)

Cases Cited:

Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 43; [2001] NSWCA 322
Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421; [2014] NSWCA 369
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232
Derry v Peek (1889) 14 App Cas 337
Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524
Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90
John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541; [2001] NSWCA 434
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68
Nationwide News Pty Ltd v Weatherup [2017] QCA 70
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; [1993] HCA 64
Reader’s Digest Services Pty Limited v Lamb (1982) 150 CLR 500; [1982] HCA 4
Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50

Category:

Principal judgment

Parties:

Natalie O’Brien (Appellant)
Australian Broadcasting Corporation (Respondent)

Representation:

Counsel:
K Smark SC; C Dibb (Appellant)
P W Gray SC; M A Polden (Respondent)

  Solicitors:
Mitry Lawyers (Appellant)
Australian Broadcasting Corporation (Respondent)

File Number(s):

2016/285344

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

New South Wales Supreme Court

Jurisdiction:

Common Law

Citation:

[2016] NSWSC 1289

Date of Decision:

15 September 2016

Before:

McCallum J

File Number(s):

2013/357528

HEADNOTE

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

The appellant, Ms Natalie O’Brien, is an investigative journalist. In July 2013, she wrote two articles published in The Sun Herald reporting the alleged discovery by testing conducted by the Environmental Protection Authority (EPA) of toxic substances on land near the Orica industrial site in Hillsdale, New South Wales (Orica site). The two articles were entitled “Toxic substances found in reserve” (first article) and “Cancer chemicals detected, yet park gets all clear” (second article). Each article was illustrated by a photograph of children playing on play equipment in an area which had not been tested for toxic substances. The first article reported that the EPA had been “accused of covering up the discovery of some of the most poisonous substances on earth at levels well above health limits, alarming residents whose children use the tested area as a playground”. In addition to the photograph, it was illustrated by a graphic depicting a warning sign with a skull and crossbones asserting the EPA tests had discovered specified toxic substances at levels exceeding New South Wales limits.

In the course of conducting her research for these articles, the appellant consulted, relevantly, 3 people. Mr Helps, who she knew did not have scientific qualifications, and also had a commercial interest in the investigation of chemicals contaminating the ground near the Orica site and had displayed animus towards the EPA, his business partner, Mr Brown, an industrial chemist, who had the same commercial interest as Mr Helps, and Dr Lloyd-Smith, a lawyer with no scientific expertise.

On 29 and 31 July 2013, a segment of the Media Watch programme, a programme dedicated to critique of the media, was broadcast by the Australian Broadcasting Corporation (ABC), in which the presenter, Mr Paul Barry, criticised the appellant’s articles. Media Watch asserted that the suggestion in the first article that the EPA tests had been conducted where the children were seen playing in the photograph, was “a little sleight of hand” as the tests had been conducted “some distance away.” Secondly, Media Watch asserted that the central claims of the story were “just wrong” or “false” as could have been discovered by “rely[ing] on experts”, and that the stories were “alarmist” and a shocking beat-up. It asserted all the claims in the graphic were either “wrong” or “false”. Media Watch also quoted experts who described the central claims in the articles as “misleading”, “ridiculous and alarming” and “a complete fabrication”.

The appellant commenced defamation proceedings against the ABC, contending that the programme conveyed three defamatory imputations of and concerning her:

a)   That, as a journalist, she engaged in trickery by representing that tests for toxic substances had been conducted in a children’s playground, whereas she knew that they had been conducted in an area nearby (trickery imputation).

b)   That she created unnecessary concern in the community by irresponsibly failing to consult experts as part of her preparation of an article about toxic substances (irresponsible journalist imputation).

c)   In the alternative to (b), that she acted irresponsibly as a journalist by failing to consult experts as part of her preparation of an article about toxic substances.

The ABC pleaded five defences: truth (s 25, Defamation Act 2005 (NSW) (Defamation Act)); fair comment at common law; honest opinion (s 31, Defamation Act); contextual truth (s 26, Defamation Act); and qualified privilege at common law.

The primary judge held the two imputations were expressions of opinion, which were based on facts truly stated or sufficiently identified within the Media Watch programme, that the opinions were expressed on a matter of public interest, and were objectively fair. Accordingly, her Honour upheld the defence of fair comment at common law and honest opinion. Her Honour indicated her conclusions regarding the remaining defences in the event that her conclusions on the comment defences were found to be incorrect. As to truth, her Honour found that the ABC had established the substantial truth of the irresponsible journalist imputation, but not the trickery imputation. As to contextual truth, the ABC pleaded four contextual imputations (A – D), two of which, A and B, her Honour found to be substantially true and, by reason of them being of “greater seriousness” than the trickery imputation, concluded the appellant’s reputation was not further harmed by the trickery imputation. Finally, her Honour would have rejected the defence of qualified privilege. Her Honour entered judgment for the ABC.

The principal issues on appeal were whether the primary judge erred in:

(i)   finding that the defence of fair comment at common law was established, in particular as to whether the opinions were based on proper material for comment.

(ii) finding that any of the defences of honest opinion pursuant to s 31 of the Defamation Act were made out.

(iii)   finding that the irresponsible journalist imputation was substantially true.

(iv)   holding that the defence of contextual truth was established since, because of the substantial truth of imputations A and/or B, the defamatory imputations of which the appellant complained did not further harm her reputation.

By an amended notice of contention, the ABC, relevantly contended that the primary judge should have found that the trickery imputation was substantially true (issue (v)).

Held, dismissing the appeal with costs:

As to issue (i), per McColl JA (Macfarlan and Leeming JJA agreeing)

(1) For the defence of fair comment at common law to succeed, it is necessary, among other matters, that the matter complained of constitutes opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts: [161].

Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 applied.

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; [1993] HCA 64 cited.

(2) The trickery imputation was based on facts sufficiently stated. The first article represented that the playground area that had been tested included the area depicted in the photograph published with the article, for which the appellant was relevantly responsible: [162] – [166].

(3) The irresponsible journalist imputation was based on facts sufficiently stated. The appellant failed to consult independent experts as part of her story and made assertions that were factually wrong which created unnecessary concern in the community: [167] – [168], [182] – [195].

(4) The primary judge did not err in finding that the ABC established the fair comment defence: [170], [195], [210].

As to issue (ii), per McColl JA (Macfarlan and Leeming JJA agreeing)

(1) For the reasons set out in respect of the defence of fair comment, the challenge to the defence of honest opinion also failed: [169] – [170], [210].

As to issue (iii), per McColl JA (Macfarlan and Leeming JJA agreeing)

(1) In order to establish the imputations were substantially true, the ABC had to establish that every material part of each was true, that is to say, that it was true in substance and in fact. This did not mean it had to prove the truth of every detail of the words established as defamatory, rather the defence of substantial truth is concerned with meeting the sting or stings of the defamation: [172].

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 applied.

(2) The primary judge did not err in finding the ABC had established the substantial truth of the irresponsible journalist imputation. The appellant failed to consult independent experts and created unnecessary concern in the community: [182] – [195].

As to issue (iv), per Macfarlan JA (Leeming JA agreeing)

(1) The distinction between the contextual imputation and the defamatory imputation is significant. The distinction is one between different “sectors” of the appellant’s reputation. A severe blow to one sector may not necessarily affect another: [224] – [225].

Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 43; [2001] NSWCA 322; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232; Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 referred to.

(2) The contextual imputation damaged the appellant’s competence, whilst the trickery imputation damaged the appellant’s honesty. The trickery imputation further harmed her reputation beyond that caused by the substantially true contextual imputation. The primary judge should have held that the defence of contextual truth had failed: [223] – [227].

As to issue (iv), per McColl JA (dissenting)

(1) A contextual imputation must be carried by the matter complained of in addition to the defamatory imputations of which the plaintiff complains (s 26(a)) and differ in substance from the plaintiff’s defamatory imputations: [199].

Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329 applied.

(2) The requirement in s 26(b) to prove no further harm to the plaintiff’s reputation focuses on the facts, matters and circumstances which establish the substantial truth of the contextual imputations. This requires the tribunal of fact to weigh or measure the relative worth or value of the several imputations contended for by both parties. The defence will fail if the plaintiff’s imputations would still have some effect on his or her reputation notwithstanding the effect of the substantial truth of the defendant’s contextual imputations: [200] – [201].

Nationwide News Pty Ltd v Weatherup [2017] QCA 70; John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541; [2001] NSWCA 434; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 applied.

(3) The appellant’s reputation as a journalist would be more gravely affected by the contextual imputation than by the defamatory imputations. The ABC established that the appellant’s imputations did not further harm her reputation: [207] – [208].

As to issue (v), per Macfarlan JA (Leeming JA agreeing)

(1) The imputation of “trickery” involved some element of dishonesty or an intention on the appellant’s part to mislead her readers. Consideration of the substantial truth of the trickery imputation should accordingly be approached on that basis: [211].

(2) The primary judge’s findings as to the appellant’s state of mind, namely, that the ABC had not proved that the appellant acted dishonestly or with an intent to mislead, were credit-based findings. A successful challenge to such findings would need to demonstrate that they were contrary to “incontrovertible facts or uncontested testimony”, “glaringly improbable” or “contrary to compelling inferences”. This Court must have regard to the gravity of the contrary finding that her Honour was asked by the ABC to make, namely that the appellant had acted dishonestly or with an intention to mislead: [214].

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 (NSW), s 140 applied.

(3) The ABC failed to establish that the primary judge’s finding in respect of the trickery imputation was glaringly improbable or satisfied any of the other tests stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. It was open to the primary judge to find that the misrepresentation made by the appellant’s article of 7 July 2013 resulted from her “inattention to important detail and exuberance for a good story”, rather than dishonesty or an intent to mislead: [220], [227].

As to issue (v), per McColl JA (dissenting)

(1) The primary judge concluded that in order to establish the substantial truth of the trickery imputation, the ABC would have to establish some element of dishonesty or an intention on the appellant’s part to mislead her readers. By analogy with the tort of deceit, such conduct could be established by establishing that she made the representation referred to in the trickery imputation recklessly, careless whether it be true or false: [174].

Derry v Peek (1889) 14 App Cas 337; Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 referred to.

(2) There was clear and cogent proof that the appellant had conducted herself in the manner the ABC contended. The primary judge’s finding to the contrary was made in the face of incontrovertible facts establishing that proposition, or, at least, was “contrary to compelling inferences”. Her Honour took into account irrelevant matters in determining the substantial truth of the trickery imputation and failed to take into account relevant matters. The primary judge should have been satisfied that by writing the first article and arranging for it to be published with a photograph of children in the play equipment area, and a caption which reflected the article, the appellant engaged in trickery as a journalist: [173] – [181].

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 (NSW), s 140 applied.

Judgment

Statement of the case - paragraph 2

Factual background - paragraph 17

Primary judgment - paragraph 32

Fair comment at common law - paragraph 37

Honest opinion under s 31 of the Defamation Act - paragraph 44

Truth - paragraph 47

Trickery imputation - paragraph 48

Irresponsible journalist imputation - paragraph 53

Contextual truth - paragraph 83

Other defences - paragraph 93

Issues on appeal - paragraph 94

Appellant’s submissions

Fair comment at common law: grounds 1 and 3 - paragraph 101

Trickery imputation - paragraph 102

Irresponsible journalist imputation - paragraph 114

Honest opinion: ground 4 - paragraph 116

Contextual truth: ground 8 - paragraph 117

Truth: ground 9 - paragraph 122

ABC’s submissions

Fair comment at common law: grounds 1 and 3 - paragraph 128

Trickery imputation - paragraph 129

Irresponsible journalist imputation - paragraph 134

Honest opinion: ground 4 - paragraph 136

Contextual truth: ground 8 - paragraph 137

Truth: ground 9 - paragraph 139

Notice of contention: truth of the trickery imputation - paragraph 145

Appellant: notice of contention submissions - paragraph 157

Consideration: fair comment at common law - paragraph 161

Trickery imputation: facts sufficiently stated - paragraph 162

Irresponsible journalist imputation: facts sufficiently stated - paragraph 167

Honest opinion - paragraph 169

Comment: conclusion - paragraph 170

Consideration: truth - paragraph 171

Trickery imputation - paragraph 173

Irresponsible journalist imputation - paragraph 182

Truth: conclusion - paragraph 196

Consideration: contextual truth - paragraph 197

Orders - paragraph 209

Substantial truth of the trickery imputation - paragraph 211

Contextual truth - paragraph 221

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

1. McCOLL JA: The appellant, Ms Natalie O’Brien, an investigative journalist, appeals from a judgment of McCallum J who found in favour of the respondent, the Australian Broadcasting Corporation (ABC), in defamation proceedings the appellant commenced in respect of allegedly defamatory comments made in a segment of the Media Watch programme presented by Mr Paul Barry. Her Honour held that the matter complained of was defensible as fair comment on a matter of public interest and honest opinion under s 31 of the Defamation Act 2005 (NSW) (Defamation Act), entered judgment in favour of the ABC and ordered the appellant to pay its costs. [1]

   1. O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289.

Statement of the case

2. As the primary judge said:

“[T]he Media Watch programme is dedicated to critique of the media, promoting itself as ‘Australia’s leading forum for media analysis and comment’. Its website boasts ‘an unrivalled record of exposing media shenanigans’ since the programme first went to air in 1989.” [2]

2.    Primary judgment (at [1]).

3. The segment of Media Watch on which the appellant sued was broadcast twice on ABC television (on 29 and 31 July 2013) to estimated audiences of 1.142 million and 69,000 respectively. A video and a transcript of the broadcast were also placed on the ABC’s website and remained on that site at the time of trial. [3] The appellant’s legal representatives downloaded the transcript from the ABC’s website, annotated it with paragraph numbers and annexed it as a schedule to the statement of claim. The transcript included a heading “Scary toxic beat-up” which did not appear in the audio-visual form of the matter complained of. The primary judge held that that difference did not affect the question of the meanings conveyed by the matter complained of. [4] It is annexed as Schedule 1 to these reasons. [5]

   3.    Ibid (at [3]).

   4.    Ibid (at [28]).

   5.    Throughout the episode of Media Watch, Mr Barry recited, relevantly, passages from both articles written by the appellant. The quoted passages are italicised in the transcript in Schedule 1 and are accompanied by a reference to their source and date of publication. The paragraph numbers are set out in bold.

3. The matter complained of criticised two articles written by the appellant and published in The Sun Herald, one on 7 July 2013 entitled “Toxic substances found in reserve” (first article), the other on 14 July 2013 entitled “Cancer chemicals detected, yet park gets all clear” (second article). The articles reported the alleged discovery by testing conducted by the Environmental Protection Authority (EPA) of toxic substances on land near the Orica industrial site in Hillsdale (Orica site) in New South Wales. The primary judge described the area as follows:

“[12]   It is necessary to explain the geography of the area in question. Denison Street in Hillsdale runs north/south, roughly parallel to Rhodes Street. On the west side of Denison Street is the Orica industrial site. On the east side of Denison Street is a residential area bounded on the north by a long stretch of land which, for present purposes, may be described (loosely) as a huge battle axe shaped block. Adopting that description, the handle of the axe is a long stretch of grassed land owned by Sydney Water and leased to Botany Council (referred to as the ‘Sydney Water easement land’). The Sydney Water easement land runs between Denison Street and Rhodes Street. The axe-head is a separate piece of land known as ‘Grace Campbell Reserve’ owned by Botany Council, within which there is a child play equipment area.

[13]   The southern end of Grace Campbell Reserve abuts Grace Campbell Crescent, which falls roughly half-way between Denison Street and Rhodes Street. To be clear, it is important to note that the play equipment area is wholly contained within Grace Campbell Reserve (the land owned by Botany Council). Grace Campbell Reserve is separate from but adjacent to the much larger and longer area known as the Sydney Water easement land. However, there are no dividing fences between those areas.”

5. Each article was illustrated by a photograph of children playing on play equipment in an area clearly demarcated from its surrounds as a children’s playground area by the presence of a slippery dip, climbing apparatus and monkey bars. No tests for toxic substances had been conducted in that area. In the first article, the photograph of the children was approximately as large as the text of the article itself.

6. Media Watch made two broad criticisms: one directed to the appellant’s articles and the other to two television stations, which, essentially, uncritically repeated the first article in news broadcasts on the evening of its publication.

7. Insofar as the articles were concerned, Media Watch asserted that the suggestion in the first article that the EPA tests had been conducted where the children were playing was a “little sleight of hand” as the tests had been conducted “some distance away.” Secondly, Media Watch asserted that the central claims of the story were “just wrong” or “false” as could have been discovered by “rely[ing] on the experts”, and that the stories were “alarmist” and a shocking beat-up. The two television stations were accused of copycat journalism.

8. The appellant contended that the Media Watch programme conveyed the following imputations of and concerning her, each of which was defamatory of her:

“(a)    that, as a journalist, she engaged in trickery by representing that tests for toxic substances had been conducted in a children’s playground, whereas she knew that they had been conducted in an area nearby;

(b)   that she created unnecessary concern in the community by irresponsibly failing to consult experts as part of her preparation of an article about toxic substances;

(c)   in the alternative to (b), that she acted irresponsibly as a journalist by failing to consult experts as part of her preparation of an article about toxic substances.”

I shall refer to these as the “trickery imputation”, the “irresponsible journalist imputation” and the “toxic substances imputation” respectively.

9. In her statement of claim, the appellant particularised the trickery imputation as arising from lines 9 – 14 and 36 – 52 of the matter complained of. She particularised the irresponsible journalist imputation as arising from lines 63 – 67 and 110 – 114 of the matter complained of. Finally, she particularised the toxic substances imputation as arising from lines 51 – 92 of the matter complained of.

10. The ABC pleaded five defences: truth (s 25, Defamation Act); fair comment at common law; honest opinion (s 31, Defamation Act); contextual truth (s 26, Defamation Act); and qualified privilege at common law.

11. As I have said, the primary judge upheld the defence of fair comment at common law and honest opinion. Her Honour also indicated her conclusions regarding the remaining defences in the event that her conclusions on the comment defences were found to be incorrect.

12. As to truth, her Honour found that the ABC had established the substantial truth of the irresponsible journalist imputation, but not the trickery imputation. [6]

    6.    Primary judgment (at [82] – [148]).

13. As to contextual truth, the ABC pleaded four contextual imputations (A – D), two of which, A and B, her Honour found to be substantially true and, by reason of them being of “greater seriousness” than the trickery imputation, concluded the appellant’s reputation was not further harmed by the trickery imputation. [7] Finally, her Honour would have rejected the defence of qualified privilege. [8] Her Honour did not address the question of damages.

    7.    Ibid (at [163] – [164]).

    8.    Ibid (at [165] – [169]).

14. The appellant challenges the primary judge’s upholding of the defences of fair comment and honest opinion as well as her Honour’s findings in support of her conclusions that the ABC had established its defence of truth in respect of the irresponsible journalist imputation and of contextual truth in respect of the trickery imputation. The finding that the contextual imputations were substantially true is not challenged. Rather, the appellant’s challenge to the contextual truth finding is confined to the question whether the trickery imputation did not further harm the appellant’s reputation because of the substantial truth of the ABC’s contextual imputations.

15. By amended notice of contention, the ABC contends the primary judge’s decision should also be affirmed on the basis of her reasons for upholding the defence of contextual truth by reference to contextual imputations A and B. The ABC also contends that her Honour ought to have found that the trickery imputation was substantially true and her decision should be affirmed on that basis as well.

16. For the reasons that follow, I am of the view that the primary judge did not err in upholding the comment defences and, alternatively, that her Honour’s verdict could also be affirmed on the basis of the ABC’s defences of substantial truth and contextual truth. I would dismiss the appeal with costs.

Factual background

17. The appellant mainly writes investigative pieces about the environment, immigration and refugees.

18. In about January 2013 her attention was drawn to the prospect of a story concerning the Orica site by a member of the Greens party, who told her of a “pollution issue” in the Botany area around the Orica site. The appellant then wrote a number of articles concerning the issue. She continued to research the matter further apparently in response to learning of local residents’ frustration with Orica’s response to the issue. The residents were “pushing for off-site testing to be done by someone they perceived to be independent.” [9]

    9.    Ibid (at [5]).

19. In the course of conducting her research, the appellant learnt that a Mr Andrew Helps of Hg Recoveries Pty Ltd, had been asked by the residents to “put together a proposal”. He had provided a “commercial proposal for testing” the area around the Orica site “for any mercury that had travelled offsite from the Orica plant”. She contacted Mr Helps who said he had many years’ experience working in Australia and overseas and that his partner in the business, Mr Ian Brown, was an industrial chemist. She knew that Mr Helps himself was not a chemist. [10] Mr Helps played a pivotal role in informing the appellant about the matters the subject of her two articles. He was not called as witness. Nor were other “experts” the appellant consulted such as Professor Paul Brown or Dr Lloyd-Smith to whom I refer below.

    10.    Ibid (at [6] – [7]).

20. The appellant spoke to Professor Brown in January 2013. She said in her evidence in chief that he had been involved “in the community work and with Orica and that site”. She also said Professor Brown told her he did not want to be quoted, but “felt that he could understand why the residents wanted this testing done and he didn’t think it was unreasonable.” In cross-examination on this issue, she agreed that when she contacted Professor Brown, he advised her, after looking at a proposal she sent him which Mr Helps had prepared about testing the area around the Orica site “for any mercury that had travelled offsite from the Orica plant”, [11] that he was not qualified to comment on the issue.

    11.    Ibid (at [6], [8]).

21. Later in the year, the appellant obtained a quote she included in the first article from Dr Lloyd-Smith who was the “Senior Advisor, National Toxics Network Inc” and a lawyer, not a chemist. The appellant knew Dr Lloyd-Smith had no academic qualification in science and was not a toxicologist. [12]

    12.    Ibid (at [17]).

22. In early 2013, the appellant obtained a copy of a draft scope of work proposal Mr Helps had provided to Hillsdale residents for a preliminary survey of the extent of mercury pollution in the area. In that proposal, Mr Helps suggested a budget of $400,000 for the work (with a $70,000 “mobilisation fee” to be paid prior to the commencement of any work). The primary judge was of the view that, from the preliminary information Mr Helps provided to the appellant, it must have been clear to her that Mr Helps had a commercial interest in securing a retainer to undertake the testing he was proposing for Hillsdale. [13]

    13.    Ibid (at [8]).

23. In about April 2013, Mr Helps and Mr Brown took some soil samples from the nature strip outside the Orica site on behalf of the Hillsdale residents and sent them for testing at a Sydney laboratory. After receiving the results, on 11 April 2013 Mr Helps emailed Mr Gifford, the Chief Environmental Regulator of the EPA, asserting that he had strong evidence to suggest that hexachlorobenzine (HCB), an organic compound, was leaking from the Orica site. [14]

    14.    Ibid (at [9]).

24. According to EPA documents tendered at the trial, the information provided to the EPA by Mr Helps did not include sample locations or other “contextual information”, which made it difficult for the EPA to assess the concerns he raised. Accordingly, the EPA felt compelled to take its own samples in the same area. [15]

    15.    Ibid.

25. Mr Helps also informed the appellant of the results of his tests and spoke to her about writing a story. She said they should wait until the EPA did its testing. [16]

    16.    Ibid (at [10]).

26. On 15 April 2013 the EPA undertook its own tests, taking 15 soil samples to test not only for HCB, but also for other organic substances and metals (including chromium, lead and mercury). The results of these tests were reported by the EPA in a document referred to by the primary judge as the EPA report, presented in list format. [17] An aerial photograph of the area onto which the location of the 15 EPA test sites was superimposed in red formed part of the EPA report (EPA map). It showed all the tests were conducted in the Sydney Water easement land. The EPA map was exhibit K at trial and is Schedule 2 to these reasons. The EPA map was shown during the Media Watch programme (see line 50 of Schedule 1).

    17.    Ibid (at [98] – [99]).

27. In May 2013, the EPA issued a press release informing the public of Mr Helps’ concerns that HCB was present “on the nature strip outside the boundary of Botany Industrial Park, Matraville” (in Denison Street) and the results of its tests in response to those concerns. The press release indicated that the 15 samples it had taken were “well below the national health inspection levels” and that no further investigation was required, but noted that the samples were analysed for “a range of other contaminants” that were detected and referred to Sydney Water for further investigation. [18]

    18.    Ibid (at [14]).

28. The appellant obtained a copy of the EPA map. It showed that the testing was mainly concentrated in the area of Denison Street and on the Orica site on the west side of the street. Six of the EPA samples were taken from the Sydney Water easement land close to Denison Street and some distance away from Grace Campbell Reserve. The primary judge inferred that the reason the EPA tests focussed on that area was that it was the area from which Mr Helps said he had taken his samples on behalf of the residents. [19]

    19.    Ibid (at [15]).

29. Mr Helps and the appellant also obtained a copy of the EPA test results through the freedom of information process. Mr Helps provided the appellant with his analysis of the results, which she believed was prepared with Mr Brown’s help. The appellant discussed this material with Mr Helps and Mr Brown, then attempted to obtain an opinion about the EPA analysis. No one wanted to be quoted, except Dr Lloyd-Smith. [20]

    20.    Ibid (at [16] – [17]).

30. The appellant then wrote the two articles to which I have referred. The primary judge described them in the following terms:

“[18]   …The articles were drawn primarily from the information Ms O’Brien had received from Mr Helps. The first, headed ‘Toxic Substances Found in Reserve’, reported that the EPA had been ‘accused of covering up the discovery of some of the most poisonous substances on earth at levels well above health limits, alarming residents whose children use the tested area as a playground’. Those words alone plainly represented that the tested area is used by local children as a playground.

[19]   The article was illustrated by a photograph of children playing in the play equipment area contained within Grace Campbell Reserve. The caption read, ‘At risk: children play in a park adjacent to Grace Campbell Circuit at Hillsdale, where toxic metals and chemicals were discovered’. That additional material reinforced the representation that the toxic substances were found in a park where children play, as depicted in the photograph.

[20]   Ms O’Brien’s second article, headed ‘Cancer chemicals detected, yet park gets all-clear’ reported on the results of the further testing undertaken by Sydney Water following the publication of the EPA results. The article said that new tests had revealed ‘hotspots of contamination containing two carcinogenic chemicals’. The article concluded by noting, with apparent scepticism, that Sydney Water ‘claimed the area had a ‘clean bill of health’.’” [Emphasis added.]

A copy of the two articles is Schedule 3 to these reasons.

31. The appellant had not seen any children playing on any parts of the Orica site other than in the playground equipment area, prior to the publication of her articles. As I shall explain, it was she who arranged for the children whose photograph was included in her articles to go to the park for that purpose. [21]

    21.    Ibid (at [70]).

Primary judgment

32. At the trial, the appellant was the only witness on liability. She also called two reputation witnesses.

33. The ABC did not call any witnesses. It tendered an export report prepared by Professor Brian Priestly, a research scientist who held a Bachelor of Pharmacology obtained from Sydney University in 1963, a Masters of Pharmacology obtained from Sydney University in 1965 and a PhD obtained from Sydney University in 1968. He had substantial expertise in the area the subject of the proceedings. [22] His report explained the genesis and operation of Australia’s national system for assessing site contamination as set out in a statutory instrument, the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM). The appellant did not object to any aspect of Professor Priestly’s report. Professor Priestly was not required for cross-examination.

    22.    Ibid (at [101]).

34. The primary judge described the Media Watch programme in the following terms:

“[21]   The Media Watch programme made two broad criticisms of the reporting of those matters, the first directed at two television stations that had picked up Ms O’Brien’s first story and run with it; the second directed at Ms O’Brien’s articles.

[22]   The first part of the programme opened with what Mr Barry described as ‘a wonderful example of copycat journalism … which turns out to be the blind leading the blind’. The broadcast showed an image of the opening passage Ms O’Brien’s [sic] ‘exclusive’ story (the first of her two articles) followed by an analysis of two television news items evidently drawn from that article. The main focus of that segment of the programme was to deride the television stations for the formulaic similarity of their stories and their uncritical reliance on Ms O’Brien’s article.

[23]   The first part concluded by quoting the following confused assertion by the journalist from Channel Seven: ‘The EPA admits the soil underneath the playground was never part of the tests’.

[24]   The Media Watch programme then turned its focus to an analysis of Ms O’Brien’s article. The relevant extract is lengthy but it is important to set it out in full:

Now wait a moment. Did you catch that last bit? Let’s just have another listen.

‘[Channel Seven journalist]: The EPA admits the soil underneath the playground was never part of the tests.

‒ Channel Seven News, 7th July, 2013’

The EPA admits the playground wasn’t tested? Shouldn’t that be the Sun-Herald? After all, they did splash the playground picture, which kind of makes you think that might be the story, and the article does say:

‘… children use the tested area as a playground.

‒ Sun-Herald, 7th July, 2013’

But the truth is the tests were conducted some distance away, close to a busy road, as you can see on the map.

And it gets a lot worse than this little sleight of hand, because we believe the central claims of Natalie O’Brien’s story are just wrong.

‘What the tests found

Mercury: Significant levels (NSW limit is zero)

‒ Sun-Herald, 7th July, 2013’

We’re assured that’s wrong.

‘Lead: up to three times the NSW limit

‒ Sun-Herald, 7th July 2013’

We’re assured that is wrong too.

‘Chromium: twice the NSW limit

‒ Sun-Herald, 7th July, 2013’

And we’re assured that that too is false.

So why believe us? Well, for a start we have gone over the figures very carefully. And we think they’re wrong. We’ve also talked to the EPA, that’s the Environmental Protection Authority, and they think they’re wrong.

But best of all, we’ve done what The Sun-Herald should have done which is rely on the experts.

Professor Jack Ng of the National Research Centre for Environmental Toxicology in Queensland told us the Sun-Herald’s claims were:

‘Misleading … and not representative of the test results

‒ Professor Jack Ng, National Research centre for Environmental Toxicology, Statement to Media Watch, 29th July, 2013.’

Professor Wayne Smith, director of Environmental Health in NSW, who is also a professor at Sydney and Newcastle universities went a bit further, telling us The Sun Herald’s claims were:

‘Ridiculous and alarming

‒ Dr Wayne Smith, Director of Environmental Health, NSW Health, Statement to Media Watch, 28th July, 2013’

And adding that the claim that the NSW limit for Mercury is zero was

‘A complete fabrication

‒ Dr Wayne Smith, Director of Environmental Health, NSW Health, Statement to Media Watch, 28th July, 2013’

As soon as the Sun-Herald article was published, the EPA held a press conference and issued a media release denying the claims.

It also wrote a letter to the paper stating that the key claims were not true: that the playground had not been tested and that they had not found mercury, lead and chromium ‘above NSW health limits’.

Their letter was published in the paper next week, but not on page three, and without this summary:

‘The Sun Herald has clearly presented a story which is factually wrong and in doing so has created unnecessary concern in the community.

‒ EPA, Letter to Sun-Herald, 12th July, 2013’

By this stage, 14th July, Botany Council had received results from its own expert report on that playground.

After 182 pages of painstaking analysis it gave the park an all-clear and concluded:

‘… surface soils as present on the Grace Campbell Reserve do not contain levels of environmental contaminants that would be considered to pose a potential health risk to Park users.

‒ City of Botany Council, Environmental Assessment of Surface Soils at Grace Campbell Reserve Hillsdale, 10th July, 2013’

So, collapse of story.

But there was no space for this news in the Sun-Herald.

However, there was room to run the playground picture again under another Natalie O’Brien article reporting that Sydney Water’s experts had also concluded there was nothing to worry about.

Only, that’s not quite how the Sun-Herald spun the story.

‘Cancer chemicals detected, yet park gets all-clear

Alert: Children playing near the Hillsdale park that was tested.

Sun-Herald, 14th July, 2013’

Now there are a lot of dangerous chemicals in the Botany area. And of course residents have every right to be worried.

But they also have a right to media which tell them the truth. And O’Brien’s alarmist articles did not.

The Sun-Herald has still not apologised for this shocking beat up or issued a correction. It should. And it should put it on Page Three where it can be seen.

And as for Channels Seven and Nine who broadcast this scare, here’s an idea. Try checking the facts first to see if they stack up.

If you want to know more on this story, those reports from the EPA, Botany Council and Sydney Water are all on our website. As is the Sun-Herald’s response.

But for now that’s all from me. Goodbye.” [23] [Italics in original.]

23.    Ibid (at [21] – [24]).

35. The ABC denied that the appellant’s imputations were carried by the programme and pleaded that, in any event, they were not defamatory. Her Honour noted that “no submissions were put to support that optimistic contention.” [24]

    24.    Ibid (at [26]).

36. The primary judge found that the matter complained of conveyed the trickery and irresponsible journalist imputations and that both were defamatory of the appellant. [25] Her Honour held that there was no need for the appellant to rely on the toxic substances imputation which was pleaded in the alternative. However, for the purposes of the defence of contextual truth, her Honour was of the view that that imputation was also clearly conveyed. [26]

    25.    Ibid (at [35], [38], [40]).

    26.    Ibid (at [39]).

Fair comment at common law

37. The primary judge identified the following elements of the ABC’s defence of fair comment:

“(a)    that the words in question are an expression of comment or opinion as opposed to a statement of fact;

(b)    that the comment is based on facts truly stated within the matter complained of or else sufficiently identified;

(c)   that the opinion is expressed on a matter of public interest;

(d)    that the opinion is one capable of being held by an honest person on the facts stated or identified.” [27]

27.    Ibid (at [48]).

38. As to (a), in relation to the trickery imputation, the primary judge concluded that the Media Watch programme “conveyed, as fact, that the photograph [in the first article] contributed to the misrepresentation as to the true location of the tests”, [28] and was intended by Mr Barry to be the basis for the remark in which he described that misrepresentation as a “little sleight of hand”. Her Honour continued:

“[58]   Importantly, however, in my view the ordinary viewer would have understood the characterisation of the misrepresentation as a ‘sleight of hand’ to be the presenter’s comment or opinion regarding the nature of the conduct revealed by the facts stated. The sting of the imputation I have found conveyed lies in the allegation of ‘trickery’ deriving from those words. That the tests were not undertaken on the playground equipment area depicted in the photograph is not in contest; the defamatory sting complained of by Ms O’Brien lies in the suggestion that she is to be criticised for deliberately deceiving viewers on that issue by representing otherwise. I am satisfied that the ordinary reasonable viewer (or reader of the transcript) would have understood the attribution of trickery to be conveyed as comment or opinion, not fact.

[59]   Specifically, the reader would have understood the presenter to be stating (as fact) that Ms O’Brien wrote a story about toxic substances found in a park where children play; to be stating (as fact) that the story was illustrated with a photograph of children playing on the play equipment area; to be stating (as fact) that the tests were conducted some distance away from the play equipment area as shown on the map and to be making the comment or expressing the opinion, based on those facts, that her conduct in presenting an article in that form amounted to a sleight of hand or a form of journalistic trickery.”

28.    Ibid (at [56]).

39. The primary judge found the defamatory meanings captured in both the trickery and the irresponsible journalist imputations to amount to comment based on facts truly stated. [29] Her Honour considered the attribution of trickery in imputation (a) to be based on the following facts stated in the matter complained of (which the appellant accepts were a fuller articulation of what her Honour had set out at [59]):

“[72] …

(a)    Ms O’Brien wrote an exclusive story, published in The Sun-Herald on 7 July 2013, which claimed that toxic metals had been discovered in a reserve in Botany Bay;

(b)    the article represented that the metals had been discovered at levels well above health limits;

(c)   the article represented that the metals had been discovered by testing an area used by children as a playground;

(d)   the article represented that the playground area that had been tested included the area depicted in the photograph published with the article;

(e)   in fact, the tests were conducted some distance away from that area, as depicted on the map displayed in the broadcast.”

29.    Ibid (at [76]).

40. Critical to this summary of the facts, were her Honour’s findings that the appellant had arranged for children to attend the area where she understood the testing had been carried out, at a time when a newspaper photographer was to attend, that she wanted a photograph of children playing in the park area, that she appreciated it was likely the article would probably be illustrated by a photograph of children playing in the play equipment area, and that she was intimately involved in the process of obtaining the photographs that illustrated the article, and was responsible for the combination of materials as they appeared in the articles in the sense attributed to her by Media Watch. Her Honour observed, “[p]erhaps most significantly, the caption is entirely consistent with the content of the article written by Ms O’Brien.” [30]

    30.    Ibid (at [66] – [71]).

41. As to the irresponsible journalist imputation, the primary judge was of the view that the matter complained of would have been understood to state as a fact:

“[74] …

(a)   that Ms O’Brien failed to consult experts as part of her preparation of the story;

(b)    that the assertions made in the story (that the metals had been discovered at levels well above health limits) were factually wrong;

(c)   that, by reason of being factually wrong in that way, the story created unnecessary concern in the community.” [31]

31.    Ibid (at [74]).

42. In addition, the content of what “the experts” said concerning the assertions made in the story was set out, as fact, in the Media Watch programme. Accordingly, her Honour concluded that “the ordinary reasonable viewer or reader would understand the presenter to be making the comment, on the basis of those stated facts, that the failure to consult experts was irresponsible and caused unnecessary concern in the community.” [32]

    32.    Ibid (at [75]).

43. The primary judge concluded that each of the facts on which the two imputations were based was true for the reasons her Honour addressed more fully in considering the truth defence and, as I have said, accordingly concluded that the trickery and irresponsible journalist imputations amounted to comment based on facts truly stated. [33] Finally, her Honour found that the comments were objectively fair and related to a matter of public interest. [34] Accordingly, the defence of fair comment at common law was made out in respect of both defamatory meanings. [35]

    33.    Ibid (at [76]).

    34.    Ibid (at [77] – [78]).

    35.    Ibid (at [79]).

Honest opinion under s 31 of the Defamation Act

44. The ABC relied on all three grounds for the defence of honest opinion under s 31 of the Defamation Act, namely that the comment was that of the ABC (s 31(1)), of Mr Barry, being its servant or agent (s 31(2)) and of the experts named in the programme being persons other than the ABC or Mr Barry (s 31(3)).

45. Counsel for the appellant at trial did not submit that, if the defence of fair comment was made out, there was any separate reason as to why the statutory defence of honest opinion should not succeed. Accordingly, for the reasons set out in respect of the common law defence, the primary judge was satisfied that the statutory defence was also made out. [36]

    36.    Ibid (at [80] – [81]).

46. The appellant complains that the primary judge erred in finding that the comment/honest opinion defences were made out. She contends neither the trickery nor the irresponsible journalist imputation was based on facts truly stated within the matter complained of, or else sufficiently identified. In essence, in this respect, the appellant submits that paragraphs [72](d) and [74](a) of the primary judgment are erroneous.

Truth

47. The primary judge held that the trickery imputation was not true, but that the irresponsible journalist imputation was substantially true.

Trickery imputation

48. The primary judge considered that the trickery imputation raised three elements for proof:

“(a)    whether the article represented that tests for toxic substances had been conducted in a children’s playground;

(b)   whether the plaintiff knew that the tests had in fact been conducted in an area nearby;

(c)   whether, in the circumstances, the plaintiff engaged in trickery.” [37]

37.    Ibid (at [84]).

49. Her Honour had no doubt that elements (a) and (b) were satisfied, [38] but could not be persuaded that the appellant had engaged in trickery. [39] As to (a) and (b), her Honour held:

“[85]   I do not have any doubt that the article represented that tests for toxic substances had been conducted in a children’s playground. To repeat the words of the presenter, Mr Barry, ‘they did splash the playground picture, which kind of makes you think that might be the story’. The photograph of the two children playing on the play equipment took up half the space of the article and carried the compelling caption:

At risk: children play in a park adjacent to Grace Campbell Circuit at Hillsdale, where toxic metals and chemicals were discovered.

[86]   The caption is unambiguous. It asserts that toxic substances were discovered in a park and that the photograph shows children playing in that park. The content of Ms O’Brien’s article clearly confirms that impression not only in the words quoted by Mr Barry in the Media Watch programme (‘children use the tested area as a playground’) but also in the balance of the article, the whole focus of which is the accusation that the EPA is covering up its discovery of dangerous substances in an area where children play. The article reports that ‘shocked residents’ knew nothing about the ‘discovery at the Grace Campbell Reserve’; it quotes a resident saying it was ‘disgraceful’ that the discovery had been ‘hidden from residents for so long’; it quotes a ‘local mother’ expressing concern ‘about the effects on children who have been playing at the park’; it includes the warning from Mr Helps that ‘a baby needed to ingest only a pinhead sized piece of soil contaminated with lead for it to cause a major problem’ and the further warning that ‘pregnant women are most at risk’; it includes a further warning from the senior advisor to the National Toxics Network that ‘small children should not be exposed to any levels of the chemicals and metals identified in the EPA test result’ and it concludes by asking why the EPA omitted to test for another ‘serious indicator’. The threat to children playing in the park was the story.

[87]   It is also clear that Ms O’Brien knew the tests had been conducted in an area nearby, not in the children’s playground depicted in the photograph. As already noted, she had a copy of the map which she took with her when she went to visit the site. She undoubtedly knew the precise location of the test sites the subject of the EPA report. She knew that none of those test sites was in the play equipment area depicted in the photographs used to illustrate her two articles.” [Emphasis added.]

38.    Ibid (at [85] – [87]).

39.    Ibid (at [91]).

50. The harder question for determination on the trickery issue was identified by her Honour as being whether the ABC had established as a matter of substantial truth that the appellant engaged in trickery as a journalist. In this context, her Honour “understood the term ‘trickery’ to mean that, in order to establish that she did, the ABC would have to establish some element of dishonesty or an intention on [her] part to mislead her readers.” [40]

    40.    Ibid (at [88]).

51. The primary judge was of the view that resolution of this issue turned not merely on the information in the appellant’s possession, but on an assessment as to what she made of that information at the relevant time. [41] In this respect, her Honour said:

“[89] … On the strength of Ms O’Brien’s evidence, which extended over days, it is my firm impression that, at the time she was preparing the article, she had been persuaded by Mr Helps that the results of the EPA testing revealed real cause for alarm among residents.

[90]   On my understanding of the expert evidence (considered below), that understanding was wrong. However, it is relevant in the assessment whether, in all the circumstances, it can be concluded that Ms O’Brien intended to deceive her readers, that is, whether she deliberately set out to misrepresent the true location of the tested areas.

[91]   I am not persuaded that Ms O’Brien had any such state of mind. Rather, I apprehend she thought her article would convey important information to the public about substances found in an area she regarded to be adequately defined as ‘the park’. It is my impression that Ms O’Brien did not herself analyse or have any real understanding of the EPA report or the regulatory regime; she was content to rely on Mr Helps and Mr Brown for that purpose. Her answer set out above as to what she told the photographer is perhaps telling in that context; she said she thought it would be ‘irresponsible’ to ask the children to pose for photographs at the precise point where the tests were taken because those areas were ‘contaminated’ (that evidence may have entailed a degree of hindsight reasoning; a contemporaneous record suggests that she wanted a photograph of local residents, including children, ‘at the area where the samples were taken’).

[92]   Importantly, I doubt whether Ms O’Brien had any appreciation of the limited significance of the EPA’s findings. She simply accepted, uncritically, the alarmist interpretation put on them by Mr Helps and Mr Brown, who she knew were actively pursuing a lucrative contract to undertake further testing. A factor evidently contributing to her perception of the significance of the results was that she considered the whole of the grassed area made up of the Sydney Water easement land and Grace Campbell Reserve to be an area where children played. She said that she had ‘seen kids kicking their soccer balls off the fences at the back of the park’ in areas which, according to the marks on the map, were close to the tested sites. Whatever the position according to legal title, it was her understanding that the whole area was considered by local residents to be Grace Campbell Reserve. That understanding, together with her lack of understanding of the proper application of the NEPM (addressed below), conduced her to believe that the presentation of the article with a photograph of children playing in ‘the park’ would be fair.

[93]   For those reasons, I am not persuaded that the misrepresentation made by the article concerning the site of the tests was deliberate or mischievous on Ms O’Brien’s part. Rather, it appears to have been due to a combination of inattention to important detail and exuberance for a good story. On that basis, I am not satisfied that the imputation of trickery is substantially true. [Emphasis added; footnotes omitted.]

41.    Ibid (at [89]).

52. The respondent challenges this finding by its amended notice of contention.

Irresponsible journalist imputation

53. The primary judge held that the elements of the irresponsible journalist imputation were:

“(a)   that the plaintiff failed to consult experts as part of her preparation of the article;

(b)   that, in the circumstance, her failure to consult experts was irresponsible;

(c)   that, by reason of those matters, the plaintiff created unnecessary concern in the community.” [42]

The appellant challenges the first of these conclusions, [95](a), which, it will be recalled, is in substance the same as fact [74](a) which she also challenges in the context of the comment defence.

42.    Ibid (at [95]).

54. The primary judge considered that before considering those elements, it was necessary to explain what was required to be understood in order to analyse the significance of the EPA report. This entailed an appreciation of the NEPM. [43] Her Honour described the NEPM as a lengthy document contained in 22 volumes, whose stated purpose was to establish “a nationally consistent approach to the assessment of site contamination to ensure sound environmental management practices by the community which include regulators, site assessors, environment auditors, land owners, developers and industry.” [44] Volume 1 contained an overarching explanation. Schedule B contains general guidelines, and also 9 further schedules which occupy volumes 2 to 21. Schedule B1 provides general guidelines in relation to investigation levels for soil, soil vapour and groundwater in the assessment of site contamination. [45]

    43.    Ibid (at [96], [99] – [100]).

    44.    Ibid (at [105])

    45.    Ibid.

55. The issue at trial concerned the proper interpretation of the EPA results by reference to health investigation levels (HILs). The NEPM established HILs for four different “soil exposure scenarios”: HILA for residential dwellings with gardens or accessible soil, HILB for residential dwellings with minimal access to soil (high rise flats etc), HILC for public open spaces and HILD for commercial/industrial buildings. [46]

    46.    Ibid (at [106] – [107]).

56. The appellant said that she had looked at the NEPM before her first article was published and thought she had downloaded “the whole thing”. The primary judge thought it unlikely that she would have downloaded all 22 volumes, and inferred she may have been referring to schedule B1. Her Honour observed that it would have been difficult to understand the application of the guidelines set out in schedule B1 without also considering at least the overarching explanation contained in volume 1. [47]

    47.    Ibid (at [111]).

57. The primary judge formed the view that the appellant’s answers in cross-examination in respect of the four HILs set out in schedule B1 suggested she did not have a close understanding of their application. Her Honour observed that “[s]he seemed reluctant even to accept their application, even though the position had been clearly explained to her in at least two documents from the EPA.” [48] Each of those explanations pre-dated publication of the first article.

    48.    Ibid (at [112]), [footnotes omitted].

54. In her Honour’s view, the NEPM reflected “highly specialised and complex principles”. Her consideration of it persuaded her “that one would not lightly venture an opinion as to the significance of a report in the form of the EPA report without consulting an independent expert in that field.” [49]

    49.    Ibid (at [113]).

55. In determining whether the appellant failed to consult experts, the primary judge held that the meaning of the irresponsible journalist imputation was informed by the context that the substance of Mr Barry’s accusation on Media Watch was of a failure to consult appropriately qualified, independent experts. [50] Her Honour considered “that those words would have been understood by the ordinary reasonable viewer to mean the kind of well-educated, independent brainiacs who can provide reliable opinions as to the kinds of complex questions addressed in the articles.” [51]

    50.    Ibid (at [115] – [116]).

    51.    Ibid (at [117]).

56. Accordingly, “[u]nderstood in context, the sting of the imputation … [was] not that Ms O’Brien failed to consult any person with any knowledge of that field at all, but that she failed to consult an appropriately qualified, independent expert who would prevent her from misunderstanding the issues upon which she was reporting.” [52]

    52.    Ibid (at [118]).

57. The appellant’s articles quoted Mr Helps and Dr Lloyd-Smith, neither of whom, the primary judge concluded, was “even a scientist, let alone one with appropriate academic qualifications and experience in the specialised field of assessment of site contamination.” The appellant gave evidence that she also spoke to Mr Brown, the industrial chemist who worked with Mr Helps. [53]

    53.    Ibid (at [114]).

58. The primary judge held that the appellant knew that “Mr Helps had been extremely critical of the EPA”, while her Honour’s “own assessment of his correspondence … is that he is very clearly not someone who could conceivably be regarded as having the independence required of a true expert”. [54] Her Honour also held that Mr Brown’s qualifications as an industrial chemist “were simply not at the level required for this task”. Her Honour also held that “that neither Mr Helps nor Mr Brown was an appropriately qualified expert for Ms O’Brien to rely upon for the purpose of her preparation of her articles, particularly the article dated 7 July 2013. Nor was the lawyer, Dr Lloyd-Smith.” [55]

    54.    Ibid (at [120]).

    55.    Ibid (at [121], [123]).

59. In her Honour’s view, informed by Professor Priestly’s report, the information Mr Helps was providing to the appellant prior to the publication of the first article persuaded her that Mr Helps “may have had an inadequate understanding of the chemistry or the regulatory regime (or both).” [56]

    56.    Ibid (at [123]).

60. In her Honour’s view:

“[124]   … It was not wise for an investigative journalist to rest on Mr Helps’s views alone. It is my assessment of the evidence that he was not a reliable source for the assertions made in Ms O’Brien’s articles. I am also satisfied that he did not have the independence required of an expert; he had a commercial interest in talking up the risk of contamination and clearly held the EPA in contempt. Ms O’Brien appears, to a degree, to have been infected by that attitude.”

65. Accordingly, the primary judge held that “in a relevant sense, Ms O’Brien failed to consult experts in the preparation of her articles.” [57]

    57.    Ibid (at [125]).

66. In considering whether the appellant’s failure to consult experts was irresponsible in the circumstances, the primary judge regarded as a significant consideration, that the appellant’s first article was factually wrong in important respects. [58]

    58.    Ibid (at [126]).

67. Her Honour observed that:

“[126] … The main punch of the article was the contention that the EPA had been ‘accused of covering up the discovery of some of the most poisonous substances on earth at levels well above health limits’. As explained in Prof Priestly’s report, that statement was factually wrong in that it misstated the proper application of the NEPM to the results obtained; furthermore, it misconceived the purpose of HILs, which are not ‘health limits’ at all but, rather, conservatively-set criteria used to assess the need for further investigation.”

68. Her Honour also took into account the fact that the first article was illustrated with “a prominent graphic which included an image of a warning sign with a skull and cross bones”. She rejected the appellant’s evidence that the graphic was not prepared by reference to information conveyed to the relevant sub-editors by the appellant, which she in turn had obtained from Mr Helps. [59]

    59.    Ibid (at [127]).

69. The graphic asserted:

“What the tests found:

! Mercury: significant levels (NSW limit is zero)

3 x Lead: up to three times the NSW limit

2 x Chromium: twice the NSW limit. SOURCE: EPA”

70. The appellant accepted that it was wrong to identify the EPA as the source of the information in the graphic. Professor Priestly also explained that each of the individual propositions was wrong. [60]

    60.    See ibid (at [129] – [130]).

71. The appellant refused to accept that, in order to express the views in her article, one would need to know the applicable HIL according to the NEPM. She said:

“I needed to know what the EPA was doing. I’m not the expert, so I had to have a look at what they’d done. I started learning about these levels from the EPA’s press release. I mean, I knew a little bit about it, but when they put that out, I had a look at it, and they said that they’d compared things to ‘residential’, so I thought they had.” [61]

61.    Ibid (at [131]).

72. The primary judge accepted “that the reference in the [EPA] press release to the ‘health-based investigation levels for residential use’ may have created a measure of confusion.” In her Honour’s opinion “[t]hat is precisely the kind of issue as to which it was important and necessary to consult an expert.” [62] She observed:

“[132] … Importantly, the press release also said ‘all 15 results were well below the national health inspection levels and no further investigation is required’. A lay person could not second-guess that statement simply by taking the reference in the press release to ‘health based investigation levels for residential land’, a copy of the EPA results and a copy of the NEPM and nutting it all out. At some point in that analysis, whether one was inclined to accept the contents of the press release or analyse them with scepticism, one would wish to have the benefit of expert assistance. Ms O’Brien’s article openly attacked the EPA’s assertions, levelling an accusation of a cover up. It is the kind of accusation that must be founded on careful, open-minded investigation producing a high level of understanding of the subject matter.” [Emphasis added.]

62.    Ibid (at [132]).

73. The uncontested evidence of Prof Priestly was that the first article, so far as it concerned toxic pollution, was factually wrong. His opinion was:

“The factual errors relate mainly to contentions that levels of toxic chemicals found in the soil samples reported by the EPA represent a health risk to the community, or more particularly to children who may visit playgrounds in the area. The EPA samples appear to have been taken around a road adjacent to the Orica Botany Industrial Park and not, as inferred, in children’s playgrounds in the vicinity. The extent and frequency with which children may play around the roads/verges where the samples were taken is unknown to me. However, the fact that the measured concentrations do not exceed HILC values of the three substances (mercury, lead and chromium), suggest that such exposures would not represent a health risk where children regularly play.

The most important false statement in the article is the contention that there are no ‘safe’ levels of exposure for some of the cited substances and that the reported soil concentrations for three substances (mercury, lead and chromium) exceed health-based ‘limits’. Human health risk assessment (HHRA) processes can establish a ‘safe’ level of exposure for even highly toxic substances. The conservatively set NEPM-derived HILs represent health-based guideline values for soil contamination that are intended to provide guidance on exposure levels that should not produce adverse health effects with a lifetime of constant exposure. The HILs are not ‘health-based limits as such, since they represent a soil-based exposure that, if exceeded, may require further investigation. The use of the term ‘health-based limits’ in the article implies that any exceedance represents an immediate or delayed threat to health, and this is simply not true.” [63] [Bold emphasis in original; italicised emphasis added.]

63.    Ibid (at [136]).

74. The primary judge accepted, as the ABC submitted:

“[137] … that a consideration of those results, as helpfully explained by Prof Priestly, confirms that, with the one exception in the case of a lead result at the far western end of the Sydney Water easement land (near Denison Street), none of the levels obtained in the EPA results was above the HILC level for that substance and most were well below the HILA level for residential dwellings. According to the approach prescribed in the NEPM, a single sample exceeding the applicable HIL would not be significant and, in any event, HILs provide levels, not ‘health limits’. As already noted, they are not accurately described as ‘health limits’. The concentrations found by the EPA do not indicate a health risk to the community or to children.” [Emphasis added.]

75. The primary judge found it difficult to understand why the appellant did not make certain to obtain an independent expert’s comments on Mr Helps’ analysis of the EPA results having regard to the animus he bore towards Mr Gifford, as amply revealed in Mr Helps’ correspondence. While the appellant conceded that his correspondence expressed a negative view of the EPA, Orica and Mr Gifford, she would not accept that Mr Helps was “anti-Gifford”. [64]

    64.    Ibid (at [138]).

76. The primary judge held that the appellant also had information from which she ought to have appreciated that Mr Helps’ expertise had been doubted by others:

“[139] … She knew Orica was critical of his proposal for Hillsdale. She also knew that Orica had requested information about Hg Recoveries’ project experience and credentials but that had not been provided by Mr Helps. She knew from the minutes of the Orica Botany Groundwater Clean-up Project Community Liaison Committee (to which she had access) that, on a number of occasions, Mr Helps had committed to providing information to that committee about results he had obtained from a mercury survey in Bendigo but that Mr Helps had consistently failed to produce those results to the committee, as recorded in several action items in the minutes. Although Ms O’Brien did not attend those meetings, she accepted that she had ‘read somewhere that they were waiting for it, or something like that’.” [65] [Footnotes omitted.]

65.    Ibid (at [139]).

77. In addition, her Honour held that “a close analysis of Mr Helps’ written communications sent to Ms O’Brien ought to have brought home to her the need to check his contentions with an independent expert. Apart from the partisan, at times offensive tone of the correspondence, there were glaring inconsistencies in, for example, his treatment of the HILA level for “mercury” which called for explanation.” [66]

    66.    Ibid (at [140] – [142]), [footnotes omitted].

78. The primary judge found:

“[143]   Finally, Ms O’Brien had a detailed response to the propositions contended for by Mr Helps in an email she received from the EPA on 5 July 2013. In the circumstances, to put the matter frankly, it screamed off the page that Mr Helps’ views were out of line with a substantial number of people who plainly had no less expertise than Mr Helps. Further, as already noted, Mr Helps had a commercial interest in mobilising support for the propositions for which he was contending.

[144]    It is plain from Ms O’Brien’s correspondence that she appreciated the desirability of obtaining an opinion from an independent expert. She made a number of efforts to secure an appropriate contact. Finally, she reverted to Mr Helps for further suggestions.” [Emphasis added; footnotes omitted.]

79. The primary judge concluded “with some regret” that the appellant’s failure to consult an appropriately qualified and independent expert was irresponsible in the circumstances. Her Honour had little doubt that the appellant believed she was being given reliable information by a person experienced in this field. She accepted that, although Mr Helps did not give evidence, there was “every indication in the written material … that he would have presented as a passionate and well-meaning advocate for the residents of Hillsdale.” [67]

    67.    Ibid (at [145]).

80. However, her Honour’s assessment of the appellant’s evidence persuaded her that:

“[146] … she accepted what was said to her by Mr Helps without understanding it herself and without consulting someone who did. In doing so, she lent her good reputation as a journalist to an uninformed or misconceived interpretation of an important report. The article made serious and alarming allegations. On my assessment of the evidence, had Ms O’Brien consulted an expert in the field of site contamination assessment who was truly independent (in place of her uncritical acceptance of the opinions of a man who had a vested interest in whipping up community support for further testing), I think she would have been dissuaded from making those allegations. In the circumstances, I am persuaded to the unhappy conclusion that her failure to consult experts was irresponsible.” [Emphasis added.]

81. The primary judge was also satisfied that “by her failure to consult experts (whose assistance would undoubtedly have modified the message of the article), Ms O’Brien created unnecessary concern in the community. Whilst there is no direct evidence from any particular concerned member of the community, that is the overwhelming likelihood, having regard to the content of the article.” [68]

    68.    Ibid (at [147]).

82. Accordingly, her Honour was satisfied that the irresponsible journalist imputation was substantially true.

Contextual truth

83. In light of her conclusion that the irresponsible journalist imputation was substantially true, but the trickery imputation was not, and in case she was wrong in any of the conclusions she had otherwise reached, the primary judge considered the ABC’s contextual truth defence under s 26 of the Defamation Act which provides:

“It is a defence to the publication of defamatory matter if the defendant proves that:

(a)    the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (‘contextual imputations’) that are substantially true, and

(b)    the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”

84. The ABC pleaded the following contextual imputations:

“A.    The plaintiff published an alarmist article, which falsely stated that the Environment Protection Authority had discovered the toxic metals mercury, lead and chromium at levels well above health limits in an area used as a children’s playground;

B.    The plaintiff created grave concern in the community by publishing an alarmist article which incorrectly claimed that the Environment Protection Authority had discovered some of the most poisonous substances on earth at levels well above health limits, in an area used as children’s playground;

C.    The plaintiff acted unethically as a journalist, by failing to disclose the true location of tests for toxic metals, which she claimed were present at levels well above health limits in an area used as a children’s playground; and

D.    The plaintiff, as a journalist, presented a story about toxic pollution which was factually wrong, and in doing so created unnecessary concern in the community.” [69]

69.    Ibid (at [150]).

85. The ABC asserted that, in addition to the four contextual imputations, it could rely on the toxic substances imputation as a contextual imputation as the appellant no longer relied upon it. The primary judge rejected this submission on the basis that the toxic substances imputation was wholly subsumed in the irresponsible journalist imputation and was therefore not capable of being an “other” imputation arising “in addition to” to the appellant’s imputations, as s 26 requires. [70] The ABC does not challenge this conclusion.

    70.    Ibid (at [152]).

86. The primary judge held that contextual imputations A and B were “plainly conveyed”, but were “in substance the same”. [71] For the reasons explained above in her Honour’s consideration of the truth defence to the irresponsible journalist imputation, she was satisfied that the attribution captured in those imputations was substantially true. [72]

    71.    Ibid (at [153]).

    72.    Ibid (at [154]).

87. As to contextual imputation C, as her Honour had found “the higher meaning (trickery) conveyed”, she was of the view that the attribution of unethical failure to disclose could not be conveyed “at the same time”, as required by s 26. [73]

    73.    Ibid (at [155]).

88. As to contextual imputation D, her Honour held that its defamatory sting was wholly subsumed within contextual imputation B and, accordingly, it could also be put aside. [74]

    74.    Ibid (at [156]).

89. Thus, in summary, her Honour held:

“●   the plaintiff’s imputation (a) (that, as a journalist, the plaintiff engaged in trickery by representing that tests for toxic substances had been conducted in a children’s playground, whereas she knew that they had been conducted in an area nearby) is conveyed, defamatory and not true;

●   the plaintiff’s imputation (b) (that she created unnecessary concern in the community by irresponsibly failing to consult experts as part of her preparation of an article about toxic substances) is conveyed, defamatory and substantially true;

●   the plaintiff’s alternative imputation (c) is not available as a contextual imputation;

●   the defendant’s contextual imputation’s A and B, which are the same in substance, are conveyed and are substantially true. They are that the plaintiff published an alarmist article which falsely stated that the EPA had discovered the toxic metals mercury, lead and chromium at levels well above health limits in an area used as a children’s playground and that the plaintiff created grave concern in the community by publishing an alarmist article which incorrectly claimed that the EPA had discovered some of the most poisonous substances on earth at levels well above health limits in an area used as children’s playground;

●   contextual imputation C is not available as a contextual imputation.

●   Contextual imputation D is not available as a contextual imputation.” [75]

75.    Ibid (at [157]).

90. The primary judge considered what she regarded as inconsistent authority regarding the application of s 26 and, in particular, whether, in considering, because of the substantial truth of the contextual imputations, “the defamatory imputations” do not further harm the appellant’s reputation, “the defamatory imputations” included the irresponsible journalist imputation which the ABC had proved to be substantially true. [76]

    76.    Ibid (at [158]).

91. The primary judge’s view was that it was illogical to allow a plaintiff to meet the contextual truth defence by relying on a plaintiff’s imputation which had been proved substantially true. [77] However, her Honour acknowledged that other courts had reached the opposite conclusion. [78] In the light of the fact that she was only considering the defence of contextual truth against the risk that the conclusion on the defences of comment and honest opinion were incorrect, her Honour did not consider it necessary to resolve that issue and adopted the former approach. Therefore the task became one to consider whether the trickery imputation did not further harm the appellant’s reputation because of the substantial truth of contextual imputations A and B. On this point, her Honour concluded:

did not further harm her reputation.

131.    Primary judgment (at [157]).

204. I appreciate that the primary judge found that in order to establish the truth of the trickery imputation, the ABC would have to establish some element of dishonesty or an intention on Ms O’Brien’s part to mislead her readers. [132] However, that does not mean that in dealing with the issue of contextual truth, the appellant can characterise the trickery imputation as importing dishonesty per se. Such an allegation is fundamentally different from one of trickery. Had the appellant wished to rely upon an imputation of dishonesty, she should have pleaded it. Rather, as I have earlier explained, the appellant particularised the trickery imputation as arising from the first part of the matter complained of, and ending with the reference to “this little sleight of hand”. It had to be understood in that context of the matter complained of.

     132.    Ibid (at [88]).

205. The contextual imputations, on the other hand, as the ABC submitted, are conveyed by the graver allegations in the latter part of the matter complained of, which explains why the “central claims” concerning “toxic metals” set out under the skull and crossbones image on the first article were wrong. While the appellant’s imputations merely refer to “trickery”, “irresponsible journalism” and “toxic substances”, the contextual imputation referred to the appellant as having published an “alarmist” article containing “false” and “incorrect” statements that “some of the most poisonous substances on earth at levels well above health limits” had been discovered by the EPA “in an area used as a children’s playground”.

206. Referencing that discovery to the EPA would clearly have been understood by readers of the first article to lend verisimilitude to its assertions. It was a grave allegation which could only have struck great fear into the minds of readers, both generally and in relation to the health of some of the most vulnerable members of the community: small children seeking fun in a playground where they should find joy, but, by reference to the article, in particular the skull and crossbones, were at risk of death.

207. One can test the impact of the contextual imputation just as much by assessing the impact of the appellant’s imputations by reference to the Reader’s Digest evidence. On that basis too, I would conclude that the appellant’s reputation as a journalist would be more gravely affected by the contextual imputation, than by her imputations. It was clearly more serious than the appellant’s imputations.

208. In my view, for these, as well as the reasons the primary judge gave in upholding this defence, the ABC established that the appellant’s imputations did not further harm her reputation.

Orders

209. I propose that the appeal be dismissed with costs.

210. MACFARLAN JA: I agree with McColl JA that the appeal should be dismissed with costs. I also agree with her Honour’s reasoning, other than in relation to the substantial truth of the “trickery imputation” (plaintiff’s imputation (a)) and the defence of contextual truth.

Substantial truth of the trickery imputation

211. The primary judge concluded that for the ABC to establish that the appellant had engaged in “trickery” it “would have [had] to establish some element of dishonesty or an intention on Ms O’Brien’s part to mislead her readers” (Judgment [88]). Neither in its Notice of Contention nor in its written submissions did the ABC challenge this approach. Nor in its oral submissions did it explicitly do so. Whilst, in the course of the hearing, the bench raised with senior counsel for the ABC the possibility that reckless indifference might suffice, he did not embrace that proposition, at least not in a sufficiently explicit fashion for the Court to regard him as having adopted the point as part of his argument (transcript p 54).

212. In any event, my view is that the imputation of “trickery”, which the parties accept was conveyed by the matter complained of, involved, as the primary judge held, “some element of dishonesty or an intention on Ms O’Brien’s part to mislead her readers”. Consideration of the substantial truth of the trickery imputation should accordingly be approached on that basis.

213. The primary judge observed the appellant giving evidence over the equivalent of about three full hearing days, during which the appellant was subjected to searching cross-examination. Based on that evidence, her Honour concluded that the appellant “had been persuaded by Mr Helps that the results of the EPA testing revealed real cause for alarm among residents” and that the appellant did not “deliberately set out to misrepresent the true location of the tested areas” (Judgment [89] and [90]). Her Honour referred to the appellant’s evidence that she thought “it would be ‘irresponsible’ to ask the children to pose for photographs at the precise point where the tests were taken because those areas were ‘contaminated’” and that the appellant “considered the whole of the grassed area made up of the Sydney Water easement land and Grace Campbell Reserve to be an area where children played” (Judgment [91] and [92]). Her Honour concluded:

“Whatever the position according to legal title, it was her understanding that the whole area was considered by local residents to be Grace Campbell Reserve. That understanding, together with her lack of understanding of the proper application of the NEPM …, conduced her to believe that the presentation of the article with a photograph of children playing in ‘the park’ would be fair.”

214. These findings as to the appellant’s state of mind were credit-based findings. In making them, the primary judge enjoyed a considerable advantage over this Court because her Honour saw and heard the appellant give evidence over a lengthy period. As a result, the ABC has a high hurdle to surmount to successfully challenge the findings. The ABC would need to demonstrate that the findings were contrary to “incontrovertible facts or uncontested testimony”, “glaringly improbable” or “contrary to compelling inferences” (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]). Moreover, in considering whether the ABC has established a basis for setting aside her Honour’s findings, this Court must have regard to the gravity of the contrary finding that her Honour was asked by the ABC to make, namely that the appellant had acted dishonestly or with an intention to mislead (see s 140 Evidence Act 1995 (NSW); Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).

215. The first basis of the ABC’s challenge to her Honour’s findings was that she took into account irrelevant matters, first that the appellant accepted uncritically Mr Helps’ interpretation of the EPA results and secondly that the appellant understood that local residents considered the whole area (including the playground area) to be the Grace Campbell Reserve (written submissions [77]). Whilst the former matter did not focus directly on the critical consideration of whether the appellant intended to misrepresent that tests had been carried out in the play equipment area, it was in my view of some relevance in determining whether the appellant was dishonest or had an intention to mislead. If she did not intend to mislead readers about what the tests showed, a conclusion that she did not intend to mislead them about the related matter of where the tests were conducted could more easily be reached.

216. The latter matter was also relevant, and in fact more directly so. It bore directly on the question of whether, as the primary judge found in Judgment [92], the appellant “considered the whole of the grassed area … to be an area where children played”, rendering an intent on her part to mislead significantly less likely.

217. Secondly, the ABC submitted that the findings are inconsistent with earlier findings of her Honour (which it said were soundly based on the evidence) that the appellant was at least in part responsible for the published photograph and caption. It relied in this context on the appellant’s concession in cross-examination that the published article of 7 July 2013 would have been misleading if it gave the impression that the EPA tests found contamination in the play equipment area (transcript p 263; written submissions [79]-[88]).

218. However, the ABC did not suggest that the appellant conceded that inclusion of the photograph and the caption would have indicated to readers that contamination had been found in the play equipment area, as distinct from in other parts of the large grassed area. Indeed, in cross-examination the appellant expressly rejected the proposition that the article, with its photo, would have conveyed “to readers, or some at least, that the area depicted in the photograph, namely [where] children … [were] on play equipment, was the area where the metals had been found” (transcript p 264). The appellant may have been careless when concerned in the preparation of the article in not appreciating that this is what the article would convey, but without evidence or a finding that she knew that to be the case, the primary judge’s lack of satisfaction that the appellant acted dishonestly or had an intent to deceive was justifiable.

219. In oral argument, the ABC relied on emails that the appellant sent on 9 and 10 July 2013 seemingly acknowledging that the playground area did not form part of the Reserve. However, these emails were written three and four days respectively after the article which was the principal subject of complaint was published in the Sun Herald and after the EPA issued a press statement refuting the contamination claims made in the article. What the appellant said in the emails was therefore no sure guide to her state of mind at the time she wrote the article. It was well open to the primary judge to base her findings on the appellant’s oral evidence.

220. For these reasons, I do not consider that the ABC established on appeal that the primary judge’s finding that the ABC had not proved that the appellant acted dishonestly or with an intent to mislead in respect of the trickery imputation was “glaringly improbable” or satisfied either of the other tests stated in Fox v Percy (see [214] above). I consider that it was open to the primary judge to find that the misrepresentation made by the appellant’s article of 7 July resulted from her “inattention to important detail and exuberance for a good story”, rather than dishonesty or an intent to mislead (Judgment [93]).

Contextual truth

221. The ABC relied upon an alternative defence of contextual truth under s 26 of the Defamation Act. As the primary judge indicated, the issue that arose for determination in relation to this defence was whether the appellant’s imputation (a) (the trickery imputation) did not further harm the appellant’s reputation because of the substantial truth of contextual imputations A and B (Judgment [163]). As her Honour found contextual imputations A and B were in substance the same (Judgment [153]), it is sufficient to set out contextual imputation A, which was as follows:

“The plaintiff published an alarmist article, which falsely stated that the Environment Protection Authority had discovered the toxic metals mercury, lead and chromium at levels well above health limits in an area used as a children’s playground.”

222. The primary judge expressed the following views in relation to the s 26 defence:

“164 Had it been necessary to determine that question, I would have concluded that Ms O’Brien’s reputation was not further harmed by the imputation of trickery conveyed by the reference to a ‘little sleight of hand’ in the representation of a children’s playground as the area that was tested by the EPA. As asserted by the presenter, Mr Barry, the fact that the central claims of Ms O’Brien’s story were ‘just wrong’ made matters ‘a lot worse’. The incorrectness of those central claims was by far the greater focus of the matter complained of and by far the greater focus of the evidence in the proceedings before me. In my assessment, the imputation of trickery, while serious, did not further harm Ms O’Brien’s reputation because of the greater seriousness of Mr Barry’s criticisms of the wrong and alarming assertions made in the article concerning the results of the EPA’s tests.

223. It is clear that contextual imputation A was very serious indeed, that it would have harmed the appellant’s reputation substantially and that it arose out of the central claims in the appellant’s article. However the imputation did not include that the appellant had acted dishonestly or with an intent to mislead, whereas the plaintiff’s imputation (a) (the trickery imputation) did.

224. In my view this distinction between the imputations is significant. It leads me to differ from the primary judge’s conclusion concerning the s 26 defence. Whilst the appellant’s reputation would have been substantially damaged by contextual imputation A, her honesty would not have been impugned by it. As the plaintiff’s imputation (a) did impugn her honesty, I consider that that imputation further harmed her reputation beyond that caused by the substantially true contextual imputation.

225. The distinction to which I have referred is one between different “sectors” of the appellant’s reputation, a distinction well-recognised in other aspects of defamation law (see Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 43; [2001] NSWCA 322 at [16]-[23]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [162]-[186]; Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [29]). Whilst the level of generality at which sectors of reputation should be identified will in some cases be in doubt (see Mahommed at [182]), it is sufficient to say in the present case that the appellant’s honesty and competence constitute different sectors of her reputation. Even a severe blow to the latter will not necessarily, and in my view in this case did not, affect the former. The trickery imputation did however affect the former.

226. For these reasons, if the defence of fair comment had failed, unlike the primary judge, I would not have upheld the defence of contextual truth based on s 26 of the Act.

227. LEEMING JA: I agree with Macfarlan JA.

**********

SCHEDULE 1

Media Watch: Scary, toxic beat up (29/07/2013)

Episode 26, 29 July 2013

Scary, toxic beat up

And now to wonderful example of copycat journalism ... which turns out to be the blind leading the blind.

1. Three weeks ago Sydney’s Sun-Herald an exclusive story on page three which claimed that metals dangerous to health had been discovered in Botany Bay near the old ICI chemical plant.

“Toxic substances found in reserve

Exclusive Natalie O’Brien

1. The Environmental Protection Authority has been accused of covering up the discovery of some of the most poisonous substances on earth at levels well above health limits, alarming residents whose children use the tested area as a playground.

— The Sun Herald, 7th July, 2013”

And sure enough, there was the picture of kids at play.

1. At the Sydney offices of Channel Seven and Nine that morning they opened their papers and instantly despatched crews to the scene.

That night both bulletins also ran with the news, Seven calling it Poisoned Playground and Nine dubbing it Toxic Scare.

And both reports were cooked to exactly the same formula:

1. They started with shots of the playground.

They talked to the same mother of two.

They got an identical grab from the Opposition’s Luke Foley...

“Luke Foley: There is no safe limit for Mercury

— Channel Seven News, 7th July, 2013”

1. And they also interviewed the same angry local resident

“Len Mahony: The hideous chemicals that are in the soil. It’s beyond belief

— Channel Seven News, 7th July, 2013”

“Len Mahony: This is only the tip of the iceberg.

— Channel Nine News, 7th July, 2013”

1. Meanwhile, the well, very similar reporters chose almost the identical spot to do their stand ups

“Sylvia Jeffreys: The EPA has taken more than a dozen samples from across the Botany area and they’ve all tested positive for HCB. Residents say the time has come for a Royal Commission.

1. — Channel Nine News, 7th July, 2013”

“Georgina McKerrow: The EPA admits the soil underneath the playground was never part of the tests. However, the samples were taken just 200 metres up the hill.

— Channel Seven News, 7th July, 2013”

1. Now wait a moment. Did you catch that last bit? Let’s just have another listen.

“Georgina McKerrow: The EPA admits the soil underneath the playground was never part of the tests.

— Channel Seven News, 7th July, 2013”

1. The EPA admits the playground wasn’t tested? Shouldn’t that be the Sun-Herald? After all, they did splash the playground picture, which kind of makes you think that might be the story, and the article does say:

“... children use the tested area as a playground.

— Sun-Herald, 7th July, 2013”

1. But the truth is the tests were conducted some distance away, close to a busy road, as you can see on this map.

And it gets a lot worse than this little sleight of hand, because we believe the central claims of Natalie O’Brien’s story are just wrong.

“What the tests found

Mercury: Significant levels (NSW limit is zero)

1. — Sun-Herald, 7th July, 2013”

We’re assured that’s wrong.

“Lead: up to three times the NSW limit

— Sun-Herald, 7th July, 2013”

We’re assured that is wrong too.

1. “Chromium: Twice the NSW limit

— Sun-Herald, 7th July, 2013”

And we’re assured that that too is false.

So why believe US? Well, for a start we have gone over the figures very carefully. And we think they’re wrong. We’ve also talked to the EPA, that’s the 65   Environmental Protection Authority, and they think they’re wrong.

But best of all, we’ve done what The Sun-Herald should have done which is rely on the experts.

Professor Jack Ng of the National Research Centre for Environmental Toxicology in Queensland told us the Sun-Herald’s claims were:

1. “Misleading ... and not representative of the test results

— Professor Jack Ng, National Researcher Centre for Environmental Toxicology, Statement to Media Watch, 29th July, 2013”

Professor Wayne Smith, director of Environmental Health in NSW, who is also a professor at Sydney and Newcastle universities went a bit further, telling us The Sun Herald’s claims were:

1. “Ridiculous and alarming

— Dr Wayne Smith, Director of Environmental Health, NSW Health, Statement to Media Watch, 28th July, 2013”

And adding that the claim that the NSW limit for Mercury is zero was

1. “A complete fabrication

— Dr Wayne Smith, Director of Environmental Health, NSW Health, Statement to Media Watch, 28th July, 2013”

As soon as the Sun-Herald article was published, the EPA held a press conference and issued a media release denying the claims.

1. It also wrote a letter to the paper stating that the key claims were not true: that the playground had not been tested and that they had not found mercury, lead and chromium ‘above NSW health limits’.

Their letter was published in the paper next week, but not on page three, and without this summary

1. “The Sun Herald has clearly presented a story which is factually wrong and in doing so has created unnecessary concern in the community.

— EPA, Letter to Sun-Herald, 12th July, 2013”

By this stage, 14th July, Botany Council had received results from its own expert report on that playground.

1. After 182 pages of painstaking analysis it gave the park an all-clear and concluded:

“... surface soils as present on the Grace Campbell Reserve do not contain levels of environmental contaminants that would be considered to pose a potential health risk to Park users.

1. — City of Botany Council, Environmental Assessment of Surface Soils at Grace Campbell Reserve Hillsdale, 10th July, 2013”

So, collapse of story.

But there was no space for this news in the Sun-Herald.

However, there was room to run the playground picture again under another Natalie O’Brien article reporting that Sydney Water’s experts had also concluded there was nothing to worry about.

1. Only, that’s not quite how the Sun-Herald spun the story.

“Cancer chemicals detected, yet park gets all-clear

Alert: Children playing near the Hillsdale park that was tested.

— Sun-Herald, 14th July, 2013”

1. Now there are a lot of dangerous chemicals in the Botany area. And of course residents have every right to be worried.

But they also have a right to media which tell them the truth. And O’Brien’s alarmist articles did not.

1. The Sun-Herald has still not apologised for this shocking beat up or issued a correction. It should. And it should put it on Page Three where it can be seen.

And as for Channels Seven and Nine who broadcast this scare, here’s an idea. Try checking the facts first to see if they stack up.

If you want to know more on this story, those reports from the EPA, Botany Council and Sydney Water are all on our website. As is the Sun-Herald’s response.

1. But for now that’s all from me. Goodbye.

SCHEDULE 2

SCHEDULE 3

text version - July article (18.8 KB, docx)   |  text version - 7 July article (11.6 KB, pdf)

text version - 14 July article (17.4 KB, docx)   |   text version - 14 July article (7.50 KB, pdf)

Endnotes

Amendments

18 December 2017 - [214] Amendment to page reference.

[225] Typographical error corrected to case name.

Decision last updated: 18 December 2017