Visscher v Maritime Union of Australia (No 6)

[2014] NSWSC 350

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350

Hearing dates:

21 to 25 October, 28 October, 4 November and 6 November 2013.

Decision date:

31 March 2014

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

1.   The plaintiff to file a further amended statement of claim in accordance with [258] of these reasons within seven days.

2. Pursuant to s 136 of the Evidence Act 1995, that the use of the evidence at the following parts of the transcript be restricted to proving the fact of the communication referred to and not the truth of what was asserted, namely T367.13, T383.3 to .6, and T462.46.

3.   Judgment for the plaintiff against the defendant in the sum of $90,000.00.

Catchwords:

DEFAMATION - statements said to have published by the Maritime Union of Australia (MUA) - Bureau of Meteorology forecasts - severe weather conditions - ship master's discretion -"Cyclone Response Plan" -existence of "contingency plan" - "Job Hazard Analysis" (JHA) - impact of "storm surge" - expert report on behaviour of tropical cyclones - no expert evidence to support questions regarding Cyclone Response Plan.

DEFAMATION - publication - MUA and Cootamundara Herald online articles - "bilateral" nature of publications - utterance comprehended by reader, listener or observer - publication of someone else's defamatory statement by use of a hyperlink - responsibility of person approving, adopting or promoting the defamatory statement of another - "shallow" or "deep" hyperlinks - Crookes v Newton [2011] 3 SCR 269 - MUA responsible for publication of Cootamundara Herald article.

DEFAMATION - justification - truth - whether imputations carried by online articles were "substantially true" - particulars of truth - imputations not justified - substantial truth defence fails - absence of expert or similar evidence concerning ship master's conduct.

DEFAMATION - Hore-Lacy defence -"common string" not established - defence fails.

DEFAMATION - privilege - qualified privilege at common law - reciprocal duty or interest - whether reciprocity of duty and interest between publisher and viewer - unrestricted nature of the publication - qualified privilege defence fails.

DEFAMATION - privilege - statutory qualified privilege - Defamation Act 2005 (NSW) s 30 - whether the conduct of the defendant in publishing defamatory matter was reasonable in the circumstances - threat posed by cyclone significantly overstated - defence of qualified privilege pursuant to statute fails.

DEFAMATION - defence -expression of opinion - Defamation Act 2005 (NSW) s 31 - truth of material not established - opinions not based on proper material - defence under s 31 fails.

DEFAMATION - damages - compensatory damages - damages to bear rational relationship to harm - damages for non-economic loss limited - Defamation Act 2005 (NSW) s 34 and s 35 - imputations conveyed by articles serious - publication of articles damaged reputation - damages for multiple causes of action may be assessed as single sum - separate publications warrants amount of damages to be individually specified.

DEFAMATION - damages - aggravated damages - conduct must be lacking in bona fides, improper or unjustifiable - failure to apologise or remove article from website - conduct of cross examination - unjustifiable conduct established - aggravated damages awarded.

DEFAMATION - damages - mitigation of damages - Defamation Act 2005 (NSW) s 38 - no evidence regarding "Fairfax settlement" and whether it released MUA from liability - basis for reducing damages awarded fails.

Legislation Cited:

- Defamation Act 1974 (NSW) s 48
- Defamation Act 2005 (NSW) s 21, s 22, s 25, s 26, s 28, s 29, s 30, s 31, s 34, s 35, s 36, s 38, s 39
- Evidence Act 1995 (NSW) s 44, s 136
- Uniform Civil Procedure Rules 2005 (NSW) r 14.30

Cases Cited:

- Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928
- Aktas v Westpac Banking Corp Ltd [2009] NSWCA 9
- Aktas v Westpac Banking Corporation [2010] HCA 25; 241 CLR 79
- Ali v Nationwide News Pty Ltd [2008] NSWCA 183
- Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300
- A-S v Statewide Roads Ltd [2007] NSWSC 1472
- Attrill v Christie [2007] NSWSC 1386
- Bashford v Information Australia Pty Ltd (2004) 218 CLR 366
- Brent Walker Group PLC v Time Out Ltd [1991] 2 QB 33
- Bryanston Finance Ltd v de Vries [1975] QB 703; [1975] 2 All ER 703
- Carr v Thomas [2009] NSWCA 208
- Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44
- Cassell & Co Ltd v Broome [1972] AC 1027
- Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245
- Clark v Ainsworth (1996) 40 NSWLR 463
- Clarke v Norton [1910] VLR 494
- Crookes v Newton [2011] 3 SCR 269
- Daily Examiner Ltd v Mundine [2012] NSWCA 195
- David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234
- David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; 1 VR 667
- Davis v Nationwide News Pty Ltd [2008] NSWSC 693
- Dow Jones & Co Inc v Gutnick (2002) 77 ALJR 255, 210 CLR 575
- Fraser v Holmes [2009] NSWCA 36
- Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
- Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31
- Hird v Wood (1894) 38 Sol J 234
- John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164
- Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
- Lee v Wilson (1934) 51 CLR 276
- Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151
- McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933
- Marshall v Megna [2013] NSWCA 30
- Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293
- Mirror Newspapers v Jools (1985) 5 FCR 507
- Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059; 68 NSWLR 150
- Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; 178 CLR 309
- Polly Peck (Holdings) PLC v Telford [1986] 2 WLR 845
- Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460
- R v Paine (1696) 5 Mod Rep 163; 87 ER 584
- Sim v Stretch [1936] 2 All ER 1237
- State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496
- Triggell v Pheeney (1951) 82 CLR 497
- Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127
- Visscher v Maritime Union of Australia (No 3) [2013] NSWSC 1565
- Visscher v Maritime Union of Australia (No 5) [2013] NSWSC 1640
- Webb v Bloch (1928) 41 CLR 331

Texts Cited:

- Ben Elton, Stark (1989, Black Swan)
- Macquarie Dictionary Online (2013)
- New South Wales, Government Gazette, No 65, 31 May 2013

Category:

Principal judgment

Parties:

Timothy Visscher (Plaintiff)
Maritime Union of Australia (Defendant)

Representation:

Counsel:
T. Molomby SC, Ms L. Goodchild (Plaintiff)
R.K. Weaver (Defendant)
Solicitors:
Roderick Storie Solicitors (Plaintiff)
Slater & Gordon (Defendant)

File Number(s):

2011/339947

judgment

Introduction

1. As at February 2011 the plaintiff, Mr Timothy Visscher, was the master in command of the ocean tugboat, the Hako Esteem. On 18 February 2011 the vessel was anchored in Shark Bay on the west coast of Australia. On that day an article appeared on the website of the defendant, the Maritime Union of Australia (the "MUA article" and the "MUA" respectively). The MUA article expressed grave concerns about the conduct of the master of the Hako Esteem in choosing to remain anchored in Shark Bay in the face of Cyclone Dianne, which the article suggested was proximate. The MUA article contained a "hyperlink" to a more detailed article found on the website of the Cootamundra Herald (the "Cootamundra Herald article") which expanded upon the concerns raised.

1. Mr Visscher sues the MUA in defamation. He claims that it published the MUA article and such copies of the Cootamundra Herald article as were downloaded by clicking on the hyperlink on the MUA's website. He says both articles defamed him by accusing him of incompetence as a master and placing the safety of his crew and vessel at risk. He also claims that one of the articles defamed him by suggesting he was succumbing to commercial pressure by deciding to remain in Shark Bay.

1. The MUA admitted that it published the MUA article, but denied that it published such copies of the Cootamundra Herald article as were downloaded by clicking on the hyperlink found within the MUA article on the MUA's web site. It denied that aspects of the imputations pleaded by Mr Visscher were conveyed by those articles. It also raised a suite of affirmative defences, including that the imputations as conveyed were true, published on an occasion of qualified privilege, protected by the statutory defence of qualified privilege provided for in s 30 of the Defamation Act 2005 (NSW), and otherwise were expressions of opinion protected by s 31.

1. For the reasons that follow I uphold all the relevant aspects of Mr Visscher's claim and reject each of the MUA's defences. I find that certain aspects of the MUA's conduct aggravated the damages to which Mr Visscher is entitled. I do not accept that the MUA has demonstrated that the damages to be awarded to Mr Visscher should be reduced by reason that he has apparently settled related proceedings with a media organisation. I have assessed the damages recoverable by Mr Visscher as $90,000.00. I will hear the parties as to costs.

1. The balance of these reasons is structured as follows:

[6] to [10]	The publications
[11] to [16]	Identification of the Plaintiff
[17] to [31]	Publication by the MUA
[32] to [43]	What imputations, if any, were conveyed by the MUA article?
[44] to [50]	What imputations, if any, were conveyed by the Cootamundra Herald article?
[51] to [52]	Are the imputations defamatory?
[53] to [126]	The Voyage of the Hako Esteem
- [62] to [69]	Cyclone Dianne
- [70] to [77]	5 February 2011 to 14 February 2011
- [78] to [91]	The JHA meeting
- [92] to [98]	14 February 2011 to 16 February 2011
- [99] to [114]	17 February 2011
- [115] to [123]	18 February 2011
- [124] to [126]	Completion of the Voyage
[127] to [189]	Justification
- [128] to [168]	Particulars of Truth
- [169] to [183]	"Due regard" for Safety
- [184] to [189]	Are the imputations justified?
[190] to [194]	Contextual Truth
[195] to [198]	Hore-Lacey "Defence"
[199] to [201]	Qualified Privilege at common law
[202] to [221]	Statutory Qualified Privilege
[222] to [231]	Honest Opinion
[232] to [250]	Damages
- [251] to [260]	Aggravated Damages
- [261]	Conclusion on Damages
- [262] to [272]	Mitigation
[273]	Outstanding evidentiary rulings
[274] to [275]	Orders

The publications

1. On the evening of 17 February 2011 a journalist employed by "WA Today", Ms Lee-Maree Gallo, spoke to a safety officer working within the Western Australian Branch of the MUA, Mr Noel Nielsen. The next morning the Cootamundra Herald article was placed onto the website which, as its name indicates, was operated by the entity that published the newspaper, the "Cootamundra Herald". The article stated:

"Fears for sailors caught in a cyclonic storm

LEE-MAREE GALLO

18 Feb, 2011 10:46 AM

The lives of 11 Australians are in danger as they try to ride out tropical Cyclone Dianne off the north-west coast of Western Australia, the Maritime Union of Australia says.

MUA safety officer Noel Nielsen said he held grave fears for all on board the Singaporean-registered tugboat Hako Esteem, which is in the Indian Ocean tucked behind Dirk Hartog Island, near Shark Bay.

The boat, which measures 57 metres long and is 14 metres wide, is towing a heavy barge and is assigned to work on the Gorgon gas project.

Mr Nielsen said the crew's best chance of surviving the cyclone - which is now a category 2 and is expected to strengthen to a category 3 by the time it reaches the vessel - was to unhook the barge and flee the extreme weather conditions.

He said the vessel was in seas no more than 14 metres deep, which could prove disastrous as the Bureau of Meteorology forecast that tides along the entire west coast were likely to exceed the high-water mark over the next few days.

Mr Nielsen, who has spoken to crew members on the boat, said that, even though the crew wanted to unhook the load and run away from the storm, the master had chosen to ride it out.

'The crew is extremely upset with the master and the fact he doesn't seem to have a contingency plan in place if something goes wrong,' Mr Nielsen said.

'He refuses to speak to the crew collectively and has only agreed to address crew's individual concerns.

'We have advised he either needs to unhook the barge and run away from the cyclone or anchor up somewhere and get the people off.'

Mr Nielsen said that, adding to the problem, was the fact no one was willing to take responsibility for the vessel.

The tugboat is registered to Singaporean company Hako Shipping, chartered by Boskalis Australia and overseen by American company Chevron and Kellog Joint Venture.

The crew are employed by Total Marine Services, a company based in Australia.

Mr Nielsen was concerned the master was feeling pressured to hold on to the barge even though Chevron's own cyclone plan suggested running away from approaching storms.

A Chevron spokesman was contacted but declined to comment on the situation. Total Marine Services could not be contacted for comment, but its website states that the company prides itself on putting safety first.

Mr Nielsen said Total Marine Services was trying its hardest to remedy the situation to ensure its crew was safe, but this was proving difficult as the company had no control of the vessel.

Mr Nielsen called on all parties responsible to work together to ensure the crew were not put in any danger and to make sure no lives were at risk.

'Hope is not good enough ... it's essentially playing Russian roulette with these people's lives,' he said.

'Everybody wants to blame everybody else and if people die out there this is what's going to happen. No one is willing to take responsibility.'

Neither Boskalis Australia nor Hako Shipping could be reached for comment." (emphasis added)

1. A snapshot of the web page containing the article reveals that next to the typed words of the article were two images. One image was a satellite photo of Australia depicting a large cyclonic shape of cloud to the north west of Exmouth in Western Australia. The outside edge of the cloud just touched the Australian mainland at Exmouth. The other image was underneath that photo. It was a map that showed what was said to be the actual position and likely path of Cyclone Dianne. It depicts a projected area of affectation to the west of Carnarvon in Western Australia at around 5:00am on 20 February 2011. The position of Carnarvon vis à vis the position of the Hako Esteem in Shark Bay is described below (at [58]ff).

1. The time at which this article was posted is difficult to determine. Even though Ms Gallo appears to have been based in Western Australia, the time of posting is more likely to be a reference to eastern standard daylight savings time ("EDST") given that Cootamundra is in western New South Wales. As at February 2011, New South Wales was three hours ahead of Western Standard Time ("WST"). To add to the confusion, another copy of the Cootamundra Herald article that was tendered lists the posting time as 09:46am. (Unless otherwise stated, all time references are to WST.)

1. Later on 18 February 2011, Ms Zoe Reynolds received a "Google alert" drawing her attention to the Cootamundra Herald article. Ms Reynolds was a journalist engaged by the MUA. She was based in Sydney. She said she saw the article "mid-morning or early afternoon" (EDST) on 18 February 2011. She then prepared the MUA article and placed it on the MUA's website for publication. This article stated:

"Maritime Union of Australia

MUA crew caught in cyclonic storm

18 FEB 2011

11 Australian seafarers lives are in peril after the master of a Singaporean registered tugboat Hako Esteem refuses to flee cyclone and, once again, Boskalis safety on the Gorgon LNG project comes under question.

[picture depicting cyclone near Western Australian coast]

The lives of 11 Australians are in danger as they try to ride out tropical Cyclone Dianne off the north-west coast of Western Australia, MUA WA branch report.

Branch safety officer Noel Nielsen told the Cootamundra Herald he held grave fears for all on board the Singaporean-registered tugboat Hako Esteem, working the Gorgon gas project near Shark Bay.

'The crew is extremely upset with the master and the fact he doesn't seem to have a contingency plan in place if something goes wrong,' Noel Nielsen said.

'He refuses to speak to the crew collectively and has only agreed to address crew's individual concerns.

'We have advised he either needs to unhook the barge and run away from the cyclone or anchor up somewhere and get the people off.'

The tugboat is registered to Singaporean company Hako Shipping, chartered by Boskalis Australia and overseen by American company Chevron and Kellog Joint Venture.

The crew are employed by Total Marine Services, a company based in Australia.

READ FULL STORY"

1. The words "Read Full Story" were a hyperlink, in that if a person browsing the article clicked on the link they were taken to the article in the Cootamundra Herald. The picture in this article was the same satellite image as appeared under the Cootamundra Herald article described at [7] above.

Identification of the plaintiff

1. Mr Visscher was not named in these articles, but he was the master of the Hako Esteem at the time these articles were first published.

1. Mr Visscher called another qualified master, James Munro. Mr Munro has known Mr Visscher since the late 1970s. In February 2011 Mr Munro was working on the Gorgon project at Barrow Island (see [57]). He knew that Mr Visscher was the master of the Hako Esteem. Mr Munro saw the MUA article and clicked on the hyperlink to read the Cootamundra Herald article. Mr Munro said he realised that the articles were referring to Mr Visscher. He telephoned Mr Visscher. I accept that evidence.

1. Mr Visscher called Ryan Dagnall who was the second officer on the Hako Esteem on its voyage in February 2011. Mr Dagnall recalled coming across the MUA article on the internet on 18 February 2011, reading it, and bringing it to Mr Visscher's attention. He also recalled looking over Mr Visscher's shoulder while Mr Visscher clicked on the hyperlink. Mr Dagnall said he read the Cootamundra Herald article over Mr Visscher's shoulder. In his evidence Mr Visscher stated that this occurred in the afternoon of 18 February 2011. I accept that evidence.

1. Mr Visscher also called Andrew Phillips. Mr Phillips is a Chief Officer. He has held a Master Class 1 Certificate for two years and has worked in the maritime industry since 1991. He first worked with Mr Visscher in 2006 on the "Lwek Swift" and then later on the "Geobay". Mr Visscher was the master of both vessels. Mr Phillips recalled reading an article on the MUA website in February 2011. He said he rang Mr Visscher. He said he was not sure if he rang Mr Visscher straight after reading it but the phone call was made at least within two weeks of his reading the article. He recalled asking Mr Visscher "Oh, I just read this on the MUA website. Is this you?" and that Mr Visscher said that "yes, he was on board". In cross examination Mr Phillips initially nominated the Cootamundra Herald article as the one he viewed, but he later stated that it was the MUA article. He was pressed on this but adhered to his evidence that he viewed the MUA article. I accept that this is so. Mr Phillips said that he had bookmarked the MUA website on his web browser. I would expect that he would recall if he had clicked on a hyperlink through to the Cootamundra Herald article. Otherwise Mr Phillips would have no reason to directly access the Cootamundra Herald article via the Cootamundra Herald website.

1. In light of Mr Munro's and Mr Dagnall's evidence, the MUA accepted that the MUA article was published "of and concerning" Mr Visscher. I assume the concession was made on the basis that it was accepted that it was proved that the MUA article was published to persons with the requisite knowledge of Mr Visscher's position as master such that they would reasonably believe it was referable to him (David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234, at 238 per Isaacs J), although it is not necessary to prove that such a person in fact concluded it was the plaintiff. The MUA's concession is also supported by Mr Phillip's evidence.

1. Mr Munro's and Mr Dagnall's evidence also demonstrates that the Cootamundra Herald article was published of and concerning Mr Visscher.

Publication by the MUA

1. The MUA admitted that it bore responsibility for the publication of the MUA article by the placement of the article on its website and its subsequent downloading and viewing by readers. However it denied publication of the Cootamundra Herald article.

1. The Amended Statement of Claim (the "ASOC") particularised the basis for attributing responsibility for the publication of the Cootamundra Herald article as being the placement of the hyperlink within the MUA article on the MUA's website. The plaintiff's written submissions in chief also sought to attribute responsibility by reason of the hyperlink and the conversation between Mr Nielsen and Ms Gallo that I have noted above. The MUA objected to Mr Visscher relying on the latter basis as it was neither pleaded nor particularised. This led to an application to amend to broaden the particulars of publication. The application was refused (Visscher v Maritime Union of Australia (No 5) [2013] NSWSC 1640 (Visscher (No 5)). Accordingly the responsibility of the MUA for the Cootamundra Herald article falls to be determined by reference to the basis originally particularised.

1. With the tort of defamation the actionable wrong is the publication of the libel and not its composition (Lee v Wilson (1934) 51 CLR 276 at 287). The concept of publication has a "bilateral" nature in that the relevant utterance must be comprehended by the reader, the listener or the observer (Dow Jones & Co Inc v Gutnick (2002) 77 ALJR 255; 210 CLR 575 at [26] to [27]). In Webb v Bloch (1928) 41 CLR 331 at 363 to 365, Isaacs J approved a passage from the judgment of the Court of Kings Bench in R v Paine (1696) 5 Mod Rep 163 at 167; 87 ER 584 at 587, to the effect that if one person repeats, another writes, and a third person approves a libel then "... they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty". In Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 at 69,192 to 69,193 ("Urbanchich"), Hunt J noted that this passage was stated in the context of a criminal defamation which, unlike its civil counterpart, did not require publication to a person other than the person defamed. His Honour nevertheless considered that it was still applicable to civil proceedings provided that each person was "instrumental in some degree in communicating the defamatory material to a person other than the plaintiff" (id).

1. In Urbanchich, Hunt J addresses the circumstances in which a person might be found to be the publisher of someone else's defamatory statement which was attached to their property. After reviewing the authorities, his Honour concluded:

"In a case where the plaintiff seeks to make the defendant responsible for the publication of someone else's defamatory statement which is physically attached to the defendant's property, he must establish more than mere knowledge on the part of the defendant of the existence of that statement and the opportunity to remove it. According to the authorities, the plaintiff must establish that the defendant consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement on his property so that persons other than the plaintiff may continue to read it - in other words, the plaintiff must establish in one way or another an acceptance by the defendant of a responsibility for the continued publication of that statement."

1. Although this passage was cited in the context of attributing responsibility to an owner of property for someone else's defamatory statement, his Honour's reference to a publisher being a person who accepts a responsibility for the publication of a statement of another has been adopted in other contexts (see A-S v Statewide Roads Ltd [2007] NSWSC 1472 at [17], and on appeal Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 at [20] per Tobias JA).

1. Senior Counsel for Mr Visscher, Mr Molomby SC, with whom Ms Goodchild of Counsel appeared, placed particular emphasis on the decision in Hird v Wood (1894) 38 Sol J 234, cited by Hunt J in Urbanchich at 69,192. In Hird v Wood a placard containing material defamatory of the plaintiff was suspended between two poles on the side of the road by someone unknown. The defendant was reported to have sat for a long time on a stool near the placard, smoking his pipe and continually pointing at the placard with his finger so as to attract the attention of passers by. This was held to be sufficient evidence to go to the jury of the publication of the placard by the defendant. In terms of the test posed by Hunt J in Urbanchich extracted above, Hird v Wood can be seen as an example of a person approving, adopting or promoting the defamatory statement of another and thereby accepting responsibility for it. Mr Molomby SC submitted that the MUA's conduct in publishing a hyperlink that referred readers to the Cootamundra Herald article was simply a 21st century manifestation of the type of conduct engaged in by the defendant in Hird v Wood.

1. Counsel for the MUA, Mr Weaver, referred to the decision of the Supreme Court of Canada in Crookes v Newton [2011] 3 SCR 269. The plaintiff, Mr Crookes, brought defamation proceedings against Mr Newton who operated a website that contained commentary on various issues including free speech. One of the articles on that website contained two hyperlinks to a website operated by a third person that was said to contain three articles defamatory of Mr Crookes. The first hyperlink was a so called "shallow" hyperlink that took a browser to the third person's website where they could search for the three articles in question. The second hyperlink was a so called "deep" hyperlink that took a browser directly to one of the articles in question. Mr Crookes contended that by creating the hyperlinks and refusing to remove them when requested to do so Mr Newton became the publisher of the articles (at [10]). This argument was rejected at trial and by the Court of Appeal of British Columbia. He appealed to the Canadian Supreme Court.

1. Justice Abella dismissed the appeal. Justices Binnie, LeBel, Charron, Rothstein and Cromwell JJ concurred in her Honour's reasons. Justice Abella considered that hyperlinks bear the same relationship to the content of the impugned publication as references (at [30]) in that:

"... [b]oth communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral - it expresses no opinion, nor does it have any control over, the content to which it refers." (emphasis added)

1. Her Honour added (at [33]) that interpreting the "publication rule" to exclude "mere references" was in accordance with the values in the Canadian Charter of Rights and Freedoms as well as advances in communication technology. Her Honour ultimately concluded (at [42]):

"Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be 'published' by the hyperlinker."

1. McLachlin CJ and Fish J agreed that the appeal should be dismissed but disagreed with Abella J's statement as to the circumstances in which the inclusion of a hyperlink would amount to publication of the material found at the end of the link. Their Honours stated (at [48]):

"In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus, defendants linking approvingly to an innocent Web site that later become defamatory would not be liable." (emphasis added)

1. Justice Deschamps posited a test for publication that required that the publisher engaged in "deliberate acts" which made "defamatory material available to third parties" (at [60]). Her Honour concluded that the posting of the "shallow" link did not make the defamatory material readily available to third parties but the posting of the "deep" link did and amounted to publication of the defamatory articles. However her Honour still dismissed the appeal, not being satisfied that the material was brought to the attention of any third person (at [124] to [127]).

1. Mr Weaver submitted that I should adopt the approach of the majority in Crookes v Newton. Implicit in his submissions is a contention that the MUA article did not "present content from the hyperlink material in a way that actually repeats the defamatory content", which I consider to be highly doubtful. In any event I do not regard Abella J's formulation as consistent with Australian authority. As noted, her Honour's judgment was, at least in part, informed by the Canadian Charter of Rights and Freedoms which has no relevant equivalent in this country. Further, and with respect to her Honour, while one might accept that "by itself" the mere posting of a hyperlink might not amount to publication of the linked or referenced material, it is difficult to follow why it is necessary for the hyperlink to present content from the hyperlinked material in a way that actually repeats the defamatory content before it can amount to publication. This formulation would appear to exclude the circumstance in which the hyperlink or reference is prefaced by words that make it clear that the hyperlinked or referenced material is being endorsed by the alleged publisher. Thus, for example, if a hyperlink was prefaced by the words "for a true and terrible story about [the plaintiff] please click here", which then refers the reader to an article on a website which was clearly defamatory then that would appear not to be sufficient to meet her Honour's test of publication. Generally, any attempt to a craft a legal principle specific to the internet or world wide web should be undertaken with caution. It runs a significant risk of having the principle undermined by changes to the manner in which users conform with the internet or the web's protocols.

1. In any event, the approach of McLachlin CJ and Fish J appears to accord more with the approach stated by Hunt J in Urbanchich which was derived from a review of the relevant Australian and United Kingdom case law. Stripped of its references to the position of the owner of a property, Hunt J's approach can be readily adopted to circumstances in which a person is alleged to be the publisher of material by inserting a hyperlink directing viewers to its web location. In particular, the question is whether, by the inclusion of the hyperlink, the defendant accepted responsibility for the publication of the hyperlinked material. This could be answered in the affirmative if, amongst other ways, it was concluded that there was an approval, adoption, promotion or some form of ratification of the content of the hyperlinked material.

1. By publishing the MUA article with its hyperlink to the Cootamundra Herald article, the MUA clearly accepted responsibility for the continued publication of the Cootamundra Herald article. Its actions amounted to, at the very least, an adoption or promotion of the content of the Cootamundra Herald article. The MUA article introduced the reader to the danger faced by the MUA crew. It provided details about their plight and then invited a viewing of the "full story" by having the reader click on a hyperlink. In context, it conveyed that the details published in the MUA article were part of a more complete version (the "full story") which was to be found by clicking the hyperlink.

1. Accordingly, to the extent that a reader downloaded and read the Cootamundra Herald article by viewing the MUA article and then clicking on the hyperlink in the MUA article, I am satisfied that the MUA published the Cootamundra Herald article.

What imputations, if any, were conveyed by the MUA article?

1. Paragraph 5 of the ASOC pleads that the following imputations were conveyed by the MUA article:

a)  that as master of a vessel at sea caught in a cyclone he had no due regard for the safety of his crew ...

alternatively:

(aa)  that as master of a vessel at sea facing a potential cyclone threat caught [sic] he had no due regard for the safety of his crew ...

(b)  that as master of a vessel at sea caught in a cyclone he had no due regard for the safety of his vessel ...

alternatively:

(bb)  that as master of a vessel at sea facing a potential cyclone threat he had no due regard for the safety of his vessel ...

(c)  that as master of a vessel at sea caught in a cyclone he acted incompetently in the way he reacted to the danger ...

alternatively:

(cc)  that as master of a vessel at sea facing a potential cyclone threat he acted incompetently in the way he reacted to the danger ...

(d)  that as master of a vessel at sea caught in a cyclone he put the lives of his crew in danger ...

alternatively:

(dd) that as master of a vessel at sea facing a potential cyclone threat he put the lives of his crew in danger ...

(e)   that as master of a vessel at sea caught in a cyclone he put his vessel in danger ...

alternatively:

(ee)  that as master of a vessel at sea facing a potential cyclone threat he put his vessel in danger ...

(f)  that as master of a vessel at sea caught in a cyclone he reacted inadequately to the danger ...

alternatively:

(ff)  that as master of a vessel at sea facing a potential cyclone threat he reacted inadequately to the danger ..."

1. The MUA conceded that, with one exception being imputation 5(cc), the alternative formulation of the imputations were conveyed by the MUA article; ie the MUA conceded that 5(aa), 5(bb), 5(dd), 5(ee) and 5(ff) were conveyed. However, it disputed that the article conveyed that part of 5(a), 5(b), 5(c), 5(d), 5(e), 5(e) and 5(f) (the "primary imputations") which refers to Mr Visscher as the "master of a vessel at sea caught in a cyclone". Accordingly, only two issues need to be addressed, namely whether the article conveys that Mr Visscher was the "master of a vessel at sea caught in a cyclone" or only that he was the "master of a vessel at sea facing a potential cyclone threat" and whether it conveyed imputation 5(c) or 5(cc) (depending on the outcome of the first issue).

1. Whether the articles conveyed the pleaded imputations is assessed objectively by reference to the position of the ordinary reasonable reader. A number of cases describe the characteristics of, and approach that is imputed to be adopted by, the ordinary reasonable reader (although some of these cases address these matters in the context of considering the anterior question of whether the publication was capable of conveying the alleged imputation and not whether it did in fact convey the imputation). Thus in Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [19] Tobias JA described the ordinary reasonable reader as a "person of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal". However, his Honour added that such a person "does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs" (id; see also Lewis v Daily Telegraph Ltd [1964] AC 234 at 258; [1963] 2 All ER 151). His Honour also described the ordinary reasonable person as someone "understandably prone to a certain amount of loose thinking", although it is necessary to distinguish between what "the reader's understanding of what [a] newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices" (see Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 at 300 per Mason J).

1. In Griffith at [19] Tobias JA also noted that the mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. Thus:

"... for example, [the ordinary reasonable reader] is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader."

1. The MUA article addresses a serious topic, namely the safety of a tugboat crew. Its title and content suggest that they are in real danger. The article is relatively brief. Although in a sense it has a sensational quality the serious nature of the topic and its relative brevity would suggest that the ordinary reasonable reader was likely to read it reasonably closely.

1. As noted, the first issue is whether it conveys so much of the primary imputations as refer to the vessel being "caught in a storm".

1. Mr Weaver accepted that a literal reading of the headline to the MUA article conveyed the idea of at least the crew being "caught" in the cyclonic storm. However he contended that when read in context the ordinary reasonable reader would understand the headline to be a journalistic flourish which alluded to both the potential danger they faced and the suggestion of a conflict between their interests, the master who had apparently refused to speak to them and the various corporate interests referred to. Mr Weaver submitted that the words of the article in referring to the vessel "refus[ing] to flee [the] cyclone", "ride out [the] ... cyclone" or "run away from the cyclone" overall would convey that the vessel was not caught in the storm in that they suggest that the vessel "at that time was not directly affected by the cyclone". He also noted that the MUA article refers to options presently available to the master prior to becoming directly affected by the cyclone.

1. The difficulty with these submissions is that I interpret the word "caught" in the imputation as referable to not just a situation where the cyclone is currently at or near the position of the vessel and imposing its force upon it and the crew, but also as including the circumstance that it is bearing down on them, and thus they are caught or entrapped in its path even if they are not in its midst. According to the Macquarie Dictionary "caught" can mean "ensnared", "fastened" or "entangled" (Macquarie Dictionary Online (2013)).

1. It follows that I do not accept Mr Weaver's submission on this point. Once the phrase "caught" is understood in the manner that I have just identified, then it follows that the MUA article conveys that the vessel is "caught in a cyclone". The headline clearly does suggest that the crew were "caught in a cyclonic storm" and their fate was bound up with that of the vessel, the Hako Esteem. I doubt that the ordinary reasonable reader would conclude that the author had engaged in the form of journalistic nuance that Mr Weaver suggested however, even if they did, they would still conclude the crew and vessel were "caught" in the way I have described. The balance of the article conveys that the cyclone is bearing down on the vessel and they are caught in its path unless they attempt to flee. Further, the article only suggests two options, riding out the storm or attempting to flee. The idea that if the vessel stays where it is it might avoid the storm does not appear to be contemplated.

1. The second issue concerns that part of imputation 5(c) which contends that the article conveyed that Mr Visscher "acted incompetently in the way he reacted to the danger". Mr Weaver submitted that the mere refusal of the master to flee the cyclone does not, of itself, suggest incompetence. I agree, but there is more to the MUA article than that. The latter part of the article refers to advice having been given to unhook the barge "and run away" and the opening part of the article suggests that the master has refused to do so. The article clearly suggests that running away is an appropriate step but the master refuses to take it.

1. The article includes a quote from Mr Nielsen stating that the crew are upset with the master and the alleged fact "that he doesn't seem to have a contingency plan in place if something goes wrong". The clear implication is that the crew's distress is justified and the existence of a contingency plan is something that was required. Mr Weaver pointed out that it only quoted Mr Nielsen as stating that the master does not "seem" to have a contingency plan, which does not necessarily mean he does not have such a plan. That may be so, but I do not accept that the ordinary reasonable reader would be likely to draw any such distinction. The reader would understand that the crew of a tugboat would be likely to have a reasonable idea of the existence of such a plan even if the master was refusing to meet them collectively. Otherwise his refusal to speak to the crew collectively is suggestive of a master who is incompetent and unable to discharge his duties by allaying the crew's fears. I am satisfied that imputation 5(c) was conveyed by the MUA article.

1. Accordingly, I am satisfied that the MUA article conveys the primary imputations.

What imputations, if any, were conveyed by the Cootamundra Herald article?

1. The considerations I have outlined above at [34] to [36] apply with equal and perhaps more force to the Cootamundra Herald article. It must be remembered that the relevant reader in this context is a person who has first viewed the MUA article and then, via the hyperlink, read the Cootamundra Herald article.

1. The primary imputations that are said by Mr Visscher to be conveyed by the MUA article are also said by him to be conveyed by the Cootamundra Herald article. Thus imputations 5(a), 5(aa), 5(b), 5(bb), 5(c) and 5(cc) are repleaded in subparagraphs 7(a), 7(aa), 7(b), 7(bb), 7(c) and 7(cc) of the Amended Statement of Claim respectively. However, imputations 5(d), 5(dd), 5(e), 5(ee), 5(f) and 5(ff)) are to be found in paragraphs 7(e), (ee), (f), (ff), (g) and (gg) of the Amended Statement of Claim respectively because an additional imputation was pleaded in paragraph 7(d) and (dd) as follows:

"(d)  that as a master of a vessel at sea caught in a cyclone he put commercial interests ahead of the safety of the crew ...

alternatively:

(dd)  that as master of a vessel at sea facing a potential cyclone threat he put commercial interests ahead of the safety of the crew ..."

1. Mr Molomby SC submitted that this imputation arises from the whole article, but pointed in particular to the statement that quoted Mr Nielsen as stating that he was "concerned the master was feeling pressured to hold on to the barge even though Chevron's own cyclone management plan suggested running away from approaching storms". The next part of the article refers to a spokesman for the overseer company, Chevron, declining to comment and the crew's employer, Total Marine Services ("TMS"), being unable to be contacted. This juxtaposition suggests that the "pressure" on the master originated from some corporate interest or another. Subject to considering the points raised next, I am satisfied that this imputation is made out.

1. Otherwise Mr Weaver only took the same two points in relation to these imputations as those raised in relation to the MUA article. The first was that the article does not convey that the vessel is "caught in a cyclone". Mr Weaver pointed to those parts of the Cootamundra Herald article which were relevantly identical to the MUA article, namely the reference in the headline to "'caught in a cyclonic storm" and the supposed contrast with "try to ride out tropical cyclone" and "run away from the cyclone". However he also noted that in addition the Cootamundra Herald article stated that the cyclone is now a "category 2" cyclone and "is expected to strengthen to a category 3 by the time it reaches the vessel". This latter phrase, in particular, was said to suggest that the cyclone is not yet directly affecting the vessel.

1. However, once the phrase "caught in a cyclone" is understood in the manner outlined above, then I am satisfied that the article clearly conveys that the vessel is relevantly "caught". The phrase "by the time it [the cyclone] reaches the vessel" does suggest that the cyclone has not reached the vessel, but also suggests that there is no doubt that the cyclone will reach the vessel. The relevant reader would understand that the vessel was directly in the path of the cyclone which was bearing down. In that sense the article suggests that the vessel was "caught" in its path.

1. Mr Weaver also contended that imputation 7(c), which is to the effect that the master acted "incompetently in the way he reacted to the danger", was not made out in relation to the Cootamundra Herald article. To the extent that this article repeated the comments in the MUA article that supported imputation 5(c), Mr Weaver made the same arguments as he did with the MUA article which I have addressed above (at [41]ff). Four additional parts of the Cootamundra Herald article are relevant to this imputation namely the quote from Mr Nielsen concerning the crew's "best chance" of surviving the cyclone, the information provided by Mr Nielsen as to the depth of the water in Shark Bay, the statement that the master had chosen to "ride out" the storm contrary to the crew's wishes, and the reference to the master being under pressure to hold onto the barge "even though Chevron's own cyclone plan suggested running away from approaching storms".

1. Mr Weaver submitted that the reference to the crew's "best chance" being to unhook the barge and flee does not of itself suggest incompetence. He submitted that merely stating that a master has failed to adopt what one observer states is the measure with the highest likelihood of success does not convey that they are incompetent. He also submitted that the discussion of the depth of the water does not add to that. I do not agree. It bolsters the opinion provided by Mr Nielsen and undermines the wisdom of the master's decision. Mr Weaver also submitted that references to the master being under pressure did not reflect upon his competence and the same applies to the suggestion that he ignored the crew's wishes. These points have some validity, but it is the overall effect of these four comments and the other passages that must be considered. The reader is presented with a picture of a master inexplicably ignoring Mr Nielsen's and the crew's suggestions that he flee the cyclone. This is said to be contrary to Chevron's own cyclone plan. The overall impression is that the master's actions do not appear to have any rationale or support, other than a desire not to lose the barge. The master is under pressure and refusing to discuss his decisions with his crew as a whole, presumably because he cannot justify it to them collectively. The fact that he may be under commercial pressure is not inconsistent with him being incompetent. I consider that imputation 7(c) was conveyed to the ordinary reasonable reader who clicked on the hyperlink and viewed the Cootamundra Herald article.

Are the imputations defamatory?

1. The next question that arises is whether the imputations are defamatory. The test has traditionally been stated as whether the imputations are such that would cause the ordinary "right-thinking members of society generally" to think less of a plaintiff (see Sim v Stretch [1936] 2 All ER 1237). This concept was elaborated upon in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 254 ALR 606 at [484] to [485]). However it is unnecessary to consider this further as the MUA conceded that if any of the imputations were conveyed they were defamatory. I so find.

1. For the sake of completeness, I note that it was not contended that any of the imputations were objectionable on the basis that they were in substance no different to the others (cf Uniform Civil Procedure Rules 2005 (NSW) r 14.30(3)).

The Voyage of the Hako Esteem

1. In its defence the MUA pleaded, amongst other matters, that the imputations were substantially true and, in the alternative, were published under an occasion of qualified privilege. To consider these defences it is first necessary to traverse the evidence concerning the voyage of the Hako Esteem and the communications by the crew with the MUA safety officer, Mr Nielsen, that led to the publication of the two articles complained of.

1. As at January 2011 Mr Visscher was aged sixty-four. He had been a mariner for just under fifty years. He held a "Master Unlimited Certificate" which had previously been known as a "Master Class 1 Certificate". Leaving aside tankers and some other specialist vessels, Mr Visscher stated that this certificate enabled him to operate as the master of vessels with "unlimited tonnage and [in] an unlimited area of operation". Mr Visscher explained that the master is the person with the highest authority on a vessel. He explained that the word "captain" was a military rank which had no civilian equivalent.

1. Mr Visscher was contacted in either late 2010 or early 2011 and asked to take command of the Hako Esteem. Mr Visscher was employed by TMS which also employed the other crew on the Hako Esteem. He was asked to retrieve a barge that it was feared would wreck on Dirk Hartog Island. Mr Visscher explained that the Hako Esteem was an "anchor handling, towing and supply vessel" which in lay terms would be better described as an "ocean going tug". Unlike harbour based tugboats, it was capable of towing over very long distances. It had a crew of eleven. The official logbook for the Hako Esteem records that Mr Visscher assumed responsibility for the vessel on 31 January 2011 when he boarded at Henderson, just south of Fremantle.

1. As noted in the MUA article, the Hako Esteem was owned by Hako Shipping ("Hako") based in Singapore. The vessel was chartered by Boskalis Australia Pty Ltd ("Boskalis") for use in the "Gorgon project". The Gorgon project involves the construction of a liquefied natural gas processing facility on Barrow Island. Boskalis was a major constructor for the Gorgon project. The documentation in evidence describes Chevron Australia Pty Ltd as the "owner" of the project.

1. The barge that the Hako Esteem was required to recover had foundered while being towed to Barrow Island. Barrow Island lies off the north-west coast of Western Australia. The port of Dampier is approximately 80 nautical miles ("nm") (148 km) east-north-east of Barrow Island. The port of Exmouth is approximately 110 nm (204 km) south-west of Barrow Island. However, contrary to what is stated in the MUA article, the Gorgon gas project is not "near" Shark Bay. Point Quobba, which is at the northern tip of Shark Bay, is approximately 250 nm (463 km) south west of Barrow Island as the crow flies. Such a crow would fly across a significant piece of land. If it was minded to travel by sea, the distance would be much greater as it would have to veer around the Australian mainland at Exmouth. The Naturaliste Channel, at the mouth of Shark Bay, is a further 60 nm (111 km) or so south-west of Point Quobba.

1. No doubt the description of the process by which Shark Bay came to be named as set out in Ben Elton's book "Stark" (at p 359) does not bear any resemblance to the truth. Regardless of how many sharks it contains, Shark Bay is an impressive geographical feature. It is approximately 140 nm (259 km) from Point Quobba to the southern end of Shark Bay (at the southern portion of Henri Freycinet Harbour). Shark Bay is approximately 70 nm (130 km) across at its widest point. The town of Carnarvon is 25 nm (46 km) south-east of Point Quobba. Jutting out from the south of Shark Bay is the Peron Peninsula. On the western side of Shark Bay are three long and relatively thin islands which appear in alignment with the rest of the Western Australian coastline, namely Bernier Island, Dorre Island and Dirk Hartog Island. They form a barrier between Shark Bay and the Indian Ocean.

1. The Hako Esteem's official logbook indicates that the Hako Esteem reached the distressed barge, the Blue Fin II, on 3 February 2011. The Blue Fin II was located approximately 30 nm (55.6 km) east of Dirk Hartog Island and 40 nm (74 km) south-west of Cape Inscription, which is at the north-westerly tip of Dirk Hartog Island.

1. The Blue Fin II was originally being towed by the Hako Fortress, a similar vessel to the Hako Esteem. The Blue Fin II's tow wire had broken. It is unnecessary to describe the details of the rescue operation but, after various attempts, its tow wire was grappled. The barge was eventually towed at very slow speed by a third vessel that had joined them, the Cape Don, with the Hako Esteem following the Cape Don and the Hako Fortress into Shark Bay. This small flotilla travelled north-east up to the Naturaliste Channel between Cape Inscription and Cape St Cricq which is at the southern end of Dorre Island. They then travelled south-east into Denham Sound.

1. On 5 February 2011 at about 6:00pm the Hako Esteem took custody of the Blue Fin II. By this time the Cape Don had already left and returned to Barrow Island and the Hako Fortress had been ordered to travel south. The barge was not anchored. Instead it was secured to the Hako Esteem with mooring lines and the Hako Esteem had dropped its port anchor. Mr Visscher arranged for an inspection of the Blue Fin II which revealed that it needed significant repairs to its anchor and towing machinery. When the Cape Don left, the remaining vessels were moored approximately 8 nm (14.8 km) south-east of Cape Levillain at the north-easterly tip of Dirk Hartog Island. They travelled a further 7 nm (13 km) to the south-east before the Hako Fortress left the Hako Esteem and the Blue Fin II.

Cyclone Dianne

1. Before recounting the events aboard the Hako Esteem after it assumed responsibility for the Blue Fin II in Shark Bay, it is first necessary to describe the evidence concerning Cyclone Dianne. It is important to distinguish between what is now known about the strength and path taken by the cyclone and what was being forecast at the time. There were tendered various forecasts that Mr Visscher collected on board the Hako Esteem after he became aware of the publication of the MUA article on its website on 18 February 2011. These reports consist of Bureau of Meteorology ("BOM") forecasts prepared specifically for Boskalis. They spanned the period 3:30pm on 15 February 2011 to 9:00am on 21 February 2011, although it is likely the Hako Esteem received reports extending beyond this period. Amongst other matters, these forecasts showed the current locations of Cyclone Dianne and provided projections over 24, 48 and 72 hour periods.

1. This exhibit also included a BOM report concerning the actual track taken by Cyclone Dianne. It appears to have been prepared on 22 February 2011. The exhibit also contained a BOM report referable to Barrow Island issued at 3:00pm on Monday, 14 February 2011 and a report issued at 6:00pm on 11 February 2011. The latter does not appear to have been specifically prepared for Boskalis or referable to Barrow Island.

1. The MUA tendered a report from an expert meteorologist, Mr Gary Foley. Available to Mr Foley in preparing his report were BOM forecasts and warnings issued between 2:00am on 13 February 2011 and 8:00pm on 22 February 2011 in relation to both Cyclone Dianne and tropical Cyclone Carlos which was in force after Cyclone Dianne.

1. There is little material amongst these exhibits concerning what was known about Cyclone Dianne prior to 14 February 2011. It appears that it was first identified as a severe low to the north-west of Port Hedland on or around 11 or 12 February 2011. On 12 February 2011 Mr Visscher received an email from the Hako representative referring to a "cyclone warning". He responded to the email by noting that the information "to hand is of a further developing low northward of Broome and predicted to cross the coast north of Shark Bay".

1. In the events that transpired this low remained well offshore. It drifted west-south-west and intensified. It was designated as Tropical Cyclone Dianne at 8:00pm on 16 February 2011 when it was approximately four hundred kilometres north-west of Exmouth. Exmouth is at least 250 kilometres north-north-west of Carnarvon. Over the next 24 hours Cyclone Dianne barely moved, although it intensified into a Category 2 cyclone. From late on 17 February 2011 it moved south-west, and intensified into a severe tropical cyclone Category 3 at 8:00am on 19 February 2011. It moved southward over the next 24 hours and then turned south-west away from the mainland. It weakened and was measured as being below cyclone intensity at 8:00am on 22 February 2011 when it was 1,200 kilometres west of Geraldton.

1. Mr Foley explained that the closest distance the cyclone centre came to the Hako Esteem was around 380 nm (704 km) between 8:00pm on 18 February 2011 and 8:00am on 20 February 2011. The radius of gales around the cyclone was said to be 90 nm (167 km). Mr Foley stated that the possible uncertainty error in fixing the centre of a cyclone by satellite was 30 nm (55.6 km). Allowing for these margins, Mr Foley stated that there was never any current risk of gale force winds or anything stronger being encountered by the Hako Esteem as a result of direct interaction with the cyclone at that distance.

1. Mr Foley also addressed what was the risk faced by the Hako Esteem assessed prospectively during this period based on forecasts for the 24, 48, 60 and 72 hour lead time. As there is no evidence that the Hako Esteem had access to forecasts with a 60 hour lead time, they can be put aside. Otherwise, Mr Foley's summary of the effect of the forecasts in the period 13 February 2011 to 20 February 2011 was not disputed:

"5.1 Tropical Cyclone Dianne

5.1.1 Forecasts with a 72 hour lead-time.

Eleven out of the 20 forecasts issued with this lead-time predicted a separation distance between the centre of the cyclone and vessel greater than 300 nm, a distance at which the risk of MV Hako Esteem encountering threshold gale force winds would be low. However there was a period of 51 hours between 0300 WST 16 February (the time that the forecast was issued) and 0600 WST 18 February when the forecast separation distance was less than 290 nm and as small at 96 nm (at 0800 WST 20 February - forecast issued 0900 WST 17 February). Given the stated radius of gales around the cyclone of 90 nm and the stated forecast uncertainty (250 nm), there was a risk within 72 hours of a close encounter of the cyclone with the vessel at its given location. This is consistent with the forecast uncertainty envelop graphics supplied.

...

5.1.3 Forecasts with a 48 hour lead time

Eighteen of the 20 forecasts issued maintained a separation distance between the cyclone centre and the vessel of more than 250 nm. However there was a period of 9 hours between 0900 WST 17 February (when the forecast was issued) until 1800 WST 17 February when the forecast separation distance was less than 250 nm and as small as 209 nm (at 1400 WST 19 February - forecast issued 1500 WST 17 February). Given the stated radius of gales around the cyclone of 90 nm and the possible track error inherent in the forecast (155 nm), had the cyclone centre been located near to the edge of the uncertainty envelope rather than on or near the near the forecast track there was a risk of gales or stronger being encountered by the vessel within this forecast lead time. This is consistent with the forecast graphics supplied for the period even though the vessel's position is separated from the 48 hour uncertainty envelope.

1. In oral argument Mr Weaver also sought to rely on s 38 of the Defamation Act 2005 which provides:

"38 Factors in mitigation of damages

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

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

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

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

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

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

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

1. This is not a particularly helpful section in that all it states is that the evidence on the various topics is "admissible", but otherwise provides no guidance as to what use is to be made of it. In Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059; 68 NSWLR 150 ("Obeid") at [112] Hoeben J (as his Honour then was) held that the equivalent provision of the Defamation Act 1974 (NSW) (s 48) reflected the principle discussed in Mirror Newspapers v Jools (1985) 5 FCR 507 at 512, namely that the "tribunal of fact [should] consider to what extent damage to the plaintiff's reputation is the joint result of similar publications or is solely the result of one of the publications" and "[w]here there is a joint effect, the tribunal must ensure that the plaintiff is not doubly compensated".

1. In this case there was no evidence about any settlement, except that in submissions Mr Weaver stated that Mr Visscher conducted proceedings against "Fairfax", that the proceedings were settled on terms providing for a payment to Mr Visscher of the sum of $135,000.00 inclusive of costs, and that the proceedings were "about the Cootamundra Herald article". Mr Molomby SC appeared to be content to accept those matters. In light of that, I have not considered the material to be found on file 2011/00339961 which relates to the proceedings between Mr Visscher and Fairfax Media Limited, other than to note that those proceedings have been discontinued.

1. Mr Molomby SC submitted that a literal reading of s 38 was of no assistance to the MUA because any compensation that Mr Visscher would or had received in respect of the Cootamundra Herald article did not concern "[an]other publication", but was in fact the same publication (cf s 38(1)(c), (d) and (e)). He submitted that, in respect of a person who downloaded and viewed the Cootamundra Herald article by clicking on the hyperlink on the MUA website, there is only one publication but two publishers, namely the MUA and Fairfax as the entity responsible for placing articles on the Cootamundra Herald website. This argument has no relevance to that part of the MUA's case in mitigation which concerned the MUA article, which on any view is "[an]other publication".

1. On its face this seems to be an unlikely construction, but it has an underlying rationale. In the ordinary course, two publishers of the same defamatory publication are jointly liable. If the plaintiff sues only one of the tortfeasors and enters judgment against one or releases one, then he releases all (Bryanston Finance Ltd v de Vries [1975] QB 703; [1975] 2 All ER 703 at 722). Thus, s 38 is directed to different publications because it does not countenance the possibility of two separate recoveries (from joint tortfeasors) in respect of the same publication.

1. However, in this case the MUA has not placed sufficient material before me to conclude that the "settlement" with Fairfax amounted to a release of the MUA in respect of its liability for the publication of the Cootamundra Herald article. It could, for example, have effected a settlement with "Fairfax" via a covenant not to sue (Carr v Thomas [2009] NSWCA 208 at [34]).

1. Nevertheless, the MUA can still invoke s 38 in respect of the downloading and viewing of the Cootamundra Herald article that did not occur as a result of readers clicking on the hyperlink on the MUA website. Such downloads would not be the same publications as the MUA is sued in respect of, but would each be "[an]other publication".

1. However, the MUA bears the onus of proof. There is no evidence as to how much of the settlement relates to Mr Visscher's legal costs. Further, as between the downloading and viewing of the MUA article and the Cootamundra Herald article via the MUA website on the one hand, and the downloading and viewing of the Cootamundra Herald article from a source other than the MUA website on the other, there is no evidence to enable a determination of how the latter may have affected Mr Visscher's reputation (Obeid at [113]). The findings I have made above are directed to the former and are principally directed to the class of persons who consult the MUA website from time to time.

1. In the circumstances the MUA has failed to establish a basis for reducing the damages awarded.

Outstanding evidentiary rulings

1. During the hearing, Mr Molomby SC took objection to some evidence led by the MUA on the basis that it was hearsay. The evidence objected to involved one witness recounting the fears or concerns relayed to them by someone else. The evidence was clearly relevant to the MUA's qualified privilege defence. The objection was dealt with by the evidence being led, but Mr Molomby SC reserving his right to seek a direction under s 136 of the Evidence Act 1995 (NSW) restricting the use to which the evidence could be put. After oral submissions concluded, a schedule of the passages objected to was provided. For the sake of completeness I will specify my rulings in respect of these passages, noting that none of them were relied on by either party in their final submissions. Accordingly, in respect of the evidence set out in the transcript at T367.13, T383.3 to .6 and T462.46, I will order that the use to which those passages can be put be restricted to proving the fact of the communication referred to, and not the truth of what was asserted. I decline to make any such direction in respect of the balance of the passages identified by Mr Molomby SC.

Orders

1. I will enter a judgment for the plaintiff and then hear the parties on costs.

1. Accordingly the Court orders:

(1)   The plaintiff to file a further amended statement of claim in accordance with [258] of these reasons within seven days.

(2) Pursuant to s 136 of the Evidence Act 1995, that the use of the evidence at the following parts of the transcript be restricted to proving the fact of the communication referred to and not the truth of what was asserted, namely T367.13, T383.3 to .6, and T462.46.

(3)   Judgment for the plaintiff against the defendant in the sum of $90.000.00.

**********

Decision last updated: 31 March 2014