New South Wales Court of Appeal CITATION: Echo Publications Pty. Ltd. v. Tucker & Anor.; Fast Buck$ v. Tucker & Anor. [2007] NSWCA 73 HEARING DATE(S): 8 and 9 August 2006 JUDGMENT DATE: 5 April 2007 JUDGMENT OF: Mason P at 1; Hodgson JA at 2; McColl JA at 141 DECISION: 1. Echo Publications' appeal dismissed with costs. 2. Fast Buck$'s appeal dismissed with costs. 3. Mr. Tucker's cross-appeal dismissed, with no order as to costs. CATCHWORDS: DEFAMATION - Imputations - Whether jury's findings unreasonable - Qualified privilege - Response to an attack - Whether privilege attaches to a riposte to a response - Whether privilege lost by endorsement of response - Privilege under s.22 of Defamation Act 1974 - Defence of comment - Adequacy of judge's reasons. LEGISLATION CITED: Defamation Act 1974 ss.15, 22, 30, 32, 33, 34 Adam v. Ward [1917] AC 309 Amalgamated Television Services Pty. Ltd. v. Marsden [2002] NSWCA 419 Barbaro v. Amalgamated Television Services Pty. Ltd. (1985) 1 NSWLR 30 Bashford v. Information Australia (Newsletters) Pty. Limited [2004] HCA 5, (2004) 218 CLR 366 Bass v. TCN Channel Nine Pty. Limited [2003] NSWCA 118, (2003) 60 NSWLR 251 Bennette v. Cohen [2005] NSWCA 341, (2005) 64 NSWLR 81 Charlwood Industries Pty. Ltd. v. Brent [2002] NSWCA 2001 Collins v. Ryan (1991) 6 BR 229 Fox v. Percy [2003] HCA 22, (2003) 214 CLR 118 Horrocks v. Lowe [1975] AC 135 House v. The King (1936) 55 CLR 499 CASES CITED: Hunter v. Chief Constable of the West Midlands [1982] AC 529 John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 John Fairfax Publications Pty. Ltd. v. Rivkin (2003) 77 ALJR 1657 Kennett v. Farmer [1988] VR 991 Loveday v. Sun Newspapers Limited (1938) 59 CLR 503 Mifsud v. Campbell (1991) 21 NSWLR 725 Mundey v. Askin [1982] 2 NSWLR 369 Penton v. Calwell (1945) 70 CLR 219 Radio 2UE Sydney Pty. Limited v. Parker (1992) 29 NSWLR 448 Roberts v. Bass [2002] HCA 57, (2002) 212 CLR 1 Rogers v. The Queen (1994) 181 CLR 251 Walton v. Gardiner (1993) 177 CLR 378 Echo Publications Pty. Ltd - appellant PARTIES: Ross Tucker - 1st respondent Fast Buck$ (aka John Anderson) - 2nd respondent FILE NUMBER(S): CA 40761/05; 40061/06 Mr. B.R. McClintock SC for appellant COUNSEL: Mr. T.S. Hale SC with Mr. H.S. White for 1st respondent Mr. Fast Buck$ appeared in person Banki Haddock Fiora, Sydney for appellant SOLICITORS: Elliot & Sochacki, Mullumbimby for 1st respondent Mr. Fast Buck$ appeared in person LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20472/00 LOWER COURT JUDICIAL OFFICER: Patten AJ LOWER COURT DATE OF DECISION: 1 September 2005 LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 865 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40761/05 CA 40061/06 SC 20472/00 MASON P HODGSON JA McCOLL JA Thursday 5 April 2007 ECHO PUBLICATIONS PTY. LTD. V. TUCKER & ANOR. FAST BUCK$ V. TUCKER & ANOR. Headnote FACTS On 7 December 1999, there was published in the Byron Shire Echo an article written by Fast Buck$ purporting to be a response to an attack made in another newspaper, of which Ross Tucker was a proprietor, on an ex-employee of the latter newspaper. Mr. Tucker sued Echo and Fast Buck$ for defamation, and at a s.7A trial the jury found that the article contained two imputations defamatory of Mr. Tucker. At a trial before Patten AJ, Echo raised many defences, including truth, contextual truth, qualified privilege at common law and under s.22A of the Defamation Act 1974, and comment. Fast Buck$ relied on similar defences, except that the primary judge did not permit him, during the hearing, to amend to raise qualified privilege. The primary judge gave a verdict against both defendants in the sum of $139,329.00 including interest. Echo and Fast Buck$ appealed, and Mr Tucker cross-appealed against the jury's rejection of certain defamatory imputations. HELD (dismissing the appeals and cross-appeal) (1) The jury's finding of two defamatory imputations was not unreasonable. (2) The challenges to the primary judge's factual findings, and thus to his rejection of the defences of truth and contextual truth, failed. (3) A person who is publicly attacked is entitled to defend himself or herself before the same forum under qualified privilege, and media publishing such a defence have a derivative privilege: Bass v. TCN Channel Nine Pty. Limited 92003] NSWCA 118, (2003) 60 NSWLR 251. (4) In some cases, where the attack is itself a response to an earlier attack, the response to the later attack may not have the privilege; but that did not apply in this case: Kennett v. Farmer [1988] VR 991 considered. (5) The privilege cannot be relied on by media that publishes an endorsement of the attacked person's response, as occurred in this case: Radio 2UE Sydney Pty. Ltd. v. Parker (1992) 29 NSWLR 448; Collins v. Ryan (1991) 6 BR 229; John Fairfax Publications Pty. Ltd. v. Obeid [2005] NSWCA 60, (2005) 64 NSWLR 485. (6) The primary judge's reasons for rejecting the defence under s.22 of the Defamation Act were adequate. (7) The defence of comment was not available because of the primary judge's findings that the statements of fact on which the comment was based were not matters of substantial truth. (8) There was no appellable error in the primary judge's refusal to allow Fast Buck$ to raise qualified privilege. (9) The jury's failure to find one other defamatory imputation was unreasonable, but Mr. Tucker pressed his cross-appeal only in the event of an appeal succeeding. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40761/05 CA 40061/06 SC 20472/00 MASON P HODGSON JA McCOLL JA Thursday 5 April 2007 ECHO PUBLICATIONS PTY. LTD. V. TUCKER & ANOR. FAST BUCK$ V. TUCKER & ANOR. Judgment 1 MASON P: I agree with Hodgson JA. 2 HODGSON JA: In proceedings in the Supreme Court, Ross Tucker and Harold Ross sued Echo Publications Pty. Limited (Echo Publications) and Fast Buck$ for defamation in respect of an article written by Fast Buck$ and published by Echo Publications in the Byron Shire Echo (the Echo) on 7 December 1999. 3 At a hearing on 18 March 2002, a jury found that the article contained the following two imputations defamatory of Mr. Tucker, being those set out in par.6(e) and (g) of the Amended Statement of Claim: (e) That (Mr Tucker) acted dishonourably in his negotiations to settle a claim for compensation by a former employee in that he made an offer of settlement which, after it was accepted by the former employee, he refused to honour. (g) That (Mr Tucker) is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language. The jury found that the article contained no imputation defamatory of Mr. Ross. 4 There was a further hearing before Patten AJ in May and June 2005, and on 1 September 2005 Patten AJ gave judgment and made the following orders: 1. Verdict and judgment for Mr Tucker against both defendants in the sum of $139,329, inclusive of interest. 2. Order both defendants to pay Mr Tucker's costs. DEFAMATION ACT 1974 5 The appeal raises matters to which the following sections of the Defamation Act 1974 (the Act) are relevant: 15 Truth generally (1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section. (2) It is a defence as to any imputation complained of that: (a) the imputation is a matter of substantial truth, and (b) the imputation either relates to a matter of public interest or is published under qualified privilege. 22 Information (1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (2A) In determining for the purposes of subsection (1) whether the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances, a court may take into account the following matters and such other matters as the court considers relevant: (a) the extent to which the matter published is of public concern, (b) the extent to which the matter published concerns the performance of the public functions or activities of the person, (c) the seriousness of any defamatory imputation carried by the matter published, (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (e) whether it was necessary in the circumstances for the matter published to be published expeditiously, (f) the sources of the information in the matter published and the integrity of those sources, (g) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the publisher to obtain and publish a response from the person, (h) any other steps taken to verify the information in the matter published. (3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward. 30 Proper material (1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest. (2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest. (3) The defences under this Division are available as to any comment if, but only if: (a) the comment is based on proper material for comment, or (b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment. (4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based. 32 Comment of defendant (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant. (2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant. 33 Comment of servant or agent of defendant (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant. (2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendant, did not have the opinion represented by the comment. 34 Comment of stranger (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant. (2) A defence under subsection (1) is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education. CIRCUMSTANCES 6 Mr. Tucker and Mr. Ross were directors of a company Comptran Pty. Limited (Comptran) which, in 1997, published a newspaper called the Mullumbimby Star in the Byron Bay area. From January 1998, this newspaper was re-named the Saturday Star, and I will refer to it, under both appellations, as the Star. Echo Publications at all material times published the Echo, which was a rival newspaper in the Byron Bay area. 7 In 1997, Mr. Tucker was also a prominent local politician, being a councillor on the local Council; and Fast Buck$ was also politically active in the area. 8 In July 1997, Comptran employed Leanne Potts as an advertising saleswoman. That employment ended in December 1997. 9 On 3 December 1997, Ms. Potts wrote to Comptran claiming that she had not been paid at award rates between 27 July 1997 and 28 November 1997; and this was followed up by a solicitor's letter dated 16 December 1997. Comptran responded with a letter dated 17 December 1997, contending that for the time that Ms. Potts was employed, the status of her employment was variously casual, part-time and full-time. 10 On 18 December 1997, Ms. Potts filed in the Industrial Relations Commission a claim for relief for unfair dismissal, pursuant to s.84 of the Industrial Relations Act 1996. That matter came before the Commission at Tweed Heads on 30 April 1998. At that time, Ms. Potts was unrepresented, and Comptran was represented by a solicitor. It appears there was some attempt at conciliation, and leave was then granted to Ms. Potts to apply to have the matter re-listed. She did not do so, and on 29 January 1999 the matter was stuck out for want of prosecution. 11 Meanwhile, it appears that Ms. Potts had made a complaint about under-award payments. On 10 July 1998, a report was prepared by an industrial inspector Mr. Frost expressing the view that Ms. Potts was owed $2,982.00 as underpaid wages, $633.75 as non-paid holiday pay, and $2,379.80 as underpaid travel expenses. On the same day, a notice was served on Comptran requiring attention to this. 12 There was in evidence before the primary judge the following correspondence between Comptran and the Department of Industrial Relations, occurring in December 1998 and January 1999. 13 First, a letter dated 21 December 1998 signed by Mr. Tucker and addressed to the Manager, Award Enquiry Service Centre, as follows: On several occasions we have been advised by the department that our part time employees employed to sell advertising for our community paper are not covered by the above award. We have also been advised that we are to enter an agreement with these employees and have that agreement registered with the department. We have done this in the past. We ask please that this advice be confirmed in writing to us and that you also advise on what date the need for a registered agreement became effective. Reply by facsimile at the earliest would be very much appreciated. All the very best to you for the festive season and thankyou for your assistance in the past. 14 Next, there was a response to this letter dated 5 January 1999 as follows: I refer to your facsimile received by this department on 22 December, 1998. As I understand it, you seek confirmation in writing that the "Advertising Sales Representatives (State) Award" does not provide for part-time employees. In providing comments on a person's rights and obligations under New South Wales industrial law, the departments views are based on its understanding of the current state of the law, as applied to the limited facts available. Clause 25, "Area, Incidence & Duration" of the above-mentioned award stales, "This award does not apply to part-time and casual employees." Therefore rates of pay and conditions of employment for part-time employees shall be negotiable, except for annual leave, long service leave and parental leave which is governed by other NSW industrial legislation. In the absence of an award where is no legal requirement to enter into a registered agreement through the "Industrial Relations Commission". I trust this information is of assistance lo you. 15 Then, on 18 January 1999, Mr. Ross wrote to the Department of Industrial Relations, Attention Mr. D. Archer, as follows: We are in receipt of your letter dated 16/11/98 maintaining that the calculations of your inspector re Ms Potts are correct. Your inspector Mr Frost, told us that as there in (sic) no award for part time employers under the Advertising Sales Representatives (State) Award, a full weeks wages has to be paid regardless of whether Ms Potts worked the full week or not. It is on this assumption that Mr Frost has calculated his entitlement for Ms Potts. However we are in receipt of advice from your Department that Mr Frost's statement to us is incorrect. In view of Mr Frost's incorrect assumptions about the application of the award in Ms Potts case, I request that you reconsider our offer. I would appreciate you: advising me of your decision on this request. 16 Mr. Archer replied to that letter on 28 January 1999 as follows: I refer to your letter of 21 (sic) January last wherein you dispute the Inspector's assertion that there is no provision in the subject award for part-time employment. We adhere to the view that there is no provision for part-time employment under the award cited in the summons. You refer to advice from this Department which expresses a view contrary to Inspector Frost. I am not in a position to comment on this. If you have something in writing from the Department to this effect, you might kindly send me a copy. 17 The Department of Industrial Relations brought proceedings before the Chief Industrial Magistrate alleging that Ms. Potts had not been paid her award entitlements. These proceedings succeeded, and on 27 August 1999 judgment was given against Comptran, pursuant to which Comptran was fined $500.00, ordered to pay Court costs of $52.00, witness expenses of $629.40 and professional costs of $300.00, and ordered to pay Ms. Potts $7,041.89, being the $5,995.55 underpaid plus interest of $1,046.34. 18 On 5 October 1999, the following article appeared in the Echo under the heading "Star newspaper fined": An Ocean Shores woman formerly employed by the Mullumbimby-based Saturday Star newspaper has won a case against the proprietors, Comptran Pty Ltd, in the Chief Industrial Magistrate's Court. Leanne Potts left her sales job with the Saturday Star two years ago, and took the company to court over three matters relating to her employment and pay. In a hearing in Sydney on August 27, the magistrate fined Comptran $500 plus costs, and awarded Ms Potts a total of $7,041.89 and witness expenses of $629.40, payable within 28 days. The directors of Comptran Pty. Ltd. are Ross Tucker and Harold Ross, both of Mullumbimby. The Saturday Star ceased publication on September 25. As of last Friday, Ms Potts had not received the sum owing to her, and neither had the fine been paid. Enforcement proceedings have been initiated against Comptran, which as of last Friday, was still registered with the Australian Securities Commission as a proprietary company. 19 A further reference to the matter occurred in an article in the Echo on 12 October 1999 concerning the local Council, as follows: … Cr Tucker's meal break was flavoured by the serving of a summons on behalf of Leanne Potts, who as a former employee of the defunct Saturday Star is owed $7,075 by the controlling company Comptran Pty Ltd, of which Cr Tucker is a director. The Councillor has been summoned to appear on November 23 at the Mullumbimby local court in order to be 'examined' for his ability to pay the debt. … 20 At about that time, Mr. Tucker and Mr. Ross had decided to close the Star as a weekly newspaper, and the last edition had been published on 25 September 1999. Commencing on 30 October 1999, Comptran published, under the same name, a monthly newspaper. The first edition contained the following article by Mr. Ross, which was read and approved for publication by Mr. Tucker: The New Look Saturday Star: For some weeks the closing of the Saturday Star as a tabloid has been the subject of all sorts of conjecture and reasoning especially by the Echo's David Lovejoy. The Echo's reporting and editorials blamed Ross Tucker [how strange] and the lack of business support. Therefore the starting of the paper was a mistake. Even Max Eastcott was to blame. The saviour of the Shire was out and about with large signs on his "bomb" during the election campaign. This had no influence on our decision to suspend activities. A lot of people in this Shire will always believe any sort of garbage they read about us but I will attempt to set the record straight. The Saturday Star ran for almost three years and would have battled on for a long time had it not been for the mad industrial laws in this country and one of our former employees. The ex-employee was employed to sell advertising on a casual basis and could work any time or day that she wished. Our first mistake!! She was in our employ for eighteen weeks in which she worked five days a week for 6 weeks, four days a week for 2 weeks, two days a week for 7 weeks and one week never worked at all. This ex-employee fought with every person in the office and eventually insisted that I sack two of our other employees or she would leave. When I refused she quit. She then took us to court for unfair dismissal, which was dismissed by the Magistrate of the Tweed Heads Court. Next we got a visit from a bureaucrat from the Dept of Industrial Relations who insisted we pay this former employee full wages for every week she was in our employ plus a car allowance of $187 per week plus holiday pay for the full eighteen weeks, even though only six full weeks of the eighteen were worked and one week she never worked at all. He advised that at the time of her employment there was no provision in the advertising sales award for part time employees and whatever hours worked she was to be paid as a full time employee. We offered an alternative payment. It was rejected, and we were taken to the Chief Magistrates Industrial Court in Sydney and ordered to pay approximately $8500 for the days the ex-employee did not work. As a direct consequence we decided to close down which resulted in five very faithfull (sic) and excellent employees losing their jobs. The Saturday Star is back in a new format and we will continue to keep residents informed of issues on a monthly basis. We will publish the new look Saturday Star at the end of each month, which means that we will be able to cover two Ordinary Meetings of council plus all the other meetings in between. This will no doubt upset anyone whether a developer, greenie, staff or straight who may try to sneak something through! We'll be watching!! 21 On 23 November 1999, a solicitor acting on behalf of Ms. Potts conducted a public examination of Comptran, represented by Mr. Ross, at Mullumbimby Local Court, in accordance with an Examination Summons issued by the Registrar on 12 October 1999. There followed some negotiations as to satisfaction of the amount owing by Comptran to Ms. Potts. On 24 November 1999, in accordance with instructions from Ms. Potts, the solicitor conveyed to Mr. Ross that "an up-front payment of $4,000.00 would satisfy the entire debt". On 25 November 1999, Mr. Ross indicated that the offer could be accepted. However, disagreements emerged as to the precise timing of the payment of the $4,000.00, and Comptran did not accede to a proferred document requiring payment of $4,000.00 within 7 days. 22 On 7 December 1999, the Echo published the article the subject of the proceedings. I will set the article out as transcribed in a schedule to the Statement of Claim, with the numbered paragraphs provided by that schedule: Advertisement "The ethics of journalism by Fast Buck$ " 1. Lets take a tiny portion of the spotlight away from those lovely chaps John Laws and Alan Jones for a moment and focus it on that august local publication the Saturday Star and its proprietors Ross Tucker and Harold Ross. 2. Readers may recall that during the last election campaign my car-sign featured the revelation that Ross Tucker and Harold Ross had been ordered by the courts to compensate former employee Leanne Potts more than $7000 for under-award payment. that sign also suggested that The Star had arranged for the hearing to be in Sydney rather than on the North Coast - in order to avoid adverse publicity during the election campaign. 3. This article is not about the ethics of paying people less than the award, which is a widespread practice in the Shire - as indeed is cash-in-the-hand, working while on benefits and "retraining" people at taxpayers' expense. That's life on the North Coast. Nor is it about The Star's extreme political bias, which we are all aware of and duly allow for - usually by throwing it out unread. 4. Rather it is about the morality of a newspaper using its power of publicity to push its own side of a private dispute and thereby intimidating the other party. 5. It is also about the methods used by the far right to achieve their objectives. 6. According to Mrs Potts her dispute with management was related to personality matters rather than performance. She describes a Ross Tucker who is domineering and belittling, who shouts and bangs the desk and says things like, 'We need less skirts around here and more pants'. She was receiving a lower wage than two other staff members whom she was training (the latters' wages were topped up by the government) and after a variety of unseemly confrontations, the crunch came when an attempt was made to put her on a commission rather than a wage. In reply to her protestations, Ross Tucker allegedly shouted, 'I don't give a f*** about you and your kids!' 7. After her acrimonious departure Mrs Potts filed suit for unfair dismissal. The Star asserts that her case was 'dismissed by the magistrate' but the documents show that in reality Mrs Potts withdrew the matter. This was because a) she didn't have money for lawyers and b) she believes small employers should be able to sack staff over personal incompatibility. Instead she decided to press for her legal wage entitlements; Tucker was not about to get away with his actions completely. 8. The Industrial Relations Court subsequently found that she had been underpaid and ordered compensation of over $7000. It appears that instead of appealing to a higher court The Star decided to stonewall. She was offered $1000 plus $20 per week for 80 weeks - if The Star lasted that long. Evidently aware of the stress that the dispute and the protracted legal action had placed on her; The Star also apparently decided that by applying a little more pressure Mrs Potts might be induced to back off and give up the fight altogether. 9. The October 30 issue (the paper closed but resurfaced as a small monthly) ran a story unambiguously making a case that the paper's closure/reduced circumstances were directly due to Mrs Potts and 'the mad industrial laws'. 10. 'As a direct consequence we decided to close down which resulted in five very faithful and excellent employees losing their jobs.' 11. This explanation is ludicrous given that everyone familiar with small business economics knew that The Star must have been losing hundreds of dollars every week for its entire existence. That it continued at all was owing to the political platform it provided for Ross Tucker; unable to compete on a level playing field in the pages of The Echo or The News he needed a controlled medium to further his mayoral ambitions. Once those were squashed in the election of September 11 the paper had nowhere to go. Why didn't they blame Tom Wilson as the cause of the paper's demise? They had to pay him $10,000 in settlement of a defamation suit over misrepresentations they made about him. 12. The Star article also strongly implied that Mrs Potts was incompetent, disloyal and slack in her performance of the job. The reference Tucker gave her before the whole thing blew up suggests otherwise: 'She is a highly competitive salesperson who dramatically increased the advertising content of our newspaper.' Tucker has of course subsequently tried hard to get the reference back. In any case if he wants someone to work on a commission basis how could he complain about her alleged irregular hours. 13. At the time my car-sign appeared Mrs Potts was working at the Coolamon Nursing Horne near Mullumbimby. Ross Tucker is a regular visitor to the premises and is apparently a friend of the management there. Not long after my car-sign appeared in town management started to give Mrs Potts awkward shifts and the staff cold-shouldered her. They soon made it impossible for her to continue working there; only two out 25 staff remained friendly, Mrs Potts says the manageress told her, 'If we'd known you were suing Ross Tucker we would never have employed you'. 14. Because The Star refused to pay up the amount awarded by the Court Mrs Potts forced the proprietors to the Magistrate's Court to ascertain financial status and ability to pay. At that hearing Harold Ross kept repeating that Buck$'s car-sign had caused the paper a lot of damage and they should not therefore have to pay. 15. This was doubly irrelevant. In the first place Mrs Potts had no input whatsoever into my sign and I didn't know her from a bar of soap at the time; my information was third-hand, though obviously reliable. Secondly if The Star believes my sign to have been damaging they should have sued me instead of bringing it up at a hearing about their finances. Evidently they'd rather hassle a defenceless woman than someone who knows the ropes. 16. To top it all off the proprietors threatened to do a further story in the November issue if she didn't compromise. At the time of writing she was contemplating a settlement offer of $4000, but was baulking at a confidentiality clause (bit late now, Ross). Once she indicated acceptance they lowered the offer to $1000 plus $250 per week! 17. My advice to Mrs Potts is to press for the full amount, to sue for defamation and to bankrupt the paper and its proprietors. They have after all made it almost impossible for her to get employment in the Shire. Although the article didn't actually name her, it can only refer to one person, and in this small Shire word spreads quickly especially as the issue had already been canvassed in The Echo. 18. Leanne Potts is hardly a greenie, yet she has been forced by the ruthless unfairness she has encountered at The Star to approach the opposite end of the political spectrum to get redress. I have told her, of course, that virtually every article The Star prints contains a similar degree of misrepresentation, ugliness and abuse of power and that none of this surprises me. Indeed, if people understood what Tucker was all about he would have no supporters at all. And how can Harold Ross be considered any better when he works so closely with him? 19. Conservatives, including some pale green ones in the hills behind Mullumbimby, usually prefer to amble along determinedly pretending everything's OK until one day reality turns and bites them personally. Then they typically rage radical with indignation for a while, usually however quickly giving up the fight - either because 'life's too short' or because silent bitterness is easier. Ross Tucker counts on it. I despair of it. Leanne Potts is to be congratulated for rare resolve in standing up to tho Shire's biggest bully. 20. Incidentally Leanne confirms the allegation made by another former staffer that Ross Tucker has been in regular telephone contact with Max Eastcott since the latter's departure. Given Tucker's obvious relationship with senior staff and the fact that Ray Kent has strongly defended those same staff I hazard that Eastcott still has a significant say in the running of the Shire. I wonder if Margaret River knows he has a second job? 21. Talking of journalistic ethics, who is this character who has written rabid redneck propaganda in the Saturday Star while hiding behind the pseudonym 'Louise D'Anee'? The Star is anxious to keep his/her identity secret, but rumour has thrown up the names of two doctors from north of the Shire. Ian Kingston is not one of them. 23 Mr. Tucker's Amended Statement of Claim pleaded eight imputations. As noted earlier, two of them were found to be made and to be defamatory against Mr. Tucker only. However, the jury also found that two further imputations were made as against Mr. Tucker, but were not defamatory. These were imputations (c) and (h): (c) That (Mr. Tucker) as a newspaper proprietor, and being in control of the contents of The Saturday Star, abused his power of publication by misrepresenting the facts concerning other people in virtually every article that appeared in that newspaper for the purpose of furthering his personal causes. (h) That (Mr. Tucker) is a bully. 24 The jury also found that the following imputation (f) was not conveyed: (f) (Mr. Tucker) as a proprietor of The Saturday Star caused to be published defamatory misrepresentations about Mr. Tom Wilson such that he and Mr. Ross had to pay Mr. Wilson $10,000. 25 Echo Publication's Defence pleaded truth, contextual truth, qualified privilege and comment. In relation to contextual truth, the Amended Defence pleaded the following imputations in par.7(a): (xvii) (in relation to the plaintiffs imputation (e) only) that the plaintiff is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language; (xviii) that the plaintiff behaved abusively to an employee by shouting at her, insulting her, making sexist remarks and using obscene language; (xix) that the plaintiff conducted the affairs of the Saturday Star Newspaper so that it made under award payments to Leanne Potts; (xx) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to fail to pay Leanne Potts compensation in excess of $7,000 as ordered by the Industrial Relations Court for under award payments; (xxi) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to apply pressure on Ms Potts in order to delay and avoid paying her entitlements as ordered by the Industrial Relations Court for under award payments; (xxii) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to publish as article falsely claiming that the paper's closure/reduced circumstances were due to Ms Potts and "the mad industrial laws"; (xxiii) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to publish an article falsely claiming that Ms Potts was incompetent, disloyal and slack in her performance of her job; (xxiv) that the plaintiff as a proprietor of the Saturday Star Newspaper behaved in a ruthlessly unfair manner to Ms Potts. 26 Mr. Tucker's Reply relied inter alia on malice in relation to the defence of qualified privilege. 27 Some days into the hearing, Fast Buck$ sought to rely on a defence essentially in the same terms as the Echo Publication's defence. The primary judge permitted him to rely on truth, contextual truth and comment; but did not permit him to rely on a defence of qualified privilege at common law or under s.22 of the Act. DECISION OF PRIMARY JUDGE 28 The primary judge made findings favourable to the credit of Mr. Tucker and his witnesses, and generally adverse to the credit of witnesses called for Echo Publications, especially Ms. Potts. Principally on the basis of those findings, he rejected the defences of truth and contextual truth. 29 In relation to qualified privilege, either at common law or under s.22 of the Act, the primary judge gave the following reasons for rejecting the defence relied on by Echo Publications: 254 In my opinion, the only basis upon which the subject article could be regarded as being published on an occasion of qualified privilege is as a reply by Ms Potts to the Star article, exhibit K. In my view, otherwise, the community at large in the Byron Council area had no duty or legitimate interest in receiving the publication. Although Mr Tucker was a member of the council, nothing in the subject article related to the performance of his public duties. In my opinion, with the single qualification mentioned, the subject article did no more that feed idle curiosity or a desire for gossip. Publication by Echo and Mr Fast Buck$ could in no way be said to arise out of a legal or moral duty. 255 However, Ms Potts was entitled to reply to the attack made upon her by the article, exhibit K, and she was entitled to do so through the Byron Shire Echo, which circulated in much the same area as the Star. Echo had, I think, a legitimate interest in defending Ms Potts and, to the extent it did so, derived her privilege. 256 Although it is clear law that Ms Potts was entitled to defend herself with vigour and, in the process, make defamatory remarks against her accuser, she was required to keep to defence and not proceed to offence. As Lord Oaksey put it in Turner v MGM Pictures (1950) 1 All ER 449: "There is, it seems to me, an analogy between the criminal law of self defence and a man's right to defend himself against written or verbal attacks. In both cases he is entitled, if he can, to defend himself effectively and he only loses the protection of the law if he goes beyond defence and proceeds to offence. That is to say the circumstances in which he defends himself, either by acts or by words, negative the malice which the law draws from violent acts or defamatory words. If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or with any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize fighter you are not bound to adhere to the Queensbury Rules in your defence." 257 In my opinion, the subject article went far beyond matters relevant to Ms Potts rebuttal. The subject article made allegations against Mr Tucker, quite unrelated to any possible attack by the Star upon Ms Potts, which moreover, did not even purport to constitute her defence to the attack. Rather the subject article, read as a whole, was merely a vehicle for Mr Fast Buck$ and Echo, gratuitously, to make extremely derogatory and unsubstantiated allegations against Echo's competitor and its proprietors. Any privilege derived from Ms Potts was, in the process, in my opinion, well and truly lost. In other words, in my view, Mr Fast Buck$ and Echo in writing and publishing the subject article went far beyond the purpose for which any privilege existed. 258 I reject the defence of qualified privilege. 30 In relation to comment, the primary judge referred to s.30 of the 1974 Act, and referred to Radio 2UE Sydney v. Parker (1992) 29 NSWLR 448 as to the test to be adopted in determining whether the defendant was making comment or statements of fact. He continued: 262 In relation to this aspect of the matter, I agree with the submissions of Mr Hale that, considering imputations 1 and 2 in the context of the relevant parts of the subject article, the defamatory imputations were conveyed as fact and not as comment. That is how, in my opinion, the ordinary reasonable reader would receive them. In any event, however, the defence of comment would fail as the statements of fact upon which each comment, if it was a comment, were made, were not matters of substantial truth in accordance with my previous findings and were, accordingly, not proper material for comment for the purposes of s30. Nor in my view did any comment relate to a matter of public interest. GROUNDS OF APPEAL 31 Echo Publications appeals on the following grounds: Imputations erroneously found 1. Neither of the imputations set out in paragraphs 6(e) and (g) of the Amended Statement of Claim were reasonably capable of arising from the matter complained of and should not have been left to the jury. 2. The finding by the jury at the section 7A trial that imputation 6(e) was conveyed about the first respondent was unreasonable and inconsistent with that jury's finding that the same imputation was not conveyed of and concerning the second plaintiff, the matter complained of being identical as it applied to both such plaintiffs. Qualified privilege 1. The learned trial judge erred in rejecting the defence of qualified privilege at common law and under section 22 of the Defamation Act (Judgment [258]). 2. Having found that the appellant published the matter complained of relevantly on an occasion of qualified privilege (Judgment [255]), his Honour erred in finding that the appellant lost the privilege for the reasons expressed in [257] of the judgment. 3. His Honour erred in failing to give reasons why the defence of qualified privilege under section 22 of the Defamation Act was not made out. 4. His Honour erred in failing to find that the appellant's conduct in publishing was reasonable in the circumstances because the appellant was providing a public forum to enable a person the subject of a public attack by the first respondent to answer that attack. Contextual truth 1. His Honour erred in failing to refer to the evidence of Ms Campbell and in failing to give reasons for accepting or rejecting that evidence. 2. His Honour erred in failing to find (following acceptance of Ms Campbell's evidence) that the first respondent had knowingly made under award payments to Ms Potts and erred in making the findings set out at [223]-[224] of the judgment. 3. His Honour erred in rejecting the defence of contextual truth. Comment 1. The trial judge erred in rejecting the defences of comment in respect of imputation 6(e). 2. The trial judge erred in failing to give reasons why the defences of comment were not made out in respect of imputation 6(e). 32 Fast Buck$ appeals on the following grounds: 1. The appellant adopts the grounds of appeal as filed by the appellant in 40761 of '05. 2. The appellant says further that the learned judge erred by conducting a re-agitation, in effect a rehearing, of a matter at the heart of the alleged defamation which had been decided in the Industrial Magistrates Court some years before but not at the time appealed by the plaintiff. 3. In the alternative His Honour in erred by conducting such review i) without the benefit of transcript or written reasons for judgement ii) on the unjustified assumption that that matter was decided upon oral evidence alone iii) without reference to the extensive note and oral evidence of an officer of the court, being the prosecutor in the said Industrial Magistrates Court matter, perhaps the only witness in the case without a discernible axe to grind and whose evidence supported the defendants' arguments. His Honour elected to ignore the existence of this witness and her documents and in so doing abrogated his oath of office and brought the courts into disrepute. 4. His Honour conducted such review in contradiction of his subsequent effective finding that an employer's behaviour in the workplace is not a matter for public debate, which is itself an error of law. 5. His Honour erred in i) preferring the recollections of witness Harold Ross (co-director of Comptran Pty Ltd) whose stated position was that he 'didn't know what was going on' in the industrial court's proceedings, but whose recollection was clear on points that supported his position ii) accepting the stated position of Ross Tucker, and of Harold Ross, that they thought that the Industrial Magistrates Court had ruled that part-time workers must by law be paid full-time wages which was why they didn't appeal at the time - a proposition which any reasonable employer would know to be absurd, and which no reasonable judge could credit. 6. His Honour failed to distinguish between the Defendants in terms that i) the Second Defendant was never asked for a retraction or apology ii) the Second Defendant did not 'aggravate' matters by defending himself in terms of bringing witnesses - an apparently unforgivable tactic. 7. His Honour erred in not allowing the appellant the defence of qualified privilege. 8. His Honour erred in not allowing costs for the Appellant in relation to the 7A trial deletion of Harold Ross from the proceedings, and in not even addressing the relevant submission. 9. Neither of the imputations set out in paragraphs 6(e) and (g) of the Amended Statement of Claim were reasonably capable of arising from the matter complained of and should not have been left to the jury. 10. The finding by the jury at the section 7A trial that imputation 6(e) was conveyed about the first respondent was unreasonable and inconsistent with that jury's finding that the same imputation was not conveyed of and concerning the second plaintiff, the matter complained of being identical as it applied to both such plaintiffs. 33 In relation to both appeals, Mr. Tucker relies on the following grounds in a Notice of Contention: Qualified privilege 1. The appellant was not entitled to succeed on this defence at common law or under section 22 of the Defamation Act because: (a) the matter complained of was a riposte by Ms Potts to a response published in the Saturday Star on 30 October 1999 (exhibit K) to attacks on the Saturday Star, Harold Ross and the first respondent arising from the proceedings in the Chief Industrial Magistrate's Court and the closure of the Saturday Star; (b) the conduct of the appellant in publishing the matter complained of was not reasonable; (c) the appellant was actuated by malice in publishing the matter complained of. Contextual truth 2. To the extent the appellant relies on qualified privilege, the appellant was actuated by malice in publishing the matter complained of. 3. To the extent the appellant relies on public interest, the contextual imputations do not relate to matters of public interest. 4. Contextual imputations 3 and 4 are not defamatory. 5. Contextual imputation 7 was not a matter of substantial truth because the 30 October 1999 article in the Saturday Star (Exhibit K) did not claim that Ms Potts was slack in her job. 6. Any or all of contextual imputations 3, 5, 6, 7 and 8 did not so affect the first respondent's reputation such that the imputations of which he complains did not further injure his reputation. Comment 7. To the extent the appellant relies on public interest, the alleged comment did not relate to matters of public interest. 8. The appellant was actuated by malice in publishing the alleged comment in the matter complained of. 34 Mr. Tucker has also put on a cross-appeal to both appeals, relying on the following grounds: 1. That the findings of the jury at the section 7A trial that imputations (c) and (h) (which are pleaded in paragraphs 6(c) and (h) of the Amended Statement of Claim) were not defamatory, were perverse. 2. That the finding of the jury at the section 7A trial that imputations (a), (b), (d) and (f) (which are pleaded in paragraphs 6(a), (b), (d) and (f) of the Amended Statement of Claim) were not conveyed by the matter complained of, were perverse. ISSUES 35 I will deal in turn with the following issues: 36 First, the question of imputations raised in both appeals; namely, whether the publication had the capacity to carry the two imputations found by the jury, and secondly, whether the jury finding in relation to the first of the two imputations found was unreasonable, because inconsistent with a contrary finding made in relation to Mr. Ross. 37 Second, I will deal with alleged factual errors of the primary judge. This concerns grounds 2-5 of Fast Buck$' appeal, and the grounds concerning contextual truth in the Echo Publications appeal. 38 Third, I will deal with the issue of qualified privilege, which can relate to the Echo appeal only, unless Fast Buck$ succeeds in his appeal against the refusal of the primary judge to allow him to rely on qualified privilege. 39 Fourth, I will deal with qualified privilege under s.22 of the Defamation Act, this also relating only to the Echo appeal, unless Fast Buck$ succeeds in his challenge to the primary judge's refusal to allow him to rely on qualified privilege. 40 Fifth, I will deal with the question of comment, raised in both appeals. 41 Sixth, I will deal with the adequacy of reasons, raised in both appeals. 42 Seventh, I will deal with Mr. Tucker's cross-appeal, concerning findings adverse to him by the jury in relation to imputations. Mr. Tucker has indicated that he wishes to pursue this cross-appeal in the event that the appeal is successful, but not otherwise. 43 Eighth, I will deal with Fast Buck$' challenge to the primary judge's refusal to permit him to rely on qualified privilege. 44 Ninth, I will deal with Fast Buck$' appeal on the question of damages. 45 Tenth, I will deal with Fast Buck$' appeal concerning the costs of the 7A hearing, in relation to Mr. Ross's claim. IMPUTATIONS 46 Mr. McClintock SC for Echo Publications submitted that the matter complained of was not capable of conveying either imputation (e) or imputation (g). 47 As regards the latter, Mr. McClintock submitted that the imputation "shouting at them using obscene language" was not capable of being conveyed, because only one instance of use of obscene language, addressed only to one employee, was given. 48 As regards the former, Mr. McClintock submitted that the assertion that a counter offer was put could not convey refusal to honour an agreement or offer; and that since the relevant assertion was of something "they" did, referring to both Mr. Ross and Mr. Tucker, the jury's acceptance of the imputation in relation to Mr. Tucker was inconsistent with its rejection of it in relation to Mr. Ross. 49 In my opinion, these challenges fail. 50 As regards imputation (g), the matter asserted was that Mr. Tucker was domineering, belittling and shouts, suggesting a general pattern of behaviour; and in that context, the particular instance of use of obscene language towards one employee could be understood as an example of this general pattern, and thus as indicating the nature of this general pattern. 51 As regards imputation (e), the matter asserted to the effect that a settlement offer from the proprietors was accepted by Ms. Potts, and that the proprietors then lowered their offer. In my opinion, that is capable of conveying that the proprietors refused to honour an agreement they had entered into; and that is not materially different from the pleaded imputation that they refused to honour their offer. 52 The assertion that "they" lowered their offer comes shortly after a reference to "Ross", plainly meaning Mr. Tucker. The article generally is directed more against Mr. Tucker that against Mr. Ross. In my opinion, the jury could reasonably have taken the reference to "they" lowering their offer as also being directed against Mr. Tucker rather than Mr. Ross. FACTUAL ISSUES 53 Fast Buck$ made a number of criticisms of the primary judge's factual findings, including the following: (1) The primary judge should not have made findings contrary to those of the Chief Industrial Magistrate. (2) The primary judge disregarded inconsistencies in Mr. Tucker's evidence concerning the nature of Ms. Potts' employment. (3) It was not believable that Mr. Ross and Mr. Tucker, in September and October 1999, believed that the Chief Industrial Magistrate had decided that part-time employees had to be paid as if they were full-time; particularly when, as the primary judge noted, Mr. Tucker did not thereafter pay other part-timers full-time wages. (4) The primary judge failed to deal adequately with evidence given by Ms. Campbell, the solicitor who prosecuted Comptran before the Chief Industrial Magistrate. (5) The primary judge failed to take into account, on Mr. Tucker's credibility, his attitude to his own publications including that attacking Ms. Potts. (6) The primary judge erred in disregarding evidence from Ms. Bartlett's diary as to the mood of the Star's workplace. (7) The primary judge erred in disregarding anomalous documents concerning work done by another employee Mr. Waters. 54 Mr. McClintock submitted that Ms. Campbell's evidence showed that she had conversations with Mr. Ross that indicated that he understood that the issue before the Chief Industrial Magistrate was the factual question whether Ms. Potts was employed on a full-time or part-time basis, not whether employees employed on a part-time basis had to be paid full-time award rates. This evidence damaged the credibility of Mr. Ross and Mr. Tucker, but was not referred to by the primary judge. Principles 55 The principles to be applied by this Court in considering challenges to factual findings of a primary judge are those set out in Fox v. Percy [2003] HCA 22, (2003) 214 CLR 118, at [21]-[31]: 21. In New South Wales a right of appeal from a judgment of the District Court lies to the Supreme Court pursuant to the District Court Act 1973 (NSW), s.127(1). In the present case such appeal lay as of right. Within the Supreme Court such an appeal is assigned to the Court of Appeal. The character and features of the appeal are governed by the Supreme Court Act 1970 (NSW). Section 75A of that Act provides, relevantly: "(5) Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing. (6) The Court shall have the powers and duties of the court ... from whom the appeal is brought, including powers and duties concerning: (a) ... (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. (7) The Court may receive further evidence. (8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) ... (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires." 22. The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal. 23. The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. 24. Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons. 25. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes , the majority of this Court reiterated the rule that: "[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it." As this Court there said, that approach was "not only sound in law, but beneficial in ... operation". 26. After Warren v Coombes , a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde , Abalos v Australian Postal Commission and Devries v Australian National Railways Commission . This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges. 27. The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute. 28. Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. 29. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. 30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co ( The "Palitana" ): "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." 31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. 56 The principles to be applied when considering if absence of reference to evidence justifies a finding that reasons are inadequate are those set out in Mifsud v. Campbell (1991) 21 NSWLR 725 at 728: In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court (at 667) said that it was right to describe the giving of reasons as "an incident of the judicial process" although a normal but not a universal one. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (at 278) makes some comments upon that holding, and goes on to say (at 281) that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge — as the defendant's denial of having consumed alcohol — may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed"— to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires. Findings of the Chief Industrial Magistrate 57 Fast Buck$' submissions as to the effect of findings of the Chief Industrial Magistrate raised different issues. There is no question of res judicata or issue estoppel, because the parties to the present proceedings were not parties to the proceedings before the Chief Industrial Magistrate. However, there are principles concerning abuse of process that could be relevant. 58 In Hunter v. Chief Constable of the West Midlands [1982] AC 529 at 541, Lord Diplock characterised the proceedings before him as follows: The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made. 59 In Walton v. Gardiner (1993) 177 CLR 378 at 397, Mason CJ, Deane and Dawson JJ said this: … proceedings before a court should be stayed as an abuse of process, if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings. 60 And in Rogers v. The Queen (1994) 181 CLR 251 at 273-4, Deane J and Gaudron J say this: From earliest times, the principle embodied in the maxim res judicata pro veritatem accipitur has been seen as necessary to protect against "the scandal of conflicting decisions". Issue estoppel and res judicata or cause of action estoppel are mechanisms which protect against conflict of that kind. However, the principle has an existence beyond those mechanisms so that, for example, it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial. At least that is so unless there is a less onerous burden of proof or there is fresh evidence or proof of fraud. 61 I do not think these principles apply in this case, for two reasons. 62 First, it is not Comptran that is challenging the correctness of its conviction, but rather one of its directors. This distinction is important. Mr. Tucker was not a party to the proceedings before the Chief Industrial Magistrate, and took no personal part in those proceedings. 63 Second, although there is some overlap between the issues in this case and those before the Chief Industrial Magistrate, the issues in this case are considerably wider; and in my opinion the Court deciding this case should not be inhibited in reaching its own conclusions on credit-related matters because of a decision made in proceedings between other parties affecting only a part of the contested factual issues in this case. 64 So Fast Buck$' contentions on this matter fail. However, they do bring into focus what is and what is not decided by this case. This case leaves undisturbed and of full force and effect the finding made beyond reasonable doubt by a competent court and unchallenged on appeal, against Comptran, that it employed Ms. Potts as a full-time employee, and in breach of its legal obligations failed to pay her what it was legally obliged to pay her. This present case establishes nothing against Ms. Potts, because she is not a party to this case, any more than Mr. Tucker was a party to the proceedings before the Chief Industrial Magistrate. Assuming that the factual findings in this case remain undisturbed, this case merely establishes, as between Mr. Tucker on the one hand, and Echo Publications and Fast Buck$ on the other, that Mr. Tucker's version as to the terms of Ms. Potts' employment is the correct one, which must be applied in giving judgment in these proceedings. As between Ms. Potts and Comptran, however, her version of her employment remains, beyond reasonable doubt, the correct one, which it would be an abuse of process for Comptran to challenge otherwise than by appeal. 65 In one sense, these may be considered conflicting decisions; but in our adversary system, this cannot be entirely avoided where different parties are involved in different cases, because there are limits to what can be achieved by the principles of res judicata, issue estoppel and abuse of process. Mr. Ross' Understanding and Ms. Campbell 66 There is force in the submission that it is implausible that Mr. Ross and Mr. Tucker could have believed, contrary to the fact, that the Chief Industrial Magistrate had decided the case against them on the basis that they had to pay part-time employees full-time award wages, because the award made no provision for part-time employees. 67 However, there is a suggestion to that effect in the report of 10 July 1998 prepared by Inspector Frost (Blue 63 OQ), and the correspondence of December 1998 and January 1999, particularly the letter of 28 January 1999, did not clearly refute that approach. Although Mr. Ross was present at the proceedings before the Chief Industrial Magistrate, he may not have understood what was happening. 68 The evidence of Ms. Campbell does not in my opinion take the matter much further. The primary judge accepted (judgment par.[223]) that the Chief Industrial Magistrate did in fact accept Ms. Potts' evidence that from the outset she was employed on a full-time basis; so to that extent the primary judge did act on Ms. Campbell's evidence. The only significant respect in which Ms. Campbell's evidence could take the matter further was her evidence of a discussion with Mr. Ross. Her oral evidence (Black 512 CD) was "he said that the issue was that she only worked two days, not full-time, which was our case"; and this reflected her note of the conversation (Blue 271 PQ) "Issue – only worked 2 days not F/T". However, neither her oral evidence nor the note shows that Ms. Campbell made it clear to Mr. Ross that the issue was whether or not Ms. Potts was in fact employed full-time, not whether the award required her to be paid on a full-time basis even if she did not in fact work full-time. 69 Accordingly, these matters do not, either alone or in combination with other matters, make the primary judge's decision contrary to incontrovertible facts, or glaringly improbable, or contrary to compelling inferences (Fox). Nor is the evidence of Ms. Campbell of such importance that failure to advert to it explicitly is a deficiency of reasons (Mifsud). Other Matters 70 There is some force also in other matters relied on by Fast Buck$. In particular, it is arguable that Mr. Tucker's attitude, displayed in the witness box, to the very damaging attack made on Ms. Potts by the article in the Star, was damaging to his credit. However, again, I do not think any of these matters, either alone or in combination with other matters, are of the kind referred to in Fox v. Percy. Most of the matters are matters of detail and do not have such significance in the overall evidentiary material as to require specific mention, in accordance with the principles of Mifsud. 71 As regard Mrs. Bartlett's diary, I would interpret the primary judge's comments as indicating a preference for the fuller picture given by Ms. Barrett's oral evidence to an impression that could be given by the cryptic notes in the diary, rather than as indicating disbelief of the notes by reason of the oral evidence. So interpreted, I do not think the primary judge's comments indicate error. 72 The rejection of these submissions concerning the primary judge's decision on the facts means that his decision on the issues of truth and contextual truth cannot be overturned. QUALIFIED PRIVILEGE 73 Mr. McClintock's submission was to the effect that the primary judge erred in not considering whether the matter conveying the defamatory imputations was part of Ms. Potts' response to an attack on her, and also relevant to that response; that he should have answered both those questions in the affirmative; that accordingly the defence of qualified privilege should have succeeded, unless Mr. Tucker established malice; and that the primary judge did not find malice, and could not properly have found malice. 74 Mr. Hale SC for Mr. Tucker submitted to the effect that the matter complained of was not published on an occasion of qualified privilege, because it was a riposte to a response to an attack, and was an attack by Fast Buck$ on Mr. Tucker; the article was not in fact Ms. Potts' response; the defamatory imputations were not relevant to any attack on Ms. Potts; and the publication by Echo was actuated by malice. 75 I will consider in turn some general principles; the question of riposte to a response; whether the defamatory imputations were Ms. Potts' response; whether they were relevant to an attack on her; and the question of malice. General Principles 76 The general principle relied on by Echo is usefully set out in Bass v. TCN Channel Nine Pty. Limited [2003] NSWCA 118, (2003) 60 NSWLR 251, at [58]-[60], by Handley JA (concurred in by Spigelman CJ at [2] and Wood CJ at CL at [150]): 58 The common law has long recognised that a person who has been publicly attacked is entitled to defend himself before the same forum and to do so under qualified privilege. Adam v Ward [1917] AC 309; Norton v Hoare (No 1) (1913) 17 CLR 310; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 (Loveday); Penton v Calwell (1945) 70 CLR 219 . The earliest cases involve replies to attacks that had already been published, but in Loveday the newspaper published a letter to the editor which attacked a local council together with the latter's response. 59 Starke J explained this head of qualified privilege in Loveday, at 515: "A man who attacks another in or through a newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself. He has appealed to the public and provoked or invited a reply. A person attacked has both a right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply". 60 TCN itself was not attacked, and did not have any privilege in its own right (Loveday at 514 per Latham CJ). The Union had the privilege, but the media enjoy a derivative privilege for the reasons explained by Dixon J in Loveday at 519: "… If the criticism has been addressed to the public at large ... the privilege would cover a publication of the answer in the newspaper or in any other manner that would reach the public generally. A privilege would be of no value if the means of exercising it were not also protected. If the party attacked is given a privilege to reply through the public press, the publisher ... must also enjoy an attendant privilege". See also Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448, 459-61. Relevant also is a comment made by Spigelman CJ at [41]: 41 The privilege of the third party publisher is not based on the motive of the person who replies to the attack. It is based on the implicit consent by the attacker to the publication of a riposte. 77 The defamatory material must be relevant to the occasion of qualified privilege: see Adam v. Ward [1917] AC 309; Bashford v. Information Australia (Newsletters) Pty. Limited [2004] HCA 5, (2004) 218 CLR 366. However, considerable latitude is to be allowed to a person defending himself or herself against attacks and accusations made against him or her: Penton v. Calwell (1945) 70 CLR 219 at 233-4, 243 and 250. Riposte To A Response 78 Mr. Hale submitted that qualified privilege could not attach to the Echo article by reason of it being a response to the Star article of 30 October 1999, because that article was itself a response to an attack on the Star and on Mr. Tucker made by the Echo articles of 5 October 1999 and 12 October 1999. He relied on the decision of Nathan J in Kennett v. Farmer [1988] VR 991, in which the following appears, at 1003-1004: I conclude that a riposte to an allegedly defamatory retort, itself made in response to a source defamation, is not protected by qualified privilege for the following reasons. (1) To allow an initial defamer to have a right of reply to the retort of the victim would defeat the policy upon which the privilege of a communication made in pursuance or protection of an interest is founded. The reverse side of the proposition reveals the error. If the victim by responding gives to the defamer a qualified privilege to riposte he would severely inhibit his own rights of self defence. If a victim, in protecting his own interests and defending himself opened up that defence to a further right of another defamatory attack upon him, not only would he be apt not to exercise the right of self defence, but equity would demand that his rejoinder to the riposte would also be privileged (so long as it too was commensurate with the defamatory nature of the riposte). Thus the so-called public interest in allowing vigorous exchanges between political personalities would overwhelm the individual interests of less well-known litigants in these and other cases. It is not the law to allow for one class of defence to be restricted to a particular class of litigants, such as "public figures". That American principle has no application here. (2) A defamer permitted a privileged riposte would, in effect, benefit from his own tortious act. Assuming the original defamation was unjustified and one to which the victim retorted, if the defamer were allowed a riposte, then he would be benefiting from his original tort by having the right of second reply. This position would be contrary to a fundamental principle of the law of torts, namely that a tortfeasor is not entitled to benefit from his own wrong doing. If that proposition needs any authority, it is to be found in Salmond on the Law of Torts, 19th ed., p. 568 et seq. (3) A guileful defamer could entice a victim into replying knowing that his riposte would be qualifiedly privileged and thus the defamer would be certain of at least two strikes against the victim, the victim's defence being overwhelmed by the riposte. It would be churlish of the Court not to recognise that the victim's rejoinder to the riposte might well be beyond that which the T.V. and print editors consider the public's attention span. The electronic media, in particular, deal with the public issue of the moment, perhaps measured in days rather than weeks. The print media permits a more measured exchange, but the courts are familiar with editor's notations that "this correspondence is now closed". (4) A victim exercising his right of self defence would be impliedly consenting to a further attack or riposte being made upon him. It would be churlish of this Court not to recognise the current and provocative way in which public affairs are now conducted. The electronic media now permits almost instant reply and comment upon purported defamations. Whether such a comment or reply is carried by the electronic media is not determined by the alleged defamer or the victim, but is decided upon by editors and sub-editors who publish or broadcast that which they deemed to be newsworthy. It is in the nature of journalism, whether in the print or electronic media, to elicit a response to any given comment. Thus if the concept of qualified privilege is extended beyond the right of self defence to a riposte and then a rejoinder and then a surrejoinder, the participants could be enticed into a mutually satisfying exchange of defamations which would neither educate or inform the public. The privilege should not be extended so as to subvert the theoretical foundations upon which it rests, nor to debase the reputations of either defamer or victim: see Adam v. Ward [1917] A.C. 309. See also Amalgamated Television Services Pty. Ltd. v. Marsden [2002] NSWCA 419 at [1223]-[1224]. 79 I accept that, in at least some cases, a riposte to a response will not have the benefit of qualified privilege. The rationale of this aspect of qualified privilege is that the person allegedly defamed has, by attacking the alleged defamer in the media, invited or provoked a reply and thus implicitly consented to its publication to the audience to whom the initial attack was addressed; and this rationale is substantially undercut if it was the alleged defamer who began it all by attacking the person allegedly defamed, so that the latter's "attack" was itself a response having the benefit of qualified privilege. 80 The limits of this doctrine have not yet been clearly established. In Kennett, Nathan J talks about a "source defamation" and an "initial defamer", suggesting that the doctrine applies only if the person seeking to rely on qualified privilege of the kind in issue here had initially defamed the plaintiff. If that is correct, it would seem that a plaintiff seeking to defeat a defence of qualified privilege on this basis should put on a reply alleging the initial defamation, so that the question whether there was an initial defamation could be properly considered. Presumably issues of publication and defamatory imputation would arise, and the defendant could presumably put on a rejoinder raising issues such as absolute and qualified privilege. 81 Whether or not the initial publication was a defamation, a question could arise whether the plaintiff's response was not a defamation of the defendant because it had the protection of the same kind of qualified privilege as the defendant is seeking to rely on. It seems unlikely to me that a plaintiff could defeat a defendant's defence of qualified privilege on the basis of the Kennett doctrine unless its publication, in so far as it was defamatory of the defendant, was such as would itself have the protection of this same kind of qualified privilege. 82 None of these issues were raised by the plaintiff's pleading in this case. At first instance, no finding was sought or made as to whether Ms. Potts could be considered as having published the October Echo articles, whether they were defamatory of the Star and/or of Mr. Tucker, whether they would in any event be protected by absolute or qualified privilege, whether they could fairly be regarded as an "attack" on the Star or Mr. Tucker, or whether the Star's attack on Ms. Potts was a response to it such as would itself have the protection of qualified privilege. 83 Mr. Hale submitted to this Court that Ms. Potts gave the information in the October Echo articles to the Echo, knowing the Echo would publish the information and that it would suggest that the newspaper closed down in order to avoid paying her debt; and that accordingly, Ms. Potts did not have the benefit of qualified privilege on which the Echo could rely. However, no submission was made to the effect that anything in the October Echo articles was untrue, or would be defamations not having the protection of defences at common law or under the Act. 84 In my opinion, quite apart from the question whether the articles can be regarded as publications by Ms. Potts, for Mr. Tucker to have the benefit of the Kennett doctrine, it would have been necessary for him to show something that could fairly be regarded as an attack on the Star and/or Mr. Tucker. It is insufficient to point to what appears to be purely factual reporting of court proceedings and matters on public record, without suggesting any reason why that reporting would not have the protection of defences to claims in defamation. 85 For those reasons, in my opinion Mr. Tucker's appeal to the Kennett doctrine fails. Were The Defamatory Imputations Ms. Potts' Response? 86 A person who has been publicly attacked is entitled to defend himself or herself before the same forum and to do so under qualified privilege: Bass v TCN Channel Nine [2003] NSWCA 118; (2003) 60 NSWLR 251 at [58] per Handley JA (Spigelman CJ and Wood CJ at CL relevantly agreeing). In this case, Mrs Potts was the person who had been attacked. The privilege Echo seeks to invoke is derived from, or ancillary to, Mrs Potts privilege; its purpose is "to provide a neutral forum for a reply so that the audience to which the person who now complains had addressed the original attack may hear the actual rely, being a reply that has the requisite connection with the attack": see Bass (at [15], [37]-[41]) per Spigelman CJ; (at 60] per Handley JA; (at [151] per Wood CJ at CL. 87 Because Echo's privilege was derived from Mrs Potts' privilege, it was necessary that the matter complained of was her response and not that of either Echo or Fast Buck$. The privilege would be lost if either took a position of their own; whether either did so was a question of fact: see Bass (at [78]-[81]) per Handley JA. If Fast Buck$ endorsed Mrs Potts' response so that the defamatory statements were made by him, not (or as well as) Mrs Potts, Echo will be liable for the defamatory imputations thereby conveyed and cannot rely upon the reply to an attack head of qualified privilege: see generally John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 at [87]-[121]. 88 The question whether defamatory imputations were Ms. Potts' responses involves three sub-questions: 1. Did the material conveying the defamatory imputations correctly reproduce something Ms. Potts gave as her response to the attack on her? 2. Did this material purport to be her response? 3. Did this material in its context amount to substantially more than a presentation of Ms. Potts' response, in that it was endorsed as to be believed in preference to the attack on her? 89 In my opinion, unless the first two sub-questions are answered yes and the third no, the material conveying the defamatory imputations is not protected by the qualified privilege that would attach to a response by Ms. Potts to the attack on her, because the material would not qualify as Ms. Potts' response. 90 In my opinion, this follows from the rationale of the privilege; and it has some confirmation by what was said by Clarke JA in the leading judgment in Radio 2UE Sydney Pty. Limited v. Parker (1992) 29 NSWLR 448, to which Handley JA referred with approval in Bass at [78]. That case concerned a radio broadcast responding to attacks on a Mr. Millner, involving an interview of Mr. Millner by the second appellant; and the jury found that defamatory statements were made in the course of this interview by the second appellant. At 461, Clarke JA said this: The privilege of the newspaper arises out of, and depends upon, that of the party who has been attacked and who is entitled to reply and extends to cover all that is relevantly said by that person in reply to the attack. The fact that in this case the radio station may have been protected by privilege in respect of the statements made by Millner during the interview is, as it seems to me, of little moment when the jury has found that the defamatory statements were made not by Millner but by the second appellant himself. 91 In my opinion, the same reasoning would apply to a case where a newspaper or broadcaster published defamatory statements by a person in response to an attack, and in so doing conveyed that those statements were to be believed in preference to the attack on the person. That is, the privilege would be lost if the material conveyed an endorsement of the attacked person's response: cf. Collins v. Ryan (1991) 6 BR 229 at 235; Horrocks v. Lowe [1975] AC 135 at 149-150; Barbaro v. Amalgamated Television Services Pty. Ltd. (1985) 1 NSWLR 30 at 50. 92 Mr. McClintock for Echo Publications submitted that any published reply to an attack conveys, at least inferentially, the message that the person replying is right and the original attacker is wrong, and he submitted that in Loveday v. Sun Newspapers Limited (1938) 59 CLR 503, the Sun article clearly sided with the Canterbury town clerk against the plaintiff and endorsed the town clerk's reply. 93 The first point to note is that it was not argued in Loveday that the newspaper had endorsed the Council's response to what was found to have been a communication authorised by the plaintiff. It could possibly be inferred from the circumstance that the Sun published the response in the same issue of the newspaper as the attack, and said that the town clerk had "refuted" the complaints, that the Sun was siding with the town clerk; but in my opinion, the article in question could not be read as conveying that the complainant was to be disbelieved and the town clerk was to be believed. In that case, as in most cases, it was the actual words of the attacked person that were published. I am not aware of any case in which the publisher or author of a published article has expressly or impliedly endorsed the attacked person's response as to be believed in preference to the attack. 94 Although I have some doubt as to the first two sub-questions, I consider each of them should be answered yes, in favour of Echo Publications, for the following reasons. 95 The evidence shows that Fast Buck$ approached Ms. Potts for her response to the Star article, and that she gave him information with the intention that he publish her version of events. In so far as her information was published, and purported to be from her, it was in my opinion her response. 96 However, at least some of the Echo article does not purport to be Ms. Potts' response, but rather to be comments and views of Fast Buck$ himself: see for example the paragraphs numbered 1-5, 11, 15, 17-21. Of the others, paragraph 6, 12-14 and 16 (apart from the parenthesis) purport to be based on information from Ms. Potts; while paragraphs 7-10 seem to be an amalgam of her information and his comments. 97 Imputation (e) was conveyed by paragraph 16, in the context of the whole article; and imputation (g) was conveyed by paragraph 6, again in the context of the article. I do not think the context provided by Fast Buck$' views and comments had a substantial effect on the meaning conveyed by paragraphs 16 and 6, and in my opinion the defamatory imputations do form part of Ms. Potts' response. Mr. Hale submitted that the two paragraphs do not reflect information provided by Ms. Potts as described in her evidence. However, Ms. Potts gave evidence to the effect of what is in those paragraphs, and to the effect that she told Fast Buck$ what she told the Court, and also that Fast Buck$ read parts of the article to her. She was not cross-examined to the effect that she was not the source of these two paragraphs, and it does not seem to have been submitted below that she was not the source of these two paragraphs. In those circumstances, I would infer that these paragraphs were not invented by Fast Buck$ but reflected what Ms. Potts had told him. 98 Mr McClintock also argued that no part of the matter complained of can be read as an endorsement by Echo of Mrs Potts' response. As I have already said, the privilege was lost if either Echo or Fast Buck$ took a position of its or his own. Once it is concluded that Fast Buck$ endorsed Mrs Potts' response, he was the publisher of the defamatory imputations and Echo no longer had the benefit of the derivative privilege. 99 However, in relation to the third sub-question, in my opinion the article as a whole conveyed the message that Ms. Potts was to be believed in preference to Mr. Tucker: see in particular par.18 and also (for example) pars.11 and 19. In my opinion it does not matter that there was no defamatory imputation found in those paragraphs: the effect of the whole article, including those paragraphs, was that pars.16 and 6 were not just Ms. Potts' allegations, but were assertions that should be believed in preference to the attack on her made by Mr. Tucker. In my opinion, Echo Publications did have a privilege to publish Ms. Potts' response, but not to publish Fast Buck$ vigorous endorsement of it. 100 For that reason, I do not think the defamatory imputations are protected as being Ms. Potts' response to the attack on her; and Echo Publications does not have the benefit of qualified privilege on this basis. Were The Defamatory Imputations Relevant? 101 Because of my answer to the previous question, it is not necessary to answer this one. However, in case others may take a different view on the previous question, I will proceed to do so. 102 In order to consider this question, it is necessary to consider what was suggested against Ms. Potts in the Star article. In my opinion, the following suggestions were made: (1) Ms. Potts was employed for 18 weeks during which she worked only 6 full weeks. (However, I would comment that, on the findings of the primary judge, based on total acceptance of Mr. Tucker, it would appear that, after having worked 2-3 days per week for the first four weeks, Ms. Potts then worked 11 full weeks, apart from one half day off, and was off sick for 3 weeks). (2) Ms. Potts fought with every person in the office. (3) Ms. Potts resigned when she did not get her way about the sacking of two employees, then (impliedly dishonestly) claimed she had been unfairly dismissed, and this claim was dismissed. (4) Ms. Potts took advantage of mad industrial laws to make an (impliedly greedy) claim to be paid for long periods of time when she did not work; and the Star was ordered to pay about $8,500.00 for days when Ms. Potts did not work. (The Star was in fact ordered to pay Ms. Potts about $6,000.00 plus about $1,000.00 interest; and of the $6,000.00, only $2,982.00 was for underpaid wages). (5) Mad industrial laws and Ms. Potts directly caused the Star to close and five very faithful and excellent employees to lose their job. 103 In my opinion, paragraph 16 of the Echo article (and therefore imputation (e)) is relevant to suggestions (4) and (5). Paragraph 16 contests the suggestion that Ms. Potts was greedy, and also the suggestion that she caused the closure of the Star and the loss of five jobs. 104 As regards paragraph 6 (and imputation (g)), that is in my opinion relevant to suggestion (2), putting Ms. Potts' alleged fighting with everyone in the office into the context of a domineering and belittling management giving rise to unseemly confrontations. In my opinion, it is also relevant to suggestion (3), putting Ms. Potts' alleged unreasonable and purely voluntary resignation into a context of unseemly confrontations giving rise to an acrimonious departure. Mr. Hale submitted that it could not be relevant in this way, because Ms. Potts' allegation was that she was dismissed by Mr. Ross: however, I do not think Ms. Potts' evidence squarely asserts dismissal by Mr. Ross or otherwise suggests that confrontations arising from Mr. Tucker's behaviour were not an important factor in her departure. In my opinion, her evidence indicates that, whether Ms. Potts' departure was due to resignation or dismissal, such confrontations were a significant factor in it. Malice 105 Mr. Tucker claims that Echo cannot in any event rely on qualified privilege, because the publication of the defamatory material was actuated by malice. 106 It is important to note here that qualified privilege is lost on this basis only if the defamatory material was published for a purpose foreign to the duty or interest that protects the making of the statement, in this case the interest of Ms. Potts in responding to an attack on her. In Roberts v. Bass [2002] HCA 57, (2002) 212 CLR 1, at [76], Gaudron, McHugh and Gummow JJ say this: 76. Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication. 107 And at [104], they say this: 104. Finally, in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication. In Godfrey , Jordan CJ said: "It is of the utmost importance in the case of statements made on occasions of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of commonsense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla : Oldfield v Keogh . Any other approach to the subject would in substance destroy the doctrine of qualified privilege altogether." 108 In my opinion it is clear that what is relevant here is the motive of Echo Publications in publishing the defamatory material, not its motive in publishing other parts of the publication. Relevantly, the defamatory material is paragraph 6 and 16 of the article; and in my opinion, as submitted by Mr. McClintock, the content of those paragraphs would not, without more, support a finding that the dominant reason for publishing them was other than to give Ms. Potts' response to an attack on her. 109 However, the Court can have regard to other evidence in determining whether the dominant reason for publication of the defamatory material was other than to give Ms. Potts' response to the attack on her; and that other evidence can include other parts of the article itself. As noted earlier, paragraphs 1-5, 11, 15 and 17-21 of the article do not purport to be Ms. Potts' response; although some of those paragraphs, for example paragraphs 4, 11, 15 and 17, tend to support the view that the purpose of publishing paragraphs 6 and 16 was to give Ms. Potts' response. On the other hand, paragraphs 1, 5 and 18-21 could suggest that there was another purpose in publishing the article, giving rise to the question whether this other purpose was the dominant reason for the publication of paragraphs 6 and 16. 110 That question was not addressed by the primary judge. Because of my decision that Echo Publications does not have the benefit of qualified privilege on the basis claimed, it is not necessary for this Court to determine it. SECTION 22 111 Mr. McClintock submitted that the primary judge gave no reason for rejecting the s.22 defence; and submitted that the defence was available to Echo Publications in accordance with principles set out in the following statement by Hunt J from Collins v. Ryan (1991) 6 BR 229 at 234-5: I am of the opinion that such an occasion of qualified privilege is arguably available (at least in its statutory form) in relation to letters to the editor and to other contributions from members of the public where the media provide a forum for their participation in the free discussion of matters of public interest. ...There seems to me to be a strong argument available to the second defendants that, as s.22 of the 1974 Act has substituted the reasonableness (in the circumstances) of the defendant's conduct in publishing the matter for the duly or interest which the common law principles of qualified privilege require (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797), it is reasonable in the circumstances for members of the media to provide a forum in which members of the public may not only express their opinions but also assert and debate factual issues even if the publisher does not himself honestly believe in the truth of the facts so asserted. 112 Mr. Hale noted that the primary judge had referred to the allegations against Mr. Tucker being quite unrelated to any possible attack on Ms. Potts, and to the article being a vehicle for Fast Buck$ and Echo Publications gratuitously to make extremely derogatory and unsubstantiated allegations against the Echo's competitor and its proprietor; and also referred to Echo Publications not having made any enquiries with a view to ascertaining whether the material contained in the subject article was true. Mr. Hale submitted that the primary judge correctly determined that the conduct of Echo Publications in publishing the material was not reasonable. 113 In order to decide whether error by the primary judge has been shown, it is necessary to look at the basis on which s.22 was argued below. 114 It was put that the conduct of Echo Publications was reasonable on the basis of the following: (1) The same factors as relied on for common law qualified privilege; (2) Mr. Tucker had adequate opportunity to respond in his own newspaper; (3) The facts asserted were in the major part true; (4) Mr. Tucker was a man of considerable substance, and had acted unreasonably in not paying Ms. Potts; (5) It did not matter that Echo had not checked the accuracy of the article; (6) The Echo provided a forum in which issues could be debated ( Collins ) particularly in a political context ( Roberts v. Bass ). 115 I have already dealt with reasons of the primary judge dealing with items (1) and (3). This leaves the question of whether he dealt adequately with matters (2) and (4)-(6). Although the question of the reasonableness of the publication (referred in s.22(1)(c)) was not explicitly referred to by the primary judge, he did in par.[254] of his judgment (see par.[29] above) hold that the community in the Byron Council area had no legitimate interest in receiving the publication, this being one of the alternatives set out in s.22(1)(a). Since Echo Publications gave no evidence as to its beliefs, it would not appear that the requirements of s.22(2) for the other alternative in s.22(1)(a), that of "apparent interest", could have been satisfied. 116 In my opinion, having regard to the way the case on s.22 was argued below, the primary judge's reasons were adequate. It may be that if reliance on Collins and Roberts v. Bass had been developed in submissions before him, the primary judge would have needed to address in more detail the role of a newspaper such as the Echo in providing a forum for persons such as Fast Buck$, and the question of public interest in being informed about alleged unethical conduct by a politician. 117 Thus it might have been put that the conduct of a prominent local politician, who was also a newspaper proprietor, could be considered a matter about which the readers of the Echo had an interest to be informed, where Mr. Tucker had approved the use of the newspaper of which he was a proprietor to make a damaging attack on a person not in the public eye, to denigrate the industrial laws of the State, and in doing so to make inaccurate statements as to the time worked by Ms. Potts (on the primary judge's findings), the amount ordered to paid and what it was ordered to be paid for, and (at least by implication) the basis of the Chief Industrial Magistrate's decision. However, in circumstances where the case on s.22 was not put that way to the primary judge or to this Court, this Court cannot hold either that the primary judge's failure to deal with such an argument amounted to a deficiency of reasons, or that he was in error in not acceding to it. 118 For those reasons, in my opinion the appeal concerning s.22 fails. COMMENT 119 Mr. McClintock submitted that the primary judge's finding that imputation (e) was conveyed as fact rather than comment was wrong, and was unsupported by reasons; and that the primary judge was wrong to hold, if the matter was comment, that the statements of fact on which it was based were not matters of substantial truth. Mr. McClintock also submitted that the primary judge failed to consider s.30(3)(b) and ss.33 and 34 of the Defamation Act. 120 In my opinion, the better view is that the imputation that Mr. Tucker acted dishonourably is comment, so that a defence under ss.30-34 of the Act would be available if it was based on proper material for comment, or based partly on proper material for comment and represented an opinion that might reasonably be based on such material. 121 The primary judge found that the statements of fact on which the comment was based were not matters of substantial truth, and that finding cannot be overturned on appeal, for reasons I have given. Furthermore, it is not possible to identify any part of the material on which the comment was based which was a matter of substantial truth and on which the comment might reasonably have been based. Accordingly, although the primary judge should have addressed s.30(3)(b), there was no error in the result, and nothing flows from any deficiency of reasons. 122 Since the requirements of s.30 were not satisfied, there is no need to consider ss.33 or 34. ADEQUACY OF REASONS 123 In my opinion, apart from the inadequacies of reasons already referred to, particularly in relation to qualified privilege and s.22, there was no inadequacy of reasons justifying appellate intervention. MR. TUCKER'S CROSS-APPEAL 124 For the reasons I have given, Echo Publications' appeal fails. Mr. Tucker wishes to pursue his cross-appeal only if an appeal against him succeeds. However, I will consider the cross-appeal, because this could have some relevance on costs. 125 Since this appeal challenges findings made by the jury in a s.7A hearing in 2002, there might have been a question whether Mr. Tucker, not having challenged that finding back in 2002, and having gone through a long second trial dealing with defences, can now complain of a miscarriage of justice such as to justify the ordering of a new trial pursuant to Pt.51 r.23 of the Supreme Court Rules. However, until the decision in Bennette v. Cohen [2005] NSWCA 341, (2005) 64 NSWLR 81, it may not have been clear that there was an appeal as of right from the jury verdict, so that it may have been considered that the jury verdict was merely an interlocutory decision. Furthermore, it was not submitted by the respondents that the circumstances I have indicated preclude Mr. Tucker from claiming a miscarriage of justice. Accordingly, I will consider the cross-appeal on its merits. Submissions 126 Mr. Hale submitted that no reasonable jury properly directed could have concluded that either imputation (h) or imputation (c) was not defamatory. He submitted that no reasonable jury, property directed, could have reached the conclusion that imputation (f) was not conveyed. 127 Mr. McClintock submitted there was nothing unreasonable or perverse about the jury's decision on these matters. Further, he submitted, no new trial should be ordered because the qualified privilege defence would succeed. Decision 128 The question to be addressed, on each of these issues, is whether the jury's decision which no reasonable jury, properly directed, could have made: John Fairfax Publications Pty. Ltd. v. Rivkin (2003) 77 ALJR 1657. 129 As regards paragraph (f), the article does not state in terms that the misrepresentations that led to the payment of $10,000.00 in settlement of the defamation suit were misrepresentations published in the Star, although there was a fairly clear implication to that effect. It is also conceivable that the article's reference to "a defamation suit over misrepresentations they made about him" could have been interpreted as identifying the subject matter of the suit rather than squarely alleging that the representations were actually made. Having regard to the stringency of the test to be applied before a jury verdict is overturned, I am not prepared to find that no reasonable jury, properly instructed, could have failed to find the imputation (f) was conveyed. 130 Turning to imputation (h), namely that Mr. Tucker was a "bully", it seems to me that that is an imputation which, because of its vagueness, might possibly have been considered not likely to cause an ordinary reasonable person to think less of Mr. Tucker or to shun or avoid him. It is true that the circumstance that something might be considered "vulgar abuse" does not prevent it from being defamation; but the circumstance that this imputation may be considered mere abuse may permit a jury to conclude that the imputation is one which in the circumstances is not likely to cause ordinary reasonable persons to think badly of Mr. Tucker: cf. Mundey v. Askin [1982] 2 NSWLR 369 at 371-2; Bennette at [45]-[51]. 131 As regards imputation (c), set out in para.[22] above, this imputation is more specific, and involves what would appear to be serious wrong-doing by a newspaper proprietor, in not merely misrepresenting facts in virtually every article (which could be considered accidental or due to errors by reporters or editors) but doing so in abuse of his power of publication and in order to further personal causes – thus apparently excluding the possibility of anything other than personal and deliberate misrepresentations. In my opinion, a reasonable jury could not consider this to be other than defamatory: cf. Charlwood Industries Pty. Ltd. v. Brent [2002] NSWCA 2001. 132 In those circumstances, the usual remedy would be a re-trial on both the question of whether the imputation is conveyed and the question of whether it is defamatory (Charlwood at [36]-[48]) unless the Court thinks it appropriate to exercise the power under s.108(3) of the Supreme Court Act to enter a verdict. In the present case, neither party asked the Court of Appeal to take that course. In any event, I do not think it would have been appropriate: there is a real question whether the article does convey the imputation of deliberate abuse of power in order to further personal causes, so the jury's error on whether the imputation was defamatory suggests a significant possibility of compromise or some other error in the decision as to whether the imputation was carried: cf. Charlwood at [49]-[55]. 133 In those circumstances, in my opinion Mr. Tucker would be entitled to a new trial in relation to imputation (c). REFUSAL TO ALLOW FAST BUCK$ TO RAISE QUALIFIED PRIVILEGE 134 The primary judge gave reasons for this refusal at Black 398F-M, referring to the lateness of the application (it was made on 7 June 2005, the sixth day of the hearing) and prejudice to the plaintiff (Mr. Hale had relied particularly on lack of discovery by Fast Buck$). 135 In my opinion, no error of the kind referred to in House v. The King (1936) 55 CLR 499 has been shown. The amendment would, after days of evidence, have introduced an entirely new issue into the case, namely the issue of malice of Fast Buck$; and it was well open to the judge to hold that this would involve prejudice to Mr. Turner justifying refusal of the belated application. In any event, I have held that Echo Publications cannot succeed in its appeal on this issue, and there is no realistic possibility that Fast Buck$ would succeed on it when Echo Publications does not. DAMAGES 136 Fast Buck$ submitted that the primary judge should have distinguished between damages payable by Echo Publications and damages payable by him, because there were differences relevant to the question of aggravated damages, for example the failure of Echo Publications to publish a retraction or apology when given the opportunity to do so, and the attempt by Echo Publications to establish the truth of the imputations. 137 However, in my opinion, it is relevant that Fast Buck$ was the actual author of the article, and in that sense bore the greater responsibility for its content. The primary judge should have explained reasons for the award of aggravated damages in relation to each defendant; but since there were balancing aggravating features in relation to Fast Buck$, I do not think an error is shown in the result, or that the deficiency of reasons is such as could justify a new trial. COSTS AGAINST MR. ROSS 138 In my opinion it is arguable that, at the end of the s.7A trial, there should have been an order that Mr. Ross pay some of the costs of the defendants up to that time, perhaps one-half of such costs. However, that is not an order that can be sought in this appeal, to which Mr. Ross is not a party. It may be possible to bring a Notice of Motion in the District Court, in which Mr. Ross is joined as a respondent, to seek such an order, although there may be a question whether the District Court is functus officio. CONCLUSION 139 For the reasons I have given, the appeals by Echo Publications and Fast Buck$ should be dismissed with costs. In those circumstances, Mr. Tucker does not press his cross-appeal, and that should also be dismissed. In relation to that appeal, since it would otherwise have had some success, I think the appropriate order is that each party pay its own costs. 140 The orders I propose are: 1. Echo Publications' appeal dismissed with costs. 2. Fast Buck$'s appeal dismissed with costs. 3. Mr. Tucker's cross-appeal dismissed, with no order as to costs. 141 McCOLL JA: I agree with Hodgson JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.