FEDERAL COURT OF AUSTRALIA

Burston v Hanson [2022] FCA 1235

ORDERS

THE COURT ORDERS THAT:

1.    Judgment be entered for the applicant in respect of the 4th imputation and 6th imputation, being imputations conveyed by the respondent in the Today Show interview of her, broadcast on 29 March 2019.

2.    The respondent pay the applicant $250,000 plus interest at half the pre-judgment rate of interest as at the time of judgment, within 28 days.

3.    The parties have leave to make any application to vary these orders, or for costs, by way of an email and draft agreed or competing procedural and any other orders sent to the associate to Justice Bromwich within 14 days, or such further time as may be allowed.

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

REASONS FOR JUDGMENT

BROMWICH J:

INTRODUCTION

1    This is a defamation proceeding between a former Senator for New South Wales, Mr Brian Burston, and Ms Pauline Hanson, who is an ongoing and longstanding Senator for Queensland and leader of the Pauline Hanson One Nation Party (One Nation or PHON). Mr Burston sues Ms Hanson for defamation in relation to the following three publications:

(1)    A post published on Ms Hanson’s verified Facebook page, titled “Pauline Hanson Please Explain” on 12 February 2019, which restates key aspects of a speech made by her to Parliament that night under parliamentary privilege (Facebook Post).

(2)    An oral interview with a journalist, Ms Deborah Knight, as part of an episode of the Today Show television program broadcast on 29 March 2019, during which Ms Hanson referred to an altercation between Mr Burston, and her chief of staff, Mr James Ashby on the night of 13 February 2019 (Today Show interview).

(3)    A text message sent by Ms Hanson to Mr Burston’s wife, Mrs Rosalyn Burston, on 14 February 2019 (Text to Mrs Burston).

THREE PUBLICATIONS, PLEADED IMPUTATIONS AND ASSERTED DEFENCES

Facebook Post – first matter complained of

2    The reproduction of the Facebook Post published on Ms Hanson’s account is as follows (verbatim, with added line numbering for ease of later reference):

Pauline Hanson calls out a sexual harassment by a sitting Senator

1.    You’ll be disgusted to know that taxpayers are footing the bill for multiple unfair dismissal cases in one Senators office who doesn’t have the guts to dismiss people face-to-face.

2.    Instead, he sacks them by text, email or letter with no warning.

3.    This same Senator is now under investigation for serious sexual harassment.

4.    Just because we wear a little red pin that signifies we’re Senators, should not excuse shocking behaviour by elected members.

5.    If you don’t have respect for your staff, how can employees respect you?

6.    #Auspol #OneNation #PaulineHanson #NoToSexualHarassment

3    Mr Burston pleads that the Facebook Post conveyed the following defamatory imputations:

1st imputation:    The applicant sexually harassed staff in his office.

2nd imputation:    The applicant, an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment.

3rd imputation:    The applicant, an Australian Senator, brought the Senate into disrepute by his shocking behaviour towards his staff.

4    Ms Hanson denies that the Facebook Post identified Mr Burston as the subject of the publication. Ms Hanson further denies that any of the eight people who posted comments on Ms Hanson’s Facebook Page, as particularised in paragraph 3.5 of the Further Amended Statement of Claim (FASOC), identified Mr Burston as the subject of the publication. Ms Hanson relies on the fact that any identification occurred after Mr Burston publicly named himself as the subject of the publication.

5    Ms Hanson also denies that the imputations as pleaded by Mr Burston were carried. In the alternative, Ms Hanson relies on the following defences:

(a)    justification of substantial truth under s 25 of the Defamation Act 2005 (NSW); and

(b)    qualified privilege under s 30 of the Defamation Act.

Today Show interview – second matter complained of

6    The following is a transcript of Ms Hanson’s interview with Deborah Knight that aired on Friday, 29 March 2019 on the Today Show television programme (the relevant transcript segment in bold, preceded and followed by context):

7    Mr Burston pleads that the Today Show interview conveyed the following further imputations:

4th imputation:    The applicant sexually abused a female staffer in his parliamentary office.

5th imputation:    The applicant harassed a female staffer in his parliamentary office.

6th imputation:    The applicant, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation.

8    Ms Hanson denies any of those defamatory imputations were carried and, in the alternative, places further reliance on the following pleaded defences:     

(a)    justification of substantial truth under s 25 of the Defamation Act;

(b)    statutory qualified privilege under s 30 of the Defamation Act and at common law as a reply to an attack.

Text to Mrs Burston – third matter complained of

9    A reproduction of the text message sent by Ms Hanson to Mrs Burston on 14 February 2019, and her brief reply, is as follows (again, with line numbering added for ease of reference):

Ms Hanson

1.    Ross [sic] I have a lot of time for you especially because you were there for me when I broke up with Chris.

2.    You are being taken for a fool by Brian. He is the last man I would ever hit on. I am definitely not attracted to him now or ever.

3.    He is vindictive as you well know, Oldfield, Hinch, Dury, James and me. He is being investigated for sexual harassment by more than one of his former female staffers. They can’t all be wrong.

4.    Everyone at Parliament knows that he is infatuated with Terry­lee and in his own words love her.

5.    You won’t get to see the evidence all on text from him to her because it will be a closed decision and she will get her pay out and gagged.

6.    He considers you to be nothing but a winging [sic] old bag turning out to be just like your mother who he wants to drop dead.

7.    He tells his staff he owns your home. Wake up to him. I have nothing to gain. I just believe you deserve to be treated with a bit more respect.

8.    This is the man who said he would never hurt me or try to destroy One Nation.

9.    He turned on me because I couldn’t endorse him for another 6 years.

10.    I am sorry that was a political decision because he never worked enough to keep it.

11.    You may think differently but please be objective.

Mrs Burston

12.    Please stop contacting me

10    By way of context, there was a degree of familiarity between Ms Hanson and Mrs Burston as the two had shared a friendship spanning some twenty years. There was no evidence that this friendship had continued after Mr Burston had left One Nation in mid-2018, long before the Text to Mrs Burston was sent on 14 February 2019. In the absence of such evidence, and in light of the clear evidence of significant animosity between Mr Burston and Ms Hanson prior to June 2018, I am unable to accept that as at the time that the Text to Mrs Burston was sent by Ms Hanson there was any extant friendship between the two women, or that Ms Hanson had any basis for believing that there was any such friendship.

11    Mr Burston pleads that the Text to Mrs Burston conveyed the following additional imputations:

7th imputation:    The applicant sexually harassed numerous female staff.

8th imputation:    The applicant behaved disgracefully by cheating on his wife with one of his female staffers.

12    Ms Hanson argues that none of the pleaded defamatory imputations were carried. In the alternative, Ms Hanson relies on the following pleaded defences:

(a)    justification of substantial truth under s 25 of the Defamation Act;

(b)    statutory qualified privilege under s 30 of the Defamation Act;

(c)    common law qualified privilege on two bases:

(i)    the relationship between Ms Hanson and Mrs Burston and the subject matter being the conduct of Mr Burston;

(ii)    reply to attack; and

(d)    unlikelihood of harm under s 33 of the Defamation Act.

BACKGROUND, CONTEXTUAL FACTS AND FACTUAL DISPUTES TO BE RESOLVED

Background

13    Mr Burston is now 74 years old. He grew up in Cessnock, and after starting his career as a boilermaker, qualified as a design draftsman in mechanical and structural disciplines. From 1987 onwards, he became self-employed as a commercial draftsperson, specialising in architectural design. It was around this time Mr Burston developed an interest in politics, serving on the Cessnock City Council for 12 years and subsequently as Deputy Mayor for Cessnock in 1997.

14    Mr Burston became involved with One Nation shortly after this, becoming a member of the party after its inception in around 1998. The party later endorsed him as the lead Senate candidate for New South Wales in the 2016 Federal Election. It was that election where Mr Burston was elected as Senator to represent One Nation for the State of New South Wales.

15    Ms Hanson is a well-known Australian political figure and the incumbent Senator representing Queensland in the Australian Senate since the 2016 Federal Election, having been re-elected in the election on 21 May 2022. In February 1997, she co-founded the right-wing populist political party, One Nation, later also known as PHON.

16    After meeting in 1998 at the One Nation senate pre-selection in Sydney, Mr Burston and Ms Hanson’s friendship grew over time. Mrs Burston also grew close to Ms Hanson, presumably through her working relationship with her husband. Mr Burston gave undisputed evidence of this, as he recounted Ms Hanson attending his wedding with Mrs Burston in 2008 and what he described as many subsequent outings, including dinners and lunches. This friendship continued, until the falling out between the two in mid-2018, as detailed below. This culminated in Mr Burston announcing his resignation from One Nation on 14 June 2018, to sit in the Senate as an independent and later joining the United Australian Party (UAP), until he lost his seat in the 2019 Federal Election. As noted above, I am unable to accept that any inference can be drawn that the friendship between Ms Hanson and Mrs Burston continued after Mr Burston left One Nation; and in particular, I am not satisfied that there was any such friendship as at the time that Ms Hanson sent the Text to Mrs Burston on 14 February 2019, nor that Ms Hanson had any basis for believing that there was any such continuing friendship at that time.

17    The events giving rise to this proceeding developed from antipathy between Mr Burston and Ms Hanson, as well as antipathy between Mr Burston and Mr Ashby.

Mr Burston’s Senate staff

18    The staff Mr Burston employed after he took his seat in the Senate after the July 2016 federal election are relevant to many of the defamatory imputations, but two are more central than the rest, being Ms Wendy Leach and Ms Terrie-lea Vairy.

19    On 1 September 2016, Ms Leach commenced working for Mr Burston as office manager in the electoral office at Belmont, a suburb of Newcastle in New South Wales and later from July 2017, at his new electoral office in Toronto, a lakeside suburb in the city of Lake Macquarie in the Greater Newcastle region.

20    Mr Burston and Ms Leach had previously shared a working relationship built during Ms Leach’s time as an architectural sales consultant at a Gold Coast-based architectural firm referred to as Superdraft. Ms Leach’s primary role at Superdraft had been to acquire new clients for architectural work and to refer the work to various licensees, of which Mr Burston was one. In his evidence in chief, Mr Burston spoke highly of Ms Leach's work at the time, particularly her loyalty and managerial experience. These were the primary drivers for him, on 19 August 2016, offering her the Office Manager position in his electoral office. The offer was made without ever having met her face to face as the two had built up a rapport over telephone conversations in the past. After her offer of employment, Ms Leach relocated from the Gold Coast to Belmont to take up this position. As detailed below, Ms Leach’s employment with Mr Burston ceased when she was dismissed by him on 29 October 2018.

21    On 1 May 2017, Ms Vairy commenced employment in Mr Burston’s office, undertaking the role of electoral officer. Mr Burston said this role predominately consisted of administrative tasks. For ten years before Ms Vairy commenced this role, she performed part-time work as a cleaner at Mr and Mrs Burston’s home, and upon her taking up this position, she went from earning about $16,000 a year as a cleaner to just over $65,000 a year. As detailed below, Ms Vairy ceased performing work for Mr Burston at the end of 2018, but her employment did not formally end until his term in the Senate expired on 30 June 2019.

22    During his time as a senator, Mr Burston also employed Diana Allen, who worked as his personal assistant until 20 October 2016, and Peter Breen, who was employed as his chief of staff until June 2018, when he was dismissed upon the ground of breach of trust. Other staff members were Dr Frank Salter, Peter Kelly, and Mary-Ann Martinek.

Mr Burston’s split from One Nation on 14 June 2018

23    It emerged during the trial that there are starkly differing perspectives as to the events that culminated in Mr Burston’s fallout with Ms Hanson and his subsequent split from One Nation.

24    Mr Burston’s position is that the falling out between him and Ms Hanson can be sourced from around May 2018. He attributed that to his express intention to support the government’s corporate tax cut legislation in 2018, from which Ms Hanson had withdrawn her prior support not long before the legislation was to be introduced into Parliament. In summary, Mr Burston alleges that it was for this reason that Ms Hanson summarily sacked him as party whip on or about 24 May 2018. Ms Hanson’s contrary case is that the removal of Mr Burston from the position of party whip was solely based on his incompetence in the discharge of his duties as party whip, not due to his position on the government’s tax cut legislation. The difference is as much subjective as objective. Ultimately, it is unnecessary to decide which version is correct, if indeed only one version is correct and the other is not, rather than elements of both being true, as neither ultimately affects the facts requiring determination.

25    Whatever the reason, One Nation decided not to endorse Mr Burston as the lead Senate candidate for the 2019 federal election. After some months following this decision, he resigned from One Nation on 14 June 2018. He then joined the UAP, where he was endorsed as a Senate candidate for New South Wales for the 2019 election. Mr Burston was not re-elected, so his senate term ended on 30 June 2019.

Ms Leach’s termination of employment on 29 October 2018

26    One of the events relating to the 2nd and 3rd imputations sued upon, being that it was conveyed that he had “behaved disgracefully by improperly dismissing numerous staff from their employment” and had “brought the Senate into disrepute by his shocking behaviour towards his staff”, was the termination of Ms Leach’s employment on 29 October 2018, and the events that had occurred in the lead up to that termination. Most of the circumstances behind that termination are either uncontentious or not disputed. As such, the majority of the description below is derived from unchallenged portions of Mr Burston’s evidence unless expressly indicated, supplemented by evidence from Ms Leach.

27    On or around 26 October 2018, Mr Burston purchased tickets to the Hey Mate: Buy a Bale charity concert to provide support for drought-affected farmers. The concert was held in Tamworth, New South Wales. While Mr Burston had three tickets to this concert, he was not able to attend due to an injured knee. After an unsuccessful attempt to donate the tickets to a local commercial radio station in return for an acknowledgement, he gave the tickets to Ms Leach instead, who had requested them for her and her boyfriend.

28    The conditions behind the gifting of the tickets by Mr Burston to Ms Leach were disputed at trial. Mr Burston maintains that the tickets were gifted to Ms Leach on the basis that she was to conduct official parliamentary business at the concert, which entailed taking photographs of the concert for Mr Burston’s social media pages. Further to this, Mr Burston maintains that he made an explicit instruction to Ms Leach that she was not to drink more than a minimal amount of alcohol at the concert.

29    Ms Leach’s evidence confirms most of Mr Burston’s account. However, she maintains that she denied ever accepting the conditions for attending the concert set by Mr Burston, particularly any limitation on her alcohol consumption. She states that she said words to the following effect, “If I have anything to do with Parliamentary business, I am not going. I am drinking, I’m going on my boyfriend’s motorbike, I’m going for a good time on Saturday night. I’m not having anything to do with anything political”. In his evidence, Mr Burston conceded that Ms Leach said words to that effect and confirmed Ms Leach’s objections to the conditions imposed and her offer to pay for the tickets if the conditions were to be imposed. His reply to this was, “Don’t be silly. You don’t have to pay for the tickets”. It follows that I find that Ms Leach genuinely and reasonably understood that she was attending this concert on a recreational basis, and not in any official capacity.

30    On 27 October 2018, Ms Leach invited her boyfriend and Ms Vairy to accompany her and as she felt entitled to do, at the concert she had “heaps to drink”. At 2.55 pm on the same day, Mr Burston texted Ms Leach to remind her not to forget the “pics” (pictures, meaning photographs) and inquiring on whether she and Ms Vairy had arrived in Tamworth safely. About an hour after this, Mr Burston called Ms Leach, who told him that the three were having a drink at the pub. Mr Burston says he then told Ms Leach she should not be drinking. This was followed by a further text requesting photos of the concert. Ms Leach replied immediately to this request by sending two daytime photographs of the concert. Mr Burston then texted Ms Leach, “where’s TLV [Ms Vairy] with you two?” and asked for some more photographs Ms Leach replied to this request with two-night photographs. This was followed by a further enquiry regarding Ms Vairy, with Mr Burston replying, “I assume Terrie-lea isn’t with you at the concert”. Mr Burston then followed this up by calling Ms Leach and Ms Vairy. The two women did not respond. Mr Burston then asked Ms Leach to respond or “you both might be looking for another job on Monday.”

31    Shortly after this, Ms Leach returned Mr Burston’s missed call. The now intoxicated Ms Leach exploded in a verbal outburst against Mr Burston. The source of the frustration, according to Ms Leach, was her perception of Mr Burston’s continuing infatuation with Ms Vairy. In cross-examination, Ms Leach did not dispute that she said words to the effect of “don’t threaten my fucking job, it’s a fucking ridiculous infatuation you’ve got with Terrie-lea.” Further details of this outburst are set out in the letter of termination from Mr Burston to Ms Leach described in the next paragraph.

32    The next day, Sunday, 28 October 2018, Mr Burston wrote and signed a letter of termination, which on its face terminated Ms Leach’s employment immediately based upon the way she had spoken to him the night before (Saturday night). The letter was left out for her, and intended by him to be received by her the next morning, Monday, 29 October 2018 when she came in to work, and was in fact received by her at that time. The letter gave her until 10.00 am that day to collect her personal belongings and to return her office keys and other parliamentary office property.

33    Following her termination, on 16 November 2018, Ms Leach commenced an unfair dismissal claim to the Fair Work Commission against Mr Burston. Subsequently, on 5 February 2019, she lodged a workers' compensation claim with Comcare. On 15 November 2019, she lodged a complaint to the Australian Human Rights Commission, alleging sexual harassment, sex discrimination and victimisation.

34    Later, Ms Vairy reported what she said Mr Burston had done to her to Ms Hanson’s chief of staff, Mr James Ashby.

Events during Ms Vairy’s employment

35    The important aspects of Ms Vairy’s employment are in dispute, and the subject of contrary evidence from Mr Burston. It suffices at this point to record that she gave evidence of a prolonged period of sexual harassment by him, which he denies, both in evidence and in suing upon the 1st, 3rd, 4th, 5th, 7th and 8th imputations of sexual harassment, sexual assault and the characterisation of such conduct.

36    Ms Vairy stopped attending work for Mr Burston at the end of 2018, but remained in formal employment on stress leave until the end of his term as a Senator on 30 June 2019. It follows that, as a matter of law as well as fact, she was not actually dismissed from her employment by Mr Burston, constructively or otherwise.

Events leading up to the Facebook Post on 12 February 2019

37    It became apparent at the trial, in Mr Ashby, Ms Leach and Ms Vairy’s evidence, that sometime during the latter half of 2018, Ms Leach began communicating via telephone with Mr Ashby regarding her experiences and observations working in Mr Burston’s office. The following is a brief outline of these issues. A more detailed consideration of the evidence on those issues appears later in these reasons.

38    Ms Leach maintains that she told Mr Ashby of Mr Burston’s infatuation with Ms Vairy. It quickly became apparent at trial, with further corroborative evidence from Mr Ashby, that he served as a confidant from time-to-time in listening to Ms Leach’s experiences through numerous telephone conversations. In January 2019, Ms Vairy initially contacted Mr Ashby and first disclosed to him the more serious sexual harassment allegations she made against Mr Burston.

39    Ms Vairy gave evidence that she disclosed the numerous unwanted approaches made by Mr Burston, including an incident where she had received a birthday card with money inside it. Her evidence was that when she attempted to hand the money back, Mr Burston put or attempted to put the money down her blouse or top. Ms Vairy gave evidence of raising conduct by Mr Burston in the subsequent telephone conversations with Mr Ashby, including, physical touching and comments relating to her “sexiness” which made Ms Vairy “very, very uncomfortable”. While Mr Burston in his closing submission concedes to on occasion saying things such as “I love you” to Mrs Vairy or referring to her as a “beautiful lady”, he asserts that his conduct in its totality did not amount to sexual harassment. I will return to this point when I deal with the imputations relating to the sexual harassment and abuse.

40    Leading up to the publishing of the Facebook Post, Mr Ashby had conversations with Ms Hanson regarding any further steps that should be taken in regards to the information received from Ms Leach and Ms Vairy. With Ms Hanson’s approval, Mr Ashby drafted a speech to be read in the Australian Senate by Ms Hanson concerning the sexual harassment and unfair dismissal allegations made against Mr Burston by Ms Leach and by Ms Vairy.

41    On the night of 12 February 2019, Ms Hanson delivered a speech in the Australian Senate. This speech is recorded in the Hansard of the Australian Senate bearing the same date. This speech was subsequently uploaded by Mr Ashby to Ms Hanson’s verified Facebook Page as a video accompanied by the reproduced text at [2] of these reasons. As such, it is critical to note that it is only the text portion as reproduced on the Facebook post that accompanied this video that forms the first matter complained of. While the delivery was undoubtedly accusatory, Ms Hanson apparently deliberately omitted to name anyone, a stance that Mr Ashby confirmed was intended. Instead she stated that the serious allegations raised were directed to a married, male senator.

Mr Burston’s response to the Facebook Post on 14 February 2019

42    It is not disputed that Mr Burston spoke to a news reporter on the same Tuesday night, 14 February 2019, following Ms Hanson’s speech to Parliament. As a consequence of this, he named himself as the married male senator that was referred to in Ms Hanson’s speech. However, the exact time of this self-identification by Mr Burston, and its publication, is unclear from the evidence. The earliest article in evidence that refers to this self-identification was an article published by the Sydney Morning Herald, online the next day, Wednesday, 13 February 2019 at 11.14 pm. It is in this same article that Mr Burston accused Ms Hanson of sexually harassing him twice. Ms Hanson unequivocally denied this counter-allegation at the time, and ever since.

The Burston-Ashby altercation on 13 February 2019

43    On the evening of 13 February 2019, Mr and Mrs Burston attended the Minerals Council of Australia dinner hosted in the Great Hall at Parliament House. Mr Burston and Mr Ashby sat at the same table at that dinner that evening. While Mr Ashby concedes that he at least greeted Mrs Burston, it is common ground that the two men did not interact prior to the altercation that night despite their proximity.

44    Later on, Mr Ashby took a telephone call, and left the table. The caller was a journalist who told him about sexual harassment allegations made by Mr Burston against Ms Hanson that were about to be published, seeking a comment from him. Mr Ashby spoke to Ms Hanson, who indicated that she would stay for the Prime Minister’s speech. Mr Ashby then went outside, with his evidence being that he intended to take photographs of Ms Hanson as she left the dinner, saying to Mr Bainbridge that was the reason he was waiting outside the dinner.

45    The subsequent series of events which culminated in a physical altercation between Mr Burston and Mr Ashby, can be conveniently described in two stages by reference to tendered photographs by a third party and a video taken by Mr Ashby depicting the incident in two stages as follows:

Stage 1 of the physical altercation between Mr Burston and Mr Ashby

46    Mr Ashby next observed Mr Burston coming out of the Great Hall where the dinner was taking place into the marble foyer at Parliament House, followed by Mrs Burston. The series of photographs tendered then commence with a depiction of Mr Ashby with his mobile phone held out in front of him walking towards Mr Burston. Mr Ashby’s evidence was that he was intending to video Mr Burston, but did not get the settings right to do more than take still photographs. None of those photographs were tendered in evidence.

47    In the successive photographs, Mr Burston walks past Mr Ashby with Mrs Burston remaining only a few metres behind as Mr Ashby continued to photograph Mr Burston. At some point, Mr Burston abruptly stops, turns around and starts walking towards Mr Ashby. At this point, Mr Ashby is depicted backing away from Mr Burston with his mobile now held with both hands as he continued to photograph Mr Burston. In the following photographs, Mr Burston made several attempts to take Mr Ashby’s mobile phone off him, succeeding on the fourth attempt, and throwing it away so that it slid along the floor. Mrs Burston was not closely proximate to any of this taking place.

48    Mr and Mrs Burston are then depicted walking towards the exit, away from the marble foyer. The final photograph in this sequence then shows Mr Ashby retrieving his mobile phone from the floor and following Mr and Mrs Burston as they proceed to walk away.

Stage 2 of the physical altercation between Mr Burston and Mr Ashby

49    This stage is depicted in a video taken by Mr Ashby on his mobile phone. The video commences with his mobile phone aimed at Mrs Burston who responds to this by saying, “go away James”. Mr Ashby then asks her “how do you feel about the sexual harassment cases?” At this point, Mr Burston quickly moves towards Mr Ashby, puts his hand over the phone, and pushes Mr Ashby in the chest through the exit door and out of the marble foyer, saying to Mr Ashby, “listen here”, and Mr Ashby asks, “what are you doing champ?”. Mr Burston says, “I’ll call the federal police. You are harassing me”. While this altercation took place, Mrs Burston can be heard repeatedly and loudly saying to Mr Ashby that the claims were “all your concoction”. The video ends at this point.

50    It is reasonably clear that this is where the altercation between Mr Burston and Mr Ashby ran its course. Mr Ashby apparently returned to the marble foyer to wait for Ms Hanson, and Mr Burston and his wife exited the area. Subsequently, after this, and on the same night, a public statement was issued on the UAP website in the name of Mrs Burston where she expressed support and belief for her husband despite allegations made against him in the media. As a consequence of this altercation, Mr Ashby was barred from Parliament House by having his parliamentary pass revoked by the President of the Senate at the time, Mr Scott Ryan.

The Text to Mrs Burston from Ms Hanson on 14 February 2019

51    In the preceding timeframe to the publication of the text message sent by Ms Hanson to Mrs Burston, various media sources had reported on the sexual harassment allegations made by Mr Burston against Ms Hanson in the aftermath of Ms Hanson’s speech and Mr Burston naming himself as the subject of that speech and thus the Facebook post. Apparently, in part to address the now published sexual harassment allegations raised by Mr Burston, Ms Hanson sent a text message to Mrs Burston at 6.24 pm on the evening of 14 February 2019. The contents of this text message form the third matter complained of (published second in time) as reproduced at [9] of these reasons. The text message commences with Ms Hanson expressly addressing the sexual harassment allegations against her as the purpose of her communication. On a fairly impressionistic level, this can be viewed as Ms Hanson’s attempt to protest her innocence concerning the allegations Mr Burston raised and repeating the unfair dismissal and sexual harassment allegations in respect of which Mrs Burston had already publicly supported Mr Burston by texting the following (with line numbering added):

1.    Ross [Ros] I have a lot of time for you especially because you were there for me when I broke up with Chris.

2.    You are being taken for a fool by Brian. He is the last man I would ever hit on. I am definitely not attracted to him now or ever.

52    While Ms Hanson contends that the text messages were published in the circumstances in which Ms Hanson and Mrs Burston had a friendship spanning twenty years, as noted above, I find it is impossible on the evidence and all reasonable inferences able to be drawn to accept that there was any residual friendship between the two women, or that Ms Hanson genuinely believed that to be so, in the absence of any evidence from her, considering the events that had transpired both eight months earlier with Mr Burston resigning from One Nation as well as the events of the previous day. It was never suggested to Mrs Burston in cross-examination that she was still a friend of Ms Hanson by 2019. I am confident that had any such proposition been put to Mrs Burston, she would have denied it, but she was not given that opportunity. In the same text message thread, Ms Hanson then goes well beyond the allegations Mr Burston had made against her, by making other serious allegations against him, texting the following to Mrs Burston (with continuing line numbering added):

3.    He is vindictive as you well know, Oldfield, Hinch, Dury, James and me. He is being investigated for sexual harassment by more than one of his former female staffers. They can’t all be wrong.

4.    Everyone at Parliament knows that he is infatuated with Terry­lee and in his own words love her.

5.    You won't get to see the evidence all on text from him to her because it will be a closed decision and she will get her pay out and gagged.

6.    He considers you to be nothing but a winging old bag turning out to be just like your mother who he wants to drop dead.

7.    He tells his staff he owns your home. Wake up to him. I have nothing to gain. I just believe you deserve to be treated with a bit more respect.

8.    This is the man who said he would never hurt me or try to destroy One Nation.

9.    He turned on me because I couldn’t endorse him for another 6 years.

10.    I am sorry that was a political decision because he never worked enough to keep it.

11.    You may think differently but please be objective.

53    On a fair assessment, the text message continues well beyond mere vindication, culminating in what can best be described as a scornful diatribe. Mrs Burston’s reply at [12] of the reproduced text message thread above, “Please stop contacting me”, clearly enough indicates that the communication was neither welcome, nor received as being from a friend.

The Today Show Interview on 29 March 2019

54    By way of broader context, which is a matter of public record, on 26 and 28 March 2019, the Australian Broadcasting Corporation broadcasted a widely publicised television documentary made by the media organisation Al Jazeera titled “How to Sell a Massacre” (the Al-Jazeera documentary), based upon a lengthy investigation into gun rights lobbying in the United States. During the Al Jazeera documentary, a journalist had posed as a member of the National Rifle Association (NRA), a very well-known United States gun rights lobby group. That journalist, in that ostensible NRA capacity, met in Washington DC with Ms Hanson, Mr Ashby, and a member of One Nation and party leader at the time in Queensland, Mr Steve Dickson.

55    The covertly recorded footage from that meeting included the apparent soliciting of political donations by Mr Ashby and Mr Dickson from the Al Jazeera journalist, whom they had had been duped into thinking represented the NRA, in return for seeking to soften gun laws in Australia. The recorded footage includes a portion that the Today Show interviewer, Ms Deborah Knight, played to Ms Hanson of what Mr Dickson had said as follows: “If they [that is, the NRA] threw $10 million at us, we could fucking win a heap of seats, plus a shitload of seats in the Senate”.

56    Segments of the video of the meeting with the Al Jazeera journalist are also displayed during the Today Show interview. Ms Hanson states during that interview that Mr Ashby and Mr Dickson were “led to believe that if you could get some funding, what would that mean?” Some of the subtitles of the interview are cut off by the large Today Show graphic at the bottom of the screen. However, in the video played to Ms Hanson during the interview, Mr Ashby and Mr Dickson apparently refer to One Nation holding a certain number of seats in government, and that if they held eight senate seats they would “have the whole Government by the balls”, amongst other matters.

57    Upon examination of the tendered transcript and footage from the Today Show interview, Ms Knight’s line of questioning was primarily based on the aforementioned Al Jazeera footage, the resultant public reaction to One Nation’s alleged attempt to solicit funds from the NRA in return for attempts to soften gun laws in Australia and an allegation against Ms Hanson that she suggested the Port Arthur massacre was a government conspiracy. Separate to this primary line of questioning, at 05:21 of the transcript reproduced above at [6] of these reasons, Ms Knight asked Ms Hanson the following questions:

58    Ms Hanson responded by saying the following words that are said to give rise to the pleaded imputations (emphasis added):

59    It follows that the transcript reproduced at [6] of these reasons which includes the preceding impugned excerpt from the Today Show interview, is the key aspect of the second matter complained of (published third in time). Further analysis follows below.

Non-witness evidence

60    Most of the evidence apart from that of witnesses, comprising documentary records of various kinds, text messages, emails, media or social media posts or recordings and transcripts, was contained in the Court Book, being formally tendered by one side or the other without objection. There was a relatively small number of additional documents tendered, again without objection.

61    Greater weight is naturally to be given to documents that are themselves the manifestation of actions or communications, such as a text or email, than records created in order to achieve an objective, such as a complaint or document created to achieve a particular objective. That said, contemporaneous accounts of events can be corroborative of oral testimony on the same events, but must be approached with some caution due to the possible agendas being deliberately advanced.

Overview of witness evidence

62    The witness evidence given and called by Mr Burston and called by Ms Hanson ended up being largely directed to a competing narrative of key events and the context in which those the events took place, especially those the subject of the pleaded imputations, the pleaded justifications, and seeking to counter such justifications, including by seeking to explain the non-witness evidence. The following witnesses gave evidence at the trial and were cross-examined:

(a)    in Mr Burston’s case, him and his wife, Mrs Burston;

(b)    in Ms Hanson’s case, Ms Vairy, Ms Leach, Mr Bainbridge and Mr Ashby.

63    Ms Hanson elected not to give evidence, upon the basis conveyed by her counsel that she saw no need to do so, relying instead upon the witnesses that she called. That meant that she was inherently reliant upon the testimony of Mr Ashby and the acceptance of his evidence in relation to what he told her, and what her state of mind was as a result as relevant to the justification defence of qualified privilege that she relied upon. The problem with that strategy is that Mr Ashby’s testimony was cast at a level of generality inadequate for the task of discharging the necessary burden of proof and he ended up being a witness of doubtful veracity in key respects, especially in relation to events in which he was personally involved, such as the altercation with Mr Burston.

64    These reasons reflect the substantial challenge posed in the assessment of contradictory evidence about the disputed events. In any trial, some witnesses may simply be obviously sound and give evidence which can therefore be accepted without reservation, while other witnesses may be inherently unsound such that their testimony has to be approached with caution. Sometimes, a Court as the tribunal of fact is faced with having to decide upon facts as deposed to by a skilled liar against an account given by a bad teller of the truth. Lesser versions of that stark dichotomy are more common.

65    The evidence of a particular witness may be wholly accepted or wholly rejected, but it is more common that there is a spectrum with different degrees of evidentiary weight or acceptance. The High Court has cautioned against drawing conclusions about the acceptance or rejection of witness evidence based upon demeanour alone: Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] per Gleeson CJ, Gummow and Kirby JJ. The sounder approach is to examine key testimony carefully and by reference to the logic and sequence of events about which evidence is given, as aided by contemporaneous and objective evidence.

66    For the reasons detailed below, I reach the following overall conclusions about the witnesses who gave evidence.

Mr Burston

67    Mr Burston was in many respects an unsatisfactory witness whose testimony I am unable to accept on the topic of the allegations of sexual harassment made against him. This is largely because the objective material such as text messages, coupled with the compelling and credible evidence of Ms Vairy and of Ms Leach, left no serious room to accept the benign interpretation and account that he advanced in relation to his conduct. His evidence in other areas was at its best when it aligned with objective contemporaneous non-witness testimony, such as photographs or recordings. However, I do not accept, as Ms Hanson submitted in substance, that virtually none of his testimony could be accepted as either truthful or reliable. His account of the altercation with Mr Ashby, although not flawless, was generally more credible and more consistent with both the objective evidence, and the logic and sequence of events, than the evidence of Mr Ashby on that topic.

Mrs Burston

68    Mrs Burston was an honest witness doing her best, but she said she had little recollection of certain key events. She was plainly personally very upset by the sexual harassment allegations made against her husband and deposed to not accepting that the events occurred when aspects of these events became public or were otherwise communicated to her in the context of this litigation, especially in the matters complained of, or in the witness box. That denial has to be understood in the context that the alleged conduct took place in circumstances that were not apparently known to her. Again, her evidence was at its best when it aligned with objective contemporaneous non-witness testimony.

Ms Vairy

69    Ms Vairy was an impressive witness because she obviously listened to the questions and did her best to answer them with dignity despite the unedifying events that she deposed to. She was a calm and careful witness, with an understated manner. I perceived her as finding the process of giving evidence personally difficult and challenging both in chief and in cross-examination. However, she was obviously determined to give that evidence and was not reticent in her answers.

70    On occasion, Ms Vairy had difficulty in understanding questions, but in the greater part that was due to the convoluted nature of the question, or its ambiguity. She also made concessions at appropriate points. Importantly, her evidence at key points was consistent with, and corroborated by, contemporaneous records, such as texts sent to her by Mr Burston which on their face plainly supported her understanding of them.

71    This assessment of her as a reliable and truthful witness readily carried over to most aspects of evidence that were not able to be corroborated, such as the behaviour, both physical and verbal, of Mr Burston that she deposed to. I address her evidence in greater detail when assessing the truth defence to the pleaded imputations of sexual harassment.

Ms Leach

72    Ms Leach was a credible witness. While not as compelling a witness as Ms Vairy, I found her account of events believable, and generally accept her account of events, mostly preferring her version when it conflicted with that of Mr Burston. She sometimes reacted strongly to what was being put to her, especially when challenged in cross-examination, but not in a way that was in any significant measure disproportionate to what she was being asked. I accept all the key aspects of her evidence, especially as to her observations about Mr Burston’s conduct towards Ms Vairy.

73    I accept and prefer Ms Leach’s account of being sexually propositioned by Mr Burston, and correspondingly reject his account of her propositioning him, which I found improbable and even absurd. I do not need to go so far as to find that Mr Burston in fact intended to have sexual relations with Ms Leach, noting that the evidence he relied upon to assert an incapacity to do so was insufficient to form any concluded view about that. What matters is that I find that he sexually propositioned her. As with Ms Vairy, I address Ms Leach’s evidence in greater detail when assessing the truth defence to the pleaded imputations of sexual harassment.

Mr Bainbridge

74    Mr Bainbridge came across as a partisan witness, voluntarily characterising Mr Burston on the night of 13 February 2019 in a conclusory and non-responsive way as being “aggressive” towards Mr Ashby, and Mr Ashby as not being “aggressive” at all, when no question asked of him naturally led to either characterisation. I perceived him as being primed to give that evidence irrespective of the question that was asked. He did not give much if any evidence to explain the basis for either conclusion, or even what he really meant by it.

75    Mr Bainbridge was not the impartial witness he was represented to be by counsel for Ms Hanson. While I accept that he did not know Mr Ashby before the night of 13 February 2019, he met with him and Ms Hanson later that night, so it can be readily inferred that he was no longer a wholly independent witness by the time he gave evidence. That said, little of what he had to say added much to the key factual issues in dispute.

Mr Ashby

76    Mr Ashby was a slick and polished performer in the witness box. The problem with such an impression is that it can be affected by objective evidence and circumstances which reveal it to be untrue or unreliable in particular respects. When that happens, doubt may be cast on the acceptance of the rest of the evidence that has been given. In this way, a positive demeanour cannot necessarily be safely relied upon in the assessment of the evidence given. This is considered in further detail below.

77    At this stage of these reasons it suffices to record the following conclusions:

(a)    Mr Ashby’s evidence about his dealings with Ms Vairy and with Ms Leach can generally be accepted to the extent that it is broadly consistent with their testimony. His general evidence of the complaint they made at the time served to provide circumstantial corroborative support for their evidence by confirming, supporting or strengthening it in the sense of rendering it more probable that it was true: see Doney v The Queen [1990] HCA 51; 171 CLR 207 at 211 per Deane, Dawson, Toohey, Gaudron and McHugh JJ.

The sexual harassment allegations

78    On the topic of the sexual harassment allegations, I accept and prefer the evidence of Ms Vairy and Ms Leach to the evidence of Mr Burston. I find that their evidence was coherent and consistent and aligned better with the objective material such as the content of key texts and was also supported by other contemporaneous records, as developed in more detail below.

79    Adding to the assessment of Mr Burston as a witness earlier in these reasons, I observe that he was a man of his age, background and social views who, at the time, probably genuinely saw nothing wrong with his behaviour, however objectively wrong and inappropriate it was. Whenever there was a possible benign explanation for something he said or did, he clung to that, even if it was inherently improbable. On its own, some of those attempts might have succeeded in the sense that cross-examination of him alone might not have been enough for Ms Hanson to discharge the onus of proving truth on the balance of probabilities, having regard to the quality of evidence required to prove such serious allegations: see s 140(2) of the Evidence Act 1995 (Cth), being the statutory rendering of Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-2 per Dixon J.

80    Mr Burston had apparently not kept up with changes in society in relation to the rights of women, with the tide having turned even more decisively in recent years, most particularly in relation to the conduct of and around elected representatives and their staff. Women in such positions who might have feared the consequences of speaking out have been more supported and encouraged to do so than was previously the case, although doubtless this remains a daunting thing for anyone to do. Ms Vairy and Ms Leach took the ultimate personal risk of giving evidence and being exposed to cross-examination. Very fortunately for both of them, they were much better than merely sound witnesses. It was no close call to prefer their evidence both as to what had objectively occurred, but also as to how their interpretation of objective material should be preferred to that of Mr Burston.

81    Unfortunately for Mr Burston, his desperation to have his perception and recollection of events accepted went beyond merely giving a different perspective or explanation for what took place, including what was said and done. He crossed an important line in key areas between giving evidence of merely a different recollection of what had taken place, and giving an account that he must have known was not correct. I find that his allegation that Ms Leach had sexually propositioned him on 1 May 2018 to be false, but do not need to reach any conclusion as to why this was said as this is not necessary. I accept Ms Leach’s evidence that Mr Burston said to her words to the effect, “Oh Wendy, you probably just need a good fuck.”

The altercation between Mr Burston and Mr Ashby on 13 February 2019

82    On the topic of the altercation at Parliament House on the night of 13 February 2019, I generally accept the evidence of Mr Burston over the evidence of Mr Ashby, notwithstanding that Mr Ashby was a smooth and polished performer – a term I use deliberately and advisedly – while Mr Burston was more bumbling. This is for a number of reasons.

83    First, the evidence of Mr Burston better aligns with the objective photographic evidence both by way of still photographs and by way of video footage taken by Mr Ashby, including the soundtrack of the video.

84    Secondly, I found Mr Ashby’s evidence in a number of respects to have been evasive and directed to avoiding conclusions that were inconsistent with the narrative of the events that he was, to my perception, ardently attempting to present. For example, he gave evasive evidence about whether he was walking forward when he was photographing Mr Burston in the first stage. He gave an implausible denial that he intended to provoke Mr Burston by that photography and by his video action in the second stage. Plainly he was being deliberately provocative, and is, to my perception, too intelligent not to have been fully aware of that. His suggestion that there was nothing provocative in filming someone with whom he had an antagonistic relationship simply cannot be accepted as reliable, reasonable or credible.

85    Thirdly, and perhaps most importantly, having listened to the sound recording on the video footage taken by Mr Ashby, I am unable to accept as reliable, reasonable or credible that Mr Ashby’s objective in speaking to or filming either Mr Burston or Mrs Burston was to raise with either of them the allegation that Senator Hanson had sexually harassed Mr Burston. While the logic and sequence of events is consistent with Mr Ashby’s actions that night being motivated, at least in part, by the allegations Mr Burston had made being published the next day, about which Mr Ashby had received a call from a journalist a short time earlier that night, the question he asked Mrs Burston was “how do you feel about the sexual harassment cases”. There was no sexual harassment case involving Ms Hanson, let alone more than one such case. I reject Ms Hanson’s submission that because Mr Burston’s allegation involved more than one instance of sexual harassment by her, this explained his use of the word “cases”. There was not even a published allegation as Mr Ashby had been contacted for comment an hour or so ahead of publication.

86    Moreover, Mr Ashby's question to Mrs Burston was an odd one if understood as being directed to Mr Burston’s allegations against Ms Hanson, defying logic itself. That is because there is no evidence that Mrs Burston was aware of the unpublished harassment allegations at that time. Mr Ashby recognises this fact in his evidence in chief as he states that “perhaps she would have been unaware of what was about to come out too”. The only sexual harassment allegations that could reasonably be referred to as “cases” were the complaints by Ms Vairy and Ms Leach, both of which had been the subject of written complaints by then.

87    The parties cooperated as requested and produced a joint statement of background facts and issues, both agreed and disputed. Opening and closing submissions were then structured to address the issues in dispute as well as the different key factual conclusions sought to be reached. This approach was of considerable assistance in narrowing the areas requiring adjudication. In particular, there was no dispute about the applicable legal principles, although their proper application to the facts and circumstances in this case was contested in a number of key areas.

88    The following is a description of facts and issues that remain in dispute between the parties but otherwise verified by witness testimony which primarily relates to the events surrounding Ms Leach and Ms Vairy’s sexual harassment allegations against Mr Burston. It follows that with respect to these facts and issues in dispute, I accept and prefer Ms Leach and Ms Vairy’s evidence to that of Mr Burston for reasons that will be further illuminated by the analysis below.

Ms Vairy

89    In her examination-in-chief, Ms Vairy gave evidence of the pejorative comments Mr Burston would make concerning Ms Leach. Ms Vairy described an instance during the first days of her employment where Mr Burston said words to the following effect, “she’s quite loud”, “she’s not as attractive as I thought she was and had I had known that, I would not have hired her” and further comments like “she is old and hitting her 50s.”

90    Further evidence was adduced from Ms Vairy, in particular pertaining to the unwelcomed comments Mr Burston made regarding her appearance and the physical advances that would often follow. Ms Leach recounted an event where, during a phone call with his brother in the office conference room, Mr Burston said, “I have Miss World sitting in front of me” with reference to Ms Vairy and subsequently thereafter, on the same day, Mr Burston said to Ms Vairy “nice to have a good-looking sheila in the office.”

91    Ms Vairy gave further evidence more physical advances were made by Mr Burston. She states in her oral evidence that in or about May 2017, a few days after the preceding events, in the back room of the senatorial office in Belmont, after Mr Burston had come to give her a hug as a form of greeting, “he then leaned in and kissed me, which I felt extra uncomfortable because I knew that another staff member – or I thought that another staff member had seen that and that it was deliberately done so this person could see. So, again I just – I was just in shock.”

92    Ms Vairy described herself as growing increasingly uncomfortable working for Mr Burston as time progressed. She said that Mr Burston’s repeated one-on-one lunch invitations particularly exacerbated this, which left her “really concerned” due to a feeling of being “singled out.” When Ms Vairy told Mr Burston of these concerns and requested that Ms Leach be at least present at these lunches, Mr Burston, according to Ms Vairy, replied that he would much rather her (that is, Ms Leach) not to be there.

93    At the lunches, Mr Burston paid the bill and purchased alcohol. While Ms Vairy was initially undisturbed by the one-to-one lunch invitations and the alcohol ordered and consumed, she grew increasingly uncomfortable as she grew concerned over how it looked to other people and due to the comments Mr Burston would make at these lunches. Ms Vairy said that he would say words to the following effect:

(a)    “you look sexy in what you are wearing”;

(b)    “your legs look sexy”;

(c)    “You look sexy in that dress, it accentuates your figure”;

(d)    “You’re wearing your hair the way I like it.”

94    Ms Vairy recalled that Mr Burston also began to make statements in the vein of those set out above in front of other people at the office, including her daughter who was also employed by Mr Burston.

95    Ms Vairy recounted an incident in a car in December 2017 on the way back from a staff training program that Mr Burston had attended with Ms Leach and Ms Vairy. Ms Leach entered into the car’s front seat, and Mr Burston entered into the back of the car next to Ms Vairy. Ms Vairy said that Mr Burston began to ask questions such as whether or not she had a fake tan and proceeded to touch the fabric of her dress, her legs, her hands and jewellery.

96    It was around May 2018 when Ms Vairy apparently expressed her concerns over the comments other staff were making with respect to these lunches. Due to these concerns, Ms Vairy gave evidence of her becoming hesitant to attend Mr Burston’s lunch invitations. Perhaps in expressing his frustration over this, Mr Burston apparently responded to this by saying that if anyone complains he would sack them, and warned Ms Vairy not to give “an eff” about what anyone else says or thinks. Ms Vairy also said that it was also about this time Mr Burston’s conduct would escalate from kissing her goodbye on her cheeks to kissing her lips. Ms Vairy recounted several events in 2018 where Mr Burston kissed her on the lips, which can conveniently be described as follows:

(a)    The first of these instances happened in February 2018 in Canberra, after Mr Burston accompanied Ms Vairy back to her accommodation. As he stood at the door, he said, “I’ll just come in for one wine and then I’ll leave.” As he was leaving, he lent in and passionately kissed Ms Vairy.

(b)    The second instance occurred in late March 2018 in Canberra after Mr Burston dropped Ms Vairy off at her accommodation. In the car that day was Ms Vairy’s daughter who left the car before she did, and Mr Burston lent in quickly and kissed Ms Vairy.

(c)    Ms Vairy’s evidence is that Mr Burston’s conduct had escalated by around mid-2018, after about a year of working for him. The third instance occurred on a Saturday around early September or early October 2018 after a work meeting, Mr Burston walked Ms Vairy to her car. After this, as Ms Vairy opened her car door, he said, “Thank you very much” and then “cupped” Ms Vairy’s face and proceeded to kiss her. She described the kiss in a vivid manner by saying it was a “long kiss – but not passionate – a long, hard kiss.”

97    On or about 22 February 2018 during work hours, Mr Burston gave Ms Vairy a card that said, “Beautiful Pretty Lovely Birthday Lady!” The inside of the birthday card had the following message, “Terrie–lea that’s you! XOXO have a great day, Brian” (The “XOXO” was already printed on the card). When Ms Vairy opened the birthday card, $100 fell out. Mr Burston’s evidence was that the money was $60 and was a payment for house cleaning, but I do not accept that evidence, regarding it as a desperate attempt to manufacture a benign reason for giving her money. Ms Vairy made an attempt to return the money to Mr Burston. Her evidence is that he returned the money. She said that he did so by forcefully shoving it between her breasts, a topic to which I return below.

98    Furthermore, Ms Vairy maintains that from time to time throughout 2018 Mr Burston:

(a)    made comments about her appearance and touched her in the presence of other staff, with the comments usually with respect to her clothing, particularly her accessories;

(b)    said things like “I like that” and he would lean in and touch, whether it be her hand or skin;

(c)    suggested that Ms Vairy looked stressed and that she needed a good hug.

99    In addition to this, Ms Vairy said that Mr Burston purchased gifts for her. She gave evidence of four or five instances where Mr Burston purchased alcohol for her as a gift.

100    Ms Vairy said that during her employment in 2018, Mr Burston would ask her personal questions that were sexual in nature, such as “what kind of men do you go for?”. In addition, Mr Burston is said by Ms Vairy to have made further comments with regards to her chest. In particular, a comment was made in March 2018 in Mr Burston’s office where Mr Burston said Ms Vairy has perfect size breasts. Mr Burston followed this question up by asking whether Ms Vairy has breast implants.

101    In late March 2018, Ms Vairy in her evidence-in-chief said that Mr Burston declared that he was in love with her. Mr Burston then proceeded to say he was not saying this because he wanted to “fuck” Ms Vairy, not that he did not want to, because “what man wouldn’t”.

Ms Leach

102    Ms Leach recounted an incident where Mr Burston sexually propositioned her. Her evidence was that this incident occurred on or about 1 May 2018, after a staff meeting convened to address some difficulties Ms Leach was facing at the time with a work colleague. Ms Leach gave evidence of how she grew upset due to how Mr Burston had handled the staff meeting when she and the work colleague were both present. After the staff meeting, Ms Leach, in her upset state, walked into Mr Burston’s office. At this point, she recalled now being in tears as she tried to explain further how she felt, and Mr Burston responded by saying, “I am a softie for a woman in distress, go in the ensuite, clean yourself up and come back out”. After Ms Leach returned to Mr Burston’s office, he said, “Oh Wendy, you probably just need a good fuck”. Initially, Ms Leach says her response was one of bemusement, responding with words to the effect of “Ha, ha, ha. Thanks for trying to make me laugh.” However, it quickly became apparent to her that he was not joking when he responded by grabbing Ms Leach by the face and said, “I’m not joking. I can come around to your place. No one would need to know. It will be the best fuck you’ve ever had.”

103    Ms Vairy was not present when this incident occurred. However, in her evidence in chief she recalled Ms Leach telling her what Mr Burston had said. When asked by senior counsel about her reaction to this, she responded by saying, “I was in shock,” and proceeded to describe how she consoled a distressed Ms Leach with a hug.

104    With respect to the preceding disputed events set out above, I have no reason not to accept Ms Leach and Ms Vairy’s account. I am in no doubt that Ms Vairy suffered continued harassment from Mr Burston during her employment, predominantly of a sexual nature. Nor am I in any doubt that that Mr Burston sexually propositioned Ms Leach. Ms Leach and Ms Vairy gave evidence that was full of adjectives to describe the profoundly unbearable workplace they endured under the employ of Mr Burston.

Issues in dispute (in the form of questions jointly posed by the parties)

105    Ms Hanson does not dispute that if the pleaded imputations across the three matters complained of were conveyed they would be defamatory, nor take any issue as to publication. Beyond that, the pleaded imputations and the pleaded justifications give rise to the consideration and application of the legal principles corresponding to the following issues in dispute, organised in the form of a series of questions agreed between the parties, and paraphrased as follows:

(a)    Was Mr Burston reasonably identified as the subject of the first matter complained of, being the Facebook post, because it does not name him? This logically precedes the issue of whether the pleaded imputations were conveyed.

(b)    Were each of the eight imputations ultimately pressed across the three publications conveyed as a question of fact (there having been no issue raised as to legal capacity to convey the imputations as a question of law)?

(c)    Were any of the eight imputations substantially true?

(d)    Was the text message to Mrs Burston published on an occasion of common law qualified privilege?

(e)    Was either:

(i)    the relevant portion of the second matter complained of, being the part of the Today Show interview on 29 March 2019 concerning the confrontation between Mr Burston and Mr Ashby on 13 February 2019; or

(ii)    the third matter complained of, being the 14 February 2019 text sent by Ms Hanson to Mrs Burston about Mr Burston,

an occasion of common law qualified privilege, as a reply to attack?

(f)    Were any of the three matters complained of published on an occasion of statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW) (in the form of that provision prior to the 1 July 2021 amendments)?

(g)    Were the circumstances of publication of either of the first or second matters complained of such that Mr Burston was unlikely to sustain any harm?

(h)    In defeasance of qualified privilege, was the publication of any of the three matters complained of actuated by malice, being a predominant motive by Ms Hanson to hurt, embarrass and humiliate Mr Burston, or additionally in the case of the second matter complained of, to otherwise divert or deflect public attention and criticism from her own and Mr Ashby’s behaviour?

(i)    If Mr Burston succeeds in relation to any aspect of his case, what, if any, general or aggravated damages is he entitled to, taking into account the question of whether any of the matters pleaded in support of the defences mitigate any such damages?

Identification by the FaceBook Post

Principles as to identification

106    There is a single cause of action for multiple defamatory imputations “about” a person, even if more than one such imputation is conveyed: s 8, Defamation Act. Thus, it is essential that the publication sued upon be of and concerning the person who sues in defamation: Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739 at [58] per McColl JA, with whom Beazley P and Basten JA agreed. That does not mean that the person alleging defamation must be named in a publication sued upon. It is sufficient if the words used are such that they would in the circumstances reasonably lead persons acquainted with the person who sues to believe that was who was being referred to: David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234 at 238 per Issacs J; see also Plymouth Brethren at [59]-[60] and the authorities on this topic extracted in Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 at [35]-[36]. That is so even if the belief held by such a person is erroneous, but the nature of the error may defeat the conclusion as to identification, noting that, in keeping with imputations generally, the perspective is that of a layperson with a greater capacity for implication and loose thinking than a lawyer: Plymouth Brethren at [68], [76]-[77]. The trial judge as the tribunal of fact must decide whether, on the evidence, a lay reader with knowledge of the person asserting defamation would reasonably have understood that person was being referred to: Plymouth Brethren at [77].

107    It is the substance of the basis asserted to give rise to identification that matters, avoiding technicality and over-analysis: Plymouth Brethren at [90]. The intention of the publisher, even as to capacity to identify, is irrelevant because the inquiry is objective, not subjective: Plymouth Brethren at [61], [82]-[92]. A mistaken identification may be drawn by a reasonable reader, so long as it is the product of the matter complained of: Plymouth Brethren at [93]. The identification does not necessarily have to take place at the time of publication and can be the product of subsequently acquired extrinsic information: Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485 at [76]-[78].

108    In reaching the conclusion about subsequently acquired extrinsic information contributing to identification, the Court of Appeal in Pedavoli read down a blanket proposition sourced in Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 at 825 per Lord Denning MR to the effect that a person suing for defamation cannot rely upon subsequent reports to establish identification and to link that person with the published words. However, Grappelli was a true innuendo case rather than identification case. As was pointed out in Pedavoli at [78]-[79], “[i]n virtually every case where identification is in issue, it may be supposed (depending, perhaps, at least in part on the level of salaciousness, or gravity of the allegations) that recipients will seek (with a greater or lesser degree of vigour) to identify the subject”, and “such an invitation is, in any event, implicit in almost any defamatory publication that does not name its subject”.

109    In Pedavoli, while the plaintiff, a schoolteacher, had not been identified by name, the highly defamatory information published was incorrectly linked to her by the information that was provided about a position that only she occupied at the school, aided by website inquiries at the school. There was no later event, but rather inquiries made as to existing information, based upon what was in the publication. At that point, the defamatory meaning was received by the recipients of the publication. The facts in Pedavoli also reveal that it is important not to treat the outcome of the identification process in other cases as the principle itself as opposed to its application; factual findings in a prior case must not be confused with the proper application of the underlying legal principle to the case at hand.

110    When the person sued is not named in the publication, the answer to the necessary question of identification at the factual determination stage, rather than capacity stage, turns on the adequacy of the pleaded basis for the identification to have occurred, and the adequacy of the evidence adduced in support of that pleading, the onus being on the person suing: see David Syme at 238; see also Pedavoli at [46]. Direct evidence is not essential: Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; (2002) Aust Torts Reports 81-675 at [54]. But if indirect evidence and inference is to be relied upon, care must be taken that the source of the identifying information from which the ultimate conclusion of identification is sought to be reached is not the product of information that is possibly unrelated to the text of the publication, a circumstance that the person asserting the identification may have to exclude.

Application of the identification principles to the Facebook post

111    In the case of the Facebook post comprising the first matter complained of, the pleaded case for identification is to list the names of eight persons who posted comments in response to that post, or in response to prior comments, and to assert that an inference should be drawn that those comments were read by other persons to whom the matter complained of was published. The basis for the inference being drawn was only identified in submissions, and not in the pleadings. There is no plea of reasonableness as is properly required, but I would be reluctant to deny identification on that basis, no matter how sound it may be in legal theory, when there could not be any doubt that was required. In any event, there are more substantive deficiencies in Mr Burston’s case on identification, which no amendment to the pleading could apparently rectify (none having been suggested). This beneficial approach in the particular circumstances of this case is not intended to give licence to inadequate pleading.

112    None of the eight individuals listed in the statement of claim as to identification in its various iterations gave evidence. Nor did anyone else give evidence of identification of Mr Burston as the person being referred to (noting that no such person was pleaded). Even Mr Burston’s wife only became aware of the suggestion that the publication was about him when he raised it with her, so published it to her, such that she could not be relied upon (and in fairness, was not sought to be). While direct evidence of identification is not indispensable, it will often and even usually be the best and most compelling evidence. Direct evidence is not confined to witness evidence.

113    If such direct evidence is not adduced, the indirect evidence relied upon to prove the pleaded basis for identification has to exclude reasonable alternative explanations to the point of making the pleaded version more probable than not. Thus, such indirect evidence needs to be reasonably robust. Yet the posted comments lack any such robustness, being short bursts in a conclusory way, with inference or even mere conjecture required to try to identify the extrinsic source or basis for what is said in the comment. To the extent that any of the persons posting comments identified Mr Burston, there is no explanation given as to how that identification took place, and thus no means of assessing (and thus proving) the reasonableness of that identification. The rhetorical question to be answered is: what was the basis, within the text of the Facebook post, aided by any appropriate extrinsic material, to separate Mr Burston from the other male Senators from among the total number of 76 Senators?

114    The evidence was confined to inferences able to be safely drawn from the face of the posted comments, to be read in the context of other posted comments. In further aid of that inference-drawing exercise, Mr Burston submits in closing that it should further be inferred that inquiries would have been made by readers, relevantly the named persons who posted the comments, as contemplated by Pedavoli at [78]-[79], quoted above. The problem with this approach is that it does not exclude sources of identification that are wholly unrelated to the published words, yet such exclusion is a burden imposed upon Mr Burston.

115    Mr Burston’s own evidence made it clear that:

(a)    he identified himself as being the subject of the antecedent speech by Ms Hanson in the Senate at the time the speech was given, which was not and could not be sued upon by reason of parliamentary privilege – that self-identification was also published by the following night, if not sooner, in an on-line article in evidence bearing the date and time of 11.14 pm on 13 February 2019 and further published a short time later at 11.40 pm on the same day on the ABC News website;

(b)    he always checked Facebook pages, particularly with other Senators and saw the Facebook post probably a bit after 12 February 2019 (it being published later that night, after the speech which took place in the later evening);

(c)    he named himself as the person who was referred to in the Facebook post;

(d)    no-one mentioned the material that was published to him, but he was shunned by members of Parliament and staff, which he attributed to both the speech and the Facebook post as they went hand in hand.

116    In particular, it is not possible to exclude the reasonable possibility that the identification was not based upon later inquiry, but rather upon later identifying events that did not exist at the time of publication. That is particularly problematic because there is no evidence as to precisely when any of the comments were posted: the printout of the Facebook page and comments in evidence is hand annotated with the date 15 February 2020, so just over a year later, a timing that Ms Hanson does not dispute, doubtless because it helps her. The comments bear the information “1y” or “52w”, indicating that they were made a year ago, or 52 weeks ago, so at some time proximate to the post that is sued upon, but not the precise date, let alone time. This leaves open the real possibility, or even distinct probability, of media reports of subsequent events, and not the Facebook post itself, being the source of the identification of Mr Burston.

117    The subsequent events that may have been the source of the identifying information ultimately posted upon which Mr Burston relies include not just identifying himself as the subject of the speech, which was posted at about the same time as the first matter complained of, as noted above, but also addressing the comments posted that are relied upon. The comments relied upon, as highlighted in the printout of the Facebook post and comments, are as follows:

118    None of the 15 comments extracted above provide any overt identification of, or basis for safely inferring, the source of extrinsic information relied upon and therefore necessarily do not exclude a post-publication identifying event unrelated to the Facebook post. Those events that are known include Mr Burston choosing to identify himself despite the publication not doing so. They also include the plausible and even more problematic reliance upon the publicity attendant upon the altercation with Mr Ashby the following night. Specifically:

(a)    While Comment (1) points in a direction, it does not of itself take matters very far as it falls short of any sufficient basis for identification on its own.

(b)    Comment (2) expressly refers to Mr Burston outing himself, which is also not of itself sufficient because it is not tied to the publication.

(c)    Comment (3) is an apparent reference to Mr Burston smearing blood on the door of Ms Hanson’s parliamentary office after the altercation with Mr Ashby, so is a separate post-publication event, not a post-publication inquiry brought about by the publication itself.

(d)    Comment (4) is about Mr Burston’s separate allegation the next day that Ms Hanson had sexually harassed him, so again is a separate post-publication event, not a post-publication inquiry brought about by the publication. Each of the remaining comments come after references to the separate post-publication events rather than post publication inquiries brought about by the publication.

(e)    In particular, Comments (6) to (12) and (14) make or repeat references to the altercation between Mr Burston and Mr Ashby, or references to the allegations of sexual harassment Mr Burston made against Ms Hanson.

(f)    Comment (13) is a cryptic conclusion, not an identification.

(g)    Comment (15), by being unaware of Mr Burston having been named in earlier comments suggests that at least some readers of the Facebook page comments do not scroll back to preceding entries in any event.

119    The conclusion I have reached based upon the foregoing is that Mr Burston has not discharged the onus of establishing that an ordinary reasonable reader would have identified him as the subject of the Facebook post made on behalf of Ms Hanson on 12 February 2019. Despite that conclusion being fatal to Mr Burston’s case in relation to the first matter complained of, it is appropriate to consider the remaining issues advanced for and against that case because of the risk, however slight, that I may be wrong on the question of identification.

Were each of the eight imputations across the three publications conveyed as a question of fact?

Principles

120    It is common ground, based on a long line of authority, including Lewis v Daily Telegraph [1964] AC 234 at 260; Mirror Newspapers v World Hosts Pty Ltd [1979] HCA 3; 141 CLR 632 at 646; Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 at 72 and 78; and John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; 201 ALR 77 per McHugh J at [26], cited by Ms Hanson in opening written submissions and agreed to by Mr Burston, that a person suing in defamation must satisfy the Court on the balance of probabilities that an ordinary reasonable reader or viewer or listener would understand the publication sued upon bears the meaning as pleaded and particularised. The phase “ordinary reasonable person” will be used in these reasons to refer to the hypothetical person used to gauge whether a pleaded imputation has been conveyed.

121    It is also common ground that such a hypothetical person is taken to have the following general characteristics:

(a)    to be of fair average intelligence;

(b)    to be a fair-minded person;

(c)    not to be overly suspicious;

(d)    not to be avid for scandal;

(e)    not to be naïve;

(f)    not to search for strained or forced meanings;

(g)    to view the entire matter complained of; and

(h)    to consider the context as well as the words alleged to have been defamatory.

122    Such a person tries to strike a balance between the most extreme and most innocent meaning capable of being conveyed: Lewis at [260], cited for that proposition by McHugh J in Rivkin at [26].

123    Both a pleaded imputation, and the question of whether it has been proven to be substantially true, requires attention to context, most acutely as provided by the balance of the publication as a whole and any wider context within which it is to be understood, as words do not necessarily have a fixed or literal meaning that applies in all circumstances, and even benign words may convey a worse, or better, impression when regard is had to how and when they are deployed: see the discussion by Mason P (agreed with by Wood CJ at CL) in Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; 54 NSWLR 165 at [21]-[27].

124    The Court as the tribunal of fact is required to arrive at a single meaning which is the only natural and ordinary meaning conveyed by the words used in the publication: Slim v Daily Telegraph Ltd [1968] 2 QB 157 per Diplock LJ (as Lord Diplock then was) at 172-175.

125    In Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004 at [64], I observed that the single meaning rule is necessary in order to balance the competing interests of freedom of expression and protection from damage to reputation, citing Ten Group Pty Ltd v Cornes [2012] SASCFC 99; 114 SASR 46 per Kourakis CJ at [45-[46], [49]-[50]. That balance is to be struck in the putative shoes of an ordinary reasonable person as a reader, viewer or listener, which encourages avoidance of the lawyer’s fondness for precision and careful reasons in favour of a general impression and understanding gleaned from the words used. As the High Court observed in Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ at [32], albeit in the context of an appeal concerning legal capacity rather than the ultimate factual determination, the ultimate question for the tribunal of fact (omitting footnotes):

… is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs”, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.

126    The single meaning rule is an entrenched part of the law of defamation for a very good reason. It is the means by which defences of confession and avoidance are framed and assessed, so the meaning must be fixed before that enquiry can be embarked upon. For example, if a defence of truth is to be advanced, there must be clarity as to what is sued upon as being false, but said by the publisher to be substantially true. The same need is present for framing and then assessing defences of qualified privilege and honest opinion.

127    When it comes to social media posts, a phenomenon which did not exist when most of the long-standing principles in defamation law were developed as to the conveying of imputations, the recent authority of the Supreme Court of the United Kingdom (quoted by Rares and Rangiah JJ in Bazzi v Dutton [2022] FCAFC 84; 402 ALR 219 at [29]) is of some assistance. In Stocker v Stocker [2019] UKSC 17; [2020] AC 593, Lord Kerr JSC observed:

[41]    The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.

[42]    In Monroe v Hopkins [2017] 4 WLR 68, Warby J at para 35 said this about tweets posted on Twitter:

“The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.”

[43]    I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on.

128    When it comes to a publication on the topic of serious wrongdoing, especially criminal or otherwise illegal conduct, but also morally blameworthy conduct of a serious kind, it is necessary to draw a distinction between an allegation of suspicion or investigation on the one hand, and an allegation of guilt or the equivalent on the other. A publication that does no more than state the former will not convey the latter: Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 at 300-301 per Mason J (with whom Gibbs CJ and Wilson and Brennan JJ agreed; Aickin J predeceasing judgment). And, generally speaking, if a publication does not cross that line it may be relatively easy to justify the fact of there being suspicion or an investigation unless even that much is unfounded: Harrison at 302 per Mason J. The concurrence of both Gibbs CJ and Brennan J in that case was qualified by a question that did not need to be determined on the facts in Harrison, concerning when the distinction between an imputation of suspicion or investigation and an imputation of guilt may be lost. Brennan J said at 303-304:

… I would join the Chief Justice in reserving for future consideration the question whether a report stating merely that a person has been arrested and charged by police with a particular offence is capable of bearing an imputation to the ordinary reasonable reader that the police officer who made the arrest had reasonable cause for suspecting that the person arrested had committed that offence, the article complained of in this case is not so limited in its text. As Lord Devlin observed in Lewis v Daily Telegraph·Ltd [19641 AC 234 at 285]:

“... it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt: but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.”

129    Whether the line between smoke and fire has been crossed is evaluative in nature. A publication may go so far as to imply guilt, or no more than reasonable grounds to suspect, or even nothing more than the fact of an investigation taking place: Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772 at [45]-[46] per Brooke LJ with whom Rix and Keene LJJ agreed (England and Wales Court of Appeal). However, Chase should not be regarded as some kind of binding, strict categorisation in this area. The Full Court in Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC; 271 FCR 632 at [28]-[29] endorsed the observation of White J at first instance in Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182; 91 SASR 466 at [45] to the effect that Chase and like cases should not be regarded as an exhaustive statement of all the possible imputations and shades of meaning which a statement as to a suspicion may convey, noting that his Honour was upheld on appeal. While such classifications may be useful analytical tools and provide a useful general description, they should not be converted into strict categories and cannot dictate meaning. The meaning under consideration might fit into a category, but the category does not determine the meaning.

130    With the foregoing principles in mind, I turn to the question of whether each of the eight pleaded imputations were in fact conveyed from the perspective of the ordinary reasonable person, noting that this is addressed in the alternative for the first three imputations, despite the identification issue being resolved in Mr Burston’s favour and also in the alternative for other imputations found not to have been conveyed, because of the desirability in having the key issues in dispute addressed.

1st imputation: The applicant sexually harassed staff in his office (Facebook Post)

131    It is faintly suggested by Ms Hanson that the “staff in his office” aspect of this pleaded imputation is not conveyed because the reference is made to “being under investigation for serious sexual harassment” in the Facebook post, and not to any particular number of employees being referred to. That argument both suggests that the ordinary reasonable person is going to read that phrase out of context, and ignore the fact that the post is about what is happening to employees in a Senator’s office. In context, the initial reference is to “multiple unfair dismissal cases” and then a follow up point about the same Senator in relation to the same office “being under investigation for serious sexual harassment”. That clearly enough implies that this investigation may involve more than one employee as it already does for the employment issue. In any event, it is highly unlikely that the ordinary reasonable person is going to linger over fine points of the singular and plural in relation to the use of the word “staff” in the pleaded imputation. I therefore reject this argument.

132    It follows that the only real issue is whether the Facebook post conveys only suspicion of, or an investigation into, allegations of sexual harassment because the word “investigation” is used, or whether it goes further and conveys that such conduct has in fact taken place. While line 4 of the post refers only to an investigation, other lines both individually and in combination clearly infer that it is an investigation into something that has in fact occurred, not merely an investigation into whether or not something has occurred:

line 1: calling out an event that has occurred, namely “a sexual harassment”

line 5: actual “shocking behaviour”

line 6: something has in fact happened: “if you don’t have respect for your staff”

line 7 “#NoToSexualHarassment”, opposing such conduct actually occurring

133    The ordinary reasonable reader would readily read the Facebook post, in this respect, as conveying not just that sexual harassment is suspected to have happened or is being investigated, but has in fact occurred. The mere smoke of suspicion or inquiry has been exceeded and the reasonably ordinary reader is plainly being told a fire is burning. This imputation as pleaded has been conveyed insofar as it alleges that a Senator sexually harassed staff in his office, but as already found on the question of identification, it has not been conveyed about Mr Burston.

2nd imputation: The applicant, an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment (Facebook Post)

134    The Facebook post is to be properly understood as being directed to impropriety in the manner of the dismissal of staff (not just a single member of staff), rather than the reasons for the dismissal. While reference is made to “multiple unfair dismissal cases”, there is no reference to the reasons for dismissal being improper. Rather, the thrust and express focus of this aspect of the Facebook post is that the Senator in question “doesn’t have the guts to dismiss people face-to-face” and “[i]nstead he sacks them by text, email or letter with no warning”. To the extent that the competing evidence and submissions were directed to the reasons for the dismissal of Ms Leach in particular, they were misdirected on the question of what was conveyed, although had some more work to do on the justification of substantial truth, noting that Ms Hanson’s written closing submissions correctly embraced this more limited reading as to what was being conveyed.

135    It is obvious enough that employment and the loss of employment is likely to be of singular importance, whether directly or indirectly, to the putative ordinary reasonable person. This is an issue that is frequently in the news and media; and it is inextricably tied to the economic well-being of anyone in the workforce, or wishing to be in the workforce, as well as their family and dependents. It follows that the concept of unfairness in the loss of a job is something that may readily be seen to engender sentiments of both sympathy and empathy. A “fair go” is a celebrated aspect of the Australian ethos. That is all the more acute when it is suggested that it has been departed from by a politician. Elected officials are more likely expected to be exemplars in their conduct, especially towards employees.

136    Once the Facebook post is read in the sort of practical context outlined above, and when due regard is had to an allegation of employment being terminated in a way that is effectively described as gutless because it is done by means of a text, email or letter without warning, the ordinary reasonable reader would readily conclude that this was being said to be improper behaviour on the part of a Senator. It is then but a small step to understand that such improper conduct is being said to be disgraceful, given the status of the person said to have engaged in that conduct. The ordinary reasonable person would therefore readily read the Facebook post as conveying the pleaded imputation that “an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment”, but as already found on the question of identification, it has not been conveyed about Mr Burston.

3rd imputation: The applicant, an Australian Senator, brought the Senate into disrepute by his shocking behaviour towards his staff (Facebook Post)

137    Taking into account the reasoning above concerning the 2nd imputation, and accepting that there is an express statement about “shocking behaviour” which is directed without differentiation both to the sexual harassment aspect and to the dismissing staff aspect, the key question is whether an ordinary reasonable person would read the Facebook post as going beyond the individual Senator and his conduct, and read it as implying that this went further and brought the entire Senate into disrepute. I am unable to see why that ultimate step would be taken by almost any reader, let alone a reasonable one. While an ordinary reasonable person might form that view themselves based on their own view of how bad conduct by one Senator affects the standing of all Senators, that is a separate question from what is conveyed. The Facebook post does not, viewed reasonably, go that far, and as already found on the question of identification, it was not in any event conveyed about Mr Burston.

4th imputation: The applicant sexually abused a female staffer in his parliamentary office (Today Show interview)

5th imputation: The applicant harassed a female staffer in his parliamentary office (Today Show interview)

138    The question is whether the words “And James Ashby has been trying to bring it to the President’s attention about the sexual abuse and harassment that was going on with a female staffer in his office” (impugned sentence), in the context of the rest of the interview comprising the second matter complained of, convey either or both of the pleaded 4th and 5th imputations.

139    Ms Hanson submits that the impugned sentence in the context of the rest of the Today Show interview arose from Ms Knight being highly sceptical about the answers Ms Hanson was giving about the Al Jazeera documentary and about Ms Hanson’s response to the 1996 Port Arthur massacre in Tasmania. Ms Hanson asserts that this is analogous to what happened in the interview of Mr Don Burke in Dent v Burke [2020] ACTCA 22; 182 ACTR 13.

140    In Dent v Burke, Mr Burke, a media celebrity gardener who had been the long-time host of a television program called Burke’s Backyard, was being interviewed about allegations made against him of bullying and sexual misconduct. Ms Dent was one of those who made such allegations. In the interview, Mr Burke suggested that she was lying about what he had asked her to do and that she had made a false allegation of sexual harassment. Ms Dent sued in defamation for those comments upon the basis that the publication conveyed, as a fact, that she was lying and making a false allegation. That suit failed upon the basis that, in the context of a sceptical interviewer, Mr Burke’s denials and counter allegations would not be accepted as being conveyed as what had in fact taken place by the publication as a whole. The ACT Court of Appeal dismissed Ms Dent’s appeal and found at [36] that the ordinary reader would place great weight on the interviewer’s expressions of incredulity and disbelief as to what Mr Burke was saying, finding that the pleaded imputation was not conveyed.

141    The Today Show interview cannot be characterised in any way that is relevantly comparable to that in Dent v Burke. Ms Knight was certainly sceptical, and even incredulous, about some of Ms Hanson’s responses to questions about the Al Jazeera documentary and about the Port Arthur massacre, not least because the suggestion seemed to be made by Ms Hanson that Mr Dickson had not been soliciting a donation from what he thought was the NRA, and did not express any intention to water down Australia’s gun laws given the NRA’s reputation, despite the plain recorded words that he used to that effect. As part of that, Ms Knight was also challenging Ms Hanson about her continued support for Mr Ashby, and in that context raised the fact of him being banned from Parliament House “because of his fight with Senator Brian Burston”. But Ms Knight was also plainly keen not to go beyond the fact of that ban being put in place and Ms Hanson continuing to support Mr Ashby despite the existence of that ban. Ms Knight did not ask any question about the circumstances of that “fight”, as opposed to the fact of the ban having been imposed. To the contrary, she repeatedly tried to bring Ms Hanson back to the fact of Mr Ashby being banned, rather than the reasons for it or the subject matter of the impugned sentence, expressing no view about either, let alone any sceptical view. That interpretation is reinforced by watching and listening to that part of the interview, and not just relying upon the transcript.

142    It follows that Ms Knight expressed no scepticism (or indeed any view at all) about what Ms Hanson conveyed regarding what had happened during the altercation between Mr Burston and Mr Ashby, or about the impugned sentence. More importantly, the impugned sentence had little, if anything, to do with the altercation based on Mr Burston’s account of what took place, and nothing to do with the altercation on Mr Ashby’s version of what he was saying to Mrs Burston (noting that Mr Ashby’s version is elsewhere in these reasons rejected). Specifically in relation to the 4th imputation, Ms Knight expressed no scepticism about Ms Hanson’s account of either the altercation or the allegation in the impugned sentence as to “sexual abuse and harassment”. Accordingly, there is no proper basis for diversion from what was actually said by Ms Hanson in the impugned sentence by Dent v Burke reasoning.

143    Ms Hanson’s reliance in written submissions upon Ms Knight saying to her that she was “pointing the finger of blame to a lot of people here” is misplaced, because that was overtly referring to the Al Jazeera documentary which was a primary subject of the interview, not the altercation between Mr Burston and Mr Ashby, a point that was ultimately and appropriately conceded in Ms Hanson’s oral submissions.

144    Turning to the substance of what was conveyed in the impugned sentence, Ms Hanson submits that, at best, the imputation was that Mr Burston was allowing sexual abuse and harassment of a staffer to occur at his office, and not even his parliamentary office, which is significantly less than the pleaded 4th and 5th imputations of him having been the perpetrator. To read the sentence in that way entails ignoring the well-established principles that apply to the conveying of imputations detailed above. It entails a search for a strained meaning, and an exercise in decontexualisation by reading the impugned sentence in splendid isolation.

145    Relying upon the words that Ms Hanson used of “that was going on with a female staffer in his office”, in the context of this segment of what she said being all about Mr Burston, is the kind of lawyer-like analysis that is especially inappropriate when it takes the consideration beyond that likely to be engaged in by the ordinary reasonable person. As Lord Devlin pointed out in Lewis at 277, approved by the High Court in Trkulja at [32], the lawyer’s rule is that “the implication must be necessary as well as reasonable”, whereas a layperson reads in an implication more freely: see also Plymouth Brethren at [73], dealing with the question of capacity, but equally apposite to the factual determination of whether an imputation has been conveyed.

146    I am comfortably satisfied that the ordinary reasonable reader would readily understand that, in keeping with the rest of this segment of the Today Show interview, Ms Hanson was describing adversely conduct by Mr Burston and therefore of “sexual abuse and harassment” by him of a member of his staff. In like fashion, the word “office” is readily able to be inferred by an ordinary reasonable person as referring to a parliamentary office and not to the much lesser known concept of an electoral office (especially for Senators who do not represent a geographic electorate within a State or Territory, but rather a whole State or Territory).

147    Ms Hanson next submits that Mr Burston is engaged in an “acontextual fastening to the word ‘sexual abuse’” which is “misconceived” and that what she in fact referred to was the expression of a single idea by two connected words (a “hendiadys”, as she puts it) that Mr Ashby was trying to raise with the President of the Senate rather than the police. She therefore submits that Mr Burston is “ripping the word ‘sexual abuse’ from its context” and has “pleaded the imputation far too high”. I am unable to agree with this submission. This is another example of Ms Hanson relying upon lawyer-like parsing and dissecting, attempting to find a meaning that goes no further than is necessary when that is not a restrictive approach that a lay ordinary reasonable person would take. It is also an exercise in robbing words both of their ordinary meaning and of their separate and distinct, as well as common, meaning. Reference is being made separately both to “sexual abuse” and to “harassment”, and thus both to conduct that is more serious than sexual harassment and to conduct that is either less serious than sexual harassment, or at most at the lower end of sexual harassment. An ordinary reasonable person is more likely to latch onto the much more serious allegation being made against a Senator, because that is more concerning. That is not an exercise in “acontextual fastening”, but rather simple plain reading and giving weight and meaning to the words that were actually used.

148    The word “abuse” also bears a connotation of some use of force or other coercion such as threats or taking advantage of an imbalance of power. Indeed, one of the definitions of “abuse” in the online Macquarie Dictionary is “to inflict a sexual act on (a person), especially one whose relationship or proximity makes them vulnerable”. The phrase “sexual abuse”, comprising ordinary words used in combination, each placing an emphasis and an elevation to the other. It is not just abuse, but sexual abuse, and it is not just sexual, but sexual abuse. It literally conveys conduct which is both sexual and physically abusive in some way, going beyond bare physical contact, or even bare physical conduct with a sexual dimension or motivation. It is very much a phrase that can be taken quite literally: cf Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 at [156]. It connotes a higher level of physical contact that is sexual in nature where a power imbalance exists; where the behaviour is persistent and not merely transient; something in the nature of molestation of an ongoing kind.

149    By contrast “harassment”, can be seen to refer to a wider range of conduct that has no necessary sexual dimension at all. It tends to suggest something less than sexual harassment because the word “sexual” is not used. Even if a step further is taken, so that what is implied is not just harassment, but also sexual harassment, the contrast with the use of the phrase “sexual abuse” suggests conduct that even if it is sexual harassment, it is at a level falling short of constituting sexual abuse. While some conduct could be both sexual harassment and sexual abuse, that overlap is not the ordinarily and reasonable person would understand was being referred to. That is too nuanced and lawyer-like.

150    While the concepts of sexual harassment and sexual abuse may be used in a way that covers conduct that overlaps between the two, insofar as more serious instances of the former may be encompassed within the latter, the ordinarily and reasonable person is most likely to understand the phrase used by Ms Hanson of “sexual abuse and harassment” as alleging that Mr Burston had engaged not just in conduct that could also be considered to be harassment or even sexual harassment, but conduct that was much worse beyond that, being sexual abuse. The real sting reflected in the pleaded 4th imputation is that of sexual abuse, not something that also might be less than that or at some nuanced lower level of conduct.

151    The ordinary reasonable person would be likely to understand that an allegation of sexual abuse was of very serious conduct, rather than a more serious type of otherwise less serious conduct such as sexual harassment, especially when the language used, by referring to both, tends to draw a distinction between the two: more serious conduct as well as less serious conduct. I am comfortably satisfied that such a person would understand that Ms Hanson was saying, as the plain words she used expressly convey, that Mr Burston both had harassed, and had gone much further to sexually abuse, a female staffer in his parliamentary office. Both the 4th imputation and the 5th imputation were conveyed.

6th imputation: The applicant, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation (Today Show interview)

152    The key passage in the Today Show interview, removing Ms Knight’s interruptions which did not change what Ms Hanson said, nor deflect her from what she was apparently determined to say, is:

Ms Knight:    How many chances will they [Mr Ashby and Mr Dickson] get? Because we know that James has been banned from Parliament House because of his fight with Senator Brian Burston.

Ms Hanson:    No, sorry. Not the fight with Brian Burston. The aggression came from Brian Burston to James Ashby ... James Ashby never laid a hand ... never laid a hand.

153    Ms Hanson’s submission in relation to the pleaded imputation that “[t]he applicant, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation” is that it is not conveyed because:

(a)    the words “without provocation” are no more than a “device” designed to shut her out of a justification defence; and

(b)    there is nothing in the Today Show interview, and thus in this part of that program, that could give rise to any imputation that Mr Burston attacked Mr Ashby without provocation.

154    Ms Hanson submits that it is clear that she is referring to aggression as most people understand it in the context of a physical altercation, being physical aggression. That much may be accepted. She later submits in relation to justification that it is plain that what is being conveyed is that Mr Burston initiated the physical aggression and that accordingly the pleaded part of the imputation “without provocation” must be understood as referring to “without physical provocation”. It is not apparent why the pleaded imputation should be read to say something different from the substance of what Ms Hanson was really saying when she twice said “never laid a hand”. As Leeming JA pointed out in Massoud at [156]:

… The words did not convey their literal meaning. That happens all the time, including in professional contexts. Consider “time slowed down during counsel’s address” or “counsel addressed at break-neck speed” or “counsel’s cross-examination was deadly accurate, and fatal to the case”. Or consider much of the familiar language deployed to describe principles in the law of defamation: bane and antidote; carefully talking about smoke not fire, the “sting” of an imputation, taking the second fence in the same stride as the first, and so on. …

155    In ordinary parlance the phrase “never laid a hand” is used in the sense of not having done anything at all. That is, in the sense of not so much as having touched someone. That is how an ordinary reasonable person would understand what was being said. That phrase, in the context in which it was used by Ms Hanson, strongly implies that Mr Ashby had no responsibility at all for what took place between him and Mr Burston. That is plainly the sense that Ms Hanson was using that phrase, in the context of saying it was not a fight as Ms Knight suggested – that is to say, a two way altercation – but rather Mr Ashby had not done anything at all to cause Mr Burston to act in that way.

156    It was a simple response by Ms Hanson to Ms Knight’s question, easily able to be understood as Ms Hanson saying that rather than there having been a fight between the then Senator Burston and Mr Ashby, which readily connotes the landing of physical blows both ways and both having responsibility in some way, all of the fighting in the sense of physical aggression came from Senator Burston, and Mr Ashby had done nothing whatsoever to provoke this. It clearly suggests that Mr Burston had physically assaulted Mr Ashby without any provocation. That is how an ordinary reasonable person would understand what was conveyed, being in accordance with the pleaded 6th imputation.

7th imputation: The applicant sexually harassed numerous female staff (Text to Mrs Burston from Ms Hanson)

157    Ms Hanson’s argument as to this imputation focuses on the word “numerous” that has been pleaded. She contends that because her text message says that Mr Burston “is being investigated for sexual harassment by more than one of his former female staffers. They can’t all be wrong”, this means only that at least one of them is right, not that more than one of them is right. She submits that because the word “numerous” significantly increases the defamatory sting, it should be found that the pleaded imputation has not been conveyed.

158    This is again a too literal and limited a reading of the phrase in question, imbued with the pedantic eye of a lawyer. The sentence “They can’t all be wrong” is used in ordinary parlance to imply not just literally that at least one person is right, but also that more than one person is likely to be right. It is a common language device of understatement, commonly used to convey more than is literally said. This is not being avid for scandal, or to search for strained or forced meanings, but rather to look in a clear-eyed way at the clear insinuation.

159    Ms Hanson’s relatively rigid and limited literal interpretation is not looking at what was said from the necessary perspective of the ordinary reasonable person. The second sentence is not “both of them can’t be wrong”, so as, perhaps, to convey that only one of two female staffers has actually been sexually harassed. While literally the sentence “They can’t all be wrong” does means at least one of them is right, in context that does not exclude conveying to an ordinary reasonable person that more than one of them is likely to be right. I am satisfied that an ordinary reasonable person would understand that Ms Hanson’s text message is clearly insinuating that at least one of Mr Burston’s former female staffers, and likely more than one of them, has been sexually harassed by him. The pleaded imputation has been conveyed. However, as I find later in these reasons, it was also at least substantially true.

8th imputation: The applicant behaved disgracefully by cheating on his wife with one of his female staffers (Text to Mrs Burston from Ms Hanson)

160    The word “cheating” is not used in the text message. The question of whether an imputation containing that word is conveyed very much depends on what the ordinary reasonable reader would understand it to mean when assessing this imputation against the contents of the text message. The text message can readily enough be read as conveying the past action of sexual harassment and to imply a desire by Mr Burston to cheat on his wife as a future act. But that is not the pleaded imputation.

161    The question is therefore whether the text message that Ms Hanson sent to Mrs Burston conveys that Mr Burston had already been cheating on his wife. At the risk of engaging in lawyer-like analysis in order to understand what an ordinary, reasonable person would comprehend, the answer depends on what such a person reading the text message would understand constitutes the current conduct of cheating.

162    The ordinary implication built into such a strong and morally disapproving word is that the third person is participating or otherwise voluntarily contributing in some way to what is taking place and tends to suggest some degree of responsibility for what is taking place. Yet a person who is being sexually harassed would not, in the mind of an ordinary reasonable reader, bear any responsibility for what is being inflicted upon them. I therefore conclude that sexual harassment would not, without more, be regarded as cheating on the part of the harasser except in the sense of disloyalty towards the spouse. From the perspective of the spouse it is likely to be seen as a betrayal. Due to uncertainty as to the role of third person, there may even be a suspicion of willing participation, but that too is not cheating, but suspicion of cheating. As the text message does not suggest anything beyond Mr Burston imposing himself upon at least Ms Vairy and most likely someone else as well, I am not satisfied that an ordinary reasonable reader of the text message would consider that cheating as pleaded was conveyed.

163    Had this imputation been conveyed, it would not have been able to be proved to be substantially true, because the sting went beyond what was able to be proven, namely that Mr Burston sexually harassed Ms Leach and Ms Vairy. Whatever his intentions, he not only did not go further, but there is no possibility he would have been able to do so. That is because I am quite certain that neither Ms Leach nor Ms Vairy would ever have engaged in any conduct with Mr Burston that would have constituted him cheating on his wife, because his sexual harassment conduct towards them was entirely unwelcome.

Were any of the eight imputations substantially true?

Principles

164    Section 25 of the Defamation Act provides that it is a defence to the publication of defamatory matter if Ms Hanson proves that any imputation pleaded is substantially true. For each of the eight imputations ultimately pressed, Ms Hanson denies they are conveyed, but in the alternative asserts that they were true at the time of publication. That defence requires that every material part of the pleaded imputations must be true at that time. The material parts are those which carry the defamatory sting: Sutherland v Stopes [1925] AC 47 at 79, quoted with approval in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 per McColl JA at [138], with whom Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreed.

165    A defence of justification must fail unless all defamatory imputations carried by the matter complained of are proved to be substantially true, because the defence operates on an all or nothing basis: Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547 per Meagher JA at [38] and per Gleeson JA at [96]; see also the cases cited by their Honours. Thus, for each of the matters complained of, it will not suffice for the truth defence that some, but not all, of the imputations found to have been conveyed are proven to be substantially true.

166    The quality of the evidence required to prove, on the balance of probabilities, the substantial truth of any imputation rises with the seriousness of what Mr Burston is portrayed as having done: s 140(2) of the Evidence Act 1995 (Cth). However, any imputation found to be substantially true, without all imputations being so found, may be relevant to the question of mitigation of damages despite not being a defence by way of justification.

Whether the substantial truth of the 4th, 5th or 7th imputations has been proven

167    It is convenient to turn first to the imputations that I have found were conveyed as to sexual abuse, harassment or sexual harassment to address the question of whether Ms Hanson has proven substantial truth, namely that Mr Burston:

(a)    sexually abused a female staffer in his parliamentary office (Today Show interview, 4th imputation);

(b)    harassed a female staffer in his parliamentary office (Today Show interview, 5th imputation);

(c)    sexually harassed numerous female staff (Text message to Mrs Burston, 7th imputation).

168    As the detailed consideration and assessment of the evidence of Ms Leach and Ms Vairy above makes clear, I accept their evidence mostly without any significant reservation except as to the issue of whether it went so far as to prove, by the requisite quality of evidence, sexual abuse as alleged by Ms Hanson. To the extent that their evidence differed from that of Mr Burston in any material respect, I prefer and accept their evidence and reject his. In places, that leaves only the assessment of how far their evidence goes on the issues in dispute.

169    I find that the evidence of Ms Leach, which I accept, clearly establishes that Mr Burston sexually harassed her on 1 May 2018 by sexually propositioning her in the coarse and blunt terms that she deposed to, and reject his evidence that it was she who propositioned him. It does not matter in reaching that conclusion whether Mr Burston had any intention of actually carrying out what he suggested, or even that he was physically capable of engaging in sexual intercourse. What matters is that the sexual proposition was made by Mr Burston and that it was, both in its terms and in its impact on Ms Leach, wholly unexpected and wholly unwelcome. Despite grabbing Ms Leach’s face as he sexually propositioned her, Mr Burston’s conduct was at the higher end of verbal sexual harassment. This took place at Mr Burston’s electoral office, which is relevantly and substantially the same as a parliamentary office. Necessarily, such sexual harassment is a form of harassment more generally, such that this finding encompasses both.

170    I also find that Mr Burston sexually harassed Ms Vairy, and therefore necessarily also harassed her, over a prolonged period from about mid 2018 when Ms Vairy said his conduct escalated by starting to kiss her on the lips from time to time and began asking her inappropriate personal questions, until the letter he sent to her on 18 December 2018, which constituted sexual harassment because it inappropriately commented upon and inquired about her private sex life. This protracted pattern of behaviour within the ambit of sexual harassment involved words both spoken and in writing that commented upon her body or appearance, were sexualised or otherwise suggestive in nature, physical touching, kissing, leering and humiliation including by placing her in awkward positions such as attending lunches with him on her own at which some of this conduct sometimes also took place. Some of this conduct took place at other work-related events and locations, which I readily infer included Mr Burston’s parliamentary office.

171    I am therefore satisfied that Ms Hanson has discharged the onus of proving, by evidence of sufficient quality for the purposes of s 140(2) of the Evidence Act, the substantial truth of the 5th and 7th imputations.