FEDERAL COURT OF AUSTRALIA

Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed for the purpose of setting aside the order in paragraph 1 of the orders made by the Court on 22 February 2019 and substituting therefor an order as follows:

“1. Verdict and judgment be entered for the applicant in the sum of $247,672 inclusive of the sum of $22,672 in lieu of interest.”

2.    The appeal otherwise be dismissed.

3.    The appellants pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal against a verdict and judgment in a defamation proceeding in this Court. The appellants are Fairfax Media Publications Pty Ltd and Mr John Garnaut. They were the respondents in the proceeding at first instance. The respondent to the appeal is Dr Chau Chak Wing and he was the applicant in the proceeding at first instance. The substantive order which is the subject of the appeal is that the verdict and judgment be entered in favour of the applicant against the respondents in the amount of $280,000, which includes the amount of $55,000 in lieu of interest. There are six grounds of appeal. As we will explain below, one of the grounds is not in dispute.

2    The matter complained of is an article published on the Sydney Morning Herald website on 16 October 2015. The second appellant was the author of the article. The article is not very long and we reproduce it in the same form as it was reproduced in the primary judge’s reasons. In other words, we include paragraph numbering for ease of reference. The paragraph numbering did not appear in the article as it was published. Furthermore, a description of the photographs and captions is included rather than the photographs themselves.

1.    Are Chau Chak Wing’s circles of influence in Australia-China ties built on hot air?

 2.    [By-line] John Garnaut

3.    Chau Chak Wing may never get to live in the $70 million Vaucluse mansion that he bought from James Packer, sight unseen.

4.    [Photograph of Dr Chau, above the caption, “Chau Chak Wing after donating a large sum of money to the Frank Gehry designed UTS Business School.”]

5.    Because of an unfolding international bribery scandal, some officials believe the highly connected Chinese tycoon may prefer to bunker down in his personal “imperial palace” just north of Guangzhou, beyond the reach of extradition treaties.

6.    But, while the United States may be considering taking action against the billionaire businessman it describes as “CC-3” in a bribery indictment against a former president of the UN General Assembly, John Ashe of Antigua and Barbuda, Chau denies any direct knowledge of anything.

7.    [Aerial photograph of Dr Chau’s house, above the caption, “The most expensive sale of a single family home was the $70 million sale of James Packer’s Vaucluse mansion to Chau Chak Wing.”]

8.    “I don’t know the details, do you understand?” he told Fairfax Media by telephone from Guangzhou.

9.    He said he’d had no request for evidence from investigators in the US and denied he had anything to fear from the unfolding scandal.

10.    US prosecutors accuse Australian-Chinese businesswoman Sheri Yan and her finance chief Heidi Park of arranging for Ashe to be paid $US200,000, plus $US30,000 in travel expenses, for his entourage, plus a promise of bigger things to come. What the alleged bribe bought was Ashe’s appearance, in his official UN capacity, at Chau’s resort on November 17, 2013.

11.    Ashe’s appearance was trumpeted on Chau’s Kingold company website right up until Ashe, Yan and Park were arrested by New York authorities on October 6 over the bribery allegation.

12.    [Photograph of the University of Technology Sydney’s Business School, above the caption, “Up to 70 per cent of students in UTS’ bachelor of business course were admitted below the cut-off.”]

13.    Since then, most of the offending web pages have been scrubbed from cyberspace.

14.    “The whole thing is a misunderstanding,” Chau’s Australian-educated daughter, Winky, told Fairfax Media on Thursday night, speaking from a family holiday in China. “We are going to issue a statement to clarify the whole thing,” she said, before the line cut out and she could no longer be reached.

15.    [Photograph of Dr Chau with former Prime Minister, Mr John Howard, above the caption, “Chau Chak Wing and John Howard share a toast in 2011.”]

16.    Chau, who confirmed he was in Guangzhou, said he did not organise the event at the centre of the scandal.

17.    Though Chau was at the event, and was pictured with Ashe, he said: “I don’t know him [Ashe] well, I didn’t come into contact with him, and it wasn’t me who invited him.”

18.    If Yan, the alleged bribe facilitator, was the social queen of Australia-China relations, then there can be no doubt that her No.1 client, Chau, was the king.

19.    [Photograph of Dr Chau and former Prime Minister, Mr Kevin Rudd, above the caption, “Kevin Rudd in talks with Chau Chak Wing.”]

20.    Chau isn’t really a doctor. He never even went to university. And yet Australian political, business and university leaders went to extraordinary lengths to sing his praises and to be seen at his eye-popping forbidden city at Congdu, in the verdant hills north of Guangzhou.

21.    The spa resort boasts a 27-hole golf course, a golf club with a gold-plated roof, endless luxury villas and gardens, and a purpose-built imperial museum.

22.    [Photograph of Dr Chau in front of a building site, above the caption, “Chau Chak Wing at the building site for the UTS business school.”]

23.    Chau’s generous political donations – about $1 million each to the Liberals and Labor, and half that to the Nationals – were part of the story, but not the major part; it was his relationships with Australia’s great and good. Former prime minister John Howard said he was attracted to his character and philanthropy.

24.    “I know him, and I like him,” Howard told Sydney’s Daily Telegraph, after it was revealed two months ago that Chau had just paid $70 million for Packer’s harbourside mansion.

25.    [Photograph of Dr Chau with the former Governor-General of Australia, Mr Michael Jeffery, above the caption, “Chau Chak Wing with then Australian governor-general Michael Jeffery.”]

26.    “I see him as a very generous benefactor to good causes in Australia,” Howard said. “I have enjoyed my relationship with him.”

27.    Howard was referring to a list of generous donations that begins with Chau’s $20 million gift to the Frank Gehry-designed “brown paper bag” building at the University of Technology, Sydney, which bears his name.

28.    Chau has followed up with $15 million for a museum, also bearing his name, and a $5 million scholarship program for Australian Chinese students.

29.    But what really makes Australian politicians go the extra mile to seek Chau’s friendship was his ability to open doors in China.

30.    Howard credits Chau with playing a crucial role in securing the huge $25 billion LNG export deal that cemented Howard’s reputation for being able to do business with China.

31.    Former NSW premier Morris Iemma employed Chau’s daughter Winky on his personal staff.

32.    Former prime minister Kevin Rudd was known to go to extraordinary lengths to secure his company.

33.    Former prime ministers Tony Abbott and Julia Gillard, and former foreign affairs minister and NSW premier Bob Carr found time to meet, write letters to and otherwise pay homage to, him.

34.    Arguably, there was no other business leader in Australia who enjoyed such conspicuous access.

35.    The more that Chau could demonstrate his influence in Australia, the more he could show his political utility in China, the more access he could offer Australians, and on it went in a seemingly endless circle.

36.    Chau once told Fairfax Media that he never asked his “friends” for favours. He always dispersed his generosity without any strings attached.

37.    To the Australians, it was all about access and opportunity, and hospitality at his “imperial palace”, and the odd $1000 bottle of Chateau Lafite red wine.

38.    To Chinese officials, the opportunities for generosity were much greater. He enjoyed nothing better than helping an official who was having trouble selling land.

39.    He made himself known as the point man for organising the Chinese diaspora in Australia, with his Beijing-friendly Chinese media empire, and he was often successful in transmitting Beijing-friendly messages that Australian politicians might otherwise have been unwilling to receive.

40.    It was a virtuous circle of guanxi – the Chinese method of making social networks to facilitate business dealings – and the perception of access and power created its own reality, which extended right up to the president of the UN General Assembly, John Ashe.

41.    The complaint filed by New York prosecutors, following investigations by the Internal Revenue Service and Federal Bureau of Investigation, reveal a series of exchanges between Yan and Park about their client identified as “CC-3”.

42.    In October 2013, Park told Ashe that “an old friend of Sheri [who] is extremely wealthy” was organising an international conference in Guangzhou. She proposed a $US200,000 payment on behalf of a man whom US authorities describe as a “Chinese real estate developer”.

43.    Ashe asked about travel expenses for his entourage, leading Park to add another $US30,000 to the agreed amount.

44.    When Yan wrote the invitation letter to Ashe, on Chau’s behalf, she took care to note that this was only intended as a start.

45.    A close associate, who is assisting Yan in New York, said: “The FBI and other officials here think that bribery goes with almost all Chinese.

 46.    “Sheri would never do anything she knew was illegal or improper.”

47.    US prosecutors link the payments from three unnamed Chinese business figures, including Chau, to Ashe’s spending spree the following year. He and his wife were tracked paying $US59,000 to a Hong Kong clothing company in June 2014, and then $US69,000 for a vacation club membership the following month, two Rolexes ($US54,000) and a $US40,000 lease on a BMW Series 5.

48.    Chau has not been charged with any offence. He hasn’t even been explicitly identified by prosecutors. And while it might appear prudent for the billionaire to bunker down in China, away from the reach of extradition treaties, Chau has insisted it would not affect his travel to Australia.

 49.    “I will come and go as normal,” he said.

50.    This story is likely to have much more to tell, while we all learn whether the extraordinary Kingold kingdom of Australia and China relations was built upon illicit payments and hot air.

51.    [By-line] With Philip Wen

3    The respondent alleged, and the appellants denied, that the matter complained of carried the following imputations of and concerning the respondent:

(1)    the respondent bribed the President of the United Nations (UN) General Assembly, Mr John Ashe;

(2)    the respondent participated in a conspiracy to bribe the President of the UN General Assembly;

(3)    the respondent acted in so seriously wrong a manner as to deserve extradition to the United States (US) on criminal charges, including charges of bribery;

(4)    the respondent created his business empire in Australia by making illicit payments to government officials.

4    The primary judge found that the matter complained of carried the first three imputations, but not the fourth imputation. The appellants do not challenge the primary judge’s finding that the matter complained of carried the first three imputations.

5    The principal defence raised by the appellants in the proceeding at first instance was the defence of qualified privilege in s 30 of the Defamation Act 1995 (NSW). The primary judge found that the elements of that section were established, save and except that he rejected the appellants’ case that their conduct in publishing the article was reasonable in the circumstances. The appeal to this Court relates only to the primary judge’s conclusion that the appellants’ conduct in publishing the article was not reasonable in the circumstances.

6    As we have said, there are six grounds of appeal. All but one of those grounds relate to the issue we have identified. The ground which does not relate to that issue (i.e., Ground 6) concerns the amount which the primary judge awarded in lieu of interest. The appellants claim that the amount is excessive. The respondent agrees and, in fact, contends that the analysis he advanced to the primary judge results in the calculation of interest in the correct amount. At all events, the parties are agreed that, if the principal amount stands, the correct amount for interest is $22,672.

A General Summary of the Primary Judge’s Reasons

7    We do not propose to summarise all of his Honour’s findings. Many of his Honour’s findings are not challenged. We will, of course, need to examine in detail the particular findings which are challenged on the appeal. We will do that when we come to examine each ground of appeal.

8    At this stage it is important to understand the structure of his Honour’s reasons, his key conclusions and the matters which are challenged.

9    His Honour commences with a statement of introductory matters and then moves to consider the respondent’s case as to the imputations conveyed by the article. We have already set out his findings as to the imputations conveyed by the article and noted that there is no challenge to those findings on the appeal.

10    His Honour then turns to consider s 30 of the Defamation Act. It is convenient at this stage to set out s 30:

(1)    There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

(a)    the recipient has an interest or apparent interest in having information on some subject, and

(b)    the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c)    the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2)    For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3)    In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

  (a)    the extent to which the matter published is of public interest, and

(b)    the extent to which the matter published relates to the performance of the public functions or activities of the person, and

(c)    the seriousness of any defamatory imputation carried by the matter published, and

(d)    the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

(e)    whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and

(f)    the nature of the business environment in which the defendant operates, and

(g)    the sources of the information in the matter published and the integrity of those sources, and

(h)    whether the matter published contained the substance of the person’s side of the story, and if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(i)    any other steps taken to verify the information in the matter published, and

  (j)    any other circumstances that the court considers relevant.

11    The primary judge found that subsections (1) and (2) were satisfied, that is to say, that the recipient of the article had an interest, or apparent interest, in having information on some subject and the matter was published to the recipient in the course of giving information on that subject. His Honour identified the critical question to be whether the appellants’ conduct in publishing the article was reasonable in the circumstances.

12    The primary judge turned to consider the relevant principles which have been developed in relation to that issue under both s 30 and s 22 of the former Defamation Act 1974 (NSW) (repealed). We do not need to set out his Honour’s statement of the relevant principles because no submission was made by the appellants by reference to a particular statement made by his Honour that he had misstated one or more of the relevant principles. In fact, subject to some observations which it is convenient to make at this point about Ground 1 and certain submissions made by the respondent, the appeal does not raise any question as to the identification of the correct principles to be applied in relation to s 30.

13    Ground 1 of the Notice of appeal is expressed in very general terms. It is that the primary judge erred in holding that the appellants had not established that their conduct in publishing the article was reasonable in the circumstances. Clearly that ground will or may come into play if one of the allegations of a specific error in Grounds 2, 3, 4 or 5 is upheld. We will address those grounds in due course. There was a somewhat muted attempt to argue under the rubric of Ground 1 that even if his Honour did not make one of the specific errors alleged, his conclusion as to the unreasonableness of the appellants’ conduct was erroneous. This attempt took various forms. The appellants reminded the Court of various basic and important principles. The Court was reminded that in considering whether the conduct of a publisher is reasonable, the Court must consider all the circumstances leading up to and surrounding the publication (Austin v Mirror Newspapers Ltd [1986] AC 299 at 313 (Austin v Mirror Newspapers)) and that it is appropriate to consider all the circumstances “in the round” (Flood v Times Newspapers Ltd [2012] 2 AC 273 at [131] per Lord Mance JSC). Furthermore, the appellants submitted that the requirement is one of reasonableness, not perfection. The appellants referred to Bonnick v Morris [2003] AC 300 in this regard. However, when it came to identifying whether there was any error by the primary judge in the statement and application of the relevant legal principles, the appellants’ submission was that the primary judge erred in failing to consider all relevant matters cumulatively and one consequence of that was that he failed to take account of the interrelationship between various matters. Only one example of the latter complaint was given and that related to a decision by the second appellant not to refer in the article to information given by a potential source (i.e., Mr Uren) because he considered him an unreliable informant. That submission was not taken very far in the appellants’ written outline and not mentioned at all in their oral submissions. As to the more general point to the effect that the primary judge did not consider the relevant matters cumulatively, we will in due course refer to his Honour’s identification of seven “critical considerations” to his assessment of reasonableness. It will be seen that plainly, he did consider the relevant matters cumulatively.

14    The appellants raised some issues of principle in their written outline of submissions in reply. Those submissions were in response to submissions by the respondent to the effect that even if the appellants made out one or more of their complaints, there were four other unchallenged matters found by the primary judge which supported, alone or together, the primary judge’s conclusion of unreasonableness. We postpone consideration of those matters until we have considered whether any of the specific errors have been made out.

15    We return to our overview of the primary judge’s reasons.

16    His Honour then turned to consider what he called facts and evidence relevant to reasonableness. It is in this section that his Honour considers the evidence that was before him and makes a number of findings which are relevant to his conclusion as to reasonableness. The relevant witnesses for the respondent were the respondent and his daughter, Ms Winky Chow, and the relevant witnesses for the appellants were the second appellant, Mr Daniel Flitton and Mr Philip Wen. This part of his Honour’s reasons is divided into eight sections, each dealing with a different subject matter.

17    The first section that his Honour addressed was evidence given by the second appellant of his earlier interactions with, and impressions of, the respondent. Those interactions took place between 2009 and 2011. The primary judge said he was unsure of how this evidence was relevant and that the parties did not address it in closing submissions. His Honour did not address it in detail. Nevertheless, one of the grounds of appeal (Ground 4) relates to comments his Honour made during the course of dealing with this topic.

18    The primary judge then dealt with what he called the genesis of the article in some detail. This is the US Department of Justice Complaint and an associated Press Release. The Complaint is dated 6 October 2015 and was filed on behalf of the Federal Bureau of Investigation (FBI) and approved by Assistant US Attorneys in New York. The Press Release contained a link to the Complaint.

19    The primary judge then dealt with what he described as the apparent urgency to publish. The second appellant found out about the charges during the morning of 15 October 2015. He was in Delhi at the time.

20    The next section addressed by his Honour is the second appellant’s sources of information and their reliability. One of the second appellant’s sources was a person whose identity was never revealed and who was referred to as “confidential source 1”. One of the grounds of appeal relates to his Honour’s treatment of the second appellant’s evidence with respect to confidential source 1. This section overlaps with the next section in his Honour’s reasons, being the fear of extradition assertions in the article. His Honour described these assertions as a critical element of the article.

21    The next section is described as the alleged scrubbing of the websites.

22    His Honour then addressed the appellants’ attempts to obtain and publish the respondent’s response to the allegations in the article. Ground 5 relates to this section.

23    Finally, his Honour addresses the second appellant’s belief and intentions in relation to the imputations conveyed by the article.

24    The primary judge then identified each of the first nine of the 10 paragraphs in s 30(3) and expressed in a summary way his conclusions with respect to each paragraph.

25    His Honour then turned to express his final conclusions with respect to the reasonableness of the appellants’ conduct in publishing the article. His Honour concluded that the appellants had failed to establish reasonableness and he said that in fact he considered that the appellants’ conduct was unreasonable in many respects. His Honour identified seven critical considerations in reaching his conclusions as to reasonableness. These are as follows:

(1)    the apparent failure of Mr Garnaut to carefully consider and analyse the Complaint and appreciate not only that CC-3 had not been charged or even identified in the Complaint, but that no direct allegation of any act, omission or knowledge on the part of CC-3 was made in the Complaint;

(2)    the unwarranted and damaging inclusion of the assertion that the respondent might remain in China to avoid extradition, in circumstances where the main reason for including that assertion appeared to be to provide a sensational local “angle” relating to the respondent’s purchase of a “Vaucluse mansion”;

(3)    the absence of any, or any reliable, source for the extradition assertion;

(4)    the inclusion of the inaccurate, unjustified and damaging assertion that “offending” web pages which had supposedly revealed contact between the respondent and Mr Ashe at the “event” at the respondent’s resort had been “scrubbed from cyberspace”;

(5)    the inadequate and unfair presentation of the respondent’s side of the story;

(6)    the sensational and hyperbolic language and the general sneering and deprecating tone of the article as a whole; and

(7)    the lack of any demonstrable care and caution in reporting serious allegations against the respondent, including the failure to take adequate steps to ensure that defamatory imputations were not conveyed.

26    In view of his Honour’s conclusion as to reasonableness, it was not necessary for him to consider malice. However, he did so in case he was wrong as to reasonableness. He found that the appellants were not actuated by malice. There is no notice of contention by the respondent and it is not necessary for us to mention this matter any further.

27    The balance of his Honour’s reasons address damages and other relief as to which there is no direct attack on the appeal.

The Appellate Function in this Case

28    The appeal to this Court is under s 24 of the Federal Court of Australia Act 1976 (Cth) and is by way of rehearing (see, for example, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 (SZVFW)). An appeal by way of a rehearing is an appeal for the correction of error and the existence of error is an indispensable condition of a successful appeal (at [21], [29] per Gageler J.)

29    In an appeal by way of rehearing, the Court must conduct a real review and, as has been said, the appellate court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (Fox v Percy) at [23], [25] and [41]; Lee v Lee [2019] HCA 28; (2019) 372 ALR 383 (Lee v Lee) at [55]).

30    One of the issues in this case concerns whether the primary judge should have rejected certain evidence given by the second appellant about confidential source 1. There was debate before this Court as to the extent to which his Honour’s findings were based on conclusions as to the second appellant’s credit, and, to the extent to which they were, the circumstances in which this Court may interfere with such conclusions and findings. We will come to the details when we consider Ground 2, but in the present context we note the guidance provided by the High Court in Fox v Percy as follows (at [28]–[29]):

Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(Citations omitted.)

(See also Lee v Lee at [55] for a description of the circumstances in which appellate restraint may be called for.)

31    After his Honour had made his findings of fact, the key issue for him was whether the conduct of the appellants in publishing the article was reasonable in the circumstances. The judge described the determination of that issue as one which involved a broad evaluative judgment (at [324]). We do not need to consider the precise accuracy of that description. What we do need to make clear is that the general standard of appellate review, namely, correctness applies and whilst respect is to be accorded to the primary judge’s conclusions, notions of deference or a margin of appreciation do not play a part in our approach to the issues on the appeal (SZVFW at [41], [46] per Gageler J; at [85] per Nettle and Gordon JJ; at [155] per Edelman J.)

Ground 1

32    We will postpone consideration of this general ground of appeal until after we have considered Grounds 2, 3, 4 and 5.

Ground 2

33    Ground 2 in the Notice of appeal is in the following terms:

The primary judge erred in finding that it was doubtful that confidential source 1 existed and that, if the confidential source did exist, it was doubtful that the confidential source provided the information the second respondent asserted it did (Judgment at [120], [201], [209] and [219]). His Honour should have held that there was no evidence for those findings. His Honour should also have held that, in the absence of any submission that confidential source 1 did not exist, it was not open to him to make that finding without giving the respondents an opportunity to address the issue.

34    The subject matter of the challenges in this ground of appeal are the primary judge’s findings that it was doubtful whether confidential source 1 existed, and that even if the source did exist, it was doubtful the source provided the information the second appellant claimed it did. By Ground 2, the appellants challenge those findings on the basis that there was no evidence to support them or, in the alternative, at least as to the first finding, the finding should not have been made in the absence of a submission that the source did not exist and the appellants being given the opportunity to address the issue.

35    The article contains the following statement:

… some officials believe the highly connected Chinese tycoon may prefer to bunker down in his personal “imperial palace” just north of Guangzhou, beyond the reach of extradition treaties.

36    The second appellant’s evidence at trial was that confidential source 1 told him that “his view was that Dr Chau must be extremely nervous about leaving the country and would be extremely reluctant to return to Australia while there was a risk of extradition” and that that information formed the basis for the reference in the article to “some officials believe”. The reference to the belief of some officials was added late in the piece and, in fact, an earlier version of the article (not sued upon) which was published online did not include the reference.

37    At the trial, the second appellant claimed journalist privilege under s 126K of the Evidence Act 1995 (Cth) with respect to the identity of confidential source 1 and he described the source as a person who had a “senior role in the Australian Government and [was] involved in international relations”.

38    The second appellant was the principal witness for the appellants at the trial. With respect to his credibility and reliability, the primary judge said that for the most part he found the second appellant to be an honest and reliable witness. However, he had doubts about his honesty and reliability as a witness, “at least in respect of some contentious issues raised by his evidence”. His Honour also noted features of the second appellant’s presentation and evidence as follows: (1) he was very articulate and a highly qualified and experienced journalist who had extensive knowledge about matters relating to China; (2) he was at times prone to exaggeration and hyperbole, particularly in his evidence concerning his interactions with, and impressions of, the respondent; and (3) he, at times, showed signs of arrogance, if not smugness, concerning the article and the subject matter with which it dealt.

39    The primary judge said that the most significant area of the second appellant’s evidence where he had doubts about his honesty and reliability concerned confidential source 1. He doubted the source existed, or, if the source existed, that the source provided the information to the second appellant which he claimed. The primary judge considered that the likelihood was that that aspect of the second appellant’s evidence was manufactured in order to justify the very late reference to “some officials” (at [120]). Later in his reasons, his Honour described the second appellant’s evidence about the source as, at best, “highly doubtful”.

40    His Honour also identified what he perceived to be another problem and that was that the lack of evidence about confidential source 1 meant that it was almost impossible to assess whether the views apparently expressed by the source were based on mere speculation or were on some objectively reliable information in the source’s possession (at [201]).

41    It is important to keep in mind that there are two points. First, there is the issue of whether confidential source 1 existed and whether the second appellant had the conversation he claimed with confidential source 1. Secondly, there is the issue of whether, assuming the second appellant had the conversation he claimed with confidential source 1, his conduct in relying on the source and making the fear of extradition assertion in the article was reasonable.

42    The primary judge gave the following reasons for concluding that the reliability of the second appellant’s evidence about confidential source 1 was “at best, highly doubtful” (at [209]).

43    First, his Honour said that there was nothing in the documentary record (i.e., contemporaneous notes by the second appellant, the extensive documentary record of the research and investigation of the story) which is evidence of a source, or refers to a source, confidential or otherwise, claiming that the respondent might plan to remain in China to avoid extradition.

44    Second, the record of communications about the proposed story shows that the extradition angle was entrenched from the very earliest stage and that was not because a source had provided that information, but because, with the statement that the respondent might never be able to live in the $70 million Vaucluse mansion that he bought from James Packer, sight unseen, it provided “cut through” in the article.

45    Third, the second appellant sent an email containing a first draft of the article to his direct editor at the time, Mr Michael Bachelard, at 9.55 am on 16 October 2015 and the first draft contained the following reference to extradition:

Dr Chau Chak-Wing may never get to live in the $70 million Vaucluse mansion which he bought from James Packer, sight unseen.

He may prefer to bunker down in his personal “Imperial Palace” just north of Guangzhou, beyond the reach of extradition treaties, if US authorities decide to take action against the billionaire businessman they describe as “CC-3” in a bribery indictment against the former president of the UN General Assembly, John Ashe.

…

Chau has not been charged with any offence. He hasn’t even been explicitly identified in [sic] prosecutors. But it may be safest for the billionaire to bunker down in China away from the reach of extradition treaties while we all learn whether the extraordinary Kingold kingdom of Australia and China relations was built upon illicit payments and hot air.

46    This first draft contains no reference to the views of any officials, the view about bunkering down appears to be that of the author and the primary judge said that it was “extremely difficult to accept” that if the second appellant had spoken to confidential source 1 by then reference to that would not have been made in the following:

(1)    the first draft of the article;

(2)    the exchange between the second appellant and Mr Bachelard over the following few hours; and

(3)    the first version of the article posted online at 1.47 pm on 16 October 2015. By then, the second appellant had written or approved at least three versions of the article, none of which contain reference to the beliefs of some officials.

47    It was not until 2.18 pm on 16 October 2015 that the second appellant in an email to fellow Fairfax journalists suggested the insertion of the words, “some officials believe”.

48    The primary judge then noted that the second appellant was cross-examined about the reasons the words, “some officials believe” were added at such a late stage. He set out the second appellant’s explanation as follows (at [216]):

You see, by this time, Mr Garnaut, you had written or okayed at least three versions of this story that did not have the reference to “some officials”?---Yes.

And even though you may not have known it, the story had been published without those words in it; correct?---That seems to be correct.

Yes. Why did you choose to add them at this point, as it were, at the heel of the hunt and not earlier?---Because I rarely come up with, you know, the perfect formulation of words on the first go, so, upon reconsidering, I thought it was important to be as precise as I could.

You see, your motivation in actually adding this was to give an additional air of credibility to the assertion that you had previously made about my client hiding because he was frightened of being extradited; that’s why you put it in, isn’t it?---I actually thought it went the other way as well, more importantly, but this is the expression of some people. This is not an objective fact plucked from the air.

Yes. But don’t you think that it gives additional force to say that it comes from a government official than from a journalist?---I think it adds clarity and precision. Look, I could go either way. I would actually go the other way, that it shows that this is not objective fact, it’s the point of view of some people.

49    The primary judge did not find it credible that the second appellant did not include the words because he rarely came up with the perfect formulation “on the first go” or that the reference to “some officials believe” gave the assertion less force.

50    In addition to the effect, if any, of the primary judge’s conclusions concerning the second appellant’s presentation as a witness, the primary judge summarised his reasons for concluding that the second appellant’s account of the provision of information by confidential source 1 was not reliable or credible may be summarised as follows: (1) the complete absence of any contemporaneous documentary record of the second appellant’s alleged conversation with confidential source 1; (2) the fact that the source was not even hinted at in the emails with key Fairfax journalists and their editor during the course of the investigation and preparation of drafts of the article; and (3) the view about avoiding extradition was an important aspect of the story and yet at all times up to, and even after, the first posting of the online story the view about avoiding extradition is presented as the author’s view.

51    The primary judge said that, in any event, and more significantly, the lack of information about the source meant that it was almost impossible for the Court to assess the reliability of the source and the reliability of the view expressed by the source (at [222]). This was a problem for the appellants because they bore the onus of establishing reasonableness. Put another way, even if confidential source 1 existed and the second appellant had the conversation with the source which he claimed, the appellants’ conduct in relying on the source and in including the fear of extradition assertion in the article was not reasonable. His Honour gave four reasons for reaching this conclusion.

52    First, whether the respondent would prefer to “bunker down” in China and avoid the risk of extradition is something which would only be known to the respondent or somebody who had spoken to him. There was no evidence that confidential source 1 had spoken to the respondent and the second appellant did not give evidence that he had asked the source whether he had done that.

53    Secondly, there was no evidence to establish that confidential source 1 was doing other than speculating. The terms of the alleged conversation suggest that the official was speculating.

54    Thirdly, even accepting what the second appellant said in his evidence-in-chief about what he knew about confidential source 1, that would not provide a reasonable basis to believe the view of confidential source 1 amounted to anything more that speculation. The second appellant’s evidence did not go that far. The primary judge said (at [226]):

… It does not follow that the Australian Government, or any of its officials, in fact had communicated with the United States Government about the case, or otherwise had any first-hand knowledge of the investigation. It is difficult to see why the United States government or any of its officials would be communicating with Australian officials about a bribery case which had no apparent link with Australia. Moreover, if Mr Garnaut genuinely believed that the official had any first-hand knowledge of the investigation, it is surprising that he did not ask him why Dr Chau had not been charged or even named in the indictment.

55    Fourthly, there was no evidence that the second appellant asked confidential source 1 anything with a view to ascertaining the source, basis or reliability of his view. The point made by the primary judge was that if one considers carefully the information allegedly provided, it was distinctly possible that it was speculation and in those circumstances if the second appellant wished to publish the fear of extradition assertion “it was unreasonable for him not to seek to ascertain the basis and source for the official’s view” (at [227]).

56    In summary, the primary judge was not satisfied that the second appellant had a reliable independent source for the fear of extradition assertion, or even if he did, that the view expressed by the source amounted to anything other than speculation. Further, his Honour was not satisfied that the second appellant had any reasonable grounds to believe that the view amounted to anything more than mere speculation. The primary judge said that the making of the fear of extradition assertion was a highly relevant consideration in determining whether the conduct of the appellants in publishing the article was reasonable in the circumstances.

Analysis

57    Although some features of the relevant events have already been mentioned, a convenient starting point for an analysis of the issues is a short chronology.

58    On 15 October 2015, an article about Ms Sheri Yan and the fact that she faced charges of bribery appeared in the Sydney Morning Herald.

59    The second appellant said that he spoke to confidential source 1 during the afternoon of 15 October 2015.

60    At 8.55 pm on 15 October 2015, the second appellant sent an email to Mr Flitton which included the following passage:

Got a call from [redaction] they’re suitably (but quietly) terrified.

61    This is said to be an important email. We will refer to it as the Garnaut/Flitton email. The second appellant gave evidence that this email refers to his conversation with confidential source 1. As we understand it, he was not challenged on this evidence in cross-examination. The second appellant’s evidence was that he spoke to only one person, but that this person expressed a joint opinion on their own behalf and on behalf of another person. The second appellant’s evidence was that the “they’re” referred to in the email is a reference to the source and is not a reference to the respondent. There was cross-examination of the second appellant about his evidence of the conversation as set out above (at [48]) and the fact that it refers to his view and his evidence that the source referred to a joint opinion of himself and another person. We do not need to pause on that matter.

62    Two matters may be noted about the Garnaut/Flitton email. First, the email does not in its terms contain any reference to the alleged conversation between the second appellant and confidential source 1 as set out above (at [60]) or the respondent’s alleged fear of extradition. Secondly, as the respondent’s counsel pointed out in submissions, there is no information as to what the email is about. For example, there is no explanation of what confidential source 1 was terrified about.

63    At 3.14 am on 16 October 2015, the second appellant, in an email to Mr Flitton and other Fairfax journalists, advised that he had become aware that he had been “scooped” by a rival media organisation. The second appellant makes what seems to be his first reference to extradition linking that matter to the respondent’s purchase for $70 million of a property previously owned by Mr James Packer. The email contains the following passage:

Chau is possibly stuck forever now in China, to avoid extradition, so he’ll never get to sleep in his 70m James Packer pad.

64    At 7.28 am on 16 October 2015, Mr Bachelard wrote to Fairfax journalists, including the second appellant, making the point that the article published by the rival media organisation would be hard to follow. However, he expresses the opinion that the “idea” of the respondent never being able to live in “the 70 million Packer pad” also had “cut through”. We understand this last phrase to refer to material which is likely to be of interest, perhaps great interest, to readers and potential readers.

65    At 9.55 am on 16 October 2015, the second appellant sent his first draft of the article to Mr Bachelard. The respondent’s fear of extradition and the possibility that it would mean that he may never get to live in his recently purchased property in Australia is an important feature of the article, as it is in the article sued upon, appearing at the beginning of the article and at the end, or near the end. There is no reference in the draft to what some officials believe.

66    The article “goes through” at least three drafts and in none of these drafts is there a reference to what officials believe as to the respondent’s fear of extradition.

67    At 1.47 pm on 16 October 2015, the first version of the article is published online. This is not the version of the article sued upon. It seems the second appellant was unaware that the article had been published. This version of the article did not contain any reference to the beliefs of officials about the respondent’s fear of extradition.

68    At 2.18 pm on 16 October 2015, the second appellant, in an email to other Fairfax journalists, asked for the reference to “some officials believe” to be inserted in the article as it then stood.

69    There are five introductory matters which we must mention.

70    First, the primary judge said that he doubted confidential source 1 existed, or that if the source did exist, that he gave the second appellant the information the second appellant claimed he did. He then went on to say that the likelihood was that the second appellant’s evidence concerning the source was manufactured so as to justify the very late addition to the article of the reference to “some officials believe” that the respondent might bunker down in China to avoid extradition (at [120]). The appellants put their submission on the basis that the finding of the primary judge was that the second appellant’s evidence concerning the source was manufactured, despite subsequent reference in his Honour’s reasons to the evidence being, “at best, highly doubtful” (see, for example, [201]) or, “at best, doubtful” (see, for example, [209]). We did not understand the respondent to submit that in fact the primary judge made some lesser finding about the second appellant’s evidence concerning confidential source 1 than that advanced by the appellants and we consider it appropriate to proceed on the basis that the primary judge’s first expression of his finding is the finding we should act on.

71    The appellants point out, undoubtedly correctly, that such a finding is a serious one in terms of a journalist’s credit and professionalism and would not be made lightly.

72    Secondly, the finding relates to the existence of the source and that, if the source existed, they said to the second appellant what the second appellant claimed. Some interpretation of precisely what his Honour found is required because of the reference to a source, rather than a person’s name. We do not understand his Honour to be negating the possibility that the second appellant had a source in the Australian Government or the Public Service who provided him with information upon terms of anonymity from time to time, perhaps even as to extradition matters. What his Honour was negating was a source in this matter, or if there was a source, that the source gave the information the second appellant claimed.

73    Thirdly, and following on from the second matter, we consider that there is nothing in the procedural fairness complaint outlined in the ground of appeal. The appellants accept, as they must in light of the evidence, that it was put to the second appellant that he never had a conversation with any government official about the matters the second appellant said he spoke to confidential source 1 about. That is sufficient notice of a finding that he did not have a source in the case of this matter.

74    Fourthly, there was a good deal of debate in submissions before this Court about the extent to which his Honour’s findings concerning the alleged conversation with confidential source 1 were based on his assessment of the second appellant’s credit. When we use the word “credit” in this context, we refer to those matters where the primary judge has an advantage over this Court in having seen and heard the second appellant give evidence. Rival contentions were advanced as to the extent to which his Honour based his conclusions on those matters. The fact is that his Honour did express conclusions based on the second appellant’s presentation as a witness and we have already identified those matters (at [38]). At the same time, his Honour clearly based his conclusions, in part at least, on the probability of certain events occurring in light of documentary and other evidence which he accepted and those matters did not seem to involve the second appellant’s presentation as a witness. The respondent emphasised the former while the appellants emphasised the latter. In the case of the appellants, they also made it clear that, if they were wrong and his Honour’s findings were based on “credit” findings, they did not shy away from submitting that his Honour’s findings were made contrary to compelling inferences or glaringly improbable within the authorities (Fox v Percy at [29] per Gleeson CJ, Gummow and Kirby JJ).

75    We do not need to address this matter any further for this reason. We have considered the matters advanced by the appellants as errors on the part of the primary judge and we consider that the primary judge did not err in any of the respects claimed.

76    Finally, in the course of oral submissions to this Court the appellants seemed to assert that in placing weight on the absence of documentary records, the primary judge erred in overlooking evidence from the second appellant that he had destroyed his notes. The second appellant gave evidence that he had probably deleted his notes after he had written the story, particularly in relation to confidential sources.

77    The appellants’ submission is untenable. First, even if it is the case that the second appellant destroyed his notes, that fact was not overlooked by the primary judge who said that apparently the second appellant did not make or retain any contemporaneous note of the conversation he said that he had with confidential source 1 (at [210]). Secondly, and in any event, the submission is a curious one in light of the appellants’ written outline of argument where it is contended that it is not surprising that no record would be made of a conversation with a confidential source.

78    The appellants made four submissions in support of Ground 2 in the Notice of appeal.

79    First, they submitted that it was difficult to see how the primary judge could have made a finding that the second appellant manufactured his evidence in relation to confidential source 1 in circumstances where he found that, for the most part, the second appellant was an honest and reliable witness and where he found that the second appellant was not actuated by malice. In answer to this submission, we need only say that it is open to a trial judge to reject part of a witness’ evidence and the primary judge, in making his general findings about the second appellant’s evidence, clearly foreshadowed the respects in which he did not accept that evidence.

80    Secondly, the appellants submitted that the primary judge misunderstood the chronology of events. This submission centred on the Garnaut/Flitton email. As we understood the submission, it was that it was consistent with the second appellant’s evidence that he spoke to confidential source 1 during the afternoon of 15 October 2015 and it disproved the suggestion that there was no record of a conversation with confidential source 1 before the first draft of the article was produced, or indeed at all. This argument has a superficial attraction, but fails when careful regard is had to the primary judge’s precise findings.

81    The primary judge did not overlook the Garnaut/Flitton email. He referred to it in the following passage (at [210]):

… There is one redacted reference to a person who was, according to Mr Garnaut at least, confidential source 1 in the email communications, though that email simply records that Mr Garnaut “[g]ot a call from [redacted] they’re suitably (but quietly) terrified”. There is nothing in the documentary record which evidences or refers to a source, confidential or otherwise, claiming that Dr Chau might plan to remain in China to avoid extradition.

82    We have already referred to the email in the context of setting out the chronology and noted that there is no evidence as to the matter to which it refers. It certainly does not refer to the conversation the second appellant said he had with confidential source 1 (a matter with which the second appellant agreed in his evidence) or an opinion about the respondent, let alone his fear of extradition. It was the absence of such a reference that the primary judge was referring to in the last sentence of the above passage. That was the point the primary judge emphasised in his subsequent reasoning.

83    The Court was taken to the following passage in the primary judge’s subsequent reasoning (at [220]):

The complete absence of any contemporaneous documentary record of his supposed conversation with this official, even in some redacted or coded format, is surprising. The fact of the communication is also not even hinted at in any of the emails between the key Fairfax journalists and their editor during the course of the investigation and preparation of the drafts of the article. That means that Mr Garnaut’s evidence about the conversation was entirely uncorroborated. …

84    The appellants emphasised the second sentence and submitted that it is erroneous in light of the Garnaut/Flitton email. However, the second sentence must be read in the context of the whole passage and indeed, the reasons as a whole, and when that is done it is clear that the point his Honour is making is that there is no reference or hint in any correspondence to the conversation the second appellant claimed he had with confidential source 1 or an opinion about the respondent’s fear of extradition. That is correct and is not contradicted by the Garnaut/Flitton email.

85    We reject the appellants’ second submission.

86    Thirdly, the appellants submitted that the primary judge erred in approaching the issue of whether he should accept the second appellant’s evidence about confidential source 1 as involving, and only involving, a choice between whether the second appellant held an opinion about the respondent’s fear of extradition on the one hand, and whether the second appellant had the conversation he claimed with confidential source 1, on the other. In other words, if the second appellant had his own opinion about the respondent’s fear of extradition, then the conversation with confidential source 1 did not take place. This was referred to in submissions as an error involving the characterisation of the choice as binary.

87    This submission must be rejected because the primary judge did not proceed in this way. In the course of giving his reasons for concluding that the second appellant’s evidence concerning his conversation with confidential source 1 should be rejected, the primary judge said (at [211]):

Second, the first reference in the record of communications to Dr Chau fearing extradition is in an email from Mr Garnaut to Mr Bachelard and others, shortly after Mr Garnaut discovered that he had been “scooped” by a rival journalist. In that email, Mr Garnaut appeared to pitch his proposed story about Dr Chau to Mr Bachelard. Even at that very early and preliminary stage, Mr Garnaut’s pitch for the story included the extradition assertion. The pitch began with the statement that: “Chau is possibly stuck forever now in [C]hina, to avoid extradition, so he’ll never get to sleep in his 70m James Packer pad”. Mr Garnaut did not suggest in his correspondence with Mr Bachelard that his extradition “angle” had been derived or buttressed by information obtained from any independent source. Mr Bachelard was enthusiastic about the extradition angle. He replied to Mr Garnaut and agreed that the “idea of Chau never being able to live in the 70 million Packer pad also has cut through”. Mr Bachelard did not ask Mr Garnaut whether he had any independent source for this angle. Thus, the extradition angle was firmly entrenched from the very earliest stage; not because any source had provided that information, but because it provided “cut through”.

88    The appellants identified the last sentence in this passage as supporting its submission that the primary judge treated the choice as binary. We do not agree. Again, the submission involves taking the sentence out of context and without regard to the reasons as a whole.

89    The essence of the primary judge’s reasoning was that the fear of extradition assertion was a very important assertion in the article. It provided the “cut-through” as the appellants themselves said. The primary judge’s approach was to consider the likelihood, assuming the conversation had taken place, of that not being mentioned before it was. This approach can be seen, by way of example, in the following passage (at [213]):

It is noteworthy that there is no suggestion that any “officials” had expressed the view that Dr Chau may prefer to “bunker down” in China to avoid extradition, or that remaining in China may be “safest”. Indeed, the clear impression conveyed was that it was the author’s view that it might be preferable or safest for Dr Chau to stay in China to avoid extradition. There was no suggestion that the author’s view was based on any information provided by any “officials”. If Mr Garnaut had spoken to confidential source 1 by this time, it seems extremely difficult to accept that he would not have included that information in the first draft, particularly given the prominence given to the assertion concerning extradition.

90    The primary judge’s approach was orthodox and did not involve error.

91    We reject the appellants’ third submission.

92    Fourthly, the appellants submitted that the primary judge erred in his approach to the second appellant’s evidence concerning confidential source 1’s knowledge and qualifications to express an opinion about whether the respondent feared, or would fear, extradition. There were two limbs to this submission. First, the second appellant gave evidence on the topic in his evidence-in-chief and more limited evidence in cross-examination on the topic. The primary judge erred (so it was said) because when he came to deal with the matter, he focussed only on the evidence given in cross-examination and overlooked the evidence-in-chief. Secondly, the second appellant claimed journalist privilege at certain points in his cross-examination and it was argued that it should be inferred from his Honour’s reasons that he considered the second appellant’s claim for privilege to be strategic. We understood that to mean designed to avoid answering questions, rather than a genuine claim for privilege.

93    We reject both of those contentions. The primary judge did not overlook the second appellant’s evidence-in-chief. He considered that it did not provide the detail of the knowledge and qualifications of confidential source 1 which he considered was missing. Furthermore, it is not to be implied from his Honour’s reasons that he considered the claim for privilege to be strategic.

94    These conclusions are supported by his Honour’s observations and findings in the following three paragraphs in his reasons (at [217], [221] and [226]):

217    Mr Garnaut was then asked questions about confidential source 1. It was at that point that Mr Garnaut claimed privilege on the basis that his answers may tend to identify his source. He was not prepared to answer any questions beyond confirming that the official was an “Australian public servant” who he had known for a “long period of time”. He appeared to claim that the official had a “long knowledge” of Dr Chau, but declined to indicate whether the official had ever met Dr Chau. It should be noted, in this context, that in his evidence-in-chief, Mr Garnaut had said the official “had a senior role in the Australian Government and [was] involved in international relations”, that “his role in the Australian Government had been following this case closely” and that his “impression was that he [the official] had visibility over justice-related communications between the Australian Government and the US Government”. He was not so forthcoming when pressed in cross-examination about the last minute change to the article.

221    While it was of course perfectly open to Mr Garnaut to claim privilege in respect of any information which might tend to identify his supposed source, and no adverse inference can or should be drawn against him for making that claim, Mr Garnaut’s apparent unwillingness to reveal even the most basic information about the official left the Court in the unenviable position of having to determine the reliability and credibility of his evidence on the basis of very limited and incomplete information. Be that as it may, on the evidence as a whole, I am simply not satisfied that Mr Garnaut’s account concerning the provision of this information was reliable or credible.

226    Third, on the basis of the limited evidence Mr Garnaut gave concerning confidential source 1 and the conversation he had with him, it is difficult to accept that Mr Garnaut had any reasonable basis to believe that the official’s view amounted to anything more than mere speculation. It is no answer to this that the official was apparently involved in some way in “international relations” and had supposedly been following the case closely. Nor does it assist that Mr Garnaut had the “impression” that the official may have had “visibility” over “justice-related communications” between the Australian Government and the United States Government about the case. It does not follow that the Australian Government, or any of its officials, in fact had communicated with the United States Government about the case, or otherwise had any first-hand knowledge of the investigation. It is difficult to see why the United States government or any of its officials would be communicating with Australian officials about a bribery case which had no apparent link with Australia. Moreover, if Mr Garnaut genuinely believed that the official had any first-hand knowledge of the investigation, it is surprising that he did not ask him why Dr Chau had not been charged or even named in the indictment. Yet he apparently did not.

95    Paragraphs 217 and 221 appear in the section of his Honour’s reasons dealing with the existence of confidential source 1 and the alleged conversation, whereas paragraph 226 is in the section dealing with the reasonableness of the second appellant’s reliance on confidential source 1 (assuming the conversation alleged took place) and of his conduct in making the fear of extradition assertion. Nevertheless, paragraph 226 informs what his Honour had in mind as the “basic information” when making the comments he did in paragraph 221. It is not the information the second appellant gave in his evidence-in-chief and which his Honour adequately summarised in paragraph 217. In light of his Honour’s comments in paragraph 217, it cannot be said that he overlooked the second appellant’s evidence-in-chief. Furthermore, in light of his Honour’s comments in paragraph 221, it cannot be said that it should be inferred that his Honour found that the claim for privilege was strategic.

96    We reject the appellants’ fourth submission.

97    These conclusions mean that Ground 2 in the Notice of appeal must be rejected. As we have said, there was a second limb to his Honour’s reasoning about confidential source 1 and that was that even if there was a source and the conversation claimed took place, the second appellant’s conduct in relying on confidential source 1 was not reasonable and nor was his conduct in making the fear of extradition assertion in the article. The appellants seemed to recognise that they needed to overturn these conclusions as well, but they did not say a great deal with a view to doing so. We have already referred to the matter which is the subject of the fourth submission above. Insofar as it is deployed here, it is rejected for the same reasons. The appellants made the uncontroversial point that “information” in s 30 includes opinion (Austin v Mirror Newspapers at 307). However, their main point appeared to be that his Honour did not consider, in the alternative, the reasonableness of the appellants’ conduct in making the fear of extradition assertion simply by reference to the second appellant’s opinion about its correctness. We reject that submission. It is not the fear of extradition assertion made in the article. It is not the case run below. The case run below was that the second appellant had a source for the fear of extradition assertion which was both independent and reliable. That case failed.

98    We reject Ground 2 in the Notice of appeal.

Ground 3

99    Ground 3 in the Notice of appeal is in the following terms:

The primary judge erred in finding that the Department of Justice Complaint and Media Release (Exhibits 32 and 31 respectively) did not provide a reasonable basis for the views held by the second respondent and the allegations contained in the matter complained of (Judgment at [150]-[178]). His Honour should have held that those exhibits provided a basis for the views held by the second respondent and for the allegations contained in the matter complained of and that it was relevant to take them into account in determining whether the respondents had acted reasonably.

100    The proper starting point is the identification of the issue raised in this ground of appeal.

101    As we have said, the genesis of the article was the Complaint and the Media Release by the Department of Justice. The Complaint is the principal document for present purposes. The Complaint contains charges of conspiracy to bribe, bribery and other offences. The other offences are not relevant for present purposes. The respondent is not a defendant to the Complaint and he is not named in the Complaint. However, a person is identified in the Complaint as “CC-3” and at the trial, the respondent said that it had to be accepted that, on the evidence, the probabilities are that the respondent is CC-3.

102    The second appellant gave evidence at the trial that when he read the Complaint, he formed the view that CC-3 was the respondent and that he was “the person who funded the alleged bribe, was the source of the alleged bribe, and issued the invitation to the recipient, John Ashe” and that he was “on the face of it … the alleged bribe-giver”.

103    A part of the issue of reasonableness was whether that view was a reasonable one to have formed and held. The primary judge found that it was not (at [178]) and that the second appellant’s view was the result of an apparent failure by him to bring to bear a careful consideration and analysis of the Complaint (at [325]). The challenge in Ground 3 is to the conclusion of the primary judge that to have formed the view from the Complaint that it is alleged that the respondent was the bribe-giver was not reasonable.

104    It is convenient at this point to repeat aspects of the article which relate to the Complaint and the allegations of bribery. They are as follows:

(1)    there is an unfolding international bribery scandal;

(2)    the US may be considering taking action against the billionaire businessman it describes as CC-3 in a bribery indictment;

(3)    Ms Sheri Yan (Yan) is an Australian-Chinese businesswoman. Her finance chief is Ms Heidi Park (Park). The respondent is Yan’s No 1 client;

(4)    Yan and Park are accused by US prosecutors of paying Mr Ashe of Antigua and Barbuda, a former president of the UN Assembly, US$200,000 plus US$30,000 in travel expenses, for his entourage, for Mr Ashe’s appearance in his official UN capacity at the respondent’s resort on 17 November 2013 and a promise of bigger things to come;

(5)    Yan and Park and (Mr Ashe) were arrested by New York authorities on 6 October 2015 over the bribery allegation;

(6)    Yan is the alleged bribe facilitator;

(7)    the Complaint filed by New York prosecutors followed investigation by the Internal Revenue Service and the FBI ;

(8)    the Complaint reveals a series of exchanges between Yan and Park about their client identified as CC-3;

(9)    in October 2013, Park told Mr Ashe that an old friend of Yan who is extremely wealthy was organising an international conference in Guangzhou and she proposed a US$200,000 payment on behalf of a man the US authorities describe as a “Chinese real estate developer”. Mr Ashe asked about travel expenses for his entourage leading Park to add another US$30,000 to the agreed amount. Yan wrote an invitation letter to Mr Ashe on the respondent’s behalf. She took care to make it clear it was only a start;

(10)    US authorities link the payments from three unnamed Chinese business figures, including the respondent to Mr Ashe’s spending spree the following year; and

(11)    the respondent has not been charged with any offence and he had not been explicitly identified by prosecutors.

105    We turn now to identify the general structure and contents of the Complaint.

106    The Complaint alleges as Count One a conspiracy to bribe a UN official by the named defendants and “others known and unknown”. It is alleged that they “wilfully and knowingly did combine, conspire, confederate and agree together and with each other” to violate a certain US law. In the context of identifying the object of the conspiracy, there is again reference to defendants, “and others known and unknown” and there is reference to amounts being paid, “in exchange for official actions on behalf of businessmen”. The overt acts of the conspiracy include an alleged act by Yan and Park on or about 4 November 2013 of arranging for a US$200,000 wire to a bank account belonging to the President “from another co-conspirator not named as another defendant herein in exchange for the President attending a private conference in his official capacity”.

107    Count Two is an allegation of the payment of bribes by the defendants to Mr Ashe “in exchange for official actions on behalf of businessmen”.

108    Count Three is a charge against Yan and Park for conspiracy to commit transportation money laundering and Counts Four, Five and Six involve charges against Mr Ashe of taxation offences. As we have said, they are not relevant for present purposes.

109    The Complaint then contains a section by the deponent of the affidavit therein, called an overview based in part, on various emails seen by the deponent. The deponent states the bribes were paid by businesspeople, the bribery money was from sources in China and that the bribes were facilitated by the defendants “among others”. The relevant bribe as part of a larger number of bribes were: (1) from various Chinese businessmen; (2) arranged by Yan and Park; (3) in return for Mr Ashe supporting the interests of these businessmen within the UN and with senior Antiguan government officials. The deponent then sets out his knowledge as to various participants. Yan and Park are said to have been born in China, to reside principally in China and to be associated with “several businessmen in China”. Yan is the chief executive officer and Park the finance director of a non-government organisation created to promote global and sustainable development.

110    The deponent claims that on the basis of his review of records, Yan and Park paid bribes to Mr Ashe in return for him taking official action on behalf of various Chinese businessmen seeking to obtain lucrative investments and government contracts in Antigua and elsewhere. The first such businessman is identified as a “Chinese media executive” and “a co-conspirator not charged … (‘CC-1’)”. The next is identified as a “Chinese security technology executive (CC-2)”.

111    The Complaint then sets out by reference to the deponent’s review of emails, details of the alleged payment of US$200,000 to Mr Ashe in exchange for Mr Ashe attending a conference in China in his official capacity. The emails were sent in October and November 2013 and pass between Mr Ashe, Yan and Park. The primary judge set out the relevant parts of the Complaint and we do likewise:

I also know from review of emails that after defendant JOHN W. ASHE became UNGA President, defendants SHIWEI YAN, a/k/a “Sheri Yan,” and HEIDI HONG PIAO, a/k/a “Heidi Park,” also arranged for a $200,000 payment to ASHE in exchange for ASHE making an official appearance at a conference in China being organized by a Chinese real estate developer (“CC-3”). Specifically, from my review of emails, bank documents, and other documents, I have learned the following:

a.    On October 18, 2013, PIAO emailed ASHE, with a copy to YAN, and told ASHE that PIAO and YAN had been working on obtaining additional funds for ASHE. PIAO told ASHE that “an old friend of Sheri who is extremely wealthy” was organizing an international conference in Guangzhou, China (the “Guangzhou Conference”), and that PIAO and YAN had suggested that ASHE be invited to the conference. PIAO attached a program for the conference that listed several current and former government officials as invited attendees, including ASHE. ASHE replied that the Guangzhou Conference was “very tempting indeed” and that he might make it, but that his entire “team” would need to accompany him. YAN replied to ASHE that she had “[j]ust talk[ed] to Heidi, she is going to write to you. In short, all the people who travel with you will be covered by the man and plus.” PIAO then replied to ASHE that “[w]e are sure that he will cover the cost of your team,” and requested information about ASHE’s team and travel plans.

b.    On or about October 24, 2013, YAN emailed ASHE and PIAO and stated “[a]ccording to our strategy plan, [CC-3]’s office emailed me the invitation to John this morning … I will ask $200,000 for this trip. …” A few minutes later, YAN emailed ASHE, with a copy to PIAO, a draft invitation from CC-3 to ASHE to attend the Guangzhou Conference. YAN told ASHE that the invitation had been approved by CC-3, and YAN added that “[a]s you may see that I purposely add some words on future relationship between you and him, that will establish a good platform for you today and tomorrow.” The draft invitation was addressed from CC-3 to ASHE as UNGA President and, in addition to inviting ASHE to the Guangzhou Conference, CC-3 stated that, “After attending this Summit, I wish that you would remember that you have a sincere friend in Guangdong Province – the economic powerhouse in China. And your friend here has the pleasure to offer you a permanent convention venue for the UN meetings on the sustainability and climate changes in the efforts to fully realize the Millennium Development Goals, as well as for the 193 members of the UN to convene for multilateral discussions on the topics of priority concerns.”

c.    On October 27, 2013, PIAO emailed ASHE and YAN and told ASHE that “in order to have [CC-3] to wire the money to 68th PGA account, we suggest that you write a courtesy letter (in 68th PGA letterhead) to [CC-3] to accept his invitation, and in the letter also list out the name and title for all the people to be travelling with you, in order to make the logistic arrangement for them.” The next day, ASHE emailed the “courtesy letter” to CC-3 suggested by PIAO. The letter was addressed to CC-3 from ASHE and was on official UNGA President letterhead. In the letter, ASHE told CC-3 he was pleased to accept CC-3’s invitation to him and his team to attend the Guangzhou Conference. ASHE stated that at the conference ASHE would “deliver a statement on the topic of ‘Identifying the Parameters of the Post-2015 Development Agenda.’” ASHE then listed four UN officials that would attend the conference with him and asked CC-3 to contact his special assistant to “finalize the logistical arrangements.”

d.    On October 29, 2013, PIAO emailed ASHE and YAN and told ASHE that “in order to get the funding wired in ASAP,” PIAO and YAN recommended that instead of asking CC-3 to contact ASHE’s special assistant to make the “logistical arrangements,” that ASHE revise his letter to CC-3 to ask that the arrangements be made through YAN. Later that day, PIAO emailed ASHE again, copying YAN, asking ASHE: “As for the $200K from [CC-3], which account would you like it to be wired to? The 68 PGA? Please advise.” ASHE replied to PIAO and YAN that the money should be wired to the “PGA account” and attached a revised letter to CC-3. In the revised letter, ASHE told CC-3 to have his staff “contact my Adviser on Economic Matters, Ms. Shiwei Yan, to finalize the logistical arrangements for the trip.”

e.    Later that same day, ASHE sent two “letters of appointment” to YAN and PIAO, which were back-dated to the prior month, September 2013. In one letter, on UNGA President letterhead, ASHE informed each of YAN and PIAO that they had each been appointed “Adviser, Economic Matters” in ASHE’s office. In the other letter, on Antiguan government letterhead, ASHE informed YAN and PIAO that they had each been appointed as “Adviser to Office of the Prime Minister of Antigua and Barbuda on matters pertaining to investments in Antigua and Barbuda from the entire Asia region.” In the email enclosing the letters, ASHE stated, “I believe these complete the outstanding requests that were made to me.”

f.    On November 3, 2013, YAN emailed ASHE, with a copy to PIAO, telling ASHE that “Guangzhou has been wired 200k to PGA office today” and that “25k” had been wired to ASHE’s travel agent. YAN also asked for the name of UN security personnel who would be traveling with ASHE to the Guangzhou Conference. On November 4, 2013, ASHE’s PGA Account-2 received a $200,000 wire from China from one of CC-3’s companies. That morning ASHE emailed YAN: “[c]an confirm receipt of $200k to the PGA.”

g.    On November 17, 2013, ASHE attended the Guangzhou Conference. According to the agenda for the conference, ASHE gave a speech to the conference and then gave media interviews on global economic development.

(Footnote omitted.)

112    There are then allegations about how Mr Ashe spent the money, but we do not need to pause on those allegations.

113    The Media Release dated 6 October 2015 refers to the unsealing of the Complaint on that day. The Media Release summarises aspects of the Complaint.

114    The principal conclusions reached by the primary judge in relation to the Complaint are as follows.

115    First, the primary judge expressed a general conclusion that the Complaint provides “precious little support” for the imputations conveyed by the article and had the second appellant closely and carefully read and analysed the Complaint, as he suggested he did, that should have been apparent to him.

116    Second, the respondent is not a defendant to the Complaint and he is not named or explicitly referred to in it.

117    Third, the appellants’ reliance on references in the Complaint to persons “known and unknown” and “businessmen” was misplaced and largely tenuous.

118    Fourth, there is no direct allegation in the Complaint that the payment of US$200,000 came from, or was made on behalf of, or with the knowledge of, CC-3.

119    Fifth, it is not alleged in Count Two that any person other than the defendants to the Complaint was responsible for paying the illegal bribes.

120    Sixth, there is nothing in the factual allegations made by the deponent which amounts to a direct allegation that the person referred to as CC-3 did anything to instigate or effect, or knew anything about, the payment which was alleged to constitute the relevant bribe paid to Mr Ashe.

121    Seventh, and related to the previous point, there is no direct allegation that the payment of US$200,000 was made on behalf of, or, more importantly, with the knowledge of, or at the direction of, CC-3.

122    Eighth, the allegations concerning CC-3, and in particular those set out in [111] above, do not rise above hearsay assertions contained in a number of emails and other documents that were allegedly authored by Yan and Park.

123    Ninth, it is perhaps a fair and reasonable inference that the reference to the “Chinese real estate developer” identified as CC-3 was a reference to the respondent.

124    Tenth, the primary judge reiterates the hearsay nature of the emails as far as CC-3 is concerned and notes that the allegations is that the payment came from one of “CC-3’s companies”, not directly from CC-3.

125    Eleventh, returning to the particulars of Count One, the primary judge noted that even if CC-3 is the respondent, that person is not expressly identified as a co-conspirator, CC-3 had not been charged and there is no allegation CC-3 “did anything, said anything, or knew anything about the alleged $200,000 bribe paid to Mr Ashe”.

126    With respect to the Media Release, the primary judge noted the following:

(1)    there was nothing in the Media Release suggesting any present intention on the part of the Department of Justice to charge CC-3 or any other person;

(2)    although the Media Release contained a quote of the US Attorney General to the effect that the investigation was ongoing, it did not give any reason or explanation for the fact that CC-3 or, for that matter, CC-1 and CC-2, had not been identified in the Complaint or Media Release; and

(3)    the Media Release stated that the “charges contained in the Complaint are merely accusations, and [that] the defendants are presumed innocent unless and until proven guilty” and that “the entirety of the text of the Complaint and the description of the Complaint … constitute only allegations, and every fact described should be treated as an allegation”.

127    The primary judge then expressed two final conclusions with respect to the Complaint and Media Release. First, he said those documents did not provide a reasonable basis for the views held by the second appellant or supported the allegations in the article. A careful and considered reading of the documents would or should have revealed to the second appellant that, without more, there was no sound or reasonable basis to assert the respondent had been accused of bribery, or conspiracy to bribe Mr Ashe, let alone that he had in fact, bribed, or conspired to bribe, Mr Ashe. Nor did they provide a reasonable basis to assert that the respondent had acted in so seriously wrong a manner as to deserve extradition to the US on criminal charges, including charges of bribery. Secondly, his Honour said that the second appellant did not provide an adequate explanation why he made no effort whatsoever to contact the Department of Justice, or anyone else who may have been involved in the relevant investigation and prosecution, in an attempt to obtain further information, particularly as to the reasons why CC-3 had not been identified or charged.

128    Before leaving this summary of the primary judge’s reasons, it is important to note what his Honour considered significant about the Complaint when setting out his seven “critical considerations” as to reasonableness. It was the fact that CC-3 had not been charged and was not even identified in the Complaint and the fact that there was no direct allegation made in the Complaint of any act, omission or knowledge on the part of CC-3.

Analysis

129    The appellants made a number of submissions in their written outline of submissions. Those submissions were developed, and to an extent refined, in the course of the appellants’ oral submissions to this Court.

130    We start with the submissions made by the appellants in their written outline. First, it is submitted that the primary judge read the Complaint as a lawyer would, not (as he should have done) as an ordinary person would have read the document. This is an inference the Court is asked to draw and we will deal with it in dealing with the appellants’ oral submissions. Secondly, and crucially, the appellants submitted that the primary judge ought to have found that it was reasonable for the second appellant to draw from the Complaint and the Media Release as a whole that the respondent was alleged to be a co-conspirator. In support of this submission, the appellants relied on certain paragraphs in their closing submissions to the primary judge. There is a difficulty with this approach. The appellants can certainly invite this Court to reach its own conclusions about what may be drawn from the Complaint and Media Release, but at the same time, reliance on the submissions to the primary judge, without more, means that the appellants’ submissions to this Court do not engage with the primary judge’s findings. In any event, the submissions were refined in the appellants’ oral submissions and we will deal with them in due course. Thirdly, and said to be in any event, it was submitted that the primary judge failed to have regard to other pieces of information obtained by the second appellant which were said to have corroborated and supported his views about the Complaint. The outline of written submissions refers to the appellants’ attempts to obtain from the respondent a response to the allegations, but this is a different matter and, in any event, we do not see in the responses identified by the appellants anything that supports the second appellant’s views drawn from the Complaint. Furthermore, the relevant section of his Honour’s reasons addresses the issue having regard to the Complaint and Media Release “without more” to use his Honour’s words (at [178]).

131    We turn to the oral submissions made by the appellants. Other that some complaints related to specific findings made by his Honour, which we will address in due course, there were two major threads in the appellants’ submissions.

132    First, the appellants submitted that in dealing with the Complaint and Media Release, the primary judge asked himself the wrong question. His Honour approached the issue as if it was one of justification or truth, rather than a question of the honesty of the second appellant’s belief. One matter needs to be clarified at this point. There is clearly a difference between whether a belief was held and whether it was reasonable to hold a belief. At times, the appellants’ oral submissions suggested that the issue was simply whether the belief was held, although at other times they recognised that the issue being reasonableness related not only to honesty of belief but also to the basis on which the second appellant held the beliefs he identified. At all events, although he did not make an express finding, his Honour proceeds on the basis that the second appellant held the beliefs he claimed and addresses the issue as it was put to him, that is to say, whether the Complaint and the Media Release “by themselves provided a reasonable basis for the views held by Mr Garnaut, and supported the allegations made in the [a]rticle” (at [178]). That is a correct statement of the issue.

133    As to the other aspect of the submission, that is, his Honour approached the issue as if it was one of justification or truth, that must be rejected. Although at one point in his reasons the primary judge said there was “precious little support [in the Complaint] for any of the imputations conveyed by the article” (at [151]), it is clear from reading the relevant section of his reasons as a whole that he kept the correct question firmly in mind.

134    We reject the first submission.

135    Secondly, the appellants submitted that the primary judge erred in concluding that there was no sound and reasonable basis for the second appellant to conclude from the Complaint and Media Release that the respondent had, in fact, been accused of bribery, or conspiracy to bribe, Mr Ashe. The appellants submitted that the primary judge himself had, in fact, earlier in his reasons and when addressing the first imputation, accepted the position advanced by the appellants when he said (at [76]):

It would, of course, have been perfectly open to Fairfax and Mr Garnaut to report on the complaint that had been filed in the United States and, perhaps more pertinently, to postulate that it could readily be inferred that the person referred to as CC-3 was Dr Chau. That could have been done in such a way as to convey to the ordinary reasonable reader no more than that there was reason to suspect, perhaps even strongly suspect, that Dr Chau was somehow involved in the course of events that had given rise to the bribery charges against Ms Yan, even though he had not himself been charged. Had that been done, Dr Chau may not have commenced these proceedings or, if he had, Fairfax may have had available to it the defence of justification pursuant to s 25 of the Defamation Act. It is, however, not useful to speculate about such matters.

136    Two matters may be noted about this passage. First, it is expressed in tentative terms and ultimately, his Honour said that it was not useful to speculate about such matters. Secondly, “somehow involved” is not the same thing as a strong suspicion about the matters which are the subject of the imputations.

137    We have already summarised matters in the Complaint and Media Release. The appellants relied in particular, on the following matters.

138    First, the Complaint, under the heading “Overt Acts” in Count One, referred to “…. a $200,000 wire to a bank account belonging to the President of the UN General Assembly from another co-conspirator not named as a defendant herein …”.

139    Secondly, the Complaint, in summarising the effect of various emails states that “[o]n November 4, 2013, Ashe’s PGA Account-2 received a $200,000 wire from China from one of CC-3’s companies”.

140    Thirdly, the Media Release contains the following statement:

In addition, YAN and PIAO arranged for ASHE to be paid $200,000 (plus travel expenses) in exchange for attending and speaking in ASHE’s official capacity at a private conference in China hosted by a Chinese real estate developer identified as CC-3 in the Complaint. In addition to attendance at the conference, CC-3 also sought to “offer [ASHE] a permanent convention venue for the UN meetings on sustainability and climate changes … as well as for the 193 members of the UN to convene. …”.

141    The appellants contended that the significance of this statement is that it dispels any notion that the respondent did not have a motive for authorising and making the payment. It was said that the motive, or possible motive, was that the respondent was seeking future business at his convention centre. This was said to be relevant to the possibility of Yan and Park acting without reference to the respondent. The appellants submitted that the primary judge erred because he said in his reasons that it was difficult to see the relevance of the allegation that CC-3 offered to allow the convention centre to be used for future UN meetings (at [175]).

142    The primary judge was aware of the reference in the section entitled “Overt Acts” and of the reference to one of CC-3’s companies. He referred to both matters (at [156] and [157]). In our opinion, it is important to keep firmly in mind the matters the primary judge drew from the Complaint and Media Release in the context of the seven “critical considerations” with respect to reasonableness. They were that CC-3 had not been charged or even identified in the Complaint and there was no direct allegation made in the Complaint of an act, omission or knowledge on the part of CC-3. Both those matters are correct and are matters relevant to the issue of reasonableness. None of the matters raised by the appellants are a direct allegation of an act, omission or knowledge on the part of CC-3. That is as far as his Honour’s finding went and he went no further than that finding in his use of the Complaint and Media Release in his assessment of reasonableness. We see no error in that approach.

143    We reject Ground 3 in the Notice of appeal.

Ground 4

144    Ground 4 in the Notice of appeal is in the following terms:

The primary judge erred in finding at [132], [138], [145], [146] and [147] that the second respondent’s state of mind in relation to facts known to him about the applicant were matters that it was either relevant or necessary to put to the applicant in cross examination. His Honour should have held that any evidence by the applicant as to the second respondent’s state of mind in relation to such facts was not admissible in relation to any issue in the proceedings. In particular, such evidence was not relevant to the determination of whether the respondents had acted reasonably within the meaning of s 30 of the Defamation Act.

Paragraph 146 appears to have been included in this ground of appeal by mistake. It does not have the feature identified in this ground and may be put to one side.

145    The background to this ground is as follows.

146    The second appellant met the respondent some years before he wrote the article. He had contact with the respondent between 2009 and 2011. That contact consisted of the following:

(1)    the second appellant interviewed the respondent in Guangzhou Province in June 2009;

(2)    the second appellant and his wife had lunch with the respondent in Beijing;

(3)    the second appellant met with the respondent at the Peninsula Hotel in Beijing in or about July 2010; and

(4)    the second appellant and others attended the opening of a museum at the respondent’s resort in November 2011.

147    Certain events occurred at or around the time of these meetings which led the second appellant to form what were largely unfavourable opinions of the respondent and the way in which he did business. We do not need to go into the details of these events, other than to say that they included gifts by the respondent to the second appellant of expensive bottles of wine and the respondent’s apparently official arrival at the Peninsula Hotel in July 2010.

148    Those unfavourable opinions included that the respondent’s giving of expensive gifts was part of a system to “lower moral inhibitions to receive improper benefits by emphasising that he asked …. nothing in return, and by elevating the friendship to the level of a higher policy goal” and that he “sought to lower the fear of being caught accepting improper benefits by exercising his … discretion – super low profile”. The respondent’s apparently official arrival at the Peninsula Hotel led the second appellant to form what the primary judge described as “negative, if not rather sinister impressions of [the respondent] … including that [the respondent] may have been a functionary of the Chinese State or even the Chinese security or intelligence services” (at [137]). The second appellant later said that the respondent may have paid the alleged bribe to Mr Ashe as “an agent of … the Chinese State” or “as an actual asset of the Chinese intelligence system” (at [147]).

149    The second appellant gave evidence about these matters at the trial. The primary judge said that he did not propose to address the evidence in “any great detail” (at [125]). He described the relevance of the evidence as elusive and, importantly, he noted that very little was said about the evidence by the appellants in their closing submissions (at [125]).

150    Although, with respect, his Honour’s conclusions about the second appellant’s belief concerning the respondent’s practice of “cultivating” people were, at times, expressed somewhat tentatively, he does seem to have accepted that the second appellant held the belief he claimed. However, he considered that some of the second appellant’s conclusions were “highly speculative and exaggerated” (at [141]). It will be recalled that in describing the second appellant’s presentation as a witness, the primary judge said the second appellant was at times prone to exaggeration and hyperbole, particularly in relation to his evidence concerning his interactions and impressions of the respondent. As to the opinions that the respondent may have been acting as an agent of the Chinese State or as an actual asset of the Chinese intelligence system, the primary judge described these as “extraordinary, if not outlandish and paranoic, statements or theories about [the respondent]” (at [147]).

151    The thrust of the complaint raised by Ground 4 is that in reaching his views about whether there was a basis for the second appellant’s adverse opinions and in rejecting the suggestion that there was, the primary judge erroneously took into account the fact that the matters involved in those adverse opinions were not put to the respondent in cross-examination. That was said by the appellants to be an error because they were not seeking to prove the truth of the matters, but only that they were opinions held by the second appellant and that there was a basis for them.

152    The relevant paragraphs referred to in Ground 4 are as follows:

132    As for the gift of wine, Dr Chau had no particular recollection of that having occurred. He did not, however, deny that it did. Curiously, it was not suggested to Dr Chau that he had any improper or untoward motivation for making the gift, or even that Dr Chau was aware that there was anything inappropriate about giving a gift to a journalist. It was certainly not put to him that he was somehow intending to “cultivate” Mr Garnaut for some reason. While it is perhaps understandable that this particular incident stuck in Mr Garnaut’s mind, it is equally understandable that it may not have been of much, if any, particular significance to Dr Chau.

138    In cross-examination, however, Dr Chau gave a rather more benign description of his transport to the Peninsula Hotel on this occasion. He said that a friend of his who was his host at the Peninsula Hotel provided the car to pick him up. While that evidence was the subject of further questioning, it was not put to Dr Chau, in this context or any other, that he was in fact a functionary of the Chinese State, or that he was in any way involved with the Chinese security or intelligence services. It was and is difficult to understand what was intended to be made of this evidence. It was perhaps one of a number of instances where Fairfax and Mr Garnaut, through their counsel, were, to use the words of Alexander Pope, “willing to wound, and yet afraid to strike”.

145    First, for the reasons essentially already given, while it may perhaps be accepted that Mr Garnaut genuinely believed that Dr Chau had attempted to “cultivate” him, it is difficult to accept that that was in fact the case based on the relatively limited interactions between 2009 and 2011. It should also perhaps again be noted that it was never put directly to Dr Chau that he had attempted to “cultivate” Mr Garnaut in the way described by Mr Garnaut, or that the gifts of wine, or for that matter, the supposed job offer and offers of hospitality, were in any way improper or inappropriate.

147    Mr Garnaut’s evidence included some other rather extraordinary, if not outlandish and paranoic, statements or theories about Dr Chau. They included that Dr Chau may have paid the alleged bribe to Mr Ashe as “an agent of … the Chinese State” or “as an actual asset of the Chinese intelligence system”. Mr Garnaut did not explain in any detail, in his evidence, exactly how he arrived at those views or beliefs, or what objective information provided the basis for them. He did not shed any light on how and why Mr Ashe’s appearance at a conference organised by a group of non-government organisations somehow advanced the interests of the Chinese State or its intelligence services. And of course, none of these theories were ever put to Dr Chau in cross-examination; a recognition, perhaps, that they in fact had no rational or reasonable basis.

Analysis

153    It is unusual that at some point in the assertion of a basis for an opinion that a person had an improper motive for conduct, circumstances did not arise whereby a matter involved in the opinion did not need to be put to the person who was the subject of the unfavourable opinion. However, we accept that it was open to the appellants to conduct a case that the second appellant had a basis for unfavourable opinions about the respondent without necessarily putting the unfavourable aspects of those opinions to the respondent.

154    However, it seems to us that if the primary judge did put any weight on the fact that the appellants did not put matters to the respondent in cross-examination, it was inconsequential in circumstances in which: (1) the relevance of the whole of the second appellant’s evidence of his contact with the respondent between 2009 and 2011 was never made clear to the primary judge; (2) very little was said about the evidence by the appellants in their closing submissions; and (3) the interactions between the second appellant and the respondent were not part of the seven critical considerations relevant to reasonableness identified by the primary judge.

155    We say “if” because we are not convinced the primary judge placed any weight, or any substantial weight, on the “failure” to cross-examine the respondent, having regard to the way in which the primary judge expressed himself. For example, in paragraph 132 he said “curiously”; in paragraph 145 he said the matter “should again be noted”; and in paragraph 148 he said “a recognition, perhaps, that they in fact had no rational or reasonable basis”. This is not the language of substantial weight being accorded to the matter.

156    We reject Ground 4 in the Notice of appeal.

Ground 5

157    Ground 5 in the Notice of appeal is in the following terms:

The primary judge erred in failing to take into account that the second respondent took reasonable steps to obtain and report the applicant’s side of the story. In particular, given the findings at [253] and [254], his Honour should have held that the steps taken by the second respondent to obtain the applicant’s side of the story were reasonable and that they were relevant to determining whether or not the respondents had acted reasonably within the meaning of s 30 of the Defamation Act.

158    It is convenient at this point to repeat the terms of s 30(3)(h) of the Act:

In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

…

(h)    whether the matter published contained the substance of the person’s side of the story, and if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person,

159    Aspects of the respondent’s side of the story are included in the article. These include comments of the respondent or a description of what he is alleged to have said (see paragraphs 6, 8, 9, 16, 17, 48 and 49 of the article). The key points are that the respondent denied direct knowledge of anything, did not know the details, did not organise the event at the centre of the scandal, did not invite Mr Ashe or know him well or come in contact with him and that none of the events or circumstances would affect the respondent’s travel to Australia and that he would come and go as normal. A response from the respondent’s daughter is also set out in the article (see paragraph 14). Although not directly relevant, we note also the reference to the response of a close associate assisting Yan (see paragraphs 45 and 46).

160    The appellants did make efforts to obtain a response from the respondent to at least some of the matters in the article and those efforts may be summarised as follows:

(1)    the second appellant communicated with the respondent’s assistant, Mr Jim Zheng, both by telephone and by email on 15 and 16 October 2015. Mr Zheng did not provide a substantive response to these communications;

(2)    the second appellant contacted the respondent’s daughter by telephone. Both the second appellant and the respondent’s daughter gave evidence of the conversation which took place;

(3)    Mr Wen had a telephone conversation with the respondent during the morning of 16 October 2015. Mr Wen recorded the conversation and a transcript of the recording was tendered at the trial. Mr Wen’s evidence was that he had spoken to the respondent in a professional capacity on about six occasions before October 2015.

161    This ground of appeal relates to the first item of evidence, that is, the second appellant’s contact with Mr Zheng, although, for reasons which will become clear, it will also be necessary to consider the third item of evidence, that is, Mr Wen’s contact with the respondent.

162    Mr Zheng’s relationship with the respondent was the subject of evidence from both the respondent and the second appellant. Mr Zheng did not give evidence. The primary judge found that Mr Zheng was the respondent’s relatively long-standing assistant and a point of contact for people in Australia who dealt with the respondent. The primary judge found that the respondent’s evidence on the topic was not impressive. He said (at [252]):

… Dr Chau’s initial inability to comprehend who Mr Zheng was did not reflect well on him or the reliability of some parts of his evidence. It suggested that for some reason or other he wanted to distance himself from Mr Zheng and any communication that Mr Garnaut may have had with him.

163    At some time during the day on 15 October 2015, the second appellant contacted Mr Zheng by telephone and said: “Jim, there is a United Nations bribery investigation which appears to … identify Dr Chau as the source of [the] bribes” and that “The Department of Justice … says on the indictment that he was the source of a $200,000 bribe to the President of the General Assembly John Ashe for a summit held at his resort”. Mr Zheng asked the second appellant to put the information in an email.

164    At 6.40 pm on 15 October 2015 (New Delhi time; about 12.10 am on 16 October Sydney time), the second appellant sent an email to Mr Zheng. The primary judge described the email sufficiently for present purposes. He said (at [249]):

The email contained the subject heading “[h]ere is the link Jim” and included a web link to the Department of Justice media release concerning the charges against Mr Ashe, Ms Yan and others. It will be recalled that the media release in turn had a web link to the Complaint. In the body of the email, Mr Garnaut said:

I believe “CC-3” is Dr Chau. We all knew Sheri well. Does this make any sense to you?

165    Mr Zheng did not respond to this email. Approximately three hours after sending this email, the second appellant sent a second email to Mr Zheng which was in the following terms:

It looks like somebody has scrubbed all the websites that talk about Dr Chau hosting John Ashe at the Nov 13 UN summit, as described in the indictment.

Nevertheless, we will have to identify CC-3 as Dr Chau. This is serious, please consider your response as soon as possible. I don’t think there’s anyway of ducking the fact that Dr Chau is accused of bribing John Ashe via Sheri Yan. The best thing is to consider whether is [sic] accusation is wrong, whether he will dispute it, or whether he will make himself available to US investigators.

I know this isn’t easy for any of you, but I don’t think it can just go away.

166    The second appellant did not receive a response to this email before the online publication of the article at 1.47 pm Sydney time on 16 October 2015.

167    The respondent’s evidence was that he did not have any conversation with Mr Zheng on 15 October 2015. The primary judge said that he had difficulty accepting that Mr Zheng did not communicate, either directly or through an intermediary, the information about his contact with the second appellant, particularly in light of the fact that the respondent did not call Mr Zheng to give evidence. His Honour said the following (at [253]–[254]):

In any event, Dr Chau’s evidence was that the first he heard anything about the subject matter of the article was when his daughter contacted him after the article had been published. At first blush, it would appear to be surprising, if not implausible, that Mr Zheng would not have immediately brought his communications with Mr Garnaut to Dr Chau’s attention. It may be accepted that Dr Chau was a busy man and that not every contact made by a journalist would necessarily be immediately be brought to his attention. Nevertheless, the matters that Mr Garnaut raised with Mr Zheng were undoubtedly very serious and required urgent attention. It is difficult to imagine that Mr Zheng could or would have thought otherwise. It is, in all the circumstances, difficult to accept that either Mr Zheng, or somebody else in the Kingold organisation, would not have alerted Dr Chau to the contact from Mr Garnaut.

It should also perhaps be added that Dr Chau did not call Mr Zheng to give evidence in his case. There was evidence that Mr Zheng still worked for the Kingold group and had spoken with Dr Chau on the day before he gave evidence, though they did not discuss the case. If there was a legitimate explanation for why Mr Zheng could not, or did not, bring Mr Garnaut’s communications to Dr Chau’s attention on 15 or 16 October, it would have been open to Dr Chau to call Mr Zheng to give evidence of that explanation. In the circumstances, it might reasonably be inferred that any evidence that Mr Zheng may have been able to give on that subject would not have assisted Dr Chau: Jones v Dunkell [sic] (1959) 101 CLR 298.

168    What the primary judge then said is at the heart of this ground of appeal. His Honour considered the adequacy or reasonableness of the information the second appellant conveyed to Mr Zheng in terms of obtaining the respondent’s side of the story, “[p]utting this rather unsatisfactory aspect of Dr Chau’s evidence to one side, at least for the moment …” (at [255]). His Honour then identified four matters relevant to the second appellant’s contact with Mr Zheng on the assumption, as we would understand it, that the contact with Mr Zheng was properly seen as contact with the respondent.

169    The four matters are as follows:

(1)    It was reasonable, at least in the first instance, for the second appellant to contact Mr Zheng as a means of attempting to obtain the respondent’s side of the story;

(2)    Four of the matters the second appellant put to Mr Zheng were factually inaccurate or an exaggeration, namely, the following: (a) there was no UN bribery investigation, rather the investigation was conducted by the FBI; (b) it is “not entirely accurate” to say that the investigation identified, or appeared to identify, the respondent as the source of the bribe (at [257]), at best, it identified one of the respondent’s companies as the source; (c) the assertion in the second appellant’s email that someone had “scrubbed all the websites” was an exaggeration at best, and most likely a misrepresentation of the true state of affairs; and (d) the assertion that the respondent had been “accused of bribing John Ashe via Sheri Yan” was also incorrect as no such accusation had been made;

(3)    The second appellant did not advise Mr Zheng, either in his telephone conversation or his email of the following key elements of the story, namely: (a) that the respondent might remain in China for fear of extradition, which the primary judge described as a key theme of the story from the outset; and (b) the theory ultimately propounded by the story that the bribery allegations might reveal whether the “extraordinary Kingold kingdom of Australia and China relations was built upon illicit payments and hot air” (see paragraph 50 of the article);

(4)    There was a question as to whether to allow Mr Zheng a period of approximately 12 hours to contact the respondent and seek his response to what were plainly very serious allegations was a reasonable or adequate time.

170    The key point made by the appellants is that the primary judge failed to take into account “the significance” of the fact that the second appellant had contacted Mr Zheng and that the primary judge’s failure to address the issue of the second appellant’s contact with Mr Zheng “sufficiently” had led the primary judge into error in finding that the article did not clearly or coherently reveal the respondent’s side of the story. As we understood the submission, it is that that finding overlooked what was in the article in terms of the respondent’s side of the story, the opportunity the respondent had to put forward his side of the story by reason of the second appellant’s contact with Mr Zheng and the fact that at no time, including at the trial, has it been suggested by the respondent that there is something more of a substantial nature than what is in the article. The appellants gave as examples in their oral submissions an alibi or an assertion that the conference was at another place or that the payment did not come from one of the respondent’s companies. The appellants’ submission seems to us to involve the proposition that in terms of s 30(3)(h), the primary judge should have found that the substance of the respondent’s side of the story was published having regard to all the circumstances, including the reasonable attempts to obtain and publish a response as evidenced by the second appellant’s contact with Mr Zheng, or simply that in all the circumstances, including the second appellant’s contact with Mr Zheng, a reasonable attempt was made by the second appellant to obtain and publish a response from the respondent.

171    On the appellants’ argument, the origin of the error was in putting aside the unsatisfactory aspect of the respondent’s evidence. It was submitted that his Honour should have found that the respondent was aware of the communications, or the substance of the communications, between the second appellant and Mr Zheng and proceeded from that point and, in that respect, and, subject to one matter acknowledged by the appellants, found that the substance of the allegations were put to the respondent through Mr Zheng.

172    The one matter acknowledged by the appellants is that the fear of extradition aspect of the story was not put to Mr Zheng by the second appellant. However the appellants submitted that that aspect of the story was put to the respondent by Mr Wen.

173    The transcript of the recording of the telephone conversation between the respondent and Mr Wen is as follows:

PW: Are you in Guangzhou?

CCW: Yes in Guangzhou, why’s that?

PW: How’ve you been lately?

CCW: Good.

PW: This UN thing, is the information accurate?

CCW: When the time comes, we will have someone get in touch with you, okay?

PW: Someone will get in touch with us?

CCW: Yes, get in touch.

PW: Well we’ve got a pretty reasonable relationship so I thought I’d personally give you a call. I know others have made contact with your company but I wanted to understand the situation from you directly.

CCW: When the times comes I’ll get the concerned party who arranged this activity to explain the situation to you, then you’ll be clear, okay? Don’t pass the rumours, okay?

PW: Get the Concerned party?

CCW: The concerned party because they know the details. I don’t know the details, you understand? This event wasn’t organised by me, so I’m not clear. In terms of being in contact with other people, I didn’t do so, I’m also not clear.

PW: But didn’t you personally invite, for example, UN’s John Ashe?

CCW: No, no I had made no contact from the beginning, you know I had made no contact and I don’t know the situation. As to the details, you already said, we know each other well; with regard to this matter, I will let the person who organised the event and meeting, get in touch with you in due course and let you know the situation at that time.

PW: But you were together during the activities, you had photos together.

CCW: I’m not familiar with him, we didn’t have contact. And it wasn’t me who made the invitation.

PW: So can I ask who made the invitation then?

CCW: Who made the invitation? Well when the time comes we’ll organise the person from the summit who was responsible to this matter to get in touch with you because I don’t know the details so I can’t outline for you the process. Someone will get in touch with you soon.

PW: But isn’t New York directly looking for you …

CCW: No.

PW: No? No contact with you asking you to provide evidence?

CCW: No. No.

PW: Will you be in Australia soon?

CCW: I’ll come and go as normal.

PW: It won’t directly implicate you? No worries …

CCW: No. I have no contact with him and not familiar with him. This summit wasn’t organised by me either it was a few groups of people doing it. I had no involvement in these matters.

PW: But you’re the boss, right?

CCW: I’m the boss so you know I can’t care about that much. As you know, there were all different groups participating in that summit. It was Qian Qiu, Zhang Xiaoqi those people who led this matter. It was mainly led by them, and the Friendship Association, the State Friendship Association also participated in this matter, there were a few groups involved in this matter and I didn’t have involvement in the direct works.

PW: But, would you know about payment of fees?

CCW: I don’t know.

PW: But paying fees is alright, isn’t it? If you wanted to invite people to come over paying participation fees would be natural.

CCW: How about this, I’ll get the concerned party who organized this activity and knew this matter to contact you direct and at that time he/she will tell you all about this matter and you will be clear.

PW: Is the person a non-Chinese?

CCW: Will let you know when the time comes. He/she has your number. You’ll hear the details and go, ‘oh, so that’s what happened’.

PW: Well they’d have to hurry because this matter had been reported by the international media, as you know.

CCW: Well you need to seek truth from the facts. At the end it will all be clear.

PW: When were you last in Australia?

CCW: I don’t remember. Ok let’s talk next time …over this short period of time before we make contact with you, you should ask them not to make any report, it will be no good if an unreal report is made.

PW: Ok, thanks Mr Chau.

174    There is nothing in this conversation which raises the fear of extradition assertion. Mr Wen asking the respondent whether he will be in Australia soon does not come anywhere near doing so.

175    In our opinion, if his Honour was correct in his findings about the features of the communications between the second appellant and Mr Zheng which his Honour identified on the assumption that Mr Zheng or an intermediary advised the respondent of the communications, then the fact that his Honour did not make a finding of fact about the correctness of that assumption is of no consequence.

176    Of the four matters his Honour identified, the first is not adverse to the appellants and, as to the fourth matter, his Honour went no further than saying that it was open to question whether a reasonable or adequate time was allowed for a response, which fell well short of a finding adverse to the appellants. The third matter is correct. As to the second matter, there is force in the submission that the truth of the various matters was not to the point. Take the most serious of the matters identified by his Honour, that is, that somebody had “scrubbed all the websites” which his Honour described as most likely a misrepresentation of the true state of affairs. That might be so, but it was part of the story and it is difficult to see how the factual correctness of the allegation was relevant to whether the story was put to the respondent and he was asked for his response.

177    However, even if this was an error, it had no material bearing on his Honour’s final conclusions. That is because it played no part in those conclusions. His Honour expressed his conclusions as follows (at [296]–[297]):

It may readily be accepted that Fairfax and Mr Garnaut made some attempts to obtain Dr Chau’s response to at least some of the allegations that found their way into the article. For all the reasons just given, however, I am not persuaded that those attempts were entirely satisfactory. In summary, not all of the assertions and allegations that found their way into the article were fairly or squarely put to Dr Chau.

Perhaps more significantly, for the reasons just given I am also not persuaded that the responses that Dr Chau did provide to what was put to him were fairly or reasonably portrayed in the article. Nor was his “side of the story” clearly or coherently revealed in the article.

178    As the last sentence in [296] indicates, the critical matter was the fact that not all of the assertions and allegations that found their way into the article were fairly or squarely put to the respondent. That is the third matter identified by his Honour and a matter with respect to which no error has been identified.

179    A little later in his reasons when linking his findings to the particular paragraphs in s 30(3), his Honour said, with respect to paragraph (h), (at [322]):

For the reasons given in detail earlier, Fairfax and Mr Garnaut’s attempts to obtain Dr Chau’s responses to the article were wanting. In particular, not all of the key allegations that ultimately found their way into the article were put to Dr Chau or Ms Chow in clear and unambiguous terms. Perhaps more significantly, those responses that Dr Chau and Ms Chow did give were not fairly or reasonably presented or portrayed in the article. Rather, they were undermined and deprecated.

180    Finally, the seven matters his Honour identified as critical considerations to the assessment of reasonableness included the inadequate and unfair presentation of the respondent’s side of the story.

181    We summarise our conclusions with respect to this ground of appeal as follows.

182    First, his Honour did not make an express finding about whether the second appellant’s communications with Mr Zheng were communicated to the respondent. There is reason to think that had he gone on to do so, he would have concluded that those communications were conveyed to the respondent.

183    Second, his Honour did consider the conclusions which should be drawn on the assumption that the communications between the second appellant and Mr Zheng were conveyed to the respondent. His Honour made two findings adverse to the appellants on this assumption.

184    Third, the second of the four matters identified by his Honour appears to be irrelevant, but it played no material part in his Honour’s conclusions.

185    Fourth, there was no error in relation to the third of the four matters identified by his Honour, namely, that the second appellant did not put Mr Zheng on notice of some of the key elements of his proposed story. That failure was not remedied by anything Mr Wen put to the respondent.

186    Fifth, there were two key matters in his Honour’s conclusions with respect to the matter in s 30(3)(h). First, not all of the assertions and allegations that found their way into the article were fairly and squarely put to the respondent. That conclusion has not been shown to involve error. Secondly, to the extent the respondent provided a response, that response was not fairly or adequately presented in the article. His Honour dealt with this issue in two different parts of his reasons (at [52]–[60] and [288]–[295]) and the appellants did not identify in either of those parts an error in his Honour’s analysis.

187    We reject Ground 5 in the Notice of appeal.

Ground 1

188    We return to Ground 1. Ground 1 in the Notice of appeal is in the following terms:

The primary judge erred in holding that the respondents had failed to establish that their conduct in publishing the article was reasonable in the circumstances (Judgment at [325]).

189    None of the specific errors asserted in Grounds 2 to 5 inclusive of the Notice of appeal have been made out.

190    The appellants assert that nevertheless, the primary judge erred in finding that the appellants’ conduct in publishing the matter complained of was not shown to be reasonable and, in fact, was unreasonable in many respects.

191    The appellants submitted that the primary judge erred in that he considered each inquiry and each item of information individually without considering how they fit together as a whole and how one item might inform another, leading to a conclusion of reasonableness. The appellants further submitted that their conduct was reasonable, having regard to the following matters: the story was of high public interest; the second appellant conducted reasonable inquiries; the respondent was provided with a reasonable opportunity to provide a response; the response was fairly reported; and the article was reasonable based upon the information that was available.

192    These submissions must be rejected. The primary judge analysed the evidence and made findings relevant to the matters in s 30(3) of the Act. His Honour then summarised his findings with respect to each paragraph in s 30(3). Finally, his Honour identified seven “critical considerations” for the purposes of his conclusions. He did consider matters as a whole or “in the round” and there was no error in his approach. As to the second submission, that must fail because not only does it not identify all relevant matters, but more importantly, it asserts matters contrary to the findings of the primary judge which have not been shown to involve error.

193    Ground 1 in the Notice of appeal is rejected.

Conclusions

194    The appeal must be allowed, but only for the purpose of adjusting the amount allowed for interest. The appeal must be otherwise dismissed. The respondent did not contest the error with respect to interest and, in fact, submitted that he advanced the correct position before the primary judge. In the circumstances, costs should follow the outcome of the substance of the appeal and the appellants should pay the respondent’s costs of the appeal.

Associate:    

Dated:    19 March 2020