Federal Court of Australia

Hanson v Burston [2023] FCAFC 124

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Orders 1 and 2 made by the primary judge in NSD 652 of 2020 on 19 October 2022 are set aside and in place thereof it be ordered that judgment be entered for the respondent (Pauline Lee Hanson).

3.    Orders 1 and 2 made by the primary judge in NSD 652 of 2020 on 22 February 2023 are set aside and in place thereof it be ordered that the applicant (Brian Burston) pay the respondent’s (Pauline Lee Hanson) costs of the proceedings.

4.    The respondent (Brian Burston) is to pay the appellant’s (Pauline Lee Hanson) costs of this appeal to be agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT

1    Ms Pauline Hanson appeals from a judgment in which she was found to have defamed Mr Brian Burston and ordered to pay substantial damages.

2    The defamation proceedings relied on three publications, from which Mr Burston pleaded eight imputations. The primary judge concluded that only the fourth and sixth imputations had been established. The fourth imputation is that Mr Burston sexually abused a female staffer in his parliamentary office. The sixth imputation is that Mr Burston, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation. The fourth and sixth imputations stem from an oral interview of Ms Hanson by a journalist, Ms Deborah Knight, which was televised as part of an episode of the Today Show program broadcast on 29 March 2019. At first instance, Ms Hanson was successful in respect of the other claims of defamation either on the basis that the imputation alleged was not carried, or that it was carried but that Ms Hanson established one of the pleaded defences.

3    On appeal, Ms Hanson contends that: the fourth and sixth imputations were not carried (ground 1); but if carried, one of the pleaded defences (being the defence of substantial truth to the imputations carried, and the defences of statutory and common law privilege to the publication of the Today Show interview) has been established (grounds 2 to 6). Ms Hanson also appeals against the award of damages (ground 7) and costs orders made (costs grounds 1 and 2).

4    For the reasons below, the appellant has established that although the fourth imputation was carried, the defence of substantial truth was established, and that the sixth imputation was not carried. Accordingly, the appeal in relation to Burston v Hanson [2022] FCA 1235 (Liability Judgment or LJ) is allowed. It follows that it is unnecessary to consider the remaining grounds of appeal.

The primary judgment

5    The primary judge sets out the imputations at LJ [3]-[12] with the second matter complained of (2MCO), the Today Show interview, being detailed at LJ [6]-[8]. It is convenient to first briefly summarise the first and third matters complained of, which are not the subject of the liability appeal.

6    The first matter complained of was a Facebook post, dated 12 February 2019, from which three imputations were pleaded.

7    The first imputation, that Brian Burston sexually harassed staff in his office, was carried: LJ [133]; it was established that it was substantially true: LJ [171], and see LJ [237]; statutory qualified privilege was established: LJ [237]; and malice was not established: LJ [250].

8    The second imputation, that Brian Burston, an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment, was carried: LJ [136]; the primary judge tended to the view that substantial truth was not established: LJ [196]; statutory qualified privilege was established: LJ [239]; and malice was not established: LJ [250].

9    The third imputation, that Brian Burston, an Australian Senator, brought the Senate into disrepute by his shocking behaviour towards his staff, was not carried: LJ [137]; the primary judge was of the view that it would be difficult to prove it was substantially true: LJ [199]; statutory qualified privilege would likely be established: LJ [240]; and malice was not established: LJ [250].

10    The third matter complained of was a text message sent by Ms Hanson to Mrs Burston, from which two imputations were pleaded.

11    The seventh imputation, that Brian Burston sexually harassed numerous female staff, was carried: LJ [159]; it was substantially true: LJ [171]; common law privilege was not established: LJ [223]; statutory qualified privilege was established: LJ [238]; and malice was not established: LJ [254].

12    The eighth imputation, that Brian Burston behaved disgracefully by cheating on his wife with one of his female staffers, was not carried: LJ [162]; it was likely substantially true: LJ [200]; common law privilege was not established: LJ [223]; and malice was likely established: LJ [254].

13    Returning to the 2MCO, an interview on the Today Show. The relevant aspect of the interview was succinctly described by the primary judge at LJ [54]-[58] as follows:

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

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

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

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

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

14    The primary judge summarised the relevant legal principles applicable to the determination of the defamation claims pleaded: LJ [120]-[130], [164]-[166], to which no issue is taken.

15    The primary judge addressed the background to the application, and explained the evidence and findings in respect of the factual disputes at LJ [13]-[200].

16    For present purposes, Mr Burston’s Senate staff are explained at LJ [18]-[22]. Relevantly, the two most central to this appeal are Ms Wendy Leach and Ms Terrie-lea Vairy.

17    On 1 September 2016, Ms Leach commenced working for Mr Burston as office manager in the electoral office at Belmont, a suburb of Newcastle in New South Wales, and later from July 2017, at his new electoral office in Toronto, a lakeside suburb in the city of Lake Macquarie in the Greater Newcastle region: LJ [19]. Mr Burston and Ms Leach had previously shared a working relationship built during Ms Leach’s time as an architectural sales consultant at a Gold Coast-based architectural firm: LJ [20]. Mr Burston spoke highly of Ms Leach’s work at the time: LJ [20]. He offered her the Office Manager position without ever having met her face to face, as the two had built up a rapport over telephone conversations in the past: LJ [20]. Ms Leach relocated from the Gold Coast to Belmont to take up this position: LJ [20]. She was dismissed by Mr Burston on 29 October 2018: LJ [20]. The primary judge detailed the circumstances of Ms Leach’s dismissal at LJ [26]-[34].

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

19    The primary judge detailed the evidence of the witnesses called, and made findings as to their credibility and reliability: LJ [62]-[77].

20    Relevantly, the primary judge found that in many respects Mr Burston was an unsatisfactory witness whose testimony on the topic of the allegations of sexual harassment made against him was not accepted: LJ [67]. The primary judge explained that this was “largely because the objective material such as text messages, coupled with the compelling and credible evidence of Ms Vairy and of Ms Leach, left no serious room to accept the benign interpretation and account that he advanced in relation to his conduct”: LJ [67]. The primary judge observed that his evidence on other topics was at its best when it aligned with objective contemporaneous non-witness testimony, such as photographs or recordings: LJ [67]. His account of the altercation with Mr Ashby, although not flawless, was generally more credible and more consistent with both the objective evidence and the logic and sequence of events, than the evidence of Mr Ashby on that topic: LJ [67].

21    The primary judge found that Ms Vairy “was an impressive witness”: LJ [69]. She listened to the questions and did her best to answer them; she was a calm and careful witness, with an understated manner: LJ [69]. She made concessions at appropriate points: LJ [70]. The primary judge said it was important that “her evidence at key points was consistent with, and corroborated by, contemporaneous records, such as texts sent to her by Mr Burston which on their face plainly supported her understanding of them”: LJ [70]. His Honour concluded that his assessment of “her as a reliable and truthful witness readily carried over to most aspects of evidence that were not able to be corroborated, such as the behaviour, both physical and verbal, of Mr Burston that she deposed to”: LJ [71].

22    The primary judge found Ms Leach to be a credible witness, and although not as compelling a witness as Ms Vairy, his Honour found “her account of events believable, and generally accept[ed] her account of events, mostly preferring her version when it conflicted with that of Mr Burston”: LJ [72]. His Honour accepted “all the key aspects of her evidence, especially as to her observations about Mr Burston’s conduct towards Ms Vairy”: LJ [72].

23    On the topic of the sexual harassment allegations, the primary judge accepted the evidence of Ms Vairy and Ms Leach and preferred it to the evidence of Mr Burston: LJ [78]. His Honour found their “evidence was coherent and consistent and aligned better with the objective material such as the content of key texts and was also supported by other contemporaneous records”: LJ [78].

24    The primary judge detailed that evidence in respect of Ms Vairy at LJ [89]-[101], and Ms Leach at LJ [102]-[104].

25    For present purposes it is only necessary to address the primary judge’s conclusions in relation to the imputations arising from the Today Show interview.

26    The primary judge addressed the fourth and fifth imputations together at LJ [138]-[151].

27    The primary judge was satisfied that the ordinary reasonable reader would readily understand that Ms Hanson was describing adversely conduct by Mr Burston, and “sexual abuse and harassment” by him of a member of his staff: LJ [146]. His Honour accepted that an ordinary reasonable person would consider “office” as referring to a parliamentary office and not to the much lesser known concept of an electoral office: LJ [146].

28    The primary judge rejected Ms Hanson’s submission that the phrase “sexual abuse and harassment” was an expression of a single idea by two connected words that Mr Ashby was trying to raise with the President of the Senate rather than the police, and that Mr Burston took the words “sexual abuse” out of context: LJ [147]. As this is central to the appeal in relation to the fourth imputation, it is appropriate to recite his Honour’s conclusion at LJ [147]-[151] in full:

[147]    This is another example of Ms Hanson relying upon lawyer-like parsing and dissecting, attempting to find a meaning that goes no further than is necessary when that is not a restrictive approach that a lay ordinary reasonable person would take. It is also an exercise in robbing words both of their ordinary meaning and of their separate and distinct, as well as common, meaning. Reference is being made separately both to “sexual abuse” and to “harassment”, and thus both to conduct that is more serious than sexual harassment and to conduct that is either less serious than sexual harassment, or at most at the lower end of sexual harassment. An ordinary reasonable person is more likely to latch onto the much more serious allegation being made against a Senator, because that is more concerning. That is not an exercise in “a contextual fastening”, but rather simple plain reading and giving weight and meaning to the words that were actually used.

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

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

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

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

29    The primary judge addressed the issue of whether the fourth, fifth or seventh imputations were substantially true at LJ [167]-[184].

30    In relation to the fifth and seventh imputations, that Mr Burston harassed, and sexually harassed, a female staffer in his parliamentary office, the primary judge concluded that Ms Hanson had established that the imputations were substantially true: LJ [171].

31    In relation to Ms Leach, the primary judge found that the evidence clearly established that “Mr Burston sexually harassed her on 1 May 2018 by sexually propositioning her in the coarse and blunt terms that she deposed to, and reject[ed] his evidence that it was she who propositioned him”: LJ [169]. The sexual proposition was made by Mr Burston, took place in his electoral office, and was wholly unexpected and unwelcome: LJ [169]. His Honour said that “[d]espite grabbing Ms Leach’s face as he sexually propositioned her, Mr Burston’s conduct was at the higher end of verbal sexual harassment”: LJ [169]. The primary judge said “such sexual harassment is a form of harassment more generally, such that this finding encompasses both”: LJ [169].

32    The primary judge also found at LJ [170] that Mr Burston sexually harassed Ms Vairy over a prolonged period from about mid-2018 until December 2019:

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

His Honour said the conduct took place at work-related events and locations including Mr Burston’s parliamentary office: LJ [170].

33    As to whether sexual abuse had been established, the primary judge said at LJ [172]:

I turn now to the question of whether Ms Hanson has proved with evidence of sufficient cogency that Mr Burston’s conduct towards Ms Leach, or towards Ms Vairy, or towards anyone else for that matter, extended to the considerably more serious conduct of sexual abuse. While there is some scope for higher end sexual harassment to crossover into sexual abuse, for the reasons given above in assessing the 4th imputation, what was conveyed was not just sexual harassment at a level crossing over and also constituting sexual abuse, but sexual abuse beyond anything that would also constitute sexual harassment. The key and clearest area where that might have occurred on the evidence was the incident when, upon Ms Vairy refusing to accept the $100 accompanying the birthday card given to her by Mr Burston, he tried to return that money to her. The evidence about unwanted kissing, repeated several times, was deposed to in a way that indicated that was in the intermediate category of perhaps meeting both descriptions, being sexual harassment that might in some circumstances also constitute sexual abuse, but not in the category implied of conduct that could not be considered to constitute sexual harassment. So as not to downplay the seriousness of this conduct, it was certainly egregious due to its repetitive nature and the power imbalance that existed between Ms Vairy and Mr Burston.

34    The primary judge considered the evidence in relation to the incident with the $100 at LJ [173]-[177]. Again, given the importance of this to the appeal, it is appropriate to recite the passage in full:

[173]    In relation to the incident involving the birthday card and the $100, Ms Vairy provided to Comcare information about her claim of sexual harassment (not referring in terms to sexual abuse) by Mr Burston in the form of a list of events or conduct dated 24 January 2019. She stated on this topic that Mr Burston had given her “A birthday card with money in it, and when I tried to hand it back he tried to shove it down my top”. In her evidence in chief on 9 June 2022, she said “Brian called me into his office, handed me a card. When I opened it $100 fell out. I tried to give that back to Brian. He then forcefully shoved it between my breasts.” She also said that she was in shock at the way in which Mr Burston had returned the money. It was not overtly submitted by Ms Hanson that this conduct constituted sexual abuse, but it is necessary to address it all the same. Her argument was more directed to the imputation not being conveyed.

[174]    In cross-examination, Ms Vairy did not accept that there was any difference between the two accounts she gave. It is no criticism of her to say that, objectively, there is a degree of difference, both as to whether the money was actually returned, and as to how far Mr Burston had gone and precisely what he had done. She rejected the suggestion that the event did not take place, and I accept that evidence. There was no re-examination on this topic.

[175]    Ms Leach was not present when this incident occurred, but said in her evidence in chief that Ms Vairy had told her about it and in relation to the $100 said Ms Vairy “was really upset by it and tried to give it back and then apparently he put it between her cleavage”, which falls somewhat short of the description that Ms Vairy gave about the use of force. Mr Ashby said that Ms Vairy “said to me that she received a card with some money in it, and when she attempted to hand that money back, he – he put that money down her – her blouse or top”. Again, this falls short of a reference to the use of force. It follows that none of these witnesses describe Ms Vairy telling them about the use of force of the kind that she deposed to.

[176]    Thus, three accounts, being from Ms Vairy in 2019, and from what she told Ms Leach and Mr Ashby in 2018 or 2019, refer to Mr Burston trying to or succeeding in putting the $100 down Ms Vairy’s top or between her cleavage, while Ms Vairy’s evidence in chief refers to the money being shoved forcefully between her breasts. There was no greater clarity sought about what took place than that, perhaps because that evidence was ample to prove sexual harassment. But such inconsistency as to the detail that was deposed to and the lack of additional detail must be taken into account when regard is had to the quality of evidence required for such a serious finding as “sexual abuse”, especially as that is not a characterisation that Ms Vairy ever gave to what took place, despite her reference to being shocked at the way in which Mr Burston tried to return the money.

[177]    The evidence referred to above clearly proves sexual harassment. However, an allegation of sexual abuse is considerably more serious. I am unable to be satisfied that what took place in relation to Mr Burston pressing Ms Vairy to keep the $100 goes so far as to constitute sexual abuse, having regard to the quality of evidence required to make such a serious finding. That is especially so as the words that Ms Hanson deliberately used connoted something going beyond sexual harassment. I am therefore unable to be satisfied upon the basis of sufficiently cogent evidence that what took place did constitute, or was capable of constituting, sexual abuse, although it was clear that this was part of a serious episode of sexual harassment.

35    Accordingly, the defence of substantial truth was not established in respect of the fourth imputation: LJ [178].

36    The primary judge addressed the sixth imputation at LJ [152]-[156]. His Honour found that the sixth imputation, that Mr Burston, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation, was conveyed: LJ [156].

37    The key passage from the Today Show interview is detailed at LJ [152]:

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

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

38    His Honour concluded at LJ [155] that in

…ordinary parlance the phrase “never laid a hand” is used in the sense of not having done anything at all. That is, in the sense of not so much as having touched someone. That is how an ordinary reasonable person would understand what was being said. That phrase, in the context in which it was used by Ms Hanson, strongly implies that Mr Ashby had no responsibility at all for what took place between him and Mr Burston.

His Honour also concluded that an ordinary reasonable person would understand the phrase “never laid a hand” to mean that Mr Ashby had done nothing to provoke the physical aggression from Senator Burston: LJ [156].

39    The primary judge addressed the substantial truth of the sixth imputation at LJ [185]-[195], concluding at LJ [194] that it had not been established. The primary judge also concluded that common law privilege, statutory qualified privilege, malice, and unlikelihood of harm were not established: LJ [218], [234], [253] and [244].

40    The primary judge found that the fourth and sixth imputations “were seriously damaging to Mr Burston’s reputation, being broadcast on a nationally broadcast television program watched by over 290,000 people at that time”: LJ [263]. His Honour concluded at LJ [163] “that a substantial award of damages is necessary to telegraph to the public that both of those imputations were false and without justification”, awarding Mr Burston damages in the sum of $250,000.

41    Ms Hanson was ordered to pay the costs of the proceedings: Burston v Hanson (No 2) [2023] FCA 113 at [16]-[17].

Grounds of appeal

42    As noted above, the correctness of the legal principles recited by the primary judge is not in issue. Accordingly, it is only necessary to make brief reference to them, and only on the topics in relation to the grounds we have considered, to give meaning to the later consideration.

43    An applicant must satisfy the Court on the balance of probabilities that an ordinary reasonable reader or viewer or listener would understand that the publication sued upon bears the meaning as pleaded and particularised.

44    The relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. The hypothetical individual is a person with various characteristics, including that they are of fair to average intelligence, experience and education; taken to be fair-minded; and neither perverse, morbid, suspicious of mind, nor “avid for scandal”: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (Rush) at [75]. As explained in Rush at [77], the individual:

…is said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does “read between the lines” in light of their general knowledge and experience of worldly affairs…While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would: Rush at [77].

The ordinary reasonable person is taken to have read the entire publication, considered the context as a whole, and taken into account emphasis that may be given by conspicuous headlines or captions: see Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 at [32], and the summary in V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 (V’landys) at [41]-[55].

45    At first instance, both parties accepted that a hypothetical person is taken: to be of fair average intelligence; to be a fair-minded person; not to be overly suspicious; not to be avid for scandal; not to be naïve; not to search for strained or forced meanings; to view the entire matter complained of; and to consider the context as well as the words alleged to have been defamatory: LJ [121].

46    Given that the meaning is to be determined objectively, the audience is taken to have a uniform view of the meaning. The publisher’s intended meaning, and the meaning actually understood by individual readers of the matter complained of, are irrelevant: Rush at [84]-[85]. The determination of the natural and ordinary meaning of words involves the application of the “single meaning” rule. Although different people might in fact have understood the meanings conveyed by a matter in different ways, the Court must arrive at a single objective meaning: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171-175; Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652; (2015) 237 FCR 33 at [73]; Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 (Wing) at [32]. The issue is the single meaning that an objective audience composed of ordinary reasonable persons should have collectively understood the matter to bear: Wing at [32].

47    Each alleged defamatory imputation has to be considered and construed in context: Rush at [79]; Wing at [169]-[171]; Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 (Nikolopoulos) at [21]-[26]. The construction of the imputation in context must in turn inform what is required to prove that the imputation is substantially true.

48    However, it does not follow that each part of the publication must be given equal significance, as striking words or images may stay with the viewer or reader and give them a predisposition or impression that influences all that follows: V’landys at [51]. A pleaded imputation, and whether it has been proven to be substantially true, requires attention to context, as provided by the balance of the publication and any wider context within which it is to be understood. The natural and ordinary meaning of words is not limited to their literal meaning. Words do not necessarily have a fixed meaning that applies in all circumstances; even benign words may convey a worse, or better, impression when regard is had to how and when they are deployed: see, for example, Nikolopoulos at [21]-[27]; and see Lewis v Daily Telegraph Ltd [1964] AC 234 at 258.

49    The respondent to a claim (the appellant in this appeal), carries the onus of proof with respect to their defences. Relevantly, a defence of justification or substantial truth under s 25 of the Defamation Act 2005 (NSW) (Defamation Act) was pleaded. Section 4 of the Defamation Act defines “substantially true” as “true in substance or not materially different from the truth”. The respondent below (the appellant in this appeal) must establish that every material part of an imputation is true and the defence of substantial truth is concerned with meeting the sting of the defamation: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [138].

50    It was accepted by the parties that this Court is in as good a position as the primary judge to assess whether the imputations were carried: see Bazzi v Dutton [2022] FCAFC 84; (2022) 289 FCR 1 at [22], [28]. So too, the question of whether a pleaded defence has been established.

51    There is no challenge to the findings as to the factual disputes below. Rather, the issue is with the characterisation of those facts as found. This Court is in as good a position as the primary judge to decide that issue, and what proper inferences are to be drawn from the now undisputed facts: Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]-[56].

Fourth imputation

52    The appellant submitted that the primary judge erred in finding that the fourth imputation was carried for two reasons. First, Ms Hanson was not making an accusation of sexual abuse in its criminal sense. The ordinary reasonable reader would have understood from the tone of the conversation; the subject matter; the absence of reaction from the interviewer and the identity of the person with whom Ms Hanson said the allegation was raised (the President of the Senate, not the police) that she was referring to an abuse of power in the workplace of a sexual kind (that is, sexual harassment), not something of the magnitude of criminal sexual abuse. Second, Ms Hanson never said it was the respondent who perpetrated the sexual abuse – just that the abuse was going on in “his office”, which the ordinary reasonable reader would take to be either the President’s office or the respondent’s office. At best, the 2MCO carried the imputation that the respondent ignored sexual abuse going on in his office, which is far less serious than, and fundamentally different to, the fourth imputation.

53    The appellant submitted that even if the fourth imputation was conveyed, the primary judge erred in concluding that Ms Hanson had not established that it was substantially true. In particular, the appellant contended that the primary judge erred in finding that multiple instances of unwanted physical touching of Ms Vairy (including kissing her on the cheeks and lips, putting or attempting to put money down her top, and kissing her forcibly) did not amount to proof of substantial truth of the allegation of sexual abuse. The appellant also submitted that the primary judge erred in failing to consider whether Mr Burston’s act of leaking details of Ms Vairy’s consensual sexual relationship to the press and placing the consequent media article on the window of his Senate office, amounted to proof that the allegation of sexual abuse was substantially true. It was further submitted that the primary judge erred in failing to consider whether abuse occurred where there was conduct of a sexual nature by an employer in a position of power over two victims for a significant period of time. The appellant took issue with the primary judge’s definition of sexual abuse at LJ [148] because, for example, one act can amount to abuse. It was submitted that the primary judge pitched the threshold too high. The appellant submitted that nonetheless, this threshold was met. The appellant submitted that the context of the 2MCO, which is relevant to determining substantial truth, is that the sexual abuse meant workplace harassment of a sexual kind, where a power imbalance existed.

54    The respondent submitted that “it is fanciful to suggest that it would occur to the viewer that anyone other than Mr Burston might be the perpetrator of the sexual abuse”, and that the appellant’s words “in no way excluded [that] inference”. The respondent also submitted that the primary judge correctly recognised that the ordinary reasonable person would “latch onto” the claim of sexual abuse because it was “much more serious” and “more concerning”: LJ [147]. The respondent submitted that this is consistent with authority to the effect that derogatory or sensational language predisposes the ordinary reasonable person to draw negative inferences: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at [10]-[11]; Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336 at [29]-[31], [37]. The respondent submitted that sexual abuse has a plain meaning, and the ordinary reasonable person would not read it down for any of the reasons contended for by the appellant. Indeed, it was submitted that the words by which the fourth imputation was carried were an “acontextual outburst which had nothing to do with anything else in the [i]nterview” such that “context provides little assistance, and certainly no basis for construing ‘sexual abuse’ with anything less than the full force of that expression in ordinary English”.

55    The respondent submitted that the primary judge correctly characterised the phrase “sexual abuse” and gave it its ordinary meaning. He submitted that it is not appropriate to read it down so that it means little more than sexual harassment, because Ms Hanson referred to both “sexual abuse and harassment”, which must be understood to have different meanings and exist on opposite ends of a spectrum, as found by the primary judge. The question of whether Mr Burston’s behaviour was properly characterised as sexual abuse was a matter of impression and judgment. The respondent submitted that the primary judge gave due recognition to the egregious nature of what Mr Burston was found to have done, its repetitiveness, and the power imbalance which existed, referring to LJ [172]. The respondent challenged the appellant’s submission that the primary judge failed to consider these matters, noting that submission was factually incorrect and should be rejected. It was also submitted that although it was not a factor expressly adverted to (although there was a reference at LJ [104]), the primary judge was able to observe Ms Leach and Ms Vairy’s demeanour as they gave evidence, and was able to form an impression from those observations about the impact of Mr Burston’s conduct on them. That advantage, it was submitted, is not available to this Court. The respondent submitted that ultimately, the primary judge’s dissatisfaction that the fourth imputation was substantially true was based on the evidence not being sufficiently cogent to justify a finding as serious as “sexual abuse”. It was submitted that the appellant’s submissions did not demonstrate any error in that conclusion.

Consideration

Imputation conveyed

56    Although this ground was developed orally by the appellant during the appeal, it was only rather faintly argued. It was conceded that this argument was not as strong as in relation to the sixth imputation. It will be recalled that the fourth and fifth imputations, that the respondent sexually abused, and harassed a female staffer, were found to have been carried. The primary judge rejected the submission that Ms Hanson had not said it was Mr Burston who had committed the conduct. His Honour was correct to do so. Any other meaning is entirely artificial, and fails to properly consider the words used, in their context. That being so, leaving aside the content of the phrase sexual abuse, which we address below, an ordinary reasonable person would understand from the plain words conveyed, that Mr Burston sexually abused and harassed a female staffer in his parliamentary office. Objectively, that is the singular natural and ordinary meaning of the words spoken. Even if the phrase “sexual abuse and harassment” is considered as a composite expression as contended for by the appellant, that does not mean that an ordinary reasonable person would understand the phrase only conveyed sexual harassment. Sexual abuse and sexual harassment are different concepts, albeit what would be understood as to the meaning of each of the concepts in this case is coloured by the same context. It is also to be recalled that the context in this case includes that this statement was said in an interview which was recorded live, and that the statement could have been seen as having been said in the heat of the moment as deflection. It was not a scripted statement involving precision of language.

57    The appellant has not established ground 1 (in so far as it relates to the fourth imputation).

Substantial truth

58    A significant aspect of the hearing focussed on whether it had been established that the imputation of sexual abuse was substantially true. We are satisfied that substantial truth was established.

59    First, the context in which the conduct occurred was a workplace where the employer, Mr Burston, a man in his seventies, undoubtedly held a position of power over his employees, Ms Leach and Ms Vairy. Both Ms Leach and Ms Vairy needed the employment. Mr Burston was a senator in the Australian Parliament. Ms Leach and Ms Vairy’s employment was predicated on Mr Burston holding that position. That power differential, as well as the working relationship and environment, necessarily colours Mr Burston’s conduct, and any characterisation thereof.

60    Second, in that context, on the unchallenged findings of the primary judge, the evidence established that Mr Burston repeatedly and on an ongoing basis inflicted non-consensual, unwanted and unwelcome verbal and physical sexual behaviour on Ms Vairy and Ms Leach.

61    Ms Vairy and Ms Leach endured a “profoundly unbearable workplace” under the employ of Mr Burston: LJ [104].

62    In relation to Ms Vairy, there were repeated and ongoing sexualised comments on her body and appearance: LJ [90], [93], [94], [97], [98], [100], [101]; comments on and intrusive questions about her private sex life: LJ [170]; leering: LJ [170]; physical touching (including on the skin, legs, hands, face, clothing and jewellery: LJ [91], [95], [96], [97], [98], and including shoving, or attempting to shove money between her breasts: LJ [97]); kissing, including on the lips, and being passionately kissed: LJ [91], [96]; and sexual propositions: LJ [101]. Mr Burston sent Ms Vairy text messages in which, inter alia, he made sexualised comments and repeatedly wrote that he loved her. The conduct continued and escalated over two years. The conduct was degrading and humiliating. Although there appears to be no reference in the primary judgment to it, the evidence was that Mr Burston, on being rebuffed, inter alia, directed his chief of staff to question Ms Vairy about her consensual sexual relationship with another person. That conversation was recorded without Ms Vairy’s knowledge. Mr Burston listened to that recording, made a transcript and leaked it to the media, resulting in a media article. Mr Burston then posted the article on the window next to his office door in the Australian Senate and left it there for a couple of months. This gives some sense of, or reflects the atmosphere in which Mr Burston’s behaviour was occurring.

63    Although Mr Burston’s attention appears to have been more directed to Ms Vairy, Ms Leach was also sexually propositioned, which involved physical contact: LJ [102]-[103]. On an occasion in 2018 when Ms Leach was upset, she returned to Mr Burston’s office and he said, “Oh Wendy, you probably just need a good fuck”. After Ms Leach responded making light of it, her evidence was that it quickly became apparent to her that Mr Burston was not joking because he responded by grabbing Ms Leach by the face and saying, “I’m not joking. I can come around to your place. No one would need to know. It will be the best fuck you’ve ever had.”

64    Third, as referred to in the summary of the primary judge’s reasons above, his Honour at LJ [147]-[151] discussed the concepts of sexual abuse and harassment. His Honour considered whether he was satisfied that substantial truth had been established in that context. It may be accepted, prima facie, that as the primary judge observed at LJ [149], sexual abuse connotes something more serious than harassment. However, difficulty arises in putting labels and content to those concepts. At the outset of the primary judge’s reasoning on this topic, his Honour referred, at LJ [148], to one of the definitions of abuse in the online Macquarie Dictionary being, “to inflict a sexual act on (a person), especially one whose relationship or proximity makes them vulnerable”. Again, that may be accepted. That said, it is difficult to understand how that definition of abuse leads to the conclusion at LJ [148] that sexual abuse:

… literally conveys conduct which is both sexual and physically abusive in some way, going beyond bare physical contact, or even bare physical conduct with a sexual dimension or motivation…It connotes a higher level of physical contact that is sexual in nature where a power imbalance exists; where the behaviour is persistent and not merely transient; something in the nature of molestation of an ongoing kind.

65    That approach is unduly narrow. It attaches features to the concept that are not required, notwithstanding that they may exist in some circumstances of sexual abuse. Sexual abuse may involve conduct which fits that description; but it is not always so. There is nothing about the ordinary meaning of sexual abuse that implies or requires an ongoing course of conduct. A person can suffer abuse on a single occasion, including sexual abuse. Moreover, it is difficult to see why sexual abuse necessarily requires something beyond physical contact, if the circumstances are such that it is sexual in nature. As an aside, we note that the offence of indecent assault (which is a sexual offence) occurs when an assault occurs in circumstances of indecency (based on contemporary standards of ordinary members of the public: Nguyen v Director of Public Prosecutions [2023] NSWCCA 42 at [44]). Conduct characterised as indecent assault has a sexual connotation. Recognising that each case turns on its facts, at least some of the physical conduct of the nature that occurred in this case is arguably capable of fitting the description of indecent assault. If that is so, it would be rather unusual if such ongoing conduct perpetrated in a workplace by an employer on an employee was not properly described, in the circumstances, as sexual abuse.

66    It may be that the definition adopted by the primary judge came about in an attempt to distinguish sexual abuse from the concept of harassment. However, the ordinary reasonable person would not understand the notion of sexual abuse to be confined to conduct with the features identified by the primary judge. That is particularly so given the context in which the phrase is used in this case, as described above.

67    The respondent did not take issue with the primary judge’s description, and submitted that for conduct to be sexual abuse it must be ongoing. For the reasons already given, we do not accept that submission. In fairness to the respondent, the submissions he made included that it was not necessarily helpful to define or describe the meaning of the term “sexual abuse”, “because it limits the scope of what is an expression which is used in common parlance and which has cultural resonances”. To that end, the respondent made the submission that the phrase would call to mind “the abuse of children in religious institutions … allegations in the #MeToo movement, Harvey Weinstein, Jeffrey Epstein, cases like that.” We do not consider those examples to confine the ordinary meaning or understanding of “sexual abuse”. As explained above, although cases which may be described as sexual abuse might share features with such examples, there is no requirement that they do so in order to be properly characterised as “sexual abuse”. As explained below, in that context, given the accepted facts of this case, the conduct can readily satisfy the description of sexual abuse.

68    Fourth, the primary judge approached the question of whether sexual abuse had been established by only considering the birthday card incident, as his Honour perceived that to be the “key and clearest” area where the conduct might have crossed the line from sexual harassment to sexual abuse: LJ [172]. We do not accept the respondent’s submission that on this issue the primary judge took into account the nature of what Mr Burston was found to have done, its repetitiveness, and the power imbalance which existed. Rather, the reasons, properly read, appear to confine the consideration of sexual abuse to the incident with the birthday card and the $100. This is clearly reflected by the primary judge’s conclusion at LJ [177], that:

… an allegation of sexual abuse is considerably more serious [than sexual harassment]. I am unable to be satisfied that what took place in relation to Mr Burston pressing Ms Vairy to keep the $100 goes so far as to constitute sexual abuse, having regard to the quality of evidence required to make such a serious finding.

69    The only other evidence referred to by the primary judge in this context was the unwanted kissing, which his Honour put aside because, although it might in some circumstances be in a category meeting both descriptions of sexual harassment and sexual abuse, it is not in the category which could not be considered sexual harassment: LJ [172]. That is, as the conduct was capable of being described as sexual harassment, it could not be sexual abuse. The use of the two phrases in the interview, in context, does not call for such an approach: cf LJ [150]. The conduct in question was not just unwanted sexual advances or commentary. The repeated kissing was, in the circumstances, unwanted physical sexual conduct inflicted on Ms Vairy. It was conduct of a highly intimate and personal nature, which when unwanted (as it was in the circumstances), was extremely invasive and intrusive. On Ms Vairy’s evidence, from about the middle of 2018, this occurred on an almost daily basis. Moreover, in this context, the primary judge did not consider the power imbalance, the position of Mr Burston as a Senator and her employer, and the abuse of that position, nor the repeated and ongoing unwanted conduct and physical contact by Mr Burston. The character of an event may be coloured by the context in which it occurred. In the circumstances, the question of whether substantial truth had been established, is not to be determined in a piecemeal fashion, by considering individual acts in isolation. In determining whether sexual abuse had been established as substantially true, the primary judge approached the assessment factually, in an unduly narrow manner. That is so, even on the primary judge’s definition of sexual abuse.

70    Fifth, in any event, Mr Burston’s conduct as accepted by the primary judge (described above at [62]-[63]) carried the features of the description of sexual abuse his Honour adopted.

71    It is appropriate to first refer to the incident considered by the primary judge at LJ [97], where Mr Burston gave Ms Vairy a card during work hours with the words, “Beautiful Pretty Lovely Birthday Lady!” printed on the front. The inside of the birthday card had the following message, “Terrie–lea that’s you! XOXO have a great day, Brian” (the “XOXO” was already printed on the card). When Ms Vairy opened the birthday card, $100 fell out: LJ [97]. In her evidence, Ms Vairy described, “Brian called me into his office, handed me a card. When I opened it $100 fell out. I tried to give that back to Brian. He then forcefully shoved it between my breasts”: LJ [173]. The primary judge perceived there to be an inconsistency between Ms Vairy’s evidence on the one hand, and her statement in her Comcare claim, and what she told Mr Ashby and Ms Leach about the incident on the other: LJ [173]-[176]. The perceived inconsistency pertained to whether Mr Burston succeeded in putting the money in her cleavage (in respect of the Comcare claim only), and whether force was used (there being no reference to force in Ms Vairy’s Comcare claim, nor in her accounts to Ms Leach and Mr Ashby): LJ [173]-[176].

72    For example, at LJ [175] his Honour described:

Ms Leach was not present when this incident occurred, but said in her evidence in chief that Ms Vairy had told her about it and in relation to the $100 said Ms Vairy “was really upset by it and tried to give it back and then apparently he put it between her cleavage”, which falls somewhat short of the description that Ms Vairy gave about the use of force. Mr Ashby said that Ms Vairy “said to me that she received a card with some money in it, and when she attempted to hand that money back, he – he put that money down her – her blouse or top”. Again, this falls short of a reference to the use of force. It follows that none of these witnesses describe Ms Vairy telling them about the use of force of the kind that she deposed to.

73    We note also that in cross-examination Ms Vairy said “I pulled [the money] out”, implying that the $100 went down Ms Vairy’s shirt and that, in doing so, Mr Burston made physical contact with Ms Vairy’s breasts. Ms Vairy did not accept there was a difference between the accounts she gave: LJ [174]. Further, we note that the primary judge found Ms Vairy to be a reliable and truthful witness: LJ [71]. Given the content of the evidence, we do not consider there is any material inconsistency or lack of detail, such as to impact on the assessment of the act. This was an unwanted sexual act. Moreover, the act of placing money down a woman’s shirt also carries with it certain sexual connotations. The act described is part of the evidence which is to be taken into account, in the context of the sexual conduct described above, when determining whether substantial truth has been established. No act is to be considered in isolation.

74    As expressed above, the evidence established that Mr Burston, a Senator, who employed Ms Vairy in his Senate office, repeatedly inflicted sexual contact on Ms Vairy that was non-consensual, unwanted, and unwelcome. This was in a broader context where Mr Burston repeatedly made comments about her body or appearance and other sexualised comments. There was also the conduct in relation to Ms Leach.

75    On the primary judge’s definition, the evidence established ongoing conduct of a sexual nature where a power imbalance existed, and where the behaviour was persistent and of an ongoing kind. To use the Macquarie Dictionary definition referred to by the primary judge at LJ [148], the evidence established that sexual acts were inflicted on another, in circumstances where there was a relationship or proximity which made them vulnerable. On the primary judge’s approach to the concept of sexual abuse, on the evidence his Honour accepted, that definition was satisfied. The defence was established.

76    Sixth, that said, the issue is not the definition of sexual abuse, but rather how the ordinary reasonable person hearing the interview would construe the words sexual abuse, in the context in which they were used, as described above (for example at [13] and [59]). That includes, inter alia, its use in the phrase “sexual abuse and harassment”, and in the context of conduct in the workplace where Mr Burston is a Senator, and an employer with power over his employees. The ordinary reasonable person would have understood the phrase as conveying unwanted physical conduct of a sexual nature.

77    The evidence does establish that the imputation that Mr Burston sexually abused a female staffer in his parliamentary office, is substantially true. Ms Hanson had discharged her onus of proving the substantial truth of the fourth imputation.

78    The appellant has established ground 2 (in so far as it relates to the fourth imputation) and ground 3.

The sixth imputation

79    The appellant submitted that the primary judge erred in concluding that “in ordinary parlance the phrase ‘never laid a hand’ is used in the sense of not having done anything at all”: LJ [155]. The appellant submitted that “not laying a hand” means not touching, or at a stretch, not using any kind of physical aggression (rather than not engaging in provocation at all), and that the ordinary reasonable reader would not have taken from this phrase that the respondent assaulted Mr Ashby without provocation, especially when Ms Hanson stated in the 2MCO that “the aggression came from Brian Burston to James Ashby”. The appellant submitted that if that imputation were carried, then it would have been carried on the basis that “provocation” meant physical touching and/or aggression by Mr Ashby towards Mr Burston, such that the appellant had proven the imputation to be substantially true. Correcting the primary judge’s error at LJ [155] that “[i]n ordinary parlance the phrase ‘never laid a hand’ is used in the sense of not having done anything at all” yields, it was submitted, the conclusion that the imputation is not carried.

80    The respondent submitted that the ordinary reasonable person would not have been overly particular about the extent of Mr Ashby’s responsibility for the incident. They would have understood Ms Hanson was saying that Mr Ashby was not responsible for the incident at all.

Consideration

81    The content and context of what was said in the Today Show interview is extracted at LJ [58] (and LJ [152]), and recited above at [13].

82    It is important to recall that the key passage from the Today Show interview (which includes the words said by Ms Hanson) is as follows:

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

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

83    The phrase, “never laid a hand on”, is one used in common parlance. It is readily understood, as the appellant submits, to refer to physically laying a hand on, or physical touching. We are unable to accept the description that in ordinary parlance the phrase is understood as “not having done anything at all”: LJ [155], and that the context in which these words were used by Ms Hanson would change that ordinary understanding to a much broader meaning of “without any provocation”: LJ [156]. Nor do we agree with the conclusion that what would have been conveyed is that Mr Ashby did nothing whatsoever to provoke Mr Burston: LJ [156]. To the contrary, the statement was used in the context of saying that it was not a fight, but that Mr Burston was the physical aggressor as Mr Ashby had not laid a hand on, or physically touched Mr Burston. That is what would have been understood by the ordinary reasonable viewer.

84    Accordingly, the appellant has established that the sixth imputation is not carried.

85    Ground 1 has been established (in so far as it relates to the sixth imputation). It is therefore unnecessary to consider the defence, which the primary judge considered on a different interpretation of what was conveyed.

Conclusion

86    Given our conclusions in respect of the above matters, it is unnecessary to consider the remaining grounds of appeal. The appeal is allowed, with costs.

Associate:

Dated:    16 August 2023