Federal Court of Australia

Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44

ORDERS

THE COURT ORDERS THAT:

1.    There be a verdict for the applicant in the sum of $590,000 (inclusive of pre-judgment interest).

2.    The respondents by themselves, their servants and agents be restrained from publishing, making available online for download or otherwise, so much of the Four Corners program first broadcast by the first respondent on 5 June 2017 and subsequently made available for download, playing, streaming or otherwise being viewed on any website of, or controlled by, them or of any of them that conveys any one or more of the following imputations of and concerning the applicant, namely that:

•    he is a member of the Chinese Communist Party and of an advisory group to that party, the People's Political Consultative Conference (CPPCC), and, as such, carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department;

•    he donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the Chinese Communist Party;

•    he paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe; and

•    he was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.

3.    The respondents pay the applicant’s costs.

4.    The applicant have leave to file and serve any application for an order to vary order 3 on or before 9 February 2021 together with any supporting affidavit and written submissions, not exceeding two pages.

5.    The respondents file and service any evidence in opposition and written submissions, not exceeding two pages, on or before 16 February 2021.

6.    The applicant file and serve any written submissions in reply, not exceeding one page, on or before 18 February 2021.

7.    Any application made under order 4 be listed for argument on 25 February 2021.

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

REASONS FOR JUDGMENT

RARES J:

1    Dr Chau Chak Wing seeks damages for defamation against the Australian Broadcasting Corporation (ABC), Fairfax Media Publications Pty Ltd and Fairfax’s employee, Nick McKenzie (collectively the publishers), arising from the publication on and after 5 June 2017, of the Four Corners television program entitled “Power and Influence”, initially broadcast on ABC nationally and thereafter made available for viewing online on the ABC website.

2    Dr Chau was born in Guangdong province in the People’s Republic of China in 1949 and became an Australian citizen in about 1999. He came from a poor family and had no tertiary education. As he was growing up, he saw the value of a good education at a tertiary institution through the success in life of a person who had lived in his village and later obtained such an education. Dr Chau’s childhood ambition, which he has pursued with the benefit of his own business success, was to support education and educational institutions. In 2003 Dr Chau was awarded an honorary doctorate of humane letters by a college in the United States and, in 2014, the University of Technology Sydney awarded him another honorary degree. Dr Chau has contributed considerable sums over the years to educational institutions as well as to other causes, including Australia’s major political parties, being matters that the program explored.

The issues

3    Dr Chau contends that the program conveyed six imputations that were very serious, false and defamatory. The publishers contest that the ordinary reasonable viewer of the program would have understood it to convey imputations of the degree of seriousness that Dr Chau alleges. This is a central issue between the parties. The other central issue is the assessment of any damages to which Dr Chau might be entitled. The publishers have no other substantive defence. That position came about as a result of my earlier decisions striking out a defence of justification (Wing v Australian Broadcasting Corporation [2018] FCA 1340, which the Full Court upheld in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632) and my refusal to allow the publishers to amend that defence to add another plea of justification (Chau v Australian Broadcasting Corporation [2019] FCA 1856).

4    In these reasons I will first, describe the program, secondly, determine whether the imputations of which Dr Chau complains were conveyed, thirdly, make other findings of fact based on the evidence and last, deal with the legal issues and the damages to which Dr Chau is entitled.

Liability

The matters complained of

5    Four Corners is a flagship investigative journalism program that the ABC has broadcast, on a weekly basis, for over 45 years. The program went to air on national television at about 8.30pm on 5 June 2017 on the ABC 1 channel. The ABC republished it in broadcasts at other timeslots on the same channel at 10.00am on 6 June 2017 and 11.00pm on 7 June 2017. It also broadcast the program on its ABC News 24 channel at about 8.00pm on 10 June 2017. A total of 1,045,952 viewers saw the matter complained of on television (these broadcasts comprise the first matter complained of). There were 59,882 page views that led to 11,464 plays of the online video version of the matter complained of (the publication and making available for viewing online of the program comprise the second matter complained of). The online version was still available for viewing at the time of the hearing.

6    I have annexed the full transcript of the program to these reasons. What follows is a summary of the salient features in it that, in my opinion, bear on the meanings that the ordinary reasonable viewer would have understood the program to have conveyed about Dr Chau.

7    The matter complained of commences with a focus on spying, clandestine activities and interference by the Chinese government and Chinese Communist Party (or CCP), together with its proxies, to affect the integrity of the Australian political system. The opening words are spoken by the then Chairman of the Homeland Security Committee of the United States Congress, Representative Mike McCaul, who says “it’s almost like out of a spy novel”. Next, the presenter, Chris Uhlmann, sets the scene by describing the concern of the Australian Security Intelligence Organisation (ASIO) that espionage and foreign interference that were occurring on an unprecedented scale in Australia. Mr Uhlmann told viewers that, while ASIO had not identified the key suspect, Four Corners and Fairfax could. He then named the Chinese Communist Party and identified its targets as including universities and some of Australia’s leading politicians. He asserted that the Four Corners investigation “reveals that business leaders allied to Beijing are using millions in political donations to the major parties to buy access and influence, and in some cases to push policies that may be contrary to Australia’s national interests”.

8    The reporter, Mr McKenzie, begins on the same theme. He narrates that it is October 2015 and ASIO counter-espionage agents are breaking into a Canberra flat. This is portrayed against a mock re-enactment of the raid in the dead of night. The target is a Chinese woman whom ASIO suspects is involved in spying for the Chinese government. Professor Rory Medcalf emphasises the significance of the raid by stating that it required the authorisation of the Attorney-General and other parts of the Australian national security community. Prof Medcalf states that this would reflect “deep and real concern about Chinese espionage in Australia”. Mr McKenzie then reveals that the woman’s name is Sheri Yan. Mr McKenzie then asks Professor John Fitzgerald whether Ms Yan might be a Chinese intelligence operative of some sort. He replies that he understands that “she is very closely connected with some of the most powerful and influential families and networks in China”, adding “Once you know that, you don’t need to know much more”.

9    Mr McKenzie then reveals that Ms Yan’s husband, Roger Uren, was until 2001 an Assistant Secretary in the Australian Office of National Assessments, which is responsible for providing secret intelligence briefings to the Prime Minister. He states that in the raid ASIO seized computers and documents as well as discovering there classified Australian government files on the work of Chinese intelligence. He says that Mr Uren was being investigated because of the possible illegal removal of what Prof Medcalf describes as very significant and highly secret files. Mr McKenzie adds that, in the weeks before the raid, ASIO analysts had been tracking links between political donors in Australia and the Chinese Communist Party whose donations “provided access to the most powerful politicians in the land”.

10    Mr McKenzie says that the Director-General of ASIO, Duncan Lewis, was so worried that he organised meetings with the directors of the major political parties to warn them that the donors could compromise their parties. Prof Medcalf says that for the Director-General to take such a step is very unusual and “would reflect very real, very real concern”. Mr McKenzie continues that, when Mr Lewis briefed the party officials, he told them that the donors that ASIO was examining were breaking no laws but warned that their strong connections to the Chinese Communist Party meant that the donations might “come with strings attached”. Mr McKenzie adds that ASIO had also briefed the then Prime Minister, the Hon Tony Abbott MP. Peter Jennings, the executive director of the Australian Strategic Policy Institute, says that this type of “naked influence buying” is damaging to Australia’s political system.

11    Mr McKenzie states that ASIO had singled out two billionaire donors with especially close ties to the Chinese Communist Party, the first being “enigmatic property developer Dr Chau Chak Wing, a man who keeps a low profile except when it comes to his big donations”. A former CIA China expert, Peter Mattis, adds an air of mystery about Dr Chau by saying that he “sort of appeared out of nowhere” and that little was known about him before he made his entry into the Australian and Chinese business scene.

12    Next, the program depicts the then Governor-General, the Hon Sir Peter Cosgrove AK, at the opening of the Dr Chau Chak Wing building at the University of Technology Sydney (UTS). The building was designed by the internationally acclaimed architect, Frank Gehry.

13    The reporter emphasises Dr Chau’s wealth. He states that Dr Chau was “not content with having a building named after him” adding that he bought a six storey mansion for $70 million, which was Australia’s most expensive home purchase in 2015. Mr McKenzie asserts that Dr Chau’s money allowed him to “regularly rub shoulders with the great and good of Australian politics” and that he had donated more than $4 million to the major parties over the preceding decade. He states then that “the question that ASIO has been probing is what [Dr Chau] wants from his donations.”

14    The program then provides three different views from Prof Medcalf, Mr Mattis and the former Australian ambassador to China, Geoff Raby, on that topic. Prof Medcalf emphasises that it was uncertain whether the donations were driven or encouraged by the Chinese Communist Party or were independent actions that the donor thought would benefit him in China through his involvement in a change in the Australian political discourse. Mr McKenzie, at this point, emphasises that Dr Chau is an Australian citizen but adds “back in his homeland, China, he was also a member of a Communist Party advisory group known as a people’s political consultative conference or CPPCC”. He states that the CPPCC carries out the work of “an opaque lobbying arm of the Party” called the United Front Work Department. Prof Medcalf asserts that individuals like Dr Chau have “really deep and serious connections to the Chinese Communist Party” who, even if not subject to direction, would feel a sense of obligation or desire to make the right impression on the powers that be in China to demonstrate that they were being good members of the Party and pursuing its interests.

15    Mr Mattis reinforces that theme by adding that “with wealth comes responsibility, and that responsibility is to respond to the Party when they ask you to do a favour for them”. Mr Raby then posits that the reasons for the donations are mainly to do with the donor’s business interests in Australia and that making gifts reflects a traditional way of doing business in China. He says that most businessmen and developers who make donations crave prestige and status through being photographed next to politicians on both sides of politics to reflect their influence, position and image. He says that the donors see that this helps their business and gives their family respect consistently with “a traditional Chinese way of operating”.

16    Immediately after this, Mr McKenzie reveals that Four Corners had learnt that ASIO’s interest in Dr Chau arose partly from his association with Sheri Yan, whom he described as “an old friend”. Mr McKenzie reminds the viewer that it was Ms Yan whom ASIO suspected of spying and whose Canberra apartment the agency had raided (being a reference to the spy raid re-enacted at the beginning of the program). Next, Mr Mattis comments that Ms Yan was an Australian-Chinese businesswoman who had made her livelihood out of building connections between China and the outside world. He said that she provided a bridge between foreign businessmen and foreign government officials “who are trying to get things done in China or find their way among [its] bureaucratic and political landmines”. Mr McKenzie tells viewers that Dr Chau used Mr Yan “as a consultant, somebody able to open up the right doors”.

17    Mr Raby explains that Ms Yan was a dynamic person who speaks both languages perfectly and is well connected, although he does not know what her connections are. Mr Mattis says that her father was a People’s Liberation Army officer, adding “so she is connected to sort of the core of the CCP in a sense”. He says that no one could explain where her original connections, means of opening doors and money came from in China. Mr McKenzie adds that Ms Yan divides her time between New York, Beijing and Canberra and “moved with ease among the A listers”. He says that she was close to, among others, the President of the United Nations General Assembly, John Ashe.

18    The program depicts Ms Yan at a meeting while engaging in commentary as to how she and her husband networked together. Mr McKenzie says that Mr Uren’s previous work as a high-ranking Australian intelligence official with top security clearance meant that he was trusted in Canberra, but that “not everyone trusted Sheri Yan”. Prof Fitzgerald says that he had been advised by an old friend in Australia’s security establishment “to stay well clear of Sheri Yan” but that he was not entirely sure why.

19    The program then switches to a news clip of the Attorney for the Southern District of New York announcing, in October 2015, the arrest of Ms Yan as part of “yet another wide-ranging corruption scheme” that was simultaneously local, global and centred at the United Nations. Mr McKenzie says that the raid on Ms Yan’s Canberra apartment occurred at the same time as her arrest in United States, where she was accused of bribing the United Nations General Assembly President. Mr Raby says that he was very surprised and could not believe, when he had heard it, that she had been arrested.

20    The program then switches to the then Foreign Minister, the Hon Julie Bishop MP, being interviewed about Ms Yan’s arrest but giving no information on the subject other than that she had been briefed on it. The verbal part of the program then proceeds:

NICK MCKENZIE: One of the events that led to Sheri Yan's arrest unfolded at the luxury Imperial Springs Resort, which is owned by none other than the Australian political donor Dr Chau Chak Wing. The FBI alleged Yan bribed the UN general assembly President to speak at the resort, at a conference hosted by Dr Chau. A sealed indictment from a New York Court against Sheri Yan refers to Dr Chau using a codename – CC3. Sheri Yan was alleged to have told the UN President

FEMALE VOICE-OVER: [CC3's] office emailed me the invitation. I will ask $200,000 for this trip...

NICK MCKENZIE: A draft invitation sent to the United Nations president and allegedly approved by Dr Chau stated his desire to make the UN chief his "sincere friend in Guangdong Province”

MALE VOICE OVER: And your friend here has the pleasure to offer you a permanent convention venue for the UN meeting ...

NICK MCKENZIE: The UN president’s bank account was then wired $200,000 by one of Dr Chau's companies. Under US bribery law it was illegal for Ashe, as a UN official, to receive this payment. There is no suggestion Dr Chau knew it was illegal.

PETER MATTIS: At least some of the money that was moving through Sheri Yan, or that she was facilitating, came from him. And it doesn't mean that there was necessarily anything untoward about it, but just the fact of large amounts of money being moved or paid to people because of introductions or the activities of Sheri Yan make it, make it somewhat suspect. ...

NICK MCKENZIE: Sheri Yan pleaded guilty to bribery charges and was jailed last year. Dr Chau has never been charged with any offence and denies any wrongdoing. ASIO's interest in Sheri Yan is just one of many suspected foreign interference and intelligence cases being probed by Australian agencies, and which lead back to Beijing.

(emphasis added)

21    Prof Medcalf then states that ASIO and other agencies are “alive and alert to these issues” such as Ms Yan’s arrest. Mr McKenzie comments that concerns about the Chinese Communist Party interfering in Australian politics is growing in Washington, where senior officials believe that Australia is open to compromise, including through foreign donations. Then Mr McCaul states that, in his country, foreign money cannot be used lawfully in their elections so that foreign governments could not influence them. He says that he was surprised that Australia allows foreign contributions, particularly because a lot of those appeared to be coming from China which:

has a very strong influence in the region. They want to influence Australia. They want a stronger presence in Australia, and what better way to do that than to influence political figures through, through foreign contributions.

22    Mr McKenzie then explains that Mr McCaul had been a prosecutor at the United States Department of Justice and had investigated a scandal known as “China-gate” concerning Chinese spies funnelling donations into the Clinton Presidential campaign. A short clip of President Clinton welcoming a Chinese man is then interpolated into the broadcast with Mr McCaul’s opening line in the program “It’s almost like out of a spy novel”. He says that this had been the most interesting case he had ever prosecuted. The program repeats the sequence from its opening moments. Mr McCaul says that “these are very dangerous clandestine figures in Chinese intelligence and there was a concerted effort to, to influence our (ie. American) elections.” Mr McKenzie asserts that Mr McCaul warns that Australia is badly exposed, unless its laws are changed, because of the capacity of a foreign government to influence Australian elections. Mr McCaul says that China is the biggest offender in providing foreign contributions to influence elections.

23    The program then turns to the recent visit to Australia, in March 2017, of the Chinese Premier, Li Keqiang. Mr McKenzie states that the emboldened Chinese Communist Party is no longer prepared to hide its strength and bide its time. He tells viewers that there is a debate raging in Australia’s diplomatic and security community about why and to what extent China is seeking influence in Australian institutions. The program then depicts a demonstration in Canberra to welcome Premier Li, interviews with a student in the demonstration as well as with a student activist, Anthony Chang.

24    Mr McKenzie interviews a Sydney academic who is a fierce critic of the Chinese Communist Party’s interference in Australia, Dr Feng Chongyi. Mr McKenzie then tells viewers that, while Dr Feng was “trapped in China”, having been detained there for questioning, Premier Li was guest of honour at a Chinese community event held in the Sydney Town Hall and that Dr Chau was sitting at the head table opposite the Premier. He continued:

a couple of seats over from him was another Chinese billionaire Huang Xiangmo. Like Dr Chau, Mr Huang has come to the attention of ASIO. Mr Huang is the second donor named by ASIO in its secret warning to the Coalition and Labor about the danger of Chinese Communist Party interference in Australian politics.

25    The program then spends a considerable deal of time discussing Mr Huang and his activities, including his appearance at an event in Australia which Mr McKenzie presages by saying “In the right company, Mr Huang makes no secret of his devotion to the Chinese Communist Party”. The program shows Mr Huang, through an interpreter, saying:

We overseas Chinese unswervingly support the Chinese government’s position to defend our nation’s sovereignty and territorial integrity. We support the development of the motherland always and take on an important role in building one belt, one road.

(emphasis added)

26    In the course of this discussion, Mr McKenzie states that “an incident that occurred in June 2016 leaves little doubt that Mr Huang expects something in return for his donations”. Next, the program depicts the then Labor shadow Minister for Defence, Senator the Hon Stephen Conroy, setting out his party’s policy about the South China Sea and criticising the conduct of the Chinese Government there. Mr McKenzie refers to Mr Huang‘s promise to donate $400,000 to the Labor Party which he cancelled after Senator Conroy’s remarks and then says:

Just one day after Stephen Conroy's comments, Mr Huang appeared at a press conference alongside his Labor mate.

Contradicting his Party's position, Senator Dastyari told the Chinese media that Australia shouldn't meddle with China's activities in the South China Sea.

27    The program then depicts Labor’s Senator Sam Dastyari trying to explain how he earlier had contradicted Labor Party policy on the South China Sea while standing next to Mr Huang in a press conference on the day after Senator Conroy’s remarks. Soon after, Mr McKenzie tells viewers that Mr Huang had previously given $5000 to Senator Dastyari to pay a Labor Party legal bill. Mr McKenzie says that another Chinese donor had given Senator Dastyari $1600 to pay a travel bill before telling viewers that soon after, “the Senator fell on his sword”.

28    After spending about one third of the program’s running time dealing with Mr Huang, its conclusion discusses the involvement of the former Trade Minister, the Hon Andrew Robb, in his new role as an economic adviser to the Chinese company that recently before the program had acquired a 99-year lease of the Port of Darwin.

29    The program finishes after Prof Medcalf suggests that the political class in Australia needs to decide, in the interest of Australia’s independence and sovereignty, about restrictions on, and the limitation of, foreign influence in Australian decision-making. Mr Uhlmann leaves viewers with the following parting thoughts:

After being briefed on the 4 Corners-Fairfax investigation, the Attomey General sent us a statement revealing the Prime Minister has asked him to conduct a major inquiry into Australia's espionage and foreign interference laws.

Senator Brandis said, “the threat of political interference by foreign intelligence services is a problem of the highest order and it's getting worse.”

Senator Brandis says he will examine whether the espionage offences in the criminal code are adequate and expects to brief Cabinet on possible changes to the law before the end of the year. We will watch, with interest. Good night.

The pleaded imputations

30    Dr Chau pleaded that the following six imputations arose from the publication of the matters complained of, namely that:

(1)    he betrayed his country, Australia, in order to serve the interests of a foreign power, China, and the Chinese Communist Party by engaging in espionage on their behalf;

(2)    he is a member of the Chinese Communist Party and of an advisory group to that party, the People's Political Consultative Conference (CPPCC), and, as such, carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department;

(3)    he donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the Chinese Communist Party;

(4)    he paid Sheri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in infiltrating the Australian Government on behalf of the Chinese Communist Party;

(5)    he paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe; and

(6)    he was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.

Were the imputations conveyed?

31    The tribunal of fact (be that a judge or jury) must undertake an objective evaluation in determining whether an ordinary reasonable viewer would have understood that the broadcast complained of (or its online publication) conveyed any particular defamatory imputation or meaning. The process necessarily is imperfect because by the time that the tribunal of fact must decide this question, the matter complained of will have been played several times, counsel will have emphasised factors of it that support the conclusion that favours their respective client and the debate will have focussed around the pleaded imputations as the formulation of the meanings that the publication would or would not have conveyed.

32    Moreover, the tribunal of fact must also put itself into the position of an ordinary reasonable viewer of the particular publication. This involves some mental agility. The degrees of meaning that a Shakespearean play will both be capable of conveying and that it actually conveys can depend on the education of the audience, its knowledge of Shakespeare and its ability to penetrate what is often the bard’s layers of meanings.

33    The exercise of ascertaining what meanings such a play conveys is likely to be on a different plane to the approach that the reader or viewer of a tabloid media publication will take in arriving at a meaning conveyed by such a publication. While there may be overlaps, it is unlikely that the audience of a Shakespearean play will have, or exhibit, the same characteristics as that of a tabloid media publication. Hence, the ordinary reasonable viewer is somewhat a chameleon creature whose characteristics and thought processes vary depending on the nature of the defamatory publication and the means of its communication to him or her. Nevertheless, such a person must be a reflection of members of the current society.

34    The cases have been concerned to formulate an objective, but reasonably adaptive, construct to encapsulate all of the characteristics of the ordinary reasonable viewer (or reader or listener, depending on the medium of publication). When almost all defamation actions in the nation’s four most populous States were tried by jury, Brennan J (with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed), in Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505–506, explained how jurors needed to approach their task in deciding whether a particular meaning was conveyed by a publication. He said (at 506):

Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v. Deane ([1937] I KB 818, at 833), being a standard common to society generally (Miller v. David ((1874) LR 9 CP 118); Myroft v. Sleight ((1921) 90 LJ KB 883); Tolley v. J.S. Fry & Sons Ltd. ([1930]1 K.B. 467, at 479).

(emphasis added)

35    In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165–167, Hunt CJ at CL, with whom Mason P and Handley JA agreed, described the approach that a tribunal of fact should take in assessing whether a publication, and in particular a television broadcast, conveyed a particular defamatory imputation or meaning. Broadcasts are transient unlike the print media or online written publications. Of course, in today’s world a television broadcast, such as Four Corners, is also able to be recorded or streamed online (as it was by over 11,400 people) so that it can be replayed, or gone over, just as the printed word. However, replaying a broadcast that lasts over 45 minutes is not a usual activity of an ordinary reasonable viewer of television or internet downloads.

36    The essential characteristics of the “hypothetical referees” are that they are, first, ordinary members of the community, secondly, reasonable people and thirdly, the reflex of how such persons would have understood the publication complained of when and in the circumstances they saw, read or listened to it. And, as Lord Kerr of Tonaghmore JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin agreed) held in Stocker v Stocker [2020] AC 593 at 605 [37]–[38], where a range of possible meanings presents itself, “the touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning”. He identified that this requires a judge to step away from a lawyerly analysis and to put himself or herself in the position of the typical member of the audience of the publication in issue.

37    In Trkulja v Google LLC (2018) 263 CLR 149 at 160–161 [32], Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said:

that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person (Favell (2005) 79 ALJR 1716 at 1721 [17]; 221 ALR 186 at 192 per Gleeson CJ, McHugh, Gummow and Heydon JJ); and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1162-1163 per Lord Reid). He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs” (Lewis [1964] AC 234 at 258 per Lord Reid; Favell (2005) 79 ALJR 1716 at 1719–1720 [10]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), but such a person also draws implications much more freely than a lawyer, especially derogatory implications (Lewis [1964] AC 234 at 277 per Lord Devlin; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573–574 [134] per Kirby J; Favell (2005) 79 ALJR 1716 at 1720 [11]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), and takes into account emphasis given by conspicuous headlines or captions (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aickin J; Rivkin (2003) 77 ALJR 1657 at 1661–1662 [26]; 201 ALR 77 at 83 per McHugh J; at 1699 [187] per Callinan J; Favell (2005) 79 ALJR 1716 at 1719 [8]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ). Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd ((1998) 193 CLR 519 at 574 [134]), “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.

(emphasis added)

38    In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at 190 [10]–[12], Gleeson CJ, McHugh, Gummow and Heydon JJ said in relation to the capacity of a publication to convey a meaning:

In determining what reasonable persons could understand the words complained of to mean, the court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd:[[1964] AC 234 at 258]

The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.

Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, [[1964]] AC at 277] that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said: [[1964] AC at 285]

It is not … correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. [Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293] If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance.

(emphasis added)

39    The ordinary reasonable viewer of Four Corners would be a person who was interested in watching a serious, well-researched, investigative 45 minute long program, usually, at 8.30pm on a Monday evening, which he or she would understand was intended to inform its audience about a serious matter of current public interest or concern. The ordinary reasonable viewer will watch and listen to the whole of the broadcast before forming a final conclusion as what it conveyed. However, he or she will form impressions about matters as the program progresses, especially about matters that it covered but did not return to later. Those impressions may well last and become the meaning(s) that the ordinary reasonable viewer retains as the meaning(s) that the program conveyed. The more striking or pungent an impression that a part of the program creates in or conveys to the mind of the viewer may be the meaning that he or she infers it was suggesting regardless of other, milder portions. As we know, emphasis, presentation, context, irony, sneers and other rhetorical devices can reinforce or negate a meaning that the same words said or read in isolation of the circumstances of their communication would have conveyed.

40    I now turn to consider whether each of the imputations was conveyed by the program.

Imputation 1: Dr Chau betrayed his country, Australia, in order to serve the interests of a foreign power, China, and the Chinese Communist Party by engaging in espionage on their behalf

41    Dr Chau argued that imputation 1 would have been conveyed to the ordinary reasonable viewer because of the repetition of Mr McCaul’s saying “it’s almost like out of a spy novel” both in the opening line and part way through the matter complained of, the references in the opening sequences to ASIO’s warnings to the Australian political party officials, Four Corners’ revelation that China was the subject of those warnings and Mr Uhlmann’s concluding statements about the need to change Australia’s espionage and foreign interference laws. He contended that the program created links between his allegedly close friendship and employment relationship with Ms Yan, whom the program stated explicitly was a Chinese spy, ASIO’s interest in Dr Chau having been piqued, partly through that association with Ms Yan, the references to the raid on her apartment in Canberra, what Prof Medcalf described as Dr Chau’s “deep and serious connections to the Chinese Communist Party” and his being an Australian citizen.

42    I reject Dr Chau’s argument. In my opinion, the ordinary reasonable viewer would not have understood the matter complained of to have conveyed imputation 1. That is because the program did not suggest that Dr Chau had engaged in any act of espionage or spying. The ordinary and natural meaning of “espionage” is the “practice of spying on others” (Macquarie Dictionary online) or “the practice of playing the spy, or of employing spies” (Oxford English Dictionary online). Spying means obtaining secret information or collecting intelligence. Those concepts are distinct from foreign interference, as the program noted.

43    The publishers accepted that the matter complained of gave rise to a reasonable suspicion that Dr Chau was being investigated for his activities in Australia and that he had connections to Ms Yan and her husband. But, as they correctly argued, there was no incident or other content in the matter complained of that the viewer reasonably could have perceived was suggesting that Dr Chau had engaged in any act of espionage.

44    The program’s suggestion of foreign interference in Australian political affairs did not direct the reasonable viewer’s perception of Dr Chau’s activities into the realm of spying. The program made clear to the viewer that ASIO’s investigations related to two major concerns: spying and foreign interference. The ordinary reasonable viewer would have been conscious that, although both kinds of activity were antithetical to Australia’s national interests, each was distinct from the other. The matter complained of portrayed Dr Chau as a person who made donations and engaged in high profile activities with universities and politicians. But, it did not convey that he was a spy or had done anything involving the obtaining of information or collection of intelligence to be used against Australia.

45    While the program drew a link between Dr Chau and Ms Yan, that link was to do with the allegedly corrupt invitation to Mr Ashe. The program did not convey that, even if it was saying that Ms Yan was a spy (because of matters such as the documents found in the raid on her Canberra apartment), Dr Chau engaged in anything more than Mr Jennings’ ascription of “naked influence buying”. The program said that ASIO was warning about Dr Chau’s activities and motives in making large donations and building up connections with persons of influence. While both spying and influence buying could evoke perceptions of some kind of clandestine activity in the mind of the ordinary reasonable viewer, in the context of the program he or she would still regard influence buying using such means as a separate exercise from engaging in espionage. The viewer would have understood Mr McCaul’s twice-repeated melodramatic description, “it’s almost like out of a spy novel” as being a reference to the secrecy involved in the behaviour of what he described as “dangerous clandestine figures in Chinese intelligence and…a concerted effort to… influence our elections” through foreign government contributions.

46    The ordinary reasonable viewer, taking the content of the program as a whole, would not have understood it to convey the meaning that Dr Chau engaged in obtaining secret information, collecting intelligence or any form of spying.

Imputation 2: Dr Chau is a member of the Chinese Communist Party and of an advisory group to that party, the People's Political Consultative Conference (CPPCC), and, as such, carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department

47    The publishers argued that imputation 2 was strained, contrived and was not conveyed by the matter complained of. They contended that while Mr McKenzie had described Dr Chau as currently being Australian citizen, he immediately followed that by saying “back in his homeland, he was also a member of a Communist Party advisory group known as … CPPCC”. They submitted that the ordinary reasonable viewer would have understood that Dr Chau had been in Australia for at least a decade, being the period over which he had been making his donations to political parties, and that the reference to his past membership of the CPPCC “back in his homeland” was temporally significantly earlier than the discussion of his present connections to Australia. They argued that the program did not suggest that Dr Chau was currently a member, or had retained membership in Australia, of the CPPCC or the United Front Work Department. Moreover, they argued, even if conveyed, imputation 2 was not defamatory. That was because membership of the governing political party of a superpower or an advisory group to that party or the carrying out of unspecified work on behalf of a secret lobbying arm of that party would not have lowered the reputation Dr Chau in the minds of ordinary right-thinking people.

48    I reject the publishers’ arguments about imputation 2. The ordinary reasonable viewer would have understood Prof Medcalf to have been referring to Dr Chau when he said “individuals like that have really deep and serious connections to the Chinese Communist Party”. The focus of the program was on the links between the central figures, including Dr Chau and Mr Huang, whom it told the viewers ASIO suspected of foreign interference and, in the case of others like Ms Yan, also spying. As I have noted in dealing with imputation 1, the focus of the matter complained of in respect of Dr Chau was about the connection between his political donations and foreign interference in Australian politics from the Chinese State or its organs.

49    Moreover, Mr McKenzie had said earlier, when first introducing Dr Chau to viewers, that:

ASIO singled out two billionaire donors with especially close links to the Chinese Communist Party. The first was enigmatic property developer Dr Chau Chak Wing, a man who keeps a low profile except when it comes to his big donations.

50    Contrary to the publishers’ argument, the ordinary reasonable viewer was invited to listen to what apparently well-informed, authoritative persons said about Dr Chau in the program on the basis of that introduction. Mr McKenzie subsequently elaborated on Dr Chau’s links to the Communist Party and the Chinese State by informing viewers of his connection to the “opaque lobbying arm of the party called the United Front Work Department.” The ordinary reasonable viewer would have understood that to be a reference to the political lobbying or influencing in foreign countries, not in the one-party State that was China. Prof Medcalf’s remarks immediately following the introduction of that opaque lobbying arm, emphasised that the really deep and serious connections of Dr Chau with the Communist Party were in relation to his activities in Australia. The ordinary reasonable viewer would also have understood that the program was not complimenting, or expressing a Panglossian view, about Dr Chau for his donations, but rather was exposing to scrutiny his motivation for making them. In the context of the matter complained of, the ordinary reasonable viewer was led to an understanding that Dr Chau’s membership of the Communist Party, the United Front Work Department, the CPPCC and the secret lobbying were activities of an untoward, clandestine and sinister nature involving him assisting China in its foreign interference in Australian political affairs.

51    I also reject the publishers’ argument that imputation 2 was not defamatory. I am of opinion that an ordinary reasonable viewer would think the less of a person who was a member of a clandestine arm of a super power engaged in lobbying in Australia. The imputation suggests, in the context in which the program conveyed it, that Dr Chau had a secret agenda to pursue as a member of a surreptitious agency of a foreign power, China. The program told the viewer that ASIO had concerns about “a concerted campaign by the Chinese government and its proxies to infiltrate the Australian political process to promote its own interests”, being just the sort of activity a secret lobbying arm of the Government would undertake. The thrust of the defamatory meaning is that Dr Chau is not what he appears to be on the surface because of his membership of a secret foreign Government organisation that does clandestine lobbying for it in this country. The viewer would think Dr Chau was not transparent but acted surreptitiously in Australia in pursuing China’s interests. The fact of the secrecy in these lobbying activities would raise a concern in the mind of the ordinary reasonable viewer about its legitimacy and Dr Chau’s involvement in that conduct.

Imputation 3: Dr Chau donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the Chinese Communist Party

52    The publishers argued that imputation 3 was not conveyed. In particular they relied on what White J had said in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 55 [94], namely:

The word “bribe” does not have a precise meaning as it is capable of encompassing more than one form of dishonest conduct by, or in relation to, a public official. However, I consider that the ordinary reasonable reader would understand that a bribe usually involves the elements of a payment to a public official personally or to someone else on the official’s behalf; a reasonably close relationship between the payment, on the one hand, and an expected decision or action by the public official, on the other; and the payment being made to secure or induce a benefit to the payer from the decisions or action in question. The word bribe is not in ordinary understanding used to refer to the payments made by donors to political parties, or to political candidates, which are unconnected with any particular executive decision making, even if the motivation of the donors is to promote goodwill by the recipient towards themselves.

(emphasis added)

53    The publishers argued that there was no reason why the ordinary reasonable viewer would have understood the program to be conveying that Dr Chau’s donations of over $4 million to the major political parties during the preceding decade were, or could be understood, as bribes. They pointed to Mr Raby’s comments that payments by wealthy Chinese individuals were very much part of the way in which they do business and were calculated to enhance respect for the donor. They contended that it would be far-fetched for the ordinary reasonable viewer to consider that such donations were bribes.

54    I reject the publishers’ argument. The program commenced with Mr McCaul, Mr Jennings and Mr Uhlmann all emphasising Chinese attempts to influence elections and the political systems of other nations, including Australia. In Mr Jennings’ words, “naked influence buying is something which is damaging to Australia’s system”. So much so, that Mr Uhlmann had said in his introduction ASIO had warned that espionage and foreign interference were occurring in Australia on an unprecedented scale. He named the Chinese Communist Party as the perpetrator. He said that the program’s investigation “reveals that business leaders allied to Beijing are using millions in political donations to the major parties to buy access and influence, and in some cases to push policies that may be contrary to Australia’s national interests”.

55    The ordinary reasonable viewer would have been left in no doubt at the conclusion of the program that Dr Chau was one of the “business leaders allied to Beijing” to whom Mr Uhlmann referred. It told viewers that over the previous decade Dr Chau had donated more than $4 million to the major parties and he was one of “two billionaire donors with especially close ties to the Chinese Communist Party” whom “ASIO singled out”. The concept of buying access and influence falls within the natural and ordinary meaning of a “bribe”. The Oxford English Dictionary online defines “bribe” as: “a sum of money, gift, or other inducement which is given to another person in order to influence his or her behaviour, especially to persuade him or her to act in one’s favour”. The Macquarie Dictionary online defines “bribe” as “anything of value, as money or preferential treatment, privilege, etc, given or promised for corrupt behaviour in the performance of official public duty, anything given or serving to persuade or induce”. Of course, in Hockey 237 FCR 33, White J was dealing with a different publication and explaining how he had arrived at his findings about it, not laying down general propositions of law as to how an ordinary reasonable person would understand all publications.

56    Moreover, the matter complained of sought to draw a direct connection between Dr Chau’s invitation to John Ashe, as President of the United Nations General Assembly, and the payment of USD200,000 through Ms Yan’s communications to induce him to attend at the Imperial Springs Resort conference that Dr Chau organised. The program conveyed in graphic terms how Mr Huang, the other billionaire “with especially close links to the Chinese Communist Party”, had made perfectly clear that his foreshadowed donation to the Labor Party of $400,000 came at a price. That fact was reemphasised by the program drawing a connection with his payment of $5,000 to Senator Dastyari and the latter’s willingness to depart from the Labor Party’s policy on the South China Sea at an event when he spoke next to Mr Huang.

57    Mr McKenzie told viewers that “the question ASIO has been probing is what he (Dr Chau) wants from his donations” and that the Director-General of ASIO had warned the Australian party officials that those donations might come with strings attached. And, Mr McCaul explained why United States law expressly prohibited foreign money donations in relation to elections. He said, of Chinese influence in Australia: “what better way to do that than to influence political figures through … foreign contributions?”.

58    The ordinary reasonable viewer of the program would be drawn to the conclusion that because Dr Chau was a person who had “really deep and serious connections to the Chinese Communist Party” and was a focus of ASIO’s concerns, he had made his significant donations to Australia’s political parties in order to influence politicians to take, not just a favourable approach towards the interests of China, but rather to advance positively the interests of China. The viewer would have been led to understand that ASIO’s warnings to the Australian party officials were that Dr Chau’s donations came at a price, or with strings attached, just as Mr Huang had overtly demonstrated by withdrawing his promised $400,000 donation and paying Senator Dastyari $5,000 for an ALP legal bill. This is similar to the understanding of a “bribe” that White J described in Hockey 237 FCR at 55 [94].

59    In my opinion, imputation 3 conveyed that Dr Chau had made his political donations with the intention of corrupting the recipients to act other than in the way they should. On balance, I am satisfied that it is more likely than not that the ordinary reasonable viewer would have understood the matter complained of to be saying that this was the purpose for which Dr Chau made his donations. After all, the matter complained of emphasised the very significant sums of money being paid to political parties on both sides. Dr Chau’s purpose in making his donations, the ordinary reasonable viewer was led to think, must have been to persuade or influence, corruptly, both sides of politics to favour causes close to his heart, which the program made clear, were very much aligned to the interests of the Chinese government and the Chinese Communist Party.

Imputation 4: Dr Chau paid Sheri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in infiltrating the Australian Government on behalf of the Chinese Communist Party

60    Dr Chau argued that the program conveyed imputation 4 because of its assertions of the closeness of his relationship to Ms Yan. That association was a reason for ASIO having an interest in him. The program characterised Ms Yan as a spy, including in the re-enactment of the ASIO raid on her home, the reference to the discovery there of classified documents on the work of Chinese intelligence and the investigation into her husband. Prof Fitzgerald described Ms Yan as being very closely connected with some of the most powerful and influential families and networks in China and declaimed: “Once you know that you don’t need to know much more”. Dr Chau also relied on the program’s discussion of the bribery case involving Ms Yan and Mr Ashe and in particular its portrayal that Dr Chau was working hand in glove with Ms Yan to bribe Mr Ashe as the President of the United Nations General Assembly.

61    I reject Dr Chau’s argument. There is nothing in the matter complained of to convey to the ordinary reasonable viewer that Dr Chau knew that Ms Yan was an espionage agent. As I noted in dealing with imputation 1, the matter complained of would have conveyed to the ordinary reasonable viewer that Dr Chau was involved in activities amounting to foreign interference in Australia’s domestic affairs, but not in espionage. The program did not suggest to the ordinary reasonable viewer that Dr Chau had any knowledge of the raid on Ms Yan’s house, ASIO’s suspicions about her being a spy or of any other activity on her part that could be described as spying. Nor did the program suggest that Dr Chau did or knew anything involving Ms Yan’s actions in Australia.

62    True it is that Dr Chau’s association with Ms Yan provoked ASIO’s interest in him, but there was nothing to suggest that Ms Yan did anything in Australia to assist Dr Chau in such a sinister activity as “infiltrating the Australian government on behalf of the Chinese Communist Party”. Such a meaning is strained and artificial. It does not convey what the ordinary reasonable viewer would have understood the program to be saying about Dr Chau’s knowledge of Ms Yan or her activities in relation to espionage. The matter complained of portrayed a direct link between Dr Chau and Ms Yan together bribing Mr Ashe. But the ordinary reasonable viewer would have understood the difference that the program was drawing between foreign interference, through payments of money, including bribes, and other activities amounting to espionage. The viewer may have asked himself or herself about the possible link between Mr Uren’s retention of secret documents, Ms Yan’s relationship to him and the Chinese State on the one hand and Dr Chau on the other. However, the program did not create a reasonable basis on which the viewer could understand it to convey that Dr Chau knew that Ms Yan was a spy or that he had enlisted her to undertake any activity in Australia.

Imputations 5 and 6: Dr Chau paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe and was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.

63    These two imputations can be considered together, as the parties’ arguments did. The publishers argued that neither imputation 5 nor 6 could be conveyed because there was nothing to suggest that Dr Chau knew the payment to Mr Ashe was a bribe. They contended that the program discussed Ms Yan’s guilty plea in the US proceeding in circumstances where Mr McKenzie expressly stated that there was no suggestion that Dr Chau knew that the payment was illegal, that he had never been charged with any offence and that he denied any wrongdoing. They pointed out that the indictment referred to Dr Chau, using the codename “CC3”, but did not suggest that he was implicated in the act of bribery. They contended that the ordinary reasonable viewer would have understood that the US authorities had determined not to pursue Dr Chau and therefore it would not be reasonable for the viewer to make the leap from there possibly being grounds for suspecting that Dr Chau had been involved in bribery, as a knowing participant, to the assertion that he was guilty of having acted as a principal. They argued that, in the context of the ordinary reasonable viewer’s awareness that Four Corners was a careful, long-running flagship current affairs program, he or she would have understood that the indictment and guilty plea of Ms Yan was the end point of that investigation and that the program was not leaving open the possibility of a further prosecution of Dr Chau.

64    I reject the publishers’ arguments. The discussion of the bribery case in the matter complained of commences with the statement by the United States Attorney for the Southern District of New York that there was a “wide-ranging corruption scheme”, involving one of Dr Chau’s companies, presumably (the ordinary reasonable viewer would think) at his direction, inviting Mr Ashe, in his capacity as President of the United Nations General Assembly, to Dr Chau’s resort to speak at a conference hosted by him. The viewer would infer that Dr Chau sent the invitation (the draft of which Mr McKenzie read out) seeking to make Mr Ashe his “sincere friend in Guangdong province” and was offering a permanent convention venue for United Nations meetings. The program’s interpolation that there was no suggestion that Dr Chau knew that it was illegal, under United States bribery law, to make a payment to Mr Ashe as a United Nations official, in its statement that Dr Chau had not been charged with any offence and denied any wrongdoing, would not detract from the overwhelming impression conveyed by the matter complained of. That impression was of Dr Chau being the moving force behind the payment which, on its face, was made corruptly to induce Mr Ashe to do something that he would not otherwise have done, namely go to the conference that Dr Chau was hosting. Moreover, the terms of the invitation, including the suggestion that the resort could be a permanent convention venue for United Nations meetings, could hardly be described (or understood by the viewer) as innocent, anodyne or unconnected with Dr Chau’s payment of a very large sum of money to the President of the General Assembly.

65    The ordinary reasonable viewer would not have regarded the statements that Dr Chau did not know that it was an offence under New York law to pay a United Nations official, or that he denied wrongdoing as simply suggesting a suspicion that Dr Chau’s payment was a bribe, or part of a corrupt scheme to bribe Mr Ashe, as opposed to an assertion of guilt. Mr McKenzie had stated earlier in the program “Dr Chau used Sheri Yan as a consultant, somebody able to open up the right doors”. He introduced Dr Chau’s involvement in the bribery case by telling the viewers that “one of the events that led to Sheri Yan’s arrest unfolded at the luxury Imperial Springs resort which is owned by none other than Australian political donor Dr Chau Chak Wing”. The use of the words “none other than” was calculated to suggest that it was no coincidence that Ms Yan and Dr Chau were involved in the events together. The detailed attention given to the bribery allegations in connection with Dr Chau’s involvement was calculated to lead the ordinary reasonable viewer to understand that the program was doing more than raising a mere suspicion that Dr Chau may have been involved in paying a bribe to Mr Ashe. The ordinary reasonable viewer was invited to conclude that there was more than simply suspicion attaching to Dr Chau’s actions in making the invitation to Mr Ashe to attend his resort, paying him USD200,000 to attend and offering the resort’s facilities to the United Nations for future conferences: Trkulja 263 CLR at 160–161 [32].

66    Rather, this was a case where the viewer was invited to put to one side the program’s disclaimers of Dr Chau’s guilt and to be drawn towards the conclusion expressed in each of imputations 5 and 6. This part of program would convey the impression that, as Lord Keith of Kinkel said in Lloyd v David Syme & Co Ltd [1986] AC 350 at 363G–H; (1985) 3 NSWLR 728 at 734 C–D, “the author is anxious to wound but fearful to strike too obviously”. Their Lordships cited their earlier decision in Jones v Skelton (1963) 63 SR (NSW) 644 at 651 as to how an ordinary reasonable reader (in that case) could understand the meaning that a publication conveyed, where Lord Morris of Borth-y-Gest said:

The reader, a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place – an explanation which the writer of the letter did not care or did not dare to express in direct terms

(emphasis added)

67    Here, the account of the suspicious circumstances and Dr Chau’s involvement in the payment to Mr Ashe would have guided the ordinary reasonable viewer to think that the program was conveying that Dr Chau had paid the money as a bribe and that he knew that he was paying a United Nations official in a corrupt way. The matter complained of had told viewers that ASIO’s interest in Dr Chau arose partly from his association with “a woman described as an ‘older friend’”, namely Ms Yan, whom it said had pleaded guilty to bribing Mr Ashe to speak at Dr Chau’s resort and was jailed for doing so. It dramatised her arranging for Dr Chau to pay Mr Ashe and become “his sincere friend in Guangdong province”. No doubt, since the program did not state that Dr Chau was innocent of any wrongdoing, the publishers concluded that the ordinary reasonable viewer, in light of the disclaimers, would have considered that it was conveying, at least, that there were reasonable grounds to suspect that he had done what imputations 5 and 6 stated. But they did not stop there.

68    In my opinion, the ordinary reasonable viewer would not have taken the rose coloured glasses approach that the publishers suggest to this part of the program. The program linked Dr Chau and Ms Yan closely, including in particular the giving of the invitation to Mr Ashe to speak at the Imperial Springs resort. The viewer was invited to ask himself or herself why was Dr Chau offering Mr Ashe a permanent convention venue for United Nations meetings and paying him USD200,000 to speak at a conference there? And why did Ms Yan go to jail after pleading guilty to bribery charges involving the wide-ranging corruption scheme centred at the United Nations about which the program spent some detail and time, if all that it was conveying in relation to Dr Chau was seeking to raise only a reasonable suspicion that he was guilty, as the payer of the money and the giver of the invitation?: Favell 221 ALR at 190 [10]–[12]; Lewis [1964] AC at 285.

69    The ordinary reasonable viewer would have understood that, notwithstanding the program’s disclaimers (that there was no suggestion that Dr Chau knew that it was illegal under US law for Mr Ashe to receive the payment, that he had never been charged with any offence and that he denied any wrongdoing), in fact Four Corners was asserting that the payment was corrupt and a bribe. That is because first, Dr Chau’s payment was part and parcel of the very bribe for which Ms Yan had pleaded guilty and was imprisoned, and secondly, like Ms Yan, he knew that the purpose of the payment was to secure the United Nations’ General Assembly President’s attendance at the conference he was hosting and the prospect of its future use of the resort for its meetings.

70    I reject the publishers’ argument that the ordinary reasonable viewer would not draw a more anodyne inference than those in imputations 5 and 6 because he or she would be aware of the careful way in which Four Corners presented its programs and the significance of its disclaimers. The program’s reference to the use of a codename for Dr Chau in the indictment and the absence of any attempt by the US authorities to bring him to justice in that country after the long investigation by those authorities would not have caused the viewer to take a more benign view of Dr Chau’s conduct that made it somehow less culpable than Ms Yan’s. I am satisfied that those considerations did not overcome the impact on the ordinary reasonable viewer of the program’s portrayal of Ms Yan’s guilty plea, her prison sentence and Dr Chau’s direct connection to the payment to Mr Ashe which it told viewers was the bribe the subject of that plea and sentence. The program led the viewer to understand that Dr Chau’s payment to Mr Ashe in the circumstances it described was actually corrupt. The program sought to raise a great deal of smoke around Dr Chau’s activities and his motivations for making payments to Mr Ashe and other political figures. It emphasised that Ms Yan had pleaded guilty to and been jailed for bribery charges without any other context than that she had arranged with her “old friend”, Dr Chau, to pay Mr Ashe USD200,000: Lewis [1964] AC at 285.

71    The broad impression conveyed by the program, in my opinion, was that Dr Chau, acting through Ms Yan, had paid USD200,000 as a bribe to Mr Ashe and was knowingly involved in a corrupt scheme to do so. The ordinary reasonable viewer would have drawn the implication that the program was making the derogatory imputations 5 and 6: Trkulja 263 CLR at 160–161 [32]; Favell 221 ALR at 190 [10]–[12].

The impact of the defamation on Dr Chau

Dr Chau’s background

72    Dr Chau is married with three children, including his daughter Winky. In the 1990s, he founded the Kingold Group of companies in Guangdong, China. He is the proprietor and chairman of Kingold which conducts a wide variety of businesses including in investment, property, commerce, banking (through Guangdong Huaxing Bank), schooling (through a number of kindergartens, a primary school and secondary school in Guangdong) and publishing in Guangdong, and in Australia, Australian New Express Daily.

73    Winky was the managing director of Australian News Express Daily, which had ceased being printed but was still being published online when she gave evidence. She had been the ethnic policy advisor to successive Premiers of New South Wales from about 2004 to about 2008.

74    Dr Chau does not speak English and gave his evidence through an interpreter. As I noted above, Dr Chau has had a particular interest in promoting education. In about 2003, Dr Chau met Ross Milbourne, the Vice Chancellor of UTS from 2002 to 2014. Mr Milbourne gave evidence that on that occasion the two men discussed international education and UTS’ philosophy about this. From then Mr Milbourne met with Dr Chau about once a year until 2009.

75    Mr Milbourne said that, in 2009, UTS wished to appoint Mr Gehry to design its new business school. Dr Chau understood that UTS would struggle to raise funding for the program. He expressed interest in supporting it and discussed it with Mr Milbourne in Australia and at his residence in Guangzhou where he offered to donate $20 million to enable UTS to engage in Mr Milbourne’s words, “the world’s best architect”. Dr Chau also offered then to provide another $5 million in scholarships which Mr Milbourne said “really, was a surprise, that was quite an amazing offer which we hadn’t previously discussed”. Dr Chau said that his motivation for those donations of $20 million for the building and $5 million for the scholarships was that, as “an Australian citizen I should make more charitable contributions where I could to Australia”. UTS awarded Dr Chau an honorary degree in 2014.

76    In the event, Mr Gehry designed and UTS built and completed the Chau Chak Wing building. In 2015, his Excellency the Governor-General opened it along with Mr Milbourne (who had retired by this time) and Dr Chau. Other than at the opening, Mr Milbourne met Dr Chau only once more shortly after he retired.

Dr Chau learns of the program

77    Dr Chau learnt about the matter complained of when his daughter, Winky, telephoned him soon after the broadcast. He did not see the program until it was played during the hearing. He obtained a translated transcript of the program shortly before the hearing. It was unclear whether this was the first written version of the transcript that he saw. After Winky saw the broadcast, having been alerted by a person who had seen a promotion for it, it left her in shock and surprised that it had defamed her father. She telephoned him after viewing it. Winky told him that the program had said that he had bribed Mr Ashe, that he was a very corrupt businessman, that his political donations were bribes, that his donations in Australia were made to serve the interests of China and the Chinese Communist Party and that he was a member of the Chinese Communist Party and the CPPCC.

78    Dr Chau was very distressed as soon as he heard Winky’s description of the program. In addition he said that she told him that the broadcast had “created a very big threat to me”. He felt that the content of the program “was completely made up”. He said:

I was in agony, and I couldn’t sleep for days, and I couldn’t eat well for days, and my blood pressure went very high, and I had to make a number of visits to the doctor, and I was in breakdown, and I lost many weight. Over the years since it was aired I was on medication. I have been on medication. It was because the Four Corners program by ABC my body became this bad. This program is still online, and it is not yet taken down.

(emphasis added)

79    Winky said that when she told her father about the program he was really emotional and hurt. She said that he could not understand why he had been so badly defamed and accused of being a spy and corrupt and that “he kept asking me why and he just couldn’t believe what has been said”.

80    Dr Chau only saw one or two translations of the transcript of the program before the trial and thus was reliant on what Winky and others told him about what it conveyed. Accordingly, in assessing any hurt to Dr Chau’s feelings by reason of the publication of the matter complained of, it is necessary to consider the information that he had about it and the extent to which the publishers can be held responsible for him receiving information to that effect.

81    Where defamatory matter is published in a language that a claimant does not speak fluently, or perhaps at all (such as Dr Chau), a natural and probable result of the publication is that others who understand and speak both languages will tell that person about it. A publisher cannot be responsible for a mistranslation or for a communication that inaccurately conveys its contents or thrust to the claimant. However, if the person who tells the claimant accurately informs the claimant of the sting, or an imputation that the publication conveys, such a communication is a natural and probable result of the original publication: John Fairfax & Sons Ltd v Cojuangeo (1988) 165 CLR 346 at 350 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ; Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90 at 118–119 [53]–[54] per Besanko, Wigney and Bromwich JJ.

82    I find that on 5 June 2017 or very soon after the broadcast Winky accurately conveyed to her father the substance of imputations 2, 3, 5 and 6. Dr Chau said that each imputation was false. He was very distressed by the publishers making each of those imputations about him because “they were all made up, and all these made-up facts impacted hugely on my body as well as my business”. Although Dr Chau included in his answer that I have set out in [78] above the effect on him of all the imputations, including 1 and 4 (that I have found were not conveyed), I am satisfied that his overall reaction was not substantially affected by them. First, he did not mention anything about the subject matter of imputations 1 or 3 in recounting what Winky told him, namely that he had been accused of spying or engaging in espionage or that he knew Ms Yan was a spy. His distress and hurt feelings came substantially from his accurate understanding that his daughter had given him of the four imputations that I have found that the matter complained of conveyed and from the reactions of others to him about the program.

83    When asked what he felt about the program still being available online, he said that he felt a continuation of similar feelings that he had experienced since learning of the original broadcast, and:

What I felt is that I am a person who is very loyal to Australia, and it is my ongoing wish that the country of Australia becomes stronger and wealthier. And I have done so much for Australia. And I didn’t, I don’t have any personal agenda, nor do I ask for anything back. And such a degraded matter would happen to me.

(emphasis added)

84    Dr Chau said that many people who knew him called in June 2017 him after the broadcast to express their concerns. These included:

    Wu Yun who was in Guangdong. She informed him that the program was available on the internet in China and Hong Kong. That made him very distressed. She also said that many prospective purchasers of properties that Dr Chau’s group was selling had decided to withdraw their interest or cancel contracts.

    Zhang Xi Xien, the head of Guangdong Radio and Television. He asked Dr Chau if he knew of the broadcast. Mr Zhang told him the program had labelled him very corrupt and was doing great damage to his reputation. Dr Chau told him that he would take legal proceedings as soon as possible. Mr Zhang’s call also made Dr Chau feel very distressed.

    Son Hi, the Vice-Governor of Guangdong Province. He asked Dr Chau if he was aware of the program and told him to “settle this… well as soon as possible otherwise there will be very big impacts on my reputation” (which I infer was advice to take proceedings promptly to clear his name).

    Xuang Jun Fung, the head of the Guangdong Banking Regulation Authority. He told Dr Chau that the program was being reported all over the internet and that he had to move very quickly otherwise his banking business would be affected. Dr Chau said “He made it sound very serious”.

    Jiang Xi Feng, the president of Kingold and the person in charge of the group’s finances. She also told Dr Chau that he needed to resolve the matter quickly because of the likely damage to the group’s business and sales. She said that “this matter was circulating a lot in society”.

85    Winky said that in the days following the program’s broadcast she received at least 15 calls and messages from people who had known the family for a long time expressing shock, surprise and disbelief. These included an email from Jim Harrowell AM, a well-known solicitor, saying that his thoughts were very much with Dr Chau and the whole family. He wrote:

I thought the comments by Geoff Raby were very balanced but the story seemed to ignore the fact that your father and family are Australian citizens and have been for many years and have been very generous with financial support to many Australian organisations and in helping build bridges between Australia and China for the mutual benefit of both countries.

I am sure your family will be engaging expert media people to help manage this business it will be a challenge. Western media too often focus on negative stories about China when there are so many positive stories to be told.

Dr Chau’s reputation

86    Mr Milbourne gave evidence that Dr Chau’s reputation was of his being a very generous, very honourable and very ethical man and that “He had a high reputation for integrity, no question”. He said that Dr Chau was also known for his keen interest in Australian-Chinese relations, especially in offering educational opportunities and scholarships.

87    Since 2003 David Ellis has been the director of museums and cultural engagement for the University of Sydney and responsible for its museums and art galleries. He first met Dr Chau in 2015, after learning in 2014 of his interest in funding a new museum for the University. At the meeting, Dr Chau confirmed that he would donate $15 million for the capital works to build a new museum. He said that, later, the University had offered to name the museum after Dr Chau. Subsequently, Mr Ellis met with Dr Chau on several occasions both in China and in Sydney. At the time of the trial, Mr Ellis said that the Chau Chak Wing Museum would open in about five weeks’ time.

88    Mr Ellis said that about 18 months before the broadcast, The Sydney Morning Herald website published an article headed “Are Chau Chak Wing’s circles of influence in Australia-China ties built on hot air?” (the Fairfax website article that I discuss more fully in [98] below). Mr Ellis said that before the publication of the Fairfax website article, Dr Chau was known as positively supportive of Australia-China relations. He said that after the Fairfax website article’s publication, there was a flurry of emails and phone calls asking whether the University was concerned about that article. He described those as “negative comments about ‘How could we accept funding from someone like Dr Chau?’ after the allegations were made against him”.

89    Mr Ellis also said that prior to the publication of the Fairfax website article, the University and he had made investigations of Dr Chau’s background, because they did so for all proposed benefactors. He said that those investigations showed that Dr Chau was known as a very generous, indeed, one of Australia’s most generous, philanthropists in the cultural and educational sphere. He also said that, however, Dr Chau was “known as a quiet giver… not on the radar as a philanthropist” and a private individual.

90    Mr Ellis said that, at the time of the Four Corners broadcast, the comments about the Fairfax website article had “not completely, but very much died away”. He saw the program when it was broadcast and said that after it he received several communications about Dr Chau raising the same issues again about how the University could accept funding from someone like Dr Chau, enquiring “what if the allegations are true?” and “what’s going on?” The effect at that time on Mr Ellis was that he was concerned. He attended a meeting of the Council of the Friends of Nicholson Museum at which comments were raised that the University had accepted money from, and was naming the new building after, Dr Chau.

91    The Hon Warwick Smith, a former member for Bass in the House of Representatives from 1984 to 1993 and 1996 to 1998 and, in the latter term, Minister for Family Services, also gave evidence. He was Australia’s first Telecommunications Ombudsman. At the time of the trial, Mr Smith was the chair of the International Engagement Committee of the Business Council of Australia, and a member of the Council itself, chairman of Ord Minnett and Australian Capital Equity Group, that had a substantial shareholding in the Seven West media group. He also had been chairman of the New South Wales board of the Australia and New Zealand Banking Group Ltd (ANZ), and of ANZ China, and was, for a long time, a board member of the Shanghai Daily News, a newspaper publisher in Shanghai.

92    Until February 2020, Mr Smith had been chairman of the Australia-China Business Council for the previous eight years. That organisation had succeeded the Australia-China Foundation. He said that the Council and Foundation were “basically Australia’s focus on soft diplomacy arrangements” between the two nations and were ‘attached’ to the Department of Foreign Affairs and Trade in administering education programs and cultural exchanges. Mr Smith said that the chairman of the Council (and Foundation) also chaired a community committee that assessed funding applications each year for presentation to Ministers.

93    Mr Smith first met Dr Chau about 20 years ago in connection with the Australian Government winning gas contracts in China. After this, over the years Mr Smith saw Dr Chau in China, Sydney and Canberra. Mr Smith saw Dr Chau in Guangzhou and at the Imperial Springs resort in connection with their common business dealings in media, banking and advertising. He looked at Dr Chau’s developments and went to two conferences about the media at the resort.

94    Before the broadcast of the program, Mr Smith said that in both his business and political work Dr Chau was known as an Australian citizen of long standing and always regarded in China and Australia as an important person who was constructive in all the endeavours in which he participated, including in building business links between the two countries. Mr Smith said that those interactions occurred with visiting Chinese delegations here or on visits by Prime Ministers and Premiers and others to Guangzhou, which he knew of and attended from his long term Chairman of the Australia-China Business Council. He said that Dr Chau was “based in integrity”, including in commercial dealings when his group applied for loans with ANZ and from his knowledge of Dr Chau during the ten years that Mr Smith had been associated with Macquarie Bank in China. He said that Dr Chau was regarded as a philanthropist and a man of good and unquestioned reputation.

Earlier proceedings based on similar defamatory publications

95    In August 2016, Dr Chau brought defamation proceedings in this Court against Nationwide News Pty Ltd, the publisher of The Daily Telegraph and its sister company News Life Media Pty Ltd, which had published print and online articles on 16 October 2015 headlined “Billionaire developer embroiled in scandal” and “Australians caught up in United Nations bribery and money laundering scandal” (the 2015 articles). He claimed that the 2015 articles conveyed imputations that he had “bribed Mr John Ashe; UN Ambassador from Antigua and Barbados” and “bribed Mr John Ashe; UN ambassador from Antigua and Barbados, $200k to attend and speak in his official capacity, in a private conference near Guangzhou, China”.

96    On 27 October 2016, Dr Chau, Nationwide and News Life agreed to settle those proceedings and subsequently entered into a deed of settlement and release. The settlement involved Nationwide and News Life agreeing to pay Dr Chau $65,000 and publishing the following apology (which occurred on 23 December 2016):

Chau Chak Wing

An article headlined "Billionaire Developer embroiled in scandal" in The Daily Telegraph [or News.com.au] on 16 October 2015 implied that Dr Chau Chak Wing was under investigation in the US over allegations he bribed a former president of the UN General Assembly. The Daily Telegraph acknowledges that such allegations are false and unreservedly apologises to Dr Chau Chak Wing for any hurt and embarrassment caused by the article.

97    Dr Chau said that he had agreed to accept $65,000 and the apology by Nationwide and News Life because “they were very proactive in their apology”.

98    Dr Chau also brought separate defamation proceedings against Fairfax and another journalist in respect of the online publication, also on 16 October 2015, of the Fairfax website article. After a trial, Wigney J found in his reasons published on 22 February 2019 that the Fairfax website article conveyed three imputations, namely that Dr Chau first, bribed the President of the United Nations General Assembly, Mr Ashe, secondly, had participated in a conspiracy to bribe the President of the General Assembly and thirdly, had acted in so seriously wrong a manner as to deserve extradition to the United States on criminal charges, including charges of bribery: Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [12], [75], [82] and [87]. The Fairfax website article remained online up to the time of his Honour’s judgment (at [366]).

99    His Honour considered that an award of general damages of $250,000 was appropriate but reduced it by $25,000 under s 38(1) of the Defamation Act 2005 (NSW) to take into account the mitigating effect of the $65,000 settlement with Nationwide and News Life. His Honour found (at [359]):

The defamatory imputations in those proceedings were similar in many respects to the imputations in this proceeding. It may be accepted that a significant portion of that settlement sum represented or comprised compensation for the hurt to Dr Chau’s feelings and the damage to his reputation. It may equally be inferred, however, that the Daily Telegraph and the online version of the Herald are quite different publications with different readerships in terms of demographics. As s 38(1)(e) is to be applied in a broad way, it would appear to be relevant to have regard to the different circulation and readership of the two publications in assessing the extent to which Dr Chau has already received compensation for the same hurt or damage.

(emphasis added)

100    Wigney J also awarded a lump sum of $55,000 in lieu of pre-judgment interest for the damage done by the Fairfax website article. Counsel informed me that the Fairfax website article had been viewed by a total of about 12,000 people.

101    Dr Chau was upset by the Fairfax website article’s three imputations to the effect that he had bribed Mr Ashe because they were false, damaging and hurtful. He said, in cross-examination, that he felt that Wigney J’s award was just and fair. When asked if he considered that the judgment had cleared his name, he said, and I accept:

Only partly. The part that caused that caused bigger impacts was still unsettled. Because the impact of the ABC and the Four Corners program was bigger. …It has been many years, and the loss of my reputation and in terms of finance, was huge. And I’m taking medicines every day, even now. Every time I remember this, I feel really distressed.

(emphasis added)

102    He felt satisfied that Wigney J’s decision had been reported in Australia but did not agree that reporting had undone the damage of the Four Corners program.

Damages

The damage to Dr Chau’s reputation

103    The broadcasts of the program were viewed by over 1 million people. The online version is still available for accessing, streaming and viewing and, at the time of the trial, people were still doing so. Over the whole period between the first publication on 5 June 2017 and 20 September 2020, a total of 59,882 page views and 11,464 playings of the program occurred. This included 6,227 page views of the program’s webpage between 5 December 2018 and 20 September 2020 on the ABC’s website, 65% of which were views from Australia, and 1,638 playings of the program, 66% being playings by persons in Australia.

104    The evidence of Mr Milbourne, Mr Ellis and Mr Smith demonstrated that Dr Chau had a fine, unblemished and unquestioned reputation before the publication of the Fairfax website article and, before the publication of the matters complained of, that reputation had substantially recovered.

105    The broadcast of the program besmirched that reputation. Mr Ellis’ evidence about the concerns raised about the University of Sydney accepting Dr Chau’s money and naming the new museum after him, was a clear example of the very kind of damage that the imputations (that I have found) were calculated to convey.

106    The four imputations struck at the heart of Dr Chau’s good name for his integrity, philanthropy, and constructive contributions to developing a positive relationship between Australia and China. Dr Chau’s and his daughter’s evidence of the immediate impact of the program made clear how profoundly his reputation had been affected.

107    The Vice-Governor of his home province, Mr Son, had told Dr Chau of the need to “settle this” quickly. While Dr Chau did not expressly say that this conversation or the others after the broadcast that he recounted had caused a specific reaction, I am satisfied that these substantially contributed to the “agony” and distress that he described. After all, Dr Chau was a prominent and successful man both in Guangdong (and elsewhere in China) and Australia. It is a natural and human reaction to comments of the kind Dr Chau described from powerful and important figures in one’s life, such as those of the Vice-Governor, to feel distress and agony. I infer that Dr Chau’s reaction bespoke a sense of deep public humiliation, that the persons with whom he spoke after the broadcast, in one way or another, suggested that it had had, as was the case, a substantial and adverse impact on his reputation. As the publishers’ submissions were at pains to stress, Four Corners is known as a serious, investigative journalism program. Thus, what it said would be understood by viewers to be thoroughly researched and soundly based.

108    These characteristics of the program would cause the damage from the publication of false imputations, like the four I have found it conveyed, to be the more potent. For a man who mixed with Prime Ministers and Provincial Vice-Governors, leading bankers and businessmen to be publicly and falsely accused of bribery of the President of the General Assembly of the United Nations and of Australian political parties and to be a member of a clandestine arm of the Chinese Communist Party was calculated to inflict on Dr Chau, as I found it did, personal and public humiliation and disgrace. The imputations struck at the core of Dr Chau’s previously high reputation for integrity, philanthropy and the promotion of a positive relationship between Australia, of which he was a citizen, and China.

109    I am of opinion that the imputations conveyed that Dr Chau was, in effect, a fifth columnist, and a man who paid bribes to Australian political parties and to Mr Ashe. They were very damaging to Dr Chau’s reputation. They call for a significant award of damages.

Compensatory damages – principles

110    In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60–61 Mason CJ, Deane, Dawson and Gaudron JJ said:

Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations" (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR at 150 per Windeyer J). The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation (Carson (1991) 24 NSWLR at 296-299). The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR at 150; Coyne [v Citizen Finance Ltd] (1991) 172 CLR 211 at 216; John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 at 142; McCarey v Associated Newspapers Ltd [No.2] [1965] 2 QB 86 at 107). Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant (Fleming, Law of Tom, 8th ed. (1992), p. 595).

(emphasis added)

111    An injury to feelings can be proved by evidence of others, for as Bowen LJ famously remarked “the state of a man’s mind is as much a fact as the state of his digestion”: Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483. In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1468]–[1469] Beazley, Giles and Santow JJA held that it is open for a court to award a claimant not only ordinary compensatory damages, but also aggravated damages, for injury to feelings for a publisher’s conduct that was improper, unjustifiable or lacking in bona fides, even though the claimant had not given evidence, provided that there was other admissible evidence to establish such an injury to his or her feelings. They cited with approval (at [1322]) the following passage from Lord Diplock’s speech in Broome v Cassell & Co Ltd [1972] AC 1027 at 1125E–G:

The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages … even in cases where there are grounds for ‘aggravated damages’

(emphasis added)

112    I reject the publishers’ argument that the evidence of Dr Chau’s hurt to feelings should be treated cautiously, particularly having regard to their contention that he may not have seen a transcript of the program until a few weeks before he gave evidence and only viewed it for the first time when it was played at the beginning of the trial. First, Dr Chau did not speak English. Thus, viewing the program without a voiceover in his native tongue would have been meaningless to him. Secondly, it was inherent in the publication of the matter complained of that Dr Chau would hear about the impact on his reputation from those who saw it and could understand what it said. He has not claimed (and I am not awarding) any damages to his reputation from publications outside Australia, such as in China. However, he could and did claim damages for hurt to his feelings caused by persons who were in China and spoke to him about the publication while he was there. Thus, for example, he felt distressed when the head of Guangdong Radio and Television, Mr Zhang, told him that the program had done “huge damage” to his reputation by portraying him as corrupt. Dr Chau also received a call from Vice-Governor Son, who told Dr Chau to “settle this well as soon as possible, otherwise there will be very big impacts on my reputation”.

113    The cumulative effect of the calls that Dr Chau received and his understanding, based on what those persons and his daughter told him that the program conveyed, viewed together with his account of his initial and ongoing reaction to the imputations when put to him by his senior counsel, was profound. He was deeply upset that the publishers’ program had conveyed each of the imputations or meanings about him and that they were false. My understanding of his evidence is that he reacted immediately to what his daughter and the other persons in China had told him that it conveyed in the immediate aftermath of the broadcast on 5 June 2017. Those persons had captured its substantial stings. I have set out his reaction at [78] when his daughter told him what the program conveyed. I find that Dr Chau was still upset having to deal again in his oral evidence with what the matters complained of had said about him.

114    It is obviously difficult to assess the impact on, and reaction of, a person in Dr Chau’s position, who must give his evidence through an interpreter, to a defamatory publication in a foreign language, that he (or she) cannot view, hear or read, except in, and with the possible limitations of, translation.

115    The publishers contended that because Dr Chau had only recently seen a translation and more recently viewed the program for the first time when it was played in Court, that this adversely affected the amount of damages that he could claim. In my opinion, his daughter captured and recounted to Dr Chau, immediately after the broadcast, substantially accurately the stings of imputations 2, 3, 5 and 6 which I have found were conveyed. Winky’s communication of the stings of the program to her father occurred in words not materially different from the substance of the imputations that I have found were conveyed.

116    A claimant who complains of being defamed often has his or her feelings hurt by the sting, as opposed to the actual words of the publication, especially where, as here, it is a lengthy broadcast that could not be repeated word for word in English or in translation, even if limited to the still lengthy portions that conveyed the imputations. In Tournier v National Provicial and Union Bank of England [1924] 1 KB 461 at 478 and 487–488, Scrutton and Atkin LJJ, respectively, held that in order to prove the words complained of as a slander, it is sufficient for the claimant’s evidence to establish that the publisher “used, in substance, the words, or the material and defamatory part of the words complained of” or “though not the very words pleaded, were words substantially to the same effect”. As Atkin LJ said (at 488):

No slander of any complexity could ever be proved if the ipsissima verba of the pleading had to be established

117    Likewise, in Buchanan v Jennings [2005] 1 AC 115 at 122 [5], Lord Bingham of Cornhill (giving the judgment of the Privy Council consisting of himself, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Dame Sian Elias) said:

Where an oral statement is complained of, it is rarely possible (in the absence of a recording, a transcript or a very careful note) for a plaintiff to establish the precise words used by the defendant. But the law does not demand a level of precision which is unattainable in practice. The plaintiff must plead the words complained of, but it is enough if the tribunal of fact is satisfied that those words accurately express the substance of what was said.

(emphasis added)

118    While the Judicial Committee were not suggesting that a claimant could plead a slander by simply stating the imputations that the spoken words conveyed, they were cognisant of the need for the law to be responsive to the realities of human experience. Here, in order to claim damages for injury to feelings, Dr Chau did not need to view the program in a language that he did not understand until an accurate translation was available for him to read or hear. He could still be (and I find was) hurt by what it said in substance about him, as soon as he heard about it from Winky and others. A court must be able to receive evidence of a non-English speaking claimant’s hurt to feelings from a defamatory publication in a case like this based on what others tell him or her was the substance of what the publisher said. And, if that substance is accurately distilled into a sting or meaning or imputation complained of in the proceeding, that the claimant receives from a third party, and that the court finds the defamatory publication conveyed, there can be no reason in principle not to treat the hurt to the claimant’s feelings caused by that communication (ie. at a time before he or she reads, hears or views the matter complained of, in or with a translation) as evidence of “damage by the publication”.

119    In his celebrated judgment in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150–153 Windeyer J explained the nature of damages for the tort of defamation. These damages are now more limited by ss 34–39 of the Defamation Act. His Honour said, still appositely (at 150):

It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways-as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. The variety of the matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations.

(emphasis added)

120    In discussing what compensation can be awarded, including for the effect of aggravating or mitigating factors, Windeyer J said (at 151):

That defamation may produce indignity and humiliation and that these can attract monetary compensation is no new doctrine. It goes back to the early Middle Ages, to a time before the king's courts gave any remedy for defamation: see Pollock & Maitland, 2nd ed. (1923), vol. 2, pp. 536–538. In 1928 Higgins J. remarked that it" seems to be right so long as the theory stands that 'the jingling of the guinea helps the hurt that honour feels' ": The Herald and Weekly Times Ltd. v. McGregor ((1928) 41 CLR 254 at 272). Insult, as well as injury to reputation, thus merits compensation… the satisfaction that the plaintiff gets is that the defendant has been made to pay for what he did. Guineas got from the defendant jingle more pleasantly than would those given by a sympathetic friend.

(emphasis added)

121    And, Lord Hailsham of St Marylebone LC, in Broome [1972] AC at 1070D–1071H, discussed the subjective element in damages for defamation along with the overall purpose of the ultimate award of damages at common law. He explained that one purpose of the award is to put the claimant in the position where, “in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a by-stander of the baselessness of the charge” (at 1071C–D) before citing the passage from Uren 117 CLR at 150 set out at [119] above. The Lord Chancellor discussed the measure of the damages at common law for the tort of defamation, of course not constrained by ss 34–39 of the Defamation Act, and said that “the whole process of assessing damages where they are ‘at large’ is essentially a matter of impression and not addition” (at 1072G).

122    The Defamation Act now places a not insignificant constraint on the use of impression by requiring in s 34 that the court (being a judicial officer even if there is a jury (see s 22(3)) “ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”. However, as Windeyer J explained in Uren 117 CLR at 151, harm can include a claimant’s feelings of indignation and humiliation, which, after all, are ordinary, and uniquely subjective in degree, human reactions to a perceived slight or unfair criticism.

123    Moreover, as Toohey J, with whom Dawson and McHugh JJ agreed, pointed out in Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237–238, persistence in a defence of justification may increase ordinary compensatory damages because it affects the harm suffered. Toohey J distinguished how an early withdrawal of the defamatory statement ordinarily would serve to reduce the harm that the claimant suffered, whereas persistence in seeking to prove it true may increase the scope of the publication and the effect on those to whom it is published. And, often the claimant will be affected by the uncertainty of the litigation’s outcome. In addition, McHugh J said (172 CLR at 241):

The jury had the opportunity – which is denied to an appellate court – of assessing the true character, feelings and sensitivity of the plaintiff. In Broome v. Cassell & Co. ([1972] AC at 1125), Lord Diplock pointed out:

“The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him.”

(emphasis added)

Assessment of compensatory damages

124    Here, Dr Chau received calls from not only his daughter, Winky, but also very senior persons in China, including the Vice-Governor of his home province, that brought home to him very powerfully that his reputation had been significantly attacked in the broadcast. He described the contemporaneous and then ongoing physical and emotional reactions that he experienced that continued to affect him to the time of his giving evidence. He made no claim for any injury to his health. I have treated his unchallenged descriptions of “being in agony”, not sleeping or eating properly for days after he first learnt of the sting from his daughter, as well as his high blood pressure and weight loss, as lay descriptions of his feelings and perceived physical reactions to the hurt and emotional pain that he was suffering.

125    It is no small thing to be accused, falsely on the evidence before me, by two large media organisations on the national broadcaster’s flagship investigative journalism program, Four Corners, of bribing the President of the United Nations, of making donations in Australia as bribes to political parties to serve the interests of China and of being a member of the Chinese Communist Party and the CPPCC and that he carries out the work of the secret lobbying arm of that Party.

126    The publishers argued that Dr Chau did not give any evidence that he thought that the program conveyed imputation 3 or the terms of imputation 6, and that the hurt to his feelings could not have been affected because those meanings were not matters that he understood or considered that the matter complained of conveyed about him or which upset him. They contended that his “evidence does not identify any particular hurt to his feelings referable to the program (as opposed to what his daughter told him about the program)” that could assist meaningfully in the assessment of his damages.

127    I reject the publishers’ argument. Critically, s 8 of the Defamation Act provides (or confirms the common law position) that a person has a single cause of action for defamation in relation to each defamatory publication about him or her, regardless of whether it carries more than one defamatory imputation about the person. The purpose of a pleading identifying imputations or meanings allegedly conveyed by a publication is to crystallise the senses in which a claimant contends he or she has been defamed. Those meanings are not the cause of action, although they help to define the real complaint. But, as I have noted in [111] above, Beazley, Giles and Santow JJA held in Marsden [2002] NSWCA 419 at [1468]–[1469] that a claimant in a defamation action who has not given evidence can be awarded substantial damages for hurt to feelings if there is admissible evidence that can establish an injury to his or her feelings. There is no requirement in the Defamation Act, including in s 34, that a claimant must give evidence that establishes a precise congruence between his or her understanding of the meanings conveyed by a defamatory publication and those meanings pleaded as imputations or that the Court finds to have been conveyed. The concern of the present law of defamation, as stated in s 34, is to give a person defamed a remedy in an award of damages that has an appropriate and rational relationship between the amount of damages awarded and the harm that the claimant suffered.

128    It is hardly surprising or irrational, in a causation sense, that Dr Chau felt hurt on hearing from his daughter what she conveyed to him as the stings of the broadcast. Those stings were not the “ipsissima verba” or precise words of the broadcast, but they captured, in less precise terms, overall what I have found the matters complained of conveyed. The role of an imputation in the trial of a defamation action is to identify what the trier of fact must decide was or was not, in substance, conveyed to the ordinary reasonable viewer, reader, listener or audience member by the publication. The assessment of damages for the publication to this hypothetical audience member of those constructs of meaning, involves creating “a product of a mixture of inextricable considerations” (Uren 117 CLR at 150) and “a matter of impression not addition” (Broome [1972] AC at 1072G). So long as a claimant accurately understands the substance of what was said (being what an imputation, as a legal construct, seeks to do) even if it does not match with precision the pleaded imputation, he or she can (not must) establish that the publication was a common sense cause of the harm to his or her feelings from his or her understanding of the sting: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ. There, Mason CJ referred to what Dixon CJ, Fullagar and Kitto JJ had said in Fitzgerald v Penn (1954) 91 CLR 268 at 277 and 278, namely that “it is all ultimately a matter of common sense” and that in “truth the conception in question [ie. causation] is not susceptible of reduction to a satisfactory formula”.

Should damages be assessed on the basis that these reasons will vindicate Dr Chau?

129    The publishers argued that the reasons that I give “can be expected to vindicate fully Dr Chau’s reputation”. They contended that if I found any of the imputations was conveyed, and given that there was no plea of truth, this was “not a case where the damages award needs to be calculated so as to ‘convince a bystander of the baselessness of the charge’ (Broome [1972] AC at 1071 per Lord Hailsham of St Marylebone LC)”.

130    I reject that argument as unsound in principle for the reasons given in Dingle v Associated Newspapers Ltd [1964] AC 371 by Lord Morton of Henryton (at 403–404) and Lord Denning (408–409) with whom Lord Radcliffe (at 400–401), Lord Cohen (at 407) and Lord Morris of Borth-y-gest (at 418–419) agreed (and see Lewis v Australian Capital Territory (2020) 381 ALR 375 at 421–422 [171]–[172] per Edelman J, with whose reasons on the issue of vindication, Kiefel CJ and Keane J agreed at 377 [22]). As Lord Morton said (at 404):

Such a method of assessing damages would do less than justice to the plaintiff, in my view, and it is based upon suppositions which may be unfounded. A judge cannot tell how widely his judgment will be reported and read, nor can he tell how far the plaintiff's general reputation will be improved by his complimentary remarks. A simple verdict of a jury in favour of the plaintiff will no doubt have a good effect on his reputation, and it is surely impossible to set a monetary value upon the difference, if any, between the effect of a jury's finding and the effect of a judge's finding plus a compliment from him.

(emphasis added)

131    An award of damages to vindicate a plaintiff’s reputation is compensatory of loss suffered and serves the purposes that Mason CJ, Deane, Dawson and Gaudron JJ identified in Carson 178 CLR at 60–61 (quoted in [110] above); see too Lewis 381 ALR at 421–422 [172].

132    Lord Judge CJ, Lord Neuberger of Abbotsbury PSC and Eady J suggested in Cairns v Modi [2013] 1 WLR 1015 at 1025 [32] that there will be occasions when the reasons for judgment will provide a sufficient vindication, but whether they did so “is always a fact-specific question”. Their Lordships did not give any examples or cite authority for that obiter dictum, although they said (at 1025 [30]–[32]), following Dingle [1964] AC 371, that there is no general principle for making any allowance in reduction of an award of damages based on the court’s reasons for finding for the claimant. As they also said (at [32]), correctly in my view:

It is more likely, as in so many cases, that the general public (or rather, interested “bystanders” who need to be convinced) will be concerned to discover what might be called the “headline” result. What most people want to know, and that includes those who read the judgment closely, as Mr Caldecott submitted, is simply “how much did he get?”

(emphasis added)

133    I agree. The ordinary reasonable viewer of the program and those to whom its imputations about Dr Chau were republished are not likely to spend hours reading these reasons and nor is anyone else except the present parties and their lawyers and any appellate court. The public are interested in what amount the Court awards, not the dross of legal reasons or, as Lord Macnaghten once remarked in another context: “Thirsty folk want beer, not explanations”: Montgomery v Thompson [1891] AC 217 at 225.

Aggravated damages – principles

134    Aggravated damages are compensatory but can be assessed so as to increase an overall award of general damages where conduct of the defendant that has aggravated the harm to the claimant is improper, unjustifiable or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 per Dixon, Williams, Webb and Kitto JJ. The tribunal of fact, be that a judge or jury, can assess damages by taking into account the whole of the defendant’s conduct from the time of publication up to the time of the verdict: Praed v Graham (1889) 24 QBD 53 at 55 per Lord Esher MR; Triggell 82 CLR at 513–514. However, there is a distinction between a defendant persevering in a defence (which can increase ordinary compensatory damages: Coyne 172 CLR at 237–238) and conduct that is improper, unjustifiable or lacking in bona fides. After all, litigation often involves genuinely disputed facts or questions of law that both parties honestly, or reasonably, contest. The mere fact that one side wins and the other loses a forensic contest does not mean that the loser had no proper basis on which to engage in the contest. Thus, the assessment of whether a claimant can establish that his or her loss or damage have been increased (or aggravated) by the defendant’s conduct depends on whether that conduct was improper, unjustifiable or lacking in bona fides, rather than merely mistaken or did not lead to an outcome favourable to the defendant in the litigation.

Claim for aggravated damages

135    Dr Chau alleged that he was entitled to an award of aggravated damages because, first, the publishers pursued their truth defences (the truth defence issue), secondly, the matter complained of has remained available online (the continuing publication issue) and thirdly, the publishers have failed to apologise (the apology issue). The publishers argued, as a threshold point, that no award of aggravated damages could be made unless each of them was responsible for the cause of the aggravation and then the amount awarded could be no more than that assessed against the publisher who made the least contribution to the aggravation (the single award issue).

The single award issue

136    The publishers submitted that the positions of the ABC, on the one hand and, on the other, Fairfax and Mr McKenzie, were different in respect of the program being available online only on the ABC’s website. They asserted that the ABC controlled the content on its own website independently of Fairfax and Mr McKenzie. The publishers argued that even if the conduct of the ABC in keeping the program online were capable of supporting an award of aggravated damages, that could only be made against the ABC. They contended that this followed from Eady J’s decision in Veliu v Mazrekaj [2007] 1 WLR 495 at 499 [11], where he applied what Lord Hailsham LC and Lord Reid had suggested in respect of the unavailabilities of separate awards of exemplary damages in Broome [1972] AC at 1063 and 1090. Eady J held that the only available course was for the damages to be awarded against all defendants on the basis of the assessment of the conduct of the “lowest common denominator”. In other words, they submitted, because neither of Fairfax nor Mr McKenzie had acted to keep the program online, the ABC’s conduct could not be attributed to them and the joint liability for damages could not include any element based on any aggravation of damage for which the ABC alone was responsible.

137    I reject the publishers’ argument that it is not possible to make a separate award of aggravated damages against one of a number of tortfeasors. The decision of Eady J in Veliu [2007] 1 WLR at 499 [11] is in the teeth of XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 and Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. In XL Petroleum 155 CLR at 460, Gibbs CJ (with whom Mason, Murphy and Wilson JJ agreed (at 464–465)) and at 470–471 Brennan J (with whom Mason J also agreed at 464) held that s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) had abolished the common law rule that there was only one cause of action against joint tortfeasors and that only one judgment could be given against all of them, even if one or more had caused the plaintiff to suffer more or less damage or was liable to an award of exemplary damages. Each of Gibbs CJ (155 CLR at 46), Mason J (at 464) and Brennan J (at 467) held that the views of Lord Hailsham LC and Lord Reid in Broome [1972] AC 1027 did not accord with the law in Australia.

138    The common law rule that there must be unity in the cause of action against joint tortfeasors, had been abolished by statute in all Australian jurisdictions before 1996: Thompson 186 CLR at 584 per Brennan CJ, Dawson and Toohey JJ, 591 per Gaudron J and 613–614 per Gummow J. It follows that a separate award of aggravated damages can be made against the ABC if Dr Chau is entitled to rely on its conduct alone in leaving the matter complained of online as aggravating the damage he has suffered.

The truth defence issue

139    The publishers contended that their original plea of justification was supported by the decision of the Court of Appeal of the Supreme Court of Western Australia in West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387. Their Honours held that it was open to a defendant to rely on the existence of reasonable grounds for suspicion that a claimant was guilty (variant imputations) to support a plea of justification of the imputations of fact of which he or she complained. Thus, they submitted, since their decision to plead truth was supported by the decision of an intermediate appellate court, it could not be said that the plea based on that authority could aggravate damages.

140    That position only changed when I held on 31 August 2018 (Wing [2018] FCA 1340 at [43]) that Elliott 37 WAR 387 was plainly wrong and inconsistent with Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, and the Full Court affirmed that conclusion in Chau 271 FCR at 665 [98]. Even so, the publishers contended that in refusing special leave to appeal from the Full Court’s decision, Gageler and Gordon JJ had observed that, having regard to the pleadings and the manner in which the matter was argued before the Full Court, it was “not a suitable vehicle for the agitation of the point of general principle which the applicant[s] now seek[] to raise”: Australian Broadcasting Corporation v Chau [2019] HCA Trans 245.

141    The publishers argued that persisting in a bona fide defence cannot be a basis for an award of aggravated damages. And, they noted, they had not suggested at the trial anything to contradict Dr Chau’s evidence that his pleaded imputations were false.

142    I accept that the publishers had a reasonable and justifiable basis to rely on Elliott 37 WAR 387 to support a plea of truth based on there being reasonable grounds to suspect that Dr Chau was guilty of the pleaded imputations. However, the problem with their original attempts to plead justification was much more fundamental. I found in Wing [2018] FCA 1340, when refusing to allow that plea, that the particulars of truth of:

(1)    imputation 1 (which I have now found was not conveyed) relied on the publishers’ definition of “espionage”, which was embarrassing and the particulars given for it did not provide a basis to sustain even that meaning (at [83]–[91]). Besanko, Bromwich and Wheelahan JJ affirmed this finding in Chau 271 FCR at 686–687 [175]).

(2)    imputation 2 failed to specify any facts or circumstances to warrant an inference that Dr Chau (whom I erroneously called “Dr Wing” in those reasons) was a member of the Chinese Communist Party or the CPPCC or that he had acted in any way in relation to such alleged membership (at [95]–[98]; Chau 271 FCR at 689 [153]–[154], 680–681 [156]–[160], 687 [176]).