Federal Court of Australia

Nassif v Seven Network (Operations) Ltd [2021] FCA 1286

ORDERS

THE COURT ORDERS THAT:

1.    Judgment is entered for the first applicant, Mrs Nassif, in the amount of $100,000.

2.    Judgment is entered for the second applicant, Wiping Tears Charitable Organisation, in the amount of $500.

3.    The parties are to confer about the form of the orders to give effect to the reasons provided in the judgment, also addressing the additional forms of relief sought and costs.

4.    If agreement is not reached as to the terms of the orders, competing draft orders are to be provided to the chambers of Abraham J with any additional brief written submissions in support.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    Mrs Nisserine Nassif, the first applicant, is a founder and director of Wiping Tears Charitable Organisation, the second applicant, a not-for-profit organisation that operates within Sydney and more broadly within New South Wales and Australia. Wiping Tears (the Charity) has been registered with the Australian Charities and Not-for-profits Commission (ACNC) since its inception, with its stated aim being to provide benevolent relief from poverty, distress and misfortune to families and individuals.

2    Wiping Tears is an excluded corporation for the purpose of s 9 of the Defamation Act 2005 (NSW) by reason of the objects for which it was formed.

3    The facts on which this claim is made are in short compass.

4    In summary, these proceedings relate to an aspect of a news story reported on the Seven News service by Mr Bryan Seymour, the third respondent, on 16 February 2019 (the matter complained of being the “Seven News Report”, also referred to as “the Report” and “the Broadcast”), and the subsequent promotions and republications of that publication on the Facebook account “7News Sydney” and the Twitter handle @7NewsSydney.

5    The applicants plead that the Broadcast carries the following imputations (or imputations that do not differ in substance):

(1)    Mrs Nassif runs a charity called Wiping Tears that falsely claims to help disadvantaged families (first imputation);

(2)    Wiping Tears, a charity, falsely claims to help disadvantaged families (second imputation); and

(3)    Wiping Tears, a charity, raised $210,000 for the stated aim of helping disadvantaged families, but only spent $5,000 (third imputation).

6    Publication is admitted by the second respondent (the licensee for Channel Seven Sydney). Mr Seymour admits being the reporter and is also liable for publication within Sydney. The respondents take issue with the Broadcast containing the pleaded imputations, and in turn plead defences of contextual truth, honest opinion and fair summary of a public document.

7    In reply, the applicants plead defeasance to the defence of honest opinion, malice in relation to the common law defence of fair comment, and that the defence of fair summary of a public document is not established.

8    For the reasons below, I find that, in the context of the Report in which they were published, the pleaded imputations are conveyed and their defamatory meaning has been carried. I also find that the defences as pleaded by the respondents have not been established.

Seven News Report

9    A transcript of the Seven News Report is as follows:

Michael Usher:    A western Sydney property developer has dug himself a hole posting a video of a lavish gift to his wife on social media. It has gone viral, generating several send-ups but it has also drawn attention to his business dealings in particular, a stalled project which was meant to deliver more parking for Parramatta.

Bryan Seymour:    In a loving tribute to his young wife, Jean Nassif films the delivery of her new Lamborghini.

Jean Nassif:          Congratulations Mrs Nassif. Do you like?

Bryan Seymour:    The unknown property developer posted this on social media sparking an avalanche of satirical send-ups.

Unknown:             You like?

Unknown:             You like?

Bryan Seymour:    Less funny is his project in Parramatta, stuck in limbo after Mr Nassif dug three levels down without approval.

Lorraine Wearne:     I don’t like to see people being rewarded for not doing the right thing and I’d like to see the car parking delivered for our community.

Bryan Seymour:    Mr and Mrs Nassif did not respond to our questions. In addition to running a property development company, the Nassifs also a run a charity called “Wiping Tears” with the stated aim of helping disadvantaged families, but a look at their most recently reported financials reveals they did very little to help anyone. They held the Blossom Ball Fundraiser in 2016 but despite having assets totalling $210,000 they only spent $5000. Their website boasts Nissi is a favourite of the international press, a wish perhaps now coming true.

Stephen Fenech:     One of the reasons why he chose to share it on social media is so the whole world can see how extravagant his gift is.

Unknown:             You like?

Bryan Seymour:     Bryan Seymour, Seven News.     

10    The complaint relates to the aspect of that Report which refers to Wiping Tears.

11    The transcript does not reflect the tone or flavour of the Report. The story began by Mr Usher introducing the Report whilst sitting at the news desk with an image in the background of Mrs Nassif posing in front of a yellow Lamborghini with the title “LAVISH GIFT” displayed over the bottom third of the image. The segment then plays the video, with audio, of Mr Jean Nassif gifting the car to Mrs Nassif in the driveway of their home, as filmed by Mr Nassif. The audio of the video can be heard in the background with Mr Seymour’s voice narrating over it. Music has also been added in the background of the video and during the transition to a still image of the couple which follows. In that image Mr Nassif is holding a cigar in his hand. Played next is a montage of two satirical videos with audio mimicking Mr Nassif saying “you like”.

12    The Report then cuts to video footage of a fenced-off incomplete building site, and an interview with Parramatta City Councillor, Ms Lorraine Wearne, held on a street footpath. The segment then returns to footage of the incomplete building site from various angles, including a visual of the site with banners displaying “Toplace” branding, being Mr Nassif’s property development business, tied to the building site’s temporary chain-link fencing. The Report then briefly cuts to a visual of Mr Seymour standing on a footpath in front of an unknown property’s wrought iron fence speaking into a microphone directly into the camera. It is at this part of the Report that Mr Seymour tells viewers that the Nassifs have not responded to his questions and narrates the part of the Report relating to Wiping Tears. The Report then displays a montage of short videos taken from the Blossom Ball Fundraiser, including guests arriving in classic cars, a guest at a lavishly decorated table taking an item in a box whilst holding a $100 note, Mrs Nassif in a ball gown hosting the event on stage with the ceiling behind her covered in an extravagant floral arrangement, guests laughing whilst seated at their tables and finally, a video of Mr Nassif bending forward with hearty laughter at his table. That is the backdrop of the commentary in respect to Wiping Tears. The visual then briefly returns to the video of Mrs Nassif receiving the yellow Lamborghini in her driveway, with the accompanying music previously played, before cutting to Mr Stephen Fenech who was given the title “Tech Expert”, appearing from what appears to be a video link or a recording. Finally, the segment ends with the screen split vertically into thirds, with each third displaying a different satirical video mimicking Mr Nassif saying “you like?”.

13    It was not disputed that the Seven News Report was viewed by around 163,000 people.

14    The analytics pertaining to the subsequent promotions and republications of the Seven News Report were as follows:

(1)    The 15 February 2019 promotion and republication with the Twitter handle @7NewsSydney generated at least: 7 comments; 11 retweets; and 26 likes.

(2)    The 16 February 2019 promotion and republication with the Twitter handle @7NewsSydney generated at least: 7 comments; 11 retweets; and 23 likes.

(3)    The 17 February 2019 promotion and republication on the 7News Sydney Facebook account generated at least: 1,300 comments; 83 shares; and 749 interactions (likes or other interactions).

15    Mr Seymour was an employee of the Seven Network and an agent engaged by the second respondent (Channel Seven Sydney) as a reporter during a programme known as the “Seven News”. Channel Seven broadcast the Seven News Report in Sydney.

Evidence

16    Mrs Nassif gave evidence, as did a number of witnesses, as to her reputation and that of Wiping Tears. There was also evidence from Mr Monsted, the accountant for Wiping Tears. In addition the applicant relied on a number of documentary exhibits, including an extract of Wiping Tears’ website as at April 2021, a screenshot of a post containing the Report posted to the @7NewsSydney Twitter account with comments, a screenshot of the Report posted to the 7News Sydney Facebook page, a video recording of the Report itself and extracts of the first, second and third respondents’ respective answers to interrogatories.

17    I note at the outset that the respondents did not call any evidence. Mr Seymour did not give evidence.

Mrs Nassif

18    Mrs Nassif gave evidence that to fulfil its stated aim, Wiping Tears relies on charitable donations, which in large part are generated by activities (mainly fundraising balls) organised and executed by her, as well as from donors primarily arranged by her through her broad social network. She gave evidence that since being founded, Wiping Tears has provided financial assistance to a significant number of individuals and families within Australia and from around the world consistent with its stated charitable aim.

19    Mrs Nassif described her background and family circumstances. She explained that her husband, Mr Nassif, is heavily involved in their Church and the Maronite Catholic Community more broadly. She said that they are extremely active in their religious community.

20    Mrs Nassif gave evidence that it was in 2015 when she first conceptualised starting a charity after being inspired by her husband’s generosity. She said he would remind her that it is important to give back to the community as they are very blessed. The catalyst for starting Wiping Tears was an employee of her husband’s business who was diagnosed with breast cancer. Mrs Nassif described what was involved in setting up the Charity, and the assistance she was given to do so.

21    Once the Charity was established in 2016, Mrs Nassif said she started to reach out to families which, initially, was on a full-time basis. Mrs Nassif estimates that this aspect of her charity work now consumes about two days per week but that it fluctuates. She explained the process involved in providing assistance. She said that it is only her who interacts with the families, so when there is a request for help she will visit the family to ask questions about their situation and how Wiping Tears could provide assistance. She then prepares a proposal outlining the assistance and submits it to the Charity’s committee for consideration. If the committee agrees with the proposal, Mrs Nassif sends the proposal to the beneficiary family for them to sign. If the committee does not agree, they will make edits to the proposal. Generally, the families will receive assistance within a week of Mrs Nassif first meeting them.

22    Mrs Nassif explained that the primary fundraiser for the Charity is the Blossom Ball. She said approximately one thousand people attend the Ball from a range of communities and industries, however guests are largely those who deal with her husband’s business, Toplace. She described what organising such an event involves and the time it takes. She explained that she does not take any salary for what she does.

23    Mrs Nassif said she is not involved in preparing the Charity’s financials and taxes, but has a reliable financial team.

24    Mrs Nassif was not aware that the Seven News Report was going to happen. She did not see the email from Mr Seymour sent to her email account on the Saturday afternoon until sometime later when her solicitor brought it to her attention. She first saw the Report on the Saturday night it aired when her husband showed it to her on his mobile phone. She recalls feeling foggy and that she knew people were talking to her but she could not respond. She said she recalls feeling very upset and like there was no meaning to her life anymore. In the days after the Broadcast, she said that she felt really upset and that the Broadcast was unfair. She said she was mocked, her work was rubbished and that it did not represent her or her good reputation. In the aftermath of the Broadcast, lots of people contacted her. She heard the things people were saying about her as it was reported back to her by her friends. She did not leave the house for about six weeks after the Broadcast.

25    Following the Broadcast, Mrs Nassif said she was uninvited to events, giving examples including not being able to be the master of ceremonies (MC) for Miss Lebanon Australia which she had done so for the past three years. After the Seven News Report, in relation to the Blossom Ball, she contacted the usual sponsors and most said “no, we don’t want to be in this controversy”. She had to convince sponsors to commit and put to sponsors that if they wanted Toplace’s business they must donate.

26    Mrs Nassif said that she has been attending her doctor, who is also a family friend. She told him that she is anxious, paranoid and stressed. Mrs Nassif said that even two years later, she is still “so upset” about the Seven News Report. It upsets her that people think she is a “dodgy Lebanese woman…who is [like] dumb”. She said she cannot recover until things are cleared up and the public knows who she really is.

27    Mrs Nassif was cross-examined about the Lamborghini video and the publicity that ensued. She agreed that she received a text message from her neighbour at about midday on the day the Seven News Report aired, which was prior to the Broadcast. She had previously been invited by the neighbour to a birthday party. Mrs Nassif agreed her neighbour’s message suggested that with people drinking, someone may say something offensive to her at the party and that her neighbour considered it understandable if Mrs Nassif did not attend.

28    Mrs Nassif agreed that shortly after the Lamborghini video, she received thousands of responses on Instagram and a number of text messages and telephone calls. On the Thursday of the week she received the car, she posted a response video on Instagram. While standing in front of the yellow Lamborghini she called the people mocking her and her husband “wannabe heroes”. The post’s caption was:

[s]ocial media is great but instead of focusing on other people’s lives and count their blessings and spending all day checking out indecent footage focus on your own future and how you can provide a good, luxurious life for yourselves, your wives, children and your loved ones. Yasss – ze beast is still in my garage and yassss I like, like, like, like it

29    Mrs Nassif agreed that she was aware that on the day before the Seven News Report, on Friday 15 February 2019 at 5pm, the Sydney Morning Herald had posted a video of her and her husband on its Facebook page which included spoof reactions. She agreed it had attracted more than 3000 comments. She was aware of a front page article featuring her and her husband in the Sydney Morning Herald on the Saturday morning of the Broadcast. When shown a Daily Mail article, Mrs Nassif said she could not recall this article specifically as there were a lot of articles. She agreed that there was also an article titled “In the Fast Lane” in the Daily Telegraph and a program on A Current Affair.

30    Mrs Nassif said she only switched her Instagram account to private after the Broadcast. She had about 16,000 followers at that time in February 2019. She said she has had around 16,000 followers for some time, although there are small fluctuations.

31    Mrs Nassif gave evidence that she found the email from Mr Seymour about one month after the Broadcast in her inbox on her phone. Her husband did not mention to her that he had received an email or text message from Mr Seymour.

32    Mrs Nassif was cross-examined about the circumstances in which she came to no longer be the MC for Miss Lebanon Australia. She was also cross-examined about her dealings with her doctor.

33    In re-examination Mrs Nassif said that she has never sued or threatened to sue anyone in relation to the Lamborghini video. She said she is not a public figure because of the Lamborghini video, she was a public figure before the video due to her husband’s status, and because she would MC charity events and Miss Lebanon Australia. She does not consider herself a social media influencer as she only has 16,000 followers.

Evelyn Helou

34    Ms Evelyn Helou is the daughter of Mr Nassif and has known Mrs Nassif for around 10 years. She is a lawyer and a director of Wiping Tears. Her role in the Charity mainly relates to “back end” work including reporting, data entry and managing sponsorship. Originally, she assisted with preparing the constitution and other documents to establish the Charity. She described Mrs Nassif’s main role in the Charity as the person who finds and interviews the families.

35    Ms Helou said that as at February 2019, Wiping Tears was well known and highly regarded in their broader community, being the NSW community, Australian community and international community. Ms Helou said between 800 and 1200 people attend the Charity’s events.

36    Ms Helou said that Mrs Nassif was highly respected and enjoyed a “really good reputation” amongst the people that she associated with.

37    She recalled that it was her sister who told her about the Seven News Report on about 16 February 2019. After that, she said people asked her about the trustworthiness of Wiping Tears. Both the Charity and Mrs Nassif’s reputations were questioned.

38    She also recalled having a conversation with Mrs Nassif about the Broadcast in which they were both crying. She described Mrs Nassif as “very, very, very distressed” and very hurt. She said that “still till now, it’s a topic that [they] constantly talk about” and she has observed that Mrs Nassif “just can’t seem to move on”.

39    Ms Helou was not cross-examined.

Anthony Hasham

40    Mr Anthony Hasham is an engineer, he has three companies and is also a lecturer at the University of Sydney. He is the vice-president of the Australian Lebanese Chamber of Commerce and the president of the Maronite Catholic Society of Australia.

41    He has known Mrs Nassif for almost 15 years. He said that Mrs Nassif is “a very profound activist in the community” who “does a lot of charity work”. Prior to February 2019, Mrs Nassif enjoyed a very good reputation within their social circle. Mr Hasham said he has been a supporter of Wiping Tears since its inception. He is also a sponsor and he and his employees have attended all the Blossom Balls. Prior to 2019, Wiping Tears was very well known in the groups he was involved with and a lot of the people he interacted within those groups were also supporters and sponsors.

42    Mr Hasham said he did not see the Broadcast live, but has since viewed it as it was “circulating on the WhatsApp”. He said that he saw and heard a lot of negative comments after it aired. He recalled people asking “is she doing the right thing?” and “where’s our money going?” He said that when it was said in his presence he would defend both Mrs Nassif and Wiping Tears.

43    Mr Hasham was not cross-examined.

David Krepp

44    Mr David Krepp is a development manager at Toplace. He has known Mrs Nassif for about 10 years. Prior to February 2019, Mrs Nassif was known as a hard worker, particularly in relation to her involvement with Wiping Tears. He said that after the Broadcast, Toplace “in general” had “a massive downturn in all sorts of things including finance”. He said that people “lost confidence in the company and in Wiping Tears” and would say things “about Wiping Tears being a sham”.

45    Mr Krepp was not cross-examined.

Antoine Gittany

46    Mr Antoine Gittany is the director of a company in the construction industry. Mr Gittany said he was aware of Wiping Tears before meeting Mrs Nassif, as he had attended the Blossom Ball the year before he met her which was about four years ago. Since then, he has attended a couple of the Charity’s Balls. Before attending the Blossom Ball, he had generally heard good things about Wiping Tears, including that they helped a lot of families. He said that Wiping Tears was well known in the Lebanese community and within the construction industry as the Nassifs are influential people. He said that prior to 2019, it was a well-respected charity shown by the numerous donations it was given.

47    Mr Gittany said he became aware of the Broadcast in February 2019. After the Seven News Report was aired he heard comments and accusations in his communities directed at Mrs Nassif and Wiping Tears suggesting fraud and that they were not actually helping people.

48    Mr Gittany also said that both he and his wife spend significant time with the Nassifs. Over time they have talked about the Broadcast as an ongoing topic. He recalled Mrs Nassif once telling him that the Broadcast made her miserable.

49    Mr Gittany was not cross-examined.

Angela Vassallo

50    Ms Angela Vassallo is the author of “The Second Wives’ Guide”, and owns two restaurants. She was previously Paula Duncan’s personal assistant which involved organising charity events. She met Mrs Nassif about five years ago. She said that other people she socialises with in the Lebanese community and the construction industry also know Mrs Nassif, and that she was very well respected in those circles. She said that most people who meet Mrs Nassif are very impressed by her.

51    Ms Vassallo said she had seen the Seven News Report and discussed it with Mrs Nassif. She said Mrs Nassif was shocked and upset by it.

52    Ms Vassallo was on the committee of Wiping Tears. Her role included arranging media, celebrities and talent for the events. Prior to the Seven News Report, Wiping Tears was a very well respected charity which enjoyed great success as they had “raised a lot of money and helped a lot of families”. She said that people can attend any charity event on any given night in Sydney, and that they were only able to secure 1000 attendees to their Ball because “people really respected John and Nissy”. She said that prior to February 2019, Wiping Tears did not have any issue securing attendance or speakers at the Balls, and provided an example of a difficulty which had occurred since the Broadcast.

53    Ms Vassallo was not cross examined.

Mira Batch-Hanna

54    Ms Mira Batch-Hanna is a health and lifestyle coach. She has known Mrs Nassif for many years as Mrs Nassif married into her mother’s side of the family.

55    Ms Batch-Hanna said that she has lots of mutual connections with Mrs Nassif through both family and friends. Prior to February 2019, she said everyone spoke very highly of Mrs Nassif as “a very respectful, loyal, hardworking mother and wife, amazing charity work”. She is also familiar with Wiping Tears, having referred three friends for help and attended all of the Blossom Balls. Amongst the people she associated with that knew Wiping Tears it was “[a]lways very highly spoken of, very looked up to, amazing work and everyone was in awe of the amazing work that they did to help people”. After the Broadcast, Ms Batch-Hanna said people questioned the integrity of the Charity. She said she defended Mrs Nassif on her own social media account.

56    Ms Batch-Hanna gave evidence that she is involved in an annual event called Empower Women which aims to inspire young women to lead healthy and happy lives. She said that she thought Mrs Nassif would have been an amazing guest speaker for her event in May 2019. However, after the Broadcast she did not want Mrs Nassif exposed to any further bullying so she withdrew Mrs Nassif as a speaker.

57    In cross-examination, Ms Batch-Hanna said she holds the Empower Women workshop each year in May. She wanted Mrs Nassif to also be a speaker in May 2020, but said ‘with all of this going on” she did not feel as if it was safe for her to do so as it could expose her to further bullying. Given the Broadcast, she was also concerned about her charity’s reputation. That workshop did not go ahead because of Covid-19.

Neil Monsted

58    Mr Neil Monsted is a Chartered Accountant and has been the principal of Neil Monsted Chartered Accountant for 33 years. He said that he is the accountant for Wiping Tears and has been since its incorporation. He said that his firm prepares the annual financial records using Wiping Tears’ MYOB data. His firm also prepares the day-to-day accounts and statements based on Wiping Tears’ MYOB data.

59    Mr Monsted said that they prepare and lodge the Charity’s income and expenditure statements in accordance with the ACNC instructions. Mr Monsted said the Charity was first required to prepare the ACNC Annual Information Statement (AIS) in 2017. Mr Monsted gave evidence that the ACNC provides guidance for completing the AIS in the form of an Annual Information Statement Guide (the AIS Guide). He accessed that guide by searching “ACNC instruction booklet 2017” on the internet and clicked on a link to the booklet, which he recalled being a link to the ACNC website.

60    In the 2017 AIS, Mr Monsted explained that there was $45,000 in annual earnings, a $50 discount received; $1000 spent on tickets for a charity event; and $4049 spent on website development. He said that the payments to families were not disclosed in the 2017 AIS in accordance with the ACNC’s instructions. He said that Section K of the Guide states that if payments are made out of reserves to members, to beneficiaries or otherwise, it is not included in the ACNC document. He made that professional decision as the $45,000 of revenue was earnt in June 2017, being the end of the financial year, which meant that the earlier payments to families had to be made out from the 2016 income reserves. He agreed it was Section K of the AIS Guide which caused him to take the view that the payments to families should not be included in the 2017 AIS.

61    In cross-examination, Mr Monsted agreed that deducting the $5,000 of expenses from the $45,000 results in a net surplus of $40,000. He agreed that the ACNC documents show net assets of $210,850. He also agreed that the 2016 Profit and Loss Statement showed a net surplus of $199,558 and that the $199,558 of profit was in the form of cash at bank. He agreed that Profit and Loss Statements are not published on the ACNC website.

62    Mr Monsted said he used the 2017 Profit and Loss Statement to prepare the 2017 AIS. He said that the beneficiary payments of $28,714 in the Profit and Loss Statement are not reported in the 2017 AIS. He agreed that is because of a decision he made on the basis of Section K of the AIS Guide. He agreed that the $1000 “donation” was disclosed in the AIS. He also agreed that the AIS shows total equity of $210,844, comprising of $199,558 (the 2016 profit) and $11,286 (2017 surplus), which consists of cash at bank and prepayments.

63    Mr Monsted agreed that in 2018, the Charity was reclassified as a medium sized charity by the ACNC due to the size of its revenue. He agreed that as a result of the reclassification the Profit and Loss Statement, Balance Sheet and AIS were published on the ACNC Website. It was likely the documents were received by the ACNC on 1 April 2019. Whilst he could not recall when the documents were prepared, he believed it would have been around the time they were lodged. He agreed that in 2018, the Charity had a gross profit of $343,000 and that the payments to families were taken out after gross profit. He said that this difference in reporting was because the income of $45,000 in 2017 was not earnt until the end of June 2017, whereas the revenue earned in 2018 was spread over the whole year, and he also believed that the ACNC changed its instructions in the 2018 AIS Guide.

64    Mr Monsted agreed that in 2019 the Charity returned to being classified as a “small charity”. The Profit and Loss Statement for 2019 recorded an operating profit of $224,000, an expense of $13,390 relating to a charity event, $88,250 in donations, and $17,200 in sponsorship, and other expenses of $76,848 resulting in a net surplus of approximately $147,000. He agreed that the net surplus was calculated after the payment to families were taken into account. He agreed that in the 2018 AIS it recorded revenue of $339,000, expenses for grants and donations of $165,000, an additional $88,250 in donations and $76,848 for payments to families in need.

65    Mr Monsted said that small charities use a cash accounting method, whereas medium sized charities use an accrual method. Mr Monsted was asked about a number of the entries in the document. In answering those questions Mr Monsted explained the basis on which he had characterised certain entries.

Documentary evidence

66    It is not necessary to refer to all the documents tendered, they have all been considered and taken into account. Nonetheless, given the nature of the submissions, it is appropriate to refer to some, albeit briefly.

67    The applicants tendered an extract from Wiping Tears’ website (the Website), as at April 2021 which sets out the Charity’s purpose. Relevantly it includes:

Wiping Tears is a non-profit charity that was established to provide immediate financial assistance to families who are experiencing disadvantage due to illness or social injustice.

With your help, each year we are able to help families overcome these obstacles and achieve a higher quality standard of life including greater access to healthcare, education, financial relief and more.

Most families choose to remain anonymous for privacy concerns, however we are blessed to have some of the families share their stories and journeys with you to show how Wiping Tears helped them find hope once again.

68    I note the respondents tendered an extract from the Website as at about February 2019. Relevantly, as to its purpose it stated:

The Wiping Tears Charitable Foundation is a non-profit charity designed to help families in need. Our aim is to give immediate assistance to these families and provide opportunities to help get their lives back to “normal” after various unfortunate experiences and financial setbacks.

…

The Wiping Tears Charitable Foundation is a non-profit charity designed to help families who may be experiencing social justice issues such as financial hardship, homelessness, poverty, limited access to education, health and medical resources, and those seeking asylum.

The aim of the Foundation is to help these families get back on their feet, not just by providing them with money, but by assisting them in ways such as helping them to pay for high living and utility costs, providing them with access to medical treatment and helping with associated costs, improving the living standards of individuals and families and the list goes on. The Foundation will assist families selected by local community organisations and leaders from religious and non-religious backgrounds.

69    In that context, the applicants also tendered the constitution of the Wiping Tears Charitable Foundation.

70    The applicants tendered the following financial records for Wiping Tears:

(1)    Profit and Loss Statement for the year ended June 2016;

(2)    Profit and Loss Statement for the year ended June 2017;

(3)    Bank statements for Wiping Tears from February 2016 to December 2019;

(4)    Spreadsheet of expenditure from 8 February 2016 to 24 June 2016; and

(5)    Spreadsheet of expenditure from 22 August 2016 to 18 May 2017.

71    From those documents the applicants prepared an aide memoire, the accuracy of which is not challenged by the respondents. It was as follows (omitting the references to the Court Book):

72    The respondents also relied on those documents and tendered Balance Sheets for the 2016, 2017 and 2018 financial years. In particular it highlighted the following (omitting references to the Court Book):

73    The document the respondents say is the basis of the Seven News Report is the 2017 AIS. Section D headed “Finance”, contained the following:

Charity’s 2017 reporting period: 1 July 2016 to 30 June 2017

Accounting method used in the 2017 reporting period: Cash

Income Statement summary

Revenue/ Receipts

Expenses/Payments

Balance Sheet Extract

74    In addition there were a number of Twitter posts, Facebook posts, text messages and other social media material before the Court. The respondents also rely on print media of articles published in the days leading up to the Seven News Report, which are addressed in more detail below.

75    The ACNC also publish an AIS Guide on its website detailing how to complete that document. The 2017 AIS Guide was in evidence.

76    Finally, there was the email sent by Mr Seymour to Mrs Nassif at 3:42pm on 16 February 2019, requesting a comment. It was in the following terms:

Hello,

Seven news will tonight air story about the Toplace development at Macquarie St, Parramatta.

• When will the Carpark open?

• Why did you dig three basement levels without approval?

• What is your reaction to your social media post going viral?

• How would you describe the videos being posted?

• How many people has Wiping Tears helped?

• Why did WT spend only $5,000 in 2016/17 despite having income of $45,000 and assets of $200,000?

Regards,

Bryan Seymour

Journalist

Sent from my iPhone

Defamatory meaning

77    As explained above, the applicants plead that the Seven News Report carries the following imputations (or imputations that do not differ in substance):

Legal principles

78    The relevant principles for determining defamatory meaning have been recently summarised in a number of judgments: see for example, Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (Rush) at [71]-[85] with there being no suggestion of any error in this collection of principles on appeal to the Full Court: Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432: Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33 (Hockey v Fairfax Media) at [63]-[73]; Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [14]-[27]; Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 (ABC v Chau Chak Wing); V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 (V’landys v ABC) at [44]-[55].

79    The applicant bears the onus on the balance of probabilities that the alleged defamatory meanings or imputations were conveyed by the publication in question.

80    It is open to an applicant to choose the imputations relied upon, which will generally confine the question of meaning and will determine the metes and bounds of the contest at trial. Those boundaries extend to meanings that are not substantively different in that they are comprehended in, or are a shade or nuance of, the pleaded meaning: Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [15], citing ABC v Chau Chak Wing.

81    The relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person: Rush at [74]. The hypothetical individual is a person with various characteristics, is of fair to average intelligence, experience and education, and is taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor “avid for scandal”: Rush at [75]. The individual “is said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of ‘loose thinking’”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does “read between the lines” in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. The ordinary reasonable person is taken to have read the entire publication and considered the context as a whole, and they take into account emphasis that may be given by conspicuous headlines or captions: Rush at [77].

82    Each alleged defamatory imputation has to be considered in the context of the entire publication: Rush at [79]; ABC v Chau Chak Wing at [168]-[171]. However, it does not follow that each part of the publication must be given equal significance, as striking words or images may stay with the viewer or reader and give them a predisposition or impression that influences all that follows: V’landys v ABC at [51].

83    The meaning that an individual would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question: Rush at [80]. In this regard, in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson CJ observed at 137:

It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.

84    The natural and ordinary meaning may, in some cases, be obvious from the direct or literal meaning of the words printed or spoken in the publication, although “[m]ore often than not … the question turns on what implications or imputations the ordinary reasonable viewer or reader would understand were conveyed by those words, together with any images and, in the case of broadcasts, sounds used in the publication”: V’landys v ABC at [47].

85    The mode of publication can be a relevant consideration in determining what was conveyed to the ordinary reasonable viewer or reader: V’landys v ABC at [49]-[50]. Particular considerations may apply in the case of publications in electronic form, such as television.

86    In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 (Marsden), Hunt CJ (with whom Mason P and Handley JA agreed) observed at 165-166 (footnotes omitted):

The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less the degree of accuracy which would be expected by the reader. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual…

All of these considerations, and more, apply to matter published in a transient form — and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article, and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material.

87    However, as Wigney J correctly noted in V’landys v ABC at [50], television broadcasts are not as transient as they once were, as they are generally made available over the internet and can be replayed. Nonetheless, given the nature of the medium on which the statement was published, the sounds, images, manner of speech and any captions are all relevant in determining what meanings are carried by the publication.

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

89    A matter is defamatory if it carries a meaning about the applicant which is calculated to expose him or her to hatred, contempt, or ridicule; lower him or her in the estimation of ordinary right-thinking members of society; or cause others to shun and avoid him or her: Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452-453; Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 at 638-639; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 at [5].

Submissions

90    The applicants point to the following excerpts from the Seven News Report as conveying the imputations they pleaded (emphasis added):

(1)    “the Nassifs also run a charity called ‘Wiping Tears’ with the stated aim of helping disadvantaged families, but a look at their most recently reported financials reveals they did very little to help anyone”;

(2)    “despite having assets totalling $210,000 they only spent $5,000”;

(3)    the matter complained of commences with an image of Mrs Nassif in front of a Lamborghini and her receiving the Lamborghini as a gift, with there being multiple references to the car throughout the matter complained of being a “lavish gift”;

(4)    the reference to property development projects and “people being rewarded for not doing the right thing”;

(5)    the suggested involvement of Mrs Nassif in the running of the construction entity;

(6)    the reference to running a charity ball in 2016 and having assets totalling $210,000 and use of the word “despite” in the context; and

(7)    the reference to the “stated” aim of the Charity.

91    The applicants contend that the false statement in issue is that the applicants “falsely” claim to help disadvantaged people. The relevant falsehood in the circumstances is that money has been raised in the name of a “stated” charitable aim, and that very little of that money reached the people for whom it was purportedly raised.

92    The applicants submitted that in the context of the enormously disparate figures quoted in the publication, together with the Lamborghini and property references, that the natural inference is “this is where the money is going”. It submitted that at the very least the ordinary reasonable reader would be led to think “they aren’t doing with the money what they said they were doing – to what use was the other $205,000 put?”

93    The applicants emphasised the dictum of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 (Lewis v Daily Telegraph Ltd) at 277:

…the natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyer's first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory. (Emphasis added)

94    The applicants also referred in this respect to Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 (Favell v Queensland Newspapers), as an illustration of how an implication can be drawn by the ordinary reasonable reader from a combination of two facts in a news story. In doing so the applicants acknowledged that the decision was not a final decision but an appeal from a decision striking out a pleading. In that context, the issue was whether the article was capable of giving rise to the defamatory imputations alleged.

95    The respondents submitted that in respect of Mrs Nassif, the first applicant, the matter complained of should be read as imputing “she is a person running an organisation that made a false statement”, and as to both applicants, that the matter complained of should be read as saying that the applicants “are not doing what their stated aim says”, in that they are “exaggerating”.

96    The respondents submitted that an imputation involving the making of a “false statement” by a charity differs significantly in substance from imputations of fraud, rorting, running a sham charity and allegations of that nature, which were terms used during the applicants’ oral submission. It was submitted that those imputations have not been pleaded, although such imputations were incorporated into the original letters of demand and deliberately abandoned. It submitted that the applicants’ pleaded imputations are not about “financial impropriety or about misuse of wealth, or about taking money out of the Charity”, but rather, the Court is being asked to consider whether the Charity made a false statement.

97    The respondents submitted that there is no suggestion that Mrs Nassif had any particular knowledge or involvement of this claim or of its falsity. Rather, she is defamed simply as being one of the principals of an organisation that has behaved in a certain way. In relation to Mrs Nassif, there is no sting of dishonesty. The sting in respect of the Charity is that it has made a false claim to help disadvantaged families. It was submitted that there is no suggestion within the imputation of fraud or dishonesty, or even that the false claim was deliberately made (as opposed to mistakenly or negligently).

98    The respondents submitted that the first and second imputations do not arise. The first imputation does not arise as the matter complained of suggests the claim has been exaggerated, and not that it is false. The second imputation does not arise as the imputation uses the word “raised” instead of “assets” which means it has a too greater departure from the matter complained of.

99    The respondents accepted in its closing submission that if the first imputation is found to have been conveyed in respect to Mrs Nassif, it is defamatory. The same concession was made in respect to Wiping Tears and the second imputation. However, the respondents submitted that in respect to the third imputation, “there could be any number of legitimate reasons for a charity to raise some money and only spend a portion of it over a period,” such that the defamatory meaning is not conveyed. The respondents submitted that “the bare suggestion that an organisation – a charity run for those purposes has raised some money and, in a period, spent a limited amount is, in my submission, simply incapable of defaming the Charity”.

Consideration

100    It may be accepted, as the respondents contended, that while context may clarify the sting of an imputation it cannot be deployed to enlarge or diminish a pleaded imputation: ABC v Chau Chak Wing at [169]-[170]. So much is uncontroversial.

101    Nonetheless, each alleged imputation must be considered in the context of the entire article, here the entire news Report (which includes the backdrop being displayed as that aspect of the Report occurred). For example, if the narration of this aspect of the story about Wiping Tears were considered alone, it might not have the same connotation. However, when that aspect appears in the context of, and against the background of a news item which includes displays of their wealth, references to their “lavish lifestyle”, and condemnation of Mr Nassif’s property business, and is adverse to the Nassifs, a different impression is created: see for example Favell v Queensland Newspapers at [17]-[18]. The Report is inviting the viewer to adopt a suspicious approach to the subjects discussed.

102    In that context, an ordinary reasonable viewer would ask themselves, what is the point of the story, why is the fact of the Nassifs running a charity relevant to the story, why has the Charity only spent such a small proportion of its purported money on its stated aim, and what is being done with the money raised?

103    The respondents’ submissions approach the aspect of the Report concerning Wiping Tears with a degree of artificiality and in a manner which is inconsistent with its position in the Broadcast, given its context. The respondents also place an artificiality on the pleaded imputations which they do not have. Considering this aspect of the Report in its context is not to enlarge the imputation, but to clarify the sting of it.

104    It may be accepted that, as the respondents submitted, the applicants have not pleaded the imputations by referring to “corrupt”, “unethical” and “fraudulent” conduct, terms used by the applicants in initial correspondence between the parties. However, that does not assist. The use of the term “false” must be considered in its context.

105    The respondents properly accepted that a false statement is a statement that is wrong or untrue and is different to a statement that is exaggerated or a result of some kind of inactivity that the Charity is not living up to what is promised, which is the imputation they contend arises from the publication. The latter is plainly a more benign imputation.

106    The use of the word “false” in the pleadings, given the nature of the statements alleged to be false, carries with it certain inherent connotations. It is an untrue statement about the nature of the Charity. The imputation as pleaded refers to a false claim on a topic which is at the heart of, and underpins, the Charity’s existence. It is as to its very purpose.

107    I am satisfied that the ordinary reasonable viewer would have understood that the references to Mrs Nassif and Wiping Tears conveyed that each was making a false claim that the Charity was assisting disadvantaged families. That is, Mrs Nassif and Wiping Tears falsely claim they were assisting disadvantaged families, when they were not.

108    This is a brief aspect of a story on the Saturday night Seven News, where the “television viewer receives a succession of spoken words and visual images, which he is unable to have repeated for the purpose of reflection or clarification”: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 (Manock) at [37] citing Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 (Comalco v ABC) at 40. It is a transient publication, and only a momentary passage within it. Although the viewer has seen the Seven News Report, the viewer may not have devoted the same degree of concentration as if the statements were in a written article: Marsden at 165-166. In that context the words are, at the very least, general, imprecise and ambiguous, focusing on two extreme figures.

109    The Wiping Tears story is in a Report where the underlying theme is that the Nassifs are very wealthy. The phrase “lavish gift” is spoken and there is a caption “lavish gift” under a picture of the car at the beginning of the Report and footage of Mr and Mrs Nassif dressed formally at a function. The Report returns to the Lamborghini after the impugned portion of the Report, with a person being held out as a technology expert expressing his view as to why Mr Nassif chose to share his gift on social media, which was so “the world could see how extravagant his gift is”. This aspect of the Report is bookended by, and against the backdrop of, displays of wealth.

110    The ordinary reasonable viewer would take from the Report that Wiping Tears, run by the Nassifs, held the Blossom Ball fundraiser in 2016 which raised significant funds,, despite having assets totalling $210,000 they only spent $5000. This is in a context where they are portrayed to be leading a lavish lifestyle and involved with suspect building works.

111    The matter complained of does not limit the $5000 spending to one financial year. The Report was published in 2019. No dates are given, except for the 2016 Ball. There is nothing in the story that reflects that only one year of financial statements are being referred to, or if so, what year that was. If anything, the reference tying it to the 2016 Ball could be understood to mean the spending had extended from that time, otherwise the relevance of the timing of the Ball is unclear (except as to the applicant’s lifestyle). There is nothing in the story that would lead the viewer to conclude the “most recent financials” referred to are ACNC documents prepared for the 2017 financial year, or that the “most recent financials” relate to 2016/2017 financial year, it being 2019 when the Report was published. It is likely that the ordinary reasonable viewer could understand “most recent financials”, without more, to be a reference to the preceding financial year.

112    I do not accept the respondents’ submission that the ordinary reasonable viewer would understand that the reporter is summarising a one year period covered by a set of financial statements, and the matter complained of would not convey to an ordinary reasonable viewer that the Charity had only spent $5000 since 2016.

113    The respondents’ submission that the ordinary reasonable viewer would understand that the reporter was simply saying that the Charity fails to measure up to its stated aim, in that the claim is exaggerated, cannot be accepted. It attributes a subtlety or nuance to the Report which would not have been appreciated by the ordinary reasonable viewer given the context in which it was aired, including its juxtaposition with the Lamborghini, Mr Nassif’s construction business issues, the disparity in the figures advanced against the background and repeated references to their “lavish lifestyle”. The intonation used by the reporter in the Report, with the emphasis on certain aspects, does not suggest it is to be treated any differently to the other aspects of the Report, which are adverse to the Nassifs. This is in a broader story critical of them.

114    Contrary to the respondents’ contention, the ordinary reasonable viewer would not take from the Report that Mrs Nassif was some employee of the Charity without knowledge or involvement in the false statement. Rather the Report is premised on the Nassifs running the Charity, that is, it is their Charity. The language of the pleadings, which is that Mrs Nassif is running the Charity that made the false statement, picks up the language of the Report, and its meaning must be assessed in that context. The respondents’ submission that the Report did not say that Mrs Nassif was “aware of the false statement or involved in it or promulgating it or anything,” while literally correct, is artificial and ignores the nature of the false claim alleged to be imputed, and the context in which the Report is published.

115    The Report is not a complimentary report of Mrs Nassif or Wiping Tears. Other than to suggest something false on their part, this aspect of the Report serves no purpose whatsoever.

116    I accept that the applicants have established the first and second imputations. As noted above, the respondents submitted that if I was so satisfied that the imputations were carried, they accepted the imputations are defamatory.

117    I also accept that the third imputation arises and was carried. Although the respondents submitted that “there could be any number of legitimate reasons for a charity to raise some money and only spend a portion of it over a period,” that is not the tone in which this Report was presented. The applicants have established the third imputation is defamatory.

Contextual Truth

118    The contextual imputations advanced by the respondents are:

(1)    Mrs Nassif runs a charity which fails to measure up to its stated aim of helping disadvantaged families in that its most recently reported financials revealed that despite having assets of $210,000 the Charity only spent $5,000;

(2)    The most recently reported financial statements of Wiping Tears, a charity with the aim of helping disadvantaged families, disclosed that it had $210,000 in assets and had only spent $5,000; and

(3)    Wiping Tears fails to measure up to its stated aim of helping disadvantaged families in that its most recently reported financials revealed that despite having assets of $210,000 the Charity only spent $5,000.

119    The applicants accept that the contextual imputations arise.

Legal principles

120    The defence of contextual truth in s 26 of the Defamation Act is as follows:

Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that:

(a)     the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and

(b)     the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

121    There are three elements to the defence of contextual truth: first, the impugned matter carried one or more other defamatory imputations in addition to the pleaded defamatory imputations; second, that the contextual imputations are substantially true; and third, the pleaded defamatory imputations do not further harm the reputation of the applicant because of the substantial truth of the contextual imputations.

122    The first element requires a respondent to show that the impugned matter conveyed imputations which differ in substance from those pleaded by the applicant. Although the imputations must differ in substance from the pleaded imputations, they need not differ in kind: Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; (2015) 91 NSWLR 341 (Zeccola) at [42], [70]-[74], [112], [114]; Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384 (Domican v Pan Macmillan) at [32], for a recent discussion of this element see Palmer v McGowan [2021] FCA 430 at [13]-[19].

123    One method of testing whether two imputations differ in substance is to consider whether different evidence would be required to justify the different imputations. If the facts, matters and circumstances which the defendant would need to establish in order to prove the substantial truth of each imputation are the same, the imputations do not differ in substance: Domican v Pan Macmillan at [33]; John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 (John Fairfax v Hitchcock) at [188]. Although it has been recognised this is not the only way of determining the issue: John Fairfax v Hitchcock at [188].

124    As to the second requirement, the respondent bears the onus of proving that the contextual imputations conveyed were true in substance at the time of publication. The Defamation Act defines “substantially true” as meaning “true in substance or not materially different from the truth”: s 4.

125    As to the third requirement, it must be established that because of the substantial truth of the contextual imputations, the defamatory imputations which constitute the applicant’s cause of action do not “further harm” the applicant’s reputation: Defamation Act s 26(b). This is more than an exercise of comparing the two imputations: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [29] per McColl JA; McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 at [19] per McCallum J. The court’s focus is to assess the facts, matters and circumstances which establish the truth of the contextual imputation, rather than on the specific terms of the contextual imputation: John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541 at 543[5] per Spigelman CJ.

126    Recently, White J summarised the relevant principles on this requirement in Palmer v McGowan at [27]-[31]:

[27]    The third of the elements of the defence stated in Crosby v Kelly has also been the subject of consideration in the authorities. McColl JA explained in Fairfax Media v Kermode at [79] that:

[W]hen the tribunal of fact comes to the weighing exercise the contextual truth defence entails … it must be able to conclude that because of the substantial truth of the contextual imputations "the defamatory imputations" - that is to say the plaintiff's cause of action - do not further harm the plaintiff's reputation … [T]he focus is on comparing the defendant's contextual imputations with the plaintiff's cause of action.

[28]    This means that the “sting” in the pleaded imputations of contextual truth should exceed the “sting” of those imputations pleaded by the applicant: McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 in which McCallum J said at [19]:

… It may be accepted that the premise of the defence is the existence of some additional defamatory sting not sued on by the plaintiff. However, the defence does not compare imputation with imputation. The essence of the defence is to permit the defendants to put the plaintiff's imputations in their factual context according to the content of the whole of the article. The essence of the defence is that if, viewed in its factual context, the defamatory publication was true enough that no further harm to reputation was done by the particular imputations selected by the plaintiff, no remedy should lie.

[29]    In Abou-Lokmeh, McColl JA said at [29] that a “defence of contextual truth must defeat the whole defamatory matter of which the plaintiff complains, that is to say, all the plaintiff’s stings or imputations. The tribunal of fact must be able to conclude that, because of the substantial truth of the contextual imputations, the defamatory imputations which constitute the plaintiff’s cause of action do not further harm the plaintiff’s reputation”.

[30]    The authorities establish that, in making the assessment of whether, by reason of the substantial truth of the contextual imputations, the applicant did not suffer further harm by reason of his or her pleaded imputations, it is the combined effect of all of the established contextual imputations which is to be considered: Fairfax Media v Kermode at [79]. That is to say, the Court does not engage in a comparison of individual imputation against individual imputation: John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434, (2001) 53 NSWLR 541 at [4]-[6] per Spigelman CJ with whom Rolfe AJA agreed at [70]. In Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223 at [25], McCallum J referred to Blake and said that the Court is to consider whether, in the circumstances established by the evidence, the imputations on which the applicant has sued has not further injured his or her reputation. The pleaded particulars will give some indication of the matters which may be proved at trial, but the circumstance that the ultimate determination will depend on such an assessment indicates the appropriateness of the Court being particularly circumspect before striking out contextual imputations whose combined effect will have to be considered.

[31]    It has been said that the formulation of a contextual imputation requires some care to ensure the “facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff”: Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 at [42].

127    A defence of contextual truth must defeat the whole matter complained of, which is all of the defamatory imputations conveyed by it: Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [78].

Consideration

128    As to the first requirement, the applicants contend that the contextual imputations are not in addition to the defamatory imputations pleaded. It was submitted that the contextual imputations are more benign than the applicants’ imputations, and by operation of the single meaning rule, either the applicants’ imputations arise, and the respondents’ imputations do not, or the applicants’ imputations do not arise and the defence has no work to do. They submit that, in so far as Zeccola is said to be authority for the proposition that to satisfy the test for any contextual imputations which are “in addition to” the pleaded defamatory imputations, all they need to do is differ in substance from the applicants’ pleaded imputation, that decision is plainly wrong. It is said that approach is an impermissible gloss on the statutory language of s 26. The applicant referred primarily in that regard to the relevant second reading speech.

129    The respondents contend that the first and second imputations differ in substance; a false claim is a particular allegation – it is a claim alleged to have been made by the Charity which is false. It is submitted that the omission of this concept from the contextual imputations (which speak of the failure to measure up to an aim) means they differ in substance. The respondents accepted that the distinction between the third contextual imputation and the third pleaded imputation is less obvious, but that there is a difference in substance by reason of the use of the word “raised” in the pleaded imputation. This is different to an imputation which focuses on the asset position in recently reported financial statements.

130    As the respondents correctly contend, Zeccola has been repeatedly cited with approval: see for example, Brien v Mrad [2020] NSWCA 259 at [21], Fenn v Australian Broadcasting Corporation [2018] VSCA 166 at [49], Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19 at [44], Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781 at [44]; Palmer v McGowan at [17]. As is apparent, this includes by intermediate appellate courts.

131    There is some merit in the applicants’ submission that:

Whilst it is necessary for imputations to differ in substance to be imputations other and in addition to, it is not sufficient for them to only differ in substance. Rather, they must also arise at the same time as imputations of which the plaintiff complains. In this case the less serious contextual imputations would not occur to the viewer if the applicants’ imputations are carried. If the viewer understands the broadcast to be asserting “false claims” he or she would not also understand a mere “failing to live up to stated aim” being alleged.

132    It is not necessary to decide this point. Given the circumstances of this case, it would not affect the outcome, and therefore is not an appropriate vehicle for considering the applicants’ contention that Zeccola is incorrectly decided. Regardless of whether the defence was intended to apply to factual cases such as this because the contextual imputations are more benign than those complained of, the challenge to Zeccola does not advance the applicants’ case.

133    Even if the contextual imputations arise the defence would necessarily fail. That is at least because, even if substantially true, the respondents would not be able to establish that the defamatory imputations which constitute the applicants’ cause of action do not “further harm” the applicants’ reputation. Given the benign nature of the contextual imputations in comparison with the pleaded imputations, this requirement would not be established.

134    That said, as to the first requirement, at least the first two contextual imputations are different than those pleaded, in that they are more benign interpretations of the claims than those pleaded. As to the third contextual imputation, it is no different in substance from the third pleaded imputation.

135    As to the second requirement, the respondents contend that the contextual imputations are substantially true for the following reasons. First, the Charity did in fact have a stated aim of assisting disadvantaged families. Second, the only publicly available financial report for Wiping Tears at that time was the 2017 AIS. That submission was advanced perhaps more narrowly in writing, contending that “[a]s at the time of the matter complained of in February 2019, the 2017 AIS was the most recent and indeed the only piece of financial information concerning Wiping Tears on the ACNC Website” (emphasis added). The excerpt from the ACNC website confirms that the 2017 AIS was received on 30 January 2018. The 2018 AIS and financial statements were not received by the ACNC until 1 April 2019, approximately six weeks after the matter complained of was broadcast. Mr Monsted’s evidence was that while the 2018 AIS and financial reports were drafted around that time, the extension granted that year meant they were not required to be lodged until 1 April 2019. The point is that as at the date of the matter complained was published, the description given to the 2017 AIS of the “most recently reported financials” was substantially accurate. There is no evidence that other more recent “reported financials” actually existed (whether publicly reported, or reported to the ACNC or any other body) and indeed the evidence of Exhibit 8R and of Mr Monsted is to the contrary. Third, the 2017 AIS did in fact reveal total assets of $210,000 and expenditure of $5,000.

136    In so far as the applicants point to reliance on the AIS Guide as to how the AIS is to be completed, the respondents contended that the 2017 AIS is a self-contained document, which does not refer to the AIS Guide. If the AIS Guide had been incorporated into the Report it would have made no sense. Pausing there, I note that the reference to the AIS Guide was not necessarily that it be included in the Report, but rather, a consideration of the AIS Guide by the reporter would have altered his interpretation of the 2017 AIS and meant that the figures were described more accurately in the Report. The respondents submitted that even when the 2017 AIS Guide is considered there is no unfairness such as to render the contextual imputations untrue. Mr Monsted made an election not to disclose the additional $28,714 in beneficiary payments based on his interpretation of the AIS Guide. The fluidity of the rules and the manner in which they are open to interpretation was exposed in the cross-examination of Mr Monsted as to the accounting treatment of a $1,000 donation made on 29 May 2017. Given this, there was no logical basis to disclose the $28,714 of payments to families within the 2017 Profit and Loss Statement but omit them from the 2017 AIS. There is nothing unfair in relying on the 2017 AIS without reference to a guide which might be interpreted in various ways by a particular charity. Even if the AIS Guide clearly imposed a mandatory requirement to exclude the $28,714 from disclosure in the 2017 AIS because it was a movement in equity, the actual position as revealed in the 2017 Profit and Loss is not so different from the 2017 AIS. If the correct figure for donations is approximately $29,714 then the viewer would not have received a substantially different impression. Even if the respondent had reported the additional $28,000 of donations made by the Charity, that would still be a relatively low amount and not impact on the substantial truth of the Report. The point made in the matter complained of remains valid. Considering its total assets, the 2017 AIS does point to the Charity having had an inactive year where it had not measured up to its stated aim.

137    The applicants submitted that the contextual imputations relied on are not substantially true. It contended that to establish substantial truth, the respondents need to prove that: the 2017 AIS was the Charity’s most recently reported financials; the most recently reported financials revealed that Wiping Tears had assets of $210,000; and the most recently reported financials revealed that Wiping Tears only spent $5,000. The applicants submit this is in the context where none of the contextual imputations limit the $5,000 expenditure to a particular year (or other time period). The only time period indicated in the Broadcast is from the Blossom Ball in 2016, three years before the Broadcast.

138    The applicants summarised Mr Monsted’s experience and evidence. They submitted that he is a careful, experienced accountant with some 43 years’ accounting experience.

139    The applicants submitted that the respondents did not put to Mr Monsted that the 2017 AIS was Wiping Tears’ most recently reported financials as at February 2019. He was not asked about the financial records that Wiping Tears maintained as at and prior to 2019. Mr Monsted gave evidence that Wiping Tears’ records are prepared on an annual basis. Profit and Loss statements and balance sheets are generated each year by his firm on behalf of the Charity. The respondents have failed to discharge their evidentiary burden on the issue of the 2017 AIS being the most recently reported financials of Wiping Tears. The applicants submitted that the evidence tends to suggest that there were more recent financial records by way of Profit and Loss statements and balance sheets for at least 2018 as at February 2019.

140    The applicants submitted that the respondents contention that “reported financials” can only refer to the Annual Information Statements that were available online at the time of the matter complained of, cannot be maintained. There is no evidence that the date that they became available on the ACNC website corresponds with when they were lodged. A reference to the 2017 AIS as “reported financials” is inapt. It contains no details at all, merely a statement, without the supporting financial documents, prepared in accordance with the AIS Guide pursuant to Wiping Tears’ obligations by reason of its ACNC registration. Financial reports are generated for a variety of reasons, least of which relate to charitable reporting obligations.

141    The applicants do not accept that Wiping Tears’ “most recently reported financials” as at the time of the matter complained of show that it had $210,000 in assets. Rather, the 2017 AIS showed that the Wiping Tears had, at 30 June 2017 (nearly two years earlier), $210,000 in assets.

142    They submitted that the uncontradicted evidence establishes that in the financial year ending June 2017, the applicants made donations or grants totalling in excess of $5,000. In particular, by the end of June 2017, Wiping Tears had made in excess of $146,000 worth of donations and grants to beneficiaries. By the time the matter complained of was broadcast, the applicants had made at least $328,000 worth of grants to beneficiaries and donations. This figure does not account for any of the grants or donations made between July 2018 and February 2019. Wiping Tears’ financial records show that in the financial year ending June 2017 it generated around $45,000 of revenue and made nearly $30,000 worth of donations and grants. The applicants contended that the matter complained of, broadcast in 2019, refers to the Blossom Ball held in 2016 and then to “the most recently reported financials”. As per the figures extracted above, it is plain that the Charity had made significant donations and payments to beneficiaries in the years since its inception and the 2016 Ball.

143    In any event, the 2017 AIS did not represent the donations and charitable payments that had been made by Wiping Tears. The $5000 figure only reflects expenses incurred, because no grants and donations had been made from revenue received in that financial year. This is separate to distributions or grants made from equity or reserves of the Charity. Mr Monsted explained that this was based on his professional understanding of what was required to be disclosed in the 2017 AIS as identified in the 2017 AIS Guide. The vast majority of the beneficiary payments made by Wiping Tears in the financial year ending June 2017 were treated as a distribution made from the equity/reserves of the Charity. It was submitted that to the extent that the respondents sought to dispute or question Mr Monsted’s treatment of the grants and donations in the relevant financial year as being made from equity or reserves, they had to call an accountant with the requisite experience. No such witness was called.

144    The applicants also submitted that Mrs Nassif and Ms Helou gave evidence on behalf of Wiping Tears. It was not put to either of them that the allegations contained in the respondents’ contextual imputations were true. Each of the imputations allege that the Charity was in some way a failure. Mrs Nassif was not given the opportunity to respond to that allegation, nor was Ms Helou on behalf of Wiping Tears. As is plain from the above analysis, the respondents’ contextual imputations are not substantially true.

145    Pausing there, contrary to the applicants’ contention, a print out from the ACNC website (Exhibit 8R tendered by the respondents) appears to reflect that the 2018 AIS was received on 1 April 2019. The 2017 AIS appears to be the AIS that appeared on the ACNC website as at February 2019. I note also while dealing with this document, that it is apparent that such statements are not always required to be filed. There is no evidence as to what appeared on the website relating to when the next statement was due when it was accessed in February 2019. It appears that the statements tended to be due at the beginning of the year.

146    That said, that does not resolve the issue of whether the 2017 AIS was the “most recently reported financials”.

147    The respondents bear the onus of establishing that the contextual imputations are substantially true. They rely entirely on the 2017 AIS. A guide is published on the ACNC website containing instructions on how to complete it. The AIS statement is a document which is sometimes, but not always, required to be completed by a charity. Mr Monsted gave evidence on his interpretation of the instructions and the manner in which he completed the 2017 AIS in accordance with them. The respondents do not suggest, nor is there a basis to suggest that Mr Monsted acted other than in a bona fide way. That being the case, his evidence as to the recordings is in effect unchallenged. Given the onus is on the respondents, there is no basis in the cross-examination of Mr Monsted to enable a conclusion than he acted in that manner. No evidence was called to suggest that his approach was incorrect. If the respondent wished to challenge the evidence they were required to adduce such evidence. It follows that the $5000 is not the amount given in donations and grants for that year, but rather it was $28,714. It also follows that although the Charity had assets of $210,000 the revenue it had generated for that year was $45,000.

148    Putting that to one side, regardless of the financial figures, importantly, as the applicants submitted, Mr Monsted was also not asked in cross-examination whether the document relied on by the respondents was the “most recently reported financials”.

149    The respondents’ submission was that the 2017 AIS was the “most recently reported financials” because it was “open to the public”. That begs the question as to what is meant by the “most recently reported financials”. However, that last phrase “open to the public” is not one used in the Seven News Report, and does not qualify the preceding statement.

150    In any event, there was no evidence that the 2017 AIS was the most recently reported financial open to the public. Contrary to the respondents’ contention, that is not established by Exhibit 8R.

151    Exhibit 8R relates only to the ACNC website. There was no evidence of any other searches made. Moreover, as the applicants submitted, most financial documents of companies are not open to the public (for example taxation records) and Mr Monsted was the witness who could have addressed the issue, if asked in cross-examination. The respondents’ submission was that the next AIS was not lodged until April 2019, after the Seven News Report aired. However, that says nothing about any other documents. The respondents rely on an inference there are none. There is an absence of evidence on the topic, on which they bore the onus.

152    As the applicants also submitted, the contextual imputations have no temporal limitation. They are not confined to a one year period. They do not refer to this being 2017. As explained above, considered in context, the ordinary reasonable viewer would have taken from the Report that the Charity had only spent $5000 since the Blossom Ball in 2016. The respondents cannot establish the truth of that imputation. The figures referred to by the applicant above at [71] were not challenged. That reflects that more than $5000 was donated during that time.

153    The respondents have not established this requirement.

154    In any event, even if the respondent had established the second element, in my view, the third requirement is not established. As the respondents recognised, to advance the argument that the contextual imputations are different in substance from the pleaded imputations, the notions of a false claim are different. The pleaded imputations are not more benign than the contextual imputations. The sting, given the nature of the false claim, carries with it greater harm.

155    The respondents have failed to establish the defence of contextual truth.

Fair summary of a public document

156    The public document in question relied on by the respondents for this defence is the 2017 AIS lodged on 30 January 2018 on the ACNC website where the document was made publicly available.

Legal principles

157    This defence appears in s 28 of the Defamation Act, which is as follows:

Defence for publication of public documents

(1)    It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in:

(a)     a public document or a fair copy of a public document, or

(b)    a fair summary of, or a fair extract from, a public document.

(2)     For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non-compliance with a provision of that law about:

(a)    the formal requirements for the content or layout of the report or document, or

(b)     the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body, the report or document is a public document despite that non-compliance.

(3)     A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4)     In this section, public document means:

(a)    any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or

(b)     any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including:

(i)     any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and

(ii)     any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or

(c)     any report or other document that under the law of any country:

(i)     is authorised to be published, or

(ii)     is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or

(d)     any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or

(e)     any record or other document open to inspection by the public that is kept:

(i)     by an Australian jurisdiction, or

(ii)     by a statutory authority of an Australian jurisdiction, or

(iii)     by an Australian court, or

(iv)     under legislation of an Australian jurisdiction, or

(f)     any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or

(g)     any document of a kind specified in Schedule 2.

158    It follows that to establish this defence the respondents must prove that the 2017 AIS was a “public document” and the pleaded imputations are imputations that arise from a fair summary of the 2017 AIS. The matter must also identifiably bear the character of a “summary” of a public document: Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687 at [873], [892]-[893]. It is not sufficient that the public document in question is a source of information for the matter complained of; it must be apparent that the matter is purporting to summarise the contents of the public document: Rogers v Nationwide News Pty Ltd [2003] HCA 52 (2003) 216 CLR 327 (Rogers) at [18].

159    The evaluation of whether the Seven News Report is a fair summary of the 2017 AIS is taken from the position of the ordinary reasonable viewer seeing the Report as a whole rather than dissecting it or only viewing some parts of it: Cummings v Fairfax Digital Australia & New Zealand Pty Limited; Cummings v Fairfax Media Publications Pty Limited [2017] NSWSC 657 at [88] (Cummings). It “is not whether some parts of the publication fairly summarise what was contained in the [2017 AIS], but whether the publication as a whole can be so described”: Cummings at [89]. Where there is some extraneous material included, being material that does not arguably summarise the pleadings, the publication as a whole may be deprived of its categorisation as a fair summary of the relevant public document: Cummings at [89]. To be fair and accurate, a report need not be a complete report or be accurate in every respect; it must be substantially accurate. This is a question of fact: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1998) 193 CLR 519 at [42]. There may be errors in the summary, but the protection of the defence will not be lost unless there is a “substantial misrepresentation of material fact which is prejudicial to the [applicant’s] reputation”: Cummings at [102]

160    The defeasance under s 28(3) presents a difficult burden for an applicant. A court may look at the result the respondent sought to achieve by their publication. The purpose of the publication will usually be evident from the terms of the matter complained of and the vehicle in which it is published: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 (Waterhouse v Broadcasting Station 2GB) at 63, Cummings at [239]-[240].

Submissions

161    The respondents submitted that as at 16 February 2019 the evidence was that the 2017 AIS was in fact the only publicly available account for Wiping Tears (Exhibit 8R). It had been uploaded to the ACNC website on or about 30 January 2018. The subsequent 2018 AIS was not uploaded until 1 April 2019. In those circumstances it does not matter that the document was not explicitly identified by its formal title in the Broadcast, as it was identified as a matter of substance. The ordinary reasonable viewer would understand that a summary of the most recently reported financials was being attempted, particularly as the words used by Mr Seymour were that he describes taking a “look” at the most recently reported financials. The summary may be brief but given that the 2017 AIS itself contains limited information, that is unsurprising.

162    The respondents submitted that, considered as a whole, the matter complained of does include a fair summary of the document. The only other detail of any significance from the 2017 AIS omitted from the matter complained of is the revenue amount of $45,050. Reference to, or inclusion of this amount would not have changed the overall impression provided to the viewer and would not have created an impression more favourable to the applicants. The omission of this detail does not render the summary unfair.

163    The respondents accept that if the 2017 AIS is not sufficiently identified, the defence must fail.

164    The applicants raised that the 2017 AIS is not referenced in the Report. In response, the respondents submitted that as only one document could possibly have been available to the general public the description of “most recently reported financials” was an adequate description, so as to identify the 2017 AIS statement.

165    The applicants submitted that this does not identify whose most recently reported financials are in issue, when they were reported (and to whom), what the “financials” were and conflates financial records with a statement prepared in accordance with the ACNC guidelines. It was submitted that the 2017 AIS cannot be characterised as “reported financials” given the limited purpose it serves. The reasonable person would not associate an AIS statement with “reported financials” notwithstanding Wiping Tears’ status as a charity. The ordinary reasonable viewer would not understand they were listening to a summary of the 2017 AIS.

166    The applicants submit that the Report taken as a whole, does not purport to be a summary of the 2017 AIS. By reason of the overwhelming extraneous material, the Report is deprived of any characterisation as being a fair summary of the 2017 AIS.

167    The applicants submitted that, the words it “reveals they [the Nassifs and Wiping Tears] did very little to help anyone”, followed by a reference to the Blossom Ball in 2016, do not derive from or properly summarise what is contained in the 2017 AIS. The comments identified above are not differentiated from the material said to derive from the 2017 AIS and that the viewer could not decipher the extent to which the statements travelled beyond the 2017 AIS, citing Macquarie Radio Network Pty Ltd v Arthur Dent [2007] NSWCA 261 at [72].

168    The applicants submitted the 2017 AIS has three main figures in it: assets of $210,000; revenue of $45,000 and expenses of $5000. The Report only compares the larger figure ($210,000), with the smaller figure ($5000). It is submitted that the $5000 is also a mischaracterisation. The applicants submitted that the Report was not informing the public of the true financial situation in that document. They submitted that this resulted in a substantial misrepresentation of material facts which are prejudicial to the applicants’ reputations.

Consideration

169    I accept the applicants’ submission that the reference to “most recently reported financials” would not have, in the circumstances, been understood by the ordinary reasonable viewer to be a reference to the 2017 AIS. The reference to most recently reported financials does not identify that item. First, nothing in the story identifies that what was being reported was the financial position in 2017. Second, the AIS is a particular type of document, and not one which the ordinary reasonable viewer would know of or consider to be financials (as used in the Report). It is a document relevant only to charities, and even then, depending on the size of the charity the document is not necessarily required to be completed each year. As previously explained, I do not accept the respondents’ submission that the ordinary reasonable viewer would have understood the reference to be to the 2017 AIS merely because it was the only “financial” publically available. I do not accept the underlying premise has been established or that, even if it was, that the inference contended for arises.

170    As the document is not identified, or sufficiently identifiable, the respondents have failed to establish the defence.

171    In any event, I also accept the applicants’ submission, that even if the 2017 AIS was identified, the Report is not a fair summary of it. The brief report contains extraneous material, which could not be differentiated by the reasonable viewer. I note in this context the applicants submitted that 80 percent of the Broadcast related to other material and therefore it cannot be a fair summary of the 2017 AIS. Attributing a percentage figure to the submission does not assist. The Report does not include all relevant figures, and mischaracterises one. As the applicants submitted, of the three main figures in the 2017 AIS, the annual revenue of $45,000 is not reported on. The Report only compares the largest figure ($210,000), with the smallest one ($5000), which figure itself was a mischaracterisation. The Report was not informing the public of the true financial situation contained in that document.

172    As I have found that the Report does not attract the protection of a “fair summary” it is unnecessary therefore to address the issue of defeasance.

Honest opinion

173    The defence of honest opinion contained in s 31 of the Defamation Act is as follows:

Defences of honest opinion

(1)     It is a defence to the publication of defamatory matter if the defendant proves that:

(a)     the matter was an expression of opinion of the defendant rather than a statement of fact, and

(b)     the opinion related to a matter of public interest, and

(c)     the opinion is based on proper material.

(2)     It is a defence to the publication of defamatory matter if the defendant proves that:

(a)    the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and

(b)     the opinion related to a matter of public interest, and

(c)     the opinion is based on proper material.

(3)     It is a defence to the publication of defamatory matter if the defendant proves that:

(a)     the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and

(b)     the opinion related to a matter of public interest, and

(c)    the opinion is based on proper material.

(4)     A defence established under this section is defeated if, and only if, the plaintiff proves that:

(a)     in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published, or

(b)     in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or

(c)     in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

(5)     For the purposes of this section, an opinion is based on proper material if it is based on material that:

(a)     is substantially true, or

(b)    was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or

(c)     was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(6)     An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

174    Therefore, to establish this defence, a respondent must prove that:

(1)    the matter complained of was an expression of opinion of the respondent and/or an employee/agent rather than a statement of fact;

(2)    the opinion related to a matter of public interest; and

(3)    the opinion was based on proper material.

175    If those matters are established, the onus shifts to an applicant to prove by way of defeasance that the opinion was not honestly held by the respondent.

176    An opinion is “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.”: John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) ATR 81-789 (John Fairfax v O’Shane) at [25]-[26]; Marshall v Megna [2013] NSWCA 30 at [361]; Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 (Stead) at [128]. The line between comment and statement of fact will often not be clear: John Fairfax v O'Shane at [27]; Stead at [129]. As observed in Manock at [36], “[t]he question of construction or characterisation turns on whether the ordinary reasonable ‘recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered’- not ‘an exceptionally subtle’ recipient, or one bringing to the task of ‘interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at’”.

177    The facts on which the comment is based must be stated or indicated with sufficient clarity to make it clear that what is being said is a comment on those facts. The opinion must be sufficiently linked to the facts being commented on by either those facts being stated in the matter complained of, being sufficiently referred to within the matter complained of, or being notorious: Manock at [4]-[9], [45], [49], [68]; Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290; (2015) 90 NSWLR 695 (Harbour Radio v Ahmed) at [41]; Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 531-532.

178    As the High Court observed in Manock at [37], referring to Blackburn CJ in Comalco v ABC at 40:

The present circumstances create two particular difficulties for the defendant in resisting the conclusion that the material was fact, not comment. First, it is harder for a viewer of television to distinguish fact and comment than it is for a person reading printed material, as Blackburn CJ noted:

"It is obvious that a television viewer receives a succession of spoken words and visual images, which he is unable to have repeated for the purpose of reflection or clarification; whereas a reader of printed material normally has it all before him at will, and has unlimited facilities for re-reading. In my opinion it is important in the case before me, when considering whether there is material which can be perceived to be comment, as distinct from fact, but based upon stated fact, to remember that the viewer sees and hears the material simultaneously, and only once."

179    The circumstances of the listener will, in practical terms, differ from those of a reader. The reader will ordinarily be better placed to distinguish fact from opinion than a person hearing spoken words: Harbour Radio v Ahmed at [40], and see State of New South Wales v IG Index Plc [2007] VSCA 212; (2007) 17 VR 87 at [48]- [53].

180    The defence of honest opinion must be responsive to an applicant’s pleaded imputations, because by the time the Court comes to consider it, the question of meaning will already have been determined adversely to the respondent: Manock at [83]. The defence must respond to the level of substance of the imputation, not the particular form of words the imputation has been articulated divorced from its context within the matter: Harbour Radio v Ahmed at [44]; O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [45]-[46], [49]-[50].

Submissions

181    The respondents submitted that the phrase “reveals they did very little to help anyone” is an expression of opinion. They submitted that the reporter then referred to the Blossom Ball Fundraiser in 2016 and set out two of the figures in the most recently reported financial statement. If follows, the respondents contended that the viewer is aware of the facts relied upon by the reporter and is able to appreciate the phrase “they did very little to help anyone” represents a conclusion or criticism based solely on those facts. The respondents submitted that should the Court have found the first and second imputations established, properly construed, those imputations represent expressions of opinion. This is because the “falsely claimed” element is a conclusion or inference deriving from the words “reveals they did very little to help anyone”.

182    The respondents submitted that it does not matter that the most recently reported financials are not explicitly identified in circumstances where they have been accurately summarised. They submitted in the alternative, a viewer could have searched and obtained the 2017 AIS themselves as it was the only publicly available document which existed that could possibly satisfy that description. Acknowledging that it may have taken some effort by the viewer, it was possible for anyone who wished to access the 2017 AIS to do so. The respondents submitted that the existence of the AIS Guide does not affect the status of the 2017 AIS as proper material for comment. If that submission is not accepted, the respondents relied on the alternative position contained within s 31(6) of the Defamation Act.