Federal Court of Australia

Gould v Jordan (No 2) [2021] FCA 1289

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent is to file and serve by 4 pm on 28 October 2021:

(a)    his proposed orders to give effect to the Court’s judgment today;

(b)    any affidavit to be relied upon on the question of costs; and

(c)    an outline of submissions not exceeding 5 pages on the question of costs.

2.    The Applicant is to file and serve by 4 pm on 3 November 2021 :

(a)    his proposed orders to give effect to the Court’s judgment today to the extent that he proposes orders different from those proposed by the Respondent;

(b)    any affidavit to be relied upon on the question of costs; and

(c)    an outline of submissions not exceeding 5 pages on the question of costs.

3.    The matter is adjourned to 2.15 (ACDT) on Friday, 5 November 2021 for consideration of the orders to be made and the question of costs.

4.    There be liberty to the parties to apply.

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

REASONS FOR JUDGMENT

WHITE J:

Introduction

1    This is a judgment on questions in defamation proceedings which the Court ordered to be heard and determined separately from other issues.

2    The applicant is Mr Vanda Gould, a tax accountant. The respondent is the Commissioner of Taxation, Mr Jordan.

3    On 5 July 2017, Mr Jordan was the guest speaker at a lunch at the National Press Club (the NPC) held in Canberra. It was common ground that a good number of those present at the NPC lunch were working journalists. Mr Jordan’s address was broadcast on ABC Radio and Television. Mr Gould pleads that there were other forms of publication of Mr Jordan’s remarks, as well as reporting of them. Save that it seemed to be common ground that Mr Jordan’s address was widely reported, the extent of the publication was not an issue in the first stage trial.

4    Mr Jordan addressed a number of topics, including the “health of the [tax] system”, relationships between taxpayers and the Australia Taxation Office (the ATO), Operation Elbrus (a joint operation between the ATO, the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC)), information technology issues within the ATO, challenges faced by the ATO (including reducing the gap between taxation liabilities, on the one hand, and the amounts of taxation actually paid, on the other) “phoenix” activity and taxation audits. It was evident that one of Mr Jordan’s themes was to provide assurance that the Australian tax system was being administered appropriately and, in doing so, to address matters which may have undermined confidence that that was so.

5    At the end of his address, Mr Jordan answered questions from journalists. One question invited him to give details concerning a reported settlement of a dispute between a high profile Australian and the ATO. The question was relevantly as follows:

Tom Minear from the Herald Sun. Thanks for your speech, Commissioner. You talk in your speech about people calling the Tax Office names. Paul Hogan called you mongrels a while ago and threatened to sue …

He obviously took offence to the fact that you’d suggested at Senate Estimates that he paid a settlement worth tens of millions of dollars with the Tax Office. Can you clear this up for us? Has he paid a settlement? What was it worth, and have you launched any legal action after that?

6    Mr Jordan commenced his response by saying:

Look, I would dearly love to clear that up, but I’m not going to do it here.

I’d rather do it under Parliamentary privilege at an Estimates place. But what I can say to you is there’s very often two sides to a story, and historically people come out strongly with one side of a story, and I think in that case – there was even a case in the US, it’s on public record that $30 million was held by this Swiss accounting firm and he wanted to get it back, and the US courts said they didn’t have jurisdiction, et cetera. You know, there’s all sorts of complexities around there. His lawyer said he’d need a whiteboard to explain what the settlement was. Well, why would you need a whiteboard to explain a settlement? He used the word settlement, not me; he said that publically.

7    Mr Jordan then continued his response to the question by saying:

8    There are some immaterial differences between this transcript of Mr Gould’s remarks recorded in the audio-visual tape admitted into evidence (which is that annexed to the Statement of Claim and admitted in the Amended Defence) and that contained in the parties’ agreed Tender Bundle. The sentence numbering has been added for ease of later reference.

9    As was noted in Jordan, Commissioner of Taxation v Second Commissioner of Taxation [2019] FCA 1602 at [11], Project Wickenby was an agency taskforce into international tax evasion conducted by the AFP, ACIC, the Australian Securities and Investments Commission (ASIC) and the ATO. This seemed to be common ground in the present proceedings.

The issues on the pleadings

10    Mr Gould’s Statement of Claim pleads that Mr Jordan spoke the words in the numbered sentences (the impugned statements) with reference to him and that they conveyed the following defamatory meanings (or meanings not substantially different from them):

(a)    [he] had engaged in the worst kind of money laundering;

(b)    [he] had engaged in the worst kind of insider trading; and

(c)    [he] had engaged in the worst kind of tax fraud.

11    Mr Gould alleges that, by reason of Mr Jordan’s statements, he has been brought into hatred, ridicule and contempt, has been gravely injured in his character and reputation, and has suffered hurt and embarrassment. He claims damages, including aggravated damages.

12    By his Amended Defence, Mr Jordan admits making the impugned statements but does not admit that those statements were published “of and concerning” Mr Gould. He denies that the impugned statements were reasonably capable of conveying, and did in fact convey, the first and second imputations pleaded by Mr Gould and does not admit that his statements were defamatory of Mr Gould.

13    Mr Jordan then raises a number of substantive defences. These are:

(a)    justification, relying on s 135 of the Civil Law (Wrongs) Act 2002 (ACT) (the CLW Act) and its counterpart in s 25 of the Uniform Defamation Acts of the States and the Northern Territory (the UDA);

(b)    contextual truth, relying on s 136 of the CLW Act and its counterpart in s 26 of the UDA. As part of this defence, Mr Jordan alleges that, if the impugned statements did convey the imputations pleaded by Mr Gould, they also conveyed the imputation that Mr Gould is dishonest (the Contextual Imputation) and that that imputation is substantially true;

(c)    publication of a fair summary of a public document, relying on s 138 of the CLW Act and its counterpart in s 28 of the UDA. Mr Jordan alleges that the impugned statements were a fair summary of, or a fair extract from, the judgment of Perram J in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392; (2014) 100 ATR 244 (HWBB v CoT);

(d)    fair report of proceedings of public concern, relying on s 139 of the CLW Act and its counterpart in s 29 of the UDA. Mr Jordan again relies upon the HWBB v CoT;

(e)    qualified privilege at common law by reason that the impugned statements were a proportionate response to attacks on him and the Australian Taxation Office (ATO); and

(f)    the failure of Mr Gould to accept a reasonable offer to make amends, relying on s 130 of CLW Act and its counterparts in the UDA.

14    In addition, Mr Jordan denies that Mr Gould has suffered any damage as a result of the impugned statements and alleges that, if he did, the damages to which he may be entitled are mitigated by a number of matters which, for present purposes, it is not necessary to identify.

15    By his Reply, Mr Gould joins issue with the Amended Defence. He alleges specifically:

(a)    the defence of publication of public documents for which s 138 of the CLW Act and s 28 of the UDA provide is not available to Mr Jordan because the impugned statements were not published honestly for the information of the public or the advancement of education (s 138(3) of the CLW Act);

(b)    similarly, the defence of fair report of proceedings of public concern for which s 139 of the CLW Act and s 29 of the UDA provide is not available to Mr Jordan because the impugned statements were not published honestly for the information of the public or the advancement of education (s 139(3) of the CLW Act); and

(c)    the defence of qualified privilege is not available to Mr Jordan because the impugned statements were predominantly actuated by malice.

The separate questions

16    On 19 August 2020, the Court ordered that certain questions in the proceedings be heard and determined separately from, and prior to, all other questions arising in the proceeding: Gould v Jordan [2020] FCA 1191. Following some revision on 2 September 2020, the questions to be heard and determined separately are:

(a)    whether Mr Gould was identified by the impugned statements, as pleaded at [3] of the Statement of Claim;

(b)    if Mr Gould was identified by the impugned statements, whether those statements were reasonably capable of conveying, and did in fact convey, the imputations pleaded at [3(a)] and [3(b)] of the Statement of Claim.

(c)    whether any imputations conveyed by the impugned statements were defamatory of Mr Gould;

(d)    whether Mr Jordan has established the defence of publication of a public document under s 138 of the CLW Act, as pleaded at [5(c)] of the Amended Defence;

(e)    whether Mr Jordan has established the defence of fair report of proceedings of public concern under s 139 of the CLW Act, as pleaded at [5(d)] of the Amended Defence;

(f)    whether Mr Jordan has established the defence of qualified privilege (reply to attack), as pleaded at [5(e)] of the Amended Defence;

(g)    whether the impugned statements were reasonably capable of conveying, and did in fact convey, the contextual imputation pleaded at [5(b)] of the Amended Defence.

(h)    if Mr Jordan has established the defence of publication of public documents under s 138 of the CLW Act, whether Mr Gould has established that the impugned statements were not published honestly for the information of the public or the advancement of education, as pleaded at [2] of the Reply;

(i)    if Mr Jordan has established the defence of fair report of proceedings of public concern under s 139 of the CLW Act, whether Mr Gould has established that the impugned statements were not published honestly for the information of the public or the advancement of education, as pleaded at [3] of the Reply; and

(j)    if Mr Jordan has established the defence of qualified privilege (reply to attack), whether Mr Gould has established that the publication of the impugned statements was actuated by malice, as pleaded at [4] of the Reply.

17    The evidence which the Court received at the first stage of the trial was wholly documentary and comprised tendered documents to which the parties had agreed.

Further background

18    Mr Jordan has been the Commissioner of Taxation since 1 January 2013.

19    It was common ground that the “Hua Wang Bank case” to which Mr Jordan had referred in the first sentence of the impugned statements was the litigation which was the subject of the judgment at first instance of Perram J in HWBB v CoT delivered on 19 December 2014, the subject of the judgment of the Full Court on appeal in Bywater Investments Ltd v Commissioner of Taxation [2015] FCAFC 176, (2015) 236 FCR 520 (Bywater Full Court), and the subject of the judgment of the High Court of Australia in Bywater Investments Ltd v Commissioner of Taxation [2016] HCA 45, (2016) 260 CLR 169 (Bywater HCA) (collectively, the HWB Litigation). At the first instance trial, Perram J found that Mr Gould was the individual who exerted ultimate control over five corporate entities, including Hua Wang Bank Berhad.

20    The trial in the HWB Litigation commenced on 16 September 2013 and continued over 24 days until 20 November 2013 when Perram J reserved judgment. It involved challenges by five corporate entities to decisions of the Commissioner of Taxation (a predecessor of Mr Jordan) disallowing objections by the companies to taxation assessments. Perram J summarised at [1] in HWBB v CoT, the income years in dispute and the amounts of taxation in dispute:

21    The Commissioner’s case in the HWB Litigation was that each of the companies had its place of central management and control in Australia and that they were completely controlled by Mr Gould. As Perram J noted at [3(a)], if that contention was made good, it entailed each of the companies being an Australian resident (Income Tax Assessment Act 1936 (Cth) (ITAA 1936), s 6(1) and in turn rendered each of them liable to income tax on all sources of income whether inside or outside Australia: Income Tax Assessment Act 1997 (Cth) (ITAA 1997), ss 6-5(2), 995-1(1). Each of the companies contended that its place of central management and control was in an overseas location (variously Apia in Samoa, London or Neuchâtel in Switzerland) because that is where their directors met or made actual decisions about the share transactions in question.

22    The companies also contended that whether Mr Gould had been “pulling all of the strings from Sydney” was immaterial because the issue as to their place of central management and control was to be determined by reference to where their decisions, as a matter of formality, were made.

23    The issue as to the place of management and control of the five companies was the central issue in the trial but there were other issues bearing upon the assessment of the amount of taxation which was payable, and consequential matters.

24    Mr Gould did not give evidence in the HWB Litigation. However, Mr Peter Borgas, the sole shareholder of JA Investments Ltd, did give evidence. He claimed that he had made the management decisions for each company, other than Southgate Investment Funds Limited.

25    The findings of Perram J concerning the control of the companies included:

    their directors exercised no independent judgment in the discharge of their offices but instead merely carried into effect Mr Gould’s wishes in a mechanical fashion, at [60];

    the evidence of Mr Borgas about the manner in which investments were made by the companies was false, as was the document trail generated by him to support it, at [67];

    Mr Borgas’ evidence about his beneficial ownership of JA Investments indicated that he was a witness who was willing to lie on oath, at [98];

    the true owner of JA Investments and the person in actual control of it was Mr Gould as Mr Borgas did nothing in relation to its affairs other than giving effect to Mr Gould’s will, at [110];

    Mr Borgas did not know what was happening in the HWB Litigation because it was not his case. Instead, the litigation was being conducted by Mr Gould, for Mr Gould, and Mr Borgas’ role was to turn up when requested, at [115]-[116];

    Mr Borgas’ evidence in any area of controversy was unreliable, at [148];

    the Commissioner had established an overwhelming case that it was Mr Gould who controlled Chemical Trustee and not Mr Borgas, at [277], [311]; that it was Mr Gould who made all of its decisions; that Mr Borgas had not been involved in them, at [314]; that Chemical Trustee’s real business was conducted from Sydney by Mr Gould; and that the role of Mr Borgas was fake as he had simply implemented Mr Gould’s instructions and then generated a false document trail to make it appear otherwise, at [405]. Perram J concluded, at [408]:

[T]he case that Mr Gould ran [Chemical Trustee] in its every aspect from Sydney is overwhelming. It is overwhelming because he went to great lengths to conceal his role but these lengths, as events have transpired, have proved insufficient and the whited sepulchre exposed for what it is …

    Mr Borgas had deliberately attempted to conceal Mr Gould’s true role, first, by generating a large amount of contemporaneous but essentially deceitful correspondence to make it appear that he had made decisions which he had not, and, secondly, by giving deliberately false evidence to the Court, at [312];

    Mr Gould had acquired the services of Anglore, a company associated with Mr Borgas, because he wished to make it appear that certain money flows were not his, at [313];

    the position with respect to Derrin Brothers was largely the same as that of Chemical Trustee. Given that Mr Borgas was “a thoroughly discreditable witness” his evidence concerning Derrin Brothers was not accepted, at [316];

    Hua Wang Bank was under the control of Mr Gould and existed to assist him and his clients in passing money out of Australia through Samoa and then back into Australia to a closely related associate, at [323];

    it was Mr Gould, and Mr Gould alone, who controlled the activities of Hua Wang Bank, at [352], and every transaction which it carried out was done on the instructions of Mr Gould, at [354], [364]; and

    the position in respect of Derrin Brothers, Bywater Investments and Southgate Investments was similar to that of Chemical Trustee, at [410]-[414].

26    Perram J concluded that the elaborate but unsuccessful attempts to make it appear that Mr Gould did not own Hua Wang Bank suggested the presence of dishonesty but that it was not necessary to express a concluded view about that or whether Hua Wang Bank was in effect “a commercial laundry”, at [415], [419].

27    Perram J then addressed other issues bearing upon the quantification of the taxation liabilities of the companies. It is not necessary for present purposes to note his Honour’s findings with respect to those matters.

28    The final two paragraphs in HWBB v CoT are:

[484]    Each of the taxpayers was resident in Australia and liable to pay income tax. Assuming that Chemical Trustee, Derrin Brothers, Bywater and Southgate were also resident in the United Kingdom and/or Switzerland the provisions of the treaties lead to the conclusion that they are to be taxed under Australian law. The profits of all the taxpayers were made on revenue account but they are entitled to make trading stock elections. All held their shares beneficially. The taxpayers’ appeals should be allowed in relation to the trading stock issue but no other.

[485]    The parties are to bring in short minutes of order on or before 7 January 2015. I will hear them on costs. In particular, I will hear them and Mr Gould on whether the latter ought not to bear the costs of this litigation on a full solicitor-client basis. I direct the solicitors for the taxpayers to furnish Mr Gould with a copy of these reasons and to draw to his attention this costs issue. I direct the Registrar to forward a copy of these reasons to the Commonwealth Director of Public Prosecutions, the Australian Securities and Investments Commission and the Australian Federal Police. The facts I have found strongly suggest widespread money laundering, tax fraud of the most serious kind and, possibly in some instances, insider trading. The conduct revealed in this case is disgraceful.

(Emphasis added)

29    It is convenient to record at this point that, on 15 October 2013, part way through the trial before Perram J, Mr Gould and others were arrested by the AFP on criminal charges arising from a Project Wickenby investigation. On 17 October 2013, while Mr Gould was still in custody, the Sydney Morning Herald (SMH) reported criticisms by Mr Hyde Page of Project Wickenby (amongst other things, he described it as a “Gestapo unit” and as “a disgrace to public administration in Australia”). Mr Hyde Page was one of the junior counsel for applicants in the proceedings before Perram J and junior counsel for at least one of the appellants in each of the appeals which followed. It will be necessary to return to the SMH article later.

30    The criminal charges on which Mr Gould was arrested on 15 October 2013 were withdrawn by the AFP in May 2014.

31    In mid-2014, while the judgment of Perram J was reserved, two further events of present relevance occurred. The first is that on 26 June 2014, Mr Hyde Page participated in an “interview” with a Mr Jones on Radio 2GB in Sydney in which Mr Hyde Page made comments which were critical of the ATO and of Project Wickenby.

32    The second is that on 18 August 2014, Mr Gould gave evidence to the House of Representatives Standing Committee on Tax and Revenue (the Standing Committee) in which he made criticisms of Project Wickenby and the ATO. It will be necessary to return to the content of the statements made by Mr Hyde Page and Mr Gould on these occasions.

First question: the identification of the applicant in the impugned statements

33    Mr Jordan accepts that some persons identified Mr Gould as the subject of the impugned statements and accepts that the first of the separate questions should be answered in the affirmative. The number of persons who were likely to have identified Mr Gould is not an issue in this first stage trial.

Second question: Defamatory meaning

34    Mr Jordan accepts that his statements conveyed the third of the imputations pleaded by Mr Gould, namely, that Mr Gould had engaged in the worst kind of tax fraud. He denies, however, that the statements had conveyed the imputations that Mr Gould had engaged in the worst kind of money laundering and in the worst kind of insider trading (imputations (a) and (b)).

35    It was not suggested that Mr Jordan’s use of the alternate expressions “tax fraud” and “tax evasion” was of relevance presently.

36    The principles to be applied in assessing whether impugned publications did convey pleaded imputations are settled, having been summarised in numerous authorities, including those to which counsel referred, being Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, (2015) 237 FCR 33 at [63]-[73] and Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [70]-[91]. Given the recency of these summaries, the general familiarity with them, and that there was no difference between the parties concerning them, it is not necessary to detail the principles in these reasons.

37    In this case, on the publications presently proved or admitted, it is the ordinary reasonable listener whose understanding is to be considered.

38    The submissions of counsel for Mr Jordan focussed on the eighth sentence in the impugned statements, namely, the statement “they referred the matter for money laundering, insider trading and tax evasion of the worst kind”. He submitted that the ordinary reasonable listener would not have understood Mr Jordan’s statements as conveying each of the pleaded imputations because, in order to do so, such a listener would have to have applied a distributive construction to the words “of the worst kind” in that sentence. That is to say, the ordinary reasonable listener would have to have understood Mr Jordan to be stating that Mr Gould had engaged in the worst kind of money laundering, the worst kind of insider trading, and the worst kind of tax evasion. Counsel then submitted that this involved a forced or strained interpretation of the impugned statements which did not accord with their natural and ordinary meaning.

39    In support of this submission, counsel emphasised that Mr Jordan had paused after speaking the words “money-laundering” and after the words “insider trading” in line 8 with the effect he submitted, that the epithet “of the worst kind” would have been understood as referring only to the “tax evasion”.

40    In my opinion, the ordinary reasonable listener is unlikely to have engaged in the form of grammatical analysis for which counsel contends, or to have understood Mr Jordan’s statements in the manner of such an analysis. The understanding of such a listener is likely to have been much more impressionistic. The listener would have understood Mr Jordan’s example to involve a contrast of public claims, on the one hand, with what may be taken to be the fact, on the other. Sentences 1-3 were in the nature of scene setters; sentences 5-6 identify the public claims; and sentences 7-12 contain the factual contrast. The listener would have understood the seventh sentence to introduce the contrast – “the most disgraceful behaviour [he] had ever seen”. That would have coloured the understanding of the ordinary reasonable listener of what followed.

41    Put slightly differently, the ordinary reasonable listener would have heard not only the eighth sentence emphasised in the submission for Mr Jordan but also the statements which preceded it and which closely followed it. In particular, such a listener would have heard Mr Jordan’s statement in the seventh sentence that “the Federal Court said it was the most disgraceful behaviour they [had] ever seen” (emphasis added) and the statement in the 12th sentence that the Court had found that “it was the most disgraceful behaviour they [had] ever seen involving money-laundering, tax fraud and insider trading of Australian shares” (emphasis added) and have taken these statement together. The manner of expression, in particular, the use of the collective noun “behaviour” for the three forms of conduct, would have conveyed to reasonable listeners that it was all three aspects of the behaviour which were the most disgraceful the Court had seen. That would have made it natural for the listeners to have understood the epithet “of the worst kind” as applying to each of the stated activities. The 12th sentence in which Mr Jordan altered the sequence in which he mentioned tax fraud and insider trading would have added to the listeners’ impression that the epithet applied to all three forms of conduct. It certainly would not have promoted on understanding that Mr Jordan was singling out only one form of conduct as being of the worst kind.

42    Further, as senior counsel for Mr Gould noted, it is pertinent that money laundering, insider trading and tax evasion have some commonality as each involves a form of nefarious financial activity. This would have added to the impression of the ordinary reasonable listener that Mr Jordan was not seeking to draw a distinction between the degrees of seriousness of each form of conduct he was describing. I do not accept the submission of Mr Jordan’s counsel that the ordinary reasonable listener would have thought, when hearing Mr Jordan, that some forms of tax evasion may not be serious but any money laundering or insider trading should be so characterised. Such a listener would have considered that particular forms of each of these activities could be characterised as “of the worst kind”.

43    It is true, as counsel for Mr Jordan emphasised, that Mr Jordan did pause between the terms “money-laundering”, “insider trading” and “tax evasion” but these pauses were only momentary. To my mind, they would not have conveyed a separation of the three forms of conduct so as to convey that Mr Jordan was using each term distinctly from the others with the consequence that the qualifying term “of the worst kind” applied only to the third.

44    When regard is had to these surrounding statements, I consider that there is little difficulty in concluding that the ordinary reasonable listener would have understood Mr Jordan to be stating that each of the money laundering, insider trading and tax fraud was of the worst kind.

45    Accordingly, I am satisfied that Mr Jordan’s statements did convey the imputations pleaded in [3(a)] and [3(b)] of the Statement of Claim. That conclusion makes redundant that part of the second question which enquires as to whether the impugned statements were capable of conveying the pleaded imputations.

46    The second of the separate questions should be answered in the affirmative.

Third question: were the impugned statements defamatory of Mr Gould?

47    The third question should be answered in the affirmative as Mr Jordan accepted, appropriately, that to the extent that the Court found that the imputations were conveyed by his statements, they were defamatory of Mr Gould.

Sixth question: the defence of qualified privilege (reply to attack)

48    Although this is the sixth question contained in the Court’s orders of 2 September 2020, it is convenient to address it at this stage as this was its place in the sequence of the submissions of both parties. That is the question of whether Mr Jordan has established the common law defence of qualified privilege (reply to attack) pleaded in [5(e)] of the Amended Defence. As counsel for Mr Jordan noted, if established, this will be a complete defence to Mr Gould’s claim.

49    Mr Jordan pleads the following matters in support of this defence:

1)    On 18 August 2014, the applicant appeared in a public hearing before the House of Representatives Standing Committee on Tax and Revenue (Standing Committee) and made the statements attributed to him at page 35 of the transcript of that hearing.

2)    The Applicant’s statements before the Standing Committee constituted an attack on the ATO and the Respondent by the Applicant (the Standing Committee Attack).

3)    On 17 October 2013 and 26 June 2014 respectively, counsel for the Applicant in the Proceedings, Mr John Hyde-Page, made the following public statements:

a)    the statements attributed to Mr Hyde-Page in the article titled “Lawyer lashes out at ‘Gestapo unit’ in ATO”, which was published in the online edition of The Sydney Morning Herald on 17 October 2013; and

b)    the statements made by Mr Hyde-Page in an interview with Alan Jones, which was broadcast on The Alan Jones Breakfast Show radio programme on or about 26 June 2014.

4)    Mr Hyde-Page’s public statements constituted an attack on the ATO and the Respondent by the Applicant (the Media Attack).

5)    The Respondent, in the course of publishing the matter complained of, responded to the Standing Committee Attack and the Media Attack on his own behalf and on behalf of the ATO as the Commissioner of Taxation.

6)    The Respondent’s response was made in an appropriate public forum, being the National Press Club of Australia, and was proportionate to the Attacks.

(Emphasis in the original)

Relevant principles

50    The common law recognises that the response to an attack on a person’s reputation, interests or integrity may be an occasion of qualified privilege, providing that the defamatory response is sufficiently connected to the occasion of the privilege. Looked at generally, such occasions exist when both the applicant and the respondent have an interest in the subject matter to which the impugned matter relates and if the publication of the defamation is made in protection of the respondent’s interest: Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503 at 511. At a general level, the privilege exists because of the interest of the public in hearing the response of the target to public criticisms.

51    This form of the defence of qualified privilege has now been considered by the High Court in several authorities. Loveday v Sun Newspapers concerned the publication by a newspaper of the response of the Town Clerk of a Municipal Council to a letter written to the newspaper by the secretary of an Unemployment Relief Council. The letter contained criticism of the Municipal Council’s refusal of relief work to Mr Loveday. He sued both the newspaper and the Town Clerk. It was held that the Municipal Council had sent its response to the newspaper on an occasion of qualified privilege and that the publication by the newspaper of that response was also the subject of qualified privilege. Latham CJ said at 511:

An occasion is the subject of qualified privilege if both the plaintiff and the defendant have an interest in the subject matter to which the alleged libel relates and if the publication of the libel is made in protection of the defendant’s interest … [I]t is plain that the plaintiff was interested in the administration by the Canterbury Municipal Council of the system of employing relief workers … The Defendant Jay was the executive officer of the council which administered the relief system. He had an interest in defending his own reputation, as well as the reputation of his council, in relation to the administration of that system. If either Jay or the council were attacked in relation to that administration Jay was entitled to reply to the attack and the occasion would be privileged.

(Emphasis added)

52    Starke J said at 515-6:

A person attacked has both a right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply. Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion … The privilege is not absolute: in case a person is attacked the answer must be relevant to the attack and must not be actuated by motives of personal spite or ill will independent of the occasion on which the communication was made …

(Emphasis added and citations omitted)

53    Dixon J said at 518-9:

The letter sent by the secretary of the unemployed relief council to the Sun newspaper for publication impugned the course taken with respect to the plaintiff by those administering relief work under the authority of the municipal council. Supposing that such an attack or criticism of something done under the council's administration has already been widely published, then for the publication of any relevant matter in reply undoubtedly a privilege would exist. The town clerk, as an appropriate officer of the municipality, would be entitled, upon that supposition, to a qualified privilege for the publication of any statements in answer tending to justify or explain the course taken, or remove or mitigate the effect of the attack or criticism. If the criticism had been addressed to the public at large and the communication had not been confined to specific individuals, the privilege would cover a publication of the answer in the news-papers or in any other manner that would reach the public generally.

(Emphasis added)

54    As is apparent, in each of these passages, reference was made to the entitlement of a person attacked publically to respond to that attack.

55    Counsel for Mr Jordan emphasised the reference by Dixon J, with apparent approval, to Bowen-Rowlands v Argus Press Ltd, The Times, 10th Feb. 1926, p. 5, and 26 March 1926, p. 5. The defendant in that case was the daughter of a deceased about whom the plaintiff had published stories in a book of reminiscences. In an endeavour to vindicate her father’s memory, she had written a letter to the newspaper to which the plaintiff had sent his book for review. In the subsequent defamation action, the daughter’s defence of qualified privilege in the response to the plaintiff’s attack was upheld. After referring to Bowen-Rowlands, Dixon J said, at 520, that the privilege will protect statements which are defamatory of the attacker and, if reasonably made, of a third party:

[I]f A attacks B and in order to defend himself B reasonably publishes defamatory matter of C, who has been no party to the attack, B’s privilege will protect him as against C (Coward v Wellington (1836) 7 Car. & P. 531; 173 E.R. 234). It would, therefore, be unnecessary to show that the plaintiff in the present case authorized the criticism of the action of the municipal council, that is, if that criticism had been already published and the defamation of the plaintiff by the town clerk were made in the course of replying to an antecedent publication.

56    Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219 concerned a claim for defamation brought by Mr Calwell MHR in respect of statements published in a newspaper article. Mr Calwell had alleged in Parliament that the newspaper had not complied with certain war time censorship restrictions. The editor of the newspaper responded with an article containing stringent criticism of Mr Calwell and inviting him to take action against the newspaper in court. When Mr Calwell took up the challenge, the editor pleaded qualified privilege on the basis that he was responding to attacks on himself, Consolidated Press Ltd (the publisher of the newspaper), Mr Packer, the Managing Director of Consolidated Press Ltd and newspapers generally. Mr Calwell succeeded at first instance in having this defence struck out, but this was reversed on appeal on a basis which is not presently relevant. The effect was that it remained open to the editor to maintain the defence of qualified privilege but only insofar as his statements were a response to the attack on himself, Consolidated Press and Mr Packer.

57    In his judgment at first instance, Dixon J described the privilege in the following terms at 233:

The defence of qualified privilege means that, in the absence of malice, the existence of which of course the defendant denies, the libel is not actionable, whether the charge it contains be true or untrue. It means that the publication of the defamatory statements is protected and that the question whether they are or are not true is immaterial. When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion.

(Emphasis added)

58    Dixon J also explained the basis for the privilege, at 233-4, in a passage endorsed later in Harbour Radio Pty Ltd v Trad [2012] HCA 44; (2012) 247 CLR 31:

The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.

(Emphasis added)

59    Thus, the privilege enables those attacked to inform those whose judgment of them may be affected by the attack of their response to it in order that they may vindicate themselves.

60    The appeal against the judgment of Dixon J was allowed by majority decision but on a different point. The High Court did not disturb his Honour’s statements of the relevant principle. Latham CJ and Williams J said at 242-3:

Statements which are made in self-defence are privileged when they are made in reply to attacks upon the character or conduct of the defendant, or in protection of an employer against attacks on the employer, or in protection of the proprietary interests of a defendant or his employer against attacks upon such interests. When a person has been attacked seriously and abusively, the terms of his reply are not measured in very nice scales, but excess in reply may so exceed a reasonable view of the necessities of the occasion as to provide evidence from which malice may be inferred.

61    In Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366, McHugh J said, at [65]:

In determining whether the communication was made to discharge a duty or to protect or further an interest, the common law has drawn a distinction between statements replying to a request for information or responding to an attack and statements that are volunteered by the publisher. Where the defamatory communication responds to an attack on its publisher or some person connected with him or her, the common law has adopted a liberal approach to the question of duty or interest. Not only has it usually held that the publisher had a duty to respond or an interest in responding but, as a consequence, it has taken a very liberal view of what constitutes an "interest" in those who receive the response. In Mowlds v Fergusson, Dixon J said:

"Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted."

(Citations omitted)

62    Although McHugh J was dissent in the result in Bashford, I do not understand his statement of principle to be contentious.

63    The defence was considered more recently in Harbour Radio v Trad. In a speech at a “peace rally” made one week after the occurrence of the Cronulla riots, Mr Trad placed part of the blame for those riots on Radio Station 2GB. On the following day, the radio station broadcast a program containing several statements which were defamatory of Mr Trad. He sued for defamation. The appeal in the High Court concerned the availability of the defence of qualified privilege to the defamatory responses of the radio station to Mr Trad’s criticisms.

64    Gummow, Hayne and Bell JJ held, at [33], that the statement of principle by Dixon J at first instance in Penton v Calwell (set out above) should be accepted. Their Honours emphasised that a response which impugns the truth of the charges contained in the attack and/or the general veracity of the attacker may be a proper exercise of the privilege, providing that it is commensurate with the occasion and is done bone fide for the purposes of the vindication. Their Honours also referred to the statement of Starke J in Loveday v Sun Newspapers that the privilege is not absolute and that the response by the person attacked “must be relevant to the attack and must not be actuated by motives of personal spite or ill will”, at [34].

65    Earlier, Gummow, Hayne and Bell JJ had noted that the defence of qualified privilege in response to an attack is one of the few circumstances in which the common law has recognised that a defendant may have an interest or duty to publish defamatory statements to the general public: at [20]. It is this feature which requires that the response be commensurate with the attack and, in particular, not exceed the purpose for which the privilege exists:

[27]    [W]here the occasion is a response, by publication to the general public of defamatory matter, to a public attack upon the defendant by the plaintiff, the consideration of what is relevant to the attack requires particular care. The response must be commensurate with an occasion which is in an exceptional category … No doubt vigorous use of language has long been a characteristic of public debate in this country. But in the conduct of public affairs the law, in general, does not encourage persuasion by public vilification and by an abdication of reason …

66    Gummow, Hayne and Bell JJ also noted the various expressions used in the authorities to convey the concept of a response being fairly warranted by the attack: “sufficiently connected to the privileged occasion to attract the defence”; “commensurate with the occasion”; “relevant to the attack”; and “sufficiently connected”. Their Honours then concluded:

[35]    That the matter complained of is sufficiently connected to the privileged occasion to attract the defence may appear upon any one of several considerations. The matter may be sufficiently connected with the content of the attack, or it may go to the credibility of the attack, or to the credibility of the person making that attack. Questions of degree inevitably will be presented.

67    In her separate concurring judgment in Harbour Radio v Trad, Kiefel J said that it is necessary for respondents seeking to establish the defence, to show only that the defamatory statements made in response to the attack “be relevant to” the allegations made in the attack or to the vindication of the respondent’s reputational interests, at [108], [130]. Her Honour considered that it was unnecessary for some further criterion such as reasonableness or proportionality to be established, saying, at [130]:

… Such considerations are essentially subjective and may create uncertainty as to the operation of the defence, which is largely a question of law. Moreover, such considerations may have the effect of blurring the boundary between facts relevant to the privilege and facts relevant to the issue of malice. A test of relevance is necessarily objective and does not confuse matters pertaining to the subjective question of whether a defendant was improperly motivated, and therefore malicious in using the words complained of, with matters from which it may be concluded that the words were spoken on an occasion of qualified privilege …

68    The requirement that the respondent’s publication be no more than a proportional or commensurate response to the attack has been expressed in various ways: “the reply must be in good faith, publishing what is fairly an answer to the attack”: Harding v Essey [2005] WASC 30; (2005) 30 WAR 1 at [10] (Steytler J); “not go beyond the exigency of the occasion”: Harding v Essey at [62] (McLure J); “no more than a proportional response”: Accommodation West Pty Ltd v Aikman [2017] WASC 157 at [191] (Kenneth Martin J); and “commensurate with the nature of the “attack” to which [the defendant] claimed to be responding”: French v Herald and Weekly Times Pty Ltd (No 2) [2010] VSC 155, (2010) 27 VR 171 at [70]. The response should not “cross over into an attack on the integrity of the claimant if it is not reasonably necessary for defending [his or her] own reputation”: Hamilton v Clifford [2004] EWHC 1542 at [66] (Eady J).

69    Mere retaliation, which cannot be described as an answer or explanation, is not protected: Gatley on Libel and Slander, 12th Edition, at [14.51]. The line between retaliation and an attack on the credibility of an applicant may be fine, and generally, a respondent is allowed a considerable degree of latitude in making the response: Watts v Times Newspaper [1997] QB 650 at 665-6; Penton v Calwell at 243 (Latham CJ and Williams J); Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [75] (McColl JA). Nevertheless, there are limits on what will be protected by the privilege, as Harbour Radio v Trad at [27] indicates. As counsel for Mr Gould emphasised, the privilege does not exist to “settle old scores or to reopen old wounds”.

70    The defence will be defeated if the applicant proves malice on the part of the respondent, in the form of spite, ill-will, indirect or wrong motive not connected with the privilege: Penton v Calwell at 242-3; Harbour Radio v Trad at [31].

71    The availability of the defence of qualified privilege and the requirement of proportionality or commensurateness which is a necessary element of the defence, is to be assessed objectively.

72    Some other aspects of the defence of qualified privilege in a response to an attack are to be noted.

73    First, there must actually have been an “attack”. That is, there must have been something in the nature of a charge against, or an assault on, the integrity, good faith or reputation of the respondent for the defence to be available: Gatley at [14.51]. The attack need not have been made expressly by the applicant. It may be sufficient that the attack, while ostensibly in another’s name, was authorised by the applicant, or if the applicant was complicit in the attack: Abou-Lokmeh at [81]; and, as noted by Dixon J in Loveday v Sun Newspapers, the privilege will protect a statement which is defamatory of a person other than the attacker if it was reasonable as part of the defence to the attack.

74    Secondly, the defence, being a species of qualified privilege, is based on a requirement of reciprocity of duty or interest. Consequently, publication to a person who does not have the requisite reciprocity will not generally be an occasion of privilege. However, as was noted by Dixon J in Mowlds v Fergusson (1940) 64 CLR 206 at 214-5, and endorsed by McHugh J in Bashford at [25] and by Gummow, Hayne and Bell JJ in Harbour Radio v Trad at [25], when the defamatory matter is published by way of defence to an attack, “the conception of a corresponding duty or interest in the recipient must be very widely interpreted”.

75    Thirdly, it has been said that the defence of qualified privilege (reply to attack) is not available in respect of a response to a statement which is controversial or which provokes heated feelings (but which is not defamatory) (French v Herald and Weekly Times at [69]). It was not suggested that the circumstances of the present case should be characterised as such.

The matters relied upon for the attack

76    As already noted, Mr Jordan pleaded three matters as constituting an attack on the ATO and himself to which he was entitled to respond and which made his address to the NPC an occasion of qualified privilege. These were statements made by Mr Hyde Page in the SMH on 17 October 2013 and in an “interview” with a Mr Jones broadcast in a radio program entitled “Alan Jones Breakfast Show” on Radio 2GB on 26 June 2014, and statements made by Mr Gould to the Standing Committee on 18 August 2014. It is convenient to make findings about these separately, while noting that Mr Gould accepted that each of the statements on which Mr Jordan relied had been made in the terms he alleged.

The statements of Mr Hyde Page published in the SMH

77    As already noted, Mr Hyde Page was junior counsel for the taxpayers (or at least one of them) in each of HWBB v CoT, Bywater Full Court and Bywater HCA. Counsel for Mr Gould accepted that this meant that Mr Hyde Page had appeared for Mr Gould in the HWBB litigation.

78    The article published in the SMH on 17 October 2013 (i.e, while the trial before Perram J was proceeding) attributed the following statements to Mr Hyde Page:

Lawyer lashes out at ‘Gestapo unit’ in ATO

A lawyer who has worked with three businessmen arrested as part of an Operation Wickenby investigation into tax evasion says the federal government taskforce is a ‘‘Gestapo unit’’ that should be shut down.

Sydney businessmen Vanda Gould and John Leaver and Belgian Peter Borgas spent a second night behind bars yesterday after being arrested on Tuesday night on charges that attract jail terms of up to 25 years.

The men will be released from custody on this afternoon if they post bail money of $12 million.

Operation Wickenby is a joint taskforce run by Federal Police and the Tax Office investigating the abuse of tax havens by wealthy Australians.

High-profile targets have included music mogul Glenn Wheatley and movie star Paul Hogan.

Barrister John Hyde Page represents companies allegedly associated with Mr Gould, Mr Leaver and Mr Borgas in related civil cases that remain on foot despite the arrests.

He declined to comment on the ongoing civil lawsuit, but said: ‘‘Operation Wickenby is a disgrace to public administration in Australia.’’

‘‘One of the top priorities of the Abbott Government should be shutting down this Gestapo unit, and sacking all its members.’’

He slammed Tax Office deputy commissioner Greg Williams for remarks in a press release issued yesterday morning in which Mr Williams described the arrests as ‘‘a warning to people who abuse tax secrecy havens’’ and promised to ‘‘hold tax cheats accountable’’.

‘‘The fact that Greg Williams is prepared to make those sort of comments about three men who have not yet been convicted of any crime indicates the kind of fanaticism that is at work in the ATO,’’ Mr Hyde Page said. ‘‘The Wickenby era is disgusting.’’

…

(Emphasis added)

79    In the hearing before Perram J on 17 October 2013, Mr Hyde Page acknowledged that the SMH article had reported accurately the contents of the email which he had sent to the journalist in question.

80    It is apparent that Mr Hyde Page’s statements to the SMH were prompted by the arrests of Mr Gould, Mr Leaver and Mr Borgas, and concerned Operation Wickenby both generally and in relation to those arrests.

The statements of Mr Hyde Page in the “interview” with Mr Jones

81    Mr Hyde Page participated in an “interview” with Mr Jones on 26 June 2014 (again, while Perram J was reserved on his judgment).

82    The “interview” commenced with what seems to have been for the most part a thinly veiled criticism of the treatment by the ATO and the AFP of Mr Gould in Project Wickenby. Mr Jones did not mention Mr Gould’s name but the circumstances he denounced seem principally to be the circumstances of Mr Gould. The following exchanges then occurred:

Jones:    On the line I have barrister, John Hyde Page. He specialises in tax law. He also has had something to say about the whole Wickenby fiasco. John Hyde Page, good morning.

Hyde Page:    Good morning, Alan.

Jones:    This is staggering stuff, isn’t it?

Hyde Page:    It’s quite extraordinary.

Jones:    And even more so when those of us who knew anything at all knew that these charges were trumped up and were subsequently withdrawn in May.

Hyde Page.    Yeah. If you looked at the underlining complaints, even if the police had proved their case in full there was just no criminal conduct here. It has been egregious conduct, and it has been an appalling waste of taxpayer money.

Jones:    … I mean, the story really was a basically a simple [indistinct]. They had assets with – funded by loan from overseas money. They changed the name of the lender. That was all they did, and then this all happened. I mean, one of the people arrested in the issue to whom I’ve referred where a person known to me was also arrested, one of the people was a foreign investor, an English qualified solicitor, a citizen of Belgium living in Switzerland. He had to remain in Australia for seven months under effective house arrest, an elderly man while the Tax Office, Wickenby, the Federal Police investigated whether he was involved in any wrongdoing.

Hyde Page:    Quite true, and of course the Government has form with this sort of stuff. We saw Paul Hogan a few years ago.

Jones:    We did.

Hyde Page:    We saw another gentleman, Ron Pattenden, also imprisoned in this country while the Government tries to figure out whether or not they actually have some basis for complaint or charges.

Jones:    Yes, and before they could establish whether they had any complaint in the matter I’m referring to the Tax Office, Deputy Commissioner, one Greg Williams described the arrests of these innocent people as, quote, a warning to people who abused tax secrecy havens. And this is before a comment is made, and before people have been convicted, before even they knew what the charges were that were being levelled against them. Here you’ve got this fanaticism from the Tax Office telling the public – there’s headlines all over the papers. These people have been defamed from one end of the commercial world to the other.

Hyde Page:    The reputational damage has been extraordinary to two or three accused men who, of course, ultimately were completely vindicated.

Jones:    Absolutely. And, of course, the charges about tax and money laundering had no substance at all. But this is Wickenby keystone cops, Federal Police, Tax Office, and they sent (sic) flat on their face. The Crown has to pay costs. I mean, the amount of public money spent on this is a scandal. These were simultaneous raids, so not only a raid on their home, a raid on their office, a raid on their country property, and all done at once, the cost enormous, and this is typical of the behaviour of the Tax Office and the Federal Police on the so-called Wickenby matters. How can this be allowed to happen? It’s not Zimbabwe or Pakistan or Iraq.

Hyde Page:    I agree, Alan. I mean, this is just symptomatic of a very distasteful trend in Australian public administration which is for these sort of Gestapo tactics on the part of the Tax Office, and partner agencies like the Crime Commission, and the Australian Federal Police, interference in the liberties of ordinary Australians using extraordinary coercive powers that were created in order to tackle things like organised crime, but are here being deployed against just decent hard working Australians.

…

Jones:    I mean, these are innocent people, and Federal Police have barged into their house at 8.40pm at night, conducted simultaneous raids on other properties wherever they might be in the city, in the bush or whatever. You bully and intimidate your wife, you confiscate all her property, you make her sign documents she doesn’t understand. You deny them the chance to ring their own solicitors. They’re given approval to shower, but Federal Police are staring at them. For four days he can’t use a phone, not allowed to see a solicitor, not allowed to send for tablets even though he’s [had] major surgery only a month before, documents confiscated still not returned. I mean, it is mystifying when these people are innocent and this kind of behaviour they’ve had to endure.

Hyde Page:    I completely agree, and, I mean, it’s the sort of thing that needs to be addressed through systemic change in both the way the Tax Office and the Federal Police go about their business.

…

Jones:    God help me. I can’t believe this stuff goes on. You’ve obviously seen it many times.

Hyde Page:    I see far too much of that sort of thing, unfortunately, in my job. It’s highly distasteful. I mean this was a particularly bad case. I mean it’s hard to see how things could have gone more wrong than they did. People detained in Australia for over seven months, charges of such incredible severity brought but ultimately completely abandoned. But unfortunately we just – we do live in an age where the power of Government to interfere in the lives of ordinary people is both immense and increasingly exercised with very little regard to what should be the proper values of a liberal democracy.

(Emphasis added)

83    It was common ground at trial that Mr Hyde Page had made the statements attributed to him in the transcript above.

The Standing Committee statements

84    The Standing Committee has as its remit:

To inquire into and report on disputes between taxpayers and [the ATO], with particular regard to:

•    collecting revenues due;

•    fair treatment in respect of tax payers;

•    efficiency, effectiveness and transparency, from the perspective of both taxpayers and the ATO; and

•    how the ATO supports the outcomes of efficiency, effectiveness and transparency through the use and publication of performance information.

85    Mr Gould appeared before the Standing Committee on 18 August 2014 (again, while Perram J was reserved on his judgment). His evidence to the Committee comprised an opening statement and then responses to questions from Committee members. In the opening statement, Mr Gould submitted that there had been a misuse of the ACIC in Project Wickenby. Having made two points about that, he then continued:

Finally, I would like to mention my own case, where I was basically charged with being involved in a sham loan, when the Deputy Commissioner of Taxation came out about my involvement. When the matter came before a magistrate, the DPP claimed to have a forensic accountant’s report which documented this alleged sham loan. When we subpoenaed to get it, it did not exist. The whole basic claim was fraudulent from the tax office perspective. What sort of country is this, when things like that are permitted, when basically you have your name besmirched as involved in tax fraud, when there is absolutely no evidence of any wrongdoing?

As you have seen from the publicity in my case, ultimately the Government has paid most of my legal costs, but the fact is the damage is now done. I think there are some very serious problems with the administration of tax law in this country.

(Emphasis added)

86    It seems that these statements of Mr Gould were directed to his arrest on criminal charges.

87    Later, when answering questions, Mr Gould made more general criticisms of the ATO:

In every case I have been involved in the Tax Department has not been a model litigant. It is just a nonsense. I have read what they have said. They do not behave that way at all. They are in it to win it in one sense and that is right, but they are certainly not model litigants … [Y]ou have a million Australians living offshore or being offshore partly because of the way the tax act is administered here. So a lot of entrepreneurial people do not work in this country. It is surprising, but the aggressiveness of the tax office has been I think very counterproductive in terms of our economy generally … [Y]ou also get ideologues; you get tax officers who have a view which is dictated by jealousies and hatreds. For instance, over the 30 years I have been a tax practitioner dealing with, say, doctors, tax officers typically hate doctors – that is a generalisation. You get a far more inferior result dealing with a client who is a doctor than from most other practitioners, because there is something in the culture in the tax office which is particularly anti-tall poppies and people who are successful. It is a very deep problem, and so some tax officers are fundamentally troglodyte – ideologues … In terms of the tax office itself we know that when you lodge an objection it is very difficult to get someone sensible to acknowledge the validity of what you are saying … I do think the biggest problem is the very fact that you can be blackmailed by the tax office because this ability to collect the tax, even though you have a valid objection, is the greater problem – the very fact that you are forced to sometimes settle because you just cannot run the risk of having a dispute with the tax office or going bankrupt yourself. I think that is just wrong. There should be a way whereby a judge can say:

The taxpayer has a reasonable case; this is not just some frivolous thing. Therefore the assessment is stayed.

I think that is one of the most important changes that are really warranted because I’m telling you that you do get blackmailed.

(Emphasis added)

Were there attacks?

88    In his submissions concerning privilege, counsel for Mr Jordan did not rely on the statements of Mr Jones other than to the extent to which Mr Hyde Page had expressed agreement with them.

89    I will return later to a submission made on behalf of Mr Gould to the effect that the ATO did not have a reputation which could be protected. However, there is little difficulty in concluding at this stage that the statements of Mr Hyde Page and Mr Gould set out above constituted attacks on the ATO (and therefore indirectly on Mr Jordan as Commissioner with general responsibility for the administration of the taxation legislation) of the kind to which a response could be made. In his statements published in the SMH on 17 October 2013, Mr Hyde Page had characterised Operation Wickenby (which he described as a joint task force run by the AFP and the ATO) as a “Gestapo unit” which should be “shut down” and as a “disgrace to public administration in Australia”. He also referred to “the kind of fanaticism that is at work in the ATO”.

90    In the criticisms of the ATO he made to the Standing Committee on 18 August 2014, Mr Gould had referred to having his name “besmirched as involved in tax fraud when there [was] absolutely no evidence of wrongdoing”; to “a million Australians living offshore or being offshore partly because of the way the Tax Act is administered here”; to “the aggressiveness of the [ATO] [being] very counterproductive in terms of our economy generally”; to tax officers who were “ideologues” and who had views “dictated by jealousies and hatreds”; to the “culture in the [ATO] which is particularly anti-tall poppies and people who are successful”; and to the [ATO] engaging in forms of blackmail. Earlier, he had been critical of the ATO’s conduct in Operation Wickenby.

91    In the “interview” on Radio 2GB on 26 June 2014, Mr Jones had referred to “this fanaticism from the tax office”; to Operation Wickenby being a form of “Keystone Cops”; to the amount of public money spent on it being “a scandal”; and to the conduct described as “typical of the behaviour of the [ATO] and the [AFP] on the so-called Wickenby matters”. Mr Hyde Page expressed agreement more than once with Mr Jones’ comments, saying “this is just symptomatic of the very distasteful trend in Australian public administration which is for these sort of Gestapo tactics on the part of the [ATO] and partner agencies like the [ACIC] and the [AFP]”. Mr Hyde Page told Mr Jones that there needed to be “systemic change” in both the ATO and the AFP.

92    On any reasonable view, each of these statements amounted to a significant criticism of the operations of the ATO and of some of its officers and, indirectly, of Mr Jordan as Commissioner. They called into public question the methods adopted in the administration and enforcement of the tax laws, the integrity of officers of the ATO, and the culture within the ATO.

Mr Jordan as the responder to the attacks

93    Mr Jordan personally was not named in any of the criticisms and it seems likely that some, but not all, of the conduct which was their subject occurred before his appointment as Commissioner of Taxation had taken effect on 1 January 2013. However, a response to an attack need not be made by the person attacked: Abou-Lokmeh at [84]-[102] and the authorities cited therein.

94    In his written submissions, counsel for Mr Gould contested the right and interest of Mr Jordan in defending the reputation of the ATO. Counsel submitted:

There is an incongruity in a public official contending for a right to defame a member of the public to defend the reputation of the ATO. The ATO is not an entity distinct from Treasury, which is to say, it is an emanation of the Crown in light of the Commonwealth, or more prosaically, part of the Commonwealth Government. It is well-established that elected Governmental institutions have no “governing reputations” to protect: Ballina Shire Council v Ringland (1994) 33 NSWLR 680, esp per Gleeson CJ at 691 B-D. See also Derbyshire County Council v Times Newspapers [1993] AC 534 esp per Lord Keith at 547 referring to the importance that “any governmental body should be open to uninhibited public criticism”.

95    I do not accept this submission. It does not follow from the principle that a Governmental body may not have a reputation which may be protected by the tort of defamation that it does not have any reputation at all. On the contrary, it could hardly be doubted that the ATO has an interest in the community, in particular the tax paying community, having confidence in it administering the taxation legislation with integrity, competence and efficiency. Quite apart from that consideration, the name “Australian Taxation Office” is descriptive of a group of public servants charged with particular responsibilities in the administration of the laws of the Commonwealth Parliament. As a collective group of people, they too have a reputation even if that reputation not be one protected by the tort of defamation. Counsel for Mr Gould did not contest the general proposition that the head of an organisation has a right to speak in defence of the employees of the organisation.

96    In my view, it should be held that Mr Jordan did have the right and interest to respond to the attacks on the ATO. He is the senior taxation officer, with general responsibility for the administration of the taxation legislation. Mr Jordan had an interest in the maintenance of public confidence in that system, and not only because that confidence is conducive to the efficient operation of the system. It is also to be expected that the officers of the ATO would look to the Commissioner for the time being to respond publicly to criticisms of their conduct when such criticisms were perceived to be unfair. Loveday v Sun Newspapers is an example in an analogous circumstance because it involved a Town Clerk responding to an attack on his Municipal Council. In short, in the words of Dixon J in Penton v Calwell at 233, the public criticisms of the ATO were upon an interest which Mr Jordan was “entitled to protect”.

Did Mr Gould make or authorise the attacks?

97    Plainly, Mr Gould made the attacks contained in his statements to the Standing Committee on 18 August 2014. The position with respect to the statements of Mr Hyde Page on the two other occasions is less clear.

98    The authorities do indicate that it need not be the applicant personally who made the attack if he or she authorised the attack or had at least been complicit in its making: Loveday v Sun Newspapers at 510-1, 515, 518; and Abou-Lokmeh at [81].

99    However, there is no evidence that Mr Gould either authorised Mr Hyde Page’s statements or that he was complicit in their making. The fact that Mr Hyde Page was appearing at the time for Mr Gould in the HWB Litigation, and the fact that his statements can be seen to have been in Mr Gould’s interest, does not mean that Mr Gould was involved in some way in their making. Given that Mr Gould was in custody on 17 October 2013, there may have been limitations on his ability at that time to communicate with Mr Hyde Page. Mr Hyde Page’s responses, when Perram J raised the appropriateness of him, as counsel in the proceedings, making statements to the SMH about Project Wickenby, do not contain any indication that Mr Gould had been complicit in his making of the statements. There is no indication in Mr Jones’ introduction of Mr Hyde Page on 26 June 2014 or in Mr Hyde Page’s own statements that he was participating in the Radio 2GB program as a representative of Mr Gould. In the absence of more specific evidence, the statements made by Mr Hyde Park would not ordinarily be regarded as an incident of counsel’s retainer. So far as the evidence goes, the position is equally consistent with Mr Hyde Page having chosen to make the statements on 17 October 2013 and 26 June 2014 without reference to Mr Gould.

100    However, in my view, this conclusion does not assist Mr Gould. Earlier, I referred to the principle stated by Dixon J in Loveday v Sun Newspapers at 520 that, if A attacks B and in order to defend himself or herself, B reasonably publishes defamatory matter of C who was not a party to the attack, B’s privilege will still protect him or her against C. The effect, as his Honour noted, is that it is then unnecessary for B to show that C either authorised the attack or was complicit in it. As was noted by McColl JA in Abou-Lokmeh, while this position of Dixon J was a minority view in Loveday v Sun Newspapers, it commands considerable respect, evidenced by the reliance on it in subsequent decisions: see [94]-[100]. It is appropriate to give effect to this principle presently.

101    This means that Mr Jordan, as Commissioner, had the protection of the privilege in publishing defamatory matters of Mr Gould in the response to Mr Gould’s own criticisms and to the extent to which it was reasonable in making the defence of the ATO against Mr Hyde Page’s attacks (subject of course to compliance with the other conditions of the privilege).

102    I mention that, at one stage in the submissions at trial, counsel for Mr Gould raised a pleading point in relation to Mr Jordan’s reliance on the criticisms of Mr Hyde Page, namely, that Mr Jordan had pleaded only that Mr Hyde Page’s statements constituted an attack by the applicant. He submitted that Mr Jordan should be held to his pleaded case. However, counsel acknowledged frankly that it was improbable that Mr Gould would have led further evidence had Mr Jordan’s pleading not included the words “by the applicant”. Further, counsel made full submissions on the basis that his pleading point may not be upheld. In particular, counsel did not suggest that he could have made further submissions.

103    It is also pertinent that the particulars which Mr Gould gave in support of his plea, that Mr Jordan had been actuated by malice, incorporated the latter’s pleading that Mr Hyde Page’s statements had been an attack on the ATO and him by Mr Gould.

104    In the circumstances that Mr Jordan can in any event rely on Mr Gould’s own statements to the Standing Committee, the seeming identity of interest of, and the association between, Mr Gould and Mr Hyde Page, the circumstance that on each occasion Mr Hyde Page was speaking of matters concerning, amongst others, Mr Gould, and (in relation to the pleading point) the absence of any prejudice to Mr Gould, I consider it appropriate to regard the criticisms of Mr Hyde Page as part of the attack in considering whether Mr Jordan’s statements were made on an occasion of qualified privilege. It was reasonable in the circumstances for Mr Jordan to have made his statements in response to the attacks of both Mr Gould and Mr Hyde Page.

Timing issues

105    A matter on which counsel for Mr Gould placed considerable emphasis in resisting the availability of the privilege in reply to attack was the period of time which elapsed between the attacks and Mr Jordan’s address to the NPC. In the case of Mr Hyde Page’s statements published in the SMH on 17 October 2013, the period was just on three years and nine months; in the case of Mr Hyde Page’s statements to Mr Jones on 26 June 2014, the period was three years; and in the case of Mr Gould’s statements to the Standing Committee on 18 August 2014, the period was just over two years and 10 months.

106    It was common ground that the time at which the response is made relative to the time of the attack is relevant to whether it was made on an occasion of privilege: Gatley on Libel and Slander (12th Edition) at [14.19], albeit in relation to the defence of qualified privilege generally. A lapse of time may tell against the genuineness of a claim to privilege (Howlett v Holding [2003] EWHC 286 at [29]); may bear upon the sufficiency of the connection with the attack; and may bear on the question of whether the reply should be characterised as retaliation.

107    Counsel for Mr Gould noted that in most cases in which the reply to attack privilege has been upheld, the interval between the attack and the reply has been relatively short: Adams v Ward [1917] AC 309 (just over one month); Loveday v Sun Newspapers (at most three weeks); Penton v Calwell (a campaign of attacks with the last occurring on the day prior to the response); Kennett v Farmer [1988] VR 991 (attack and response on the same day); and Harbour Radio v Trad (response the day after the attack).

108    However, the cases in which delay has been regarded as relevant have also involved other factors.

109    The first case cited in Gatley, Howlett v Holding, is an example. In that case, the plaintiff sued in respect of publications made on 25 April 2001, 21 May 2001 and 22 March 2002 and on 8 January 2002. The defendant had been prompted to publish the impugned matters by statements made by the plaintiff, as local council member, between one and two years previously, on 15 May 2000, in opposition to an application by him for planning approval. However, the subject matter of his publications concerned the alleged shoplifting of the plaintiff in January 1996. On the application of the plaintiff to have the defence of qualified privilege struck out, the focus of Eady J was on whether the defendant had had a social or moral duty to make the impugned statements at the time they were made. In finding that there was no such duty, Eady J took into account a number of matters:

(a)    the defendant had known of the allegations of the plaintiff’s shoplifting since January 1996, at [19];

(b)    the defendant had been prompted to make the impugned statements by the unconnected conduct of the plaintiff in speaking against his planning application, at [19];

(c)    although the defendant relied on the relevance of his statements to the plaintiff’s suitability for election to the local council, she had in fact stood for election at two elections between the occurrence of the alleged shoplifting and the defendant’s publications without him thinking it appropriate to make his statements;

(d)    the defendant’s allegation were based on “rumour, speculation or gossip”, at [27]; and

(e)    the long period which had elapsed between the time of the alleged conduct and the publication.

110    Thus, the lapse of time was but one of several matters indicating that the defence of qualified privilege was not available. Furthermore, the decision of Eady J did not, in any event, concern the form of qualified privilege involving replies to attacks.

111    The second authority cited by Gatley, Goyan v Motyka [2008] NSWCA 28, also involved a history of some complexity. There had been a lapse of approximately six years from one of the attacks to which the defendant purported to respond. Tobias JA, with whom the other members of the Court agreed, held at [92], that the information was “stale”, did not constitute a “relevant matter of interest”, and that there was “no relevant link” between the events which occurred six years previously and the subject matter of other impugned statements of the defendant.

112    With specific reference to the reply to attack form of qualified privilege, the authors of Gatley (12th Edition) say, at [14.51]:

The longer the time between the attack and the reply, the more likely that the response will be treated as retaliation.

113    In support of this proposition, Gatley cites Henry v British Broadcasting Corporation [2005] EWHC 2787 (QB) in which Gray J rejected a Reynolds defence of qualified privilege based, in part, on reply to attack because over a year had elapsed between the attack and the reply. However, given the complex factual circumstances of Henry v BBC, it is difficult to extract from the judgment any general principle concerning the effect of delay other than that stated by Gatley and that each case must turn on its own facts.

114    The view that each case may turn on its own facts is supported by the obiter comments of Handley AJA in Goyan v Motyka, at [120]:

In my opinion the time that has elapsed since events referred to in a defamatory publication does not necessarily take that publication outside the scope of common law qualified privilege, or afford evidence of malice. An allegation of sexual abuse by a teacher many years before would not, for that reason alone, be outside the privilege, and the same would apply to allegations of past financial misconduct by a person in a position of trust.

115    Apart from the reliance on the United Kingdom authorities just mentioned, counsel for Mr Gould placed considerable emphasis on the rationale for the privilege stated by Dixon J in Penton v Calwell at 233-4, namely, the necessity of allowing the party attacked free scope to place his or her case before the body whose judgment the attacking party has sought to affect. The time within which the body is forming its judgment concerning the criticisms is an indication, counsel submitted, that there should be some contemporaneity between the attack and the response.

116    Counsel elaborated this submission in different ways: first, that with the passage of time, the attack will lose its currency, i.e, those who have heard the attack will have formed their judgment about its subject matter and will have “moved on”; secondly, that delay will have the effect that the attacks and the information in them becomes “stale”; thirdly, that the privilege does not exist to enable the settling of old scores or to reopen old wounds or even to allow corrections of the historical record; and fourthly, that with the passage of time, the audience hearing the response will not be the same audience which heard the attack and accordingly have less interest in hearing the response to it.

117    With respect to the first of these matters, counsel referred to the viewpoint of persons who had seen or heard the public statements of Mr Hyde Page on 17 October 2013 and on 26 June 2014 concerning the arrest of Mr Gould and others on criminal charges. He queried whether such persons would have appreciated that they should await the outcome of the HWB Litigation before Perram J before forming judgments about the merit of the criticisms. Why, counsel asked rhetorically, would [the hypothetical] person be saying, “oh, to understand all this I should wait to understand what Perram J decides about some taxpayer companies in a civil case?”

118    In my view, this submission tended to give the expectation of the hypothetical reader of, or listener to, the attacks an undue importance. As a matter of principle, the period during which the occasion of the qualified privilege exists is not determined solely, or even predominantly, by the expectations of such persons as to when a response will be made. The question, as counsel for Mr Jordan submitted, is whether the impugned publication is made for the purpose of putting before the recipient audience the answer to the defendant’s attack and whether it was commensurate to that attack. That is to say, whether there is sufficient connection between the attack and the response. Giving prominence in the consideration of those matters to the time at which a hypothetical reader or listener may have expected such a response to be made would, in my view, be a distraction.

119    Several of counsel’s submissions to the effect that reasonable contemporaneity in response is required, because the purpose of the privilege is to allow the attacked party to place his or her case before the body whose judgment the attacking party has sought to affect, seemed to be based on an unstated premise. This was the view that the privilege exists in order to enable persons attacked to make their responses before the recipient audience has formed its judgment, and not afterwards. In my opinion, this unstated premise is unsound. At least in relation to matters which retain some currency, there is no reason in principle why the privilege should not be available to those seeking to correct or affect judgments already made, as well as informing those yet to be made or which are in a process of development. None of the authorities suggest a limitation of the kind supposed by counsel’s submission.

120    It is common experience that, when criticisms are made publically about a person, there are some who accept readily the validity and merit of the criticism and, in effect make their judgment. However, many reasonable readers and listeners know the merit of the aphorism that there are two sides to every story and know that one should be cautious about forming immediate judgements based on the criticisms by one person of another. The reactions of members of the community to public announcements of the commencement of a prosecution, or of the launching of an official inquiry into a contentious matter, provide examples. While ordinary reasonable readers and listeners may consider that the commencement of the prosecution or the inquiry is indicative of the existence of grounds for suspicion about their subjects, they know that the legal process is to be played out and that they should await its conclusion before forming final views: Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 300-1 (Mason J). The audience knowing these matters also knows that legal processes can be protracted, and that, depending upon the nature of the matter, it can be months or years before they are concluded. For such audiences, the subject matter of the prosecution or inquiry has a continuing currency.

121    These matters suggest two matters of present relevance: the privilege does not cease to be available because the audience for the attacks has already formed a judgement about the subject of them, and the time in which ordinary reasonable readers and listeners do form judgements may be prolonged.

122    In my view, a number of matters may bear upon the significance, if any, to be attached to a lapse of time before the making of a response in the consideration of the availability of the qualified privilege. In addition to the length of time which has elapsed and the purpose of the privilege, these matters may include the nature, content and character of the attack; the nature, content and character of the response; the continuing currency (if any) of the information in the attacks; the explanation for the elapse of time, including any constraints or inhibitions to which the person attacked was subject which may have borne upon their ability or willingness to make a more prompt response; and any other relevant events which have occurred in the interim. Handley AJA referred to two such examples of such matters in his obiter remarks in Goyan v Motyka to which I referred earlier.

123    In the present case, considered objectively, a number of matters make it understandable that Mr Jordan did not make any response until after the finalisation of the HWB Litigation, including the finalisation of the appeals. The first is that, on the afternoon of 17 October 2013, Perram J raised with Mr Hyde Page his concerns about his conduct, while counsel, in having made public statements concerning the very litigation in which he was then engaged. Mr Hyde Page accepted that the concerns of Perram J were “well-grounded”, that his remarks had been “wrongful”, and he apologised to the Court for having made them. Those present or informed of these circumstances would have understood that there was a judicial admonition, followed by an apology by counsel. This circumstance by itself would have served as a statutory reminder to all involved in the litigation of the need for caution before making public statements concerning, or relating to, the litigation.

124    Independently of that consideration, it is a matter of ordinary prudence to await the conclusion of a matter before making a public response. That prudence is reflected in the proverb “they who laugh last, laugh longest”. That consideration meant that a response before the judgment in Bywater HCA may well have been premature.

125    Counsel for Mr Gould drew attention to the absence of any evidence from Mr Jordan as to the constraints or inhibitions to which he may have felt himself to be subject in responding to the criticisms of Mr Hyde Page and Mr Gould. Counsel disclaimed, however, a submission that a Jones v Dunkel inference should be drawn.

126    Counsel also referred to a letter which Mr Jordan had sent to the Office of the Legal Services Commissioner (LSC) in New South Wales on 15 April 2015, containing a complaint concerning the conduct of Mr Hyde Page in four pieces of litigation, one of which was the HWB Litigation. Mr Jordan drew the Commissioner’s attention, amongst other things, to the email which Mr Hyde Page has sent to the SMH containing “inflammatory comments about the Project Wickenby area” which had been published in the SMH on 17 October 2013. He expressed the view that the conduct of Mr Hyde Page was “potentially” a breach of New South Wales NSW Bar Rule 75. Mr Jordan also drew the Commissioner’s attention to the statements of Mr Hyde Page in the “interview” with Mr Jones on Radio 2GB on 26 June 2014.

127    As I understood it, counsel referred to this correspondence to illustrate three matters, that:

(a)    despite the then pending appeal against the judgment of Perram J, Mr Jordan had not felt any constraint in making his complaint to the LSC on 15 April 2015;

(b)    the fact that Mr Jordan had allowed some four months to elapse after the delivery of judgment by Perram J before making the complaint to the LSC was an indication of a lack of expedition on his part; and

(c)    the explanation which Mr Jordan gave to the LSC for not making his complaint earlier did not have continuing currency. Mr Jordan’s explanation was that there had been “genuine concerns within the ATO that the making of a complaint [shortly after 17 October 2013 or shortly after 26 June 2014] may have been construed as putting improper pressure on Mr Hyde Page while he was in the course of representing his clients”, with the consequence that the ATO had decided to “delay the making of any complaint until such time as the cases had been determined”. Counsel submitted that, if considerations of this kind had constrained Mr Jordan before 15 April 2015, then they no had longer operated as and from that date.

128    Mr Jordan’s letter to the LSC of 15 April 2015 indicates that, at least by that date, he did not feel a constraint about making a complaint about Mr Hyde Page’s conduct to the appropriate professional body. However, as counsel for Mr Gould accepted, there is a difference between making a complaint to a professional body, on the one hand, and making a public statement, on the other. It was not suggested that the complaint to the LSC had been made public and it is likely that, at least in the first instance, it was disclosed by the LSC to Mr Hyde Page only. Secondly, it is pertinent that the subject matter of Mr Jordan’s complaint was not confined to the conduct of Mr Hyde Page in relation to the HWB Litigation. An aspect of the conduct of Mr Hyde Page which Mr Jordan raised in the complaint was his alleged contacting of ATO staff directly in relation to matters which were the subject of current litigation, and seeking information from those staff, about matters pertinent to that litigation. Mr Jordan alleged that, despite being asked to desist from this conduct, Mr Hyde Page had both asserted his right to do so and had in fact continued to do so. It would be understandable that the ATO would wish conduct of that kind, if it was occurring, to cease forthwith. That circumstance, as well as other aspects of Mr Hyde Page’s conduct, may have given rise to some imperative (or additional imperative) for the complaint to be made to the LSC at that time it was. There is of course a degree of speculation or surmise about this, but it is sufficient to indicate that the matters raised by Mr Jordan in his letter of 15 April 2015 were directed to a more specific audience and to a more specific purpose than a more general response to the attacks made on the ATO on 17 October 2013, 26 June 2014 and 18 August 2014.

129    Counsel for Mr Gould referred to the opportunities which Mr Jordan had had, before 5 July 2017, to respond to the attacks of Mr Gould and Mr Hyde Page. He tendered a list of the public speeches given by Mr Jordan between October 2013 and 5 July 2017 which, he contended, demonstrated those opportunities. As I indicated to counsel, even without this exhibit, one could have inferred that Mr Jordan could have found an occasion on which to make a response at an earlier time. However, the mere fact that earlier occasions could have been found does not overcome the matters bearing upon the appropriateness of an earlier response to which I referred earlier. For the reasons already mentioned, I consider it objectively reasonable that Mr Jordan deferred any response until after the completion of the then current litigation.

130    Counsel also referred to evidence that Mr Jones had, on 5 December 2014, sent an email to Mr Jordan expressing his horror “at the evidence given to this Parliamentary inquiry into tax disputes”. The suggestion seemed to be that this too represented an opportunity for Mr Jordan to have responded publically to the attacks. Even assuming that Mr Jones’ email to Mr Jordan constituted an invitation to him to do so, I would not, for two reasons, attach any significance to it. The first is that, at the time of the “invitation”, Perram J was still reserved on his judgment and, for the reasons given earlier, it is understandable that Mr Jordan thought it appropriate to be circumspect in making public statements until the HWB Litigation had been finalised. Secondly, and in any event, it would be very understandable, given the florid character of the statements made by Mr Jones on 26 June 2014, that Mr Jordan would have considered a more measured forum appropriate for the making of a response.

131    I have said that the character of the subject matter of the attack and the response, and the currency of the subject matter may also be relevant to the significance, if any, to be attached to the lapse of time. In relation to these matters, I consider, for the reasons which follow, that it should be accepted that the subject matter of the attacks did, in July 2017, have an ongoing currency. The attacks did not concern an isolated event of historical significance only.

132    The ordinary reasonable listeners to, and readers of, the statements of Mr Hyde Page and Mr Jones in 2013 and 2014 would have understood them to be referring to activities of Operation Wickenby. It was referred to expressly in each of the statements. Operation Wickenby had achieved public notoriety, evidenced in this case by the manner in which both Mr Gould and Mr Hyde Page referred to it in their criticisms and in Mr Jordan’s introductory comment in the impugned statements: “It was a Wickenby case”. The use of that shorthand expression was sufficient to convey to listeners something about the nature of the case. The ordinary reasonable listeners and readers would have had some understanding that Operation Wickenby was an ongoing operation concerning tax avoidance and evasion by wealthy Australians. Many would also have understood that it involved an investigation of the use of tax havens to avoid taxation liabilities in Australia. They would not have understood the references by Mr Hyde Page and Mr Gould to Operation Wickenby as references to one-off or self-contained events. In my view, public awareness that Project Wickenby had involved ongoing activities over an extended period served by itself to maintain the currency of the subject matter of the attacks.

133    The ongoing currency of the matters is also indicated, in part, by the journalist’s query about the dispute which Paul Hogan, a public figure, had had with ATO which had been subject of media attention. It was also indicated by Mr Jordan’s introduction of his example concerning the HWB Litigation as “a Wickenby case”. In the context of the notoriety to which reference was made earlier, ordinary reasonable listeners would have understood Mr Jordan’s reference to “a Wickenby case” as a reference to the joint taskforce of the ATO and the AFP, conducted over a protracted period, investigating tax avoidance and evasion by wealthy Australians. They would also have understood it as a reference to an operation which had attracted some criticism of the ATO and the AFP. It seems reasonable to infer that Mr Jordan’s immediate audience, in particular, the journalists attending the NPC lunch, would have had some familiarity with Operation Wickenby and the newsworthy matters it had elicited.

134    In short, the circumstances to which Mr Jordan referred were not matters which had gone stale or had otherwise lost currency. Mr Jordan was referring to matters which had, at the least, continued currency until the delivery of the High Court judgment on 16 November 2016. They concerned the outcome of a major operation in which the ATO had been a participant and in respect of which it had been the subject of public criticism by Mr Hyde Park and Mr Gould.

135    I do not regard the absence of evidence from Mr Jordan concerning the time which elapsed before he made the response to be significant. The matters to which I referred earlier indicating the prudence of deferring a response had an independent existence to which reference may be made in the determination, objectively, of the existence or otherwise of an occasion of qualified privilege. I also note that Mr Jordan had alluded to constraints to which he thought the ATO was subject in the 13th sentence in the impugned statements (“Sometimes there’s two sides to a story and I can’t always tell the other side”).

136    In my opinion, considered objectively, it was appropriate for Mr Jordan to defer any response until the whole of the then current litigation had been finalised. Perram J delivered his judgment on 19 December 2014; the Full Court delivered its judgment on 11 December 2015; and the High Court delivered its judgment on 16 November 2016. This accounts for a large part of the period which elapsed between the making of the attacks on which Mr Jordan relies, and his response on 5 July 2017.

137    It is true that another seven months elapsed after the delivery of the judgment of the High Court but it would be unrealistic to regard the matter as having gone stale in that further period.

138    For these reasons, I reject Mr Gould’s submission that the lapse of time from the attacks means that Mr Jordan’s response could not have been made on an occasion of qualified privilege.

Were Mr Jordan’s statements a reply to the attacks?

139    Apart from the issues concerning their timing and the previous opportunities which Mr Jordan had had to respond to the criticisms made by Mr Gould and Mr Hyde Page, counsel for Mr Gould raised a number of other matters challenging a characterisation of Mr Jordan’s remarks as responsive to the attacks now relied upon. These were:

(a)    the subject matter of the attacks, in particular those of Mr Hyde Page, had been the criminal charges laid against Mr Gould and others and their arrests in relation to those charges. Mr Jordan had not responded to the criticisms concerning the criminal charges but had instead relied on matters in the HWB Litigation concerning the liability of the five companies to taxation in Australia;

(b)    Mr Jordan’s purpose in making the impugned statements had been to give an educational anecdote as part of his endeavour to reassure his audience that the tax system was being administered appropriately, rather than to give a response to specific attacks;

(c)    Mr Jordan made the impugned statements only in response to a light hearted question concerning disclosure of a settlement thought, by some at least, to have been made by Mr Hogan with the ATO. That is to say, its making had been a matter of happenstance; and

(d)    the impugned statements did not name either Mr Gould or Mr Hyde Page. The Court should be slow, counsel submitted, to characterise statements as a response to attacks when the absence of identification of the attacker deprived the audience of the ability to evaluate the response against an attack.

140    I do not regard these matters, whether considered individually or collectively, as persuasive. The distinction which counsel seemed to draw between the subject matter of the attack and the subject matter of the response, is to my mind immaterial. Mr Jordan was responding to the criticisms made of the ATO by Mr Gould and Mr Hyde Page by reference to one of the outcomes in the HWB Litigation. In making his response, he was not confined to the same subject matter as the attack itself. Statements made in response to attacks are subject to the privilege whether they “be strictly defensive or be by way of counter-attack” and whether they “impugn the truth of the charges contained in the attack [or] the general veracity of the attacker”: Penton v Calwell at 233-4 per Dixon J. And, as noted by the plurality in Harbour Radio v Trad at [35], a response may be “sufficiently connected” so as to be the subject of the privilege if it is “sufficiently connected with the content of the attack, or … the credibility of the attack, or … the credibility of the person making [the] attack”. Plainly, there was a sufficient connection given, amongst other things, Mr Gould’s protest to the Standing Committee about having his “name besmirched as involved in tax fraud when there is absolutely no evidence of any wrongdoing”. The same point could be made by reference to other statements of Mr Gould and Mr Hyde Page, for example, the references to the “reputational damage” said to have been caused by the activities of the ATO which they impugned.

141    Secondly, the law does not require that the response to an attack take a particular form. To the contrary, provided that the response does not exceed the bounds of reasonableness, its terms “are not measured in very nice scales”: Penton v Calwell at 242-3 (Latham CJ and Williams J). Accordingly, there is no reason in principle why a response to an attack may not be incorporated as part of an educational anecdote. This is in effect what Mr Jordan did in making the point that there are “two sides to a story” and that the ATO cannot always “tell the other side”.

142    It is true that Mr Jordan made the impugned statements only in response to a question from a journalist. However, I would not readily conclude that Mr Jordan made the remarks only as a matter of happenstance. As I put to counsel in submissions, a more obvious inference is that Mr Jordan came prepared at the NPC lunch to address the very serious criticisms made of the ATO by Mr Gould and Mr Hyde Page and used the question of the journalist as the opportunity to do so and thereby to further his message of reassurance to his audience about the manner in which the taxation system is being administered.

143    Again, it is true that Mr Jordan did not name Mr Gould and Mr Hyde Page specifically. In doing so he seems to have exercised some restraint. However, he gave a number of indications of the persons about whom he was talking and of the attacks to which he was referring. As noted at the commencement of these reasons, it was common ground that some of the audience had identified Mr Gould as the subject of the response. The indications which Mr Jordan gave included the name of the litigation (“Hua Wang Bank case”); the class to which it belonged (“a Wickenby case”); the reference to a promoter who had formed a Samoan bank; the reference to “the principal of [the] scheme” appearing before the Standing Committee and giving evidence critical of the ATO; and the reference to the barrister for the principal making statements on a major radio station in Sydney likening the ATO to “the Gestapo”.

144    I note again that it is not necessary that a reply to an attack take any particular form. It is sufficient that it can be characterised as a reply to an attack. In my view, there is no difficulty in making that characterisation in the present case.

Was Mr Jordan’s response commensurate with the attacks?

145    Apart from the matters to which reference has already been made, counsel for Mr Gould did not contend that Mr Jordan’s response had not been commensurate to the attacks to which he was responding.

146    I accept that there may well have been differences between the audiences which heard the respective attacks, on the one hand, and the audiences which heard Mr Jordan’s statements, on the other. The statements of Mr Hyde Page on 17 October 2013 and on 14 June 2014, were made to the readership and listening audiences of the SMH and the Radio 2GB program hosted by Mr Jones respectively. The audience which heard Mr Gould’s statements to the Standing Committee is likely to have been more confined.

147    While Mr Jordan made his statements to the NPC lunch, his address was broadcast on ABC radio and television and, it can be inferred, reached a large audience, even if not coincident with the audience which saw or heard the attacks.

148    The liberal view of what constitutes an “interest” in the recipients of a response to an attack (to which McHugh J referred at [65] in Bashford, citing Dixon J in Mowlds v Fergusson) is pertinent in this context. Having regard to that view, and the nature of the respective audiences, I do not consider that it should be concluded that the occasion of Mr Jordan’s statements was not the subject of qualified privilege by reason of insufficient commonality in the audiences to which the criticisms, and his statements, were directed.

149    Mr Jordan’s description of the conduct of Mr Gould found in the HWB Litigation was no doubt robust. However, the criticisms to which he was responding were, at least as robust, if not more so. I note again, Mr Hyde Page’s statement on 17 October 2013 that “Operation Wickenby is a disgrace to public administration in Australia”; his reference to “the kind of fanaticism … at work in the ATO”; his reference to the extraordinary reputational damage suffered by Mr Gould and others and his claim that they had been “completely vindicated”; to “Gestapo tactics on the part of [the ATO]” and to Mr Gould’s characterisation of ATO officers as “ideologues”; his claim to have had his name “besmirched as involved in tax fraud when there [was] absolutely no evidence of any wrongdoing”; and his claim that the ATO was engaged in forms of blackmail.

150    In these circumstances, I consider that there is little difficulty in concluding that Mr Jordan’s response was “commensurate with the occasion” so as to attract the privilege.

Mr Gould’s plea of malice

151    As noted at the commencement of these reasons, Mr Gould pleaded that, to the extent that Mr Jordan established that he had made the impugned statements on an occasion of qualified privilege, his statements had been predominantly actuated by malice. He pleaded that Mr Jordan’s predominant purpose had been to injure him, and persons associated with him, by reason of his previous criticisms of him and the ATO. This is the subject of the 12th of the separate questions.

152    Mr Gould pleaded that the predominant purpose of Mr Jordan was to be inferred from six matters:

(i)    the fact that Mr Jordan had been Commissioner of Taxation since 1 January 2013;

(ii)    seven complaints which Mr Gould had made about the ATO in letters to various public officials in the period from 13 January 2014 to 6 March 2014. These officials included Mr Jordan himself, the Inspector General of Taxation, Mr Williams (the Deputy Commissioner of Taxation) and Mr Hockey MP, the then Treasurer of the Commonwealth of Australia;

(iii)    Mr Gould’s own statements to the Standing Committee and Mr Hyde Page’s public statements critical of the ATO on 17 October 2013 and 26 June 2014;

(iv)    the report of the Standing Committee entitled “Tax Disputes” which was, in several respects, critical of the ATO;

(v)    the fact that Mr Jordan made the impugned statements between three and four years after the criticisms on which he relied for the attacks; and

(vi)    his characterisation of Mr Jordan’s impugned statements as gratuitous.

153    Counsel did not refer to the principles concerning malice in any detail. In these circumstances, it is convenient to refer, without repetition, to the summary of the principles in Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 at [215]-[220] and to say that a respondent will be held to have been actuated by malice for the purposes of the defence of qualified privilege if the applicant establishes that it published a statement for some dominant purpose or motive other than that for which the privilege is given. The purpose or motive must be both foreign to the occasion of the privilege and actuate the making of the statement.

154    At the hearing, counsel for Mr Gould did not press reliance on the seven pleaded letters in support of the plea of malice. He said:

[I]f I may make a candid statement of position, your Honour, in circumstances where Mr Jordan has not given evidence in this part of the trial, it would be a difficult conclusion for your Honour to draw that the various letters relied on, other than the first, had in fact come to his attention. They may well have but your Honour would need to be actually satisfied that they had. And that – it’s just difficult to see with an organisation the size of the ATO, how your Honour could be satisfied of that. And I just make that concession to save your Honour trouble in that respect.

155    In my view, this was an appropriate concession.

156    Counsel did not otherwise make oral submissions in support of the plea of malice. His written submissions included the following:

[47]    Further, the fact that the Speech was given years after the “attacks” supports the inference that the allegations were published predominantly to harm the applicant. Likewise, the way in which the allegations arose in the Speech, in answer to a question about another unrelated individual, is supportive of the respondent going out of his way to harm the applicant; that is to say, the allegations were gratuitous in the relevant sense.

[48]    Whether by reason of the three “attacks” identified by the respondent, or by reason of those matters supplemented by the respondent’s knowledge, it is submitted that the Court would infer that the predominant purpose of publishing the material about the applicant in the MCO was by way of retribution – that is, a desire to harm the applicant. That would be an improper purpose which would defeat any defence of qualified privilege and also would establish the matters of defeasance required for any defence under UDA s 28 or s 29 respectively.

157    I do not accept these submissions. In relation to the submission concerning timing, I refer to what has been said above.

158    In my view, had Mr Jordan been actuated by malice, it is likely that he would have made his response much earlier and, further, that he would have named Mr Gould. He could also have been much more expansive, making use of the findings of Perram J, in his description of Mr Gould’s conduct. He did none of these things. Instead, as indicated, he appears to have acted with some restraint.

159    It is true that Mr Jordan volunteered his account of the HWB Litigation without prompting, but that does not mean that his remarks were gratuitous (in the sense of serving no other purpose). To the contrary, they indicated in a graphic way that some criticisms of the ATO should not be taken at face value and, indeed, that despite public criticisms of its conduct, the ATO was successful in recovering substantial sums of taxation which would otherwise have been avoided.

160    In my view, the other matters pleaded by Mr Gould are not suggestive of Mr Jordan having been predominantly actuated by malice. Nor is the content of the impugned statements, and the manner in which they were made. Mr Gould made stringent criticisms of the ATO. Of their nature, they invited a robust response. Mr Jordan’s response, while robust, was proportionate to the attack.

161    Accordingly, Mr Gould does not discharge his onus of proof and does not defeat the defence of qualified privilege.

Conclusion on the defence of reply to attack

162    For these reasons, Mr Jordan’s defence that the impugned statements were made on an occasion of qualified privilege is upheld. As noted earlier, this means that Mr Jordan has a complete defence to Mr Gould’s claim.

163    However, in case the matter goes further and a different view is taken on appeal, I will address the remaining questions.

Fifth question: the fair report defence

164    Although several of the parties’ submissions addressed the fair report of proceedings defence (UDA s 29) and the fair summary of a public document defence (UDA s 28) together, it is convenient to consider the two separately and to consider the former first.

165    Paragraph [5(d)] of Mr Jordan’s defence invokes the defence of fair report of proceedings of public concern by alleging that the impugned statements were, or were contained in, a fair report of the HWB Litigation, including the judgment of Perram J in HWBB v CoT.

Section 29 of the UDA

166    Section 139 in the CLW Act (s 29 in the UDA) as in force as at 5 July 2017 provides:

29 Defences of fair report of proceedings of public concern

(1)    It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

…

(3)    A defence established under subsection (1) or (2) 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, proceedings of public concern means:

…

(e)    any proceedings in public of a court or arbitral tribunal of any country, or

…

…

167    It was common ground that the judgment of Perram J in HWBB v CoT and his Honour’s orders which accompanied that judgment, comprised a “report of … proceedings of public concern” for the purposes of s 29(1) and (4)(a) of the UDA.

Relevant principles

168    There was little difference between the parties as to the relevant principles to be applied. Counsel for Mr Gould referred to Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687 in which Jagot J, at [863]-[872], referred to a number of authorities containing statements of principles concerning s 29 and its counterparts. Drawing very much, but not solely, on the reasons of Jagot J, the following principles can be said to be relevant presently:

(a)    it must appear that the published matter bears the character of a report of the proceedings in question. It will not be such a report merely because it repeats information obtained from proceedings, or because, the proceedings are a source of information, or the subject of an expression of opinion: Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at [18] (Gleeson CJ and Gummow J);

(b)    a report for the purposes of s 29 is essentially descriptive of an event or series of events and, since it is limited to an account of events which have happened, it cannot properly include independent comments or opinions of the reporter: Burchett v Kane (1980) 2 NSWLR 266, at 273D [37] (Samuels JA), at 274E [46] (Mahoney JA). However, these are also authorities which indicate that a fair report defence is not defeated because the report contains extraneous material, so long as that material is not excessive and is able to be distinguished from the report of the proceedings: Curistan v Times Newspapers Ltd [2008] EWCA Civ 432 at [51]. And the requirement of attribution places the onus on the reporter to differentiate between the event reported, upon which the reporter’s privilege is derivative, on the one hand, and background information, statements of facts or the reporter’s own commentary, on the other. Such differentiation enables readers to assess and weigh the information by recognising its various sources: Nationwide News Pty Ltd v Rogers [2002] NSWCA 71 at [10] (Mason P);

(c)    a report need not be verbatim but to be privileged it must express accurately what took place. Any error in the report should not be such as to alter substantially the impression that the reader would have received had he or she been present at the hearing: Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37, (1998) 193 CLR 519 at [2] (Brennan CJ and McHugh J). However, the issue is not what a trained lawyer or those with particular knowledge would make of the comparison, and it is not to be assumed that every recipient will read the report carefully and in its entirety: Chakravarti at [153] (Kirby J);

(d)    a report need not be a complete report of the proceedings in question but must be substantially accurate: Chakravarti at [42] (Gaudron and Gummow JJ);

(e)    a report may relate only to a part of a proceeding: Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314 at [75]-[79]; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 62-3;

(f)    a fair report is a substantially accurate summary of the proceedings, neither more nor less. The question is not whether the report is fair or unfair to any particular person but whether it substantially records what was said and done: Waterhouse v Station 2GB at 63; and

(g)    the requirement that a report be fair and accurate does not mean that it must be a precis of the whole proceedings or debate: Feldman v Nationwide News Pty Ltd [2020] NSWSC 26 at [212] (Campbell J) citing Cook v Alexander [1974] 1 QB 279 at 288.

169    There were two issues between the parties as to the application of s 29 which should be addressed separately: whether the impugned statements comprised a report and, if so, whether it was a fair report.

Did the impugned statements of Mr Jordan constitute a report?

170    Counsel for Mr Gould contended that the impugned statements of Mr Jordan (the defamatory material) did not constitute a report of the HWB Litigation, or of any of the decisions at its three stages. This was so for the following reasons:

(a)    contrary to the requirements stated by Gleeson CJ and Gummow J in Rogers v Nationwide News at [18], the impugned statements did not “bear the character of a report of the proceedings in question”. Ordinary reasonable listeners would not have understood that they were being given a report of the HWB Litigation;

(b)    as was noted by Samuels JA in Burchett v Kane at 273 in relation to s 14(1) of the Defamation Act 1974 (NSW), a report is a “factual recording of an event or situation … and, since it is limited to an account of events which had happened, it cannot properly include the independent comments or opinions of the reporter”. In this case, the impugned statements contained material, particularly in sentences 2-6 and 11 concerning matters which had not occurred in the proceedings at any stage, or been mentioned in the judgments. The inclusion of this extraneous material was sufficient by itself, counsel contended, to indicate that the impugned statements could not be regarded as a report; and

(c)    the circumstance that Mr Jordan had relied on some of the content of the judgment of Perram J did not mean that he was giving a report of that judgment: cf Herron v HarperCollins at [893]. As Jagot J also noted in the same case, at [896], “there is a difference between news in a public document or public proceeding as a source along with multiple other sources for the purpose of telling a story and providing a report or summary of a public document or public proceeding”.

171    In my opinion, these submissions on behalf Mr Gould should not be accepted, substantially for the reasons advanced by counsel for Mr Jordan.

172    First, and as a preliminary matter, the circumstance that the impugned statements were not a complete report, or even a precis, of the entire 485 paragraph judgment of Perram J is immaterial, because that is not a requirement for statements to be characterised as a report.

173    Secondly, Mr Jordan did report (in some cases purport to report) what the Courts had said in the HWB Litigation as evidenced by the statement in sentence 7 (“the Federal Court says …”); the statement in sentence 8 (“they [the Federal Court] referred the matter …”); the references to the confirmation by the Full Federal Court and the High Court in sentences 9 and 10 and the statement of what “the Court [had] found” in Sentence 12. Each of those statements is an account of what the Courts had said and done in the requisite sense so as to constitute a report. The accuracy and sufficiency of Mr Jordan’s report is a matter which can be addressed on the question of fairness.

174    Thirdly, while the inclusion of sentences 2-6 and 11 was admittedly extraneous to the report of the proceedings, they should not be regarded as having the effect of precluding the statements from being a report. That is so because the impugned statements clearly distinguished the extraneous matters from the reports of the proceedings – the very nature of the impugned statements involved the contrast of what the Courts had found, on the one hand, with the statements of Mr Gould and Mr Hyde Page, on the other. This being so, the ordinary reasonable listener would have understood the additional comments not to be part of the report and they, being contextual in nature, were not excessive.

175    Having regard to these matters, I am willing to accept that the impugned statements contained a report in the requisite sense.

Did the impugned statements constitute a “fair” report of the proceedings?

176    Counsel for Mr Gould submitted that, even if the impugned statements be characterised as a report, they were not a fair report of the HWB Litigation, or even of the decision of Perram J in HWBB v CoT.

177    Counsel’s submissions focused on sentences 7-10 and 12. He submitted that, even if it be accepted that Perram J had found that the conduct he had considered was “the most disgraceful behaviour [he] had ever seen” (which Mr Gould disputed), that characterisation had not been confirmed by the Full Court of the Federal Court, nor by the High Court as Mr Jordan had asserted. The Full Court had confirmed only that the control of each of the appellant companies had been in Australia during the relevant years with the consequence that each was a resident for tax purposes and the decision of Perram J concerning the valuation of shares for taxation purposes. It did not make any characterisation of the conduct of the tax payers or of Mr Gould of the kind made by Perram J in [485] of his reasons on which Mr Jordan had based his statements. Nor did it give any endorsement of Perram J’s characterisation. Likewise, the High Court had confirmed that the appellant companies had their “central management and control” in Australia and were liable to taxation in Australia. It too had not given any confirmation of the characterisation given by Perram J in [485].

178    In addition, counsel for Mr Gould submitted that the report was not fair in the requisite sense for the following reasons:

(a)    Mr Jordan had not even purported to give a summary of the actual issues in the HWB Litigation at any of its three stages (this is also a matter which may bear upon whether Mr Jordan’s statements should be characterised as a “report” but I have considered it convenient to deal with this submission in relation to the issue of fairness);

(b)    contrary to Mr Jordan’s assertion, Perram J had not found that there had been money laundering, tax fraud of the most serious kind and insider trading. His Honour had said only that the facts he had found suggest “widespread money laundering, tax fraud of the most serious kind and, possibly in some instances, insider trading”. In fact, in two passages, Perram J had expressly refrained from making a finding about money laundering, at [323] and [351], saying that it had not been part of the case advanced by the Commissioner. Counsel also emphasised that Perram J had done no more than direct the Registrar of the Court to refer his reasons to the Commonwealth Director of Public Prosecutions, ASIC and the AFP;

(c)    although Perram J had referred to tax fraud of the most serious kind, he had not given the same epithet in [485] to money laundering and insider trading; and

(d)    although Perram J had characterised the conduct revealed in the case as “disgraceful”, he had not characterised it as the “most disgraceful conduct [he] had ever seen”.

179    Some of these matters are of greater significance than others. While Perram J did not say that he had found widespread money laundering, tax fraud and possible insider trading, he did say that the facts he had found were strongly suggestive of those activities. Further, while Perram J did not say that the conduct revealed in the proceeding was the most disgraceful he had seen, his Honour did say that it was “disgraceful”. Further again, earlier in the reasons, Perram J had made specific findings which either supported, or were capable of supporting, the concluding statements in [485].

180    However, it is not necessary to stay to consider the significance of these matters because the submission that Mr Jordan’s description of the decisions of the Full Court and of the High Court was not fair should be upheld. In fact, Mr Jordan’s description of those decisions was misleading in a way which would have altered substantially the impression which his audience would have received had they been present at the appeal hearings or had known the content of the judgments. Mr Jordan attributed to Perram J the statement “it was the most disgraceful behaviour [he] had ever seen”. Even if that was a fair report of what Perram J had said in [485], it was not a fair report of the decisions of the Full Court and the High Court. Those decisions had confirmed the decision of Perram J on issues in the HWB Litigation but not those to which Mr Jordan referred in sentences 7 and 8. Mr Jordan did not identify for his audience the issues on which the Full Court and High Court had confirmed the decision of Perram J. Instead, he conveyed to his audience that the Full Court of the Federal Court and the High Court had endorsed Perram J’s characterisation of the conduct revealed in the litigation when they had not.

181    For this reason alone, Mr Jordan does not establish that his report was fair. This defence must fail.

Fourth question: the fair summary of a public document defence

182    Paragraph [5(c)] of Mr Jordan’s defence invokes s 28 of the UDA as he alleges that the impugned statements were contained in “a fair summary of, or a fair extract from, the judgment of Perram J in HWBB v CoT”.

Section 28 of the UDA

183    Section 138 of the CLW Act (s 28 in the UDA) as in force on 5 July 2017 provides a defence for publication of public documents:

28 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.

…

(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:

…

(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

…

184    In order to establish this defence, Mr Jordan must prove that the impugned statements were a fair summary of, or a fair extract from, a public document. It has been held that the requirement of fairness in the defence for which s 28 of the UDA provides, is informed by the same principles relating to the defence of fair report of proceedings for which s 29 of the UDA provides: Feldman v Nationwide News at [225] (Campbell J), citing Macquarie Radio Network Pty Ltd v Arthur Dent [2007] NSWCA 261 at [70]-[71] (Beazley JA).

185    It was common ground that the judgment of Perram J in HWBB v CoT and his Honour’s order which accompanied that judgment, constituted a public document for the purposes of s 28(4)(b)(ii) of the UDA.

186    In my view, this defence fails for the same reasons as does Mr Jordan’s defence of fair report of proceedings of public concern. Even if the impugned statements be a summary of Perram J’s reasons, they cannot reasonably be regarded as fair summary of the decisions of the Full Court or of the High Court. In the only part of the impugned statements in which Mr Jordan purported to give a summary of the judgments of the Full Court and the High Court, he did so inaccurately and in a way which gave his audience a different impression of the effect of those judgments than they would receive if reading them.

187    This defence fails.

Questions 8 and 9: the statutory defeasance defences

188    As noted earlier, Mr Gould pleaded that, to the extent that Mr Jordan established either of the defences of fair report of proceedings of public concern or a fair summary of a public document, the impugned statements had not been published honestly for the information of the public or the advancement of education (thereby invoking ss 28(3) and 29(3)).

189    It is not necessary to consider these defences given that I am satisfied that neither defence is made out. However, I record that counsel for Mr Gould made the same concession with respect to the reliance on the correspondence pleaded by Mr Gould in support of these defences which he had made in relation to the defence of qualified privilege. I also indicate that, had it been necessary to consider these defences, I would have reached the same conclusion as I did concerning the plea of malice in relation to the defence of qualified privilege.

Seventh question: the pleaded contextual imputations

190    In [5(b)] of his defence, Mr Jordan pleads the defence of contextual truth for which s 136 of the CLW Act (s 26 of the UDA) provides. Specifically he pleads that, in addition to Mr Gould’s pleaded imputations, the impugned statements conveyed the imputation that Mr Gould is dishonest (the contextual imputation). Mr Jordan goes on to plead that the contextual imputation is substantially true, with the consequence that so many of the pleaded imputations as are found to be established did not have the effect of further harming Mr Gould’s reputation.

191    Strictly speaking, my finding that Mr Jordan has a complete defence of qualified privilege makes it unnecessary to consider this question. Again, I will consider it in case this matter goes further.

192    I record, however, that the trial of the separate questions involves only the issue of whether the impugned statements did convey the imputation that the applicant is dishonest, i.e, whether the impugned statements “carried the contextual imputation [that Mr Gould is dishonest] in addition to the defamatory imputations of which the [applicant] complains”.

The statutory provision

193    Section 136 of the CLW Act (s 26 of the UDA) as in force on 5 July 2017, provides:

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

(Emphasis added)

Relevant principles

194    A number of matters concerning the defence of contextual truth are now established by the authorities. In Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [31] et seq., McColl JA, with whom Beazley and Giles JJA agreed, set out relevant parts of the Explanatory Memoranda concerning s 26 in the Defamation Act 2005 (NSW):

[Clause 26] provides for a defence of contextual truth. The defence deals with the case where there are a number of defamatory imputations carried by a matter but the plaintiff has chosen to proceed with one or more but not all of them. In that circumstance, the defendant may have a defence of contextual truth if the defendant proves:

[The relevant provision dealing with the defence of contextual truth was set out]

…

At general law, the truth of each defamatory imputation carried by the matter published that is pleaded by the plaintiff must be proved to make out the defence of justification unless it can be established that the imputations were not separate and distinct but, as a whole, carried a “common sting”. In that case, the defence of justification is made out if the defendant can show that the “common sting” is true. See Polly Peck (Holdings) Plc v Trelfold [1986] QB 1000 at 1032. The defence of contextual truth created by the proposed Act, unlike the general law, will apply even if the contextual imputations are separate and distinct from the defamatory imputations of which the plaintiff complains.

195    As the defence of contextual truth requires a respondent to establish that the impugned matter conveyed defamatory imputations in addition to those pleaded by the applicant, a respondent raising the defence must show that the impugned matter conveyed imputations which differ in substance from those pleaded by the applicant. However, while a contextual truth imputation must differ in substance from the plaintiff’s pleaded imputations, it need not differ in kind: Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; (2015) 91 NSWLR 341 at [42], [70]-[74], [112], [114].

196    In Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204, Nicholas J said of the “differ in substance” requirement:

[28]    The test is straightforward enough, and it would be unhelpful to embroider it with some idiosyncratic gloss. The difficulty sometimes lies in its application in a particular case. Ultimately, the result of the evaluation process is one of impression taking into account the defamatory quality of each party's imputations with regard to the contents of the matter complained of which conveys them. In order to consider whether the defendants' contextual imputations are capable of being conveyed by the matter complained of at the same time as and in addition to the imputations pleaded by the plaintiff it is necessary to establish "... just what is the precise act or condition which is asserted of or attributed to the plaintiff both by the plaintiff's own imputations and by the defendants' contextual imputations" … The scope of an imputation must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations … Where the plaintiff's imputations are more than one it will be necessary to consider all of them, separately and in combination, to determine whether a contextual imputation is carried in addition to them. The exercise requires a commonsense approach to an understanding of the publication which is expected of the ordinary reasonable reader.

(Citations omitted)

197    In Abou-Lokmeh at [31], McColl JA said that one way by which the question of whether a contextual imputation differs in substance from the plaintiff’s imputation may be determined, is to identify what the defendant must prove in order to justify the contextual imputation, or to ask “what may be proved by way of justification to each such imputation”. However, as the authorities to which her Honour referred in support of these propositions (including her Honour’s own judgment in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 at [188]) indicate, these may not be the only means by which the issue may be determined.

198    Another way by which a respondent may establish a contextual imputation different in substance from that pleaded by an application, is to show that the impugned matter conveyed a general imputation in addition to a particular imputation pleaded by the applicant. Provided that such a general imputation is different in substance, it may be pleaded even though it relates to the same subject matter: Zeccola at [49]-[50]; Abou-Lokmeh at [32]-[34], [43]-[44]; and Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [59]-[63]. As was noted by Gleeson JA in Cornwell at [62], in some cases a single alleged instance of misconduct may be so serious that it may, at the same time, convey a general charge against the applicant and there may be cases in which the collection of instances of misconduct in the impugned matter will be capable of conveying a general imputation in addition to specific imputations, at [62].

199    It is nevertheless well-established that the question of whether an imputation amounts to a general charge against the character of a plaintiff is one to be approached with care, so as to avoid unduly opening up avenues for defences of justification and contextual truth which would otherwise be barred to a defendant and thus prolong the hearing of the action: Abou-Lokmeh at [47] (McColl JA); Cornwell at [50] (Gleeson JA).

Consideration

200    Counsel for Mr Jordan submitted that the conduct of Mr Gould alleged in the impugned statements was so serious as to convey a general charge that Mr Gould was dishonest. His submission continued:

Money laundering, insider trading and tax fraud (in the sense of tax evasion) are, to the mind of the ordinary reasonable person, criminal in nature – indeed, they are offences which carry severe penalties, including imprisonment. That they all involve dishonesty, in relation to an accountant and businessman in [Mr Gould’s] position, underlines the simultaneous co-existence of a general imputation of dishonesty.

201    Thus, counsel contended that this was a case of multiple instances of misconduct conveying a more general imputation.

202    Counsel for Mr Gould submitted that, of their nature, money laundering, tax evasion and insider trading involve dishonesty. He contended, accordingly, that dishonesty is part of the imputations pleaded by Mr Gould with the consequence that Mr Jordan’s pleaded contextual imputation is not carried in addition to Mr Gould’s pleaded imputations.

203    I have kept firmly in mind the need for caution in permitting a contextual imputation of a more general kind than an applicant’s particular imputations. It can be easy for a more general imputation to be abstracted from the particular imputations pleaded by an applicant. There is a sense in which that is what Mr Jordan has done in the present case. That is especially so given the kinds of specific conduct to which he referred.

204    As Nicholas J indicated in Ange, a process of evaluation is required, in which the pleaded contextual imputation is to be compared with an applicant’s pleaded imputation. In my view, there is a real sense in which Mr Jordan conveyed the imputation that Mr Gould is dishonest generally and not only in engaging in money laundering, tax fraud and insider trading, which are Mr Gould’s pleaded imputations. He referred to Mr Gould’s “gall” in appearing before an inquiry to criticise the ATO’s manner of handling tax disputes, with the implication that this was an indication of Mr Gould’s duplicity; he described Mr Gould as the principal of “a scheme”; he gave some indication of his activities (forming a Samoan bank and undertaking transactions to hide profits); and he conveyed to listeners the enormity of the conduct by the statement that the ATO had collected “over $350 million”, with the implication that this was not just some form of simple tax “dodge”.

205    In addition, there is the fact that Mr Jordan referred to Mr Gould having engaged in three discrete forms of activity: money laundering, tax fraud and insider trading. To my mind, the statement that Mr Gould had been found to have engaged in each of these three forms of conduct had the effect of conveying not only that Mr Gould had done something or somethings in relation to tax affairs which were dishonest but that he is dishonest more generally.

206    In my view, when these matters are taken together, it should be held that the impugned statements did convey, in addition to the defamatory imputations pleaded by Mr Gould, the contextual imputation pleaded by Mr Jordan.

207    However, I note again that this conclusion is of no moment given my finding that Mr Jordan made the impugned statements on an occasion of qualified privilege.

Conclusion

208    For the reasons given above, I consider that Mr Gould was identified as the subject of the impugned statements; that the impugned statements conveyed the imputations alleged by Mr Gould, and that those imputations were defamatory of him. I am satisfied, however, that Mr Jordan made the impugned statements on an occasion of qualified privilege and thereby has a complete defence to Mr Gould’s defamation claim. I consider further that Mr Jordan has not established the defences of fair report of proceedings or fair summary of a public document but that Mr Jordan’s impugned statements did convey, in addition to the pleaded imputations, the contextual imputation that Mr Gould is dishonest.

209    I will hear from the parties with respect to the orders to give effect to these reasons and with respect to costs.

Associate:

Dated:    22 October 2021