898 Thirdly, although disputing relevance, Ms Wilkinson in submissions surprisingly doubled down on the notion that there was a proper basis for suggesting in the programme that "roadblocks" were put in place to obstruct the investigation. She called in aid a miscellany of matters such as no ambulance being called; the fact that Parliament House had no independent Human Resources department; the location of the meeting with the Minister; the "delay" in obtaining the CCTV; and that "the internal police in APH answer to politicians and different rules apply". Some of these matters are misconceived, but even to the extent they are true, or partly true, they are beside the point. The submission relying on the existence of these facts (to the extent they existed) is devoid of merit. These were not "roadblocks" to obstruct an investigation requiring someone to choose between her career and pursuing justice. An extraordinarily serious allegation was being made, pregnant with the notion of conscious wrongdoing to secure a perceived advantage. Leaving aside any comfort that could be derived from what Ms Higgins said she felt, there was no real factual basis, let alone a reasonable factual basis, for the allegation.
J.4The Position of Ms Wilkinson
899 As I explained in the cross-claims judgment (at [32]–[35]), the s 30 defence requires a focus on the conduct of each of the respondents: that is, the conduct of Network Ten and Ms Wilkinson separately, and it follows that there is a need for the trier of fact to make findings in respect of each publisher as to what, in fact, occurred, before turning to the statutory mandate to have regard to all the relevant circumstances in considering whether the conduct of each publisher was reasonable. I also noted that as the trial went on, the more it became evident as to how Ms Wilkinson seeks to distinguish her role from the role of others within Network Ten as to the investigation and publication of the Project programme.
900 In Section J.3 above, I have already made several findings as to the relevant conduct of Ms Wilkinson. I will focus on the distinguishing factual matters called in aid by Ms Wilkinson as to her conduct in Section K.5 below, when evaluating the availability of the s 30 defence.
KTHE SECTION 30 DEFENCE
K.1Introduction
901 As at the time of publication of the Project programme, and prior to the coming into force of the Defamation Amendment Act 2020 (NSW) on 1 July 2021, s 30 of the Defamation Act provided as follows:
