reasonableness is open-textured and value-laden; and when Courts are required to apply such a standard, as Professor Julius Stone observed: "judgment cannot turn on logical formulations and deductions, but must include a decision as to what justice requires in the context of the instant case … [Such standards] are predicated on fact-value complexes, not on mere facts": see Legal System and Lawyers' Reasonings (Stanford University Press, 1964) (at 263–264).
933 The assessment of reasonableness has, implicit within it, the identification of values against which conduct is measured. Some assistance is derived from the non-exclusive's 30(3) factors, but one cannot ignore other norms or values one would expect to inform the conduct of responsible and reasonable journalism. Despite the resistance of the respondents to the notion, the usefulness of the Code is that it provides, among other things, a pointer as to what might be expected of a journalist.
934 The respondents are correct to stress the lack of any direct relevance of the Code in this case, but that is not to say (nor in fairness do I think the respondents are saying) that I would be wrong in having regard to whether the publisher was: (a) reporting and interpreting honestly, striving for accuracy, fairness, and disclosure of all essential facts; and/or (b) not allowing any belief or commitment to undermine fairness or independence.
935 As I will explain, taking all relevant considerations into account, including the desirability of not allowing any belief to undermine fairness or independence, the conduct of Network Ten and Ms Wilkinson in publishing the matter in its character of conveying the defamatory imputations of rape fell short of the standard of reasonableness.
K.4Why the Network Ten Conduct was not Reasonable
936 Returning to specifics, and relying on the findings identified in Section J above, to the extent they are relevant, there are several pointers in the evidence demonstrating why the conduct of Network Ten fell short of being reasonable in publishing that matter, in its character as making the imputation of rape:
- (1) The rape allegations were intertwined with the cover-up and the Project team had strong indications of the unreliability of their main source, particularly as to how she lost material on her phone and selected material survived; her explanations were implausible and rather than this being a flashing warning light, Mr Llewellyn's instinct was to avoid "unnecessary doubt" (Ex R295) and was not even followed up. The lack of curiosity about investigating the bruise photograph is especiallyLehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369256
