publishing the assertions and allegations giving rise to the imputations without giving Mr Lehrmann a reasonable opportunity to respond (SOC [9(a)]).
1027 Importantly, the focus of this particularised conduct is a reckless indifference to the truth of the imputations, not the matter generally and as pleaded. It relates to the failure to give Mr Lehrmann an opportunity to respond, which I will deal with separately.
1028 The shortcomings of Network Ten and Ms Wilkinson canvassed while dealing with the statutory qualified privilege defence, while preventing a finding their conduct was reasonable in publishing the matter in its character of conveying the defamatory imputation, were not of such a character, nor so improper and unjustifiable as to amount to reckless indifference as to the truth or falsity of the pleaded defamatory imputations. Put another way, even though Network Ten or Ms Wilkinson acted unreasonably in relation to the publication of the imputations, and irrespective as to whether they behaved improperly in relation to other matters, this aspect of their conduct cannot be stigmatised as improper or lacking in good faith.
IIIFailure to Seek Comment Adequately
1029 In considering the s 30 defence, I have already dealt with the unreasonable approach to seeking comment reflected in Mr Llewellyn's statement to Ms Wilkinson on 11 February 2021, that the "questions are really to cover us off for defamation" (Ex R541), and his comments to Ms Higgins and Mr Sharaz during the first meeting.
1030 Although Mr Llewellyn's box-ticking exercise (and Ms Wilkinson's acquiescence in it) was unreasonable in the circumstances, I do not consider it reaches the level of improper and unjustifiable conduct demonstrating a lack of bona fides. Moreover, I have difficulty accepting the evidence of Mr Lehrmann that he feels increased hurt by reason of this aspect of this conduct when I am satisfied he never had any intention of providing a comment.
1031 It is not conduct justifying an award of aggravated damages.
IVThe Logies Speech and Ms Smithies' Advice
1032 Ms Smithies gave evidence she considered it was her role, not that of Mr Drumgold, to give advice about the proposed Logies speech to Ms Wilkinson. This was an understandable view, but it was not strictly accurate. As Kaye AJ explained in Drumgold v Board of Inquiry (No. 3) [2024] ACTSC 58 (at [471]), it is a fundamental principle that a prosecutor, as a minister
