JA and Simpson AJA agreed) explained (at 521 [195]) that the issue is not whether the matter published was an expression of opinion rather than a statement of fact, but whether the matter published insofar as it conveys the defamatory imputation is an expression of opinion.
915 There are also three aspects of s 30 which are said to point to the use of the same distinctions, being:
- (1) that the defence begins in the same way as the defences in ss 28, 29 and 31 by describing the defence as a defence for the publication of "defamatory matter" and that term "is apt to describe and should be understood as a reference to the field of battle in the action as defined" by the imputations;
- (2) s 30(1) distinguishes between "defamatory matter" (chapeau); "the matter" (s 30(1)(b)); and "that matter" (s 30(1)(c)), and if the legislature had intended a broader enquiry, then the words "the matter", not "that matter", would have been used in s 30(1)(c); it follows the words "that matter" in s 30(1)(c) "can only rationally be understood as a reference to the words 'defamatory matter' in the chapeau" and are to be distinguished from that in s 29A, which I recently considered in Russell (No 3) (at [309]–[316]);
- (3) s 30(3) defines the relevant enquiry as being "whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances" and hence focuses upon the allegations concerning the applicant; that is, the defamatory matter, not the entirety of the publication.
916 It is further submitted this approach is confirmed by other objects of the Defamation Act including "effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter": s 3(c); that is, the focus is not upon "the regulation of journalistic standards in respect of parts of publications not selected for complaint".
917 It was said to be "absurd" if the Court were to conclude that Network Ten's conduct in respect of the publication of the rape allegation selected for complaint by Mr Lehrmann was reasonable, and yet go on to award damages to Mr Lehrmann because Network Ten's conduct was unreasonable in relation to the cover-up allegations. Such an outcome would, it is submitted, be inconsistent with "the objects of the Act, the policy of the cause of action and would defy common sense to the point of bringing the law into disrepute".
