• Any

• Sim v Stretch[1936] 2 All ER 1237 at 1240;
• Parmiter v Coupland[1840] EngR 168;(1840) 6 M & W 105 at 108;
• Yousoupoff v MGM Pictures Ltd(1934) 50 TLR 581 at 587;
• Reader's Digest Services v Lamb[1982] HCA 4;(1982) 150 CLR 500 at 507;
• Farquhar v Bottom[1980] 2 NSWLR 380 at 385;
• Gorton v ABC(1973) 1 ACTR 6;
• Lange v ABC[1997] HCA 25;145 ALR 96;
• Mundey v Askin[1982] 2 NSWLR 369;
• Taylor v Jecks(1994) 10 WAR 309 at 320;
• Buick v Duncan(1986) 127 LSJS 277 at 281;
• Pooley v Duncan(1978) 80 LSJS 58;
• Whitford v Clark(1934) SASR 134;
• Rocca v Manhire(1992) 57 SASR 224 at 229;
• McQuire v Western Morning News (1903) 2 KB at 110;
• Pryke v Advertiser Newspapers Ltd(1984) 37 SASR 175 at 192-193;
• Petersen v Advertiser Newspapers Ltd[1995] SASC 5018;(1995) 64 SASR 152;
• Adam v Ward[1917] AC 309 at 334;
• Stephens v The Western Australian Newspaper Ltd[1994] HCA 45;(1994) 182 CLR 211 at 261;
• Bruton v Estate Agents Licensing Authority[1996] VicRp 68;[1996] 2 VR 274 at 292-296;
• Guise v Kouvelis[1947] HCA 13;(1947) 74 CLR 102 at 111 and 122-125;
• Braddock v Bevin(1948) 1 QB 580 at 590-591;
• Bruce v Liesk(1892) 29 SLR 414;
• Calwell v Ipec Australia Ltd[1975] HCA 47;(1975) 135 CLR 321 at 335;
• Barbaro v Amalgamated Television Service Pty Ltd(1985) 1 NSWLR 30 at 50-51;
• Horrocks v Lowe[1975] AC 135;
• Uren v John Fairfax & Sons Pty Ltd(1966) 177 CLR 118 at 125;
• Polly Teck (Holdings) Plc v Trelford[1986] 1 QB 1000;
• Chakravarti v Advertiser Newspapers (1998) 193 CLR 519;
• Steiner Wilson & Anor v Amalgamated Television Services Pty Ltd (Unreported)[1999] ACTSC 123, 18 October 1999, considered.
• Carson v John Fairfax & Sons Ltd[1993] HCA 31;(1993) 178 CLR 44 at 60-61;
• Dingle v Associated Newspapers[1964] AC 371 at 410-1;
• Triggell v Pheeney[1951] HCA 23;(1951) 82 CLR 497;
• Andrews v John Fairfax & Sons Ltd[1980] 2 NSWLR 225 at 244 and 250;
• Mirrors Newspapers v Jools (1986) 65 ALR at 177-8;
• Uren v John Fairfax & Sons[1966] HCA 40;(1966) 117 CLR 118 at 149;
• Bob Gilbert Motors Pty Ltd v SA Telecasters[1999] SADC 38; [1999] SASC 499;
• Broome v Cassell[1972] UKHL 3;(1972) AC 1027, considered.

Representation

Defendant GEOFFREY MARK ROBERTS:

Counsel: MR P A HEYWOOD-SMITH - Solicitors: DAVID WILSON

Defendants DESMOND JOHN HIGGINS AND RHONDA ANNE HIGGINS:

No Attendance

Defendant KENNETH ALLAN CASE:

Counsel: MR P A HEYWOOD-SMITH - Solicitors: DAVID WILSON

DCCIV-98-438

Judgment No.[2000] SADC 35

24 March 2000

(Civil)

Judge Lowrie

Civil

INTRODUCTION2

PLEADINGS9

DEFENCE OF THE FIRST DEFENDANT, MR ROBERTS13

DEFENCE OF THE FOURTH DEFENDANT, MR CASE20

PLAINTIFF'S REPLY TO THE DEFENCE OF THE FIRST DEFENDANT20

EVIDENCE23

Nauru Postcard 28

Free Travel Times Pamphlet 29

Mr Tully - The Electoral Commissioner 34

Plaintiff's Remaining Witnesses - Distribution Of Material 37

DEFENDANTS' EVIDENCE37

Mr Case 38

Mr Roberts 46

Mr Douglas 57

Mr Wilson 59

Mr Clarke 59

FINDINGS61

Mr Bass 61

Mr Roberts 63

Mr Case 65

DEFAMATORY MEANING66

NAURU POSTCARD68

FREE TRAVEL TIMES PAMPHLET69

Frontispiece 70

The second page 70

The third page 70

The final page 70

ORANGE PAMPHLET71

DEFENDANTS' SUBMISSIONS72

FAIR COMMENT73

QUALIFIED PRIVILEGE74

MALICE76

EXTENDED FORM OF QUALIFIED PRIVILEGE79

POLLY PECK PRINCIPLE81

DAMAGES82

Damages as between the Defendants 83

Aggravated Damages 84

Exemplary Damages 85

Interest 86

Summary 86

INTRODUCTION

1. The plaintiff was formerly the Member of the seat of Florey in theHouse of Assembly in South Australia, having been elected in 1993.An electionwas scheduled to take place on 11 October 1997. Prior to the electionthree documents had been authorised and distributedby the first defendant(hereinafter called "Mr Roberts") which documents the plaintiff allegesreflected on his integrity and consequentlyhe was defamed.

2. The first document was a postcard, the front containing a glossyimage of a hotel at Nauru, and, on the reverse the words "This isthe postcardSam Bass should have sent you from the Pacific island paradise where he isenjoying a winter break at your expense".The postcard, Exhibit P2, containedother words. A photocopy of the postcard appears hereunder.

3. In July 1997 the plaintiff had attended a parliamentary conferenceon the island of Nauru.

4. Approximately a week before the election Mr Roberts authorised andcaused to be distributed an A4 size pamphlet of two pages withprinting on bothsides of each page in colour headed "Free Travel Times" to the electors ofFlorey. The document contained a caricatureof the plaintiff on the first pageand on the second page a purported "Ansett Australia Frequent Flyer ....Activity Statement" inthe name of Mr Bass. The third page was headed "How SamBass travelled the world and how taxpayers picked up the tab". Finally ontheback page the heading, "Bring the Frequent Flyer Back to Earth!" and a collageof various newspaper headlines of overseas travelby other parliamentarians.This document, Exhibit P3, has been referred to as the "FTT" pamphlet. Aphotocopy appears hereunder.The original must be perused so that the colourimpact of the same can be observed.

Copy of FTT pamphlet (4 pages)

Mr Roberts then further authorised and arranged for the distributionat polling booths on election day of an orange coloured how tovote type cardapproximately 21cm by 10cm. On one side it was headed "3 things Sam Basshasdone as Member for Florey:" and, thereafter made alleged comments about hisparliamentary activities. On the reverse side it was headed"3 things Sam Basswill do if you vote him back in:" and made further suggestions about his futureconduct. At the bottom of thelast page, and highlighted, was the comment "Whenyou vote, PUT SAM BASSLAST". This document, Exhibit P4, has beenreferred to as the "PSBL" pamphlet. A copy of that document appearshereunder.

Copy of PSBL pamphlet

The plaintiff claimed that his reputation has been damaged by each ofthese publications and, consequently, sought an award for damages,and, inrelation to the FTT pamphlet, an award for aggravated and exemplarydamages.

7. The proceedings had originally been commenced against Mr and MrsHiggins who printed the Nauru postcard and the FTT pamphlet. Theplaintiffsubsequently discontinued the action against such persons.

8. The plaintiff claimed that the fourth defendant, Mr Case, handed outthe PSBL pamphlet on the morning of the election and, in sodoing, republishedthe defamatory imputations contained therein. The plaintiff also sought damagesfor such conduct.

9. Both Mr Roberts and Mr Case were represented by the samesolicitor and counsel.

10. Mr Roberts in his defence admitted that he authorised anddistributed both the Nauru and the FFT pamphlets, but denied the wordsandimages were capable of a defamatory meaning because they were true, insubstance and in fact, and, alternatively, they were mattersof fair comment ona matter of public interest and that they were published on occasions ofqualified privilege. He repeated thatplea in regard to the PSBLpamphlet.

11. The fourth defendant, Mr Case, filed a defence in similarterms.

PLEADINGS

12. The statement of claim sets out specifically the plaintiff'sallegations concerning the written material authorised by Mr Robertsconcerningthe various words used in the FTT pamphlet.

13. The plaintiff claimed in paragraph 9 of the statement ofclaim:

"The said words and images in their natural and ordinary meaning meantand were understood to mean:-(a)That the plaintiff had corruptlyused his position as a member ofParliament to obtain a holiday at Nauru for his own benefit.(b)That the plaintiff whilst attendingthe Nauru Resort was neglecting hisresponsibilities to his constituents in the seat of Florey in the Parliament.(c)That the plaintiffhad taken advantage of his position as the member ofParliament to obtain a free holiday for his own purposes.(d)That the plaintiffhad used his position as a member of Parliament toaccrue Frequent Flyer Points for his own use and for the use of the members ofhis family.(e)That the plaintiff had on numerous occasions used his positions as a memberof Parliament to accrue Frequent FlyerPoints for his own benefit and for thebenefit of the members of his family.(f)That overseas trips taken by the plaintiff in thecourse of hisParliamentary duties were in fact undertaken not in pursuit of his duties as amember of Parliament and the interestsof his constituents in the seat ofFlorey but for his own interests and recreational pursuits."

14. The plaintiff alleged that the orange PSBL pamphlet was handed outto voters at polling booths in the electorate was defamatory ofhim because:

"14.The said words in their natural and ordinary meaning meant and wereunderstood to mean:(a)That the plaintiff had spent $32,000.00of taxpayers' money on overseastravel.(b)That the plaintiff had spent $32,000.00 of taxpayers' money for overseastravel for thepurpose of his own enjoyment and not for the proper purpose ofsuch travel, namely to enhance the plaintiff's knowledge of issuesrelevant tothe better performance of his role as a member of Parliament.(c)That the plaintiff had taken numerous overseas tripsfor his own benefitand enjoyment at the taxpayers' expense.(d)That the plaintiff had taken numerous overseas trips for his ownbenefitand enjoyment and not for the intended purpose of such trips, namely to enablehim to better serve the interests of the Parliamentof South Australia and themembers of this electorate.(e)Contrary to his responsibility as the member of Parliament for Floreyfailed to take appropriate steps to prevent clandestine arrangements being putin place in respect of the management of the ModburyHospital, contrary to theinterests of the members of the electorate of Florey and the public of SouthAustralia generally.(f)Thatthe plaintiff had put the rights of those interested in the right topossess and utilise guns ahead of the safety of members of ordinaryfamilies.(g)That the plaintiff had not spent sufficient time in his electorate toproperly discharge his duties as the member ofthe seat of Florey.(h)That the plaintiff was not spending sufficient time in the electorate ofFlorey to enable him to adequatelyfulfil his duties as the member for Florey.(i)That if the plaintiff was elected to the member of Florey and thensubsequently electedas Speaker of the House of Assembly then he would spendless time than the time that he was currently spending in theelectorate."

15. The plaintiff pleaded that the words on the back of the Naurupostcard meant and were understood to mean:

"(a)That the plaintiff had taken a holiday trip to Nauru at the expenseof the taxpayers of the seat of Florey.(b)That the plaintiff'sholiday at Nauru was for his own enjoyment, at theexpense of the taxpayers of the seat of Florey, and not in the proper pursuitof his duties as a member of Parliament and as the member of the seat ofFlorey."

16. The plaintiff pleaded that prior to the election he became aware ofthe existence of the FTT pamphlet, and, by letter of 3 October1997 theplaintiff's solicitors wrote to the first defendant alleging that the pamphletwas defamatory and contravenedsection 113 of theElectoral Act, and, if it wasdistributed, the plaintiff would take action against him.

17. He further pleaded in the following paragraphs that:

"20.3The first defendant, through his solicitors letter dated3^rd October 1997 gave an undertaking that the first defendant wouldtake steps to stop the distribution of FTT.20.4Notwithstandingthe said undertaking FTT was nevertheless distributedextensively to all or at least a substantial number of the residences andbusinesspremises situated in the electorate of Florey.20.4AOn 3^rd October 1997 the Electoral Commissioner wrote to thefirst defendant. In the said letter the Electoral Commissioner informed thefirst defendant that he was satisfied that the FTT contained a statement thatthe plaintiff was a member of a Frequent Flyer's Cluband such statementpurported to be a statement of fact and further that on the evidence availableto the Electoral Commissioner suchstatement was inaccurate and that suchinaccuracy was material. The Electoral Commissioner in the said letterrequested the firstdefendant to withdraw the FTT from publication.20.4BThe first defendant received the letter referred to in paragraph 20.4Ahereofon 3 October 1997 and on the said date retained David Wilson, solicitor.20.4COn 6 October 1997 the Electoral Commissioner wroteto Mr DavidWilson setting out his understanding that the FTT had been distributed withinthe electorate of Florey and asking whetherthis had occurred before or afterhis request to withdraw the advertisement from publication or distribution. TheElectoral Commissionerfurther requested the publication of a retraction in theterms and in a manner and form as specified by him in the said letter includingthe words 'Any suggestion that Mr Bass used public money for private holidaysis also retracted' and requested the immediate withdrawalof the FTT fromfurther publication or distribution.20.4DNotwithstanding the terms of the letter referred to in 20.4C hereofdistributionof the FTT continued.20.4EBy letter dated 7 October 1997 to the Electoral Commissioner David Wilsonsaid that the first defendant'would be happy to publish a retraction' andsuggested an alteration to the retraction requested by the ElectoralCommissioner butsuggested no alteration to the words quoted in paragraph 20.4Chereof.20.4FBy letter dated 7 October 1997 to David Wilson the ElectoralCommissionersaid that the was prepared to accept the suggested alteration and stated hisrequirements as to the terms and form ofthe retraction including that theretraction be distributed to all addresses within the Florey electorate by5.00pm Wednesday 8 october1997.20.4GBy letter dated 7 October 1997 to the Electoral Commissioner David Wilsonclaimed that the first defendant's enquirieshad revealed that there was nodistribution facility that would be able to comply with the requirements ofdistribution laid downby the Electoral Commissioner.20.4HBy letter dated 7 October 1997 to David Wilson the Electoral Commissionersaid that his recentexperience suggested that the original timetable set byhim was reasonable and achievable and repeated his request that the firstdefendant effect distribution of a retraction as soon as possible.20.4IThe first defendant has never published or distributed aretraction ofthe FTT.20.4JFollowing the distribution of the FTT and the PSBL and the election thefirst defendant was prosecutedon two counts of publishing an electoraladvertisement which advertisement contained statements purporting to bestatements of factthat were inaccurate and misleading to a material extent.The charges related to the distribution of the FTT and PSBL respectively.On orabout the 4^th day of February 1999 the first defendant pleadedguilty in the Holden Hill Magistrates' Court to each of the said charges.Despitesuch pleas of guilty the first defendant has at no stage acknowledgedto the plaintiff the inaccuracy and misleading nature of thePSBL and FTT andhas persisted in these proceedings with pleas of justification. 20.5The first defendant published FTT with theintent of causing hurt,distress and political damage to the plaintiff.AND the plaintiff claims:1.Damages against the first, secondand third defendants in respect of thesaid words and images appearing in FTT.2.Exemplary or aggravated damages against the firstdefendant in respect ofthe said words and images appearing in FTT.3.Damages against the first and fourth defendants in respectof the said wordsappearing in the PSBL pamphlet.4.Damages against the first defendant in respect of the words and imageappearingin the postcard document.5.Costs.6.Interest."

DEFENCE OF THE FIRST DEFENDANT, MR ROBERTS

18. Mr Roberts admitted that the FTT pamphlet was published at hisrequest and had been distributed to a substantial number of residencesandbusiness premises situated in the electorate of Florey, but denied that thewords were capable of bearing the meanings allegedin the statement of claimand were not defamatory of the plaintiff, and, further that the words were truein substance and in fact.These were particularised in paragraph 10.2.1 of hisdefence as follows:

"During the course of his parliamentary term the plaintiff had travelledto Nauru and the United Kingdom at the expense of taxpayers."

19. Alternatively, the first defendant pleaded that the words were"fair comment on a matter of public interest namely the conduct oftheplaintiff as a member of Parliament and as a candidate for election torepresent the seat for Florey". This plea was particularisedasfollows:

"11.1At the time of publication of the document the plaintiff was theelected member in the Parliament of the State of South Australiafor the seatof Florey.11.2At the time of publication of the document the plaintiff was a candidatefor the election to the seatof Florey, which election was to take place on 11October 1997 ('the election').11.3The document related to matters concerningthe conduct of the plaintiff asa member of Parliament.11.4The document related to matters relevant to an elector determining whotovote for at the election.11.5Publication was only made to persons who could be expected to be enrolledas electors.11.6Duringthe course of his parliamentary term the plaintiff had travelled toNauru and the United Kingdom at the expense of taxpayers.11.7The plaintiff was entitled to accrue Frequent Flyer points in the courseof travelling at taxpayers' expense.11.8By reason of thematters set out above the comment was of a matter ofpublic interest."

20. Mr Roberts admitted that he had printed and published the PSBLpamphlet and the same had been distributed at polling booths throughouttheelectorate of Florey on the day of the election, but, denied the words werecapable of a defamatory meaning, and such words werestatements of fact. Heparticularised such plea as follows:

"17.1The following words are a statement of fact:'Had numerous junkets at your expense including trips to the United KingdomandNauru'.17.2The facts and matters relied upon in support of the allegation that thewords set out above are true are as follows:17.2.1The plaintiff was the elected member in the parliament of SouthAustralia for the seat of Florey.17.2.2In 1996 the plaintifftravelled to the United Kingdom at the expense ofthe taxpayers.17.2.3In 1997 the plaintiff travelled to Nauru at the expenseof taxpayers.17.2.4The defendant has travelled to, inter alia, the mid north of SouthAustralia, Roxby Downs, Moomba and the northeastern corner of South Australiaand Sydney and places in New South Wales at the expense of the taxpayers.17.3The following wordsare a statement of fact:'Stood by and did nothing to stop 'secret deals' at the Modbury Hospital'.17.4The facts and matters reliedupon in support of the allegation the wordsset out are true as follows:17.4.1The Modbury Hospital is a public hospital ('thehospital') situated inthe electorate of Florey.17.4.2The South Australian Government entered into a contract withHealthscopeconcerning the operations of the hospital. When concluded theagreement contained confidentiality clauses which have not been madepublic.17.4.3The Modbury Hospital Action Group requested that the plaintiff meetwith them to discuss their concerns regardingthe Hospital Management.17.4.4The plaintiff declined to act on the request made of him.17.5The following words are a statementof fact:'He put gun rights ahead of your family's safety'.17.6The facts and matters relied upon in support of the allegationthe wordsset out above are true as follows:17.6.1The plaintiff objected, both in Parliament and by way of publicstatement, tothe legislation proposed by the Prime Minister as a consequenceof the shootings that had taken place at Port Arthur, Tasmania."

21. Further in the alternative the words were matters of fair commenton a matter of public interest namely the conduct of the plaintiffas a memberof Parliament and as a candidate for election to represent the seat of Florey.This was particularised as follows:

"18.1At the time of publication of the document the plaintiff was theelected member in the Parliament of the State of South Australiafor the seatof Florey.18.2At the time of publication of the document the plaintiff was a candidatefor election to the seat ofFlorey, which election was to take place on 11October 1997 ('the election').18.3The document related to matters concerning theconduct of the plaintiff asa member of Parliament.18.4The document related to matters relevant to an elector determining who tovote for at the election.18.5Publication was only made to persons who could be expected to be enrolledas electors.18.6Duringthe course of his parliamentary term the plaintiff had travelled toNauru and the United Kingdom at the expense of taxpayers.18.7The Parliamentary allowance for travel during the term of the plaintiff'smembership of the Parliament was $8,000.00 per year.18.8The defendant repeats the particulars given in paragraph 17 of thisdefence of the facts and matters relied upon in support of theallegations inthat paragraph.18.9By reason of the matters set out above the comment was on matters ofpublic interest."

22. The defendant further admitted that he had printed and publishedthe "Greetings from Nauru" postcard, but the words thereon werenot capable ofbearing the meanings as alleged and were not defamatory of the plaintiff and infact were true in substances and fact.He particularised such plea asfollows:

"22.1The following words are a statement of fact:'He is enjoying a winter break at your expense'.22.2The facts and matters reliedupon in support of the allegation that thewords set out above are true are:22.2.1In July 1997 the plaintiff travelled to Nauruat the expense oftaxpayers."

23. The further alternate plea was paragraph 23 as follows:

"Further and in the alternative if and insofar as the words bear themeanings set out in paragraph 19 of the statement of claim theyare faircomment on a matter of public interest namely the conduct of the plaintiff as amember of Parliament and as a candidatefor election to represent the seat ofFlorey.PARTICULARS23.1At the time of publication of the document the plaintiff was the electedmember in the Parliament of the State of South Australiafor the seat of Florey.23.2At the time of publication of the document the plaintiff was a candidatefor election to the seat ofFlorey, which election was to take place on 11October 1997 ('the election')23.3The document related to matters concerning theconduct of the plaintiff asa member of Parliament.23.4The document related to matters relevant to an elector determining who tovote for at the election.23.5Publication was only made to persons who could be expected to be enrolledas electors.23.6Duringthe course of his parliamentary term the plaintiff had travelled toNauru at the expense of taxpayers."

24. Further the defence of qualified privilege was contained inparagraph 24 as follows:

"In further answer to the whole of the statement of claim the firstdefendant says that the FTT and the pamphlet ('the documents')and the postcard('the documents') were published on occasions of qualified privilege and was amatter concerning government andpolitical matters affecting the electors ofFlorey and the choice for electors at an election.PARTICULARS24.1At the time of publication of the documents and the postcard the plaintiffwas the elected member in the Parliament of the Stateof South Australia forthe seat of Florey.24.2At the time of publication of the documents the plaintiff was a candidatefor electionto the seat of Florey, which election was to take place on 11October 1997 ('the election').24.3The documents and the postcardrelated to matters concerning the conductof the plaintiff as a Member of Parliament.24.4The documents and the postcard relatedto matters relevant to an electordetermining who to vote for at the election.24.5Publication was only made to persons who couldbe expected to be enrolledas electors.24.6During the course of his parliamentary term the plaintiff had travelled toNauru andthe United Kingdom at the expense of taxpayers.24.7The first defendant repeats the particulars given in paragraph 10.2.1 ofthisdefence.24.8The first defendant repeats the particulars given in paragraph 17 of thisdefence as to the facts and matters reliedupon in support of the allegationsin that paragraph.24.9The first defendant repeats the particulars given in paragraph 18.7 ofthis defence.24.10In the premises, the first defendant had an interest and the electors ofFlorey had a reciprocal and correspondinginterest (or apparent interest) inthe matters the subject of the documents and postcard.24.11By reason of the matters set outabove the publication of the documentsand the postcard concerns the public's interest in disseminating and receivinginformation,opinions and arguments concerning government and political mattersthat affect the public.24.12The publication thereof and themode and manner and extent of publicationwere reasonable in the circumstances."

25. The first defendant denied the plaintiff was entitled to thedamages as sought in relation to the plea concerning correspondence.That ispleaded as follows:

"25.1that the first defendant received a letter dated 3 October 1997from the plaintiffs solicitors and refers to that letter forits terms and thatthe first defendant by his solicitor replied by letter dated 3 October 1997 andrefers to that letter for itsterms but save as aforesaid denies paragraphs20.1, 20.2, 20.3, 20.4 and 20.5 of the statement of claim;25.2that the first defendantreceived a letter dated 3 October from theElectoral Commissioner and refers to that letter for its terms;25.3that he admits 20.4B;25.4that he admits that the Electoral Commissioner wrote to David Wilson on 6October 1997 and refers to that letter for its termsand further says that theletter was received by Wilson on 7 October 1997;25.5that he does not know and therefore cannot admit20.4D but he denies thathe participated in any distribution after 3 October 1997 and says that heattempted to stop distributionand that if any distribution did occur after 3October 1997 it was peripheral or incidental and not reasonably capable ofbeing preventedby him;25.6that he admits 30.4E but asserts that Wilson did suggest an alteration;25.7that he admits 20.4F;25.8that he admits20.4G;25.9that he admits that the Electoral Commissioner wrote to David Wilson on 7October which letter was received by Wilsonon 8 October and refers tothat letter for its terms;25.10that he admits 20.4I25.11that as to 20.4J he denies that he at no stageacknowledged to theplaintiff the inaccuracy of the FTT and PSBL documents and says that he did soon 4 February 1999 in the HoldenHill Magistrates Court when he pleaded guiltyto two counts of a charge pursuant toSection 113(2) of theElectoral Act,1985; and that he further denies that such pleas of justification as are madein his defence to the within proceedings are inconsistentwith the allegedacknowledgement."

DEFENCE OF THE FOURTH DEFENDANT, MR CASE

26. The defence of Mr Case was in a similar form to that of the firstdefendant, Mr Roberts.

PLAINTIFF'S REPLY TO THE DEFENCE OF THE FIRST DEFENDANT

27. The plaintiff filed a reply to the defence of the first defendantdenying the allegations in the defence. It contained a plea thatthe firstdefendant's plea of fair comment was not open as the plaintiff contended thatthe defendant's actions were malicious. Thatplea was as follows:

"5.The plaintiff says further that the defence referred to in paragraph11 of the Amended Defence of the first defendant is notavailable to the firstdefendant because the publication was made with actual malice.PARTICULARS OF MALICE(a)The plaintiff will reply upon all of the matters referred to in paragraph 8of the Statement of Claim.(b)The publication ofFTT was made shortly prior to the election referred toin paragraph 2 of the Statement of Claim.(c)The depiction of the plaintiffin the caricature referred to in paragraph8.1(a) of the Statement of Claim was such as to lower the reputation of theplaintiffand hold him up to ridicule and contempt.(d)The depiction of the plaintiff was such as to suggest excessive consumptionand slothon the part of the plaintiff.(e)The words and layout of the words 'Parliamentary traveller of the year'were such as to suggestthat the plaintiff travelled more than any otherparliamentarian when the first defendant had no basis for making suchallegationand such allegation was not true.(f)The words 'flat out working for you' in conjunction with the caricature wassuch as to suggestextreme sloth and failure to attend to his duty by theplaintiff.(g)The reference to 'frequent flyer' in association with the depictionof afalse Ansett Australia Frequent Flyer Activity Statement when the firstdefendant had no basis for suggesting that the plaintiffwas a member of AnsettFrequent Flyer and such was not in fact the case.(h)The depiction of apparent newspaper cuttings on thefinal page of FTT inassociation with the identification of the plaintiff suggested such cuttingswere relevant to the plaintiff'sactivities when the first defendant had nobasis for such suggestion and such was not the case.(i)The get up and layout of theFTT was such as to suggest a serious abuse bythe plaintiff of his position as a member of Parliament when there was no basisforsuch suggestion and such was not the case.(j)The failure of the first defendant to contact or seek the truth in relationto anytravel of the plaintiff from the plaintiff prior to publication.(k)The plea of truth in paragraph 10 of the Amended Defence.(l)The conduct of the first defendant in publishing and arranging for thepublication and distribution of the FTT, the PSBL pamphletand the postcarddocument. (m)The failure of the first defendant to prevent distribution of the FTT afterreceipt of the letterof 3 October written by the plaintiff's solicitors asreferred to in paragraph 20 of the Statement of Claim.(ma)The conduct ofthe first defendant referred to in paragraphs 20.4A, 20.4B,20.4C, 20.4D, 20.4E, 20.4F, 20.4G, 20.4H, 20.4I and 20.4J of the StatementofClaim.(n)The matters referred to in paragraphs 15, 17 and 18 hereof."

28. In relation to the plea in paragraph 17.4 concerning theplaintiff's involvement with the Modbury Hospital, the plaintiff pleadedinparagraph 11 of the amended reply as follows:

"The plaintiff denies the allegations contained in paragraph 17.4.3 ofthe Amended Defence and says further that the Modbury HospitalAction Grouprequested the plaintiff's assistance in approaching the relevant Minister andthe plaintiff provided assistance."

29. Further the plaintiff said the defence of fair comment was notavailable to the first defendant in regard to the PSBL pamphlet asthatpublication was made with actual malice. Particulars of such malice werepleaded in paragraph 15 as follows:

"(a)The plaintiff repeats paragraph 5 hereof.(b)The set up and presentation of the said publication was such as to suggesttoelectors that they ought to put the plaintiff last on the coming ballotpaper.(c)The set up of the said publication was such asto cause maximum damage tothe reputation of the plaintiff.(d)The plaintiff will further reply upon all of the matters referredto inparagraph 13 of the Statement of Claim.(e)The purpose of the publication was to effect the reputation of theplaintiff inthe eyes of electors.(f)The timing of the distribution of the publication was such as to causemaximum damage to the plaintiff.(g)The plea of truth in paragraph 17 of the Amended Defence."

30. He further alleged that neither was a defence of fair commentavailable to the first defendant to the postcard plea. Such malicewas pleadedin paragraph 17 as follows:

"(a)......(b)The set up and presentation of the publication was such as to cause maximumdamage to the reputation of the plaintiff.(c)The purpose of publishing the said publication was to damage the reputationof the plaintiff."

31. The plaintiff then pleaded in paragraph 18 that such publicationswere made as follows:

"(a)The first defendant had no reasonable grounds for believing thatthe imputations referred to in the Statement of Claim weretrue and took noproper steps to verify the accuracy of such imputations and well knew that theimputations were untrue.(b)Thefirst defendant took no steps to seek any response from the plaintiffand has failed to publish any retraction."

EVIDENCE

32. The plaintiff gave evidence and as well called Mr Steven Tully, theElectoral Commissioner for the State of South Australia and anumber ofresidents of the Florey electorate who outlined dates when they had receivedthe FTT pamphlet.

33. The plaintiff was born in 1944 and has lived most of his life inthe north eastern suburbs of Adelaide, an area which includes theStateelectoral seat of Florey. The plaintiff became a member of the South AustralianPolice Force at the age of 17 and served asan officer for 33 years. Duringthat time of service the plaintiff served in various branches of policeoperations including theBureau of Criminal Intelligence. The plaintiffattained the rank of Detective Sergeant and as well received two awards forbravery.In the last five years of service the plaintiff occupied the electedposition of Secretary of the Police Association. The plaintiffresigned fromthat position in 1993 to stand as the Liberal Member for the seat ofFlorey.

34. The plaintiff is married and has three children who are now aged31, 24 and 22. The plaintiff said that apart from his police dutieshe had beena member of the local school council for some 9 years as well as serving as itschairman.

35. Mr Bass outlined that the seat of Florey is in the north easternsuburbs in and around the Tea Tree Plaza shopping centre, and, thereareapproximately 21,000 electors in this electorate. Mr Bass said after he waselected he set up an office in the electorate withthe assistance of hissecretary with whom he had worked in the Police Association.

36. He outlined that he would attend at his electoral office at 8.30amand finish at about 5.00pm. As work increased and Parliament occupiedmore ofhis time he would attend the office at 7.00am and at nights in order to attendto the needs of his constituents. He saidon occasions he would attend theoffice on Saturday morning and Sunday to complete enquiries.

37. Mr Bass said after he was elected he became a member of theEconomics and Finance Committee in April 1994, and was elected as DeputyGovernment Whip. He said he sat on a number of back bench committeesparticularly in relation to police, industrial, sport and recreationmatters asthey were areas of his interest.

38. During March 1994 he became acting speaker, or, relief speaker ofthe House. He said the speaker of the House, Mr Gunn, representeda very widenorthern electorate and consequently he was obliged to carry out the job asacting speaker on many occasions.

39. Mr Bass said that he was aware of a number of benefits that wereavailable to him as a member of parliament. After he was electedhe wasforwarded a free ticket for TransAdelaide travel, but, immediately put the samein a drawer where it remained until he returnedthe same. He did not believe itwas appropriate that he should be entitled to free transport because:

"I was a member of the parliament that got paid a wage, and I thought itwas inappropriate that I should travel for free."

40. Similarly, he received what is called a "gold medallion" whichentitled him to free train travel, and, again, he never used thatmedallion. Hethought it was inappropriate to use it because:

"Two reasons, it was solid gold, and it was very expensive, and secondlyagain, I believed it was inappropriate that as a memberof parliament I shouldhave free travel on government travel."

41. He also mentioned that as a member of parliament he was entitled tohave the rent paid on his home telephone, but he had never claimedthatentitlement as he viewed the same as inappropriate. He said although he mademany telephone calls in relation to his parliamentaryduties many were personaland consequently that was the reason for him not claiming such anallowance.

42. Mr Bass deposed that the Modbury Hospital was within his electorateand during his tenure of office there were developments in respectof theprivatisation of that hospital. He explained the privatisation meant "toprivatise the management" of the hospital and thatwas a decision of Cabinet tofollow that course. However, he said he kept abreast of all of the negotiationsin relation to the proposedchange of management and had meetings with theMinister of Health and had spoken with other Liberal members of parliament inhisarea. He said he had received complaints about those proposals and kept afile in his office about this development as well as documentingthecomplaints. He said when complaints were received he would act on them when hewas able. He said he had had a number of meetingswith hospital staff, thechairman of the board, the nursing staff, and specialists. He said he carriedout these investigations sothat he could familiarise himself with the views ofthe medical staff, nurses and management of the hospital in order to appreciatetheir position, and, to also convey to them what he believed was thegovernment's views in relation to the administration of thehospital. He saidthere were times when he had differences of opinion with the Minister as towhether he was being kept appropriatelyup-to-date in regard to developments ofthe hospital and had written to the Minister in August 1997 expressing hisconcerns.

43. The plaintiff said at some point in these negotiations he had haddealings with the fourth defendant, Mr Case.

44. By October 1995 a group had been established under the name of the"Modbury Hospital Local Action Group". A letter was received byMr Ashenden who was the member of parliament in the adjoining electorateof Wright from this group signed by Mr Case. It was a letterdated 5 October1995 from the Modbury Hospital Local Action Group directed to Mr Ashendenrequesting that "as our local Member ofParliament and assist our group to gaina meeting with the Minister". Mr Ashenden replied that the Modbury Hospital waswithin theelectorate of Florey and sent the letter to Mr Bass. This wasat a time when the administration of the hospital had been privatisedor takenover by a commercial entity referred to as "Healthscope".

45. The privatisation of the management of the hospital had createdmuch political and community debate with no doubt both parties havingverystrong views about the proposal. Mr Case's group obviously had ongoingcomplaints and reservations and complete opposition tothe privateadministration, and, a view which they held on the morning of the 1997election. It was interesting to note when Mr Ashendenreplied to Mr Case in aletter of 13 October 1995 directing that he take it up with Mr Bass, hesaid:

"I must admit considerable surprise at the concerns you have outlinedin your letter to me, as I have been given details by theBoard of ModburyHospital which show that in fact, since Healthscope has been managing theHospital, patient waiting lists have reducedsubstantially, increased serviceshave been provided and considerably more patients have been treated than wasthe situation beforeprivate management was introduced. Additionally, I havereceived considerable feedback from constituents within my electorate whichhasbeen very positive in relation to the treatment they have received as patientsat Modbury Hospital."

46. On 13 October 1995 Mr Bass replied to Mr Case and outlined thefact that Healthscope had been running the Modbury Hospital for eightmonthsand thought it appropriate that Mr Case contact that administration direct withhis concerns, and, if any further concernsthen arose, that Mr Bass would havethem investigated by the proper authorities. He then went on in his letter andwrote:

"I understand you have already contacted the Health Minister and he hasdeclined to meet personally with you and that you have beenadvised of thereason why. After reading the transcript of the Matthew Abraham Show whichaired on 18 August 1995 I totally agreewith the comments of the Minister.I understand the Minister has also invited your group to communicate in writingany concerns youhave regarding the Modbury Hospital."

He then invited Mr Case to contact the Federal Minister for Health inrelation to Commonwealth funding.

47. Mr Bass outlined that when he was elected to parliament he wasinstructed, as with other members, of their rights and entitlementsincludingsalaries and travel allowances. Each member was given a handbook setting outthose benefits. A copy of such handbook wastendered in evidence. It contains asummary of salaries and allowances including superannuation, insurance, travel,amenities, entitlements,parliamentary facilities and parliamentaryprocedures.

48. Under "Travel" it sets out the entitlement of a member ofparliament to travel expenses as follows:

"Entitlement3.(1)Subject to these Rules, every Member shall be entitled to expend -(a)on travel within Australia; and(b)on travel overseas,an amount up to but not exceeding the amount of the Basic Allowance which isavailable to the Member at the date of travel.(2)Such expenditure may be incurred for the purpose of undertaking studiesand investigations of matters of interest, attending conferences,meetings orevents related to his/her duties and responsibilities as a Member of Parliamentor which involve the Member because he/sheis a Member of Parliament.Allowance4.The Basic Allowance for 1996/97 shall be $8,400.For subsequent years the Basic Allowanceshall be a sum (calculated to thenearest multiple of $100) that bears to $7,500 the same proportion as theConsumer Price Indexfor June quarter of the immediately preceding year bearsto the Consumer Price Index for the June quarter, 1992.5.Any Basic Allowancenot expended in a given year may be carried forward tothe next succeeding year but any part of the Allowance which is not spentinthe second year shall be forfeited.6.Repealed.7.The Annual Entitlement of a Member shall become available in full to theMemberon 1 July in each year. When a Member is elected for the first time (oris re-elected following a break of service) then if the Memberis electedbetween 1 July and 31 December, he/she shall be entitled to the full BasicAllowance for that year. If the Member is electedbetween 1 January and 30June, he/she shall be entitled to 50 per cent of the Basic Allowance for thatyear."

49. Mr Bass was asked about his personal view of the allowances and hesaid:

"I believed that if it was justified to use an allowance or a benefitthen it could be used, but I didn't believe that a lot of thebenefits werejustified and I never accessed them."

He said this was a view he held and maintained during his service withthe Police Association. He said in his first year as a parliamentarianhe didnot use any travel allowance. However, by the year 1995 there was much debateabout the privatisation of prisons in SouthAustralia, a topic on which he hadmuch interest. He said he decided to visit a privately run prison in WaggaWagga in New SouthWales, and flew to Sydney on a Saturday and then to WaggaWagga on Monday morning as weekend travel was the cheapest arrangement.Hevisited the gaol, talked to the manager and returned to Sydney on the Mondayevening when he had meetings with a company, FletcherConstructions, which wasinvolved with the financing, building and the administration of health systems.He returned to Adelaideon the Tuesday.

50. The plaintiff said at about that time there was much public debateabout the uniformity of national gun laws. Again a topic on whichhe had muchinterest. In 1995 he said he attended a meeting in Melbourne of the FirearmsConsultative Committee, but did not claimany parliamentary allowance for thattrip. He received reimbursement for taxi fares.

51. In 1996 the plaintiff said he decided to undertake a trip to theUnited Kingdom for a number of reasons. At that time the governmentwasexamining the privatisation of the management of SA Water and one of themembers of the consortium he proposed to attend was"Thames Water" in London.He said prior to this time he had also had discussions with the directors of"North West Water" which wasmanaged out of Liverpool. Those discussions hadtaken place in South Australia and he had been requested to attend theLiverpoolplant in order to further understand the privatisation of the watersystem. He also said he had made arrangements to contact civiliansinconjunction with police officers to examine their role in police operations,and, as well court and gaol security controlled bya firm referred to as "Group4".

52. He said he made these arrangements through the appropriateparliamentary travel officer and left on Wednesday, 3 January and returnedonSunday, 21 January 1996. He said there was an overnight stopover in HongKong. On his return he prepared a report which he filedwith the parliamentaryauthorities. The plaintiff said he was accompanied on this trip by his wife andtwo of his children. His wifewas covered by his allowance and he paid for hischildren.

53. In July 1997 he had been asked by Mr Gunn the Speaker of the Houseof Assembly whether he would represent him and Mr Peter Dunn whowas thepresident of the Legislative Council at a conference of presiding officers inNauru. He accepted that invitation. He saidthat by this time he was doing muchrelief speaking duties in the House. The conference was attended by speakersand deputy speakersof the upper houses of States of Australia and theparliament of New Zealand and places such as Fiji and Tonga. He said he wasawayon this conference for 10 days. He travelled alone, and, delivered a paperat the conference. He said the trip was particularly informativeof the mannerin which other speakers controlled their respective Houses.

54. He explained that he travelled to Nauru via Melbourne and thencaught an Air Nauru flight from Melbourne to Brisbane to Nauru andthen return.

55. Mr Bass mentioned that there were occasions when he visited otherelectorates particularly the large electorate of Mr Gunn, but,he had not madeany claims for reimbursement of expenses on these trips.

56. Mr Bass said that during his time in parliament gun controllegislation became a very topical issue both in and out of parliament.He saidat no time did he oppose a general ban on semi-automatic weapons and had movedmany amendments to the legislation. He saidhe thought the original proposalswere far from concise and ambiguous and, in his view, "unworkable". Mr Bass hasmuch expertiseand interest in this area and felt the amendments which heproposed would have made "the possession of firearms .... even more saferforthe South Australian people". He said he was also conscious of the interests ofsporting clubs and rural communities.

Nauru Postcard

57. Mr Bass said when he returned from Nauru he became aware of apostcard being distributed within his electorate. He received a copya few daysafter returning from Nauru and it made him very angry because he viewed thestatements as untrue and it would certainlyhave given his constituents thewrong idea concerning the talk of a "winter break".

58. He said he was aware in the six months leading up to that tripthere had been publicity about politicians, particularly Federal politicians,being guilty of the inappropriate use of their travel arrangements. This wasthe subject of much media comment, and, he felt thatthe postcard would put himin a similar light.

59. Mr Bass said he had never heard of a Mr Roberts or the "CleanGovernment Coalition".

60. Immediately after receiving this postcard he considered that heshould endeavour to redress the damage and contacted the local "Messenger"which is a free newspaper delivered to each household and explain the reasonfor his trip to Nauru. He said he contacted the "Messenger"and they attendedhim with a photographer and an interview occurred which led to the edition of20 August 1997. On the front pageof that paper was a photograph of Mr Bassholding the card with commentary and in the body of the paper he told thereporter thathe blamed the opposition for what he described as a "dishonestcampaign". The article by Leonie Mellor and the cartoon were subsequentlyreproduced in the FTT pamphlet.

Free Travel Times Pamphlet

61. Mr Bass said that in the week before the election he became awareof the FTT pamphlet being distributed in his electorate and saidwhen hereceived that pamphlet he was "absolutely fuming". The pamphlet reflected onhim in a similar manner as the postcard, butin more detail. He immediatelycontacted a Mr Douglas who ran the leaflet distributing company. He reiteratedthat he was not onholiday in Nauru, and, he had never been a member of afrequent flyer group. The words, "The Remarkable Free Travels of Sam Bass"gavethe complete break down of both his trip to the United Kingdom and Nauru and hesaid it appeared to him the author was endeavouringto give the impression ofseparate trips. For instance, he mentioned he travelled by car from London toLiverpool. At the foot ofthe page there is a reference to:

".... Frequent Flyer points ticked up on these free trips used forother travel for himself or his family is not on the public record",

which made him even more angry as it:

".... was totally incorrect. That was a straight out lie, and wassomething I have never done, something that I was totally againstall my publiclife."

62. The last page contained a collage of other MPs abuse of the systemreferring to him as "Bring the Frequent Flyer Back to Earth!",and on the footin a red block "On Saturday put Sam BassLAST.".

63. That comment caused him much anger as his conduct was beingcompared to other politicians when none of the matters in the collagewere inany way related to him.

64. Mr Bass said he immediately complained in writing to the ElectoralCommissioner, Mr Tully. He was aware that Mr Tully wrote to MrRoberts onFriday, 3 October 1997 in the following terms:

"Re:Electoral Advertisement Entitled 'Free Travel Times'I have received a complaint concerning the contents of an electoraladvertisement entitled 'Free Travel Times' which is apparentlyto bedistributed in the District of Florey.Section 113(4) of theElectoral Act 1985 empowers me to request anadvertiser to withdraw from publication an electoral advertisement that Iconsider to contain a statementpurporting to be a statement of fact that isinaccurate and misleading to a material extent. Alternatively, I may requestthe advertiserto publish a retraction in terms and in a manner and formspecified by me. In proceedings for an offence againstsection 115(2) theadvertiser's response to my request will be taken into account by the court inassessing any penalty to which the advertisermay be liable.I have been advised in writing by Mr. R P (Sam) Bass, the endorsed Liberalcandidate for Florey, that he is not amember of the Ansett Frequent Flyer Clubnor is he a member of any other similar frequent flyer club. The advertisementcontainsa mock up of an Ansett frequent flyer membership record addressed toMr Bass at Parliament House, Adelaide. I am satisfied that thereis a statementthat Mr Bass is a member of a frequent flyer's club. That purports to be astatement of fact. The evidence availableto me indicates that the statement isinaccurate. I consider this inaccurate statement to be material.I therefore request you toimmediately withdraw the advertisement frompublication, i.e. I request that it not be distributed.If in fact the advertisementhas been distributed then I intend to request youto publish a retraction in terms and in a manner and form to be specified by me.I enclose a copy ofsection 113 for your information."

65. On Friday, 3 October 1997 the plaintiff said he sought legal adviceabout the contents of the pamphlet arranging for his solicitorsto forward aletter to Mr Roberts. This letter was hand delivered to the home of MrRoberts on that day and was in the followingterms:

"We act for Mr. Sam Bass who is the Member for Florey and is contestingthe election to be held on 11 October 1997.We are instructedthat you have authorised the publication of a pamphletentitled'Free Travel Times' (the pamphlet).The pamphlet contains a number of untrue statements and imputations. It is aserious defamation of our client andis calculated to cause him damage.In particular we are instructed that:1.It suggests that Mr. Bass is a member of the Ansett frequentflyer programby reproducing a statement from that airline. The statement is a forgery and afabrication. Mr. Bass is not and neverhas been a member of the Ansett (or anyother) frequent flyer program.2.The front cover of the pamphlet depicts Mr. Bass luxuriatingat a resort;the clear imputation being that he was holidaying in Nauru. This imputation isfalse and defamatory. As you well know,Mr. Bass represented the SouthAustralian Parliament at a bona fide conference of Presiding Officers.3.The statement'Parliamentary Traveller of the Year' implies thatMr. Bass has travelled more than any other member of Parliament. This isfalse.4.The third page of the pamphlet suggeststhat Mr. Bass undertook 8 'freetrips' in 1996 and 6 in 1997. It also suggests that he 'ticked up' frequentflyer points on these'trips'. Both suggestions are false and are designed todamage Mr. Bass.5.The collage of newspaper clippings on the next last ofthe pamphlet would beinterpreted by ordinary readers to imply that Mr. Bass has been the subject ofadverse press comments in relationto travel.None of the clippings inthe collage relate to Mr. BassThe distribution of the pamphlet will also contravenesection 113 of theElectoral Act which makes it an offence to publish misleading and inaccuratematerial which is calculated to affect the result of an election.We put you on notice that if any copies of the pamphlet are distributed ourclient will issue proceedings for substantial damagesagainst you and againsteach and every person who is concerned in its printing, publishing anddistribution.Unless we receive yourwritten undertaking not to distribute the pamphlet by5.00pm today, Friday 3 October 1997 we will issue proceedings withoutfurther notice.We have also brought this matter to the attention of the authoritiesresponsiblefor instituting prosecutions for breaches of theElectoral Act."

66. Mr Bass said that there was a response to that letter on 3 October1997 by the solicitor for Mr Roberts in the following terms:

"I have received preliminary instructions to act for Mr Geoff Roberts of22 Noritake Road Modbury Heights who has forwarded to meyour letter to him of3 October 1997.I am yet to view the document to which your letter refers.However, I have instructed my clientto take steps to stop the distribution ofany material as you request and to that extent the undertaking requested inyour letteris hereby given.Would you please direct any further correspondence to me at the aboveaddress."

67. Mr Bass gained some solace from the sentence in the letter ofMr Roberts' solicitor which said:

"However, I have instructed my client to take steps to stop thedistribution of any material as you request and to that extent theundertakingrequested in your letter is hereby given."

68. As I mentioned this letter was sent on Friday, 3 October 1997, andthe election was to be held on the following Saturday, 11 October1997.

69. During the day Mr Bass was advised by constituents that they hadreceived a copy of the FTT pamphlet which led him to believe thedocument wasstill being circulated, and, he himself actually saw the document inletterboxes when he was delivering leaflets inthe area.

70. He said he immediately contacted the Electoral Commissioner. He wasmost concerned about the allegations and discussed with his friendswhat stepshe could take to answer the false allegations. Monday, 6 October 1997 was apublic holiday and he endeavoured to get aflyer out following that dateassisted by his family and other helpers. That was distributed on Thursday, 9October 1997. He saidalso he was concerned that the retraction as directed bythe Electoral Commissioner had not been published.

71. On the election morning he was advised that the orange pamphlet wasbeing handed out at polling booths in his electorate. He receivedthis adviceat about 10.00am that morning and, again, when he eventually saw the pamphlethe said he became very angry, and, viewedeach of the statements as false andmisleading and again reflecting badly on his integrity.

72. He said he thought there might be some chance he would be electeddeputy speaker, but that was a matter of great contention. He saidthe furtherstatement "and if he does become Speaker spend even less time in theelectorate" was false because he viewed that inthe four years he spent inpolitics he had given "every spare minute of every day to his constituents" andhad never taken advantageof the system.

73. He said the election proceeded and he lost the seat to a Laborcandidate by about 520 votes.

74. Mr Bass was cross-examined over a long period about the relevantissues and confirmed his distress from matters in each of the documents.

75. He confirmed that the Modbury Hospital issues arose in early 1994which were significant in terms of local issues and agreed thathe hadsupported the government's proposals which were eventually implemented. Mr Bassadmitted that the government had entered intoa contract with the company,Healthscope, to run Modbury Hospital and that there were some clauses in thatcontract which remainedconfidential to the parties. Mr Bass said that he hadhad discussions with the Minister about those confidential clauses but wasnotgiven access to the same.

76. Mr Bass said in response to the letter received by Mr Ashenden fromMr Case, and after getting that letter, he contacted the Ministerand wasadvised of his views and as well was given the transcript of Mr Case's commentson the Matthew Abraham Show. After readingthe material, he said he agreed withthe comments of the Minister.

77. Mr Bass confirmed that it was his view that travel benefits arebased on the fiscal year from 1 July to 30 June and was unable tosay if he wasthe only politician who had travelled between 1 July 1997 and the election. MrBass was asked his view concerning thebenefit of frequent flyer points and herepeated his assertion that he was not aware if a member of parliament couldhave accessto frequent flyer points.

78. Mr Bass was cross-examined about his stand in relation to thefirearms legislation and again stated his position and confirmed, inhis view,the Prime Minister was being poorly advised. He was specifically asked whetherhis amendments were not accepted and hereplied, "they were".

79. Mr Bass confirmed that he was in the Holden Hill Magistrates Courtwhen Mr Roberts was charged with certain breaches of theElectoral Act andduring the morning Mr Roberts had entered pleas of guilty to somecharges.

Mr Tully - The Electoral Commissioner

80. Mr Tully was called and produced relevant parts of the fileconcerning complaints made by Mr Bass and others about the material inquestionand the subsequent events. Mr Tully outlined the protocol in regard toparliamentary elections which comes under his scrutinyand control. He said heinitially received a telephone complaint on 2 October 1997, and, then Mr Bass'sletter complaining aboutthe FTT publication on Friday, 3 October 1997. He saidhe believed he would have sought Crown Law advice about that complaint. Hecontacted Mr Bass by telephone on 3 October 1997. He said theElectoral Actrequires that he respond quickly to such complaints and that was his reason forwriting on that day to Mr Roberts requesting thathe withdraw the pamphlet fromdistribution, and, if it had been distributed he intended to request that aretraction be published.He received a response to his letter on the same dayfrom Mr Roberts' solicitor.

81. On Monday, 6 October 1997 he had been advised that the publicationhad been distributed and he requested that Mr Roberts immediatelywithdraw thepamphlet from further publication and "publish a retraction in terms and in amanner and form specified by me". He setout the nature of the same,namely:

"RetractionI recently caused to be distributed in the electorate of Florey a pamphlet thatcontained a mockup of an Ansett Frequent Flyer Membershiprecord addressed toMr. Bass at Parliament House, Adelaide. In fact, Mr. Bass is not a member ofthe Ansett Frequent Flyer club noris he a member of any other similar FrequentFlyer club. Any suggestion to the contrary is hereby retracted. Any suggestionthatMr. Bass used public money for private holidays is also retracted.Authorised and printed by Mr. Geoff Roberts, 22 Noritake Road,ModburyHeights."

82. Mr Tully pointed out in terms of the legislation he could requestbut not direct a retraction. He viewed it as reasonable for thatretraction tobe distributed to all addresses within the seat of Florey "by 5 pm Wednesday8^th October 1997" and requested a reply to his letter "by nolater than 12 noon Tuesday 7^th October 1997".

83. That letter was acknowledged by Mr Wilson, the solicitor for thedefendants, on 7 October 1997. In his letter Mr Wilson said:

"I refer to your fax of 6 October 1997 which came to my attention at9 o'clock on 7 October 1997.In response to your request I providethe following information:-1.Mr Roberts took steps to stop any further distribution of the pamphletfollowing your request butunderstands that it had been distributed prior tothe receipt of your request.2.My client would be happy to publish a retraction.In respect of the retraction I am not in a position to advise him to publish itas indicated but suggest an alteration as follows,i.e. exclude the words'In fact' from line 3 and substitute therefor the words'I have beeninformed'.I look forward to hearing from you."

84. Immediately Mr Tully by letter of 7 October 1997 said amongst otherthings:

"Whilst in general I do not think it appropriate for me to engage indebate about the contents of a counter-proposal, in this caseI view thealteration as minor and therefore accept the alteration as you propose."

Mr Tully then set out the form of the retraction, and, mentioned:

"The retraction is to be distributed to all addresses within the Floreyelectorate by 5 pm Wednesday 8^th October 1997."

Mr Tully said that he had much experience in the distribution of suchmaterial, and, consequently that was the reason for him fixingthat time anddate.

85. He said he believed that on Tuesday, 7 October 1997 Mr Wilsonindicated there were difficulties with the timetable and distribution.MrWilson confirmed by letter of 7 October 1997 that his client was:

".... anxious to comply with your request his enquiries have revealedthat there is no distribution facility that would be able tocomply with therequirements of distribution that you have laid down."

86. It was immediately followed by a letter from Mr Tully of 7 October1997 which said:

"I request your client to effect distribution of the pamphlet asspecified in my previous correspondence dated 7/10/97 throughoutthe electorateof Florey as soon as practicable. My own recent experience suggests that theoriginal timetable set by me was reasonableand achievable. I will make furtherenquiries in relation to that issue for my own purposes. In the meantime Irepeat my requestthat your client effect distribution as soon as practicable.Please advise me when distribution has been completed and provide mewith acopy of the retraction pamphlet."

87. On Saturday, 11 October 1997 a complaint again had been received byMr Tully in regard to the handout on that morning. He then wroteon11 October 1997 to Mr Roberts in the following form:

"I have received a complaint concerning the contents of an electoraladvertisement that advocates 'When you vote put Same Bass Last'which isapparently being distributed at polling booths in the District of Florey.Section 113(4) of theElectoral Act 1985 empowers me to request an advertiserto withdraw from publication an electoral advertisement that I consider tocontain a statementpurporting to be a statement of fact that is inaccurate andmisleading to a material extent. Alternatively, I may request the advertisertopublish a retraction in terms and in a manner and form specified by me. Inproceeding for an offence againstsection 113(2) the advertisers response to myrequest will be taken into account by the court in assessing any penalty whichthe advertiser maybe liable.The advertisement contains a statement 'things Same Bass will do if you votehim back in. 3. And if he does become Speakerspend even less time in theelectorate'. This purports to be a statement of fact. The evidence available tome indicates that thestatement is inaccurate and misleading to a materialextent.I therefore request you withdraw the advertisement from further distributionforthwith."

88. When he was cross-examined Mr Tully confirmed the nature of thecomplaint which was laid on his instructions on the advice of officersof theCrown Law Department in relation to the prosecution of Mr Roberts. He confirmedthat eventually after reviewing the matterand receiving advice he requestedthat the prosecution against Mr Roberts proceed. Mr Tully attended the HoldenHill MagistratesCourt on 4 February 1999 and agreed that there werediscussions between the prosecutor from the Crown Law Department and MrRoberts'counsel and there was talk about issues, some technical difficultiesabout the placita of counts and eventually he accepted the basisof the plea,"but in my view the heart of the matter and the public interest was maintainedby the way that the solicitors were ableto work out the technicality", and,the subsequent plea.

Plaintiff's Remaining Witnesses - Distribution Of Material

89. The plaintiff called a number of electors of Florey concerning,particularly, the receipt of the FTT pamphlet.

90. Mr Menzies who lives at Modbury North produced an FTT pamphlet. Hesaid that he had checked his letterbox on Tuesday, 7 October 1997when hereturned home in the afternoon and the pamphlet was not in his letterbox atthat time, but, when he returned at 8.30pm onthat day, the pamphlet had beenplaced in his letterbox.

91. Mrs Rutherford who at that time lived at Modbury believed that theFTT pamphlet was placed in her letterbox during the morning ofSunday, 5October 1997.

92. Mr Downs who lives at Modbury North said that the FTT pamphlet wasput in his letterbox on the Sunday morning, 5 October 1997.

93. Mrs Rawlings who lives at Modbury retrieved the FTT pamphlet fromher letterbox at 4.00pm on the afternoon of Saturday, 4 October1997 and saidit was certainly not placed there on the prior day.

94. Miss Nicole Bass, the daughter of the plaintiff, outlined that shewas aware of her father's comments about the FTT pamphlet. Herfather had shownher the pamphlet on the Friday morning, 3 October 1997. She said while she wasgoing out on Sunday afternoon tothe library she saw a man delivering pamphletsin Faulkner Street Modbury at about 3.45pm on that afternoon. She stopped hercar,observed him carrying a bundle of pamphlets and as he walked along thestreet she observed the FTT pamphlet appearing in all letterboxes.

DEFENDANTS' EVIDENCE

95. The defendants gave evidence, together with a Mr Douglas who runs apamphlet distribution operation in the relevant area, Mr Wilson,thedefendants' solicitor, about events which occurred during the week prior to theelection, and finally, a Mr Clarke, a memberof parliament, who gave evidenceabout parliamentary travel and frequent flyer points in relation to suchtravel.

Mr Case

96. Mr Case is a teacher in the Education Department employed at theHeights School in Modbury Heights and has been so employed for manyyears. Hehas a Bachelor of Education degree and a Diploma in Teaching.

97. Mr Case said he joined the Labor Party after 1975 but that lapsedwhen he went overseas in 1993. During that time he said he wasinvolved in theRidgehaven sub-branch of the Labor Party, and, later in the Florey sub-branchand had campaigned for a number ofpoliticians.

98. Mr Case said that he was a supporter of a former member, Ms Byrne,and felt it was because of that involvement that he was put onthe board of theTea Tree Gully Community Health Board which operated out of premises adjoiningthe Modbury Hospital. Mr Case becamethe chairperson of the Board which managedthe affairs of the community health centre and this involvement was for aboutfive yearsprior to 1993. He said he resigned and went overseas in 1993. MrCase explained that there was a close link between this Board andthe operationof the Modbury Hospital.

99. Mr Case returned from England in January 1994 and said that issueshad developed concerning the privatisation of the Modbury Hospital.He attendedmeetings on this topic. He said there was strong opposition to the issue ofprivatisation which clearly was his own position.He recalled a meeting atwhich he believed the plaintiff was present where he said the plaintiff wasrequested to take the viewsof the meeting back to the Minister and it was hisrecollection that the plaintiff refused to so act. Mr Case said he believedthatthe government's contract with the operators was completed in 1995, and,although particulars had been sought of this contract hesaid that confidentialclauses had been invoked, and, "they" were not able to obtain any details ofsuch contract and that was stillthe position in October 1997.

100. Mr Case agreed that he had been interviewed by Mr Matthew Abrahamabout various issues. It is apparent that Mr Case is still verymuchpre-occupied with these issues. At one stage he said:

".... I apologise for giving long answers, I'm actually quite passionateabout the Modbury Hospital thing, as we all are in the group.I apologise forthat. The minister had simply sent the letter back saying that he wouldn't meetwith the group because I was, inhis mind, biased. So as a result of that wedecided to send a letter to each of the MPs in the district, to Scott Ashenden,the memberfor Wright, to Dorothy Kotz, the member for Newland, and to SamBass, member for Florey."

101. In relation to Mr Bass's reply to him he said as follows:

"We just couldn't believe, to be honest, that Sam Bass had, in a sense,been so arrogant as to suggest that he wouldn't help us,the people in thelocal district, in a meeting with the minister. I mean, we knew, as with Sam,as with Dorothy Kotz, as with ScottAshenden, that they would personally followgovernment line. But we still believed he had a duty to assist us as people inthat area,in organising a meeting. In that regard, I mean, we had a letterback from Scott Ashenden who said that basically, that there wasa protocolthing and because the hospital was actually in Sam Bass's area it should bedealt with by him. But he would be happy tocome along and go along with anyactions that Mr Bass did in that regard. But, I mean, clearly, I mean, theletter from Sam Bassclearly says to us go away. I mean, he says in there thathe is happy for us to write to him and he will happily investigate it.I mean,it's ludicrous. It's just - as far as we were concerned there was no intentbehind that comment at all."

Mr Case said that their campaign still continued.

102. Mr Case confirmed that as the election approached in October 1997his group continued with its activities in respect of the oppositionof theprivatisation of the hospital. He was asked what his group had proposed and hesaid as follows:

"A.Yes, we decided as a group that we would target, in particular, SamBass in the electorate of Florey.Q.What was the reasonfor that decision, do you recall.A.The reason we decided to target Sam Bass, as opposed to the other twomembers in that district,was because we felt that Sam Bass was, to put itbluntly, an easy target. We believed that his record was such that we would beableto campaign and would have a good chance of success in having him defeatedat the election. There were two aspects to that. One wasthat Sam Bass hadactively taken actions and spoken out against the interests of the group, whichwas to restore the Modbury Hospitalto public hands. So we felt that as a localmember in that district, that the interests of returning the Modbury Hospitalto publichands would be best served by getting rid of Sam Bass. That was onereason. Another reason was that Sam Bass's record on the hospitalissue was onethat we could argue quite easily, because on two occasions he had refused tohelp us in the issue of the privatisation.So we could categorically go to theelectorate and say that he wasn't doing what he should be doing as the localmember, and thereforeyou people out there shouldn't be voting him back in.That was in regard to the hospital. We were also aware that he tripped offoverseas in the death knock of his term of office, when everybody was sayingthere is going to be election next week, or next month,or whatever, and in theface of all of the stuff about politicians going overseas, he went overseas. Wejust thought that was likejam on our toast. It would mean the public, and itwas all over the place, that the public were already going to be against him onthat issue, and there was that. And the third issue was in regard to the gunlegislation where he actively opposed the Howard propositionsand he waspublically known for doing that. So all we were doing was adding the ModburyHospital action stuff to it, and we figuredwe would defeat him. That wouldbenefit us in two ways. One is, we would get rid of a local member that was nogood to us or, infact, no good to the electorate, as we believe, and it wouldalso bring greater attention to the Modbury Hospital issue, becausewe couldclaim that as a group that issue had been significant in defeating him andtherefore if the Liberals got back into power,that would put more pressure onthem to actually do something about the Modbury Hospital contract."

103. In fact his action group was responsible for the exhibit, D3,which was a pamphlet put out by the:

"Modbury Hospital Global Action Group 1997 State Election:Reclaim our public hospital!Put Public Healthfirstby putting Sam Bass, Liberal,last."

The pamphlet was distributed during the campaign.

104. As I mentioned, Mr Case went overseas immediately before theelection and on returning home said he contacted the group and was allocatedapolling booth. He said he had been told that when he got to his booth he would"be handing out our pamphlet and we would probablyhave a 'how to vote typecard'". When he arrived at the booth these documents were waiting for him.

105. He said he identified the orange pamphlet which he read. He wasasked:

"Q.Was there anything in it which caused you any concern.A.No."

Mr Case said he proceeded to hand out such documents.

106. Mr Case was asked details of his knowledge of the plaintiff'soverseas trips and he said:

"Yes, I mean I was aware that he had been to the United Kingdom on atrip, and the Nauru one, and I was aware that he had done otherthings, but Ididn't know what they were particularly."

107. He was asked particularly about the allegation that the plaintiffhad stood by and did nothing to stop secret deals at Modbury Hospital.Heanswered this in this manner:

"Yes, I mean in fact he had done no more than that. When we had askedhim for help, he had said no, so I mean he was well into the'did nothing', Ican tell you."

108. His attention was drawn to the statement concerning gun rights andhe said:

"Sam Bass had in fact been very vocal and he had been publically knownas opposing the gun legislation in parliament. As far as Iwas concerned, hewas supporting the gun rights, the gun lobby.......I was aware that he spoke in parliament about it, and thathe was clearly inopposition to it, as far as I was concerned."

109. When he was cross-examined about the handout his attention wasdrawn particularly to the statement "Qualify to spend another$32,000 oftaxpayers' money on overseas travel". He was asked:

"Q.You know that Mr Bass had never spent $32,000 of taxpayers' money onoverseas travel, don't you.A.I mean that's not relevantbut I do now. At the time I had no idea.......Q.What you're saying is you had no idea what he'd spent.A.No, no I'm not actually- I have said that but when I read the document thatwasn't at issue to me. The issue was that he was qualified to spend $32,000asan MP in his previous time and he would be qualified again to spend it. I meanas I say, the issue of how much he actually spentI didn't have a clue. I justknew he'd been on numerous overseas trips. In fact, as it turns out, numeroustrips."

110. He was then asked:

"Q.And the amount he'd spent was $32,000, that's what you wereconcerned to convey to voters, wasn't it.A.No, it wasn't. I mean,if one picks up something like this and reads it andthe big issue to me was that he hadn't supported the Modbury Hospital actiongroup position on the privatisation. He stood by and done nothing about theprivatisation, the secret deals. He'd been overseas onjunkets, on trips thatserved no purpose to the members in the electorate. This is bearing in mind, asfar as we were concerned,a huge issue in the electorate which was theprivatisation of the Modbury Hospital management. He trooped off overseas atthe sametime as refusing to give us any assistance and so I read the card, I'msure as anybody would, in its totality. This is this man'srecord and thereforethis is what he has the potential to do in the future."

111. Mr Case was asked questions about his comment that his group haddecided to "target" Mr Bass and viewed him as a "soft" target. Toexplain suchactions he eventually answered as follows:

"We figured that when it comes to fighting the election there's two waysto do it. One is that you can try and take up policies andtry and arguepolicies or promises or whatever and the other is to look at an individual'srecord and the problem with policies thesedays is that to be quite blunt aboutit, politicians tell lies and one can't actually - if I'm told by a particularparty that theywill not do something, like privatise ETSA for example, youknow basically that they're not necessarily going to keep that promisebecausethe record is that they haven't in the past. So targeting policies is adifficult one. Our group decided that we would concentrateon the record andlook at Sam Bass as an area that we were campaigning and we would campaign onhis record."

112. His attention was drawn to the fact that both politicians inadjoining seats of that area, namely Mrs Kotz and Mr Ashenden, overthat periodhad expended, in the case of Mrs Kotz, some $36,000 and Mr Ashenden $30,000compared with Mr Bass at $12,000. When thesedetails were placed beforeMr Case he answered in the following manner:

"What we didn't do, we didn't go out and say, because we are not in thatgame, and we are part-timers I suppose, we didn't go outand say 'Let's look atwhat this politician did on all these issues and what this politician did andwhat this one did, and let'stote up what is the worst or the best and whateverand then decide. I mean, basically what happened is that people came to themeetingwith all of the information that they had in their minds and stuff thatwas obviously already out in the electorate and said 'Look,what's the bestthing to do?' I mean, I suppose the issue - we are not professionals in all ofthis, and we are also, we are guidedby, as we were in all of our meetings byour cause I suppose, which was the Modbury Hospital. In that sense, the biggestthings wasthat we felt we could argue a strong case to the electors on theModbury Hospital theme. That was a big issue to us and it was onewhere MrBass, as opposed to the other MPs in the district, had clearly come out andstated his position, and we felt a positionwe could attack him on. At the sametime, there were also other issues floating around, and the travel one was onethat had beenin the press, in the Messenger, it had been in the Advertiser,and it was a big issue or had been an issue throughout the year. Now,I mean,your Honour, you're right in the sense that if you're assumption is that wedidn't do our research, we didn't."

113. He was asked questions about describing the trips as "junkets" andhe said he was aware that Mr Bass had specifically taken two tripsbut it washis belief he had been on more trips. He was asked:

"Q.And you did nothing to check what other trips there might have been.A.Well, no, in the sense that, you are talking 8 o'clockon the morning of theelection. So you're right, I didn't, whilst I was handing out these or before Idecided to go and hand outthese I didn't do any research. I looked at this andsaid, 'Yes, yes, that sounds right, it accords with what we've been saying inour pamphlet' and I handed it out. If you're talking in terms of my knowledgewhile I was handing them out, in fact, Mrs Bass andNicky, both came - sorryNicole Bass, came to the polling booth and, in fact, I said a cordial goodmorning to Mrs Bass and she returnedit. Nothing was said. At no stage in allof the handing out did anybody say to me, 'Look this is wrong. You know, thestuff you'rehanding out is untrue.' And, I mean, I was stood alongside andsaying hello at the same time with liberal people and liberal officialsgoingpast, who fed and gave drink to their workers, and nobody said anything to me,.So, I mean, I arrived at 8 o'clock in the morning,I saw this pamphlet itaccorded with my views and my knowledge of the situation and so I handed itout."

114. Mr Case was cross-examined at length about his involvement in theorganisation of the Modbury Hospital Local Action Group. Mr Casehas verydogmatic views on this issue and is an active supporter of its object to"Reclaim our public hospital!".

115. As mentioned above, Mr Case had been interviewed on air by aMr Matthew Abraham and there were subsequent allegations by Mr Abrahamabout factual matters that he felt were not stated to him. He made anallegation that he had been mislead by Mr Case. Mr Case deniedthatallegation and called that allegation of misleading as "bizarre". The Ministerfollowing this radio interview refused to attendthe group but indicated hewould receive written material. With respect to Mr Case the Abraham transcriptdoes reflect that not allavailable information known to Mr Case was placedbefore Mr Abraham. However, clearly Mr Bass did make enquiries of theMinisterafter the request, a proposition that Mr Case was loath to admit orviewed in line with his request.

116. He was asked particularly:

"Q.So far as being able to say that he stood by and did nothing to stopsecret deals at the Modbury Hospital, what do you base thaton.A.On the facts.Q.What facts.A.There were, in fact, during that election there were two secret deals, twosecret contracts,in fact, and those contracts were totally secret, and we hadmade numerous noises as had numbers of other players in that arena,aboutfinding out what was in the contracts and the nature of the contracts and soforth, and they were secret, and Mr Bass had donenothing about that.Q.It may seem a bit tautologous, but what are these secret deals.A.The secret deals are the contract. Thecontract was a secret deal. I mean,it was extraordinary in the sense that there was no information given to thepublic about whatthe responsibilities of Healthscope were. There was noindication of what rights we had as patients at the hospital. The whole thingwas a secret, even to the extent that when the media tried to actually do areport on the Modbury Public Hospital, as they did onthe other publichospitals, they were refused entry.Q.You said there were two contracts. When was the first of the contracts.A.The first of the contracts was in January 1995, and that was for themanagement of the hospital. Q.On what basis do you say thatMr Bass stood by and did nothing to stop thatcontract, if that is what you meant to refer to.A.First of all, we actually askedfor him to put the views of the public tothe Minister, and he refused to do that. The contracts went through, and as Isaid before,there was a big issue about the contracts and Mr Bass did nothing.As our local elector he never contacted us about it. He nevermade any issue inthe press about it. He never indicated to anybody in the press that he had doneanything about it. In fact, thereare several indications where hewholeheartedly supported the contract.Q.You had never asked him what he had done in respect ofthe contracts, hadyou.A.No, but we asked him for help.Q.You told us of the two instances that you suggest comprise that, butapartfrom that, you never asked him what he had done in respect of lobbying theMinister or anything like that.A.No.Q.And withrespect to the second contract, when do you say that was.A.The second contract would have been, I am not sure if it was '96 or'97. Ihave a sneaking suspicion it might have been '96, but basically what happenedwas the first contracts virtually folded. Healthscopewas in a pretty parlousposition financially, over the contract, losing money hand over fist, and thegovernment renegotiated it,to keep Healthscope there. In fact, we were told atone stage by the management of Healthscope that if the government didn't dosomethingabout it, they would walk away.Q.All I asked you was, when the second contract was, and you think it was '96.A.Yes.Q.And inrespect of that contract, is your basis for suggesting thatMr Bass did nothing to stop secret deals, the same as in your first one.A.That's right."

117. His attention was directed to the fact that Mr Bass did not opposethe thrust of the firearm legislation. Mr Case said he was notaware of thatfact, and, "I would suggest, in fact, that there wasn't any evidence publicallyto say that", but viewed there was"stacks" of evidence around to suggest thathe opposed the legislation and that he "put in a stack of amendments to it".Mr Casebelieved that he had received a pamphlet from a gun organisationbut did not read the Hansard reports on that area of gun rights.

118. In paragraph 9.4.3 of his defence it was pleaded:

"The Modbury Hospital Action Group requested that the plaintiff meetwith them to discuss their concerns regarding the Hospital Management.",

and agreed now that was an incorrect statement in that "what we requestedwas that the plaintiff organise a meeting with the Minister".

Mr Roberts

119. Mr Roberts gave evidence concerning his background and hisinvolvement in this matter. Mr Roberts received his early schooling atBrokenHill, and, then worked in the mines and developed an interest in first aid. Asa result of that interest he joined the ambulanceservice. He came to Adelaidein 1977 where he obtained employment as an officer of the St John's Ambulance.He lives with his wifeand two children at Modbury Heights.

120. Mr Roberts said that early in his ambulance service he becameinterested in industrial matters, and, in fact became the branch presidentaswell as a delegate to the United Trades and Labour Council. He continued hiswork with the ambulance service until 1995. Mr Robertsis a person interestedin a whole range of issues many of which concern both State and Federalpolitics. He said that as a resultof a request from his friends he stood as anindependent candidate in the seat of Makin.

121. After 1995 he commenced tertiary studies, a Bachelor of ArtsDegree, at Underdale in Aboriginal Studies. He completed those studiesandgained employment following that time with the Department of CorrectionalServices as an aboriginal liaison officer.

122. Mr Roberts said that during his study period at university hebecame more involved in political discussion over a range of issues.At thistime he was particularly interested in what was occurring in his electorate andhis representative, Mr Bass. He had formedthe belief that Mr Bass "wasn'tlooking after us with the zeal that he indicated". He said that many issuescaused him concern includingissues at the school where his children attendedas he had concerns about the LOTE programme which is learning a language otherthanEnglish. He said he had contacted Mr Bass about this problem.

123. He said also in this time he was aware of the privatisation debateconcerning the Modbury Hospital and the publicity that that debatehadgenerated. He said:

"I formed a very very strong view, stronger view as time went on, thatit had not just the potential, but it was causing adverseeffects amongst ourcommunity ..............I was incensed with Mr Bass who had failed to communicate with us on the issuespertainingto that."

124. Mr Roberts also mentioned his views on gun control and was awareof the role that Mr Bass played through the media. He was awarethat:

".... he had been moving some amendments in parliament, in seeking someexemptions to what John Howard was saying, and I must saythat I felt that, Ithought that was grossly improper."

125. He said eventually he became very disenchanted with Mr Bass. Heformed the belief that he didn't believe that Mr Bass was:

".... entitled to be given another three or four years, and FrancesBedford, who I know and have known for quite a number of years,was standing asthe ALP candidate and I thought - well, if I can cause to assist her to get in,then I might well do so."

Mr Roberts said that he met Ms Bedford because she worked "for PeterDuncan for a number of years and I would access their office".

126. The Nauru postcard was placed before Mr Roberts. He said he"couldn't believe that the local member would track off on a junket toNauru".He said a politician should be looking after his electorate and it was a stupidthing to do when an election was coming up.

127. Mr Roberts said he obtained a travel brochure with a photograph ofthe Nauru hotel and composed the words as appear on that postcard.He was awarethat the postcard caused some publicity and subsequently led to an article inthe "Messenger" and he gave an interviewwith the reporter, Ms Leonie Mellor.However, he did not have anything to do with the preparation of the cartoonwhich accompaniedsuch report. He said that after this appeared he telephonedMs Mellor and she sent him a copy of that cartoon.

128. Mr Roberts confirmed that in the next couple of weeks he set aboutpreparing the FTT document. He was asked:

"Q.Were you responsible for all of the verbiage, the words that appearin the -A.Yes, I'm responsible for the words, yes.Q.Didyou have the input of other people.A.Yes.Q.Who were they.A.Peter Duncan gave me some assistance with it.Q. Anybody else.A.The back part - well the whole thing was put together by a graphic designer.I had a go at it but was unable to. I'm not verygood in those things so agraphic designer gave me a hand. So I guess there was - my wife had some inputbut by and large the threemajor people were myself, Peter Duncan and Sue Dyer,the graphic artist.Q.Sue Dyer.A.Yes.Q.How many did you produce, how manycopies did you produce.A.I'm not sure whether it was 8,000 or 10,000."

129. He was then asked:

"Q.Did you have a view as to the fairness of the document.A.Yes.Q.What was the view that you had.A.It was not only a viewit was a belief, I thought this was a fair document.Q.Why do you say that.A.There are a number of reasons, I guess. The documentfirstly is free. Ibelieve that the words 'parliamentary traveller of the year' are quiteappropriate. From what I understood andI still believe that in the 96/97financial year, the end of '96 and onwards until the election was called, thatMr Bass was theparliamentary traveller of the year, in that fiscalyear."

130. Mr Roberts said he is now aware that Mr Bass was not a member of afrequent flyer club but he did not have any difficulty with thedocument. Hesaid it was also his belief that members of parliament who took travel werepersonally entitled to accumulate frequentflyer points. He was asked:

"Q.Did it occur to you at the time that Mr Bass might not have been afrequent flyer member.A.It was not something I drew my mindto."

131. He was then asked about the mock up documents and why that waschosen and he said:

"I chose Ansett because it was the airline that members of parliamentwere using at the time and the second one was that Peter Duncanalso was amember of Ansett flyers and I said to him 'What do you know about frequentflyer points?' and that's how this thing cameto be."

132. He was asked if he thought anything in the document was defamatoryand he said:

"Not then and not now, I don't believe so, no. I, in fact, I drew mymind to those sorts of things when I did it and some of thesuggestions wereput to me by the guys - I discussed that down at the Uni over a few beers -"

133. He confirmed that he was contacted by the Electoral Commissionerand the plaintiff's solicitors following that time. He said whenhe wasapproached by Mr Wilson his reaction was that there was nothing wrong with thepamphlet. He was advised to ring the distributorand ask them to stop it. Herang Mr Douglas but was told the pamphlet had already beendistributed.

134. He confirmed that on the holiday Monday, on 6 October 1997, theLabor Day holiday, he was contacted by Mr Wilson and advised therehad to be aretraction concerning the allegation that Mr Bass was a frequent flyer. He saidhe contacted Mr Douglas on the Wednesdaywho said it would not be possible toget a pamphlet out. Subsequently he received a summons and attendedcourt.

135. He said he also had prepared the small orange pamphlet to behanded out on the morning of the election. He had arranged for deliveryofthese pamphlets to various polling booths in the electorate and outlined hisreasons for the wording on that pamphlet. He maintainedin that pamphlet he hadnever meant to convey that the plaintiff had spent $32,000 and what in effecthe was saying was that it wasthe entitlement. He said the other matters in thepamphlet were true and there was nothing defamatory in that document.

136. He was asked about the prosecution and in effect he said hepleaded guilty on the advice of his solicitors.

137. In cross-examination Mr Roberts confirmed on the afternoon ofTuesday, 7 October 1997 he had a psychiatric appointment and his healthproblems had largely been related to an attack he had some years ago in Sydney.He was particularly asked about his conduct and activitiesin the week prior tothe election and immediately following the contact by Mr Tully. He wasasked:

"Q.Why didn't you do anything else on Tuesday about seeing to theprinting and distribution of a retraction.A.Well I guess thatI was waiting on Mr Wilson to agree, to tell me how thatwould be changed. I don't know what my state of mind was then. You knowIdidn't know any mobs that delivered. I thought Douglas was the only person thatdelivered around that area."

138. Mr Roberts agreed that he knew first thing on Monday morning aboutthe Commissioner's retraction, but he did not speak to Mr Douglason that dayalthough he said he might have spoken to him. He said he certainly spoke toMr Wilson and said he would make some enquiries,but, he did not take anyindependent steps for the printing or distribution of a retraction pamphlet. Hesaid his health was notgood at that stage. He was on high doses ofanti-depressants and "I wasn't travelling very well at all".

139. However, he formed a belief that he could not get any retractionprinted. He was particularly asked:

"Q.You had no intention of taking steps towards taking a retractionpublished, do you.A.I reject that, that's not true.Q.Whydidn't you take any steps, tell me again.A.Well I'm not quite sure why - I took steps and I've gone through the stepsthat I took.That I didn't do any more or take further and other action, as towhat reasons I'm not quite sure but I reject the fact that I hadnointention."

140. Mr Roberts said he was not aware of any other distributors in thatarea and contacted no other source. He said that "I guess I formedthe viewthat it couldn't be delivered". He said he had marshalled a number of friendsto distribute the Saturday electoral pamphlet- probably ten to twelve. It washis view that the FTT pamphlet had not gone out on the Monday and Tuesday ofthe following week.However, he could not dispute the evidence that had beengiven, but "I would maintain that nothing went out on Monday and Tuesday".Hewas referred to the evidence of the people who had deposed to receiving thepamphlet in that week and replied that the delay wasprobably because ofpressure of work.

141. Mr Roberts confirmed that he had some ten or twelve helpers, whowere all known to him, to hand out the election day pamphlets. Hisattentionwas drawn to the fact that he said he was the "authoriser/printer" of theelection day handouts and said it was printedthrough a "mate". He saidMrs Duncan, the wife of Mr Duncan, had assisted him with that pamphlet andthose discussions took placein the office of Mr Duncan in Sturt StreetAdelaide. However, he accepted and was happy with the work and assistance thatwas renderedto him by Mrs Duncan particularly in the setting out of thatdocument and on reflection he was not certain whether the words "secretdeal"were his words.

142. Mr Roberts confirmed that the retraction as agreed to by hissolicitor was that Mr Bass had used public money for private holidays,but,having heard the evidence of the plaintiff, he still believed all the commentson that pamphlet were true. He agreed that theword "junket" was really "atravelling for one's own purposes". He was asked:

"Q.For his own enjoyment and not for the proper purpose of such travel.You said you believed that was the case, isn't that whatyou were trying toconvey by the document.A.Yes.Q.You've also said you believed that he'd taken numerous overseas trips forhisown benefit and enjoyment at the taxpayers' expense. Is that not what youwere trying to get over to the people who received thisdocument.A.Absolutely yes, and if I might say in either of these the benefits of thosetrips reflected in no way for the constituentsof Florey, and the UnitedKingdom there was Group 4. Group 4 already operated in Australia."

143. He was asked:

"Q.Why did you publish the orange document just days after you'd toldthe Electoral Commissioner that you would retract any suggestionthat Mr Bassused public money for private holidays.A.The orange document was done in advance and at that stage - ostensibly whatI wanted to do was say well, I've probably run my race and not withstanding mybeliefs and if the retraction had of gone out thenthe orange document I wouldhave taken advice on it, I guess, from my solicitor as to what to do with it.Q.Why did you distributeit on election day in the face of your offer to theCommissioner to withdraw the allegation that I have just read to you that MrBass used public money for private holidays.A.I still believed in it.Q.You had no intention of ever publishing a retraction,did you.A.That's not the case, I reject that.Q.You do.A.Yes.Q.Why didn't you publish one and distribute it on polling dayrather than theorange document.A.That was never something that occurred to me to do."

144. However, Mr Roberts did not see that the orange document "flew inthe face of an undertaking that he gave to the Electoral Commissioner".However, he admitted he did not take any advice as to whether he should proceedwith the distribution of the election day handout.He said he did not tell hissolicitor, Mr Wilson, about the PSBL pamphlet because Mr Duncan, hebelieved, knew of his plans.

145. He was asked a further question:

"Q.Did you tell him about your dealings with the Electoral Commissionerin the week leading up to the election.A.Probably notthe Electoral Commissioner - I might have discussed with him aletter that I received from - no, I didn't discuss it with Duncanthen, Idiscussed things with Duncan later to the best of my memory. I don't evenrecall seeing Duncan in the week before the election.In fact no, there's noway I saw him."

146. Mr Roberts said that he paid for the production and distributionof the Nauru postcard. His attention was drawn to the back of thatpostcardwhere it referred to the "Clean Government Coalition". He was asked:

"Q.Who was a member of the Clean Government Coalition.A.Well, it was a derivation of when I had come back from Sydney, when I,whenthere was all the pollens in the air, that I was talking, we were talking atthe bar one night and I said 'Look, you know, ifyou're ever going to run forpolitics in Sydney then with the amount of pollens that fly around the place,if any amount of peoplethat had asthma - and I made a lot of enquiries intothat - that if you stood on the platform of the Clean Air Coalition you wouldyou would romp it in. So I just utilised this as Clean Government Coalition. Myview is, particularly with the Modbury Hospital,that things weren't clean,there was some dirty water somewhere and we weren't being told it."

And then particularly:

"Q.You were trying to imply to the recipients of this document thatthere were a body of the people in the community that you wereworried aboutclean government, that's what it was about.A.In relation to Florey I would think that that's correct. In relationtospecific areas, yes.Q.You wanted the recipients of this postcard to think that there was a body ofpeople with that concernwho were taking a stance against Mr Bass because hedid not stand for clean government, isn't that the idea.A.Well, that he didn'tsupport us and come clean with what was happening withModbury Hospital, and his stand on guns, yes.Q.You were trying to conveythat Mr Bass was not a person who stood for cleangovernment, isn't that the position.A.No, not at all. Not at all. I reject thatand if that had been the casethose words would have been printed on the document. That is not true."

147. He was then asked:

"Q.The very purpose of the distribution of this document was to damagethe re-election chances of Mr Bass.A.Not to damage them.Q.Why then did you incorporate the words 'PS When you vote, put Sam Basslast', what possible explanation can there be for thosewords if you did notintend to harm his re-election chances.A.I believe, I guess, you know, I probably would agree with that, yes.Ibelieve there were better candidates."

148. Mr Roberts said that the overall cost to him of the Nauru postcardand the FTT pamphlet was in the order of $2,300 and the cost ofthe electionday handout was "bugger all".

149. Mr Roberts' attention was drawn to the itemised breakdown of bothtrips by Mr Bass and whether that implied that there were morethan two trips.He denied that that was the inference. He believed in the truth of thestatement at the bottom of that page aboutMr Bass and his family "tickingup" free trips, but, denied that the tenor of the whole document was meant todamage the plaintiff.Indeed the same applied to the collage on the rear ofthat pamphlet. Having heard the evidence in this court he agreed that it wasanincorrect statement to allege that Mr Bass was a frequent flyer and indeedwithdrew that allegation.

150. He was asked whether he regretted that statement and was preparedto apologise for it. He said:

"A.I'm happy to say when I found out - I have always been happy to sayand quite prepared to say that I accept that you weren'ta member of a frequentflyer club but by saying that he was, I don't see anything wrong with that.Q.But you accept that as beingsomething that was politically damaging to him,that allegation appearing in this article.A.No.Q.You don't.A.No.Q.That wasits intent, was it not.A.No.Q.You heard Mr Bass say how upset he was by it.A.By the pamphlet or frequent flyer, the whole lot?Q.The whole lot but including all that flows from the false allegation he wasa member of a frequent flyer club, you heard that.A.Yes.Q.Are you prepared to apologise to him for that.A.For the hurt?Q.Yes.A.I'm happy to say that 'Look, I withdraw that.I thought you were and I knowyou're entitled to and the fact you weren't well, I'm sorry about it.'Q.You are sorry about it.A.Well, yes, if it's caused him hurt but only to the extent that I don'tbelieve there's anything wrong with being a member of a flyerclub, I believeit's quite valid.Q.So you're still saying on oath that you never intended to convey defamatoryand damaging allegationsagainst Mr Bass by the way you dealt with theassertion in this document that he was a member of a frequent flyer club, isthat whatyou're saying.A.Yes."

151. Mr Roberts maintained in cross-examination that he spoke toMr Douglas on the Friday in an endeavour to stop the distribution oftheFTT pamphlet and his memory was that he was unable to stop the circulation.

152. Mr Roberts agreed that apart from the plaintiff's trips to Englandand Nauru he did not know anything about any other trips undertakenby theplaintiff.

153. As far as dealing with the Modbury Hospital Action Group he saidhe only knew what he had read in the papers and listening to theradio. He saidhe believed that there was substantial media publicity and believed as he hadheard in court there was a request forMr Bass to take action and he declinedto do so. As far as the plaintiff declining to accede to a request from thegroup he answered:

"No, I kept myself well abreast of things that happen. As to whether Iactually - my first impulse or response is to think that Iprobably heard it onthe radio, but, notwithstanding, I talked to a lot of people in thatelectorate, a heap of people, and I mighthave even got it from some of myfriends at Modbury or whatever. But I'm not in the process, sorry - "

154. Part of the defence was put to Mr Roberts of an allegation thatthe Modbury Hospital Action Group requested that the plaintiff meetthem todiscuss their concerns regarding the hospital to which Mr Robertsanswered:

"As to the exact time I'm not quite sure, but it obviously would havebeen after he was elected. If I was to track back through someMessengernewspapers I'm sure it would be there, if not on the radio."

155. Mr Roberts' attention was drawn to events particularly mentionedin his defence in paragraphs 17.4.2, 17.4.3 and 17.4.4. He saidthat reflectedhis instructions to his solicitors. In particular paragraph 17.4.3 whichsaid:

"The Modbury Hospital Action Group requested that the plaintiff meetwith them to discuss their concerns regarding the Hospital Management."

He further said:

"Q.You have a clear recollection of the meeting being the subject ofmedia publicity.A.I believe that to be the case."

156. He was asked:

"Q..... If the amendments proposed by Mr Bass, to the legislation, hadthe effect of making the proposed scheme in respect of guncontrol moreeffective you would have supported it.A.If I had known, and - yes, I would; and I heard this the other day, with MrBass saying things had changed, if you had a spring washer and bolt orsomething else you could, basically that was tantamount tohaving materials fora gun."

However, he agreed that he had never spoken to Mr Bass about his views ongun control, although he had rung him a number of times,but had not made anappointment to meet him. Mr Roberts conceded that he had one discussion with MrBass about the LOTE educationscheme and said the reply that he received "justenhanced my belief that Mr Bass I think needed to be replaced".

157. Mr Roberts agreed that when he was charged with a breach of theElectoral Act and the particulars he pleaded to was the allegation "Why rewardsomeone who takes advantage of this system" and Mr Bass had nottaken advantageof the system, and, consequently he pleaded guilty. He was asked:

"Q.So you acknowledged to the Magistrates Court the falsity of theassertion that Mr Bass had taken advantage of the system.A.Well, I pleaded to that; I might say something about that. That it was myfirm belief that there should have been a not guilty pleato all of these and Iguess I bucked it a little bit, when I was, - it just puts me nodded to twocharges.Q.You instructed yourcounsel to plead guilty on your behalf to this charge.A.Well, he said he thought I should so I said I didn't, but ultimately Idid.Q.Do you acknowledge to the court the falsity of the allegation thatMr Bass had taken advantage of the system, to this court.A.No.Q.You still maintain that belief, despite hearing Mr Bass's evidence.A.Yes, I do.Q.You are not prepared, under any circumstances,to apologise for thatimputation are you.A.No.Q.Explain to me why, having heard Mr Bass's evidence, you still hold thatview,namely, that he had taken advantage of the system.A.Well, why I still hold the view is that I saw no value whatsoever for theconstituentsin Florey of Mr Bass going to the UK and/or to Nauru; and for thereasons that I have gone through previously.Q.All of that justifiesthat allegation, that's your view is it.A.Yes, I think that that, associated with others, I think it's time for Bassto go."

Mr Douglas

158. The defendants also called Mr Douglas who employs people to placepublications in letterboxes in and around the Tea Tree Gully area.If thepamphlet is to be distributed Mr Douglas is able to quote the amount requiredfor the distribution of such material and thenarrange for people he referredto as "walkers" through a supervisor to deliver the material.

159. Mr Douglas confirmed that in 1997 he was engaged by Mr Roberts todistribute the Nauru postcard, and, then subsequently the FTT pamphletwithinstructions on both occasions that the same had to be delivered to allhouseholds in the seat of Florey. Mr Douglas confirmedthat separate deliveriesexist on Wednesday/Thursday which he called a "mid-week distribution", and,Saturday and Sunday as beinga weekend distribution.

160. He recalled the State election of 1997 was an exceptionally busyperiod. He believed that the FTT pamphlets were delivered to himin the weekprior to the final week leading up to the election. He said from his recordsthat the starting and completion dates forthat would have been Wednesday andThursday, 1 and 2 October 1997, and he thought perhaps 15 or 16 walkers wouldhave been involvedin distributing the pamphlets. These walkers were under thecharge of two supervisors with whom he had contact.

161. He remembers that after this time Mr Bass contacted him because hewas upset with the pamphlet and called on him. He said he handedMr Bass a copyof the pamphlet. He could not remember exactly when Mr Bass called at hisoffice. He reiterated that once the pamphlethas been distributed to thesupervisor, and thus walkers, there is nothing he can do to stop thatdistribution.

162. He was then asked:

"Q.At or about that time, or during the course of that week, indeed,the following week for that matter, do you recall speakingwith Mr Robertsagain.A.No, I don't.Q.Do you recall speaking with Roberts on more than one occasion.A.Yes."

163. He was then further asked:

"Q.If you had been contacted on Friday 3 October, and asked whether thedistribution could be stopped, what advice would you havegiven.A.Not possible."

164. He confirmed that Mr Tully had spoken with him. He did not recallexactly when that was. He was asked whether it was the week commencingTuesday,7 October 1997 about whether he could distribute a retraction pamphlet, and,that he felt his advice to that was "impossible".

165. Mr Douglas was asked in cross-examination about evidence he hadgiven concerning the distribution of these pamphlets on Saturday,Sunday,Monday and Tuesday and he answered;

"No, it may have bled into the weekend, it would not have gone in onMonday and Tuesday of the following week."

He then admitted that it was a busy period and the pressure of work mayhave meant the pamphlets going out in that following week.

166. Mr Douglas confirmed in cross-examination that 12,650 of both thepostcard and FTT pamphlets were letterbox dropped. He confirmedthat there wereapproximately 12,000 households within the Florey boundaries.

167. Mr Douglas confirmed that if a pamphlet had been lodged with himon a Tuesday he could have arranged distribution on a Wednesdayand Thursday.He also confirmed that he had been approached by an investigator of theAttorney-General's Department and he had hadadvice from Mr Wilson, and, heaccepted advice that he was not prepared to answer any questions from theinvestigator.

Mr Wilson

168. The defendants also called their solicitor, Mr Wilson, whoconfirmed that on Friday, 3 October 1997 he was instructed by Mr Roberts.Itwas on the morning of 3 October 1997 that he was contacted because of a fax hereceived at his office timed at 1.17pm. Mr Wilsonconfirmed that hecorresponded with the plaintiff's solicitors, Lempriere Abbott McLeod, and saidthe effect of Mr Roberts' instructionsto him were that the distributoradvised him that the pamphlets had been distributed. He said the pamphlets wereto be deliveredbetween the 1^st and 4^th October as thedistributors had already taken delivery. Consequently Mr Wilson said he wouldwrite to the solicitors giving the undertaking.He confirmed there was a publicholiday and he then received a fax on 7 October 1997 from the ElectoralCommissioner which letterwas dated 6 October 1997. On that day he had hada number of telephone calls from Mr Roberts and there was an alteration tothe formof the retraction. He said he obtained Mr Roberts' consent to thatalteration and the manner of the retraction and faxed that toMrTully.

169. Mr Wilson said that after 10.55 he was concerned whether theretraction could be distributed. He contacted Julie Duncan who he saidwas ajournalist to enquire about the ability to circulate that retraction. He saidMrs Duncan subsequently made enquires he believedfrom the "Messenger"press and perhaps other distribution people but was advised that distributionwas not available for that retraction.He sent the second fax advising Mr Tullyof that fact on 7 October 1997.

170. Mr Wilson was cross-examined about his letter of 3 October 1997 tothe plaintiff's solicitors particularly the reference that allthe relevantpamphlets were distributed and considered that reflected his instructions.

Mr Clarke

171. The defendants also called Ralph Desmond Clarke, who is a Memberof the House of Assembly in South Australia being elected in 1993.Hesubsequently became Deputy Leader of the Opposition. Mr Clarke confirmed thatwhen elected there is an induction of all new membersand a number of mattersexplained including rights and entitlements. A booklet is handed out which setsout the basis of such entitlements,including travel and allowances paid forintrastate, interstate and overseas travel. Mr Clarke outlined the manner inwhich travelis arranged through the travel clerk in the House ofAssembly.

172. He said he believed in 1996 the preferred travel agent changed toAnsett Airlines. He said he is familiar with the frequent flyerprogramme andsaid he is a member of Global Awards through Ansett and also Qantas. He wasasked:

"Q.In respect of travel booked through the parliamentary clerk,pursuant to the parliamentarian's entitlement, were frequent flyerpointsavailable to members of parliament on such flights.A.Yes, you would tell the travel clerk that you were a member of GoldenWingsor QANTAS so when they made the booking you'd accumulate frequent flyerpoints."

173. He confirmed that he was re-elected in 1997. He wasasked:

"Q.In that period of time, were you aware of any rules applying tomembers which placed any restrictions upon the use of frequentflyer pointsaccumulating in that way.A.No, I wasn't aware that there were any rules applicable. In fact that wassubsequentlyconfirmed by a cabinet decision taken only at the beginning ofthis year."

174. He produced a letter from the speaker of the house dated 15February 1999 making it official concerning the eligibility to frequentflyerpoints accrued as a result of parliamentary travel. However, since that datethere has been a restriction applied. He was asked:

"Q.During the course of your time as a member of parliament, have youyourself accumulated frequent flyer points.A.Yes.Q.Areyou aware of your own knowledge of the practice of other members ofparliament in that respect.A.I can't speak for all of thembut in general conversation I know a numberare in frequent flyer clubs, whether it's Golden Wings and QANTAS and that theydo accumulatethem.Q.In respect of their parliamentary travel.A.Yes."

175. He was asked in cross-examination about the fact that at therelevant time of this matter there was no written edict and particularlywhether in his view it was politically sound judgement to use frequent flyerpoints for parliamentary purposes to which Mr Clarkeagreed, but, said "thatwasn't necessarily adopted". He was then asked:

"Q.Ever since you've been a member from 1993 onwards, the position isthat it was regarded as politically unwise to be seen to beusing points foryour own purposes because the electorate might regard it as poor form andsomething of a rort.A.It occurred sosome members went that way, yes, I wouldn't have said allmembers adopted that.Q.They may not have adopted it but that was thecommon perception, was it not.A.Amongst some members.Q.Did you adopt it.A.Me personally?Q.Yes.A.Yes, I adopted it.Q.Youdidn't think it was a prudent thing to do to use frequent flyer pointsaccrued by virtue of spending parliamentary travel allowancefor privatepurpose and you didn't do it.A.No, I didn't but I suppose I've been under the spotlight a bit more as thedeputy leader."

FINDINGS

MrBass

176. Mr Bass was an impressive witness. He is a man of the utmostintegrity. He had a most successful police career for some 33 yearsandachieved the rank of Detective Sergeant. He had served in many responsibleareas of criminal investigation. As I have pointedout earlier, his policeservice culminated in two awards for bravery and during the last five years ofhis police related servicehe was secretary of the Police Association. I accepthis evidence that he applied the same high ethical approach to thoseresponsibleduties as he did to his parliamentary activities. He has also beenactive in the general community, and, obviously proud of his childrenandgrandchild.

177. The plaintiff carried out his parliamentary duties in an exemplaryfashion. He established and spent long hours in his own electoraloffice. Heshowed a very responsible attitude to his parliamentary duties by hisinvolvement in numerous committees, and, as wellmeeting the demands of hisconstituents.

178. His principles are apparent when he stated he was not prepared toaccept free public transport, and, indeed small issues such asa refund fortelephone rentals, reflect his integrity.

179. The plaintiff outlined that he was conversant with parliamentarysalaries, entitlements and travel allowances. I accept his evidencethatparliamentary allowances in general caused him concern, hence his statedposition.

180. Mr Bass confirmed that the travel allowance was set for a memberat $8,000 a year and he did take advantage of that allowance inthe second yearof his term to travel to the United Kingdom where he carried out a number ofinvestigations on current public issues.There can be no criticism of him forthe manner in which he carried out the inspection of the privately run prisonin New South Wales,and, the day trip to Melbourne to attend the firearmsconsultative committee.

181. He confirmed that he attended the Nauru conference in July 1997 atthe request of the Speaker of the House of Assembly and the Presidentof theLegislative Council. He presented a paper at this conference.

182. Mr Bass was examined and cross-examined in detail about hisparliamentary and constituent activities in regard to parliamentary travel,theprivatisation of management of the Modbury Hospital, and firearms controllegislation.

183. In summary I have little hesitation in finding that the actions ofMr Bass in all of these areas were at all times totally responsible.Therecould not be any area of criticism of his parliamentary actions, or, the mannerin which he dealt with constituent enquiries.

184. He had been a member of parliament since 1993, and, with theexception of the Nauru conference which was a parliamentary expenditure,he hadonly used his entitlement for overseas parliamentary travel on the oneoccasion. The summary of expenditure of members travelentitlements show therelevant figures of all parliamentary travel. It is interesting to note that inthis period the expenditureof the two adjoining members was considerably morethan that of Mr Bass.

185. There can be no base for any criticism of Mr Bass in regard to hisuse of parliamentary travel.

186. Mr Bass outlined the manner in which he had investigated theproposals for the privatisation of the Modbury Hospital. Such enquiriesweredetailed and enabled him to form his own reasoned decision to support thegovernment's proposals. However, he at all times attendedto constituentenquiries. It was the Minister who eventually refused to meet the ModburyHospital Action Group. It must be rememberedthat the Minister, despite theAbraham tape, was still open to written material concerning the ongoingadministration. It must beborne in mind that by this stage the government hadentered into its contractual arrangement with the new operator. The radiointerviewbetween Mr Case and Mr Abraham was no doubt the catalyst for the viewof the Minister. After reading the transcript of that tapeone can appreciatethe Minister's views, and, the stand then taken by Mr Bass. It may well be thatMr Case's enthusiasm and passionfor the return of the governmentadministration of the hospital led him into error in not stating the correctposition of the operatingprocedures at the Modbury Hospital. However be thatas it may the conduct of Mr Bass cannot be criticised.

187. Mr Bass had a keen interest in firearm control because of hisbackground. His evidence on this issue has not been in any way contradicted.Iaccept Mr Bass perceived that there were many difficulties with theoriginal proposals. He set about the preparation of many amendmentsto make thelegislation workable. He said that most of his amendments were accepted. Thathas not been contradicted. His approachto the legalisation can be described asthorough and commendable.

Mr Roberts

188. The qualities of Mr Roberts' personality became evidentparticularly during his cross-examination. He clearly is a person of veryfixedviews. There is no doubt whatsoever that his agenda from the time of thepreparation of the Nauru postcard to the final electionleaflet was the removalof Mr Bass as the member for Florey.

189. I accept his evidence that he was responsible for the preparationof the Nauru postcard. The FTT pamphlet was a pamphlet which he,in my view,had considerable professional assistance. This is apparent from its composureand graphics and the same can be said forthe election morning "How to Vote"card.

190. In many respects his evidence was unsatisfactory.

191. The Nauru postcard stated "Geoff Roberts Clean GovernmentCoalition". The clear innuendo from these words is that the writer is targetingsomeone who is other than clean. A person whose actions are other than proper.When Mr Roberts gave evidence he said the title hecreated was in relationto air pollutants. I view that comment as one of recent invention.

192. Mr Roberts' answers to the forged "Sam Bass Frequent FlyerActivity Statement" reflect that his aim in his activities was the removalofMr Bass from office and to this end he was prepared to publish any incorrectforged and in my view defamatory material to achievehis aims. Whenspecifically asked:

"Q.You didn't know whether Mr Bass was a member of Ansett frequentflyers.A.I assumed he was, but whether he was or wasn't, Ididn't see anything wrongwith that.",

an attitude and view which persisted throughout his evidence.

193. There is no doubt Mr Roberts in no way made any enquiries aboutMr Bass's involvement with frequent flyer points, parliamentary travel,privatisation of the Modbury Hospital or gun control. Indeed, on the last twoissues I consider he had little, if any, personal knowledgebut accepted adviceon the composition of the material.

194. His attitude and total reluctance to admit fault surfaced whenfaced with the request by the Electoral Commissioner on 3 October1997 towithdraw the FTT publication, or, if distributed, publish a retraction. Thepublication continued to be delivered until 6October 1997 and there was noattempt whatsoever to publish a retraction.

195. The FTT pamphlet was being delivered as late as Tuesday, 7 October1997 despite Mr Roberts advising his solicitor on Friday, 3 October1997 thatthe pamphlets "had been" delivered. I find difficulty in accepting the dogmaticsuggestion of Mr Douglas that on Friday,3 October 1997 there was nothing thathe as a distributor could do to prevent or stop the distribution. Mr Douglaswas in chargeof several supervisors and a number of walkers. It would takelittle effort for those walkers to be contacted and be advised to desistdelivery and particularly bearing in mind that the pamphlet was still beingdelivered as late as the following Tuesday. I treat thatevidence in the sameway as the dogmatic assertion of Mr Douglas that all material "may have bledinto the weekend, it would nothave gone in on Monday and Tuesday of thefollowing week" as clearly wrong. I note Mr Roberts refused to answer anyquestions duringthe subsequent enquiries.

196. Mr Roberts was again specifically aware of the retraction issue onthe Monday, but, his health problems intervened on the Tuesday,and, then inhis opinion it was too late for any retraction to be circulated. My view inkeeping with the general tenor of his evidencewas that he was quite obliviousto publishing any form of retraction and more than happy for the week to pass.Mr Roberts' actionsin that week show his motive. By Friday, 3 October 1997 hewas clearly aware of two issues, firstly, the plaintiff was not a memberof anyfrequent flyer club and thus not taking any personal advantage of parliamentarytravel, and, secondly, he never used publicmoneys for privatepurposes.

197. One would consider bearing in mind the views of the ElectoralCommissioner that he would take some care in the preparation of furthermaterial to be publicly circulated. However, his actions thereafter show almosta contempt about these matters. Mr Roberts continuedwith the preparation andcirculation of approximately 12,650 election day handouts referring to"numerous junkets at your expenseincluding trips to the United Kingdom andNauru", and, if elected "Qualify to spend another $32,000 of taxpayers' moneyon overseastravel". This is the action of a person whose aim is solely toremove Mr Bass from office in total ignorance of the true factualmatters, or,for that matter having no care or concern whether the matters were true orfalse providing his aim was achieved.

Mr Case

198. Mr Case clearly is a person who at all times, and remains, totallyopposed to the privatisation of the management of the ModburyHospital.

199. Mr Case's views on the privatisation were dogmatic and passionateas seen from his lengthy answers to questions. No doubt his angerwas directedto the Minister of Health for what he viewed was the lack of consultation. Onthe other hand such intransigent viewscan lead to error. This is apparent, forinstance, from the transcript of his interview with Mr Abraham where I havelittle doubtthat all of the relevant details were not placed before Mr Abrahamby Mr Case. Mr Case denied this suggestion. However, be that asit may,one can appreciate both the opinion of Mr Abraham and subsequently the Ministerfrom a reading of that tape. However, theMinister notwithstanding what heviewed as the political bias of Mr Case said he would consider any writtenmaterial. At one stagein a long answer Mr Case said:

"I apologise for that. I'm actually quite passionate about the ModburyHospital thing as we all are in the group.".

That fact is apparent from his evidence. Clearly his anger was directedto Mr Bass and what he saw as "arrogant as to suggest thathe wouldn'thelp us leading up to his election in July 1997". What Mr Case overlooks in his"arrogant" description of the plaintiffis that the group initially approachedMr Ashenden who referred the query to Mr Bass and advised Mr Case of theimproved nature ofservices at the Modbury Hospital since the introduction ofprivate management. The letter from Mr Case had raised issues of "significantreductions in the quality of services since privatisation". Mr Bass immediatelyacted on the letter to be advised by the Ministerthat because of the MatthewAbraham transcript he refused to meet the Action group but would receivewritten material. Mr Bass conveyedthose sentiments immediately to Mr Case andmentioned to him:

"... if your group has concerns associated with the hospital I wouldsuggest that you communicate them to me in writing and I willhave theminvestigated by the appropriate authorities."

200. This conduct could not be called arrogant. On the facts before meit was responsible conduct.

201. Mr Case said "We decided as a group to 'target' in particular SamBass" and gave his reasons for that action. They included to "restoretheModbury Hospital to public hands. .... would be best served by getting rid ofSam Bass". Mr Case said he and his group viewedMr Bass as an "easy target"because he had spoken out against the interests of the group, and, secondly, on"two occasions" he hadrefused help. I have no evidence that Mr Bass spokeagainst the group and the one request for an audience with the Minister waspromptlyand fairly responded to by the plaintiff. Mr Case then added his,and/or his group's, perception of the plaintiff's views on traveland gunlegislation which on my finding was a totally inaccurate view. He mentioned hewas aware that he "tripped" off overseas inthe death knock of his term ofoffice, and "we just thought that was like jam on our toast", and in relationto the gun legislation"where he actively opposed that Howard propositions"which was clearly an incorrect statement.

202. Mr Case is an intelligent and capable person who I have littledoubt could have enquired about and ascertained the extent of themanner inwhich Mr Bass had conducted himself in and about parliamentary travel andfirearms control. He made no such enquiries.Like Mr Roberts, he would acceptany propaganda in his aim to remove Mr Bass from office.

203. Mr Case admitted that he was away overseas shortly before theelection. When he returned he was directed to a booth and handing outtheaction group's pamphlet as well as the orange pamphlet. He said he perused thepostcard and there was nothing whatever on itthat caused him any concern andhe proceeded to hand it out.

204. In summary, the views of Mr Case were so passionate that he wouldadopt any means to achieve the aims of his group of removing MrBass fromoffice and secure the election of a politician who would work to restore thegovernment management of the administrationof Modbury Hospital. Mr Casedid not take in my view any steps to ensure the accuracy or otherwise of thewords on the election morningpamphlet. I view him, like Mr Roberts, that hissole motive was to remove Mr Bass from office using any means without anyconcernfor the factual base.

DEFAMATORY MEANING

205. Whether the publications complained of are capable of beingdefamatory will depend on several factors. The first question is, doesthematerial complained of, understood in its natural and ordinary meaning, containimputations which tends to lower the plaintiffin the estimation ofright-thinking members of society (Sim v Stretch[1936] 2 All ER 1237 at1240), or is it calculated to bring the plaintiff into hatred, contempt orridicule (Parmiter v Coupland[1840] EngR 168;(1840) 6 M & W 105 at 108), or does ithave the effect of making people shun or avoid the plaintiff? (seeYousoupoff v MGM Pictures Ltd(1934) 50 TLR 581 at 587). An imputation isdefamatory if it satisfies any of these three tests.

206. In determining whether the imputations satisfy any of the abovethree definitions of what is defamatory, regard may be had to currentsocialmores and standards, and the defamatory nature of an imputation is ascertainedby reference to general community standardsand not by reference to sectionalattitudes:Reader's Digest Services v Lamb[1982] HCA 4;(1982) 150 CLR 500 at 507.Moreover, I must consider the attitude of ordinary people. I refer to Gillooly,The Law of Defamation in Australia and New Zealand, (1988) at pages34-35 and in particular the quotation from Hunt Jin Farquhar v Bottom[1980] 2 NSWLR 380 at 385 thus:

"In deciding whether the matter complained of is capable of conveying tothe ordinary reasonable reader the imputations relied uponby the plaintiff, Imust be guided and directed by the test of reasonableness. I must reject anystrained, or forced, or utterlyunreasonable interpretation:Jones vSkelton ([1963] SR (NSW) 644. I must proceed upon the basis that theordinary reasonable reader is a person of fair, average intelligence:Slatyer v Daily Telegraph Newspaper Co Ltd ((1908)[1908] HCA 22;6 CLR 1 at 7); who isneither perverse: ibid; nor morbid or suspicious of mind:Keogh vIncorporated Dental Hospital of Ireland ((1910) 2 Ir R 577 at 586): noravid for scandal:Lewis v Daily Telegraph Ltd ([1964] AC 234 at 260). This ordinary reasonable reader does not, we are told, live in an ivory tower.He can, and does, read betweenthe lines, in the light of his general knowledgeand experience of wordily affairs:Lewis v Daily Telegraph (supra at258);Jones v Skelton (supra at 650);Lang v Australian ConsolidatedPress Ltd ([1970]2 NSWLR 408 at 412). It is important to bear in mind thatthe ordinary reasonable reader is a layman, not a lawyer, and that his capacityforimplication is much greater than that of the lawyer:Lewis v DailyTelegraph Ltd (supra at 277);Morgan v Odhams Press Ltd ([1971] 2All ER 1156 at 1163);Lang v Australian Consolidated Press Ltd ([1970]2NSWR 408 at 412);Middle East Airlines Airliban SAL v Sungravure Pty Ltd([1974]1 NSWLR 323 at 340)..."

207. Account should also be taken of the circumstances in which thematter complained of was published. For example, it may be thoughtto be commonfor sharp or caustic remarks to be made by politicians about one another. InGorton v Australian Broadcasting Commission(1973) 1 ACTR 6, Fox J saidat page 13:

"A person in public office expects to be, and is frequently the subjectof comment and criticism. ...... The television viewer recognisesthese things.The result is that criticism and comments made of public figures are apt tohave less impact than similar remarks madeof others."

208. Despite this, the overall and central function of the law ofdefamation is to protect the reputation of individuals whether theybepoliticians or not. This was made clear by the High Court inLange vAustralian Broadcasting Commission[1997] HCA 25;145 ALR 96 at page 113:

"The purpose of the law of defamation is to strike a balance between theright to reputation and freedom of speech (Theophanous v Herald & WeeklyTimes Ltd[1994] HCA 46;(1994) 182 CLR 104). ...... The protection of the reputations ofthose who take part in the government and political life of this country fromfalse anddefamatory statements is conducive to the public good. Theconstitutionally prescribed system of government does not require - tothecontrary, it would be adversely affected by - an unqualified freedom to publishdefamatory matter damaging the reputations ofindividuals involved ingovernment or politics."

209. I will now consider each publication in turn in light of theseprinciples.

NAURU POSTCARD

210. The words on the back of the postcard sent by Mr Roberts to allelectors were as follows:

"Dear Taxpayer,This is the postcard your politician Sam Bass should have sent you from thePacific island paradise where he is enjoyinga winter break at your expense. Geoff RobertsClean Government CoalitionP.S. When you vote, put Sam Bass last."

211. On the right hand side in place of the stamp was "Delivery Paid byYou" and it was addressed:

"To All TaxpayersSeat of FloreyAdelaide SA"

212. The words clearly stated to the electors that their member ofParliament was enjoying a "winter break" at a Pacific island paradise"and "attheir expense". The sender was named as representing the "Clean GovernmentCoalition". In my opinion, the ordinary and reasonablereader would interpretthat postcard as meaning that:

(i)Their elected member was, at the expense of the taxpayer, enjoying aholiday;

(ii)The plaintiff's holiday at Nauru was for his own enjoyment, and notin the proper pursuit of his duties as a member of the seatof Florey;

(iii)The "Clean Government Coalition" was a group whose aim was toensure proper parliamentary behaviour and in this case the actionsof the localmember were not proper; and

(iv)the opening words "This is the postcard your politician Sam Bassshould have sent you..." refers to a course of action whichthe plaintiff, astheir member, should have followed but deliberately refrained from doingso.

213. In summary it is an effective document implying that the electedmember had embarked on a holiday at a paradise resort and in doingso hadmisused taxpayers' money and this fact was discovered by an organisationinvolved in "Clean Government". The publication wasclearly aimed atdisparaging the plaintiff's reputation, the aim being to lower the plaintiff inthe estimation of his fellow constituents.

214. I therefore find that the words reflect on the integrity of theplaintiff and portray him as a member of parliament who has misusedpublicmoneys for his own personal benefit to the detriment of his constituents and,as such, are defamatory of the plaintiff.

FREE TRAVEL TIMES PAMPHLET

215. This was an inflammatory document which clearly reflected on theintegrity of the plaintiff and, to a lesser extent, his family,and containedthe forged purported copy of his Frequent Flyer Activity Statement. Thedocument was very skilfully prepared and totallyinaccurate. The layout of eachpage suggests professional assistance. However, briefly dealing with eachpage:

Frontispiece

216. Entitled "Free Travel Times" the pamphlet has written across itscover in black bold imprint "Parliamentary Traveller of the Year".The featureof this front page is a caricature of the relaxing and reclining plaintiff witha waiter holding a card and saying "It'sfrom Adelaide... reads 'wish you werehere' from your constituents". At its base was the phrase "Flat Out Working forYou!".

217. The pamphlet was delivered to all electors in the week prior tothe election. The reasonable and ordinary reader would construe thattheplaintiff had been on holiday in Nauru at government expense and was the mosttravelled parliamentarian for that year and thathe, rather than attending tohis electoral duties, was content to lay in the sun in Nauru eating anddrinking.

The second page

218. The second page adds substantially to the material by the forgedmock up of the plaintiff's alleged frequent flyer points includinga balance of"current points available" with the over stamp in red "Bring the Frequent FlyerBack to Earth!". This page is totallyinaccurate as the plaintiff has neversubscribed to any program involving the accumulation of frequent flyerpoints.

The third page

219. The third page then further adds to the harm by the misleadingbreakdown of his two trips. Of particular significance were the words:

"Of course, the number of Frequent Flyer points ticked up on these freetrips used for other travel for himself or his family isnot on publicrecord."

220. In my opinion, the ordinary and reasonable reader would take thisto mean that the plaintiff had used his position as a member ofParliament toaccrue frequent flyer points for his own use and for the use of the members ofhis family. The ordinary and reasonablereader would go on to interpret thephrase "not on public record" as meaning that not only had the plaintiff usedhis position toaccrue frequent flyer points for himself and his family butthat it was done in a somewhat underhanded way.

The final page

221. The final page shows a collection of headlines of misuse ofparliamentary allowances and in effect places the plaintiff in thiscategory.

222. Reflecting on my findings of the ethical manner in which theplaintiff had undertaken his parliamentary duties and opposition toanyfrequent flyer benefits from parliamentary travel the whole tenor of thispamphlet reflects on the good character and integrityof the plaintiff. He isportrayed as a person who is content to misuse public funds for his own benefitand then claim the frequentflyer points "for himself or his family". Thepamphlet then places him among the politicians who have blatantly misused theirparliamentaryallowances. As I pointed out earlier, the plaintiff has never inhis parliamentary career either misused, or taken advantage of,the system forhis own benefit. The pamphlet is highly defamatory of the plaintiff.

223. I have little doubt in finding that the allegations in paragraph9(b), (c), (d), (e) and (f) substantiated.

ORANGE PAMPHLET

224. As I have commented, Mr Roberts, despite numerous correspondencefrom the Electoral Commissioner, prepared and no doubt with muchassistancethen arranged for the printing and distribution of the bright orange "How toVote Card" on the morning of the election.I have described the card.

225. Counsel have submitted various dictionary definitions of the words"junket", some of which are quite expansive. However, in my opinion,theordinary and reasonable reader would interpret the same as "a pleasurableouting at the public expense".

226. Again, here is a totally inaccurate document being handed out toall electors on the morning of the election. The document has aprofessionalgraphic artist touch based on a "how to vote" card. A most unusual document toappear on an election day.

227. The allegation of "numerous junkets at your expense includingtrips to the United Kingdom and Nauru" is totally unwarranted. Thefurtherhighlighted boxes 2 and 3 are completely unjustified on the factual findings.The comments in the boxes are most damaging,particularly the statement"Qualify to spend another $32,000 of taxpayers' money on overseas travel". Anordinary reader would assumethat Mr Bass had spent $32,000 and if electedwould spend another like sum. The further statement "Why reward someone whotakes advantageof the system?" was clearly intended to imply, and which theordinary and reasonable reader would understand it to mean, that theplaintiffhad misused his position for personal gain.

228. I repeat my findings on the ethical nature of the plaintiff, andfurther view the PSBL pamphlet as defamatory. I find the publicationhad themeanings pleaded by the plaintiff in paragraph 14 of his statement of claims.

DEFENDANTS' SUBMISSIONS

229. Counsel for the defendants urged a finding that all threedocuments were meant to convey that the plaintiff was a person who availedhimself of the privileges of office, and, had, or I assume, was entitled toaccumulate frequent flyer points and was taking advantageof his office and,consequently, such commentary could not be defamatory.

230. The defendants' counsel referred me to the case ofMundey vAskin[1982] 2 NSWLR 369 where a description of a political opponent as"vermin" was held to be mere vulgar abuse and not to relay any defamatoryimputation.As was said at page 371-2, "words however insulting orobjectionable which tend to produce neither damage to reputation or exclusionfrom society are not actionable".

231. The defendants' counsel conceded that Mr Bass did find thepublications objectionable but that did not mean they were actionable.In hisview none of the innuendos such as being corrupt, incompetent, dishonest,unethical, a criminal impropriety or disloyalty,arose from these publications.Indeed, having a lawful travel entitlement would not cause a politician to beshunned or avoided bythe community, or, for that matter damage to hisreputation. I was referred to the comments in the case ofTaylor v Jecks(1994) 10 WAR 309 at 320 where the court considered allegations of theplaintiff using air travel and that no defamatory meaning could be placed inany of the words used in that publications.

232. In light of my findings that all three publications weredefamatory, it is unnecessary to deal with the defendants' submissions onthispoint.

233. Alternatively, counsel submitted that if such a finding was madethen the defendants are nevertheless protected or excused by thevariousdefences available to them. The first defence relied upon by the defendants isthat of fair comment on a matter of publicinterest. To this end, I wasreferred to the decision of the former Chief Judge in the case ofBuick vDuncan(1986) 127 LSJS 277 at 281 where the respondent in that case hadbeen defamed by an article. The trial judge reflected on the words and theirnaturalmeaning and held that they were defamatory of the plaintiff. On appealthe Chief Judge said:

".....The law reflects the undoubted belief of a democratic community inthe value of freedom of expression with respect to publicaffairs. That thisfreedom should be not subject to undue and unnecessary restriction is of theutmost importance during an electioncampaign and, indeed, at any time. If acitizen believed that an aspirant to public office is a dangerous person or isengaged inactivities which are inimical to the public welfare, it is importantthat he should be free to express that belief. The law of defamationextendsgreat latitude to free expression of opinion with regard to public affairs andwith regard to activities of those who areengaged in them. The principle oflaw which protects that freedom of expression of opinion is that which accordsto a person whopublishes defamatory comment the defence of fair comment on amatter of public interest. By that means protection is afforded tothose whoexpress opinions honestly held about public matters and about those who hold oraspire to public office even though thoseopinions might be unfounded and basedupon ignorance and prejudice. This principle protects and permits the utmostfreedom of discussionand debate concerning public affairs and public persons.The law, however, does require that such opinions, if defamatory, must behonestly held."

234. Counsel urged that I should accept the evidence of Mr Roberts as abase for a finding that he held an honest and genuine belief ofthe matters ofthe plaintiff given that they might be founded on ignorance or prejudice.Counsel further urged me to find that MrCase also honestly held the opinionsthat he expressed and referred me to the decisions ofPooley v Duncan(1978) 80 LSJS 58-60 andWhitford v Clark(1934) SASR 134. Such casesare authorities for the proposition that the widest possible latitude must begiven in interpreting political criticismas politicians' conduct must be opento searching criticism and the freedom of criticism must be maintained as asecurity for theproper discharge of public duties.

235. The defence of qualified privilege was also pleaded in rathergeneral terms as the words relating to "a matter concerning governmentandpolitical matters".

236. The defendants also pleaded that actual malice on the part of thedefendants had not been proved by the plaintiff, and urged a findingthat thedefendants' evidence should be accepted as they honestly believed in the truthof their statements that negatived the allegationof malice.

FAIRCOMMENT

237. For a defence of fair comment to succeed, the defendants mustprove that the subject matter of the publications complained of werecomment,not a statement of fact, that it was a matter of public interest, that thecomment was based on facts which are stated,or, indicated in the material,and, that the comment was fair. The issue in this case is whether the commentsare fair.

238. Whether a comment is "fair" depends upon honesty, notreasonableness. A comment satisfies the fairness requirement if a fair-mindedperson could honestly express that opinion. Thus the test is objective, itbeing, could any fair-minded person honestly express thatopinion on the provedfacts? (Rocca v Manhire(1992) 57 SASR 224 at 229).

239. A comment may be fair even if it is biased, irrational,exaggerated, prejudiced or obstinate. In the words of Mr Collins in McQuirev Western Morning News (1903) 2 KB at 110:

"If the language complained of is such as can be fairly calledcriticism, the mere circumstance that it is violent, exaggerated,or even in asense unjust, will not render it unfair. It is at the most evidence that it wasnot an honest expression of real opinion,but was inspired by malice."

240. Even so, in order to be "fair comment" the comment must be basedon facts which are true or published under privilege (Pryke v AdvertiserNewspapers Ltd(1984) 37 SASR 175 at 192-193). The failure to prove thetruth of even one of facts on which the comment is based will defeat theoffence. It follows,therefore, that a comment cannot be fair if the facts aremisstated or distorted (see Petersen v Advertiser Newspapers Ltd[1995] SASC 5018;(1995)64 SASR 152 at 193 and 201).

241. In my view, the defendants have failed to satisfy either tests. Myfinding is that a fair-minded person could not possibly attributeto theplaintiff the allegations in question on the factual findings. Moreover, it ismy view that the defendants have failed tomeet the requirement that the factson which the comments are based upon are true. At the very least, the commentswere misstatedand distorted. I have therefore come to the view that they donot qualify as fair comments within the meaning of that expressionas explainedin the cases, and as such, cannot be relied upon by the defendants.

QUALIFIED PRIVILEGE

242. The plea in paragraph 24 of the first defendant's amended defenceraises the defence of qualified privilege in respect of all threepublications.This defence is raised in similar terms in paragraph 13 of the fourthdefendant's defence, but only in relation tothe PSBL pamphlet. From the waythey were framed, I have taken it that the defendants have pleaded their caseunder this head ontwo alternative bases - firstly, the traditional principleof qualified privilege and, secondly, the extended form of qualified privilegein respect of communications on government and political matters.

243. Turning first to the traditional head of qualified privilege, thedefendants will be accorded protection if they can show that thedefamatorymaterials complained of were published in good faith on an occasion ofqualified privilege. This form of qualified privilegerequires that there bereciprocity of duty and interest between the publisher and those to whom thematerial was published. In otherwords, the defamatory material must have beenpublished in the performance of a legal, social or moral duty or to protectsome interestof the publisher, and furthermore, the material must have beenpublished only to those who have a corresponding interest to receiveit(Adam v Ward[1917] AC 309 at 334).

244. This requirement of reciprocity is essential, but is oftendifficult to satisfy. The reason why this is so is explained by McHughJ inStephens v The Western Australian Newspaper Limited[1994] HCA 45;(1994) 182 CLR 211at 261:

"The need for reciprocity usually defeats a claim of qualified privilegewhere the publication has been made to the general public.Only in exceptionalcases does a person have an interest or duty to publish defamatory matter tothe world at large. Both in Australiaand elsewhere, common law courts haverepeatedly held that a person has no legitimate interest or duty to publishdefamatory matterto the general public if no more is established than that thesubject matter of the publication is one in which the public isinterested."

245. Thus it is not enough that information is of interest to those towhom the material is published. Readers or listeners do not havethe requisite"interest" unless they have a "real and direct personal, trade, business orsocial concern about the information, oran interest such as would assist inthe making of an important decision or the determining of a particular courseof action" (Bruton v Estate Agents Licensing Authority[1996] VicRp 68;[1996] 2 VR 274at 292-296). Moreover, the protection of qualified privilege will be lost ifthe material is published to a wide audience.

246. In my opinion, the publications were not published to too wide anaudience in the present case. All three publications were clearlyintended togo to the constituents of Florey only, and although some of the publicationsmay have been received by a small numberof others who were not constituents,it does not, in my view, necessarily follow that the defence of qualifiedprivilege would belost (see, for example, the discussion inGuise vKouvelis[1947] HCA 13;(1947) 74 CLR 102 at 111 and 122-125).

247. Furthermore, the weight of authorities with similar circumstancesto the case at hand all tend to suggest that qualified privilegewill operate.By way of example, inBraddock v Bevin(1948) 1 QB 580, the court heldat page 590-591 that:

"In principle, and quite apart from such assistance as can be derivedfrom authority, we should have thought it scarcely open todoubt thatstatements contained in the election address of one candidate concerning theopposing candidate, provided they are relevantto the matters which electorswill have to consider in deciding which way they will cast their votes, areentitled to the protectionof qualified privilege. The electors clearly have aninterest in receiving a communication of that kind. Indeed, the task of theelectors under democratic institutions could not be satisfactorily performed ifsuch a source of relevant information bona fide givenwere to be cut off byfear of an action of libel. As will be seen, there is a good deal of authorityfor the view that qualifiedprivilege extends to communications by one electorto another in relation to a candidate at an impeding election. It would becuriousif the interest and duty subsisting between one lector and another wereto be rated higher in this respect than the interest andduty subsistingbetween an elector and a candidate, and we are unable to see any ground forsuch a distinction. A candidate cannotin this connection be regarded as ameddler or, to use Scrutton LJ's words inWatt v Longsdon a mere'stranger or volunteer'. Even if it be thought that he has no common interestwith the electors to have what is honestly believedto be the truthcommunicated - and in a democratic country to deny the existence of such acommon interest may to some appear illogical- we make bold to assert that hehas a duty towards the electors to inform them honestly and without malice ofany matters whichmay properly affect their choice in using their suffrages...... There is an old saying that 'those who play at bowls must expectrubbers'. The risk is one which is inherent in the game of politics."

248. I refer also toBruce v Leisk(1892) 29 SLR 414,andCalwell v Ipec Australia Limited[1975] HCA 47;(1975) 135 CLR 321 at 335.

249. I accept that each of the publications complained of was made on aprivileged occasion.

MALICE

250. At common law, even if defamatory matter is proven to have beenpublished on an occasion of qualified privilege, the defence willfail if theplaintiff proves that the defendant was motivated by "malice". Malice in thissense is taken to mean an absence of agenuine belief in the truth of thedefamatory statement, or where the defendant had used the occasion on whichqualified privilegeis given for an improper or foreign motive (Barbaro vAmalgamated Television Services Pty Ltd(1985) 1 NSWLR 30 at 50-51).

251. The plaintiff, by his amended reply, alleged that the publicationscomplained of were actuated by malice. The particulars of maliceas relied uponby the plaintiff are set out in paragraphs 5, 15 and 17 of his amended reply.The particulars of malice alleged againstthe fourth defendant are contained inparagraph 11 of the plaintiff's reply to his defence. Without listing them all,the significantparticulars of malice pleaded are that the defendants' mainmotive was to injure the plaintiff's reputation and to cause maximumdamage tohis re-election campaign.

252. Whether the motive to injure the plaintiff's chances ofre-election is an "improper" motive is a highly contentious point. Thedefendantssay that it could not possibly be so, and referred me authoritiesincludingLange v ABC (supra). In that case the Full Court of the HighCourt at page 118 was of the view that:

"..... having regard to the subject matter of government and politics,the motive of causing political damage to the plaintiff orhis or her partycannot be regarded as improper."

253. In response, counsel for the plaintiff submitted, and I accept,that the above passage from Langewas made in the context of theextended defence of qualified privilege where the publication must bereasonable. Counsel also referredme to various authorities holding thecontrary view to the defendants' submissions, and in particular to the decisionof MullighanJ. inPetersen v Advertiser Newspapers (supra). At page200, his Honour, in finding that the appellant's main motive in causing damageto the respondent's political careeramounted to an improper motive, saidthat:

"It is also reasonable to attribute to the appellant the dominant motivein publishing the article the desire to attack the respondentbecause he hadfrustrated the appellant's own political agenda, the fall of the Government andan early election. In all the circumstances,that is an improper motive.(See also Gatley 9^th Edition at 16.6,and Pankhurst vHamilton(1887) 3 TLR 500)."

254. The issue, thus, is far from settled. However, it is unnecessaryto resolve such concerns in the present case because, in my view,thedefendants' dominant purpose went far beyond the mere desire to foil theplaintiff's prospects of re-election. Their main intentionwas to injure theplaintiff and to lower his estimation in his fellow persons by making themthink less of him. All three publicationswere part of a strategy designed tohave this effect. Clearly this is not a proper motive.

255. Various other factors also point to a conclusive finding that thedefendants intended to injure the plaintiff. InHorrocks v Lowe[1975]AC 135, the House of Lords noted that malice would be negated if a defendanthonestly believed in the truth of the defamatory statements,but went onfurther at 149-150 to add:

"Even a positive belief in the truth of what is published on aprivileged occasion - which is presumed unless the contrary is proved- may notbe sufficient to negative express malice if it can be proved that the defendantmisused the occasion for some purpose otherthan that for which the privilegeis accorded by the law ..... If he publishes untrue defamatory matterrecklessly, without consideringor caring whether it be true or not, he is inthis sense, as in other branches of the law, treated as if he knew it to befalse."

256. The evidence does, in my opinion, establish that the defendantspublished the defamatory material without "considering or caringwhether it betrue or not". On occasions during his evidence, the first defendant admitted tohaving prepared the publications inspite of his indifference to the truth oftheir content. By way of example, when asked whether it had occurred to himthat the plaintiffmight not have been a member of the frequent flyer programin preparing the FTT pamphlet, the first defendant's answer was that "itwasnot something I drew my mind to". In the same way, the fourth defendantdisplayed a similar indifference in relation to the PSBLpamphlet. In fact, headmitted to having handed out that pamphlet without any research and purely onthe basis that its contents"sounds right". Both defendants thus admitted tohaving not made enquiries to check the accuracy of the relevant publications.

257. A failure to make inquiries does not, of itself, constitute malicebut is nevertheless relevant in establishing an intention on thepart of thedefendants to injure the plaintiff (Uren v John Fairfax & Sons PtyLtd(1966) 177 CLR 118 at 125). I accept that the defendants did not makeany enquiries as to the truth or otherwise of the words complained of, and, forreasons which I will expand on later, this failure to verify the accuracy ofthe defamatory material together with other considerationsestablishes maliceon the part of the defendants.

258. Evidence of the defendant's conduct on other occasions may also beused to infer that the material was published for some impropermotive(Horrocks v Lowe (supra) at page 151). This is of particularsignificance in assessing the conduct of the first defendant. From the initialpublicationhis actions were reckless without any enquiry as to the accuracy orotherwise of the published material. His failure to take anypositive steps tostop the FTT pamphlet from being distributed or in any way concern himself witha retraction notwithstanding repeatedrequests from the Electoral Commissionerto do so, and his subsequent actions in preparing and distributing the electionmorningpamphlet, establishes, in my view, his malicious conduct.

259. In summary, the plaintiff submitted, and I have accepted, that theconduct of the first defendant was tantamount to using any areaof apparentcriticism of the plaintiff to injure his reputation and cause him to loseoffice. This purpose is not a proper motive.Furthermore, I am also of the viewthat the fourth defendant's actions in the distribution of the PSBL pamphlet onthe day of theelection was motivated by actual malice. The actions of thefourth defendant were not as recklessly blatant as that of the firstdefendant's. However, it is my opinion that he was so imbued with the purportedideal of public ownership of the administration ofthe Modbury Hospital thatthere was a complete failure on his part to enquire into any relevant factualissues with the result thathis reasoning on various topics was patentlyflawed. Again, his dominant motive was to injure the plaintiff's reputation andremovehim from office and, as such, it was an improper motive. I view hisconduct as malicious.

260. In my opinion, therefore, malice is established by the plaintiffand the defence of qualified privilege must fail in relation toall threepublications.

EXTENDED FORM OF QUALIFIED PRIVILEGE

261. The defendants, as I infer, have also pleaded in the alternativethe extended form of qualified privilege concerning the discussionofgovernment and political matters as established by the High Court inLange vABC (supra). In that case, the court reviewed the nature of the defence ofqualified privilege and confirmed the availability of an expandedform ofcommon law duty-interest qualified privilege where a publisher has publisheddefamatory material concerning government andpolitical matters to the publicat large.

262. To take advantage of this expanded form of qualified privilege,the defendants must show that the communications complained of werein relationto government and political matters. The meaning of "government and politicalmatters" was interpreted broadly by theHigh Court inLange v ABC(supra). It was specifically said, at 115, that a narrow view should not betaken of the matters about which the general public hasan interest inreceiving information. These may include the reception of information onmatters relevant to the exercise, or failureto exercise, of public functionsand powers vested in public representatives and officials at any particularlevel of governmentor administration, and in any part of the country. In myview, the three publications in the present case contain sufficient referencesto political matters for this expanded form of qualified privilege to come intoplay.

263. This new expanded qualified privilege differs, in certain aspects,from the duty-interest qualified privilege which I have previouslydiscussed.For instance, although this extended form of qualified privilege may still bedefeated if the plaintiff can establishthat the publication was actuated bymalice, the test is narrower in that malice cannot be established by showingthat the defendantsdid not have a belief in the truth of what was published,and secondly, the motive of causing political damage is not enough to establishimproper motive for the purposes of the extended form of qualified privilege(Lange v ABC (supra) at 117 and 118).

264. The most important difference, however, is the requirement thatthe defendant publisher, if it is to rely on this extended form ofqualifiedprivilege, prove that the publication of the material complained of was"reasonable" in all the circumstances. This reasonfor the importation ofreasonableness as an element of the defence is that damage that can be done toa person's reputation by publicationto thousands of recipients is much greaterthan the damage done by publication to only a few (at 116).

265. The court inLange v ABC (supra) at 118 held that whetherthe making of a publication was reasonable depended on all the circumstances ofthe case, but asa general rule:

"... a defendant's conduct in publishing material giving rise to adefamatory imputation will not be reasonable unless the defendanthadreasonable grounds for believing that the imputation was true, took propersteps, so far as they were reasonably open, to verifythe accuracy of thematerial and did not believe the imputation to be untrue... [and] sought aresponse from the person defamed andpublished the response made (if any)except in cases where the seeking or publication of a response was notpracticable or it wasunnecessary to give the plaintiff an opportunity torespond."

266. The question thus arises, were the defendants' actions reasonablein the case at hand?

267. Here, as I have said, at no stage did either defendant take anysteps to check the accuracy of the impugned material. Furthermore,there is noevidence that the defendants inquired of the plaintiff as to the truth orotherwise of the words complained of, nor didthey give the plaintiff anopportunity to answer the allegations.

268. I am also unable to see why the defendants should have reasonablegrounds for believing the imputations to have been made to be true.What ismore, I find that the defendants did not believe the imputations to be untrue.The nature of their conduct shows, in my opinion,that they could not havebelieved the imputations to be true. This is particularly so in the case of thefirst defendant. After thepublication of the Nauru postcard, the firstdefendant became aware of the plaintiff's contentions about it. However,despite thatobjection, he proceeded to prepare with substantial assistance,and caused to be published, the FTT pamphlet containing a mock-upor forgeddocument without any enquiry as to its accuracy. Then, in spite of theElectoral Commissioner's directives to withdrawfrom distribution the saidpublication and to issue a retraction, which he did not in any way undertake,he proceeded to prepare,have printed, and arranged for the distribution of theelection day pamphlet.

269. In my view, the first the first defendant could not possibly havebelieved the imputations to be true.

270. With regards to the fourth defendant, I am also of the same view.Mr Case's whole rationale of his actions and view of the conductof theplaintiff was totally flawed and governed mainly by the aim of "targeting" theplaintiff. He made no enquiries but proceededto hand out the PSBL pamphlet notcaring whether the stated matters were true or false.

271. In conclusion, neither defendants' actions were reasonable in thecircumstances, and hence the expanded defence of qualified privilegealsofails.

POLLY PECK PRINCIPLE

272. Lastly, both defendants raised the so-called "Polly Peck" defence,pleading, in effect, that the words which the plaintiff complainsof bear adifferent meaning or imputation from that contended by the plaintiff. Thealternative meanings on which they rely are setout in paragraphs 10, 17 and 22of the first defendant's amended defence, and in paragraph 9 of the fourthdefendant's defence. Asa general thrust, the defendants pleaded that thepublications complained of consisted of statements of fact which were true insubstanceand in fact.

273. The Polly Peck principle is derived from the decision of O'ConnorLJ inPollyPeck (Holdings) Plc v Trelford[1986] 1 QB 1000,where his Lordship at 1032 held that:

"Where a publication contains two or more separate and distinctdefamatory statements, the plaintiff is entitled to select one forcomplaint,and the defendant is not entitled to assert the truth of the others by way ofjustification. Whether a defamatory statementis separate and distinct from other defamatorystatements contained in the publication is a question of fact and degree ineach case.The several defamatory allegations in their extent may have a commonsting, in which event they are not to be regarded as separateand distinctallegations. The defendant is entitled to justify the sting ...."

274. Thus under this principle, if the innuendos complained of consistof a separate and distinct charge, a defendant cannot justify byproving thetruth of some other charge not sued upon. But, if the defendant can establishthat several defamatory statements containedin the publication have a "commonsting" to them and that common sting is true, then the defence of truthsucceeds despite the factthat the truth of the specific allegation of whichthe plaintiff complained cannot be proved (seeGillooly (supra) at 109).

275. The decision inPolly Peck (Holdings) Plc v Trelford(supra) has been approved and applied by various courts in Australia (seefor example Jakudo v SA Telecasters (unreported) SC (SA), FC, 15 October1997;Kennett v Farmer[1988] VicRp 90;[1988] VR 991; andGumina v Williams (No2)(1990) 3 WAR 351). However, there is still considerable doubt as to theright of the defendant to propose a meaning different from that contended bythe plaintiff and then to attempt to justify that meaning. Indeed, inChakravarti v Advertiser Newspapers (1998) 193 CLR 519, Brennan CJ andMcHugh J expressed grave misgivings about this principle. After outliningO'Connor's LJ decisioninPolly Peck (Holdings) Plc v Trelford (supra),their Honours said at 527-528:

"With great respects to his Lordship, such an approach is contrary tothe basic rule of common law pleadings and in many contextswill raise issueswhich can only embarrass the fair trial of the action. Leaving aside technicalpleas such as pleas in abatement,defences are either by way of denial orconfession and avoidance. A defence which alleges a different meaning from thatof the plaintiffis in the old pleading terminology an argumentative plea ofnot guilty. Under the principles of pleadings at common law, it couldtender noissue and would be struck out as embarrassing. Under the modern system,articulating an alternative meaning could conceivablymake explicit the groundfor denying a pleaded imputation. But it would be only in such a case that adefendant's plea of a new defamatorymeaning might be supportable as a pleawhich prevents the plaintiff being taken by surprise. A plea of justification,fair commentor qualified privilege in respect of an imputation not pleadeddoes not plead a good defence. It is immaterial that the defendantcan justifyor otherwise defend the meaning which it attributes to the publication. In ourview, thePolly Peck defence or practice contravenes the fundamentalprinciples of common law pleadings. In general it raises a false issue whichcanonly embarrass the fair trial of actions."

(see also the various authorities cited by their Honours inChakravarti v Advertiser Newspapers (supra) at 528-531, and the decisionof Crisp J inSteiner Wilson & Anor v Amalgamated Television ServicesPty Ltd (unreported,[1999] ACTSC 123, 18 October 1999).

276. I accept the views expressed by Brennan CJ and McHugh J. It cannotbe said to be of sound principle to permit a defendant to pleadthe truth of analternative meaning not relied upon by the plaintiff in order to defeat theplaintiff's claim.

277. In view of the conclusion to which I have come in relation to thisdefence, it is unnecessary to apply its principles here, and Ithereforedismiss the defendants' submissions on this point.

DAMAGES

278. The plaintiff has sought awards of general damages against bothdefendants, and, as against the fourth defendant, aggravated andexemplarydamages in relation to the FTT pamphlet.

279. The basis for general damages is to compensate for the injury ordamage to the plaintiff's feelings and reputation. InCarson v John Fairfax& Sons Ltd[1993] HCA 31;(1993) 178 CLR 44 at 60-61 it was said that:

"Specific economic loss and exemplary or punitive damages aside, thereare three purposes to be served by damages awarded for defamation.The threepurposes no doubt overlap considerably in reality and ensure that "the amountof a verdict is the product of a mixtureof inextricable considerations". Thethree purposes are consolation for the personal distress and hurt caused to theappellant bythe publication, reparation for the harm done to the appellant'spersonal and (if relevant) business reputation and vindication totheappellant's reputation. The first two purposes are frequently consideredtogether and constitute consolation for the wrong doneto the appellant.Vindication looks to the attitude of others to the appellant: the sum awardedmust be at least the minimum necessaryto signal to the public the vindicationof the appellant's reputation. "The gravity of the libel, the social standingof the partiesand the availability of alternative remedies: are all relevantto assessing the quantum of damages necessary to vindicate theappellant."

280. I accept that all three publications were defamatory and hurtfulto the plaintiff. The Nauru postcard had implied that the plaintiff,amongstother things, had deliberately neglected his duties to embark on a holiday atthe taxpayers' expense. Both the FTT and PSBLpamphlets had implied that hemisused public funds for his own use. The PSBL pamphlet went even further,suggesting that the plaintiffhad deliberately refrained from properly carryingout his duties. The publications reflected poorly on the plaintiff's integrityand would have resulted in the diminution in the esteem in which others wouldhold him.

Damages as between the Defendants

281. At common law, liability for defamation is imposed on all personsinvolved in the publication or distribution of defamatory matter,and where anumber of persons independently of each other publish separate defamatorystatements, each tortfeasor is liable for thedamage caused by his or her ownpublication (Dingle v Associated Newspapers[1964] AC 371 at 410-1). Thefirst defendant was the author and caused the distribution of all threepublications. The role of Mr Case, the fourthdefendant, was minimal. Hemanned one polling booth for approximately two hours on the morning of theelection and handed out thePSBL pamphlet. And in doing so, he had, in effect,republished the defamatory statements to others, and is thus liable andanswerablefor that repetition.

282. I make the following awards of general damages against the firstdefendant:

283. And against the fourth defendant:

284. I note that there are no contribution notices as between thedefendants.

Aggravated Damages

285. The plaintiff has also sought aggravated damages against the firstdefendant in relation to the FTT pamphlet.

286. Aggravated damages may be awarded to compensate the plaintiff ifthe circumstances of the publication of the material, or the defendant'sconduct then or later, make the injury to the plaintiff worse. An award ofaggravated damages, however, is awarded only where thedefendant actedimproperly, unjustifiably and without bona fides (Triggell v Pheeney[1951] HCA 23;(1951) 82 CLR 497).

287. It has been held elsewhere that factors such as the failure toinvestigate allegations before publishing them (see for exampleAndrews vJohn Fairfax & Sons Ltd[1980] 2 NSWLR 225 at 244 and 250), or thefailure to make an adequate apology or retraction may aggravate damages if sucha failure increases the harmto the plaintiff and is unjustifiable (seeMirrors Newspapers v Jools (1986) 65 ALR at 177-8). I find that thefirst defendant did neither of these things. His failure to investigate beforepublishingthe document has already been dealt with earlier and I need notreiterate it here. His failure to issue a retraction and to withdrawfromdistribution the document after having been specifically made aware that theplaintiff was not a member of the Frequent FlyerClub seems, to me, to indicatethat he acted improperly and unjustifiably. I give his explanations as to whyhe was unable to issuea retraction in the time frame set by the ElectoralCommissioner and his explanations as to why he could not prevent any furtherdistribution of the pamphlet little weight and consider them to beself-serving. At trial, Mr Roberts finally offered an apology,but it wasonly after great reluctance on his part. Even then, his apology does not seemto be a complete apology (at 343, lines219-223).

288. I accept that the publication caused anguish and hurt to theplaintiff, and I have little hesitation in concluding that the firstdefendant's conduct is sufficient to warrant an award of aggravated damages. Asaggravated damages do not constitute a distinct categoryof damages under whicha separate sum of money is awarded, my assessment of such an award is reflectedin the overall award for compensatorydamages.

Exemplary Damages

289. I now turn to the determination of the plaintiff's claim forexemplary damages against the first defendant.

290. The distinction between aggravated and exemplary damages was madeclear by Windeyer J inUren v John Fairfax & Sons[1966] HCA 40;(1966) 117 CLR 118at 149 as thus:

".... aggravated damages are given to compensate the plaintiff when theharm done to him by a wrongful act was aggravated by themanner in which theact was done: exemplary damages, on the other hand, are intended to punish thedefendant, and presumably to serveone or more of the objects of punishment -moral retribution or deterrence."

291. Recently, the question of exemplary damages was considered in thedecision ofBob Gilbert Motors Pty Ltd v SA Telecasters[1999] SADC 38and again in the same matter on appeal ([1999] SASC 499, delivered on6 December 1999). From the above decisions, exemplary damagesare punitivein nature and apply only when the defendant's conduct is wanton or insolent ina manner exhibiting a complete disregardfor the plaintiff's rights.

292. In considering this aspect regard must be made to the adequacy ofthe compensatory damages so as to avoid a doubling up of damages(seeBroomev Cassell[1972] UKHL 3;(1972) AC 1027). The principles laid down in the authoritiesmakes it clear that before coming to a final conclusion the following questionmust beasked, are the compensatory damages sufficient to punish the plaintiffand to deter that person and others from similar conduct?It is only when theanswer is "no" is it then necessary to consider "such additional sum as would,when added to compensatory damages,amount to an appropriate penalty for thedefendant's improper conduct" (Broome v Cassell (supra) at 1121-2).

293. Again, I have little trouble in accepting that adequate groundsfor the award of exemplary damages have been demonstrated. At therisk of beingrepetitive, Mr Roberts, in spite of his knowledge that certain statements inthe FTT pamphlet were untrue, and notwithstandingrepeated directives from theElectoral Commissioner to issue a retraction and to withdraw from distributionthe said publication,was content to do very little to rectify the situation.What is more, he then subsequently authorised the printing and distributionofthe PSBL pamphlet knowing certain statements contained therein to be false. AsI have said earlier, this suggests that Mr Robertshad deliberately setout to defame the plaintiff and to cause his political downfall. His actionsclearly demonstrated he had littleconcern for the rights of theplaintiff.

294. Having regard to the overall award of compensatory damages, I amof the view that an additional award of exemplary damages is warrantedhere.Conduct such as Mr Robert's must be discouraged. I therefore award theplaintiff an award of $5,000 by way of exemplary damagesagainst the firstdefendant.

Interest

295. The plaintiff is entitled to interest at the rate of 4% on theawards of damages, and I consider a two year period appropriate.

Summary

296. There will judgment for the plaintiff in the sum of $70,200,apportioned in the following way:

297. As against the first defendant, Mr Roberts:

298. As against the fourth defendant, Mr Case:

299. I will hear the parties on the question of costs.