Last Updated: 19 September 2000
Judgment of the Full Court
Appellant KENNETH ALLAN CASE:
Counsel: MR P HEYWOOD-SMITH - Solicitors: DAVID WILSON
Respondent RODNEY PIERS BASS:
Counsel: MR D TRIM QC - Solicitors: LEMPRIERE ABBOTT MCLEOD
SCGRG-00-325
Judgment No.[2000] SASC 297
8 September 2000
On Appeal from DISTRICT COURT (JUDGE LOWRIE)
(Full Court: Prior, Williams and Martin JJ)
Full Court: Prior, Williams and Martin JJ
1PRIOR J: I agree that these appeals should be dismissed and thecross appeal allowed but only with respect to the amount of damages awardedagainst Roberts.
2The published material was defamatory of the plaintiff having the defamatorymeanings contended for and found made out at the trial. The defences ofqualified privilege failed. It is plain from the findings made by the trialjudge that neither appellant had anhonest belief in the truth of what waspublished. Case was properly found to be recklessly indifferent to the truthor falsity ofthe material he published. Roberts was properly identified as aperson with an improper motive and no honest belief in the truthof what hepublished.[1]
3As for the question of damages. I agree that the awards made by the trialjudge against Roberts are manifestly inadequate. Iagree with the award of$20000 in respect of the postcard, $35000 in respect of the pamphlet and $45000in respect of the How ToVote card. The circumstances surrounding eachpublication by Roberts are factors properly going to the proper quantificationofdamages. In each case the timing and manner of publication is relevant.The submission that Roberts sought to cause maximum damageto the respondent iswell made out and relevant to each assessment against him.
4The increase in the award for the first occasion is warranted in light of thegood reputation the respondent enjoyed and the trialjudge's findings withrespect to that. The differences in the amounts awarded should be understoodas reflecting the degree of aggravationresulting from the persistence in acourse of conduct notwithstanding intervention by the Electoral Commissionerand the findingof the trial judge that this appellant had no care or concernwhether the matters he alleged were true or false so long as his soleaim ofremoving the respondent from office was achieved. (Judgment pars 196 and 197)The failure to retract statements known tobe false and the impact of thepublications are also significant factors going to the issue of aggravateddamages.[2] The increase in the damages awardedagainst Roberts gives proper recognition to the gravity of the libels and theother purposesto be served by the award of damages for defamation, consolationand vindication.[3]
Not without some hesitation, I agree with Williams J that an award of exemplarydamages is inappropriate for the reasons he gives. I agree that as againstCase the award of damages has not been shown to be manifestly inadequate giventhe circumstances provedwith respect to the publication by him of the materialprepared by Roberts.
5WILLIAMS J.The defendants Roberts and Case have appealed against thejudgment of a District Court Judge given on 24 March 2000 upon claimsfordefamation. The Trial Judge found each of these defendants separately liablefor the publication of defamatory statements aboutthe plaintiff. The TrialJudge awarded the plaintiff $64800 (including $5000 exemplary damages and $4800interest) against Robertsand $5400 (including $400 interest) against Case.The defendants now appeal against liability. The plaintiff has cross-appealedcomplaining that the damages are inadequate.
6The topics argued upon appeal may be subsumed under four broad headings:
1.The right claimed by the defendants to rely upon the authority of theprinciple inPoly Peck (Holdings) Plc v Trelford[1986] 1 QB 1000 toassert and then justify meanings for the publications which are different fromthose pleaded by the plaintiff and as an answerin law to the plaintiff'scase.
2.The natural and ordinary meaning attaching to the words of which theplaintiff complains.
3.The significance of a finding by the Trial Judge as to the absence of honestbelief on the part of the defendants as to the truthof the publications.
4.The adequacy of the damages.
7The plaintiff is the former Member for Florey in the South Australian Houseof Assembly. He was elected in 1993, but was an unsuccessfulcandidate at theState General Election held on Saturday 11 October 1997. He served as ActingSpeaker during his Parliamentary term. Upon the findings of the Trial Judge MrBass is a man of utmost integrity. He had a successful and distinguishedcareer for 33years in the South Australian Police Force and served for aperiod as Secretary of the Police Association. He demonstrated a highstandardof ethics in the discharge of his Parliamentary duties and otherwise. Hecarried out his responsibilities as a Member ofParliament in an exemplary wayand was hard working in meeting the demands of his constituents. Upon thefindings of the Trial Judge,there was no basis whatsoever for the attacks madeupon his reputation by the defendants.
8Ms Frances Bedford was elected as the Member for Florey in the 1997 generalelection. The defendant Roberts had known her forsome years before this anddecided to assist her candidature. Roberts claimed in evidence to have becomedisenchanted with the plaintiff. Case was a member of a group calling itselfthe Modbury Hospital Local Action Group which was opposed to the StateGovernment'spolicy involving the privatisation of the Hospital administration.The Hospital is within the Florey electoral district.
9Roberts was responsible for producing three documents which reflected uponthe plaintiff. The first document was in the form ofa postcard, the seconddocument was a four page pamphlet and the third document was a "How to Vote"card. Roberts was responsiblefor distributing copies of the postcard to eachof about 12000 households in the electorate in about late July 1997; heemployeda professional delivery service. He was responsible for similarlydistributing the pamphlet in the week preceding the election. Prior to pollingday he also was responsible for printing and publishing the How to Vote card.There were approximately 12500 copiesof this lastmentioned document produced.A more complete description of these documents is as follows:
(1)The Postcard
This card shows on its face (printed in colour) a picture of a Nauru Hotel andcarries the endorsement "Greeting from Nauru".
The reverse side of the card reads:
"Dear Taxpayer,
This is the postcard your politician Sam Bass should have sent you from thePacific island paradise where he is enjoying a winterbreak at your expense.
Geoff Roberts
Clean Government
Coalition
P.S. When you vote, put Sam Bass last."
The postcard is addressed, "To All Taxpayers Seat of Florey Adelaide SA" and inthe customary place for a postage stamp displaysa rectangle endorsed "DeliveryPaid by You". It carries the endorsement "Authorised by Geoff Roberts, 22Noritake Road, ModburyHeights 5092 Printed by DJ Print, 7/42 Davies St.,Willaston 5118"
(2)The Pamphlet
This pamphlet (printed in three colours - red, black and white) comprises fourpages headed "Free Travel Times". The front pagealso shows a cartoon of theplaintiff relaxingon his back at a Nauru resort and carries anendorsement "Parliamentary Traveller of the Year". It says that Sam Bass,Member for Florey [is]"Flat out working for you".
The second page shows a copy of a purported activity statement of account of"Mr Sam Bass Parliament House Adelaide" (as a memberof "Frequent Flyer") onthe supposed letterhead of Ansett Australia; the statement dated 28 September1996 (and with some detailsobscured) is a forgery. It is overprinted with abanner "Bring the Frequent Flyer back to Earth!"
The third page is headed, "How Sam Bass travelled the world and how taxpayerspicked up the tab". It then says, "When you are aMember of Parliament you geta lot of privileges. No one knows this better than SAM BASS who has visitedplaces around the worldfor free. The list below is only a sample of histravels". It has another heading "The remarkable free travels of Sam Bass" andsays that "The list below is only a sample of his travels". There follows thedetails of Mr Bass' itinerary for two overseas visits. It is also endorsed:
"Of course, the number of Frequent Flyer points ticked up on these free tripsused for other travel for himself or his family isnot on the publicrecord."
The fourth page shows a collage of supposed newspaper headlines. Forexample:
"Bring the Frequent Flyer Back to Earth!"
Winter's here, they're off.
MPs pack their bags for trips to a warmer climate, at our expense
MPs fly north to beat the chill.
MP drop(s) children's ski trip travel claim
Study tours take jetset MPS to top spots.
The bills MPs are refusing to pay.
Backlash for 'Italy deal' MP
Minister pays back tenors ticket...
Who went where.
This page again carries the banner "Bring the Frequent Flyer Back to Earth!"and "On Saturday put Sam Bass LAST."
(The newspaper headlines carry in some cases, reference to the date ofnewspaper publication). At the foot of the fourth page isthe endorsement"Authorised by Geoff Roberts, 22 Noritake Rd, Modbury Heights 5092
Printed by DJ Print, 7/42 Davies St, Willaston 5118".
(3)The How to Vote Card
This document upon its face reads as follows:
"3 things Sam Basshas done as Member for Florey:
1.Had numerous junkets at your expense including trips to the United Kingdomand Nauru
2.Stood by and did nothing to stop "secret deals" at the Modbury Hospital
3.In spite of the Port Arthur Massacre: he put gun rights ahead of yourfamily's safety
He's part of the problem, not the solution
When you vote,
PUT SAM BASS LAST
The reverse side of the document reads:
"3 things Sam Bass will do if you vote him back in:
1.Qualify to spend another $32,000 of taxpayers' money on overseas travel
2.Get $154,000 per year and a big white car if he is elected Speaker
3.And if he does become Speaker spend even less time in the electorate
Why reward someone who takes advantage of the system?
When you vote,
PUT SAM BASS LAST.
Printed and authorised by G Roberts 22 Noritake Road Modbury Heights 5092."
The How to Vote card was distributed at a polling booth on polling day by MrCase for about two hours.
The Appellants' Reliance upon the "Polly Peck principle"
10Counsel for the defendants assert that the natural and ordinary meaning tobe given to these three documents respectively is asfollows:
1Nauru postcard:
"The Plaintiff is off on a junket to a Pacific island. It's all very well.We need our MP here. Don't vote for him."
2 The Pamphlet:
"The Plaintiff has availed himself of the perks of office. In doing so he hasno doubt enjoyed himself. In doing so he has nodoubt inter alia accumulatedfrequent flyer points. He's just another MP taking advantage of the perks ofoffice. Don't vote forhim. We want someone who's a cut above that."
3The How to Vote Card:
"The Plaintiff has had junkets as an MP. The Plaintiff has supported theparty line on Modbury Hospital and done nothing to preventa secret deal withthe company who has contracted to run it. The Plaintiff opposed the gunlegislation. If the Plaintiff is re-electedthere will be more of the same.Don't vote for him."
11Mr Roberts relies upon these meanings in respect of the postcard andpamphlet; both defendants rely upon the meaning put forwardwith respect to theHow to Vote card. Those meanings are different from those advanced by theplaintiff. In denying the meaningspleaded by the plaintiff and assertingthese alternative meanings, (which the defendants claim to be justified by thefacts) thedefendants rely upon the principle inPolly Peck (Holdings) PLCand Ors v Trelford and Ors[1986] 1 QB 1000. In that case it wasrecognised that a defendant in some circumstances might justify the sting of alibel by reference in its contextto a meaning different from that pleaded bythe plaintiff but which the defendant alleges to be the natural and ordinarymeaning(see O'Connor LJ at 1023 and 1032).
12InWoodger v Federal Capital Press(1992) 107 ACTR 1 at 23-24 MilesCJ identified and restated two principles to be found inPolly Peck.According to His Honour,
the first principle is:
"Where the plaintiff alleges several distinct defamatory meanings but there isarguably a "common sting" to them upon which the plaintiffdoes not expresslyrely, then the defendant may seek to justify the common sting and the plaintiffis not entitled to restrict thedefendant to seeking to justify the severalmeanings selected by the plaintiff."
And the second principle is:
"Where the plaintiff alleges a defamatory meaning or several distinctdefamatory meanings but the defendant denies the meaning ormeanings alleged bythe plaintiff and asserts an arguable claim that in the context of the wholepublication a different defamatorymeaning or several different defamatorymeanings from that or those alleged by the plaintiff arise, the defendant mayseek to justifythat different defamatory meaning or meanings and again theplaintiff is not entitled to restrict the defendant to seeking to justifythemeaning or meanings selected by the plaintiff."
13The appellant now complains that the Trial Judge refused to recognise orapply the principles to be found inPolly Peck. I note that in hisreasons the Trial Judge quoted the so called first principle, whereas uponappeal I understood counsel to berelying on the second principle.
14In my opinion the present case is not one to which such principles have anyapplication.
15In cases where the plaintiff in the statement of claim has chosen to ignorepart of the publication so as to alter its true meaning,the defendant isallowed to rely upon the totality of the publication to identify the naturaland ordinary meaning. It may be debatablein such circumstances as to whatextent literal error in a publication may be overlooked, and whether the matterof the plaintiff'scomplaint can be fairly severed from other parts of thepublication. (seePolly Peckat 1032 and Khashoggi vIPMagazines Ltd & Anor[1986] 1 WLR 1412).
16A defendant is, of course, entitled to join issue with the plaintiff as tothe meaning pleaded by the plaintiff. This may involvethe defendant inseeking as a consequence, to justify some alternative meaning which itself maybe defamatory. However, a plea ofjustification with respect to an imputationnot raised by the statement of claim, is not in itself a good defence to theclaim. How the defendant should plead an alternative meaning and thejustification thereof is a matter of some controversy. The differingpoints ofview as to practice is to be found inChakravarti v AdvertiserNewspapers ([998] 193 CLR 519 at 527 (per Brennan CJ and McHugh J) and at543 (per Gaudron and Gummow JJ). The point is not relevant to thepresentappeal.
17For present purposes, the general principle is as stated by Bray CJ inPotts v Moran(1976) 16 SASR 284 at 305-6.
"It is clear law that for a plea of justification to be a complete defence toan action for defamation every defamatory allegationmust be justified.
"When an action is brought for a libel, to make a good plea to the wholecharge, the defendant must justify everything that thelibel contains which isinjurious to the plaintiff. If the libel charges the commission of severalcrimes, or the commission ofa crime in a particular manner, the plea mustjustify the charge as to the number of crimes or the manner of committing thecrime. If the crime is charged with circumstances of aggravation,...the pleais clearly bad if it omit to justify that."
(Helsham v Blackwood[1851] EngR 604;(1851) 138 ER 412 at 419 per Massle J).
There are two ways, however, in which what has been called "the sting of thelibel" can be justified so as to be a complete answer. One is where all thedefamatory allegations of fact are proved to be true and all that remains aregeneral rhetorical expressionsof disapproval or denunciation which do notcontain in themselves any additional allegations of fact. So inMorrison vHarmer, where the defendant had referred to the wholesale system ofpoisoning pursued by certain sellers of medicines and had describedthem asscamps and rascals, it was held that by proving that the plaintiff's medicineshad indeed killed two people, as a resultof which they had been convicted ofmanslaughter, the defendants had justified the libel and that they did not haveto prove morespecifically that the plaintiffs were scamps or rascals. It wassaid by Tindal CJ that:
"If these terms of invective and reproach contain any ground of charge orimputation against the Plaintiffs, substantially distinctin its nature orcharacter, from that which forms the main charge, or gist, of the libel, andthe truth of which has been justifiedby the plea, the consequence abovecontended for on the part of the Plaintiffs [that the plea was bad] wouldjustly follow; - forthe plea, upon that supposition, would not contain ananswer to so much of the declaration, as by the commencement of the plea itexpressly undertakes to justify."
The second is that slight inaccuracies of detail which do not affect thesubstance of the charge will not prevent the success ofthe plea. Thus it washeld a sufficient answer to a charge of libel in stating that the plaintiff hadbeen convicted of riding ina train without an appropriate ticket and fined£1 or three weeks' imprisonment in default to prove that he had been sofined£1 but only sentenced to fourteen days imprisonment in default;Alexander v North Eastern Railway Co. ((1865)[1865] EngR 378;122 ER 1221)".
18Bass has relied upon the whole of the relevant publications, (without a bluepencil), and there is no literal error identifiedin the publications which thedefendants might seek to treat as immaterial to the real sting. The plaintiffputs forward a meaningfor each of the publications and alleges that eachdocument contains very damaging incorrect statements of fact concerning theplaintiff. The defendants join issue thereon. If the natural and ordinarymeaning of the words used in each case is established to be thatrelied upon bythe plaintiff, then any defence of justification must deal with that meaningand not with some other meaning whichthe defendants might put forward. Itbecomes irrelevant to consider other possible imputations and the possiblejustification fora sting not pleaded by the plaintiff.
19In the circumstances of this case, the defendants raise a false issue inseeking to rely uponPolly Peck when the dispute is simply whether ornot the meaning alleged by the plaintiff is the natural and ordinary meaning.A defendant cannotalter the issue by proposing meanings which differ fromthose relied upon by the plaintiff.
20The first issue in this case as applied to each publication is whether anelector of Florey, as a "reasonable reader" or "rightthinking member ofsociety", would understand the publication in the way suggested by theplaintiff. The defendants assert thatwhen the rhetoric is cleared away, themeaning in each case is that which I have recited and they seek to justify thatalternativemeaning by reference to some limited facts. The defendants cannotobscure the issue in this way. The question at trial was whetherthe publishedwords have the defamatory meaning which the plaintiff seeks to attribute tothem; if so, the defence of qualified privilegestood to be examined inrelation to that meaning, and not some other meaning put forward on behalf ofthe defendants. The availabilityof qualified privilege as a defence isdependent upon the further issue as to the state of mind of each of thedefendants and whethermalice in the legal sense had been proved against eitherof them.
The Meaning of the Publications
21The Trial Judge decided that all three publications reflected adversely uponthe plaintiff. The Nauru postcard portrayed theplaintiff as an elected memberwho misused public monies for his own personal benefit and to the detriment ofhis constituents. The postcard implied that Bass was in Nauru to holidayrather than carry out his Parliamentary duties. (The choice of the expression"enjoying a winter break" as used in the postcard seems to me to besignificant). The four page pamphlet (by its words and supportedby thecartoon) painted the plaintiff as a person who misused his position as a Memberof Parliament in relation to travel and inregard to the discharge of hiselected duties; he improperly used his access to frequent flyer membership forthe benefit of himselfand his family and in a way which was not on the publicrecord. By association he was suggested to be one of a group who blatantlymisused their Parliamentary allowances.
22As regards the How to Vote Card, the Trial Judge adopted the meaning aspleaded by the plaintiff:
"(a)That the plaintiff had spent $32,0000.00 of taxpayers' money on overseastravel.
(b)That the plaintiff had spent $32,000.00 of taxpayers' money for overseastravel for the purpose of his own enjoyment and not
for the proper purpose of such travel, namely to enhance the plaintiff'sknowledge of issues relevant to the better performance ofhis role as a memberof Parliament.
(c)That the plaintiff had taken numerous overseas trips for his own benefitand enjoyment at the taxpayers' expense.
(d)That the plaintiff had taken numerous overseas trips for his own benefitand enjoyment and not for the intended purpose of suchtrips, namely to enablehim to better serve the interests of the Parliament of 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 clandestinearrangements being putin place in respect of the management of the Modbury Hospital, contrary to theinterests of the members ofthe electorate of Florey and the public of SouthAustralia generally.
(f)That the plaintiff had put the rights of those interested in the right topossess and utilise guns ahead of the safety of membersof ordinaryfamilies.
(g)That the plaintiff had not spent sufficient time in his electorate toproperly discharge his duties as the member of the seatof Florey.
(h)That the plaintiff was not spending sufficient time in the electorate ofFlorey to enable him to adequately fulfil his dutiesas the member forFlorey.
(i)That if the plaintiff was elected to the member of Florey and thensubsequently elected as Speaker of the House of Assembly thenhe would spendless time than the time that he was currently spending in the electorate."
23In my opinion, the natural and ordinary meaning of the publications in eachcase was correctly identified by the Trial Judge. The meaning put forward bycounsel for the defendants is watered down and overlooks the real sting of eachpublication. All threedocuments imply discreditable conduct on the part of MrBass in discharge of his Parliamentary responsibilities which would warranttheelectors of Florey putting "Sam Bass last" when voting. However, in fact,there was no evidence at trial of any occurrence tothe discredit of theplaintiff and, under cross-examination neither Roberts nor Case was able topoint to anything which arguablycould have provided a basis for their attacks.The Trial Judge found that the plaintiff discharged his Parliamentaryresponsibilitiesin an appropriate fashion and that there was no basis forcriticism for his use of Parliamentary travel arrangements or entitlements.His two overseas visits were properly authorised; the visit to Nauru was torepresent the Speaker at a meeting of Presiding LegislativeOfficers. Hisapproach to gun control legislation displayed a thorough and commendableapproach in an area in which he was knowledgeable. He set out to make thelegislation workable. With respect to the Modbury Hospital, the Trial Judgeoffered no criticism of themanner in which the plaintiff represented hisconstituents and dealt with their enquiries. It was inevitable upon this stateofthe evidence that the Trial Judge should find that there was not a factualbasis to support a defence of fair comment. The appellantsabandoned argumentwith respect to fair comment for the purposes of the appeal although the matterwas raised in the appeal notice.
The Defence of Qualified Privilege
24A defence of qualified privilege was raised in each case upon the basis thatthere was reciprocity of interest or duty as betweenthe defendants and theelectors of Florey as regards the dissemination and receipt of the publishedmaterial. (SeeAdam v Ward(1917) AC 309 at 334). Those defences mustnow be assessed in the light of the defendants' beliefs.
25Mr Bass made complaint to the State Electoral Officer as to the Four PagePamphlet; the Electoral Officer by letter to Robertsdated 3 October 1997required him to publish a retraction upon the ground that it was misleading.There was evidence that the distributioncontinued until 7 October 1997 and noattempt was made by Roberts to comply with the request which was made inaccordance with s113(4) of theElectoral Act 1985 (SA). The ElectoralOfficer's letter placed Roberts on notice of the true situation as to the factthat the plaintiff was nota member of a frequent flyer club. On 3 October1997, a letter from the plaintiff's solicitors was hand delivered to thedefendantdealing in detail with the imputations of the four page pamphlet anddrawing attention in some detail to their lack of truth. MrRoberts' solicitorresponded the same day with an intimation that steps would be taken to stopdistribution of the four page pamphlet. In fact nothing happened. By letterdated 3 October 1997 Roberts' solicitor also responded to the ElectoralCommissioner who seta timetable for the distribution of an appropriate form ofretraction which he settled in conjunction with Roberts' solicitor. Noretraction was published but excuses were offered. The Trial Judge consideredthat Roberts had made no real effort to publish aretraction. There wasargument upon the appeal as to what steps were open to Roberts in the timeavailable. Although I considerthat the conclusions of the Trial Judge werejustified by the evidence, Roberts' attempts in the witness box to explain awayhisconduct provides a valuable insight into his attitude and motivation.
26On the day of the election, the Electoral Commissioner again wrote toRoberts at short notice regarding the How to Vote Card inaccordance with theElectoral Act s 113(4).
27Roberts was subsequently dealt with in the Holden Hill Magistrates Courtupon complaint laid at the instigation of the ElectoralCommissioner in respectof two breaches of s 113(2) of theElectoral Act to which he pleadedguilty. The gravamen of the offence in each case was the authorisation ofpublication of an electoral advertisementcontaining inaccurate and misleadinginformation; the charges respectively related to the pamphlet and How to Votecard.
28The Trial Judge found that neither defendant believed that which hepublished to be true. His Honour further found that the defendantspublishedthe defamatory material without considering or caring whether it be true ornot. According to the Trial Judge, the defendantswere each motivated toremove Bass as a Member of Parliament using any available means to achieve thisend, and without "any concernfor the factual base". The Trial Judgeconsidered that although Case was not as reckless as Roberts, both men weremotivated toremove Bass from office without any concern for the truth so longas their aims were attained.
29The Trial Judge relied upon Lord Diplock's statements of principle inHorrocks v Lowe[1975] AC 135 at 149-151 to support his finding ofexpress malice.
30For the purposes of argument, counsel for the appellants relied upon anoutline of the facts which he supplied to the Court. That document is atvariance with the findings of the Trial Judge in that the outline seeks toattribute to the defendants honestbeliefs which the Trial Judge rejected whendiscussing his findings. The Trial Judge said:
"Counsel urged that I should accept the evidence of Mr Roberts as a base for afinding that he held an honest and genuine beliefof the matters of theplaintiff given that they might be founded on ignorance or prejudice. Counselfurther urged me to find thatMr Case also honestly held the opinions that heexpressed and referred me to the decisions ofPooley v Duncan(1978) 80LSJS 58-60 andWhitford v Clark(1934) SASR 134. Such cases areauthorities for the proposition that the widest possible latitude must be givenin interpreting political criticismas politicians' conduct must be open tosearching criticism and the freedom of criticism must be maintained as asecurity for theproper discharge of public duties."
and
"The defendants also pleaded that actual malice on the part of the defendantshad not been proved by the plaintiff, and urged a findingthat the defendants'evidence should be accepted as they honestly believed in the truth of theirstatements that negatived the allegationof malice."
31The Trial Judge found:
"...at no stage did either defendant take any steps to check the accuracy ofthe impugned material. Furthermore, there is no evidencethat the defendantsinquired of the plaintiff as to the truth or otherwise of the words complainedof, nor did they give the plaintiffan opportunity to answer theallegations.
I am also unable to see why the defendants should have reasonable grounds forbelieving the imputations to have been made to be true. What is more, I findthat the defendants did not believe the imputations to be [un]true sic. Thenature of their conduct shows,in my opinion, that they could not have believedthe imputations to be true. This is particularly so in the case of the firstdefendant[Roberts]. After the publication of the Nauru postcard, the firstdefendant became aware of the plaintiff's contentions about it. However,despite that objection, he proceeded to prepare with substantial assistance,and caused to be published, [the four pagepamphlet] containing a mock-up orforged document without any enquiry as to its accuracy. Then, in spite of theElectoral Commissioner'sdirectives to withdraw from distribution the saidpublication and to issue a retraction, which he did not in any way undertake,heproceeded to prepare, have printed, and arranged for the distribution of theelection day pamphlet. [The How to Vote Card].
In my view, the first defendant could not possibly have believed theimputations to be true.
With regards to the fourth defendant, I am also of the same view. Mr Case'swhole rationale of his actions and view of the conductof the plaintiff wastotally flawed and governed mainly by the aim of "targetting" the plaintiff.He made no enquiries but proceededto hand out the [How to Vote Card] notcaring whether the stated matters were true or false."
32These are strong findings; in my opinion they are adequately supported bythe evidence. Roberts was told that his allegationslacked foundation someeight days before polling day, but he persisted with the thrust of hisallegations of impropriety. Case acknowledgedthat the plaintiff had beenselected because he was a "soft target". He could not provide any basis for abelief in the allegations. I reject the submission made on the part of theappellants that they should be treated as having honest beliefs in the relevantrespect.
33In my opinion, a defence of qualified privilege is not available incircumstances where the plaintiff establishes that at thetime of the act ofpublication, the defendant did not have an honest belief in the truth of thepublished statement.
34The position is summarised by Hunt J inBarbaro v Amalgamated TelevisionServices(1985) 1 NSW LR 30 at 50-51:
"...A defence of qualified privilege will be defeated where the plaintiff isable to establish that, at the time of the publication,the defendant's stateof mind was not that which the law requires for a publication upon an occasionof qualified privilege. Thelaw requires that the defendant use the occasionfor the purpose for which the privilege is givenand that (other than inthe exceptional case where the defendant is under a duty to pass on, withoutendorsement, defamatory reports madeby some other person) he have an honestbelief in the truth of what he published. Where the defendant has establishedthat he publishedthe matter complained of upon an occasion of qualifiedprivilege, these two states of mind are presumed in his favour unless anduntilthe contrary is proved by the plaintiff. If the plaintiff showseitherthat the defendant has used the occasion to publish the matter complained offor a purpose other than that for which the privilegeis given (which isusually described as an indirect or an improper or a foreign motive )orthat the defendant did not have an honest belief in the truth of what hepublished, the defence of qualified privilege is defeated. Express malice isthe term of art which is used to describe what the plaintiff must prove todefeat the defence of qualified privilege. In some of the older authorities,an absence of honest belief on the part of the defendant is treated merely assome evidence ofan indirect motive which alone is said to constitute expressmalice, but the better view, in my opinion, is to treat the two as differentkinds of malice. A belief in the truth of what was published will not besufficient to save the defence of qualified privilege ifthe defendantnevertheless misused the occasion for a purpose other than that for which theprivilege is given - for example, ifhe has published the matter complained ofin order to injure the plaintiff or some other person, or to vent his spite orill-willtowards him, or to obtain some private advantage unconnected with theprivileged occasion upon which he made the publication. Thatis the way inwhich the law has been expressed by the House of Lords inHorrocks vLowe (at 149-151)..."
(Emphasis added).
35It was common ground between the parties that the publications took place onprivileged occasions, and that in the circumstancesmalice is not to bepresumed but is a matter required to be proved by the plaintiff.
36In the course of argument, Counsel for the appellants put an argument in thefollowing terms:
"People actually sit down, spin doctors, associated with political parties,they sit down at a round table and they plot to see howthey can defeat theiropponents. There is nothing wrong with that. That doesn't mean that there ismalice. That is how our systemof government works."
37That statement does not bring to account a requirement of honest belief asan essential element of the defence of qualified privilege. The defendantsargue that malice in the mind of a defendant is irrelevant unless it is provedto be the sole or dominant motivefor publishing the defamatory matter. Theyargue respectively that their dominant, (and perhaps only), motive was toassist in bringingabout the electoral defeat of the plaintiff.
38The Trial Judge reached the conclusion that the dominant purpose of eachdefendant "went far beyond the mere desire to foil theplaintiff's prospects ofre-election". His Honour concluded that their main intention was to injure theplaintiff by damaging hisreputation. The Trial Judge appears to haveconcluded that the defendants misused the privileged occasion for some improperpurpose.
39If the plaintiff has established an absence of honest belief then it becomesunnecessary to identify the dominant motive of adefendant. The presence ofimproper or foreign motive, (to use the language of Hunt J), will destroyprivilege, but so also willthe absence of honest belief by the defendant inthe truth of what he published.
40I reject the appellants' submission insofar as it would imply that in thepresent circumstances, a defence of qualified privilegecan be available in theabsence of the defendant's honest belief in the truth of the publishedstatement. The appellants rely uponpassages in Lord Diplock's speech inHorrocks v Loweto support their argument, but that argument does notbring to account Lord Diplock's over-riding requirement for the presence ofhonest belief as being an essential element in the defence. Lord Diplocksaid:
"...no sense of duty or desire to protect his own legitimate interests canjustify a man in telling deliberate and injurious falsehoodsabout another,save in the exceptional case where a person may be under a duty to pass on,without endorsing, defamatory reportsmade by some other person.
Apart from those exceptional cases, what is required on the part of the defamerto entitle him to the protection of the privilegeis positive belief in thetruth of what he published or, as it is generally though tautologously termed,"honest belief." If hepublishes untrue defamatory matter recklessly, withoutconsidering or caring whether it be true or not, he is in this, as in otherbranches of the law, treated as if he knew it to be false. But indifference tothe truth of what he publishes is not to be equatedwith carelessness,impulsiveness or irrationality in arriving at a positive belief that it is true"
(seeHorrocks v Lowe at 150).
41With respect to the question of liability, it becomes unnecessary for me topursue the question as to the dominant purpose ofeither defendant in view ofthe fact that neither had an honest belief in the truth of the informationwhich he was publishing. Nevertheless, as the Trial Judge's finding withrespect to motive or dominant purpose was challenged by the appellants, I willindicatemy views thereon.
42Upon the evidence I am unable to identify any improper purpose attaching tothe actions of either defendant and in this respectI would disagree with theconclusion of the Trial Judge. The typical case of dominant improper purposemight be one where the defendantunnecessarily uses a privileged occasionsimply to vent his spleen upon the plaintiff; see for example inAngel v HHBushell & Co Ltd[1968] 1 QB 813 (see especially at 831), where thedefendant sought to gratify feelings of animosity arising out of a failedbusiness transactionby reporting the facts to a business referee who hadpreviously recommended the plaintiff as trustworthy. Another example ofimpropermotive would be where the defendant is seeking to obtain some privateadvantage unconnected with the privilege (seeHorrocks v Lowe at150).
43The privilege for matter published in an election campaign is based upon aninterest or duty of informing the electorate of themerit (or lack of merit) ofa candidate and this privilege extends to statements made on behalf of othercandidates. In my viewthe facts are consistent with the defendants becomingover enthusiastic in the support of their electoral cause. They do not appearto have any special desire to hurt the plaintiff otherwise than in terms of hisprospects of re-election. The plaintiff bore theonus of proof on this matter.I would not uphold the Trial Judge's finding as to improper motive, althoughRoberts' intransigencewhen faced with the true facts is not to his credit.
44An appellate court must be cautious about overturning a finding of the kindnow in question which may be based in part on theTrial Judge's assessment ofthe witnesses. However, I can find nothing in the evidence which would lead meto the conclusion thatit is possible to identify a particular desire by eitherdefendant to injure the plaintiff, except with respect to his electoralprospects.
45The grounds of appeal raise questions as to the meaning of malice and itselements in relation to qualified privilege. In myopinion these matters arefully addressed in the exposition of Lord Diplock inHorrocks v Lowe.It is sufficient for present purposes to observe that good faith requires thatthose who publish allegations about a candidate inthe course of an electioncampaign, shouldat least have a positive belief in the truth of theirassertions, if they are to obtain the protection of qualified privilege. Eventhen,the privilege may be defeated if improper motive not related to theprivileged occasion, can be established.
46The Trial Judge considered the extension of the principles of qualifiedprivilege as dealt with by the High Court inLange v ABC[1997] HCA 25;(1997) 189 CLR520 at 573. That development of the law imports a test of reasonableness ofconduct as an element in providing a defence in the circumstancesthereaddressed, where common law privilege would be inapplicable. Upon hearing ofthe appeal, the Court was told by counsel forthe appellants that we need notbe concerned with this defence. (The Trial Judge decided that the defendantsdid not act reasonably).
47In my opinion the liability of each defendant has been established; theirappeals should be dismissed.
Damages
48The question of damages remains to be considered upon the cross appeal ofthe plaintiff who complains as to the inadequacy ofthe amounts awarded.
49So far as Mr Case was concerned, he distributed the How to Vote Card in alimited way for about two hours on the morning of pollingday at the St AgnesWest Primary School. As pleaded, his responsibility for publication on 11October 1997 is to be distinguishedfrom the publication effected by Roberts.This distinction was maintained at trial and in the approach of the TrialJudge. It hasnot been challenged on appeal. The evidence does not disclosehow many electors took a How to Vote Card from Case. The Trial Judgeawarded$5000 against him. In my opinion, it has not been demonstrated that thisassessment is a wholly erroneous estimate of thedamage suffered. It does notappear that the Trial Judge has misapprehended the facts, or brought to accountirrelevant factorsor applied a wrong principle of law. I would not interferewith the Trial Judge's award against Case.
50In the case of Mr Roberts I consider that the award of $55000 (includingaggravated damages), is wholly inadequate for compensatorydamages.
51Damages awarded for defamation in South Australia were for many years out ofkilter with awards in other parts of Australia. InChakravarti vAdvertiser Newspapers [1998] 193 CLR 519 Kirby J at 603 described as"parsimonious", the approach of this Court (which has subsequently reappraisedthegeneral level of damages for defamation). InChakravarti No. 2(1998) 72 SASR 361 at 375-378, Doyle CJ, (speaking for the Full Court), reachedthe conclusion that it would be appropriate to increase the level ofdamagesawarded in this State for defamation. I do not consider that the effect of theChief Justice's statement is sufficientlyreflected in the Trial Judge'sassessment of the compensatory damages flowing from Roberts' publications. Asagainst the defendantRoberts, the Trial Judge awarded $10,000 in respect ofthe postcard, $25,000 in respect of the pamphlet, and $20000 in respect oftheHow to Vote Card.
52In my opinion, the three publications for which Roberts was responsibleshould be viewed as part of one campaign in which eachpublication had its partto play in eroding the plaintiff's reputation within the electorate of Florey.He must have been very considerablydiscredited in the eyes of the electorateas a person worthy of representing it in Parliament; the smear which was castupon theplaintiff must have been very painful to one who had such an excellentrecord of service to the community.
53I find it difficult to differentiate between the three publications in termsof their effect which the Trial Judge summarisedas follows:
"The Nauru postcard had implied that the plaintiff, amongst other things, haddeliberately neglected his duties to embark on a holidayat the taxpayers'expense. Both the [Pamphlet] and [How to Vote Card] had implied that hemisused public funds for his own use. The [How to Vote Card] went evenfurther, suggesting that the plaintiff had deliberately refrained from properlycarrying out hisduties. The publications reflected poorly on the plaintiff'sintegrity and would have resulted in the diminution in the esteem inwhichothers would hold him."
54Although Roberts was placed on notice on Friday 3 October 1997 that hispublished assumptions were seriously in error, he wasrelentless in pursuit ofthe aim of unseating the plaintiff. There is a common theme running throughall three publications as tothe plaintiff's capacity to take improperadvantage of his position as the elected member. The publications respectivelywere timedto be published near the beginning, during, and then at the end ofthe campaign. To reflect upon the plaintiff, (albeit in a slightlydifferentway), may not have the same force when repeated as when first published. Onthe other hand, the successive publicationsmay have reinforced in the minds ofthe electors an impression of Mr Bass which was wrong. Each publication musthave provided electorswith food for thought and fuel for discussion. TreatingRoberts' actions as steps in the one campaign I am prepared to use the evidenceof Mr Roberts' intransigence in response to the Electoral Commissioner, and asdemonstrated in his oral evidence, as reflecting adverselyupon him at eachstage of the campaign. A case is made out for the award of aggravated damages.
55In my view, a proper award of damages against Roberts would be $20000 inrespect of the publication of the postcard, $35000 inrespect of the pamphlet,and $45000 in respect of the How to Vote Card. There is a degree ofartificiality in this exercise wherethe effect of the various statements mightbe regarded cumulatively. I have therefore looked at each publication standingaloneand also at the combined effect of Roberts' actions in publishing thethree documents. Whichever way the question is approached,I consider that$100,000 in total is a fair reflection of the damages which the plaintiffshould receive from Roberts. If any ofthe three individual amounts areconsidered to be too high, then it may be that the other elements of the awardshould be treatedas correspondingly too low. Arguably, the amount awarded inrespect of the postcard might be regarded as modest, but this dependsupon anassessment of the repetitive effect of the verbal punches which were thrown atthe plaintiff's reputation. The later blowsmay have been more effective byreason of the first. I am satisfied that there has not been any doublecounting in the approachwhich I have taken. However, it is also relevant tobring to account the aggravation associated with the later publications byreasonof the notices given by the Electoral Commissioner and the plaintiff'ssolicitor.
56In view of the fact that Roberts has been otherwise dealt with in theMagistrates Court, not at the instigation of the plaintiff,but upon formalcomplaint of the Electoral Commissioner, I would not award exemplary damages.Although this defendant has behavedin an outrageous manner, I consider thatthe amount of $100,000 compensatory damages is sufficient in the circumstancesto mark theCourt's disapproval, and to act by way of deterrent in light of thesuccessful prosecution which carried its own penalties. In myview there issufficient nexus between the subject matter of the prosecution, and the presentcause of action for the Court to beconcerned about the possibility of aninjustice, if an award of exemplary damages were made after Roberts had beenpenalised uponconviction. InAB v South West Water Services Ltd[1993]QB 507 at 531, Sir Thomas Bingham MR, described as anomalous, the award ofexemplary damages where the conduct in question had already attractedthesanctions of the criminal law. In the same case at 527 Stuart-Smith LJsaid:
"...there is the further complication to which I have already referred of theconviction and fine of the defendants. These problemspersuade me that therewould be a serious risk of injustice to the defendants in this case if an awardof exemplary damages wereto be made against them. There is no injustice tothe plaintiffs in refusing to permit such an award; they are not foregoingcompensationto which they are entitled, but an additional windfall basedsolely on the defendants' alleged improper conduct."
(This was not a defamation case).
57InThompson v Commissioner of Police[1997] EWCA Civ 3083;[1997] 2 All ER 762 at 777, LordWoolf MR commented upon the possibility of future disciplinary proceedingsbeing a relevant consideration upon the questionas to whether exemplarydamages should be awarded in proceedings against police for falseimprisonment.
58I would discharge the award of exemplary damages in the present case;however that award will be overtaken by the increase inthe compensatorydamages against Roberts.
59In my opinion the formal orders should be as follows:
1.The appeal by each defendant against liability is dismissed.
2.The cross appeal by the plaintiff is allowed for the purpose of increasingthe award of damages against the defendant Robertsto $100,000 upon the footingthat only compensatory damages be payable; this amount comprises an assessmentof $20000 damages inrespect of the publication of the postcard, $35000 damagesin respect of the publication of the pamphlet and $45000 in respect ofthepublication of the How to Vote Card.
60The parties should be heard upon the adjustment of the calculation ofinterest and upon the question of costs.
61
61MARTIN J.This is an appeal against awards of damages for defamationgiven in respect of the publication of three documents during the lead-uptothe 1997 Parliamentary Election in South Australia. As against the firstdefendant, Mr Roberts, the learned trial Judge awardeda total of$64 800, inclusive of interest. His Honour awarded a total of$5 400, inclusive of interest against the fourth defendant,Mr Case.The plaintiff has cross-appealed asserting that the awards are manifestlyinadequate.
62The relevant facts of this matter are adequately set out in the judgment ofWilliams J. I agree with the substance of his Honour'sreasons for upholdingthe findings of the learned trial Judge as to the meanings of the statements ineach of the first and seconddocuments and why those statements were defamatoryof the respondent ("the plaintiff"). However, as I have reached a differentviewwith respect to some issues, it is necessary that I explain my reasons forreaching my conclusions.
63As to the statements on the third document, the How to Vote Card ("theCard"), in my opinion not all of those statements weredefamatory of theplaintiff. The Card was printed on two sides. On its face it read:
"3 things Sam Basshas done as Member for Florey:
1.Had numerous junkets at your expense including trips to the United Kingdomand Nauru
2.Stood by and did nothing to stop "secret deals" at the Modbury Hospital
3.In spite of the Port Arthur Massacre: he put gun rights ahead of yourfamily's safety
He's part of the problem, not the solution
When you vote,
PUT SAM BASS LAST."
64The reverse side of the document read:
"3 things Sam Bass will do if you vote him back in:
1.Qualify to spend another $32,000 of taxpayers' money on overseas travel
2.Get $154,000 per year and a big white car if he is elected Speaker
3.And if he does become Speaker spend even less time in the electorate
Why reward someone who takes advantage of the system?
When you vote,
PUT SAM BASS LAST.
Printed and authorised by G Roberts 22 Noritake Road Modbury Heights 5092."
65There is no doubt that the tenor of the Card was highly critical of theplaintiff. It is important to bear in mind, however,that it was distributedin a political context and that the ordinary and natural meaning of the wordsis to be determined by consideringthe document in isolation from the previoustwo publications.
66The statement that the appellant had undertaken "numerous junkets" at theexpense of the taxpayer was clearly meant to be disparagingof the plaintiff.However, it is not uncommon for political commentators, members of the publicor those engaged in vigorous politicaldebate to refer to trips taken byMembers of Parliament as "junkets". Usually, it is reasonable to conclude thatthose using thatexpression intend it to be understood as a remark critical ofthe Members. However, it does not follow that such statements necessarilycarry with them a defamatory imputation that trips were taken for an improperpurpose. The context in which such statements aremade will be of particularimportance to a determination as to whether the statements are defamatory.Such statements could be understoodas meaning that the Member is concernedonly with personal pleasure rather than with duties as a Member. In somecontexts, however,they will fall short of the imputation of an improperpurpose and be recognised as a criticism that although the member is entitledto take the trip, it is an unnecessary trip and the interests of the taxpayerwould be better served if the member remained in theelectorate attending toelectorate business. In my opinion, given the common usage of the word"junket" in the political context,this Court should not adhere to the viewthat every time a politician is criticised for taking a "junket" at taxpayers'expense,the statement to that effect is defamatory. Each statement must beconsidered in the context in which it is made and the criticalquestion askedas to what interpretation would be placed on the statement by the ordinaryreasonable reader who is a person of fair,average intelligence.
67The statement on the Card alleging "numerous junkets" was made in thecontext of other statements which, read in their entirety,had the effect ofimpugning the integrity of the plaintiff. In particular the statement that, ifvoted back in, the plaintiff would"qualify to spend another $32 000 oftaxpayers' money on overseas travel", was particularly significant. Thatstatement impliedthat the plaintiff had previously spent $32 000 oftaxpayers' money on overseas travel. It was an incorrect statement of fact.Consideredalone, that incorrect statement did not carry with it the ordinaryand natural meaning that the travel was solely for the purposeof theplaintiff's own enjoyment and not for a proper purpose related to his role as aMember of Parliament. However, consideredin conjunction with the firststatement that the plaintiff had undertaken "numerous junkets" at taxpayers'expense including tripsto the United Kingdom and Nauru, in my opinion thosestatements were defamatory of the plaintiff. The clear implication of thestatementsconsidered together and in the context of all the statements on theCard was that the plaintiff had misused public monies by takingnumerous tripsfor an improper purpose, namely, personal pleasure and not for a proper purposeassociated with his duties as a Memberof Parliament.
68The statement that the plaintiff "stood by and did nothing to stop 'secretdeals' at the Modbury Hospital" was an incorrect statementof fact and wascritical of the plaintiff. It does not, however, convey the meaning that theplaintiff was part of the 'secret deals'. It would be understood as meaning hedid nothing to stop such deals being agreed by other persons. The learnedtrial Judge foundthat the statement possessed the following meaning:
"Contrary to his responsibility as the Member of Parliament for Florey failedto take appropriate steps to prevent clandestine arrangementsbeing put inplace in respect of the management of the Modbury Hospital, contrary to theinterests of the members of the electorateof Florey and the public of SouthAustralia generally."
69Members of Parliament are frequently accused of inaction or a lack ofadequate action. In some circumstances, an inaccurate allegationof inactionmight carry with it a defamatory imputation. However, although my mind hasvacillated on this question, I have reachedthe view this single statement,read in the context of the Card considered in its entirety, was not defamatoryof the plaintiff. It was critical of him and implied that he should have takenaction to prevent what had occurred. In the context of a politicalcontest,however, the ordinary reasonable reader who read between the lines wouldrecognise the statement for what it was, namely,a political criticism by aperson supporting an opposition candidate. Viewed in this way, the statementdid not contain imputationswhich tended to lower the plaintiff in theestimation of right-thinking members of the society or which were calculated tobringthe plaintiff into hatred, contempt or ridicule or which had the effectof making people shun or avoid the plaintiff.
70As to the statement that the plaintiff "put gun rights ahead of yourfamily's safety", the evidence established that the statementwas bothinaccurate and an unfair reflection upon the plaintiff's approach to thiscontroversial issue. The learned trial Judgefound that the statement had thefollowing meaning:
"That the plaintiff had put the rights of those interested in the right topossess and utilise guns ahead of the safety of membersof ordinary families".
71The statement carried the clear implication that Mr Bass was a personof such a character that he relegated the safety of familiesto an inferiorposition to that of gun rights. In my opinion, notwithstanding the politicalcontext in which the statement was made,the statement crossed the line betweenvigorous political debate and defamation. It contained imputations whichtended to lowerthe plaintiff in the estimation of right-thinking members ofthe society. I agree with the learned trial Judge that the statementwasdefamatory of the plaintiff.
72The statement that, if elected, the plaintiff would receive $154 000per year and a big white car if elected as Speaker was nota defamatorystatement. As to the proposition that if the plaintiff was elected speaker hewould "spend even less time in the electorate",if the statement was consideredin isolation, in my opinion it would not have been defamatory. While itcarried the implicationthat the appellant did not spend sufficient time in hiselectorate, in isolation it would have been understood as a general politicalcomment of little or no significance. However, the statement did not standalone. It followed on statements that the appellanthad taken numerous junketsat taxpayers' expense and, if elected, would become qualified to spend another$32 000 of taxpayers' monieson overseas travel. It was in that contextthat the learned trial Judge found the following meanings were conveyed in theCard:
"(g)That the plaintiff had not spent sufficient time in his electorate toproperly discharge his duties as the Member of the seatof Florey.
(h)That the plaintiff was not spending sufficient time in the electorate ofFlorey to enable him to adequately fulfil his dutiesas the Member forFlorey.
(i)That if the plaintiff was elected to the Member of Florey and thensubsequently elected as Speaker of the House of Assembly thenhe would spendless time than the time that he was currently spending in the electorate."
73I have found this a difficult issue to resolve. However, on balance, Iagree with the learned trial Judge.
74For these reasons, I agree that some of the statements on the Card weredefamatory of the plaintiff. In essence, I agree withWilliams J that,considered in its entirety, the Card implied discreditable conduct on the partof the plaintiff in the dischargeof his Parliamentary responsibilities whichwould warrant the electors putting him last when voting. That implication wasuntrue. It was contrary to the evidence and the findings of the learned trialJudge.
75As to the defence of qualified privilege, I agree that the publicationsoccurred on privileged occasions. I also agree that,for Mr Roberts, thedefence failed as he did not possess an honest belief in the truth of thepublished statements. In addition,in my opinion the learned trial Judge wascorrect in finding that Mr Roberts possessed an improper motive. In thisrespect, I differfrom Williams J.
76The learned trial Judge found that both defendants were motivated by"malice". His Honour found as follows:
"[T]he defendants' dominant purpose went far beyond the mere desire to foil theplaintiff's prospects of re-election. Their mainintention was to injure theplaintiff and to lower his estimation in his fellow persons by making themthink less of him. All threepublications were part of a strategy designed tohave this effect. Clearly this is not a proper motive.
Various other factors also point to a conclusive finding that the defendantsintended to injure the plaintiff."
77The learned trial Judge also found that the evidence established that thedefendants published the defamatory material without"considering or caringwhether it be true or not". He referred to Mr Roberts having prepared thepublications "in spite of his indifferenceto the truth of their content" andfound that Mr Case "displayed a similar indifference" in relation to theCard. His Honour said:
"In fact, he [Mr Case] admitted to having handed out that [Card] withoutany research and purely on the basis that its contents "soundsright". Bothdefendants thus admitted to having not made enquiries to check the accuracy ofthe relevant publications."
78His Honour then expressed his conclusion as follows:
"A failure to make inquiries does not, of itself, constitute malice but isnevertheless relevant in establishing an intention onthe part of thedefendants to injure the plaintiff (Uren v John Fairfax and Sons Pty Ltd(1966) 177 CLR 118 at 125). I accept that the defendants did not make anyenquiries 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."
79After referring to the conduct of Mr Roberts concerning the publicationof the first and second documents and to his reactionto the requests by theElectoral Commissioner for a retraction of a statement in the secondpublication, the learned trial Judgefound that the conduct of Mr Roberts"was tantamount to using any area of apparent criticism of the plaintiff toinjure his reputationand cause him to lose office." His Honour expressed theview that such a purpose was not a proper motive. However, Williams Jdisagreeswith these findings. In his opinion the evidence does not identifyany improper purpose attaching to the actions of either defendant.
80Persons who wish to engage in political debate and electioneering areentitled to do so with vigour and passion. In this context,the law recognisesthat even though statements made may be untrue and defamatory, if they arepublished in good faith on a privilegedoccasion such statements are notactionable. However, the privilege is qualified. As Lord Diplock explained inHorrocks v Lowe[1975] AC 135 at 149, the qualified privilege will belost "if the occasion which gives rise to it is misused". His Lordship thenmade some observationswhich are of particular relevance to the issues underconsideration:
"...For in all cases of qualified privilege there is some special reason ofpublic policy why the law accords immunity from suit- the existence of somepublic or private duty, whether legal or moral, on the part of the maker of thedefamatory statement whichjustifies his communicating it or of some interestof his own which he is entitled to protect by doing so.If he uses theoccasion for some other reason he loses the protection of the privilege.
So, the motive with which the defendant on a privileged occasion made astatement defamatory of the plaintiff becomes crucial. Theprotection might,however, be illusory if the onus lay on him to prove that he was actuatedsolely by a sense of the relevant dutyor a desire to protect the relevantinterest.So he is entitled to be protected by the privilege unless someother dominant and improper motive on his part is proved. "Expressmalice" isthe term of art descriptive of such a motive. Broadly speaking, it meansmalice in the popular sense of a desire to injurethe person who is defamed andthis is generally the motive which the plaintiff sets out to prove. But todestroy the privilege thedesire to injure must be the dominant motive for thedefamatory publication; knowledge that it will have that effect is notenough if the defendant is nevertheless acting in accordance with a sense ofdutyor in bona fide protection of his own legitimate interests.
The motive with which a person published defamatory matter can only be inferredfrom what he did or said or knew. If it be provedthat he did not believe thatwhat he published was true this is generally conclusive evidence of expressmalice, for no sense ofduty or desire to protect his own legitimate interestscan justify a man in telling deliberate and injurious falsehoods about another,save in the exceptional case where a person may be under a duty to pass on,without endorsing, defamatory reports made by some otherperson.
Apart from those exceptional cases, what is required on the part of the defamerto entitle him to the protection of the privilegeis positive belief in thetruth of what he published or, as it is generally though tautologously termed,'honest belief".If he publishes untrue defamatory matter recklessly,without considering or caring whether it be true or not, he is in this, as inother branches of the law, treated as if he knew it to be false. Butindifference to the truth of what he publishes is not to beequated withcarelessness, impulsiveness or irrationality in arriving at a positive beliefthat it is true. The freedom of speech protected by the law of qualifiedprivilege may be availed of by all sorts and conditions of men. In affordingto them immunity from suit if they have acted in good faith in compliance witha legal or moral duty or in protection of a legitimateinterest the law musttake them as it finds them. In ordinary life it is rare indeed for people toform their beliefs by a processof logical deduction from facts ascertained bya rigorous search for all available evidence and a judicious assessment of itsprobativevalue. In greater or in less degree according to their temperaments,their training, their intelligence, they are swayed by prejudice,rely onintuition instead of reasoning, leap to conclusions on inadequate evidence andfail to recognise the cogency of materialwhich might cast doubt on thevalidity of the conclusions they reach. But despite the imperfection of themental process by whichthe belief is arrived at it may still be "honest," thatis, a positive belief that the conclusions they have reached are true. Thelawdemands no more.
Even a positive belief in the truth of what is published on a privilegedoccasion - which is presumed unless the contrary is proved- may not besufficient 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. The commonest case is where the dominant motive whichactuates the defendantis not a desire to perform the relevant duty or toprotect the relevant interest, but to give vent to his personal spite or illwilltowards the person he defames. If this be proved, then even positivebelief in the truth of what is published will not enable thedefamer to availhimself of the protection of the privilege to which he would otherwise havebeen entitled. There may be instancesof improper motives which destroy theprivilege apart from personal spite. A defendant's dominant motive may havebeen to obtainsome private advantage unconnected with the duty or the interestwhich constitutes the reason for the privilege. If so, he losesthe benefit ofthe privilege despite his positive belief that what he said or wrote wastrue.
Judges and juries should, however, be very slow to draw the inference that adefendant was so far actuated by improper motives asto deprive him of theprotection of the privilege unless they are satisfied that he did not believethat what he said or wrote wastrue or that he was indifferent to its truth orfalsity. The motives with which human beings act are mixed. They find itdifficultto hate the sin but love the sinner. Qualified privilege would beillusory, and the public interest that it is meant to serve defeated,if theprotection which it affords were lost merely because a person, although actingin compliance with a duty or in protectionof a legitimate interest, dislikedthe person whom he defamed or was indignant at what he believed to be thatperson's conduct andwelcomed the opportunity of exposing it.It is onlywhere his desire to comply with the relevant duty or to protect the relevantinterest plays no significant part in hismotives for publishing what hebelieves to be true that "express malice" can properly be found.
There may be evidence of the defendant's conduct upon occasions other than thatprotected by the privilege which justify the inferencethat upon the privilegedoccasion too his dominant motive in publishing what he did was personal spiteor some other improper motive,even although he believed it to be true. Butwhere, as in the instant case, conduct extraneous to the privileged occasionitselfis not relied on, and the only evidence of improper motive is thecontent of the defamatory matter itself or the steps taken by thedefendant toverify its accuracy, there is only one exception to the rule that in order tosucceed the plaintiff must show affirmativelythat the defendant did notbelieve it to be true or was indifferent to its truth or falsity. Juriesshould be instructed and judgesshould remind themselves that this burden ofaffirmative proof is not one that is lightly satisfied." (my emphasis)
81Applying those principles to the defence of qualified privilege advanced byMr Roberts, if the plaintiff proved that the dominantmotive ofMr Roberts for the defamatory publications was a desire to injure theplaintiff, the defence failed. In my opinion, theevidence was sufficient tojustify the conclusion reached by the learned trial Judge that Mr Robertspossessed a dominant motiveto injure the plaintiff. Mr Roberts engagedin a course of conduct over some months which was demonstrative of his ill willtowardthe plaintiff. His conduct when faced with requests by the ElectoralCommissioner to correct his errors confirmed his ill will asdid the tenor andcontent of his evidence. In my opinion, therefore, in this respect the findingof the learned trial Judge shouldbe upheld.
82As to Mr Case, in addition to the findings to which I have alreadyreferred, the learned trial Judge said:
"Furthermore, I am also of the view that the fourth defendant's actions in thedistribution of the PSBL pamphlet on the day of theelection was motivated byactual malice. The actions of the fourth defendant were not as recklesslyblatant as that of the firstdefendant's. However, it is my opinion that hewas so imbued with the purported ideal of public ownership of theadministrationof the Modbury Hospital that there was a complete failure on hispart to enquire into any relevant factual issues with the resultthat hisreasoning on various topics was patently flawed. Again, his dominant motivewas to injure the plaintiff's reputation andremove him from office and, assuch, it was an improper motive. I view his conduct as malicious."
83The election occurred on Saturday 11 October, 1997. Mr Case is ateacher of long standing. He joined the Labor Party after 1975,but thatmembership lapsed when he went overseas in 1993. He was a supporter of aformer Member for Florey, Ms Byrne. He travelledoverseas in 1993 and, onhis return in January 1994, became involved in the public opposition to issuesrelated to the privatisationof the management of the Modbury Hospital. He wasa member of a group that actively campaigned against the policy of theGovernmentwith respect to that hospital. Mr Case acknowledged inevidence being quite passionate about the Modbury Hospital issues.
84In 1995, as spokesperson for the group, Mr Case sought a meeting withthe Minister for Health. The request was refused on thebasis, as Mr Caseunderstood it, that Mr Case was biased. As a consequence he wrote tothree Members of Parliament, including theplaintiff, about the group'sconcerns. The plaintiff replied by letter of 13 October 1995 inviting thegroup to communicate to himin writing about any concerns they had associatedwith the hospital. He stated he would have those concerns investigated by theappropriate authorities. The letter also referred to the refusal of theMinister to meet with Mr Case and supported the stand takenby theMinister.
85Mr Case said he couldn't believe that the plaintiff had been soarrogant as to suggest that he would not assist the local peopleto secure ameeting with the Minister. He said he believed that the plaintiff had a dutyto assist the people in the area to organisea meeting. The group continued tomaintain its campaign and to bring to the attention of the public problems inthe administrationof the Modbury Hospital. When it became common knowledgethat an election would occur in the latter half of 1997 the group continueditsactivities and decided as a group that it would "target" the plaintiff.Mr Case gave the following evidence:
"Q.That was in July of 1997, in the lead up to the election, did your groupdiscuss participating in the election process in anyway.
A.Yes, we did.
Q.Was any decision taken by your group, as to its involvement in the electionprocess.
A.Yes, we decided as a group that we would target, in particular, Sam Bass inthe electorate of Florey.
Q.What was the reason for 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 Basswas, to put itbluntly, an easy target. We believed that his record was such that we would beable to campaign and would have agood chance of success in having him defeatedat the election. There were two aspects to that. One was that Sam Bass hadactivelytaken actions and spoken out against the interests of the group, whichwas to restore the Modbury Hospital to public hands. So wefelt that as alocal member in that district, that the interests of returning the ModburyHospital to public hands would be bestserved by getting rid of Sam Bass. Thatwas one reason. Another reason was that Sam Bass's record on the hospitalissue was onethat we could argue quite easily, because on two occasions he hadrefused to help us in the issue of the privatisation. So we couldcategorically go to the electorate and say that he wasn't doing what he shouldbe doing as the local member, and therefore you peopleout there shouldn't bevoting him back in. That was in regard to the hospital. We were also awarethat he tripped off overseasin the death knock of his term of office, wheneverybody was saying there is going to be election next week, or next month, orwhatever,and in the face of all of the stuff about politicians going overseas,he went overseas. We just thought that was like jam on ourtoast. It wouldmean the public, and it was all over the place, that the public were alreadygoing to be against him on that issue,and there was that. And the third issuewas in regard to the gun legislation where he actively opposed the Howardpropositions andhe was publicly known for doing that. So all we were doingwas adding the Modbury Hospital action stuff to it, and we figured wewoulddefeat him. That would benefit us in two ways. One is, we would get rid of alocal member that was no good to us or, in fact,no good to the electorate, aswe believe, and it would also bring greater attention to the Modbury Hospitalissue, because we couldclaim that as a group that issue had been significantin defeating him and therefore if the Liberals got back into power, that wouldput more pressure on them to actually do something about the Modbury Hospitalcontract."
86The group was responsible for a pamphlet which urged electors to reclaim thepublic hospital and put public health first "by puttingSam Bass, Liberal,last". That pamphlet was distributed during the campaign. Mr Case wasoverseas for ten or eleven days priorto Thursday, 9 October, 1997.During that time the group also campaigned against the re-election ofMrs Dorothy Kotz.
87Following his return to South Australia on Thursday 9 October 1997,Mr Case contacted the group and was allocated a polling booth. He wastold to attend at 8 am and the material for distribution would beavailable at the booth. When he attended on the morningof the election he sawfor the first time the two pamphlets he was to distribute. The first was thepamphlet produced by the group. The second was the Card which is the subjectof these proceedings. Mr Case said that when he read the Card there wasnothing init that caused him any concern. He distributed the Card from about8 am until 10 am.
88As to some of the statements on the Card, Mr Case gave the followingevidence:
"Q.Just look at P4 again. Do you see that on the front side, it commences -the things Sam Bass has done as the member for Florey.
A.Yes.
Q.And number 1 says - had numerous junkets at your expense, including trips tothe United Kingdom and Nauru. Do you see that.
A.Yes.
Q.Did you have a belief on that day, as to the truth of that assertion.
A.Of course, I mean he basically just got back from Nauru less than a month,or whatever.
HIS HONOUR
Q.Is that right. When did you understand he went to Nauru.
A.I thought it was only a matter of months prior to the election.
Q.Months, say one or two.
A.Yes, something like that, isn't it about that. I mean certainly in my mindhe had not long got back.
Q.And the United Kingdom.
A.Yes, I mean I was aware that he had been to the United kingdom on a trip,and the Nauru one, and I was aware that he had doneother things, but I didn'tknow what they were particularly.
Q.Did you see the second thing. That he had stood by and did nothing to stopsecret deals with Modbury Hospital.
A.Yes, that's right.
Q.Did you have a belief as to the truth or accuracy of that statement.
A.Yes, I mean in fact he had done no more than that. When we had asked himfor help, he had said no, so I mean he was well intothe 'did nothing', I cantell you.
Q.In respect of the third matter, did you read that.
A.Yes.
Q.Did you have a view as to the truth and accuracy of that assertion.
A.Yes, I did. Sam Bass had in fact been very vocal and he had been publiclyknown as opposing the gun legislation in parliament. As far as I wasconcerned, he was supporting the gun rights, the gun lobby.
...
Q.You said that you understood that Mr Bass had supported the gun lobby.What made you say that.
A.To be quite honest, it is one of those issues where in, I suppose, ourminds, the public if you like, you end up coming out onone side or the other,and I saw Sam Bass as many others did, as not supporting the Howardlegislation, and that he was thereforesupporting the opposition to him. Imean the gun lobby and the shooters club and so forth, were very vocal, andvery strong on theiropposition to the Howard thing. So Sam in that way, orMr Bass sorry, put himself in that category."
89Mr Case was not asked in examination about the questions on the otherside of the pamphlet. At the outset of cross-examination,he was asked aboutthe reference to qualifying to spend another $32 000:
"Q.Just while you've still got that orange document P4 before you,Mr Heywood-Smith didn't ask you any questions about the secondside ofthat document and I would just like to take you to that. You see where it says'Things Sam Bass will do if you vote himback in' and the first one is 'Qualifyto spend another $32,000 of taxpayers' money on overseas travel', do you seethat.
A.Yes.
Q.And you read that on the day that you handed out that document to electors,didn't you.
A.Yes.
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 relevant but I do now. At the time I had no idea.
Q.Had no idea.
A.Had no idea how much he'd spent but in fact that's not relevant to myreading of that -
HIS HONOUR
Q.I decide what's relevant, you just answer the questions.
A.Sorry, what I'm saying is -
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 documentthat wasn't an issue to me. The issue was that he wasqualified to spend$32,000 as an MP in his previous time and he would be qualified again to spendit. I mean as I say, the issueof how much he actually spent I didn't have aclue. I just knew he's been on numerous overseas trips. In fact, as it turnsout,numerous trips.
XXN
Q.Just so I'm clear about it though, you had no idea whether he's spent$32,000 of taxpayers' money on overseas travel, that's thecase, isn't it.
A.Yes.
Q.And despite that, you were prepared to hand out this document to people whomight or might not be voting for him in making uptheir minds about that sayingif they voted him back in, he'd qualify to spend another $32,000 of taxpayers'money.
A.Your use of the term 'despite' is that implies something that never occurredbecause I actually read, as I say, I will repeatit, I read that as to say thathe qualified to spend $32,000 before and he'd qualify again. To my mind, howmuch was actually spentor how much he was going to spend - I mean, look, Ican't say how much he was going to spend in the next period of time anyway. SoI mean I think I take argument with your term 'despite' because there was noequivocation on my part because I believed that thedocument -
HIS HONOUR
Q.My trouble is with the word 'another' but he already qualified to spend32,000 previously therefore he could qualify again forit. How do you know hewas qualified to spend that.
A.Because that's what MPs - that's been stated here it's 8,000 a year orwhatever.
Q.Don't you agree reading that that the reader would say he has spent 32,000and now he's qualified to spend another, isn't thatthe meaning of it.
A.No, not to my mind.
...
Q.But the point, I suggest to you, is that you were concerned to convey tovoters that this man had spent money on overseas trips,that's right, isn'tit.
A.That's right.
Q.And the amount he'd spent was $32,000, that's what you were concerned toconvey 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 supportedthe Modbury Hospital actiongroup position on the privatisation. He stood by and done nothing about theprivatisation, the secretdeals. He's been overseas on junkets, on trips thatserved no purpose to the members in the electorate. This is bearing in mind,as far as we were concerned, a huge issue in the electorate which was theprivatisation of the Modbury Hospital management. He troopedoff overseas atthe same time 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's record andtherefore this is what he has the potential to do in the future.
...
Q....You said in answer a few answers ago that he'd been overseas on thesejunkets which were of no use to the electors of the electorate. On what didyou base that comment.
A.On the issue that I mean I suppose they're in front of you. The issues thatwere absolutely critical to people in his electoratewere Modbury Hospital wasa big one, I've got to say, in relation to local electorate stuff and the otherwould have been the gunlegislation which isn't local electorate stuff but itwas certainly a big issue to people all over the place.
Q.So anything else -
A.The idea of going over and meeting with colleagues who do the same job asyou want to do in other countries, at Nauru, I'm notsure how much benefit tous in the electorate that is. I guess I can put it in context in regard toMolly Byrne who was an earliermember and who I had enormous respect for andMolly Byrne in fact said on several occasions that in all of the years that sheservedin parliament she wouldn't go overseas although she was entitled to andas she explained, these trips come around and people getasked 'Would you liketo go over here?' I mean they're offered around the place and she refused togo because she believed thatthat wasn't in the interests of her electorate andher job was to reflect the interests of the electorate. Now when she actuallyeventually was defeated in parliament, almost the first thing she did was to gooverseas on a holiday and she said 'I've finishednow, it's okay for me to go.'Mr Bass in that sense was in stark contrast to that."
90Later in cross-examination Mr Case said he was aware that the plaintiffhad travelled to Nauru and the United Kingdom. He saidhe knew the plaintiffhad travelled elsewhere, but he did not know the localities. As to why thegroup targeted the plaintiff ratherthan other members in the area,Mr Case said it was not just because the plaintiff had travelled overseas.It was a combination offactors, the overseas travel being part of theammunition that made him a soft target. Mr Case admitted the group hadnot researchedthe details of the travel by the plaintiff, but relied on theinformation in the "public arena". He said he was aware of the tripsto Nauruand the United Kingdom and gave the following evidence:
"Q.You were prepared to describe those as numerous junkets at your, that isthe voters, expense. Is that right.
A.Yes.
Q.It was wasn't it.
A.It was, I mean -
Q.Two trips you regard as numerous.
A.No, no. I was aware at the time of specifically two trips. I was of thebelief that he had been on more trips. I mean, I -".
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'clock on the morning of theelection. So you're right, I didn't, whilst I washanding out these or beforeI decided to go and hand out these I didn't do any research. I looked at thisand said, 'Yes, yes, thatsounds right, it accords with what we've been sayingin our pamphlet' and I handed it out. If you're talking in terms of myknowledgewhile I was handing them out, in fact, Mrs Bass and Nicky, both came- sorry, Nicole Bass, came to the polling booth and, in fact,I said a cordialgood morning to Mrs Bass and she returned it. Nothing was said. At no stagein all of the handing out did anybodysay to me, 'Look, this is wrong. Youknow, the stuff you're handing out is untrue.' And, I mean, I was stoodalongside and sayinghello at the same time with liberal people and liberalofficials going past, who fed and gave drink to their workers, and nobodysaidanything to me. So, I mean, I arrived at 8 o'clock in the morning, I saw thispamphlet it accorded with my views and my knowledgeof the situation and so Ihanded it out.
Q.In respect of describing trips to the United Kingdom and Nauru, and asamongst others apparently, as junkets, you had no basisfor describing them asjunkets did you.
A.I don't see why not. In the sense that I have explained my view of thetrips. That I - to my mind the issue of whether a tripis a junket or whetherit's a trip of worth, is in the value to the electors, and to my mind they werejunkets.
Q.You accept that there is a difference between a junket and a trip which is avalue to the electors don't you.
A.That's my view.
Q.Yes, and in terms of Mr Bass's trip to the United Kingdom you had no ideawhat he had done on that trip had you.
A.Well, I saw no evidence of value to us from that trip whatsoever.
Q.Well, what have you done about looking for this value.
A.At 8 o'clock on Saturday morning?
Q.At any time.
A.Well, I've just explained that to you.
Q.Nothing.
A.Well, I mean at 8 o'clock on a Saturday morning I didn't have anyopportunity.
Q.But you had the opportunity to choose whether to describe it as a junket ornot didn't you.
A.I had the opportunity to describe, to determine whether or not I would handout these pamphlets.
Q.Yes.
A.And I looked at the pamphlets and it had 'numerous junkets at your expense',I thought that was true and so on. Therefore I handedit out.
...
Q.But as to what he had done in Nauru, what did you know about that.
A.I knew what it was about. I knew, for example, that it was, that the thinghe went for was a conference for speakers of the house. I knew at the sametime, that the speaker had declined to go, and that the deputy speaker haddeclined to go. I mean, I assumedthat that, that the reason for that wasobvious, that there was an election nigh and that they wouldn't want to causeany flak intheir electorates if they went. So they chose not to go and MrBass put his hand up.
Q.But the fact that other people might have good political reasons for notgoing - let's assume that's true for the moment; turningthe trip for theperson who does go into a junket, doesn't it depend on what they do."
91The plaintiff was questioned further about the statements that the plaintiffdid nothing to stop "secret deals" at the ModburyHospital and put gun rightsahead of family safety:
"Q.So far as being able to say that he stood by and did nothing to stop secretdeals 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 weretotally secret, and we hadmade numerous noises as had numbers of other players in that arena, aboutfinding out what was in thecontracts and the nature of the contracts and soforth, and they were secret, and Mr Bass had done nothing about that.
Q.It may seem a bit tautologous, but what are these secret deals.
A.The secret deals are the contract. The contract was a secret deal. I mean,it was extraordinary in the sense that there wasno information given to thepublic about what the responsibilities of Healthscope were. There was noindication of what rights wehad as patients at the hospital. The whole thingwas a secret, even to the extent that when the media tried to actually do areporton the Modbury Public Hospital, as they did on the 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 that Mr Bass stood by and did nothing to stop thatcontract, if that is what you meant to refer to.
A.First of all, we actually asked for him to put the views of the public tothe Minister, and he refused to do that. The contractswent through, and as Isaid before, there was a big issue about the contracts and Mr Bass did nothing.As our local [Member] he nevercontacted us about it. He never made any issuein the press about it. He never indicated to anybody in the press that he haddoneanything about it. In fact, there are several indications where hewholeheartedly supported the contract.
Q.You had never asked him what he had done in respect of the contracts, hadyou.
A.No, but we asked him for help.
Q.You told us of the two instances that you suggest comprise that, but apartfrom that, you never asked him what he had done inrespect of lobbying theMinister or anything like that.
A.No.
Q.And with respect 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. Healthscope was in a pretty parlousposition financially,over the contract, losing money hand over fist, and thegovernment renegotiated it, to keep Healthscope there. In fact, we weretoldat one stage by the management of Healthscope that if the government didn't dosomething about 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 in respect of that contract, is your basis for suggesting thatMr Bass did nothing to stop secret deals, the same as in yourfirstone.
A.That's right."
92As to the issue of gun legislation, the appellant gave the followingevidence:
"Q.You then asked about the gun rights lobby, as it were, and you told us thatyou thought the Prime Minister's suggested legislationdidn't go far enough.That is right, isn't it.
A.Yes.
Q.Could be improved and made stronger.
A.I think so.
Q.Mr Bass thought so too, didn't he.
A.That wasn't my recollection at the time.
Q.No, well you laugh when you give that answer. On what do you base yourrecollection.
A.My knowledge of the issue at the time was that he put, he opposed, in fact,a number of things about the legislation.
Q.You say he opposed a number of things about the legislation. You opposed anumber of things about the legislation, didn't you. You thought it should bemade stronger.
A.No, I didn't oppose anything about the legislation at all. I would havepossibly wanted to add something to the legislation. I mean, I didn't opposethe thrust of it at all. I mean the thrust was a good thing because itappeared to be tightening up onthe availability of these guns.
Q.Mr Bass supported the thrust of the legislation, didn't he.
A.I don't know that and I would suggest, in fact, that there wasn't anyevidence publicly to say that.
Q.And there is certainly no evidence that you can point to, to say that heopposed the thrust of the legislation, is there.
A.There is certainly stacks of evidence around to suggest that he opposedaspects of the legislation, and that he put in a stackof amendments to it.
Q.What is this evidence that you refer to.
A.There was stuff in the press about it. There was, I must admit, I receivedone of those, or was given a copy of one of thosegun pamphlets that was handedout.
Q.Hold on. You are not referring to something handed out by Mr Bass, areyou.
A.No, no, I am referring to, there was a card that was in the shape of a gun,or part of it was in the shape of a gun. That listedthose MPs who opposed thelegislation, and, in fact, my recollection is they stated they opposed it.
Q.So this is someone else saying Mr Bass is opposing it.
A.I think that is right.
Q.You have not been at any public meeting or anything, where he has opposedthe thrust of the legislation.
A.No.
Q.Have you read Hansard reports of what he said in parliament.
A.I don't think I have, I have seen Hansard reports, but I don't think I haveread any of them.
Q.And so when you said that Mr Bass put himself in that category, that is thecategory of people who opposed the legislation reforminggun control, that isnot right, is it. You are the one who put him in that category.
A.No, I believe by his actions he put himself in that category.
Q.What actions.
A.In opposing the legislation in the parliament.
Q.You don't know that he did oppose the legislation in the parliament, doyou.
A.I believe that he did.
Q.You don't know that. You don't know what he said in parliament.
A.I repeat, I believe he did.
Q.On what basis.
A.On the basis of the information that was around the place at the time.
Q.I see. What other people told you.
A.Yes, and at the same time the pamphlet that was there, there was a lot ofdiscussion, at the time.
Q.This pamphlet, that was an electioneering type pamphlet, wasn't it.
A.Yes, I think. Well, I don't know. It certainly wouldn't have been duringthe election, because I was away during the election. So I don't think it wasthen. I think it was before. I possibly could have been given it on adifferent date.
Q.It actually said on it - put Sam Bass last, didn't it.
A.I don't know. I will be honest. The big thing I saw was, and the thingthat I recollect is the shape of the gun made it quiteclear what the issuewas, and then on the inside, the stuff that was brought to my attention was thelist of people who opposed thelegislation.
Q.And that is something that appeared in your letterbox, as it were.
A.No, I don't know whether it appeared it my letterbox. I was given acopy.
Q.That is the sort of thing that influenced your views about Mr Bass. Isthat right.
A.It did influence me, yes. If you talk about things that influence me aboutSam Bass, it was one thing that influenced me in termsof the gun legislation.I had a previous recollection of Mr Bass in that regard, and that was sometimebeforehand when he was, Ithought he was actually heading a committee into areview of gun legislation in South Australia. This is before they brought outthe massacre, and he was interviewed on the radio, and the interviewer at thetime asked how many guns, no, asked if he owned anyguns, and he said two orthree. I will be quite honest. At the time I was astonished - Mr Bass, is ittwo or is it three? Becauseto my mind, that was a very lax response on a hugeissue. We weren't talking about lollipops. We were talking about firearms,andto my mind he didn't know whether he had two, or whether he had three,which made me think at the time that he mightn't even knowwhere they are. Somy belief, way prior to the Port Arthur massacre and the Howard thing, was thatMr Bass had a very lax attitudetowards guns."
93In considering the state of mind of Mr Case, it is important to setaside the evidence concerning the other publications and knowledgeand attitudeof Mr Roberts. There is no suggestion in the evidence that Mr Casewas involved in the scheme put into place by MrRoberts or in the eventssurrounding the other publications. The relevant background concerningMr Case is centred upon his involvementwith the group campaigning onissues related to the Modbury Hospital and the decision of that group to targetthe plaintiff at theOctober, 1997 election. The learned trial Judge correctlyfound that the views of Mr Case with respect to the privatisation issuewere "dogmatic and passionate" and that such intransigent views can lead toerror. His Honour found that the anger of Mr Case wasdirected at theplaintiff and that Mr Case was incorrect in his view that the plaintiffhad been arrogant in his response to a requestto arrange a meeting with theMinister. Further, his Honour found that Mr Case held perceptions of theplaintiff's views on traveland gun legislation which were totally inaccurate.The learned trial Judge found as follows:
"Mr Case is an intelligent and capable person who I have little doubt couldhave enquired about and ascertained the extent of themanner in whichMr Bass had conducted himself in and about parliamentary travel andfirearms control. He made no such enquiries. Like Mr Roberts, he wouldaccept any propaganda in his aim to remove Mr Bass from office.
Mr Case admitted that he was away overseas shortly before the election. Whenhe returned he was directed to a booth and handingout the action group'spamphlet as well as the [Card]. He said he perused the [Card] and there wasnothing whatever on it that causedhim any concern and he proceeded to hand itout.
In summary, the views of Mr Case were so passionate that he would adopt anymeans to achieve the aims of his group of removing MrBass from office andsecure the election of a politician who would work to restore the governmentmanagement of the administrationof Modbury Hospital. Mr Case did not take inmy view any steps to ensure the accuracy or otherwise of the words on theelectionmorning pamphlet. I view him, like Mr Roberts, that his solemotive was to remove Mr Bass from office using any means without anyconcern for the factual base."
94The primary concern of Mr Case was to achieve the defeat of theplaintiff at the election. Such a purpose does not amount tomalice that woulddefeat a claim of qualified privilege.
95In his finding to which I earlier referred that the main intention of thedefendants was to injure the plaintiff and to lowerhim in the estimation ofhis fellow persons, the learned trial Judge referred to the three documents aspart of a strategy designedto have that effect. In doing so, his Honour mayhave overlooked the fact that Mr Case was not involved in the preparationor publicationof the first and second documents. There was no evidence thathe was involved with the strategy pursued by Mr Roberts. Later inhisremarks, his Honour spoke of the indifference of Mr Case and expressed theview that the actions of Mr Case "were not as recklesslyblatant" as thatof Mr Roberts. His Honour then made a finding that the dominant motive ofMr Case was to injure the plaintiff'sreputation and to remove him fromoffice.
96While the learned trial Judge found that the evidence of Mr Roberts wasunsatisfactory, he did not make a similar finding withrespect to the evidenceof Mr Case. He referred to the intransigent views of Mr Case thatcould lead to error and to his anger whichwas directed at the plaintiff. HisHonour found that the views of Mr Case were erroneous and that he waswilling to accept any propagandain his aim to remove the plaintiff fromoffice. The learned trial Judge did not find, however, that Mr Case knewthat statementson the Card were untrue. Mr Case did not engage in acourse of conduct of the type that was so revealing with respect toMr Roberts. The fact that Mr Case and the group targeted theplaintiff for the purposes of the election campaign did not establish adominantpurpose or intention to injure. Targeting a particular politicalopponent or figure is a common tactical decision made by thosewho becomeinvolved in political campaigns and who possess a desire to defeat the targetat an election. More than merely choosingthe plaintiff as a target was neededto establish a dominant motive to injure.
97In all the circumstances disclosed by the evidence, and particularly from myreading of the evidence of Mr Case, without the advantageof seeing andhearing the witnesses I would not have been prepared to draw the conclusionthat Mr Case possessed a dominant intentionto injure the plaintiff.However, inDevries v Australian National Railways Commission (1993) 177CLR 472 at 479 the High Court reminded appellate courts of the approach to betaken to findings of fact that depend toa substantial degree on thecredibility of witnesses and of the limited basis upon which the appellatecourts are entitled to interferewith such findings:
"More than once in recent years, this Court has pointed out that a finding offact by a trial Judge, based on the credibility ofa witness, is not to be setaside because an appellate court thinks that the probabilities of the case areagainst - even stronglyagainst - that finding of fact. If the trial Judge'sfinding depends to any substantial degree on the credibility of the witness,the finding must stand unless it can be shown that the trial Judge "has failedto use or has palpably misused his advantage" or hasacted on evidence whichwas "inconsistent with facts incontrovertibly established by the evidence" orwhich was "glaringly improbable""(footnotes omitted).
98The finding of the learned trial Judge with respect to the motive ofMr Case depended heavily upon his view of the credibilityof Mr Case.That view was undoubtedly influenced by his observations of Mr Case andthe manner in which Mr Case gave evidence. However,as I have mentioned,his Honour did not make a finding that he rejected the evidence of Mr Caseor that in any particular respectthe evidence of Mr Case wasunsatisfactory. In addition, although the background of the involvement ofMr Case in a campaign againstthe plaintiff was relevant, the criticalquestion was whether he possessed a dominant motive to injure the plaintiff atthe timethat he distributed the Card. In this context, it is significant thatMr Case only saw the Card shortly before he began distributingit andthere has been no rejection of his evidence that when he looked at the Card thecontent appeared to "sound right".
99In the circumstances I have outlined, after anxious consideration of theevidence of Mr Case and bearing in mind the error thathis Honour appearsto have made in linking Mr Case with the strategy apparent from the threedocuments, I have reached the view thatthe learned trial Judge erred inconcluding that Mr Case possessed a dominant motive to injure theplaintiff. The critical questionsremain, therefore, as to whether his Honourwas correct in finding the defence of qualified privilege also failed becauseMr Casedid not possess an honest belief in the statements or because hepublished the untrue defamatory matter recklessly, without consideringorcaring whether it be true or not. If Mr Case was reckless in that sense,as Lord Diplock explained inHorrocks v Lowe Mr Case would betreated as if he knew the statements to be false.
100In considering the question of recklessness, which is often identified asindifference, it is important to bear in mind the observationofLord Diplock that indifference to the truth of what was published "is notto be equated with carelessness, impulsiveness or irrationalityin arriving ata positive belief" that the published statement was true. As his Lordshippointed out, in ordinary life people areswayed by prejudice, rely on intuitionand leap to conclusions on inadequate evidence. Nevertheless, the beliefarrived at may stillbe "honest" in the sense that it is a positive belief thatthe conclusions reached are true.
101Mr Case said that the Card accorded with his views and knowledge. Hesaid he looked at it and thought that it sounded right. However, Mr Casedid not claim to possess a belief that the plaintiff had previously spent$32 000 of taxpayers' money on overseastravel. He placed a differentinterpretation upon the statement concerning the $32 000. He did notagree that the statement meantthat the plaintiff had previously spent$32 000 on overseas travel. In his view, it meant that the plaintiff hadpreviously beenqualified to spend that amount on travel and, if elected, hewould again qualify to spend the same amount on travel during the periodof histenure. In the view of the learned trial Judge and all members of this Court,the interpretation given by Mr Case is incorrect. Mr Case did not,therefore, claim to possess a belief in the truth of the statement asinterpreted by the learned trial Judge andthis Court.
102The professed beliefs of Mr Case as to other statements were based oninadequate evidence and were influenced by both his enthusiasmfor the cause ofthe Modbury Hospital and his desire to see the plaintiff removed from office.Notwithstanding those inadequacies,I doubt that the evidence justified afinding that Mr Case did not possess those professed beliefs. However, itis not necessaryto decide this issue. The learned trial Judge was satisfiedthat Mr Case was indifferent within the meaning of the test posed byLord Diplock. That conclusion was reasonably open on the evidence. Inparticular, Mr Case was indifferent to the imputation inthe statement that theplaintiff was of such a character that he placed more importance on the rightsof persons with respect tofirearms than the safety of the electors' families.Having reviewed the evidence, I am also satisfied that Mr Case wasindifferentto the truth of the imputation apparent from the Card viewed in itsentirety that the plaintiff had engaged in discreditable conductin thedischarge of his Parliamentary responsibilities.
103For these reasons, in my opinion the appeals by the defendants against thefindings of liability should be dismissed.
104As to the assessment of damages, I agree with Williams J that theplaintiff has not demonstrated that the award against Mr Caseismanifestly inadequate or that there is any basis upon which this Court shouldinterfere with that award. I also agree that theindividual awards for eachpublication and the total award of $55 000 against Mr Roberts forcompensatory damages are so inadequatethat this Court is required tointerfere.
105The essence of the imputations in the first publication was that theplaintiff had misused public funds and neglected his dutiesby embarking on aholiday at the taxpayers' expense. I agree that an award of $20 000should be made in respect of that publication.
106The second publication repeated the allegation that the plaintiff hadmisused public funds for his own benefit and containedthe imputation that heimproperly used frequent flyer rewards for his own and his family's benefit.It was an aggravated defamationbecause it followed the first publication. Iagree that an award of $35 000 is appropriate.
107The third publication also contained serious imputations reflectingadversely upon the integrity of the plaintiff. It was theculmination of thecampaign by Mr Roberts. In addition, Mr Roberts persisted in thecourse of conduct and deliberately avoided complyingwith the request by theElectoral Commissioner. In all the circumstances, in my opinion an award of$45 000 is appropriate.
108As to exemplary damages, while the conduct of Mr Roberts was capableof justifying an award, I agree with the views expressedby Williams Jthat in the particular circumstances of this matter it is inappropriate to addan award of exemplary damages.
109I would dismiss the appeals by Mr Roberts and Mr Case. I woulddismiss the cross-appeal by the plaintiff in respect of the damagesawardedagainst Mr Case. I would allow the cross-appeal by the plaintiff inrespect of the award of damages against Mr Roberts forthe purpose ofincreasing the awards against Mr Roberts to $20 000, $35 000 and$45 000 for a total award of $100 000.
1.Horrocks v Lowe[1975] AC 135 at 149 - 150;Barbaro v AmalgamatedTelevision Services (1985) 1NSWLR 30 at 50 and 51
2.Triggell v Pheeney[1951] HCA 23;(1951) 82 CLR 497 at 512 - 514;Carson v JohnFairfax & Sons Ltd[1993] HCA 31;(1993) 178 CLR 44 at 120;Peterson v AdvertiserNewspapers (1995) 1[1995] SASC 5018;64 SASR 152 at 201
3.Carson[1993] HCA 31;(1993) 178 CLR 44 at 60 - 61
Horrocks v Lowe[1975] AC 135 at149 - 150;Barbaro v Amalgamated Television Services (1985) 1NSWLR 30 at50 and 51
[2]Triggell v Pheeney[1951] HCA 23;(1951) 82 CLR 497at 512 - 514;Carson v John Fairfax & Sons Ltd[1993] HCA 31;(1993) 178 CLR 44 at120;Peterson v Advertiser Newspapers (1995) 1[1995] SASC 5018;64 SASR 152 at 201
[3]Carson[1993] HCA 31;(1993) 178 CLR 44 at 60 - 61
