Andrew Kay v Kenneth Cunningham and David Hookes No. SCGRG 95/762 Judgment No. 5242 Number of Pages 18 Defamation

[1995] SASC 5242

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), DEBELLE(2) and NYLAND(3) JJ

CWDS
Defamation - television broadcast - news program - report that persons had leaked news for personal gain - whether plaintiffs identified - whether defamatory - whether fair comment - whether malice - whether damages excessive - relevant principles - appeal dismissed. Morgan v Odhams Press Ltd (1971) 2 All ER 1156; Knupffer v London Express Newspaper Ltd (1944) AC 116; Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348; Silkin v Beaverbrook Newspapers Ltd
(1958) 2 All ER 516; Slim v Daily Telegraph Ltd (1968) 2 QB 157; Horrocks v Lowe (1975) AC 135; Spautz v Williams (1983) 2 NSWLR 506, applied. Rocca v Manhire (1992) 57 SASR 224; Babaro v Amalgamated Television Services Ltd
(1985) 1 NSWLR 30, considered.

HRNG ADELAIDE, 8 June 1995 #DATE 8:9:1995 #ADD 28:11:1995

Counsel for appellant:     D A Trim

Solicitors for appellant:    Finlaysons

Counsel for respondent:     A R Harris

Solicitors for respondent: Philips Fox

ORDER
Appeal dismissed.

JUDGE1 DOYLE CJ In my opinion this appeal should be dismissed. Subject to one qualification, which does not affect the outcome, I agree with the reasons of Debelle J. I will not repeat the facts, which are adequately set out in the judgment of Debelle J.

2. I disagree with the conclusion reached by Debelle J that the statement by the defendant to the effect that the leak "reeked of personal gain" was an expression of opinion. In my opinion that statement was a statement of fact.

3. The distinction between fact and comment or opinion is often, as Debelle J remarks, elusive. The meaning of the words has to be approached through the medium of an ordinary unprejudiced reader. The distinction between fact and opinion is itself a question of fact.

4. As Debelle J said when considering whether the words used were defamatory, the expression to which I have referred was capable of meaning that the plaintiffs had broken the story for some financial or other reward. In this sense the words went beyond suggesting that the plaintiffs had been irresponsible. They also went beyond suggesting that, in their desire to obtain a "scoop" or the publicity which went with being the first to break the story, the plaintiffs were prepared to see harm done to the Adelaide 36-ers. In the sense in which Debelle J found the words to be defamatory there was an imputation of financial or other pecuniary gain. It is not to the point that on careful reflection one might wonder what sort of financial or other gain would be involved. The point is that the imputation was made.

5. The words being capable of that meaning, and having been found to have that meaning by the Judge, I cannot agree that they can be treated as a comment rather than as a statement of fact. Granted, the words express a criticism of the behaviour of the plaintiffs, but the words do not convey a mere comment or criticism about the leak nor are they a mere comment upon the attitude of the plaintiffs to the damage which might be done to the Adelaide 36-ers by the leak. It seems to me that the words used assert a reason for the plaintiffs having acted as they did, and a reason which is defamatory. They assert a circumstance relating to the leak, or a reason for it occurring. They go beyond the expression of an opinion on the decision to leak the story and on the attitude of the plaintiffs to the damage which that might do. They suggest that the plaintiffs did what they did for personal gain and that, as I have already said, was expressed in a manner which the Judge found to be defamatory and which in my opinion he was entitled to so find.

6. It is for those reasons that I cannot agree that this particular statement was a comment.

7. However, I agree with Debelle J that if it was a comment it was not a fair comment.

8. For those reasons the difference between me and Debelle J on this point does not cause me to disagree with his conclusion that the appeal should be dismissed.

JUDGE2 DEBELLE J This is an appeal from a decision in which it was held that the appellant (defendant) was liable in defamation to each of the respondents (plaintiffs) and ordering that the appellant pay to each the sum of $20,000 damages. It is convenient to refer to the parties by their original status as plaintiffs and defendant.

2. The defendant is employed as a news broadcaster by a television station known as Channel 7. The plaintiffs are both employed by a radio station known as 5AA. They are well known sporting identities. They conduct a program, on Mondays to Fridays between 4.00pm and 7.00pm and on Saturday mornings, called the "Hookesy and KG Sports Show".

3. These proceedings arise out of the publication of news concerning the coach of a basketball team known as the Adelaide 36ers. In the 1992 to 1993 season the coach of the team was a Mr Don Monson. On 27 September 1993, the plaintiffs announced on their radio program that Mr Monson had not been re-appointed coach. The plaintiffs were the first to publish this news and the only persons who published it on 27 September. The reasons for this will appear later. The defendant was critical of the fact that they had done so. During a news program broadcast by Channel 7 at a little before 6.30pm on 28 September 1993 and in the course of a segment devoted to sports news, the defendant commented on the announcement using words which the plaintiffs assert were defamatory of them. The text of this part of the news program follows. The words complained of are emphasised. The item was introduced by a news reader in these terms:
    "The Super Sixers' preparation for tomorrow's quarter final
    clash against Melbourne Magic has been thrown into disarray
    with news that Don Monson won't coach the team next year.
    Whilst it's no secret that Monson would be replaced, players
    and officials are staggered it was released to the public."

4. The defendant said:
    "SOME PEOPLE IN ADELAIDE JUST DON'T KNOW WHEN TO KEEP THEIR
    MOUTHS SHUT AND YESTERDAY'S LEAK THAT MONSON WOULDN'T BE
    RE-APPOINTED REEKED OF PERSONAL GAIN RATHER THAN SUPPORT FOR
    A TEAM REPRESENTING THIS STATE IN ITS BIGGEST GAME OF THE
    YEAR."

5. These remarks were followed by an interview with a player in the Adelaide 36ers called Mike McKay who said:
    "It's a little bit disappointing that stuff like that does
    come out but you know we've just got to make sure that we
    are focused now on the game now and that all that stuff sort
    of take care of itself."

6. The defendant continued:
    "Monson has known for some time this would be his only year
    at the Sixers' helm and the senior players knew as well but
    it was kept from public debate so that the focus would
    remain on the playoffs. The concern should be over the
    fitness of Mark Davis and Mike McKay who has been seeing the
    doctors all week after his ribs took a hammering while
    setting screens against Sydney."

7. These remarks were followed by another extract from the interview with Mr McKay in which he said:
    "Yes, its part of the game I think and oh you know there's
    just general soreness and so forth but you know I'll be
    right to play."

8. The segment then concluded with the defendant saying:
    "THE SIXERS' BOARD HAS BEEN WORKING FEVERISHLY TO COMPLETE
    NEGOTIATIONS WITH THE NEW LONG TERM COACH. LET'S HOPE
    CERTAIN ELEMENTS IN THIS TOWN WORKING AGAINST THE TEAM DON'T
    MESS THIS UP AS WELL."

9. A broadcast by television is deemed to be a publication in permanent form: s120 of the Broadcasting Act 1942 (Cth).

10. Although the words complained of do not expressly identify the plaintiffs, the trial judge found the words were published of and concerning them; that the words defamed the plaintiffs; and that the words were comment and not statements of fact but the defence of fair comment was negated by malice on the part of the defendant. The trial judge awarded $20,000 damages to each plaintiff. The defendant appeals against each of these findings with the exception of the finding that the words were comment. He appeals also against the award of damages to each of the plaintiffs on the ground that the award of damages is manifestly excessive. The plaintiffs each cross-appeal on the ground that the assessment of damages is manifestly inadequate.

11. The Adelaide 36ers compete in a national basketball competition. On about 20 August 1993 the Board of Management of the Adelaide 36ers had decided not to re-appoint Mr Monson as coach of the team. Mr Simpson, the President of the Board of Management of the team, informed representatives of several media organisations in Adelaide of the decision but asked that they not publish the decision. One reason for the request was that the team had won its way into a group of teams which were then competing to become the winner of the competition. The defendant and a representative of "The Advertiser" newspaper were two of those who were informed of the decision. The plaintiffs were not among the group of persons to whom Mr Simpson disclosed the decision. The trial judge found that neither of the plaintiffs knew of the decision before 27 September 1993 nor any speculation or rumour concerning it.

12. On the morning of 27 September 1993 the plaintiffs met Mr Curtin, the producer of their radio program, to discuss the content of the program to be broadcast that evening. During the meeting, the respondent Cunningham received a telephone call from a Mr P Smythe, a player with the Adelaide 36ers. Smythe informed Cunningham that Mr Monson would not be re-appointed coach of the Adelaide 36ers in the 1994 season. Smythe consented to Cunningham announcing the fact on the plaintiffs' radio program provided that his name was not used. The plaintiffs decided to broadcast the story that evening. At about 5.00pm, in the course of the program, Cunningham introduced the segment during which he announced that Mr Monson was not going to be re-appointed coach. The conversation between Cunningham and Hookes on this topic began:
    "Cunningham ... Hookesy, the story, the big story come as an
    enormous bombshell to me is the fact that I believe that Don
    Monson won't coach the Adelaide 36ers next year.

Hookes: There is some speculation that he will go home with
    the family.

Cunningham: No he wants to coach, he wants the job but my
    mail is that he will be given the flick. Excuse me. His
    contract won't be renewed.

Hookes: Oh, you're ...

Cunningham: Well my mail is that I that er the Adelaide
    36ers are looking for a person for a long term situation say
    3 years."

13. The plaintiffs then briefly discussed the merits of the decision. The plaintiffs say that it is this broadcast which would have caused those who listened both to the radio program and to the broadcast by the defendant on Channel 7 to have identified the plaintiffs as the target of the words spoken by the defendant.

14. The next day, "The Advertiser" newspaper published in its sports section an article written by Mr Boti Nagy under the heading "Monson Won't Coach in '94". The opening paragraphs of the article were in these terms:
    "Adelaide 36ers coach Don Monson will not be at the helm of
    the National Basketball League club in 1994.

A statement will be released by the club today confirming
    that by mutual agreement, Monson, who this season guided the
    Super Sixers back into the play-offs, will not be returning.

On the eve of tomorrow night's home quarter-final against
    the reigning Mitsubishi Challenge champion South East
    Melbourne, the timing of the announcement is less than well-
    conceived and sure to send shockwaves across the basketball
    fraternity.

It was brought on by what club president Mal Simpson
    described as 'widespread rumour and speculation'."

15. The plaintiffs arranged that Mr Nagy would be interviewed on their program that evening. The interview was recorded and broadcast later at about 5.00pm.

16. In the course of the interview with Mr Nagy, reference was made to the fact that the news that Mr Monson was not going to be re-appointed coach had been leaked to the plaintiffs. The respondent Cunningham referred to the poor timing of the leak given that the Adelaide 36ers were about to play in a finals competition. The interview was introduced by a conversation between Messrs Cunningham and Hookes in the course of which Hookes said that Cunningham had broken the news during the broadcast on the previous afternoon. Hookes also mentioned that "The Advertiser" had reported that Monson had not been re-appointed coach. He said:
    "... and in the ensuing twelve to fourteen hours The
    Advertiser picked it up and on the front page of sport Boti
    Nagy who is a wonder writer and puts it right down there in
    its right perspective."

17. During the interview Mr Nagy referred to the news being leaked. He added "I mean I don't know where you got what your source was Ken yesterday on the show but I guess it had to be leaked somewhere along the way". Cunningham responded:
    "Boti, it's bad Hookesy like the timing of this is very
    ordinary like they are playing their first playoff match
    tomorrow night and suddenly its leaked 48 hours that Monson
    won't coach. Well you'd think it was deliberate wouldn't
    you. Well, yeah you wouldn't need to be Einstein to work
    that out would you. ... The agreement must have been made
    between Monson and the Sixers sometime in the last few weeks
    that he wouldn't be back so you have to get intrigued about
    the timing of the announcement. It's done now so that if
    they beat the Magic and then beat whoever in the next round
    and go all the way people will have been prepared for it I
    suppose."

18. The plaintiffs and Mr Nagy then spoke of the merits of the decision and its timing and the timing of the announcement. The interview concluded:
    "Boti thanks for your time. I do appreciate your articles
    in the mornings and let's hope that we can gather some
    momentum and find out what's behind the smoke screen. ...
    Something's not right about this thing. There's something
    not right about this. Things don't come out at this time of
    the year without reason. Two days and two days before I get
    a phone call to tell me exactly what's going on. Two days
    before we play our most important game of that last what
    five years. So what are you suggesting. Why. Perhaps some
    people want us to lose tomorrow night. Well mate you've got
    to ask the question why was it leaked. The Advertiser chief
    basketball writer Boti Nagy."

19. Before the interview between Mr Nagy and the plaintiffs was broadcast, the defendant rang Mr Curtin. The defendant referred to the plaintiffs' broadcast the previous afternoon and said, among other things, words to the effect that the plaintiffs should be very careful about what they say and "get their facts right". Curtin immediately informed the plaintiffs of the telephone conversation. Mr Cunningham telephoned the defendant while the recording of the interview with Mr Nagy was being broadcast. Cunningham's evidence of their conversation was as follows:
    "A. Yes, I rang Mr Kay at Channel 7 and I said to him,
    'Andrew, what's bothering you?' He said, 'That you have
    broken the confidentiality of two board men with the Monson
    story.' I said, 'Andrew that is absolute nonsense, it is
    not (sic) nonsense that is not the fact at all, two board
    men did not tell me about the story. I was told by a person
    who I'm not going to tell you who it was. I knew that
    information to be correct and that's why I broke the story.'
    He was quite agitated at the fact that -

OBJECTION Mr Trim objects.

Q. Can you describe the tone of Mr Kay's voice.

A. Yes, it was aggressive and agitated.

Q. Can you remember anything else that was said.

A. I said, 'Andrew, you know they're not the facts of the
    matter, two board men didn't tell me the story.' He then
    went on to say why would I drop the story when I did because
    of the 36ers, and I just said, 'Quite simply Andrew, I don't
    tell you what you have on Channel 7 and you don't tell me
    what I put on 5AA.'"

20. Mr Hookes gave evidence, the effect of which was to confirm that account of the conversation. Later that evening the defendant spoke the impugned words.

IDENTIFICATION
21. The plaintiffs each gave evidence that they believed themselves to be the persons referred to in the expressions "some people" and "certain elements" used by the defendant. They also gave evidence that each was spoken to by others who identified them as the subject of the remarks made by the defendant. Such evidence is admissible although it is of no great value and should be treated with caution: Jozwiak v Sadek (1954) 1 All ER 3. The trial judge held that what had been said to Cunningham was equivocal and did not rely on it. Hookes gave evidence of two persons speaking to him at two separate functions, one of which was identified as "the Baulderstone function". The trial judge held that it could be reasonably inferred that the speakers had heard both the television broadcast and the radio program and identified the plaintiffs as the subject of the television broadcast.

22. In finding that the words complained of referred to the plaintiffs, the trial judge had regard to the speeches of Lord Morris and Lord Pearson in Morgan v Odhams Press Ltd (1971) 2 All ER 1156 which, in relation to a newspaper article, noted that an average reader does not read a sensational article with analytical care. The trial judge added that hearing words in a radio or television broadcast afforded less opportunity to absorb and analyse the content and meaning than is available when reading a newspaper. He held that there were persons who would have heard both the plaintiffs' radio program and the television broadcast. Some of those persons might have also read the article written by Mr Nagy in "The Advertiser" and heard the interview with Mr Nagy during the plaintiffs' radio program on 28 September. There might, therefore, be some who might not have understood the defendant's words to refer to the plaintiffs. However, he held that there were persons who would not have been aware of all the publications concerning the fact that Mr Monson had not been re-appointed coach. There is no attack upon these findings. The trial judge then held that it would not be correct to endow a person who had heard only the plaintiffs' radio program and the television broadcast with an inquiring mind astute to distinguish between a revelation by the plaintiffs in their radio program on the one hand and, on the other hand, the source of the information on which that program was based for the purpose of identifying "some people" and "yesterday's leak" as referring to the latter. It is this latter part of the reasoning of which the defendant complains.

23. Mr Trim, who appeared for the defendant, advanced several grounds for impugning the conclusion. He first relied on the evidence given by the plaintiffs that no-one who listened to their radio program would think that they would do anything contrary to the interests of the 36ers, evidence which was supported by two witnesses called by the plaintiffs. The argument fails correctly to apply the principles relating to the identification of those who claim to have been defamed.

24. Where the plaintiff has not been named in the words complained of and identification is in issue, the plaintiff must prove that the words would be reasonably understood as referring to him. The test is whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to: Knupffer v London Express Newspaper Ltd
(1944) AC 116 per Viscount Simon LC at 119. In Morgan v Odhams Press Ltd (supra) at 1168 Lord Morris stated the test in these terms:
    "The question for the judge at the end of the plaintiff's case was

    whether there was evidence on which the jury could (not would)
    decide in favour of the plaintiff. That in turn raised the
    question whether the jury could decide that some readers (having
    knowledge of certain circumstances) would reasonably understand
    the words as referring to the plaintiff. If no reasonable reader
    could have understood the words as referring to the plaintiff then
    there would be nothing to be left to the jury."

25. On an appeal from a finding by a trial judge, the test must be the same. In this case, the test is whether there was evidence on which the trial judge could find that those who had watched the television broadcast and who had heard the radio program would reasonably understand the words to refer to the plaintiffs.

26. After making the observations just quoted, Lord Morris went on to discuss a submission akin to that advanced by Mr Trim:
    "In deciding whether or not the words referred to were
    reasonably understood as referring to the plaintiff the jury
    would consider any pieces of evidence which might tend to
    negative the conclusion that readers reasonably so
    understood, but if the conclusion were reached that readers
    did reasonably so understand then it would be immaterial on
    this issue whether the readers further believed that the
    words were true or only partly so believed or declined to
    believe that they were true. Here I must refer to a
    contention which was raised in argument. It was submitted
    that if defamatory words concerning A are published to B who
    refuses to believe that the words are true then A would have
    no cause of action. I consider that such a contention is
    completely fallacious. Apart from any question affecting
    the measure of damages A's rights would be unaffected by the
    circumstance that B in fact disbelieved the words. I agree
    with what Goddard LJ said in Hough v London Express
Newspaper Ltd (1940) 3 All ER 31 at 35, (1940) 2 KB 507 at
    515:
    'If words which impute discreditable conduct to my friend
    are used, he has been defamed to me, although I do not
    believe the imputation, and may even know that it is
    untrue.'"

27. It would be superfluous to add anything to these observations other than to note that they apply with equal force to the circumstances of this case. While the evidence of the plaintiffs might affect the measure of damages, it does not have the consequence that the plaintiffs were not identified as the persons responsible for "yesterday's leak".

28. When determining whether the hypothetical ordinary reader, or in this case the hypothetical ordinary viewer, would reasonably have understood the words to refer to the plaintiff, a court does not expect that person to scrutinise the words used with particular care. Thus, in Morgan v Odhams Press Ltd Lord Morris said (at 1170) that what must be contemplated is a reading of a newspaper in what would be considered to be an ordinary way and that "the average reader does not read a sensational article with cautious and critical analytical care". Lord Reid (at 1162-1163) permitted the reader to have "a certain amount of loose thinking". Lord Pearson (at 1184) said that the relevant impression is that which would be conveyed to an ordinary reasonable man with knowledge of the circumstances "reading the article casually and not expecting a high degree of accuracy". The standards of reasonableness required of an identifying reader are not high: Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 per Hutley JA at 364, who added:
    "The authorities also seem to require the judge, in deciding
    whether to leave the question to the jury, to have regard to
    the fact that the identification will not necessarily be
    made by a careful reader. A sensible but hasty reader may
    appear a contradiction in terms, but the authorities have
    made him the standard. The extrinsic facts which enabled
    the identification to take place do not have to coincide
    exactly with the facts detailed in the defamatory matter, as
    a reasonable reader will not expect perfect accuracy. In
    this regard greater latitude appears to be allowed if the
    material is published in a sensational newspaper as
    contrasted with one with a reputation for sobriety and
    veracity."

29. These observations apply with greater force to a television broadcast where spoken words and visual images quickly succeed one another and the viewer has a limited and fleeting opportunity to hear the words used. The trial judge correctly noted that a television broadcast affords less opportunity to reason and analyse content that is available when reading a newspaper. In the case of television broadcasts, regard should be had to what would reasonably be the overall impression upon the person watching the television broadcast.

30. An important part of Mr Trim's argument was the contention that the word "leak" should be understood to refer to the primary source of the story so that the expression "yesterday's leak" could not refer to the plaintiffs but only to the person or persons who had made the disclosure to them. I think this argument requires too high a degree of discernment or critical analysis on the part of the viewer of the television program. The plaintiffs were the only persons who on 27 September had reported the news that Mr Monson had not been re-appointed coach and they were the first to reveal that fact. In journalists' terms, they "broke the story". The word "leak" refers to the act of covertly or otherwise disclosing information of a confidential nature: see Macquarie Dictionary and Oxford English Dictionary. A careful use of language would distinguish between those who first publish or "break" a story and those who had provided or "leaked" the information to those who published it. But it is, I think, fair to say that the distinction is not always carefully drawn or understood. It would be reasonable for those who had watched the television broadcast and who on the previous day had heard the plaintiffs' radio program to infer that the expression "yesterday's leak" referred to the plaintiffs' radio program particularly as the plaintiffs were the only persons who broadcast this story.

31. Further, it would not necessarily be clear to those who heard the radio program, even if they were careful in their use of language and listened closely to what was said, that the plaintiffs were not leaking the story concerning Mr Monson. There was little, if anything, in the plaintiffs' program on 27 September from which even a careful listener could glean that a third person had given confidential information to the plaintiffs or either of them and they were at liberty to publish it. The opening words of the segment in which the plaintiffs announced the news concerning Mr Monson have already been quoted. In the colourful jargon of Mr Cunningham, there are only two statements in those introductory words which suggest that the news about Mr Monson had been leaked to him. They are the statements in which the expression "my mail is ...", an expression which is no doubt intended to convey that he had received certain information. However, even the use of that expression does not necessarily indicate that Cunningham was not leaking information which has been disclosed to him in confidence. It is equally consistent with Cunningham having received confidential information and being the person who was disclosing that information. The only other words which might have suggested that Cunningham was passing on what had been leaked to him were his opening words "this has come as an enormous bombshell to me" but even that expression does not clearly indicate that Cunningham was not himself leaking the information. It would be reasonable for a listener to the radio program to conclude that the plaintiffs had leaked the story on their radio program. Those who heard the radio program and who watched the television broadcast the next day, but had not heard the interview with Mr Nagy earlier that afternoon on the plaintiffs' radio program, would fairly readily conclude that the words "yesterday's leak" referred to the plaintiffs. Given that the hypothetical television viewer has but a limited opportunity to absorb the words and images broadcast in quick succession and, as a matter of law, is not expected to examine closely the words which have been used, there was evidence on which the trial judge could find that those who were watching the television broadcast and had heard the radio program would reasonably understand that the words used in the broadcast referred to the plaintiffs.

32. In concluding that the words complained of referred to the plaintiffs, the trial judge also relied on the evidence of Messrs Pearce and Curtis, two witnesses who had connected the defendant's words with the plaintiffs. Mr Trim was critical of the reliance of the trial judge on this evidence, submitting that neither met the criterion of a reasonable viewer of the television program given that each had a close association with the plaintiff. Mr Trim was critical also of the use made by the trial judge of the evidence of Mr Hookes concerning the person who spoke to him at the Baulderstone function and who identified Hookes as being referred to in the television broadcast and evidence of the comments of a listener who had telephoned and spoken on a talk-back segment of the plaintiffs' radio program on 28 September, complaining that the plaintiffs had leaked the story. The trial judge was entitled to rely on the evidence: Jozwiak v Sadek (supra). His reasons show that he was aware that he had to be careful in his use of the evidence and that he was aware of the limitations of the evidence. I do not think there is any force in Mr Trim's criticism of the use of this evidence in the reasoning of the judge in this respect.

WERE THE WORDS DEFAMATORY? 33. In the statement of claim the plaintiffs pleaded that the words complained of meant and were understood to mean that, in broadcasting the story on their radio program on 27 September, they
    "7.1 were motivated by personal gain and self interest;
    7.2 acted in disregard of the interests of a team
    representing the State;
    7.3 did not support a team representing the State;
    7.4 were working against a team representing the State; ...
    7.7 acted in a manner which was incompetent and
    unprofessional."

34. The trial judge held that the words used by the defendant were defamatory. In reaching that conclusion he said:
    "The defendant's words stated that the plaintiffs'
    revelation 'reeked of personal gain'. The word 'reek'
    implies something offensive to the nose when applied to
    describe some substance. Its use to categorise the conduct
    of a person conveys that that conduct is objectionable by
    any standard and is to be shunned by all reasonable persons.
    In my opinion the defendant's words 'reeked of personal
    gain' accuse the plaintiffs of behaving improperly and
    reprehensibly in revealing the Monson story. It is implicit
    in the words used that the plaintiffs broadcast the story
    when no other responsible person in the position of the
    plaintiffs would have done so. I have no hesitation in
    finding that the defendant's words were defamatory; they
    attributed to the plaintiffs a base motive, that is putting
    their personal interests before the interests of the 36ers.
    I am satisfied the plaintiffs have made out their plea in
    paragraphs 7.1, 7.2, 7.3, 7.4 and 7.7."

35. Mr Trim contended that, while the impugned words were distasteful, they did not carry the imputations alleged and were not defamatory.

36. The expression "reeked of personal gain" is capable of different meanings according to the manner in which the expression is understood. It might be understood to mean that the plaintiffs had leaked the story for the benefit of their radio program in being first to break the story. It might also have been understood to mean that the plaintiffs had leaked the story for financial reward. Some other possible meanings were pleaded.

37. Mr Trim submitted that the imputations pleaded in paras 7.2, 7.3 and 7.4 must be predicated on the false assumption that all sports commentators in South Australia are obliged to evince unwavering support for a South Australian sporting team. There is a good deal of force in this argument. The meanings pleaded in paras 7.2, 7.3 and 7.4 are not, I think, defamatory or, if they are, they would qualify as fair comment on a matter of public interest. A sports commentator is at liberty fairly to criticise a South Australian sporting team. It would be a sad day if fair and reasonable criticism were prohibited even of home teams. It is not clear that the meaning pleaded in para 7.7 is defamatory but again, if it was, it might well qualify as fair comment. Even if the words were understood to mean that the plaintiffs had leaked the story for the benefit of their radio program, it would be doubtful whether the words were defamatory. It is well known that being the first to publish a story is a highly desired prize for any media organisation. The respondent Cunningham said in his evidence "It is very important to be the first person to break the story".

38. However, the submission made by Mr Trim overlooks the force of the words "reeked of personal gain". Although the words used may be capable of different meanings, the task for the judge was to determine their meaning, a task which Diplock LJ described in Slim v Daily Telegraph Ltd (1968) 2 QB 157 at 172 as "artificial": see generally the discussion at 172-176 and Salmon LJ at 184-187. The trial judge concluded that the words meant and were understood to mean that the plaintiffs acted out of a base motive in that they put their personal interests before the interests of the basketball team. In reaching that conclusion, he gave a good deal of weight to the use of the word "reeked". He was entitled to do so. The use of the word "reeked" connotes a strong sense of something unpleasant or offensive: see Macquarie Dictionary and Oxford English Dictionary. The expression "personal gain" infers, among other things, that money has changed hands.

39. The ordinary and natural meaning of words may include any implication or inference which a reasonable reader would draw from the words guided not by any special knowledge but only by general knowledge and not fettered by any strict rules of construction: Jones v Skelton (1963) 37 ALJR 324, 327. It was, therefore, reasonable for the trial judge to conclude that the expression attributed a base motive to the plaintiffs. The trial judge did not specify what he meant by the plaintiffs advancing their personal interests over the interests of the team. But reference to a base motive coupled with "personal interest" indicates that the judge held that the words meant that the plaintiffs had broken this story for some financial or other reward. The words are capable of that meaning and I do not think there is any ground for this Court to interfere with that finding. Had the defendant sought to direct fair criticism at the plaintiffs for what he regarded as poor timing in breaking the story and to be critical of the plaintiffs' motives in doing so, he could have used a number of other expressions which would not have carried, as these words do, the clear inference that the plaintiffs were induced by some unspecified financial or other gain to break the story. To assert that well-known sporting commentators were induced to financial or other reward to publish a news story harmful to a sporting team is to attribute seriously dishonourable conduct and is plainly defamatory. The unspecified nature of the personal gain only serves to emphasise the defamatory meaning. The trial judge was correct in holding that the words complained of were defamatory.

FAIR COMMENT
40. The plaintiffs did not put in issue the defendant's contention that the subject matter of the broadcast, that is to say, the decision not to re-appoint Mr Monson and the breaking of the story by the plaintiffs, was a matter of public interest. The issue was whether the words complained of were a statement of fact or an expression of opinion. The trial judge held that the words "reeked of personal gain rather than support of a team representing the State" and the words "certain elements of this town are working against the team" were statements of fact and not comment. He added that, if he had erred in that conclusion, the words constituted fair comment but the defence of fair comment was vitiated by actual malice on the part of the defendant. The defendant contends that the words were fair comment and that the plaintiffs had not proved malice.

41. The distinction between fact and comment may often be elusive. As Cox J observed in Peterson v Advertiser Newspapers Ltd (unreported, 29 June 1995, Judgment No S5018.1) the distinction "assumes a dichotomy that it may be very difficult to apply in practice. Many disparaging terms are hybrids, with elements of both fact and opinion about them." The difference will be even more difficult for the television viewer who receives a succession of spoken words and visual images, which he is unable to have repeated in contrast with the reader of printed material who usually has unlimited opportunity for re-reading: Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR
1, 40.

42. This item in the news broadcast began with a report that Mr Monson had not been re-appointed coach and that players and officials were "staggered it was released to the public". Both reports had been made by the news reader. These were the facts on which the comment was based. The defendant's remarks began "some people in Adelaide don't know when to keep their mouths shut". Even to a casual listener, those words would be recognised as an expression of opinion. It is a common expression used to criticise a person who has spoken ill-advisedly or at an inopportune time and was being used by the defendant to express his criticism of the leaking of the story by the plaintiffs. It introduced the next fact, "yesterday's leak that Monson wouldn't be re-appointed", which was then described as something "which reeked of personal gain". The person hearing those words and watching the broadcast would understand them to be an opinion criticising the leak especially given that this section had opened with the reference to people not knowing when to keep their mouths shut. The facts upon which the expression of opinion was based were, therefore, stated in the broadcast. There is support for this conclusion in the fact that it is only those who heard the plaintiffs' radio program and who watched the television broadcast who would have identified the plaintiffs as the persons referred to. Those persons would have known that the plaintiffs were the persons who had been first to report the story on the previous day.

43. The necessity for the defendant to distinguish clearly in what he has published between the facts on which he is commenting and the comments he wishes to make on those facts has been repeatedly emphasised: see generally Gatley on Libel and Slander (8th ed) para 697-706; Hunt v Star Newspaper Co Ltd (1908) 2 KB 309 at 319-320; Smith's Newspapers v Becker (1932) 47 CLR 279 at 303; Kemsley v Foot (1952) AC 345 at 356-360. However, it is not necessary that all of the facts be set out in the article. It suffices to refer to well-known facts. The environment in which the words were used, I think, included not only what had been reported on the television broadcast but also what had been heard on the plaintiffs' radio program. Those who heard the radio program and identified the plaintiffs as the persons responsible for "yesterday's leak" would have understood the words used to mean that the plaintiffs had broken the story the previous day and that their actions in doing so reeked of personal gain.

44. The trial judge was, however, correct in concluding that the second set of words complained of was a statement of fact At face value, these words assert the fact that there are some who are working against the interests of the team. In addition, the words are separated from the earlier comment in the first set of words by the first extract from the interview with Mike McKay, a statement of further facts by the defendant and another extract from the interview with McKay. The final paragraph of the broadcast opens with a further statement of fact concerning the negotiations for a new coach. All of these factors point to the conclusion that the words are a statement of fact not a statement of opinion. Those factors which point to the conclusion that the words are an expression of opinion are the earlier comments concerning "some people" and the opening two words "let's hope". The words "let's hope" are, however, equally consistent with a statement of fact. The fact that the second set of words is separated from the earlier comments not only by what had been said but also by the visual images on the television screen would make it difficult for the ordinary viewer to link the two together. The context in which the words appeared points to the conclusion that the words would be understood to be a statement of fact.

45. It is necessary, therefore, to examine whether the first set of words constituted fair comment. There was no issue whether the failure to re-appoint Monson as coach was a matter of public interest. The question was whether the comment was fair. It is important to ensure that the law does not place too tight a rein on what is fair comment. Vigorous comment on matters of public interest is fundamental to free speech in a democratic society. Nevertheless, for the reasons which follow, the trial judge erred in holding that the comment was fair. Although the words were spoken on a matter of public interest and although the law permits the expression of strong views, prejudice and even gross exaggeration: see Merivale v Carson (1887) 20 QBD
275, 281, the summing up of Diplock J in Silkin v Beaverbrook Newspapers Ltd
(1958) 2 All ER 516, 518; and Slim v Daily Telegraph Ltd (supra) at 170, 179, the words used must be fair and honest comment. There is a degree of uncertainty as to the correct test for determining whether the words used are fair comment when they include an imputation that the plaintiff has acted dishonourably: see Duncan and Neill paras 12.14 to 12.30, where it is suggested (in para 12.30) that the correct test is that the expression of opinion will qualify as fair comment if it satisfies the objective test whether a fair minded person could honestly express that opinion on the proved facts. This is the more liberal of the tests which have been identified and adopted by the Court in Rocca v Manhire (1992) 57 SASR 224, 230. Even on this more liberal test, the words used went beyond an opinion which could honestly be held by a fair minded person. While it was open to criticise the plaintiffs for publishing the story at this time and even to criticise them for seeking to put the interests of their radio program above the interests of the basketball team, there was nothing in the facts which justified the view that the plaintiffs had leaked the story because of some base motive associated with some kind of financial or other unspecified personal gain. The trial judge, therefore, erred in holding that the remarks constituted fair comment.

46. Given these conclusions, it is unnecessary to examine whether the trial judge was correct in holding that the defence of fair comment was vitiated by express malice on the part of the defendant. As the matter was argued, I add these observations. Malice in this context includes improper motive: Clark v Molyneux (1877) 3 QBD 237 at 249, and it must be the dominant motive for the defendant's publication: Horrocks v Lowe (1975) AC 135. What is required to prove express malice has been examined in Spautz v Williams (1983) 2 NSWLR 506 at 520-521 and in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 50-51. Malice must be proved positively, by credible evidence; mere conjecture does not suffice: Spautz v Williams (supra) at 520. The motive with which a person published defamatory material can only be inferred from what he did or said or knew: Horrocks v Lowe (supra) per Lord Diplock at 149, who added (at 150) that judges should be slow to draw the inference that the defendant had an improper motive unless they were also satisfied that he did not have an honest belief in the truth of what he published. A dislike of the plaintiff or indignation of what the defendant believed to be the plaintiff's conduct (together with his taking advantage of the occasion to expose that conduct), is not sufficient to establish express malice unless that is shown to be the dominant motive for the defendant's publication: Horrocks v Lowe (supra) at 151 and Barbaro v Amalgamated Television Services Pty Ltd (supra) at 51.

47. Although the defendant did not give evidence, the trial judge found that
    (1) the defendant knew that the decision had been made on
    20 August 1993 not to re-appoint Mr Monson as coach;

(2) that the defendant had agreed not to publish that
    information;

(3) the defendant had heard the plaintiffs' broadcast on
    27 September 1993;

(4) the defendant believed or suspected that the plaintiffs
    knew of the embargo on publishing the decision not to
    re-appoint Mr Monson as coach;

(5) that the defendant had read the article by Mr Nagy in
    "The Advertiser" newspaper;

(6) that the defendant believed that the plaintiffs had
    obtained the report of the story concerning Mr Monson in
    confidence from members of the Board of the basketball team
    but he had been told by Cunningham that the plaintiffs had
    obtained the information from another source; and

(7) that acquainted with those facts, the defendant
published the impugned words.

48. The defendant does not complain or appeal against any of those findings. The trial judge also relied on the evidence given by Mr Cunningham as to the telephone conversation between Cunningham and the defendant and, accepting that evidence, found that the defendant intended to refer to the plaintiffs in the words he published and could not have honestly believed or suspected after speaking to Mr Cunningham that the publication of this story concerning Mr Monson by the plaintiffs was a breach of confidence undertaken or known to the plaintiffs and indulged in for their own personal gain. It was unnecessary for the trial judge to find that the defendant could not have honestly believed that or suspected that the leaking of the story was a breach of confidence. The defendant could have honestly, although mistakenly, believed that the plaintiffs had broken a confidence in publishing the news concerning Monson. Although he had heard Cunningham's explanation, the defendant might not have believed it. He was aware of a request from the Board of Management to keep the news confidential and may not have accepted Cunningham's explanation. Even if he accepted Cunningham's explanation that he received the information from a source other than a member of the Board of Management of the basketball team and was, therefore, under no obligation of confidence, the defendant could, nevertheless, have honestly believed the timing of the leak was most unfortunate and was done for no purpose other than to enable the plaintiffs to be the persons to break the story - indeed, Cunningham's evidence shows that Cunningham almost said as much to the defendant. However, he was correct in concluding that the defendant had no ground for an honest belief that the plaintiffs had been motivated by personal gain. While the plaintiffs may have wished to be the first to break the story and that might have been of indirect financial advantage to their radio program, the imputation in the words used was of dishonourable conduct, which had no foundation.

49. The trial judge concluded that the defendant's motive for publishing the words was to cause harm to the plaintiffs. He said:
    "In my view the defendant was incensed at the plaintiffs for
    publishing the Monson story when he had agreed not to do so
    and, perhaps inflamed by Mr Cunningham's rebuff of him in
    their telephone conversation, his words and criticism of the
    plaintiffs were actuated if not wholly then in part by a
    desire to punish them for doing so by accusing them of
    reprehensible and improper conduct in breaching a confidence
    which he referred to in a veiled way by using the expression
    'some people don't know when to keep their mouths shut'."

50. These findings were open on the evidence given by Mr Cunningham and in particular on the evidence given by him as to his conversation with the defendant. Nothing has been submitted to justify interfering with this conclusion.

51. It is possible to criticise the trial judge for prefacing those remarks by referring to and placing some reliance, albeit not too much reliance, upon the fact that the defendant had pleaded justification. It is well settled that the mere fact that the defendant has pleaded justification is not in itself evidence of malice, even though the defendant does not attempt to establish it at the trial: Gatley on Libel and Slander (8th ed) para 1354. But, even if that fact is excluded, there was ample evidence on which the trial judge could rely.

DAMAGES
52. Both parties appeal against the assessment of damages. The defendant complains that the award was manifestly excessive. The plaintiffs assert that the award is manifestly inadequate.

53. The defendant submits that only a very small number of the persons who had heard the impugned words would have thought that they referred to the plaintiffs and that none of the witnesses who gave evidence on behalf of the plaintiffs believed the defamatory imputations. For these reasons the defendant submits that the damage to the plaintiffs' reputation must have been minimal. In response, the plaintiffs assert that these were serious libels of well known sporting identities who hold themselves out as supporting South Australian sport. The damage done to them was, therefore, greater than if the same words had been spoken of others. The plaintiffs relied also on the defendant's refusal to apologise or withdraw the remarks, the fact that the defendant had pleaded the truth of his remarks and did not withdraw that plea until after the plaintiffs have opened their case, and the finding of express malice. Finally, the plaintiffs assert that the damages awarded for defamation in this State have increased in recent years.

54. The trial judge found that the plaintiffs were both well-known identities in the sporting and general community. Both had been active in charitable work. They were well known to those who heard their broadcast and who heard the defendant's words on the television broadcast. He found also that each of the plaintiffs is prone to expressing forthright views on the radio program, views which are critical of others and which are broadcast for the entertainment of their listeners. Although this did not reduce their reputation, it indicated that neither of the plaintiffs could be said to be "a shrinking violet and a stranger to any kind of controversy". Nevertheless, the trial judge accepted that each of the plaintiffs had been hurt by the defendant's words which he found attacked their reputation and professionalism. Both plaintiffs would have been content with a prompt apology.

55. It was common ground that between 23,000 and 28,000 persons listened to the plaintiffs' radio program on 27 September 1993 and some 210,000 persons watched the television news broadcast on Channel 7 on 28 September. The trial judge found that it was more probable than not that a large number of persons with an interest in sport heard both the plaintiffs' program and the television broadcast the following evening. Some of those persons may have also read the article written by Mr Nagy in "The Advertiser" and heard the interview with Mr Nagy on the afternoon of 28 September. Of the persons who heard the plaintiffs' radio program, there would have been some who may not have identified the plaintiffs as being the persons being identified by the defendant. The trial judge concluded that, although the group to whom the words were published was large, it would have been confined to those who were regular listeners to the plaintiffs' radio program. None of these findings are impugned on this appeal.

56. When assessing damages, the trial judge did not refer in his reasons to the evidence of the plaintiffs that no-one who listened to their program would think they would do anything which worked against the basketball team. That is a factor which would reduce the assessment. However, the imputation that the plaintiffs failed to support the team for reasons of personal gain is serious. The trial judge characterised the imputation as an accusation that the plaintiffs had been unprofessional. It is more serious than that. It is an accusation of dishonourable conduct. These factors tend to balance one another. Neither of the parties was able to point to any other factor which was either overlooked by the trial judge or to which inadequate weight was given. The learned trial judge had every opportunity to assess the plaintiffs and the effect upon them of the defamatory statements. In the law of defamation as in other areas, a court of appeal will, in the absence of demonstrated error, be slow to disturb an assessment of damages. Despite the serious nature of the accusation, it received but a fleeting mention in the television broadcast and was stated while film of the basketball team was being shown. The accusation did not, therefore, carry the sting it would have had, had it been printed. The assessment of damages for each plaintiff is, therefore, generous and more than I would have awarded. However, it is difficult to identify any ground which justifies this Court in interfering with the award on the ground that it is manifestly excessive.

57. For all of these reasons the appeal should be dismissed.

JUDGE3 NYLAND J I agree that the appeal should be dismissed for the reasons expressed by Debelle J.