Assaf v Skalkos

[2000] NSWSC 418

CITATION:	Assaf v Skalkos [2000] NSWSC 418
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 18374/93
HEARING DATE(S):	01/11/99 - 17/12/99 14/03/00 - 16/03/00
JUDGMENT DATE:	26 May 2000
PARTIES :	Joseph Assaf & Anor v Theodore Skalkos & Anor
JUDGMENT OF:	Carruthers AJ at 1

COUNSEL :	T E F Hughes QC/K A Rees (Plaintiffs) S M Littlemore QC/J R McKenzie (Defendants)
SOLICITORS:	Mallesons Stephen Jaques (Plaintiffs) T Lazaropoulos (Defendants)
CATCHWORDS:	DEFAMATION - consideration of defences of qualified privilege after jury answered questions of fact pursuant to s 90 - whether answers by jury to questions relating to comment defence inconsistent - whether matter should be referred to the Court of Appeal pursuant to Pt 12, r 2 - whether apparently inconsistent answers can be treated as surplusage - application for amendment of defence and particulars of qualified privilege after jury returned answers to s 90 questions - reasons for refusal of application.
LEGISLATION CITED:	Supreme Court Act 1970, s 90 Defamation Act 1974, ss 22, 23
CASES CITED:	Toogood v Spyring (1834) 1 C.M & R 181 Stephens v West Australian Newspapers Ltd [1993-1994] 182 CLR 211 Morosi v Mirror Newspapers Pty Ltd (1977) 2 NSWLR 749 Andreyevich v Kosovich & Anor [1947] SR 357 James v Baird (1916) SC (HL) 158 Adam v Ward [1917] AC 309 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 Allbutt v General Council of Medical Education and Registration (1899) 23 QBD 400 Dunford Publicity Studios Ltd v New Media Ownership Ltd [1971] NZLR 961 Hunt v Great Northern Railway Co [1891] 2 QB 189 Watt v Longsdon [1930] 1 KB 130 Reynolds v Times Newspapers Ltd and Others (1999) 3 WLR 1010 Viro v The Queen (1978) 141 CLR 88 Skelton v Collins (1966) 115 CLR 94 Cook v Cook (1986) 162 CLR 376 Davies v Snead (1870) L.R. 5 QB 608 Reynolds [1998] 3 WLR 862 Perera [1949] AC 1 Webb [1960] 2 QB 535 Blackshaw v Lord [1984] 1 QB 1 Morgan v John Fairfax [No 2] (1991) 23 NSWLR 374 Lange v ABC (1997) 189 CLR 420 Smith's Newspapers v Becker (1932) 47 CLR 279 Wiese v Nationwide News (1990) 4 WAR 263 Radio 2UE Sydney Pty Ltd v Parker [1992-93] 29 NSWLR 448 Mowlds v Fergusson (1939) 40 SR 311 Purcell v Sowler (1877) 2 CPD 215 Bellino v Australian Broadcasting [1995-1996] 185 CLR 183 Guise v Kouvelis (1947) 74 CLR 102 Chapman v Ellesmere (1932) 2 KB 431 McLean v David Syme & Co Ltd (1970) 72 SR 513 Australian Consolidated Press Ltd v Uren (1967-68) 117 CLR 185 Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) 17 Lynam v Gowing (1880) 6 LR.Ir. 259 Austin v Mirror Newspapers Ltd [1986] 1 AC 299 MacKenzie v The Queen [1996] 190 CLR 348 Horrocks v Lowe [1975] AC 135 Bray v Ford [1896] AC 44 Bowin and Joyce v Australian Consumers Association [1996] FCA, Lindgren J (unreported, 6 December 1996) Morgan v John Fairfax and Sons Ltd (1990) 20 NSWLR 511 Horrocks v Lowe [1975] AC 135 Barbaro v Amalgamated Television Srvices Pty Ltd (1985) 1 NSWLR 30 Mercer v Commissioner for Road Transport and Tramways (1937) 56 CLR 580 Mifsud v Commonwealth of Australia [1968] 2 NSWR 83 Mourani v Jeldi Manufacturing Pty Limited (1983) 57 ALJR 825 Barbaro v Amalgamated Television Services Pty Ltd (1989) Aust.Torts Reports 80-264 Otis Elevators Pty Limited v Zitis (1986) 5 NSWLR 171 Bromley v Tonkin (1987) 11 NSWLR 211 MacKenzie v The Queen (1996) 190 CLR 348 Quinn v Rocla Concrete Pipes Limited (1986) 6 NSWLR 586 Bradbury v NZ Loan & Mercantile Agency Co Limited (1927) 27 SR 15 Brancato v Australian Telecommunications Commission (1986) 7 NSWLR 30 Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 Australasian Steam Navigation Company v Howard Smith & Sons [1889] 14 AC 321 Gibbons v Howley [1990] VR 762 Anderson v Ntzounas (1988) VR 748 TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Weber v Birkett [1925] 2 KB 152 Murphy v FAI General Insurance Co Ltd (5 July 1993, unreported) Sivakumar v Pattison [1984] 2 NSWLR 78 Federal Commission of Taxation v Brambles Holdings Pty Limited (1991) 99 ALR 523
DECISION:	(1) Verdict for the first plaintiff against the defendants in the sum of $150,000 together with interest to be assessed; (2) Verdict for the second plaintiff against the defendants in the sum of $30,000 together with interest to be assessed. Matter stood over to a date to be fixed to hear argument on interest and costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CLD18374/93

CARRUTHERS AJ

Friday, 26 May 2000

Joseph ASSAF & ANOR v Theodore SKALKOS & ANOR

JUDGMENT

1 HIS HONOUR: The jury having returned answers on 17 December 1999 to the questions submitted to them for answer pursuant to s 90 of the Supreme Court Act 1970, as amended, the matter came back before me in March 2000 for the resolution of the outstanding questions of common law qualified privilege and statutory qualified privilege. There are two other matters with which it is necessary for me to deal in this judgment. 2   By way of background the following may be stated. The first plaintiff, Joseph Assaf, is the effective controller of the second plaintiff, Ethnic Communications Pty Ltd, which has been conveniently referred to in the hearing as ETCOM, and I shall continue to use that term in this judgment. The first defendant, Theodore Skalkos, effectively controls the second defendant Foreign Language Publications Pty Ltd. The plaintiffs contend that they were defamed by two publications by the defendants, firstly a letter which was addressed to the Prime Minister of Australia dated 21 July 1993 (“the first publication”) and secondly, the publication on 28 July 1993 of that letter (subject to one significant modification) in the Serbian language in the second defendant’s publication Novosti, a newspaper published and circulated within the Serbian community in Australia, (“the second publication”). 3   The original statement of claim was filed in 1993, but it was not until 1 November 1999 that the matter was listed for final hearing. The matter was set down on the understanding that it would occupy four weeks. In fact as I have already indicated it was not until 17 December 1999 that the jury finalised their involvement in the proceedings. 4   The matter was relisted for argument before me on March 14, 15 and 16 2000. As the subject publications were in 1993 the trial was not subject to the 1994 amendments to the Defamation Act1974. 5   In order to appreciate the significance of what follows, something should be said about the relationship between the parties. The first plaintiff, Joseph Assaf, was born in Lebanon on 20 November 1944 in a town outside Beirut. His parents lived in a small village in the mountains of Lebanon. He was educated to the equivalent of the Australian Higher School Certificate in 1966. Although he was fluent in both French and Arabic, he had no knowledge of English when he migrated to this country on 26 October 1967. He landed in Sydney but spent a year in Adelaide intensively studying the English language. He returned to Sydney and enrolled in the Faculty of Arts at the University of Sydney. He majored in social theory. He worked as a labourer during the evenings. He completed his degree in 1972 and in 1975 he obtained a Diploma in Interpreting from the University of New South Wales. 6   In the early part of 1977 he set up ETCOM assisted by two partners, one of whom later became his wife. These three partners perceived that there was scope for an advertising agency catering for Government departments and instrumentalities, as well as private commercial organisations, which wished to communicate advertisements or significant messages to those members of the Australian community who were not familiar with the English language. 7   Very briefly stated, Mr Assaf explained that, in a typical transaction, the company received a brief from the client’s agent, engaged appropriate copywriters and translators, wrote the advertisement, translated it, checked it, proof read it and culturally tested it. Cultural testing includes attempting to ensure that the advertisement or message would not offend or mislead someone in the ethnic community because of religious or other beliefs, or due to other factors. I do not suggest that the defendants would agree with this description but for present purposes, nothing turns on this. 8   The company has proved to be extremely successful and has ventured into overseas markets. It is based in Leichhardt, New South Wales. For many years a major client was Telecom, as it was then known, and Telstra remains a client. 9   The first defendant, Mr Theodore Skalkos, as I have said, effectively controls the second defendant. That company controls a group which publishes a large number of major ethnic newspapers in Australia. The group also prints publications for a large number of ethnic publishers. 10   Until about 1992 the relationship between Mr Assaf and his company and Mr Skalkos and his company was an apparently amicable one. Advertisements and other material which had been processed (if I may use that term) and culturally tested by ETCOM were regularly published in the second defendant’s newspapers. However, Mr Skalkos took objection in 1992 to the rate which his group had been offered by Mr Assaf, on behalf of the Department of Social Security, for the publication of an insert supplement entitled “Age Pension News” in its newspapers. 11   This dispute seems to have been the catalyst for the publication by the second defendants of a letter to the Prime Minister of Australia dated 21 July 1993, which constituted the first publication sued upon in these proceedings. It is convenient to set the letter out in full. The numbers allocated to the various paragraphs were not contained in the original letter; they are set out for the sake of convenience:

“1. I write this letter to you as the publisher of the largest group of Ethnic Newspapers in Australia. This letter is not specifically addressed only to yourself Mr Prime Minister but all your Federal government Ministers, colleagues and heads of Government Departments and semi-governmental authorities.
2. This letter is directed towards the dealings that your Government has with the Ethnic Communities of Australia through the Ethnic Print Media. It is my belief that the Government and Semi-Government Authority advertisements are being ‘sold” to the Ethnic Print Media for publication in our newspapers. I think you would agree with me Mr Prime Minister that every person in Australia is concerned about the heavy burdens placed on them by way of taxes, charges, and everyday living costs. What I think, with the greatest respect Mr Prime Minister, you and your Ministers should be concerned about is that payments made by the ethnic Australian population indirectly though the purchase by them of newspapers are not unduly exorbitant because of the practices that have become common place in the way in which Government and Semi-Government Authority advertisements, newsreleases, pressreleases etc., are being distributed to the Ethnic Print Media through for example, companies such as Ethnic Communication Pty Limited and, through your own Commonwealth Government Advertising Service.
3. As you probably are aware Mr Prime Minister, at the moment most, if not all, government advertisements, press releases, etc., are passed to companies such as Ethnic Communications Pty Limited by the Commonwealth Government Advertising Service so that the former company can theoretically translate, typeset, layout, etcetera the advertisements and announcements and then “on sell” these to the various Ethnic Newspapers. What troubles me Mr Prime Minister is that the intervention of these “middle men” to the cost of the publisher of obtaining these advertisements - with no reason for this, it would appear, other than the “middle man” making a substantial profit.
4. I would submit Mr Prime Minister that the capacities and manpower of most Ethnic Newspapers in Australia are far better equipped to provide a more cost effective service, than is currently being provided by Ethnic Communications Pty Limited for example, and consequently ask that you investigate the reasons behind there being a “middle man” and why these middle men pump up the final cost of such government information. Why do we need such a “middle man”. Why cannot the Government, its Ministries, Semi-Government Authorities etcetera pass on to the various Ethnic Publications material that is proposed to be published for inclusion direct.
5. Surely the Government would have difficulties in substantiating the double and triple cost factor in having intermediaries provide a service that is already existent in the structure of Ethnic Publications. It appears to me at least that certain individuals are lining their pockets with tax payers monies for doing very little.
6. The money making activities of companies such as Ethnic Communications Pty Limited at the expense of readers troubles me even more when I am informed that a lot of the translations being performed by that company are performed in fact by persons on either age pensions, invalid pensions, unemployment benefits etcetera. No doubt if you Mr Prime Minister wanted to get to the bottom of the qualifications and credentials of the persons to whom Ethnic Communications delegates translating jobs you would no doubt quickly come to realise that the “rort” is being compounded by the method in which the translations are being paid and, to whom such payment are being made.
7. Our newspaper group has audited circulation figures, and publishes papers that include the Greek Herald, the New Country, the Novosti, the Il Mondo, the Spanish Herald and Al Bairak, the Australian and British Soccer Weekly, the Ellinis Greek Weekly magazine etc. My group also prints some 52 foreign publications for different Ethnic Publishers. I have stopped receiving and paying for advertisements from Ethnic Communications Pty Limited pertaining to the Government, Ministries, semi-government authorities etc., because of the “rorts” that I see are taking place. Ultimately what this does of course is to deprive our large readership of vital information that the Government wishes to pass on to them. In these hard economic times the economic viability of this “rort” does not allow me the flexibility to pay ridiculous sums for work that we can perform at a fraction of the cost.
8. This open letter to you Mr Prime Minister will be published in all my newspapers to make my readers, who total some 400,000 per week, aware of this one might say, unethical and wasteful practice. No doubt a lot of your government Departments, Semi-Government Authorities etcetera would also be quite alarmed at being made aware of these facts and practices. One would assume that if the public was advised of changes to the law, changes to procedures, explanations of entitlements etcetera through their native language media, the staff and resources of individual Government Departments would not be under as much pressure as they potentially now are in having to individually explain changes etcetera to the Ethnic Community of Australia. Government costs could also possibly be reduced in relation to the numbers of pamphlets, brochures etcetera that the Government would need to print for the purpose of handing out through catalogue stands to the Ethnic Community.
9. It seems to me that the Government could if it wanted to quickly smarten up its act in relation to the transmission of material to the Ethnic Media, be cost effective and, more current if it cut out these “middle men”.
10. Examples of this outrageous pricing forced upon us by companies such as Ethnic Communications Pty Limited include our experience in dealing with them for pamphlets such as “Age Pension News” recently.
11. Our company currently pays Telecom Australia approximately one million dollars ($1,000,000) per year for fees and services rendered. Presently we receive nothing from Telecom by way of advertisements. It was always my belief that Telecom, as it consistently boasts in its current battle with Optus, is a hundred percent Australia owned and therefore Australians should support telecom in favour of Optus. My newspaper group is doing just that. What is Telecom giving back to me. The answer is simple - nothing. Would it not be fair and reasonable to expect a company like Telecom whose motive is not simply one of profit, to invest back into a company such as mine monies through advertising to promote its product as I am investing my money to utilise Telecom services. Possibly you can look into this for me.
12. The reason you may not have heard complaints up until this time from the Ethnic Print Media is because a lot of smaller Ethnic Publications are too afraid to stand up and complain about the rorts currently being shoved down their throats by companies like Ethnic Communications Pty Limited in fear of them being bullied by such companies. My newspaper group however has had enough of it and now sees that the time is right to stand up and shout out our rage.
13. I respectfully propose that you Mr Prime Minister immediately look into the current procedures that I have outlined above with a view to changing the way in which information is given to the Ethnic Press.
14. A proposal that I ask you to consider is the establishment of a standing committee, comprising members of the larger Ethnic Media groups, bureaucrats, ministers etc., who can co-ordinate and look into the dissemination and distribution of Government and Semi-Government information to the broader Ethnic Australian community. If such a committee was set up, with no payments going to any such person, and pricing structures established that were free of excesses and rorts, everyone would benefit in the short and long term. Everyone of course except the “middle men” who are currently making a comfortable living off tax payers money and depriving the Ethnic Community of important information.
15. What you ultimately decide to do Mr Prime Minister is a matter for yourself. The course you take however will, I respectfully submit, reflect your (and your Governments) business morals and priorities to the large Ethnic Australian population of this our country.
16. I await your reply.
Yours faithfully,
(sgd) T Skalkos
T. Skalkos.”

12   Although it is stated in paragraph (8) of the letter that it would be published in all the defendant’s newspapers, it was in fact only published in one newspaper, namely Novosti. That is a Serbian newspaper published in the Serbian language and, of course, the subject letter had been translated into the Serbian language. Insofar as the present litigation is concerned the only distinction between the two publications is that the English translation (Ex.D) of the first sentence of paragraph (12), reads :

“Maybe you have not had an opportunity to hear complaints like this by ethnic print media because a lot of smaller ethnic publications are too afraid to stand up and complain about the companies such as Ethnic Communications Pty Ltd.”

13   Thus the words “in fear of them being bullied by such companies” in the original letter are not included in the Novosti publication. I shall refer to this fact later in the judgment. 14   The imputations relied upon by the first plaintiff with respect to the first publication are contained in paragraph 7 of the second further amended statement of claim filed on 14 August 1999. They are in the following terms:

“1. He exploits publishers of ethnic community newspapers for his selfish financial purposes, by selling government advertising to them at exorbitant prices.

2. He has, as part of a scheme to make exorbitant profits from government ethnic advertising, exploited disadvantaged persons such as aged pensioners, invalid pensioners and the unemployed.
3. He conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information.
4. In conducting the business of Ethnic Communications Pty Ltd he employs bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about his unethical and wasteful conduct.”

15 Identical imputations (subject, of course, to the change in pronouns) are relied upon by the second plaintiff in relation to the first publication. In relation to the second publication, by reason of the absence of the words “in fear of them being bullied by such companies” both plaintiffs only relied upon the first three imputations set out above. 16 Ultimately, the defences to go to the jury in relation to both publications were: 17 In regard to both publications the only defence to imputations 1 and 2 was contextual justification. As to imputation 3 and 4 (the latter in relation to the first publication only) the defences were justification, contextual justification and comment. 18 In reply, the plaintiffs pleaded, as to comment in both publications, that the defendants did not have the opinion represented by the comment. As to the defence of qualified privilege, the plaintiffs pleaded express malice. 19 In relation to both publications common law qualified privilege was pleaded. As to the Novosti publication only, the statutory defence of qualified privilege under s 22 of the Defamation Act 1974 was pleaded. In reply the plaintiffs pleaded express malice. 20 I turn then, in a summary fashion, to the answers returned by the jury. In regard to the first publication, the first, third and fourth imputations were found to have been conveyed and to be defamatory of both plaintiffs (Questions 1-4, 9-12, 13-16). In regard to the second publication the first and third imputations were found to have been conveyed and to be defamatory of both plaintiffs (Questions 17-20, 25-28). Thus, with respect to both publications, and both plaintiffs, the jury declined to find that the second imputation was conveyed (Questions 5, 7, 21, 23). 21 As to the contextual imputations, the jury found that both publications conveyed the two contextual imputations pleaded by the defendants (Questions 31(a)(i), 32(a)(i)), but that in each case the defendants failed to prove that the imputation was substantially true (Questions 31(a)(ii), 32(a)(ii)). 22 As to comment, for reasons which I set out later in this judgment, I treat the jury’s answers to the comment questions as the jury holding that the defendants had failed to establish, with regard to both publications and both plaintiffs, that the third imputation was comment (Questions 33(a), 34(a), 37(a), 38(a)). However, the jury held that the defendants had established that the fourth imputation was comment (Question 35(a)). 23 The jury were also of the view that the defendants had established in relation to the fourth imputation that the material upon which the opinion was based was to some extent proper material for comment, and the comment represented an opinion which might reasonably be based on that material, to the extent to which it was proper material for comment (Question 35(b)(ii)). 24 Further, the jury were of the view that the plaintiffs had failed to establish that at the time the letter to the Prime Minister was published, the defendants did not hold the opinion that in conducting the business of Ethnic Communications Pty Ltd, the plaintiffs employ bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about their unethical and wasteful conduct (Questions 35(c), 36(c)). Thus the plaintiffs’ claim in relation to the fourth imputation failed and it is not necessary to consider it further. 25 The defence of justification was rejected in relation to both the third and fourth imputations. However, in view of the jury’s upholding of the defence of comment in relation to the fourth imputation, such a finding was of no benefit to the plaintiffs, so far as that imputation is concerned. 26 The net effect of the answers returned by the jury is that imputations 1 and 3 have survived in both publications. In other words the jury have found that they were conveyed by the relevant publications and were defamatory, and the jury have rejected the relevant defences raised for their consideration. It then becomes necessary for me to decide whether the defence of common law privilege has been established in relation to one or both imputations in both publications, and whether the statutory defence of qualified privilege has been established in relation to the second publication. 27 As the subject publications were made prior to 1 January 1995, the division of functions between judge and jury is still governed by the now repealed s 23 of the original 1974 Act. That section provided:

“Where proceedings for defamation are tried before a jury and, on the facts, there is a question whether there is a defence of qualified privilege under the division, that question is to be determined by the court and not by the jury.”

28   The question of malice was left to the jury in questions 45, 46 and 47. Question 45 posed the issue of malice “in respect of the letter published to the Prime Minister’s office”, question 46 posed the question of malice “in respect of the letter published to Telecom”, and question 47 posed the question “in respect of the article published in Novosti”. In respect of each of the three asserted publications, the jury found that the plaintiffs had failed to establish that the defendants did not believe in the truth of the matter they published or that the defendants had an indirect motive in publishing the matter. 29   Finally I set out verbatim the four questions, viz 48 to 51 inclusive, submitted to the jury in relation to damages, and the jury’s answers to those questions.

“ DAMAGES
LETTER TO THE PRIME MINISTER
Question 48
What damages do you assess as having been suffered by the First Plaintiff for publication of the letter addressed to the Prime Minister?
$75,000
Question 49
What damages do you assess as having been suffered by the Second Plaintiff for publication of the letter addressed to the Prime Minister?
$10,000
NOVOSTI
Question 50
What damages do you assess as having been suffered by the First Plaintiff for publication of the article in Novosti?
$75,000
Question 51
What damages do you assess as having been suffered by the Second Plaintiff for publication of the article in Novosti?
$20,000”

30   On 9 December 1999 (the 28th day of the trial) I granted leave, with the consent of the plaintiffs, to the defendants to amend their Particulars of Qualified Privilege at common law in respect of both publications to read as follows:

“The Defendants published the matters complained of pursuant to a social or moral duty to do so and, specifically to inform the public about the matters of public interest referred to above . The recipients of each of the matters complained of had an interest in receiving the matter published because they were members of the public and it related to matters of public interest stated above and those members of the public had an interest in knowing the facts and matters stated.


Furthermore, the matters complained of were published to the Prime Minister on an occasion of qualified privilege at common law in that they were published in the course of discussion of government or political matters in that the matters complained of related to the conduct of government departments.”

For the purposes of this judgment I shall refer to the first paragraph above as “ part one ” and the second paragraph as “ part two ” of the Particulars.

31 The Court was informed by senior counsel for the defendants that the phrases “referred to above” and “stated above” were a slip and were intended to refer to Particulars “below”. That is the basis upon which I shall construe the Particulars. 32 The Particulars specified in the Second Further Amended Defence, dated 2 November 1999, under the Supreme Court Rules Part 67, Rule 18(1)(a) are as follows, in relation to both matters complained of:

“(a) The availability of government information to the ethnic community.
(b) The cost of government advertising and of providing government information to the ethnic community.
(c) Methods of payment and acceptable qualifications of translators carrying out translations of advertising vital government information.
(d) Wastage of government money in “rorts” such as charging fees between $500 to $2000 for the simple task of locating a translator and obtaining from him/her a translation of a government advertisement.
(e) Acceptable business methods when insuring vital government information reaches persons with language problems.”

33   The additional Particulars of qualified privilege pleaded in relation to the second publication in the Second Further Amended Defence are as follows:

“The second matter complained of was published to readers of ‘Novosti’ who by reason of needing to read this publication (in a foreign language) were all persons with a specific interest in, and need for, translation of government information into a language they could understand. By reason of the fact that the publication discussed government and political matters, the Defendants rely upon the right of freedom of speech implied under the Constitution.”

34   As to publication it will have been noted that the second sentence of the letter to the Prime Minister reads as follows:

“This letter is not specifically addressed only to yourself Mr Prime Minister but to all your Federal Government Ministers, colleagues and heads of Government Departments and semi-governmental authorities.”

35   There was evidence of publication of the letter to the Prime Minister. There was also evidence that a copy of the letter was located by Ms Theresa Hall, then employed by Telecom as Manager Liaison Multicultural Marketing Division, in her in-tray in late July 1993. She showed the letter to Mr Colin Harvey then employed as the Marketing Communication Manager by Telecom. The letter was also read by Ms Carolyne Mitchell then the Senior Advertising Campaign Manager with Telecom. There was much evidence of a well established business relationship between the plaintiffs and Telecom. 36   There was no direct evidence of how the letter came to be in Ms Hall’s in-tray. 37   The issues between the parties in relation to publication of the letter to the Prime Minister were reflected in questions 29 and 30. 38   The plaintiffs contended that the letter had either been published directly by the defendants to Mr Harvey, Ms Hall and Ms Mitchell and to Telecom or alternatively, as a natural and probable consequence of the publication of the letter to the Prime Minister by the defendants. Reliance was, of course, placed here upon the second sentence in the letter set out above. By their answers to questions 29 the jury decided that the plaintiffs had not proved that the letter to the Prime Minister was published by the defendants directly to the abovenamed officers of Telecom but that it was published to them as a natural and probable consequence of the publication of the letter to the Prime Minister by the defendants. 39   By their answers to question 30 the jury held that the plaintiffs had not proved that the letter to the Prime Minister was published to Telecom directly by the defendants but held that it was proved to have been published to Telecom as a natural and probable consequence of the publication of the letter to the Prime Minister by the defendants.

The defendants’ submissions on qualified privilege at common law

40 The defendants’ case (as I understand it to have been expressed) on qualified privilege at common law concerning both publications in written and oral submissions may be summarised as follows: · The matter was published pursuant to a moral duty on the defendants to inform the recipients about the matters of public interest particularised under Rule 18(1)(a) set out above, and the recipients (here the Prime Minister and Telecom advertising officers; and that section of the public which reads Novosti in Serbian) had an interest in receiving the matter published. This is a duty/interest relationship. · The letter was published to the Prime Minister in the course of discussion of government or political matters (conduct of government departments). This is an interest/interest and/or complaint/interest (redress) relationship.

Regarding the letter to the Prime Minister and published to Telecom

41   As to the interest/interest relationship, the defendants’ interest can be determined from the terms of the letter itself, i.e., it is in changing government policy on ethnic advertising, production and placement. The defendants’ own trade was in the production and placement of advertising, including government advertising. Hence it is established that the relevant statements were made “in the conduct of (their) own affairs, in matters where (their) interest is concerned”. 42   Reliance is placed here on the passage from Toogood v Spyring (1834), 1 C.M & R. 181, at 193., cited by McHugh J in Stephens v West Australian Newspapers Ltd [1993-1994] 182 CLR 211 at 260., namely:

“Statements ‘fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned’ are privileged even though they contain untrue defamatory statements.”

43   In the alternative, it was submitted, that if the analysis is interest/interest, duty/interest or complaint/interest (redress), that too is evident from the terms of the letter. Those parts of the letter relevant to the imputations constitute complaints. In respect of the first imputation, the complaint is that there are improprieties in the way the government deals with the ethnic community by medium of the plaintiff company - where the consequence is a multiplication in the cost to the tax payer. 44   With respect to the third imputation, the complaint is that the defendants’ refusal to carry government advertising placed by the plaintiffs has the consequence of denying ethnic readers access to vital government communications. 45   The recipients of the letter (those advising the Prime Minister, and Telecom staff concerned with advertising, production and placement) possessed an interest in receiving the letter that corresponded with the defendants’ interest in making the publication. This is the case whichever analysis is applied. 46   The defendants’ interest in their own trade corresponded with the Prime Minister’s and Telecom’s interest in the current system, where the plaintiffs acted as the government’s (and Telecom’s) agent in relation to production and placement of their advertising. 47   The defendants’ duty to inform the Prime Minister and Telecom (as those spending taxpayers’ money on the plaintiffs’ services) on the subject of obtaining the best value for the investment of taxpayers’ funds finds its correlative in those persons’ interest in receiving information on that subject from an “apparent expert” and “serious player” in the very system about which they are informing the recipients of the information. 48   Further, the defendants’ complaints about the conduct of persons with responsibilities to the public correspond with the interest of the recipients of those complaints, being persons who at the very least were in a position to inquire into the subject matter of the complaints. 49   Any citizen who bona fide believes that wrong has been done has the right and duty to bring the alleged fact before the proper authority for investigation. In doing so, he or she exercises an undoubted privilege which it is not in the public interest to penalise. Reliance is placed here on paragraph 14.55 of Gatley on Libel and Slander (9th Edition) (omitting footnotes):

“ Complaints and redress. Just as statements made in order to recover stolen property or find a criminal may be seen as made out of duty and in aid of public justice or in furtherance of the interests of the victim, so too complaints about the conduct of those in authority or with responsibilities to the public may be seen as made from a duty to bring the facts to the attention of those who control or are concerned with the conduct in question, or in furtherance of the interests of those affected in securing redress. They are treated here separately only for convenience and the precise basis of duty or interest is immaterial. What is certain is that the law is liberal in protecting such communications, if they are made bona fide, and to a person with a proper interest in the subject matter.
Thus, it is not only for the victim, in his own interests, but it is the duty of everyone, in the interests of public efficiency and good order, to bring any misconduct or neglect of duty on the part of a public officer or employee, or any public abuse, to the notice of the proper authority for investigation. Any complaint or information as to such misconduct, neglect of duty, or abuse is privileged, provided it is made in good faith to the person or body who has the power or duty to remove, punish or reprimand the offender, or merely to inquire into the subject matter of the complaint. Any citizen who bona fide believes that wrong has been done has the right and duty to bring the alleged fact before the proper authority for investigation. In doing so he exercises an undoubted privilege which it is not in the public interest to penalise.”

50   It was further submitted that publication was not made to the public at large. Reliance was placed here upon the judgment of the Court of Appeal (Moffitt P; Hope and Reynolds JJA) in Morosi v Mirror Newspapers Pty Ltd. (1977) 2 NSWLR 749 at 779. The Court there stated:

“It must be emphasized that it is with publication to the public at large that the present appeal is concerned. There can be put to one side publications in newspapers which are truly enlarged circulars, not available to the public generally, but only to particular classes of persons. Different considerations apply to these publications. Thus, in Wells v Croskery [1952] NZLR 312, allegedly defamatory material was published in a newspaper circulated to members of a trade union, and in reprinted form was published to other union officials and members. The plaintiff claimed that the defamatory material referred to him and would be so understood, but he was defeated by a plea of qualified privilege. In such a case, it is not necessary to consider whether the duty or interest required to be established related to the whole community; it is sufficient if it is shown to exist in respect of the persons to whom the publication is made. Those persons are identified, and the necessary duties or interests can be looked for with some feeling of confidence. This is not so where the newspaper is on sale to the public generally, whether the newspaper has a very limited circulation or a very wide circulation: see, e.g. Standen v South Essex Recorders Ltd . (1934) 50 TLR 365;
Cutler v McPhail [1962] 2 QB 292.”

The extent of the publication and the proportion of readers of the letter with a legitimate interest in receiving it (which are the relevant matters to be considered) was confined to Ms De Salis and the Telecom advertising section, all of whom had the requisite legitimate interest. The correlative interest of the Prime Minister is patent as he is head of the government whose policy the defendants seek to change. It was alleged that the government was already aware of industry disquiet at the plaintiffs’ conduct of government advertising contracts by reference to Mr Starcevic’s complaints, which are contained in exhibit 34 and referred to in exhibit 37.

51   I turn then to an outline of the defendants’ case in relation to common law qualified privilege specifically directed to the Novosti publication. It was contended that the defendants’ interest, in relation to the readers of Novosti, was in informing them of a situation of particular relevance to them as a section of the public with whom the government must communicate in their own language, viz, Serbian. The reciprocal interest of Novosti readers is in having information about their access to vital government communications affecting their rights, entitlements and obligations. This is an interest/interest relationship. 52   It was submitted that Novosti readers are not “the public at large”, and Novosti is not to be equated with the concept of a newspaper of the kind involved in Stephens, where what was being considered was a metropolitan daily of general circulation. The evidence is that Novosti had a circulation of some 7,200 copies and was necessarily read by those persons whose first language was Serbian and who may not have been literate in English. 53   It was submitted that Novosti is, in truth, a special interest publication for a small section of the public, and not the public at large. 54   It was submitted that in Andreyevich v Kosovich & Anor (1947) 47 SR 357, it was “apparently held” by Jordan CJ and Street J that if the existence had been established of an occasion which would have justified the communication of the libel to a narrow group of foreign nationals in New South Wales generally, the use for this purpose of a newspaper printed in the language of that group would not detract from the privilege. 55   The interest of the Serbian community in having information on the provision for themselves of vital government information on their rights, entitlements and obligations corresponded with the defendants’ interest. 56   The extent of the Novosti publication, and the proportion of its readers who had a legitimate interest in reading the letter to the Prime Minister, are both factors that weigh in the defendants’ favour. 57   Counsel for the defendants recalled the well-known passage from the judgment of Earl Loreburn in James v Baird (1916) S.C. (H.L.) 158 at 163-164, where his Lordship said:

“In considering the question whether the occasion was an occasion of privilege, the Court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives rise to a social or moral right or duty, and the consideration of these things may involve the consideration of questions of public policy … ”

58   In response to the criteria set out by his Lordship, the defendants submitted that the article in Novosti was published to non-English speaking readers at the same time as the matter was drawn to the government’s attention. It was published, as the letter says in paragraph 8, “to make my readers …. aware of this, one might say, unethical and wasteful practice”. The circumstances of its publication were that the defendants were attempting to persuade the government (and its departments, including Telecom) that an advisory committee should be established to review government practices in relation to the production and placement of government advertising to ethnic communities.

Some Authorities

59   It is now convenient to refer to certain of the authorities on which reliance was placed by the parties. Particular reference was made to the judgment of McHugh J in Stephens v West Australian Newpapers Ltd [1993-1994] 182 CLR 211 at 260-264. 60 His Honour there delivered an exegesis on the common law principles of qualified privilege. Commencing at page 260, his Honour said (omitting references in footnotes):

“At common law, it is a defence to the publication of defamatory matter that the matter was published in good faith on an occasion of qualified privilege. Statements “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned” are privileged even though they contain untrue defamatory statements. However, the defence of qualified privilege is generally not available where defamatory matter is published in a newspaper. At common law, the defence is not open unless the recipient of the publication possessed an interest in receiving or was under a duty to receive the communication that corresponded with the interest or duty of the person making the publication. In Mowlds v Fergusson , Jordan C.J. explained the nature of the defence of qualified privilege as follows:
‘A privileged occasion comes into existence whenever something occurs which creates in one person an interest or duty, legal, social, or moral, to communicate information to another to serve some particular purpose, and creates also in the other a corresponding interest or duty to receive the communication for that purpose. When such an occasion arises, any person having an interest or duty to make a communication to serve its purpose may make it to any person entitled to receive it; and if he restricts himself to a communication which is capable of serving the purpose of the occasion and is made with no other object than that of serving that purpose, he incurs no liability for libel or slander to any person of whom his communication may be in fact defamatory.’
Reciprocity of interest or duty is essential to a claim of qualified privilege at common law. The need for reciprocity usually defeats a claim of qualified privilege where the publication has been made to the general public. Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large. Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested. In Howe & McColough v Lees , Higgins J. said that the word “interest’ was not used in any technical sense. However, his Honour said that the person must not be “interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news”. In the same case, O’Connor J. said that the interest must be “of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it”.
As the decided cases show, however, circumstances may exist where the interest of the general public in a particular subject is such that a defence of qualified privilege is available even though the communication is made to the general public by means of a newspaper or other medium of general circulation. If a subject is one of public interest, members of the public have the requisite interest in receiving information on that subject from persons who have a corresponding interest or duty to communicate that information to the general public. If such information is published in good faith, both the author and the publisher of the article are protected “for the common convenience and welfare of society”. The privilege of the publisher is “not an original privilege but one ancillary to, and dependent on, the existence of a privilege for the publication of defamatory contents” to the general public.”

61   His Honour then referred to Adam v Ward [1917] AC 309, Loveday v SunNewspapers Ltd (1938) 59 CLR 503. After then referring to Allbutt vGeneral Council of Medical Education and Registration (1899) 23 QBD 400 and Dunford Publicity Studios Ltd v New Media Ownership Ltd [1971] NZLR 961, McHugh J continued:

“These two cases show that the proprietor of a newspaper or a radio or television station is entitled to a defence of qualified privilege when it publishes statements made by a third person pursuant to or in discharge of that person’s interest or duty to inform the general public about a matter.
In determining whether a person has a legal, social or moral interest or duty to publish to the world at large, the extent of the publication and the proportion of readers who have a legitimate interest in receiving the communication are relevant factors to be weighed. It has long been established, however, that qualified privilege is not lost simply because the communication is read, seen or heard by persons having no legitimate interest in receiving the communication. If publication in a newspaper or by radio or television is the only reasonable mode of communicating with the public, qualified privilege will not be lost because it is read, seen or heard by persons who have no legitimate interest in receiving the communication.
Although, as the foregoing account of the case law demonstrates, the common law has upheld defences of qualified privilege for publications to the world at large, common law courts have taken a restricted view of the occasions when a person has an interest or duty to publish material to the general public. Protection of reputation has generally been preferred to the right of the public to know. It is not surprising that successive generations of common law judges have been loath to extend the categories of qualified privilege to protect publications in the general media.

62   The well known case of Adam v Ward [1917] AC 309 was the subject of frequent reference during the course of argument. Certain passages from the judgments of their Lordships merit particular attention, for present purposes. 63 At page 318, Lord Finlay LC said in relation to qualified privilege at common law:

“The privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. The introduction of such extraneous matter may afford evidence of malice which will take away protection on the subject which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, in as much as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication.”

64   To the same effect Earl Loreburn said (at p 320-321):

“But the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. To say that foreign matter will not be protected is another way of saying the same thing. The facts of different cases vary infinitely, and I do not think the principle can be put more definitely than by saying that the judge has to consider the nature of the duty or right or interest and to rule whether or not the defendant has published something beyond what was germane and reasonably appropriate to the occasion, or has given to it a publicity incommensurate to the occasion. For a man would not be protected if he publishes what is in fact untrue of someone else when there is no occasion for his doing so, or when there is no occasion for his publishing it to the persons to whom he in fact publishes it. All this is for the judge alone, and the question of malice, which is for the jury, cannot arise until the judge has ruled on the whole question of privilege.”

65   In Hunt v Great Northern Railway Co [1891] 2QB 189 at 191 Lord Esher, M.R. said:

“I can entertain no doubt about this case. There has been a confusion between the question of the use of a privileged occasion with the question whether that occasion had or had not arisen. The point which the learned judge decided was, that the occasion had arisen for the defendants to do what they did - not that they had used the occasion rightly. If the plaintiff meant to assert that the defendants had used the occasion wrongly, he ought to have insisted that that was the question to be tried, and there ought to have been some suggestion of malice on the part of the defendants, or wilful misuse by them of the occasion. There ought to have been evidence given of that; but there was none, and, therefore, the only question was whether the occasion had arisen. The occasion had arisen if the communication was of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them. When those two things co-exist, the occasion is a privileged one, and the question whether it was or was not misused is an entirely different one.

66   Hunt is considered to be a classic case of the interest/interest relationship. 67   In Toogood v Spyring 1 C.M. & R 181 Parke B. gave what has been referred to as the classic definition of “privileged occasions”. At 193 Parke B said:

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another….and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits”.

68   Having quoted that passage from Toogood v Spyring in his judgment in Watt v Longsdon [1930] 1 KB 130 at 143, Scrutton LJ said:

“It will be seen that the learned judge requires: (1) a public or private duty to communicate, whether legal or moral; (2) that the communication should be ‘fairly warranted by any reasonable occasion or exigency’; (3) or a statement in the conduct of his own affairs where his interest is concerned.”

69   Earlier in his judgment (at 142) Scrutton LJ said that communications made on privileged occasions may lose their privilege because “(1) they may exceed the privilege of the occasion by going beyond the limits of the duty or interest, or (2) they may be published with express malice, so that the occasion is not being legitimately used, but abused”. 70   There was much reliance by the plaintiffs upon the recent judgments of the House of Lords in Reynolds v Times Newspapers Ltd and Others (1999) 3 WLR 1010. The events giving rise to these proceedings took place during a political crisis in Dublin in November 1994, which culminated in the resignation of the plaintiff as Prime Minister of Ireland. The reasons for Mr Reynolds’ resignation were of public significance and interest in the United Kingdom because of his personal identification with the Northern Ireland peace process. He announced his resignation in the House of Representatives of the Irish Parliament on 17 November 1994. On the following Sunday, 20 November, the Sunday Times published in its British mainland edition, an article highly critical of the plaintiff. 71 In the libel proceedings which followed, the plaintiff pleaded that the sting of the article was that he had deliberately and dishonestly misled the House of Representatives on 15 November 1994 by suppressing vital information. Further, that he had deliberately and dishonestly misled his coalition cabinet colleagues by withholding this information, and had lied to them about when the information had come into his possession. The author of the article was the newspaper’s Irish editor. 72 At the trial, the issues were the meaning of the article, qualified privilege at common law, justification, malice and damages. During the trial the defendants abandoned pleaded defences that the words were fair comment on a matter of public interest and that they were a fair and accurate report of proceedings in public of the Irish Legislature. 73 The jury verdict took the form of answers to questions. The jury decided that the defamatory allegation of which the plaintiff complained was not true and, therefore, the defence of justification failed. Further, that neither the author of the article nor the editor were acting maliciously in writing and publishing the words complained of. So, if the occasion was privileged - and that was a question for the judge - the defence of qualified privilege would succeed. The judge ruled that publication of the article was not privileged. 74 Despite their rejection of the defence of justification, the jury awarded the plaintiff no damages. The judge substituted an award of one penny. 75 The plaintiff appealed, contending that the judge had misdirected the jury in certain respects. The defendants cross-appealed against the judge’s decision on the qualified privilege point. The Court of Appeal allowed the plaintiff’s appeal: see [1998] 3 WLR 862. The Court of Appeal ordered a new trial and held that the defendants would not be entitled to rely on qualified privilege at the re-trial. By leave, the defendants appealed against that ruling to the House of Lords. 76 By majority (Lord Nicholls, Lord Cooke and Lord Hobhouse; Lord Steyn and Lord Hope dissenting) the appeal was dismissed. Their Lordships, in the majority, were of the view that, in the circumstances, the publication was not one which should in the public interest be protected by privilege in the absence of proof of malice; and that accordingly there was not justification for allowing the defendants to re-open the issue of privilege at the re-trial. 77 Although judgments of the House of Lords have no binding effect upon this Court, they have a “peculiarly high persuasive value”: see Viro v TheQueen (1978) 141 CLR 88 at 121 per Gibbs J, citing Skelton v Collins (1966) 115 CLR 94 at 104. 78 In Cook v Cook (1986) 162 CLR 376 (at 390) Mason, Wilson, Deane, and Dawson JJ said, that although since the abolition of appeals to the Privy Council decisions of the Judicial Committee were no longer binding upon Australian courts, the history of this country and of the common law makes it inevitable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of other great common law courts. 79 In argument before the House of Lords in Reynolds the defendants asserted that the courts should recognise a generic qualified privilege encompassing the publication by a newspaper of political matters affecting the people of the United Kingdom. 80 Adopting the terms of the headnote, it may be taken that the majority of their Lordships ruled that the common law should not develop a new subject matter category of qualified privilege whereby the publication of all political information would attract qualified privilege whatever the circumstances, since that would fail to provide adequate protection for reputation, and it would be unsound in principle to distinguish political discussion from other matters of serious public concern. However, qualified privilege was available in respect of political information upon application of the established common law test of whether there had been a duty to publish the material to the intended recipients and whether they had an interest in receiving it, taking into account all the circumstances of the publication including the nature, status and source of the material, and that, accordingly, a claim to privilege stood or fell according to whether it passed that test. 81 Lord Nicholls referred (at 1016) with definite approval to the following concise explanation of the circumstances which give rise to qualified privilege in the judgment of Blackburn J in Davies v Snead (1870) LR 5QB 608 at 611. Blackburn J spoke of circumstances where a person is so situated that it, “becomes right in the interests of society” that he should tell certain facts to another. 82 Lord Nicholls continued:

“There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.”

83   Lord Nicholls further said (at 1017):

“In determining whether an occasion is regarded as privileged the court has regard to all the circumstances: see, for example, the explicit statement of Lord Buckmaster LC in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15, at 23 (“every circumstance associated with the origin and publication of the defamatory matter”). And circumstances must be viewed with today’s eyes. The circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions. The requirements at the close of the twentieth century may not be the same as those of earlier centuries or earlier decades of this century.”

84   And later (at 1019) his Lordship said:

“Whether a publication is in the public interest or, in the conventional phraseology, whether there is a duty to publish to the intended recipients,…depends upon the circumstances, including the nature of the matter published and its source or status.”

85   It is important to note, at this stage, that in the judgment of the Court of Appeal in Reynolds [1998] 3 WLR 862 handed down by Lord Bingham CJ their Lordships set out (at 899) three questions which, in their view, needed to be answered in relation to any individual occasion of asserted qualified privilege. The questions are:

Firstly, was the publisher under a legal, moral or social duty to those to whom the material was published (which in appropriate cases may be the general public) to publish the material in question? (the duty test).

Secondly, did those to whom the material was published (which again in appropriate cases may be the general public) have an interest to receive that material? (the interest test).

Thirdly were the nature, status and source of the material, and the circumstances of the publication, such that the publication should in the public interest be protected in the absence of proof of express malice? (the circumstantial test).

86   Their Lordships said that the reference to “status” in the final question was made bearing in mind the use of that expression in some of the more recent authorities to denote the degree to which information on a matter of public concern may (because of its character and known provenance) command respect: see the Perera case [1949] AC 1 at 21; the Webb case [1960] 2 QB 535 at 568, and Blackshaw v Lord [1984] 1 QB 1 at 26 and 35. 87 Reverting to the judgment of Lord Nicholls in Reynolds, his Lordship (at 1020) noted that the Court of Appeal concluded that in deciding whether an occasion is privileged the court should consider (amongst other matters) the nature, status and source of the material published and the circumstances of the publication as matters going to a question (“the circumstantial test”) separate from, and additional to, the conventional duty/interest questions. In this regard his Lordship said:

“With all respect to the Court of Appeal, this formulation of three questions gives rise to conceptual and practical difficulties and is better avoided. There is no separate or additional question. These factors are to be taken into account in determining whether the duty/interest test is satisfied or, as I would prefer to say in a simpler and more direct way, whether the public was entitled to know the particular information. The duty/interest test or the right to know test, cannot be carried out in isolation from these factors and without regard to them. A claim to privilege stands or falls according to whether the claim passes or fails this test. There is no further requirement.”

88   Having rejected the defendants’ submission that the courts should recognise a generic qualified privilege encompassing the publication by a newspaper of political matters affecting the people of the United Kingdom, his Lordship expressed (at 1027) his conclusion in the following terms:

“My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law should not develop “political information” as a new “subject matter” category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff’s side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.

89   Lord Cooke (at 1046) said in relation to the three questions proposed by the Court of Appeal, to which I have already referred:

“In the judgment now under appeal the circumstantial test was separated to some extent from the duty and interest tests. Not entirely, I think, for it was said that, while the duty and interest test were “in general’ satisfied, the circumstantial test was not. This may indicate that the Court of Appeal thought that the general subject matter of the article brought it potentially within qualified privilege but that the particular context and surrounding circumstances ruled the privilege out. The threefold analysis is largely a matter of arrangement. I agree that the twofold classical test is enough, once it is accepted that all of the circumstances of the publication are to be taken into account.”

90   Lord Hobhouse expressed agreement with Lord Nicholls in all respects. He did, however, add some reasons of his own. A passage from his Lordship’s judgment, upon which the present plaintiffs heavily relied, is in the following terms (at 1059):

“This case is concerned with the problems which arise from the publication of factual statements which are not correct - ie do not conform to the truth. This case is not concerned with freedom of expression and opinion. The citizen is at liberty to comment and take part in free discussion. It is of fundamental importance to a free society that this liberty be recognised and protected by the law.
The liberty to communicate (and receive) information has a similar place in a free society but it is important always to remember that it is the communication of information not misinformation which is the subject of this liberty. There is no human right to disseminate information that is not true. No public interest is served by publishing or communicating misinformation. The working of a democratic society depends on the members of that society being informed, not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society and should form no part of such a society. There is no duty to publish what is not true; there is no interest in being misinformed. These are general propositions going far beyond the mere protection of reputations.”

91   His Lordship did, however, go on to say that some degree of tolerance for factual inaccuracy has to be accepted; hence the need for a law of privilege.

The plaintiffs’ submissions on qualified privilege at common law

92   I turn then to the submissions in relation to the defence of qualified privilege at common law, on behalf of the plaintiffs. The point was forcefully made at the outset of these submissions that in considering the question of whether or not the defence of qualified privilege has been established, it is necessary to keep in mind that the defence was pleaded, as it had to be, as a defence to the defamatory imputations formulated by the plaintiffs. Reference may be made here to Morgan v John Fairfax [No 2] (1991) 23 NSWLR 374 at 387. 93 The plaintiffs submitted that there were two submissions made by the defendants which were not open to them, by reason, firstly, of the pleadings and, secondly, concessions that the defendants had made during the course of the trial. 94 Firstly, it was contended that it was not open to the defendants to rely upon the defence of qualified privilege in relation to publication (or re-publication) to Telecom and/or the relevant officers of Telecom, as reflected in the jury’s answers to questions 29(b) and 30(b), as the pleaded defence of qualified privilege did not purport to extend to such publication or re-publication. Further, it was said that senior counsel for the defendants acknowledged on the 28th day of the trial that the defendants would not seek to rely upon qualified privilege in regard to such publication. 95 The matter was raised when the defendants applied for leave to amend their Particulars of Qualified Privilege at Common Law. I quote from pp 1602-1605 of the transcript:

“LITTLEMORE: Yes, We would say this, we would seek leave to amend the particulars of qualified privilege on page 8, at the end of the first line, adding three words, ‘to the Prime Minister’. Then we would seek leave to put, after the word ‘published’ the words ‘to ask the Prime Minister’.
HUGHES: I have page 8 starts “the first matter complained of”. The second further amended defence.

LITTLEMORE: That’s the tied up document. I have never had that. I will about to the relevant page. Page 7.
We seek leave to amend, by adding in the last sentence on that page beginning ‘furthermore’, in the next line after the word ‘published’ to include the words ‘to the Prime Minister’, and then putting a full stop in the last line after the words ‘government departments’. And then excising the five words following. That is the only amendment we seek. We will not seek it if my learned friends tell your Honour that they would be in any way prejudiced by that amendment.
HIS HONOUR: I will take the short adjournment and we can think about that. Which particular rubric of qualified privilege are you putting this under?
LITTLEMORE: Common law.
HIS HONOUR: I understand that, but there are --
LITTLEMORE: Complaint to person in authority, complaint to the head of government about governmental matters. When I get my turn I will take you to the authorities on that. What has to be established in those situations is not duty interests but interest interest.
HIS HONOUR: So complaint to head of government about governmental matters.
LITTLEMORE: Yes, Your Honour, governmental policy.
HIS HONOUR: That the only element of qualified privilege you rely on?
LITTLEMORE: Yes, your Honour.
HUGHES: I won’t oppose that amendment, so long as it is understood, and this is expressed by my learned friend, that is the only head of qualified privilege on which he proposes to rely. I immediately say, that, of course, that head of qualified privilege would not cover publication to Telecom. Could not. Or to people in Telecom.
LITTLEMORE: I add, I suppose, after the words ‘Prime Minister’, ‘and Telecom’.
HUGHES: My learned friend can’t do oral pleadings on the run. He specifically said that that was the only amendment that he sought.
LITTLEMORE: I thought my friend in some sort of demonstration in fairness to me was saying that if you do that we will say it doesn’t apply to Telecom. To accommodate that all I have said, all right, we will add to it the words ‘and Telecom’?
HUGHES: A publication to Telecom can’t be a publication within that which my learned friend just specified as his head of privilege, complaint to person in authority.
LITTLEMORE: Your Honour, I will be content with the original amendment. I can see how to handle this. I certainly don’t want to prolong this. We can accommodate that.
HUGHES: All right, perhaps it ought to be written out so that --
LITTLEMORE: We say that’s unnecessary. It’s only three words. It’s a total of seven letters.
HIS HONOUR: I can either have it on the transcript or it can be written out.
(His Honour sent a message to the jury that they would not be required before 2 pm)
SHORT ADJOURNMENT
HUGHES: We are at, I have to oppose the amendment my learned friend formulated orally. It’s only a matter of a few words and your Honour has them in mind.
HIS HONOUR: You made a qualification, didn’t you, on the understanding that didn’t include head of Telecom. I want to get this down in the transcript in the precise form to which the agreement is.
HUGHES: We don’t oppose an amendment that would add to, I think page 7, fourth last line.
HIS HONOUR: I have the details of the amendment. It’s just I thought you said that you agreed to it subject to a qualification?
HUGHES: No, not subject to a qualification. I pointed out that the amendment does not cover publication to Telecom.
HIS HONOUR: Do you agree with that?
LITTLEMORE: Yes, your Honour. That’s what I was saying before the adjournment. We can handle that.
HIS HONOUR: It will be noted on the transcript that the defendants seek leave to amend the last sentence of the particulars of qualified privilege at common law in respect of both matters complained of so that sentence will read: “Furthermore, the matters complained of were published to the Prime Minister on an occasion of qualified privilege at common law in that they were published in the course of discussion of government or political matters in that the matters complained of related to the conduct of government departments”.
Thereafter, the words particulars of which are as follows: The first matter complained of --
HUGHES: That’s out.
HIS HONOUR: I was going to say will be struck out.
The words, particulars of which are as follows: “The first matter complained of is sent to the Prime Minister of Australia and the defendants rely upon the right of freedom of speech supplied under the constitution” - that is struck out.
It will be noted that Mr Hughes has indicated that he agrees to that amendment in the light of his understanding that the particular does not embrace the head of Telecom, as it then was.
That’s formally recorded. Can I say that’s the only head of qualified privilege that the defendants rely upon at common law?
LITTLEMORE: Yes, it is, your Honour.
HIS HONOUR: It would be formally noted then that the amended particular which I have set out earlier is the only head of qualified privilege at common law on which the defendant relies.”

96   Secondly, it was contended that it was impermissible for the defendants to seek to rely upon the head of qualified privilege, so far as the letter published to the Prime Minister was concerned, involving the complaint/redress category. It was submitted that such a head of qualified privilege was not pleaded, nor was it particularised. Further, the defendants, through senior counsel, expressly acknowledged that they would not rely upon such head on the 28th day of the trial. I quote from page 1611 of the transcript:

“HIS HONOUR: Are you actually objecting to Mr Littlemore relying in this hearing, upon the complaint or the grievance redressed (sic)?
HUGHES: Yes, I am, because it is not particularised even now. Those are our submissions.
LITTLEMORE: We are not very much fussed about the complaint grievance aspect of it. We don’t think that in a practical sense that is going to make any difference to a jury but we will nonetheless, hold to our position on that.
HIS HONOUR: I think in view of the objection if you are relying on it it will have to be argued because it is contended that it has never been particularised and we are now in the fifth or sixth week of the trial and I just have to rule on it in accordance as best I can with the appropriate principles. If you are not fussed about it, maybe it might safer (sic).
LITTLEMORE: I really cannot see that it has been worth the time that has already been spent on it in terms of this being a jury trial and a jury being we say unlikely to want to make those sort of distinctions. Insofar as the alternative is to argue it out at length we elect not to do that. I am perfectly happy for that to be recorded.
HIS HONOUR: Very well, you are proceeding only with the one element which is particularised in accordance with what was granted earlier today?”

97   I turn now to the defendants’ Particulars of Qualified Privilege at Common Law, which I earlier divided into part one and part two. With regard to part one, the plaintiffs submitted that the alleged interest of the public in receiving the contents of the letter (“the public had an interest in knowing the facts and matters stated”) is premised upon the factual accuracy of its contents. It is necessarily implicit in this formulation that the alleged duty was the duty to bring to the attention of the recipients “real facts” and “real matters” - by contrast with untrue allegations. Thus, it was argued in relation to the first imputation, which the defendants did not seek to justify or to defend as comment, there was ample evidence of its complete falsity. Further, the jury found that the third and fourth imputations were not substantially true. The defendants therefore were under no duty of the specific kind asserted in the particulars as thus analysed. 98   With regard to part two of the particulars, the plaintiffs submitted that this aspect of the defence started life as elements in the formulation of a Lange defence (Lange v ABC (1997) 189 CLR 420). However, reliance upon a Lange defence was disclaimed by the defendants on the 25th day of the trial (transcript 1254). Subsequently on the 28th day of the trial, when part two again came up for consideration, senior counsel for the defendants contended (transcript 1598) that although the Lange defence was not being pursued, the defendants relied upon part two as pleading an interest by reason of it being a communication to a head of government about governmental matters. Senior counsel for the defendants said that if the plaintiffs persisted in their contention that part two did not survive the abandonment of the Lange defence, then he would consider making application for leave to amend part two. However, such application was not made. 99   The plaintiffs submitted that in its present form part two does not constitute a defence of qualified privilege at all. It was, they contended, either a Lange defence or no defence at all. It was submitted that the particular species of common law qualified privilege attaching to the publication of defamatory imputations in the course of government and political matters not otherwise protected by common law qualified privilege depends upon proof that the dependant acted reasonably. No allegation of reasonableness was pleaded and the defendants made no attempt to prove that their conduct in publishing the imputations was reasonable. 100   Reverting to part one of the particulars, it was submitted by the plaintiffs that this part propounds a head of privilege based upon an alleged duty of disclosure of the relevant imputations to the public at large. However, except as to publication in ‘Novosti’, which had a proved circulation of 7,199 copies, the extent of a proved publication was limited, as appears from the jury’s answers to questions 29 and 30. (It may be noted in this context that the plaintiffs contended, and the defendants denied, that the evidence of Mr Khoury (transcript 1208) established that the readership of Novosti would be substantially larger than its proved circulation.) 101   It was submitted by the plaintiffs that there was no such duty as that propounded by the defendants so far as the Novosti publication is concerned. Both in Australia and elsewhere, common law courts have repeatedly held that a media organisation has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested, albeit legitimately interested: see Stephens at 261; Lange at 569-570, 572-573. Specifically, in Lange (at 572) the High Court said:

“If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth.”

102   The plaintiffs submitted that the widening of the scope of common law qualified privileged sanctioned by Lange is qualified by a requirement of proof that the conduct of the publisher was reasonable. If such a requirement applies to the publication of defamatory imputations concerning government or political matters it should apply equally to defamatory publications concerning other matters where the character of the published matter as one of public interest is relied upon as an essential element giving rise to a duty, as is the case here. 103   If a publisher, it was contended, is entitled to take refuge in a defence of common law qualified privilege on the ground that the publication deals with matters of public interest of concern to the publishees, it is only just and, therefore, necessary that reasonableness of the publisher’s conduct should be a necessary ingredient in the defence. 104   It was further submitted that the defence of common law qualified privilege in relation to imputations one and three, as pleaded with respect to the publication in Novosti, necessarily flounders because “there is no principle of law which entitles a newspaper to publish a defamatory statement of fact about an individual merely because the statement is made in the course of dealing with a matter of public interest”: see Loveday v Sun NewspapersLtd (1938) 59 CLR 503 at 513 per Latham CJ; Smith’s Newspapers vBecker (1932) 47 CLR 279 at 304 per Evatt J; Morosi v Mirror Newspapers (1977) 2 NSWLR 710 at 775 et seq; Wiese v Nationwide News (1990) 4 WAR 263 and, finally, Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 461. It is clear from the last mentioned case that the principle still stands. 105 It was submitted that the character of the defamatory matter as a matter of public interest, cannot be the sole touchstone for a defence of common law qualified privilege. That principle has been re-invigorated and its application clarified in the speech of Lord Nicholls in Reynold v Times Newspapers, to which reference has already been made. 106   It was submitted that a principle is to be extracted from that speech in that, in determining whether there is an occasion of common law qualified privilege the test of duty/interest as between publisher and publishee continues in force; but in determining whether or not the particular publication passes that test it is necessary for the court to weigh in the balance, among other matters, the nature, status and source of the material published. 107   The plaintiffs referred to the passage from the judgment of Jordan CJ in Mowlds v Fergusson (1939) 40 SR 311 at 318, cited by McHugh J in Stephens at 261, which limits the occasion of privilege to an occasion in which the publisher restricts himself to a communication of information to another ‘to serve some particular purpose”. The submission was made with regard, for example, to the first imputation, that it was incapable of serving the occasion, if any there was, for a discussion or a letter to the Prime Minister about government or political matters. Such an imputation, it was argued, is outside any possible scope of the qualified privilege claimed in the particulars. 108 Reference was then made by the plaintiffs to the passage by McHugh J at 261:

“Reciprocity of interest of duty is essential to a claim of qualified privilege at common law. The need for reciprocity usually defeats a claim of qualified privilege where the publication has been made to the general public…Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested.”

109   It was submitted that the subject publication in Novosti was a publication to anyone who desired to read it. The only restriction on the number of persons who might read it was limitations of readership, but the readership was relatively large, and there was no limitation upon the freedom of people who read the article in the newspaper to repeat its contents to the world at large. 110   Submissions were made by the plaintiffs with respect to the matters to be taken into account, depending on the circumstances, in determining whether the defence of qualified privilege applies. The submissions do not accord precisely with the order in which they are set out in the speech of Lord Nicholls. 111   Firstly, a salient circumstance which told heavily against the conclusion favourable to the defendants on the issue of qualified privilege, is the fact that the charges contained in the relevant imputations were levelled ex parte. Support is sought here from the judgment of the Court of Appeal in Purcell v Sowler (1877), 2 CPD 215. Here, it was said the charges were levelled ex parte in circumstances where, despite their previously amicable relationship, Mr Skalkos gave no forewarning of the attack to Mr Assaf, and thus no prior opportunity for the plaintiffs to meet it beforehand. 112   It will be recalled that in Purcell v Sowler it was held that the administration of the poor-laws, both by the government department and by the local authorities, including the conduct of the medical officers, was a matter of public interest; but the publication of a report of proceedings at a meeting of poor-law guardians, at which ex parte judgments of misconduct against the medical officer of the union were made, was not privileged by the occasion. 113   Secondly, the subject imputations were of a very serious nature, impeaching the honesty of the plaintiffs’ business methods. 114   Thirdly, Mr Skalkos had an “axe to grind”. He was discontented at not getting enough government advertising work of the kind that ETCOM was getting, particularly advertising work from Telecom, that was in the nature of the provision of translation of advertisements into foreign languages. Allowing for the fact that the jury found that the plaintiffs had not established that the defendants had an indirect motive in publishing the relevant matter, nevertheless, the defendants were seeking by the publications to benefit themselves, and that was the axe which they had to grind. 115   Fourthly, there was no evidence from the defendants of any steps taken to verify the charges made against the plaintiffs. 116   Fifthly, the tone of the letter was vituperative. 117   Finally, that the charge conveyed by the first imputation was quite irrational. Such a submission, it was said, is quite consistent with the jury’s findings negating malice. True, there was no finding of malice, but as the evidence amply demonstrated, neither Mr Assaf nor ETCOM was in the business of “selling government advertising to the ethnic press”, and thus the charge conveyed by the first imputation was quite irrational. 118   The plaintiffs founded a further submission upon the basis that the imputations were directed only against the alleged business conduct of the plaintiffs. Reliance in this regard was placed firstly upon the judgment of the High Court in Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279. In that case the defendant newspaper printed defamatory and untrue imputations about the plaintiff, who was a doctor of medicine of a German university but not eligible to practice as a medical practitioner in South Australia. Nevertheless, the plaintiff practiced medicine in South Australia and held himself out as qualified to so practice. At page 304 Evatt J said that the defence of qualified privilege was not applicable:

“Occasionally there may arise cases where, although the medium of a widely circulated newspaper has been employed by the defendant to meet an occasion, the protection of privilege will attach to such publication (Adam v Ward). But this is obviously not such a case. There was not community of interest between the defendants and the general body of their readers which gave rise to any occasion for the communication to them of the imputations against the plaintiff. Communications of genuinely entertained opinions and suspicions to the proper State or professional authorities, by the defendants or any other person, might have given rise to an entirely different situation. But, in the present case it is not open to the defendant newspaper to say: ‘We admit the imputations are not true, and admit they are defamatory, but we acted in perfect good faith and had a duty to all persons who might read our paper, to inform them of all these untrue and defamatory reflections upon the plaintiff.’ ”

119   That passage was referred to by Brennan CJ in Bellino v Australian Broadcasting Corporation [1995 - 1996] 185 CLR 183 at 197:

“Of course, if the only or principle subject of a publication is the conduct of a private citizen whom the publication defames, the subject is not readily classified as one of public interest so as to attract the protection of qualified privilege to a publication to the general public. ( Smith’s Newspapers Ltd v Becker at 304) Generally speaking, the public interest is not advanced or protected by general publication of defamatory matter touching the conduct or affairs of the private individual that do not intrude into a public forum. If a defendant raises a defence of qualified privilege in respect of the publication of such matter, the width of the pleaded subject of public interest (as well as the extent of the publication) is material to the availability of the defence. The more widely the subject of public interest is pleaded, the more likely it is that the public discussion of the subject is for the public benefit, but the more difficult it may be for the defendant to resist the argument that defamatory matter canvassing the conduct or affairs of the plaintiff is not relevant to that subject. If the subject of public interest is pleaded more narrowly, it may be easier for the defendant to satisfy the judge that such defamatory matter was published in the course of or for the purposes of the discussion of the subject, but it may be more difficult for the defendant to show that the public discussion of that subject is for the public benefit.”

120   Specifically with regard to part two of the particulars of qualified privilege, it propounds, the plaintiffs submitted, a ground of privilege seemingly based upon a supposed need to bring the relevant imputations to the attention of the Prime Minister because they related to the conduct of government departments. But, the plaintiffs contended, none of the defamatory imputations found by the jury was directed to the conduct of government departments. As previously suggested, the imputations concentrated exclusively on the alleged misconduct of the plaintiffs. 121   Then it was submitted that the defence of common law qualified privilege fails to negotiate several other hurdles. First, in the case of communication to a number of recipients the relevant duty/interest reciprocity must be established between the publisher and all the recipients. Reliance here is placed upon Guise v Kouvelis (1947) 74 CLR 102 per Latham CJ at 112 and Chapman v Ellesmere (1932) 2 KB 431 at 456, 469. The plaintiffs accept that there is some disparity between the statements contained in those cases and the more recent statements of McHugh J in Stephens, to which reference has already been made. However, the plaintiffs contend that the extent of publication is relevant to the question whether there was an occasion of qualified privilege, and the question whether the limits of the occasion were exceeded. Thus in McLean v David Syme & Co Ltd (1970) 72 SR 513 at 530, Mason and Manning JJA said

“The area over which the publication was made and the number of persons to whom it was made were material to the question whether the occasion was privileged apart altogether from its relevance to the issue of malice (Guise v. Kuvelis (56); Toogood v. Spyring (57); Adam v. Ward (58)). As Earl Loreburn said in Adam v Ward (at p. 321): ‘The facts of different cases vary infinitely, and I do not think the principle can be put more definitely than by saying that the judge has to consider the nature of the duty or right or interest and to rule whether or not the defendant has published something beyond what was germane and reasonably appropriate to the occasion, or has given to it a publicity incommensurate to the occasion’.”

122   The plaintiffs submitted that the evidence did not establish any course of discussion of any supposed matter of public interest to which the imputations found by the jury were in any way relevant. 123   Next it was submitted that the proposition that all the readers of Novosti had a recognisable interest in the terms and conditions upon which government advertising was supplied to the ethnic media is ill founded. There is no evidence to support it. 124   Moreover, it was submitted that there is no evidentiary foundation for the suggestion that the imputations found by the jury were matters of public interest antecedently to publication of the matters complained of. The correct legal principle, it was submitted, is that a publisher cannot elevate a subject to the level of a matter of public interest for the purposes of a defence of common law qualified privilege merely by publishing false defamatory imputations concerning a person said to be involved in the matter. A matter of public interest, for the purposes of such a defence, must possess that character prior to publication of the defamatory matter. Support for this proposition is sought from Loveday v Sun Newspapers Limited (1937) 59 CLR 503 at 513 and 521; Australian Consolidated Press Ltd v Uren (1967-68) 117 CLR 185 at 209, per Windeyer J. The principle stated in those cases is that the press cannot itself make a matter one of public interest by publishing statements about it. (However, as Gaudron J pointed out in Bellino (at 243) “there are some subjects which are inherently of public interest”). 125   The plaintiffs submitted that it is a general proposition of law that the relevant discussion, if it is to attract privilege, must be related to a current discussion, something that has already emerged as a subject of public interest in public discussion. The reliance by the defendants upon the evidence of Mr Starcevic in this connection is, therefore, quite misplaced. There is no established nexus, it was submitted, between the imputations upon which the plaintiffs rely, and Mr Starcevic’s complaint in the letter dated 15 September 1992 (Ex.34) to the Minister for Social Security regarding ETCOM allegedly seeking discounts in publishing rates for government advertising. Nor, it was submitted, is there such a nexus between the imputations and apparent complaint by Mr Starcevic in his letter dated 5 July 1993 (which was not tendered), to the Office of Government Information and Advertising. The response dated 28 July 1993 (Exhibit 37) from the OGIA explains why “Nova Dova” had been selected as the vehicle for publication of advertisements as part of the Australian Tax Office’s tax information campaign for ethnic communities. 126   The plaintiffs submitted that even if one assumes (contrary to their argument) that there was a requisite degree of reciprocity of duty or interest between the defendants and recipients of the letter to the Prime Minister, including the letter as published in Novosti, in relation to the procedures for disseminating government advertising to the ethnic media, the defence will not be available if the defamatory imputations are unconnected with any occasion of privilege. Reliance was placed here upon extracts from the speeches of the various Law Lords in Adam v Ward, reference to which has already been made. 127   It was submitted that the course of Australian authority has been to entrench the principle, as propounded by Lord Finlay LC in Adam v Ward, which requires the trial judge to consider the connection, if any, between the defamatory imputations and the general subject matter of the publication, in determining whether the defamatory imputations fell within an occasion of qualified privilege. 128   In Bellino (185 CLR at 204) Brennan CJ said:

“If the matter complained of has no material relationship to, or nexus with the subject of public interest that appears from the other parts of the article or broadcast, it falls outside the scope of any privilege.”

129   The Chief Justice went on to say that protection for a defamatory statement is determined by the positive criterion of relationship to, or nexus with, the relevant subject of public interest. That criterion is not satisfied unless the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest. See also Uren (1966) 117 CLR 185 at 213. 130 In Bellino Dawson, McHugh and Gummow JJ said (at 228):

“It is true that at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion.”

131   It was submitted by the plaintiffs that the application of these principles to this case disposes of the defence of qualified privilege because untrue personal denigration of the kind encapsulated in the relevant imputations was unconnected with any supposed occasion of privilege. 132   In Justin v Associated Newspapers Ltd (1966) 86 WN (Pt1) 17 at 33, Walsh JA said, quoting Lynam v Gowing (1880) 6 LR.Ir. 259 at 268:

“It is not enough to have an interest or a duty in making a communication; the interest or duty must be shown to exist in making the communication complained of .”

133   Walsh JA continued:

“It should be added that, in my opinion, the tests at common law as to the existence of a privileged occasion were primarily objective ones. By this I mean that the point was whether there was in fact the requisite situation, not whether the defendant believed that there was. See Hebditch v MacIlwaine [1894] 2QB 54 at 58; Stuart v Bell [1891] 2QB 341 at 349, and Adam v Ward at 334.”

134   With relation to this particular subject matter the plaintiffs made a specific submission in relation to the first imputation. It was argued that assuming (contrary to the plaintiffs’ submission) that it was open to the defendants to raise the complaint/redress head of privilege, the defendants’ attempt to bring the first imputation within that head of privilege understated the true sting of the imputation. 135   It will be recalled that the defendants contended, in respect of the first imputation, that the complaint is that there are improprieties in the way the government deals with the ethnic community by medium of the plaintiff company - where the consequence is a multiplication in the cost to the taxpayer. The criticism by the plaintiffs of that categorisation is that it inferentially and necessarily downplays the sting of the first imputation, because that imputation is much more serious than so categorised. This raises the question whether a sting as severe as the first imputation is within any privilege of the complaint/redress type relied upon. In other words, it was submitted that the formulation by the defendants is an inaccurate, anodyne way of describing the sting of the first imputation. 136   Turning then to the third imputation, it will be recalled that in respect of this imputation the defendants categorised the complaint as the defendants’ refusal to carry government advertising placed by the plaintiffs, having the consequence of denying ethnic readers access to vital government communications. Assuming this head of privilege to be available (which the plaintiffs deny) it was submitted that there is in essence a misdescription inferentially of the subject matter of the complaint said to be encapsulated in the relevant imputation, because, according to the defendants, the plaintiffs are invoking their own conduct as a basis for saying that such conduct denies ethnic readers access to vital government information communications. 137   It was submitted by the plaintiffs that this is “an unreal subject of complaint, one that can’t be laid legitimately at the door or feet of the plaintiffs”.

Defendants’ reply

138   I turn then to the defendants’ reply to the submissions of the plaintiffs relating to common law privilege. Senior counsel for the defendants submitted that it was open on the pleadings for the defendants to raise the defence of qualified privilege, with regard to the republication of the letter to the Prime Minister and to the various officers within Telecom. The jury rejected the plaintiffs’ case based upon publication directly by the defendants to Telecom, or to any officers within Telecom. However, the jury were satisfied that the plaintiffs had proved a republication to Telecom and a republication to the various officers in Telecom. Senior counsel for the defendants contended that there had been, in reality, no renunciation by the defendants of a case based upon the defence of qualified privilege to any republication to Telecom or its officers. Even if that were not so, he contended, that asserted concession could have no bearing upon the defendants’ right to raise qualified privilege in relation to the two aspects of republication found by the jury to have occurred. 139   Senior counsel contended, in effect, that it was perverse for the plaintiffs to take any point about the pleadings in relation to the defence of qualified privilege to the republication to Telecom and its officers because the plaintiffs have not pleaded such republication in their Statement of Claim. 140   With respect to the plaintiffs’ argument regarding part two of the Particulars of Qualified Privilege at Common Law, that once the Lange defence had been abandoned the particulars were incapable of supporting any head of qualified privilege, the defendants responded as follows. They contended that the words cannot be limited to a Lange defence. In fact they set up, in the alternative, duty/interest, interest/interest and/or complaint/redress. One is not required, in particularising common law qualified privilege, to assert in precise terms the particular rubric relied upon, if the reach of the particulars is enough to embrace each such rubric. That is the position the defendants contended in relation to the three rubrics relied upon here. That was made clear, it was argued, during the course of addresses. 141   Acknowledging that no element of reasonableness was pleaded in part two of the Particulars, it was contended that such an element is only necessary to the extent that a defendant seeks to rely upon the Lange defence. It was submitted that the common law allows a defence of qualified privilege in relation to publications in the course of discussion of government or political matters, in that the matters complained of related to the conduct of government departments, without the need for an element of reasonableness to be satisfied by the defendants. Reliance was placed here upon the following statement from the unanimous judgment of the High Court in Lange (1997) 189 CLR 520 at 573:

“Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous (1994) 182 CLR 104 at 136-137. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters.
But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.”

142   Thus the defendants contended there has always been a defence of qualified privilege, as that passage makes plain, when a member of the public makes a complaint to a Minister about conduct of that Minister’s department, or the administration of a department. 143   With respect to the plaintiffs’ argument regarding part one of the Particulars of Qualified Privilege at Common Law, that the alleged interest of the public in receiving the contents of the letter is premised upon the factual accuracy of its contents, the defendants contended that this submission revealed a misunderstanding of the nature of qualified privilege as a defence, which by its very nature only applies to false and defamatory imputations. If only truth could be communicated in the imputation, then qualified privilege would have no role to play. 144   It was submitted that it was made clear by the Privy Council in Austin vMirror Newspapers Ltd [1986] 1 AC 299, that it is not mere factual assertions which are protected by qualified privilege, but it will include also expressions of opinion - any matter of genuine interest to the reader - and to paraphrase what the court had to say, there is in fact no reason why the word “information” should be given such an artificially restricted meaning “as facts”, as opposed to “comment” or “opinion”. 145 It was submitted that qualified privilege is not concerned with real facts and real matters. It is only untrue assertions of fact to which qualified privilege applies, and of course, equally will it apply to opinion and, as is well understood, there is no such thing as an untrue opinion - that is conceptually impossible. 146 With regard to the plaintiffs’ submission that a matter of public interest, for the purposes of qualified privilege, must possess that character prior to the publication of the defamatory matter, the defendants submitted that such a proposition cannot extend to a pre-existing discussion of the precise matter in question. It was submitted that the expenditure of government money, and the business of the administration of contracts by private contractors for the government is always a matter of community discussion, and that is the area to which the subject publications were directed. There can be no doubt that a matter of legitimate public interest is the expenditure of taxpayers’ funds, and, as here, a particular kind of expenditure of taxpayers’ funds. 147 Here the course of discussion should be broadly interpreted to include matters that are commonly discussed and are, because of their nature, matters of public interest to the community. 148 With regard to the plaintiffs’ submission that the Particulars propounded a head of privilege based on an alleged duty of disclosure of the relevant imputations to the public at large, the defendants submitted that those Particulars have to be read down to “the recipients”. The publications were not to the public at large. The case as proved is that the letter was published to one person in the Prime Minister’s Office, and republished to a small number of persons in the Telecom advertising section, and it was published to a number of readers of Novosti. Two persons were proved to have read it in Novosti. 149 The defendants submitted that insofar as the publication in Novosti is concerned, the plaintiffs cannot rely upon any general assumptions about the extent of readership (as compared to circulation) of newspapers published in the English language. The readership of a Serbian newspaper must necessarily be limited. Thus it was contended that “no degree of largeness of readership has been proved”. 150 With regard to the plaintiffs’ argument that the publication in Novosti was publication to the world at large, and therefore within the class of case which rarely attracts privilege, the defendants submitted that the Novosti publication was not one to the general public at large. It was said to be a restricted publication, both as to the extent of the circulation and the readership, which must necessarily be confined to those who understood the Serbian language. The defendants sought to equate the Novosti publication with the publication in the Croatian language which was the subject of consideration in Andreyevich v Kosovich & Publicity Press (1938) Pty Ltd (1947) 47 SR 357. 151   In that case the Full Court upheld the trial judge’s finding that qualified privilege had not been established. However, the present defendants relied upon the following passage from the judgment of Jordan CJ (at 365):

“I would add that if the existence had been established of an occasion which would have justified the communication of the matter complained of to Yugoslavs in New South Wales generally, I should have been of opinion that the use for this purpose of a newspaper printed in Croatian would not have detracted from the privilege. Whether publication in an ordinary newspaper is legitimate depends on the circumstances. If the occasion justified the widest possible publication, it is: Adam v.Ward ; if it does not, it is not: Smith’s Newspapers Ltd. v. Becker . In the present case, the newspaper was intelligible only to a relatively narrow group, and the question was whether its particular contents could with propriety be communicated to that group.”

152   Further reliance was placed upon the following passage from the judgment of Davidson J, who said (at 368):

“In the circumstances, however, the Yugoslavs alone could be regarded as having an interest in the matter. The general public in Australia could not well fall within the same category in any sense.”

153   Thus publication in Novosti, it was submitted, is not in any sense to be equated with the mass media type publication considered in cases such as Stephens. The subject publication was not to the general public, it was only to a section of the Serbian community. 154   With regard to the submissions by the plaintiffs in reliance upon the House of Lords judgments in Reynolds, the defendants submitted that the law as propounded by their Lordships is not the law in New South Wales. It was further submitted that their Lordships confused the issue of express malice with the test in common law qualified privilege as to the occasion. 155   More specifically, it was said that with regard to the particular factors enunciated in the speech of Lord Nicholls, it is not open to the plaintiffs to rely upon the alleged factor that the imputations were of a very serious nature, impeaching the honesty of the plaintiffs’ business methods. The seriousness of the imputation, it was argued, has no bearing in New South Wales upon the occasion of qualified privilege. It is not the law in New South Wales that qualified privilege is lost if the imputation is sufficiently serious. 156   With regard to the reference that Mr Skalkos had an axe to grind, the defendants submitted that this was merely an acknowledgment of his commercial interest. To go any further than that is to second guess the jury’s finding that he did not act with any ulterior motive. The same argument was applied to the factor asserted by the plaintiffs, that the tone of the letter was vituperative. That submission cannot stand with the finding by the jury as to absence of malice. 157   In relation to the factor asserted by the plaintiffs, that the charge conveyed by the first imputation was quite irrational, it was said that that submission falls foul of the jury’s finding of an absence of malice. 158   With regard to the plaintiffs’ argument based (inter alia) upon Bellino, that the principal subject of the publications was the conduct of private citizens, the defendants submitted that all the authorities, for example, on complaint/redress, are about the propriety of raising a complaint not just about public servants and officers of the government, but persons with a responsibility to the government. 159   Plainly, it was submitted, the present plaintiffs had a responsibility to the government with respect to the discharge of the contractual functions for which they were paid by the government. The test, it was submitted, is not whether it is the conduct of the private citizen which is the subject of the publication. 160   With regard to the plaintiffs’ submissions that none of the defamatory imputations found by the jury was directed to the conduct of government departments, the defendants submitted that such is not the test. The test is whether the imputations related to the conduct of government departments. What the imputations do is to focus on the alleged misconduct of the plaintiffs relating to government contracts. Thus, it was submitted, the plaintiffs have blurred the distinction between imputations relating to the conduct of government departments, and imputations directed to the conduct of government departments. 161   With regard to the plaintiffs’ submission that in the case of communication to a number of recipients the relevant duty/interest reciprocity must be established between the publisher and all the recipients, the defendants relied upon the statement by McHugh J in Stephens, which has been set out above, to the effect that if publication in a newspaper is the only reasonable mode of communicating with the public, qualified privilege will not be lost because it is read by persons who have no legitimate interest in receiving the communication. Thus it was argued it is not correct to say that reciprocity must be established between the publisher and all the recipients in cases where the mode of publication is the only practicable and reasonable method of getting the information to the relevant recipients. 162   The defendants further argued that here the extent of proved publication was very limited. Certainly in favour of the defence of qualified privilege, it was proved only to have gone to appropriate recipients. That was unquestionably the case in respect of the letter to the Prime Minister, but further in respect of the Novosti publication. Indeed, it was submitted that the only two recipients were proved to have read the Novosti article were also proved to be very interested in the politics of government information. The relevant recipients insofar as the Novosti publication is concerned (it was argued) are ordinary reasonable readers in the Serbian language.

Rejoinder by the plaintiffs

163   By way of rejoinder, as it were, the plaintiffs referred the Court, on the republication dispute, to paragraph 6.30 of Gatley on Libel and Slander (9th Ed.), which reads:

“ General Principle. Where a defendant’s defamatory statement is voluntarily republished by the person to whom he published it or by some other person the question arises whether the defendant is liable for the damage caused by that further publication. In such a case the plaintiff may have a choice: he may (a) sue the defendant both for the original publication and the republication as two separate causes or action, or (b) sue the defendant in respect of the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition, so long as such damage is not too remote. The cases do not always distinguish clearly between the two situations and in many cases it will make no practical difference whether the defendant’s liability is based upon one rather than the other. However, it is clear that the second principle is wider than the first: …”

164   The authors then state that the defendant is liable for the republication or for the damage caused by it (inter alia) where the republication was, in the circumstances of the case, the natural and probable result of the original publication. That is of course the principle upon which the plaintiffs rely here. 165   Thus the plaintiffs contended that in these proceedings it was not necessary for them specifically to plead in the originating process republication to Telecom and the specified officers within Telecom. Therefore, the defendants’ complaints referred to earlier about the non pleading of republication by the plaintiffs lacked substance.

Conclusions - Defence of Qualified Privilege at law in relation to the letter to the Prime Minister, Telecom and the specified officers

166   I have taken the course in this judgment of setting out in detail the respective arguments and counter arguments by the parties through counsel because of the intensely combative manner in which the litigation was conducted . I have also set out earlier in the judgment extracts from the leading authorities upon which the parties particularly relied. This enables me, however, to set out my conclusions with greater brevity than otherwise would have been the case. It has, I believe, enabled me to focus on what I believe is the crucial issue in this aspect of the case. 167   Certain introductory observations may be made. Difficulties do flow from the manner in which the defendants have particularised the defence of qualified privilege. Understandably, the plaintiffs have sought to take advantage of those apparent deficiencies. Thus, for example, the defendants have pleaded in relation to Qualified Privilege at Common Law in part one of the Particulars, publication “to the public”. The defendants have sought in argument to substitute for that phrase, publication “to the recipients”, because their case, as advanced is not that the publications were to the public at large. 168   With regard to the pleadings, there is also dispute as to whether part two of the Particulars raises any defence of qualified privilege known to the law, the defendants having (it is accepted) abandoned reliance upon a Lange defence. 169   One should note here, however, that when the plaintiffs consented to the amendment to part two (set out earlier in the judgment) no point was then taken that the resultant plea in part two was bad in law. 170   So, as the matter now rests, despite its long interlocutory history and protracted trial, there are still disputes about the pleadings and whether or not concessions have been made by the defendants’ senior counsel. As has been made clear senior counsel for the plaintiffs contends, and senior counsel for the defendants denies, that the defence of qualified privilege was abandoned in relation to the complaint/redress category and also in relation to the republication to Telecom and its officers. 171   The subject publications were made in 1993 and this matter has had a long history. I am minded, therefore, for the moment, to set aside the difficulties arising from the pleadings and the dispute about alleged concessions by the defendants, and consider the position on the basis that the various categories of privilege are available to the defendants as they contended. I turn then to the defendants’ submissions on Qualified Privilege at Common Law in relation to the letter to the Prime Minister as republished to Telecom and the specified officers. I have set out earlier in this judgment how the defendants have formulated their case in relation to common law qualified privilege in this regard. One could accept that there is an occasion of privilege here between the defendants and the publishees with regard to the efficient and cost effective communication of government advertising and information to the ethnic community. To this may be added the question whether there have been any abuses by persons or organisations or government instrumentalities involved in that area of activity which resulted in the exacerbation of cost to the ethnic community of receiving such information. To this may be added proposals for overcoming the suggested problems. 172   The critical question is then whether the first and third imputations which the jury have found to be both false and defamatory can be accommodated within that occasion. There is no doubt that Mr Skalkos has adopted the role of a complainant. There is also no doubt that Mr Skalkos had an interest in bringing what he considered to be “information” to the publishees of the letter. 173   In resolving this question it is very interesting to note how over the years superior courts have expressed themselves in different ways but, understandably, have maintained what may fairly be said to be the same theme. Thus, in Stephens, McHugh J said that the matter must be published in good faith, and that statements must be fairly made by a person in the discharge of some public or private duty. 174   In Mowlds, Jordan CJ required that the publisher is restricted to a communication which is capable of serving the purpose of the occasion and made with no other object than that of serving that purpose. In Adam v Ward, Lord Finlay emphasized that the law of privilege gave no protection to irrelevant libels introduced into the same communication. 175   In the same case, Earl Loreburn said that anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which created the privilege will not be protected. 176   In Hunt, Lord Esher said that the publisher had to use the occasion rightly. There must be no wilful misuse of the occasion. In Toogood v Spyring Parke B required that the communication must be fairly warranted by any reasonable occasion or exigency, and honestly made. 177   In McLean, Mason and Manning JJ.A said the publication must not go beyond what was germane and reasonably appropriate to the occasion. 178   In Watt v Longsdon, Scrutton LJ said the communication should be fairly warranted by any reasonable occasion or exigency. 179   In Bellino, Brennan CJ said that the matter complained of must have a material relationship to, or nexus with, the subject of public interest that appear from the other parts of the article. That criterion is not satisfied unless the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest. 180   In Justin, Walsh JA said that it is not enough to have an interest or a duty in making a communication; the interest or duty must be shown to exist in making the communication complained of. 181   Further, the test is whether there was in fact the requisite privileged occasion, not whether the defendant believed that there was. 182   Reynolds, if I may respectfully say so, is a helpful case (albeit it is not a binding authority) because their Lordships identified certain factors worthy of consideration when resolving an issue such as the present. I have set out earlier factors which the plaintiffs have identified as relevant in the subject case. Generally, I agree with that compilation. Particularly relevant for present purposes is that the charges contained in the instant imputations were levelled ex parte, with no forewarning of the attack and thus no prior opportunity of the plaintiffs meeting it beforehand. There was no evidence from the defendants of any steps taken to verify the charges made against the plaintiffs. The letter was vituperative in tone. 183   Despite the argument of the defendants to the contrary, I consider it relevant to take into consideration the serious nature of the attack which is made by the defendants in the publications upon the honesty of the plaintiffs’ business methods in a field of activity in which they were both interested and potential competitors. 184   As the defendants have correctly pointed out, the law of qualified privilege is concerned with defamatory and untrue imputations. In this case defamatory and untrue imputations published without malice. This raises the question as to the degree of misstatement of fact which the law can tolerate. Of course this is wrapped up in the criteria which have been identified in the judgments to which I have just referred. However, if I may respectfully say so, it was extremely well expressed by Lord Hobhouse in Reynolds when his Lordship said that “Some degree of tolerance for factual inaccuracy has to be accepted; hence the need for a law of privilege.” 185   With regard to the requirement of publication in good faith, the jury declared that the plaintiffs had failed to prove in relation to the three publications that the defendants did not believe in the truth of the matter they published or that the defendants had an indirect motive in publishing the matter. 186   In this regard it should be noted there was relevant evidence before the jury from Mr Harvey and Ms Hall. Mr Harvey deposed that after Ms Hall had shown him the letter he rang Mr Skalkos. He was asked in evidence in chief (transcript 495) whether he remembered the substance of anything Mr Skalkos said to him. His evidence continued:

“A. Very much, the substance of the conversation was that to use the words, that ETCOM (sic) was being ripped off, that Ethnic Communications was taking advantage of Telecom and the media, that we should deal directly we would get a better, a better cheaper job.
Q. Direct with who?
A. Direct with the media. In Mr Skalkos’ case with Mr Skalkos.
Q. Or his company?
A. Or his company.

187   He was cross-examined about this conversation (at page 502):

“Q. What Mr Skalkos said to you in his conversation to you included something to that effect, ‘Look the ethnic newspapers, not just our newspapers but all the ethnic newspapers can do translations layouts and typesetting services for advertisers who want to advertise in foreign languages’, he told you that?
A. Yes.
Q. And he said ‘We will do that for nothing’ didn’t he?
A. He may have.
Q. There is no doubt about that is there?
A. He may have.
Q. He certainly did I put to you?
A. He may have.
Q. So, what he was saying to you was, ‘Look you are paying Ethnic Communications millions for work that the papers themselves will do for nothing’ and that is what he was saying isn’t it?
A. Yes.
Q. And you have no doubt as to his sincerity do you?
A. No I don’t.”

188   Ms Hall gave evidence that after she had read the letter, Mr Skalkos rang her. She gave the following evidence in chief (at transcript 517-8):

“Q. Now, did you ever have any conversation or conversations with Mr Skalkos about that letter?
A. Yes.
Q. At the time when you read the letter had you ever met Mr Skalkos?
A. Not to my knowledge.
Q. How came it about that you had a conversation or conversations with Mr Skalkos about the letter?
Q. He rang me.
Q. And do you remember anything he said to you, can you tell us, about the substance of any conversation you had with Mr Skalkos about the letter?
A. He simply wanted to do business with Telstra.
Q. What did you say?
A. Well, I indicated that we already had an agency that was providing media both creative and placement services and that was the status quo at that point in time.
Q. What did he say?
A. Well, he suggested we should do business with him, that he could make the deal more cost effective and that also because of the dollars spent he had with Telecom that he actually was entitled to some of our business.
Q. What did you say to that?
A. Well, I said that contract - we were already contracted to an agency and that at that point in time I could not change the decision. I could not do anything to, shall we say, initiate placements with his publications at that point in time.”

189   In cross-examination about this conversation Ms Hall gave the following evidence at 526:

“Q. You had a conversation with Mr Skalkos. He rang up. What he was trying to do was get Telecom to agree to cut out the middle man and go through to the ethnic newspapers for the same services, isn’t that right?
A. Yes.
Q. And you said something to the effect that the contract had already been let to Mr Assaf’s company, you could not do anything about it in relation to placement of advertising in Foreign Language Publications?
A. Correct.
Q. Placement, correct?
A. Yes.”

190   This may be thought to be some evidence of good faith, but it is restricted to the subject matter of the conversation. No evidence was, however, given by Mr Skalkos in the trial and, as a consequence, in relation to the defence of privilege. 191   I turn then to the first and third imputations upon the assumption (which I am prepared for present purposes to note) that the occasions of privilege posited by the defendants are available to them. 192   As to the first imputation, this imputation is entirely false. It is also, as the plaintiffs contend, irrational in that the plaintiffs did not sell to the publishers of ethnic community newspapers government advertising. Understandably, no attempt was made to justify this imputation nor was a defence of comment pursued with regard to it. 193   In my view its publication cannot possibly comply with the criteria set out in the authorities referred to above. This is so even if one gives full weight to the current community affirmation of the right to free speech and applies a generous, rather than a strict construction of the criteria. 194   The defendants could have quite readily and forcefully made their point about the alleged wastage and inefficiency of the use of alleged “middle men” such as the plaintiffs, without introducing a splenetic and false attack upon the commercial integrity of the plaintiffs. The imputations’ irrationality and inaccuracy was incapable of serving the purpose of the occasion. It was not relevant or pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which was said to create the privileged occasion relied upon. It was an abuse of the occasion. It was beyond what was germane and reasonably appropriate to the occasion. It made no contribution to the discussion of the subject of public interest. Other similar criteria may readily be applied. 195   There is no need for me to repeat, by way of elaboration, the specific factors which I have referred to above by reference to the matters set out in the judgment of Lord Nicholls in Reynolds. 196   Although the third imputation may be thought to be not quite so serious an imputation as the first, it is only a matter of slight degree. Leaving aside, the aspect of irrationality it also fails to comply with the criteria referred to above so that the defence of qualified privilege could not extend to it.

Defence of qualified privilege at common law in relation to the Novosti publication

197   The competing submissions in regard to this aspect of the defence have been set out above. I have found the categorisation of the Novosti publication to be a matter of considerable difficulty. As stated above, the proved circulation was 7,199 copies. The extent of the readership is in dispute. The question whether such publication is embraced within the cases dealing with communications to the general public by means of a newspaper or other medium of general circulation is a difficult one, bearing in mind its specialised readership. 198   The plaintiffs contend and the defendants deny that it is a publication to the public at large. Of course, if it is characterised as a publication to the public at large, the defendants have the difficulty of meeting an argument of excessive publication. A number of the cases are collected in Gatley (8th ed.) at p 539. A recent case is Bowin and Joyce v Australian Consumers Association [1996] FCA, Lindgren J, (unreported 6 December 1996). That case involved a publication of the magazine “Choice” which is mailed to 140,403 subscribers and his Honour upheld a defence of qualified privilege in relation to a defamatory article in that magazine. 199   It would seem to me that the average reader who would necessarily be conversant with the Serbian language of Novosti would have an interest in the efficient and cost effective communication of government advertising and information to the ethnic community of whom, no doubt, the vast majority could be said to belong. They would also be concerned with whether there had been any abuses by persons or organisations or government instrumentalities involved in that area of activity which resulted in the exacerbation of cost to them of receiving such information. 200   There is, for present purposes, a very relevant passage in the judgment of McHugh J in Stephens at 264-266 where his Honour said:

“In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally. If this legitimate interest of the public is to be properly served, it must also follow that on occasions persons with special knowledge concerning the exercise of public functions or powers or the performance by public representatives or officials of their duties will have a corresponding duty or interest to communicate information concerning such functions, powers and performances to members of the general public. In Jenoure v Delmege [1891] AC 73 at p 77, Lord Macnaghten said that ‘[t]o protect those who are not able to protect themselves is a duty which everyone owes to society.’
Accordingly, it is now appropriate for the common law to declare that it is for ‘the common convenience and welfare’ of Australian society that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers. The scientist who discovers that lack of governmental action is threatening the environment, the ‘whistleblower’ who observes the bureaucratic or ministerial ‘cover up’, and the investigative journalist who finds the grants of public money have been distributed contrary to the public interest are examples of persons who have special knowledge of matters affecting the exercise of public functions or powers or the performance of duties by public representatives or officials. If such persons, acting honestly, inform the general public of what they know about such matters, their publications will be made on an occasion of qualified privilege. The defence of qualified privilege will be available even if the information is subsequently proved to be incorrect. Thus, the occasion will still be privileged even if the ‘whistleblower’ mistakenly but honestly publishes information which defames another person or the scientist or journalist honestly overlooks some fact which undermines the thesis of his or her claim. The publication of erroneous information may be evidence of malice in some cases. But by itself an error in the published information will not destroy the occasion of privilege.
No doubt in some exceptional cases the information published may be so unrelated to the kind of powers or functions invested in the person defamed that a defence of qualified privilege could not be upheld. But, speaking generally, the occasion will be privileged whenever a person with the requisite special knowledge honestly publishes information about the functions or powers or the performance of duties by public representatives or officials for the purpose of informing the public about such matters. The officiousness of the person publishing the information can never be decisive against the existence of an occasion of qualified privilege, although it may be relevant in determining whether there was a duty to publish to the word at large cf. Greenlands Ltd vWilmshurst and the London Association for Protection of Trade [1913] 3 KB 507, at p.535.”

201   In a real sense Mr Skalkos could be categorised as a person with special knowledge of matters affecting the exercise of the communication of government advertising and information to the ethnic community. I would consider therefore that the communication of appropriate information to the readers of Novosti would fall within the category of qualified privilege identified by McHugh J. 202   However, McHugh J is insistent that the publisher in such circumstances must publish the relevant information honestly. Further, the occasion of privilege is not disturbed if the publisher overlooks some fact which undermines the thesis of his or her claim. Thus, by itself, an error in the published information will not destroy the occasion of privilege. However, accepting that there was this occasion of privilege available to the defendants, they have, in my assessment, abused the occasion by the publication of the first and third imputations for the very reasons which I have expressed in relation to the publication to the Prime Minister and Telecom and its specified officers. 203   The publications of those imputations could not be categorised as an honest mistake or an honest overlooking of some fact which undermines the thesis of the defendants’ claim. 204   In consideration of qualified privilege I allow, of course, for the fact that the plaintiffs failed to prove malice in respect of the publications. 205   I would therefore reject the defence of common law privilege in relation to the publication of the letter to the Prime Minister, Telecom and the specified officers as well as the publication in Novosti. I am so firmly of the view that the subject imputations abused the occasion of privilege posited by the defendants, that no further consideration of the competing arguments is, in my view, necessary.

Statutory Qualified Privilege under s 22 of the Defamation Act 1974 regarding the Novosti publication

206 The precise terms of s 22 are, for the sake of convenience, set out hereunder:

“(1) Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in having information on some subject,
(b) the matter is published to the recipient in the course of giving to him information on that subject, and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.
(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.
(3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.”

207 An analysis of the relevant aspects of s 22 is contained within the opinions of the Law Lords in Austin v Mirror Newspapers Ltd (1986) AC 299 at 311-313. I quote from the judgment of their Lordships, which was delivered by Lord Griffiths, at 311-313:

“It is possible as a matter of construction to place a narrow or a broad construction on the words “an interest”. The narrow construction would equate “an interest” with that type of interest which is usually looked for as an ingredient of the defence of qualified privilege at common law, that is to say, an interest material to the affairs of the recipient of the information such as would for instance assist in the making of an important decision or the determining of a particular course of action. It is for this narrow construction that the plaintiff contends. But it is clear that the courts in New South Wales have placed a broader construction upon the words “an interest” and have taken them to include any matter of genuine interest to the readership of the newspaper. In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 Reynolds JA, with whom Glass JA agreed, said, at p 711, when considering section 22(1)(a) in respect of a television broadcast:
‘It cannot be denied that the recipient, in this case the general public, had an interest in having information on the subject of public affairs …’
In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 the Court of Appeal drew a contrast between the interest required to find qualified privilege at common law with the wider interest referred to in section 22. They said, in the judgment of the court (Moffitt P, Hope and Reynolds JJA) at p.797:
‘The limited application of the common law principles of qualified privilege to publications in newspapers has already been discussed. Section 22 was designed to enlarge the protection afforded by these principles to defamatory publications generally, and it has a particular relevance to publications in newspapers; but it gives no carte blanche to newspapers to publish defamatory matter because the public has an interest in receiving information on the relevant subject. What the section does is to substitute reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established.’
In Barbaro v Amalgamated Television Services Pty Ltd [1985] 1 NSWLR 30, Hunt J said, at p.40:
‘The word ‘interest’ is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news:…’
In Field v John Fairfax & Sons Ltd (unreported), 23 May 1974, Supreme Court of New South Wales Court of Appeal, it was held that the public had an interest in the greyhound racing industry.
Bearing in mind that this Act was clearly intended to widen the scope of the common law defence of qualified privilege, their Lordships see no reason to differ from the wider construction adopted by the courts in New South Wales and, applying this construction, accept the view of both the trial judge and the Court of Appeal that the readership of this daily newspaper had an interest in the performance and training of the Manly Rugby League Team within the meaning of section 22(1)(a).
The next submission on behalf of the plaintiff was that the article was not conveying “information” within the meaning of section 22(1)(a) and (b). It was said that information should be restricted to facts contained in news or reportage as distinct from comment or opinion. It is difficult to see any reason why the word “information” should be given such an artificially restricted meaning. The word itself in its ordinary meaning is apt to cover both fact and opinion, and there are as many matters of opinion that will be of general interest to the readership of a newspaper as there are facts upon which such opinions are based. It is implicit in the decisions of the Court of Appeal if Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 and Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 that the Court of Appeal in New South Wales considered that information would, where appropriate, cover comment and opinion. Their Lordships agree with this view and accept that so much of the article as comprised comment was information within the meaning of section 22(1)(a) and (b) and was published in the course of giving information on the subject in which the readership had an interest, namely the performance and training of professional rugby league teams.”

208   Focusing upon the question as to what constitutes the subject matter, the giving of information about which is said to attract a statutory privilege, the defendants contended: 209   In respect of the first imputation the subject is exploitation of ethnic newspaper proprietors in relation to the rates paid for government advertising. 210   In relation to the third imputation the subject is consequential deprivation of government information. 211   The defendants contended that the three relevant tests are:

(a) did the Novosti readers have an interest or apparent interest in having information on the subject of the two imputations?;

(b) were the imputations published to Novosti readers in the course of giving them information of those subjects?;

(c) was the conduct of the defendants in publishing the imputations reasonable in the circumstances?

212   As to (a) it was submitted that a Serbian speaker clearly had an interest, or at least an apparent interest, in government policy in relation to communicating information on his or her rights, entitlements and obligations, in the Serbian language, particularly where it is to be asserted that that policy is causing the deprivation of essential information to the reader. Further, alongside that special interest is the interest of Serbian speaking Australians as taxpayers, in government expenditure. 213   As to (b) it was contended that it is evident that the imputations were published in the course of giving the Novosti readers information on alleged unethical and wasteful practice in the promulgation of government advertisements to readers of the ethnic press. Indeed, this was the declared purpose of the publication, according to paragraph 8 of the republished letter to the Prime Minister. 214   As to (c) it was alleged that the conduct of the defendants in publishing the imputations was reasonable in the circumstances, which included the first defendant’s “undoubted sincerity in his concern at the cost of the current system of producing and placing government advertising in the ethnic press”. Reference may be made to the evidence of Mr Harvey at transcript 502 in this regard. 215   It was submitted that the plaintiffs are limited, in attempting to defeat reasonableness, to their particulars of malice, which do not include publication of matter known to be false, but go only (relevantly) to:

1. failure to enquire of the plaintiffs before publication, or

2. to afford the plaintiffs the right of reply,

3. failure to enquire of government departments,

4. motivation of financial profit,

5. intention of publishing harmful meanings.

216   It was submitted that of these, failure to enquire is not necessarily unreasonable. It was submitted that there is no evidence of failure to enquire of government departments, nor of any improper financial motive, bearing in mind that the protected interest will include protection of the defendants’ financial interests. Nor is there any evidence, it was contended, of an intention to publish harmful meanings. 217   I was referred by the defendants to the following passage from the judgment of Hunt A-JA in Morgan v John Fairfax and Sons Ltd (1990) 20 NSWLR 511 at 551:

“To start with no question of malice can arise unless the defence of qualified privilege is made out. Where the defendant relies upon the statutory defence of qualified privilege, it is (as I stated earlier) usually necessary for the defendant to establish that he (or his relevant servant or agent) believed in the truth of what he published. Once the existence of that belief has been established by the defendant for that purpose, there is no room left for the plaintiff to defeat that defence by establishing the absence of such a belief on the part of the defendant. If the defendant has not established the existence of such a belief on his part, and the defence of statutory qualified privilege accordingly is not made out, no question of malice arises. It follows that the plaintiff may thus defeat a defence of statutory qualified privilege only by showing that the defendant has used the privilege for a purpose other than that for which the privilege is given (usually described as an indirect motive).”

The defendants contended that the issue of indirect motive had already been expressly found by the jury in the defendants’ favour (questions 45, 46, 47).

218   I was also referred to the following passage from the earlier judgment of Hunt J in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at page 44, where his Honour said:

“There can be no dispute that the onus lies upon the defendant to establish that its conduct was reasonable in the circumstances; it is for the defendant to point to the evidence upon which it relies to do so. But there is no inflexible rule that a defendant must call evidence of his belief in the truth of what he published, and of the nature and the sources of the information which he possessed at the time of the publication. Nor has the Court of Appeal said that such evidence is necessary in every case. That is made clear in Morosi v Mirror Newspapers Ltd (at 796-797).”

219 I turn then to the plaintiffs’ arguments in relation to the defence pleaded under s 22 in relation to the Novosti publication. 220 The plaintiffs relied upon firstly upon the following passage in the judgment of Hunt A-JA in Morgan v John Fairfax and Sons Ltd [No2] (1991) 23 NSWLR 374 at 385-6:

“This review of the earlier authorities demonstrates that, in determining whether the defendant’s conduct was reasonable in the circumstances, the defendant must in most cases establish his honest belief in the truth of what he has written. For convenience, I will hereafter refer only to the defendant’s belief in the truth of what he wrote, although (as pointed out earlier) where the publisher is a corporation it is the belief in the truth of what was written held by the servant or agent who wrote it which must be proved by the defendant.”

221 In his judgment Hunt A-JA set out (with the concurrence of Samuels JA) the following propositions in relation to the requirement of s 22(1)(c) that the conduct of the defendant in publishing the matter was reasonable in the circumstances (pp 387-388):

“(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the defendant’s conduct in relation to the publication of that particular imputation.
(2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro’s case, and perhaps also that discussed in Collins v Ryan ) have believed in the truth of that imputation.
(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish:
(a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and
(b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.
If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s 22(1)(c) as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood: Evatt v John Fairfax & Sons Ltd at 13-14; Makim v John Fairfax & Sons Ltd (1990) 5 BR 196 at 209; see also Wright v Australian Broadcasting Commission at 712 (whether the defendant “knew whether he was likely to convey a misleading impression”); Austin v Mirror Newspapers Ltd (at 362) (Privy Council).
(4) The defendant must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;
(b) that his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.
The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one: cf South Suburban Co-operative Society Ltd v Orum [1937] 2 KB 690 at 700-701; White & Co v Credit Reform Association & Credit Index Ltd [1905] 1 KB 653 at 658, 660; see, also, Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 at 55-56.
It is necessary to keep in mind that each of the matters referred to in par (4) are relevant to the reasonableness of the defendant’s conduct; they do not raise questions independently of that issue. This is important in relation to the functions of judge and jury. If, for example, there is a dispute as to whether the defendant made a particular inquiry, that dispute is to decided by the jury. But if there is a dispute as to whether reasonable conduct in the circumstances required inquiries to be made or as to whether the inquiries in fact made were sufficient, those disputes are to be decided by the judge as part of the ultimate question as to whether the defendant’s conduct was reasonable in the circumstances.
Bearing in mind the precept of the Privy Council in Austin v Mirror Newspapers Ltd (at 360) that it would be impossible to give any comprehensive definition of what conduct will be held to be reasonable in the circumstances, and that it would be most unwise to attempt to do so, the above propositions do not purport to be exhaustive.”

222   I was also referred to the following passage from the judgment of Clarke JA (with which Handley JA and Cripps JA agreed) in Radio 2UE Sydney PtyLtd v Parker [1992-93] 29 NSWLR 448 at 461-462 under the subheading “Statutory Qualified Privilege”. His Honour said:

“Many of the same submissions were put in relation to the defence of statutory qualified privilege. It was stated, correctly, that his Honour had found in the appellants’ favour on s 22(1)(a) and 22(1)(b) of the Act and it was submitted that in the light of the previous criticisms made by the respondent the appellants had acted reasonably in conducting and broadcasting the interview. Once again it is important to bear in mind that it was the second appellant who made the statements which gave rise to the defamatory imputations. It was his words which conveyed, for instance, the statement or charge that the respondent was a biased critic motivated by his own selfish political interests. In the context of a public interview shortly before an election in which the respondent was a candidate these were serious and damaging criticisms.
Furthermore the charges were deliberately made and those questions which arise when a defendant had reasonably intended that a different meaning be given to his language (See Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362) do not arise. In my opinion the charges could not be regarded as having been reasonably made unless the second appellant honestly believed in their truth. It could not, for instance, be suggested that it was reasonable knowingly to make false statements to that effect. Nor could it be reasonable to publish those statements without knowing or caring whether they were true or false. Although there may be cases in which it is unnecessary for a defendant to establish his or her belief in the truth of the imputations which he or she intended to convey this is not one of them. The second appellant’s belief in the truth of the imputations was an essential element in his claim that he had acted reasonably in levelling the accusations against the respondent.
It follows that unless there had been a finding that the second appellant honestly believed in the truth of the imputations the defence must have failed. The difficulty is that no finding was requested from the jury on the question whether the appellants had established that the second appellant honestly believed in the truth of any of the imputations. The absence of a finding on that question is critical for it is settled that, although the question whether a defence under s 22(1) has been made out is to be decided by the judge, any primary facts about which there is dispute, the resolution of which is essential to the determination of the reasonableness of the publishers’ conduct, fall to be decided by the jury: Morgan v John Fairfax and Sons Ltd 1990) 20 NSWLR 511 at 521, 544-547.
The difficulty was apparent to his Honour and after the jury had returned with answers to the questions he had posed he invited the parties to specify any further questions on which they required answers from the jury for the purposes of the defence of privilege and was told that there were none. In these circumstances there was no finding on the critical primary fact and, there being no consent, it was not open to his Honour to make any finding of fact on the issue of the second appellant’s honest belief. That seems to me to have presented an insuperable barrier to the appellants.”

223   In light of the above principles the plaintiffs formulated the following submissions:

(a) There was no evidence that the defendants discharged the onus of proving that they believed in the truth of any of the defamatory imputations found by the jury to have been conveyed. The jury’s decision (see answers to questions 45-47 inclusive) negating malice does not constitute a finding that the defendants did believe in the truth of such imputations;

(b) There was no evidence that the defendants took any steps, however small, to establish the truth of the published imputations;

(c) The gravity of the defamatory imputations found by the jury to have been conveyed was such as to make the conduct of the defendants in publishing them unreasonable in the circumstances (s 22(1)(c));

(d) The circumstances of the publications were such that it was incumbent on the defendants, under the rubric of reasonableness, to establish their honest belief in the truth of the imputations. There was no attempt to establish such a belief. To do so would have necessitated the calling of Mr Skalkos as a witness, and he was not called;

(e) The defendants carried the onus, which they failed to discharge, of establishing the reasonableness of their conduct in terms of s 22(1)(c). The defendants adduced absolutely no evidence to satisfy the ingredients of proof involved to establish reasonableness as itemised by Hunt A-JA in Morgan at pp 387-388, set out above.

224   In reply to these specific submissions the defendants submitted:

As to (a), the defendants asserted that there was a presumption that the defendants believed in the truth of the defamatory imputations found by the jury to be conveyed: see for example Lord Diplock (at 150) in his speech in Horrocks v Lowe [1975] AC 135, where his Lordship said:

“Even a positive belief in the truth of what is published on a privileged occasion, which is presumed unless the contrary is proved, may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law.”

225   As to (b) it was contended that the failure of the defendants to take any steps, however small, to establish the truth of the published imputations was not necessarily a matter that was determinative of a lack of reasonableness. Reliance was placed here upon the judgment of Samuels JA (with which Hope AP and Priestley JA agreed) in Barbaro v Amalgamated TelevisionServices Pty Ltd (1989) Aust. Torts Reports 80-264 at 68,821. There his Honour said:

“It was contended that sec.22(1)(c) demanded, though it does not do so in terms, proof of honest belief on the part of the publisher. There is no authority which compels this conclusion and I agree with the learned Judge that there is no substance in the argument, which is defeated in any case by what was said in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at pp. 793-798. It may well be the case that proof of honest belief will often be a critical element in the proof of reasonableness. It does not follow that reasonableness cannot be established without proof of honest belief.
It is no doubt true of printed publications that a defendant will generally fail to establish reasonableness without evidence of belief in the truth of what was published. But the proposition will be less convincing in the case of electronic publications, such as the telecast of a video tape or film. The reason is that an article in a newspaper makes an assertion but does not itself establish, although it may refer to, its sources. It may report that A has admitted that though named as a murderer he is still at large. But in such a case it is probable that the reasonableness of the publication would depend upon proof of belief in the authenticity of the admission. Even publication of a copy of a letter which purported to be signed by A and which contained the admission would need the support of evidence about the mode and circumstances under which the document had come into existence and into the publisher’s hands.”

226   As to (c) it was submitted that this proposition is bad in law. However, if that submission were not upheld, it was submitted as a matter of fact that the imputations found by the jury were not very serious imputations at all. Senior counsel said:

“Talking about one business man exploiting a handful of newspaper proprietors is hardly earth shattering stuff, as is the idea, the way a business is conducted resulting in the deprivation of information on government rights and duties and responsibilities to a section of the community, neither is that earth shattering stuff.” (Transcript p 85, 15 March 2000)

227   As to (d), which has some congruency with (a), it was reiterated that the necessity for the defendants to establish the requisite honest belief depends on the circumstances of every publication, particularly where what is being communicated is comment. It was argued that the first imputation was beyond question, comment. It was not defended as comment because that implied certain other considerations that could not be established, but nevertheless the relevant words do not constitute an assertion of fact. They are still an assertion of opinion, and in the circumstances, it is contended, the opinion of certain people is a matter of legitimate interest, whether it be “right” or “wrong”. 228   If a person who is “an important player in an industry” has a particular view about exploitation then that, in itself, can be a matter of legitimate interest. However valid it is, it can still be of legitimate interest to certain recipients to know that that is the attitude that is being taken by that person. 229   As to (e) where reference is made to the defendants carrying the onus of establishing reasonableness of conduct, certainly that is true, the defendants accepted, but only in respect of untruth. They contend that what is being attacked there is this idea that because it is not justified it cannot be reasonable. However, they repeat, qualified privilege is only a defence to false and defamatory imputations.

Conclusions

230   With regard to paragraphs (a) and (b) which may conveniently be dealt with together for present purposes, I have no difficulty in accepting that the average reader of Novosti would have an interest, or at least an apparent interest in government policy in relation to communicating information on his or her rights, entitlements and obligations, particularly where it is asserted that such policy is causing the deprivation of essential information to the reader and inflating the cost of the newspaper. Further, that alongside that special interest would be the interest of Serbian speaking Australians, as taxpayers, in government expenditure. As well they would have an interest or apparent interest in alleged unethical and wasteful practice in the promulgation of government advertisements and information to the readers of the ethnic press. 231   The critical question is, however, whether the conduct of the defendants in publishing that matter was reasonable in the circumstances within the meaning of paragraph (c). 232   The Privy Council stated in Austin (at 313) with regard to paragraph (c):

“In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. These circumstances will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be.”

233   For present purposes I find (if I may respectfully say so) much assistance from the passage cited from the judgment of the Court of Appeal in Radio2UE Sydney Pty Ltd v Parker. I consider the subject imputations “are serious and damaging criticisms” as that phrase was used in Austin. So much has been made clear earlier in this judgment. 234   Furthermore, the charges were deliberately made and those questions which arise when a defendant had reasonably intended that a different meaning be given to his or her language do not arise. 235   In my opinion, this is a case where the charges could not be regarded as having been reasonably made unless the defendants (for present purposes Mr Skalkos) honestly believed in their truth. 236   To repeat the words of Clarke JA “It could not, for instance, be suggested that it was reasonable knowingly to make false statements to that effect. Nor could it be reasonable to publish those statements without knowing or caring whether they were true or false”. 237   I am of the view that Mr Skalkos’ belief in the truth of the imputations one and three is an essential element in the defendants’ claim that they had acted reasonably in levelling the accusations against the plaintiffs. 238   The jury’s answers to questions 45 to 47 declaring that the plaintiffs had not proved malice cannot constitute a finding that the defendants did honestly believe in the truth of the subject imputations. This is made clear in a further passage from Austin at 462-463 which is not necessary to quote. 239   The evidence given by Mr Harvey which I have quoted above with regard to his conversation with Mr Skalkos after the publication of the letter that he had no doubt as to his sincerity, can make little impact (if any) upon the burden which the defendants carry on the question of honest belief in the truth of the subject imputations. The fact that Mr Skalkos did not give evidence on this issue in the circumstances of this case, leaves the defendants’ case bare of any credible evidence that the defendants believed in the truth of the subject imputations. 240   Adverting to the matters identified by Hunt A-JA in Morgan [No 2] cited above, it is clear, in my view that the defendants have failed to establish: · that they exercised reasonable care to ensure that they got their conclusions right by making proper enquiries. In fact there is no evidence that they took any steps to establish the truth of the subject imputations. · that the subject imputations were relevant to the subject about which they were giving information to the readers of Novosti. The serious and damaging false criticisms contained in the subject imputations could have no relevance to that subject matter. In my view, the defendants have wholly failed to discharge the burden of establishing the reasonableness of their conduct as required by paragraph (c). This defence must therefore be rejected.

The jury’s answers regarding the comment defence to the third imputation

241   The comment defence, as has already been stated, was pleaded to the third imputation with respect both to the letter to the Prime Minister and the Novosti publication, and to imputation four, which was of course solely in relation to the letter to the Prime Minister. 242   For the sake of convenience, all the questions to the jury are appended to this judgment. It should immediately be noted that in respect of each of the comment questions (questions to 33 to 38 inclusive) it would have been desirable that words to the effect that it was unnecessary for the jury to proceed further, if (a) was answered NO, had been inserted in the template. When summing up to the jury I directed them to this effect. Thus in paragraph 343, I said:

“That then takes me to (b)(i), and you note the use of that term ‘proper material for comment’. Of course, you do not proceed to (b) unless you have answered (a) YES, in which case the next question which you have to determine in relation to this defence of comment is whether the defendants have established that the material upon which the comment was based was in fact substantially true, in which case it is proper material for comment. That issue is posed in questions (b)(i) or the alternative (b)(ii).”

243   The template did make it clear, however, by the notation at the foot of the first page, that if the answer was YES to (a) and either (b)(i) or (b)(ii), it was necessary to go to (c). 244   When the jury returned to the court on 17 December 1999 at 2.10 pm, having indicated that they had reached unanimity in relation to the questions posed for their answers, the following procedure was adopted. The foreman was asked to rise, and my associate asked him to indicate the answers to each question, which were referred to by the appropriate symbols. Of course, apart from questions 48 to 51 inc. (Damages), the appropriate response was either YES, NO, or NOT ANSWERED. 245   The procedure was adopted (without objection by counsel for the parties) of the foreman’s attention being directed to all questions irrespective of whether, by reason of an earlier answer or answers, they needed to be answered or not. By way of example, although the jury answered NO to question 5, the foreman was then directed to question 6, to which the response was appropriately NOT ANSWERED. 246   This process proceeded satisfactorily until question 33 was reached. In answer to question 33(a) the foreman replied NO. His attention was then directed to question 33(b)(i), to which he responded “WE ANSWERED THAT (b)(ii)”. I assumed that the jury had therefore answered (b)(i) NO. Accordingly I am recorded on the transcript as having said:

“HIS HONOUR: No I’m sorry, if you have answered (b)(i) no, that would be a no. If you have gone to (b)(ii), (b)(i) must be a no. Are you happy with that?

The transcript then reads:

“Yes.”

247   The transcript then reads:

“ Question 33(b)(ii): Yes.
HIS HONOUR: The trouble here is, if the answer is to (a) is no, (b)(i) and (b)(ii) have to be no. I will clear it up. (b)(i) you have answered no. (b)(ii) you have answered yes as to the first part, ‘that the material upon which the opinion was based to some extent proper material for comment’, you have answered yes?
FOREMAN: What question was that again, please?
HIS HONOUR: I will start again. You have got the answers there in front of you, Mr Foreman?
FOREMAN: Yes.
HIS HONOUR: When you were asked in relation to 33(a) you said no?
FOREMAN: Question 33(a) no, that’s right.
HIS HONOUR: And 33(b)(i) you said no.
FOREMAN: No. We were under the impression it was either (b)(i) or (b)(ii) and we answered yes.
HIS HONOUR: What do you say is the second half of (b)(ii)?
FOREMAN: For (b)(ii) we answered yes.
HIS HONOUR: What do you say as to the second half of (b)(ii)?
LITTLEMORE: That’s the whole answer. It’s the one under the box.
Question 33(c):
FOREMAN: We didn’t have to answer that.
HIS HONOUR: You haven’t considered that?
FOREMAN: We were under the impression that we don’t have to.
HIS HONOUR: I must have one speaker.
FOREMAN: ** We were under the impression if we answered yes to 33(a) and/either 33(b)(i) or (ii) we wouldn’t have to answer that.
HIS HONOUR: I follow. As you answered no to 33(a) you didn’t consider (c).
FOREMAN: Yes.
LITTLEMORE: The foreman said yes, your Honour in what he just said - though it may have been a slip.
(** read back.)
HIS HONOUR: Are you in some doubt as to what the Foreman said?
HUGHES: I’m in no doubt that the foreman said that the jury answered question 33(a) no.
HIS HONOUR: Then they answered 33(b)(i) no?
HUGHES: Yes.
FOREMAN: Can I interrupt please your Honour. We were under the impression that the second part (b) was either - it says or (b)(i) or (b)(ii). So we were under the impression that only one of those had to be answered.
HIS HONOUR: So you didn’t answer (b)(i)?
FOREMAN: No.
HIS HONOUR: But yes to (b)(ii)?
FOREMAN: That’s right.
HIS HONOUR: So there is no answer to 33(c)?
FOREMAN: No.
HUGHES: Sorry, what was the answer to 33(a)?
HIS HONOUR: I have recorded no answer.”

248   I was under the impression for the early part of the discussion that the jury must have answered 33(b)(i) NO to have caused them to deal with 33(b)(ii). However, that misapprehension later became clear to me. 249   It seems to me however, at the end of the day, having discussed the matter with counsel, that it is common ground as follows. Question 33(a) was answered NO. Question 33(b)(i) was not answered. Question 33(b)(ii) was answered NO. By that I am referring to the YES/NO words below the box. Question 33(c) was not answered. 250   Attribution to Mr Hughes of the words “Sorry, what was the answer to 33(a)?” was clearly incorrect. Mr Hughes, I am confident, said “Sorry, what was the answer to 33(c)?”. 251   In any event, I recorded on my copy of the questions the following: 33(a) NO. “NO ANSWER” to (b)(i), after having originally in error recorded NO. I recorded YES to (b)(ii), and NO ANSWER to (c). 252   The answers to questions 34 to 38 inclusive were recorded on the transcript as follows:

“Question 34(a): No.
Question 34 (b)(i): (No answer).
Question 34(b)(ii): Yes.
Question 34(c): (No answer).
Question 35(a): Yes.
Question 35(b)(i):
FOREMAN: We answered to (b)(ii) and that was yes.
Question 35(c): No.
Question 36(a): Yes.
Question 36(b)(i): (No answer).
Question 36(b)(ii): Yes.
Question 36(c): No.
Question 37(a): No.
Question 37(b)(i):
Question 37(b)(ii):
FOREMAN: We answered (b)(ii) - yes.
Question 37(c):
FOREMAN: We didn’t answer that.
Question 38(a): No.
Question 38(b)(i):
FOREMAN: We answered (b)(ii) - yes.
Question 38(c):
FOREMAN: We didn’t answer that.”

253   It is convenient to refer to certain passages from some of the judgments which were referred to during the detailed argument which I heard on this aspect of the case. These cases, apart from their learning are illustrative of the way in which appellate courts have dealt with problems arising from inconsistencies in answers by jurors to questions posed to them by the trial judge and apparent confusion and/or inconsistencies regarding the jury’s verdicts. 254   In Mercer vCommissioner for Road Transport and Tramways (1937) 56 CLR 580, the High Court was concerned with an appeal from the Full Court of this Court. The plaintiff was a passenger in the first car of a two car tram of the defendant when the driver collapsed at the controls. The plaintiff, who suffered injury as a consequence, claimed damages from the defendant for negligence in that the tram was not installed with a device for automatically cutting off the motor or otherwise stopping the tram when the driver collapsed. 255 The jury found the defendant guilty of negligence, assessed damages in the sum of 200 and added a rider that the defendant was not careless in the ordinary meaning of that word in not fitting the device, but, on the contrary was justified in taking the remote risk of claims for damages. The trial judge entered judgment for the defendant. The majority of the High Court held that judgment should have been entered for the plaintiff. Their honours held that the rider to the jury’s verdict was quite consistent with the finding of negligence in relation to the plaintiff, although it negatived carelessness on the part of the defendant in administration generally, and on the evidence the finding was not unreasonable. At 595 - 596, Rich, Evatt, McTiernan JJ said:

“One matter which should be mentioned is that to their verdict the jury added a rider that the defendant “was not careless in the ordinary meaning of the word in not fitting the device, but on the contrary, he was justified in taking the remote risk of claims for damages that might arise from accidents as a direct result”. The District Court judge regarded this rider as negativing the direct finding of negligence.
But, after the announcement of the rider, the following interrogation took place:-
His Honour: You find there was negligence - you find the accident was the result of negligence, do you?
Juror: Yes.
His Honour: What do you say as to damages?
Juror: We find damages, 200, including all medical expenses.
The jury thus reiterated the finding that the accident was the result of negligence. Further, a jury’s rider should if possible be interpreted in such a way that it will not contradict the verdict to which it is subordinate ( Ward v Roy W Sandford Ltd (1) ). In the present case, we think that the jury’s rider evidenced close attention on their part of the precise issues of the case. They clearly meant to negative any careless administration on the part of the defendant. The jury appreciated fully that the actual occurrence of damage from failure to use a device automatically cutting out the motor would necessarily be infrequent, and the trams might gradually be replaced by another transport, so that it would not be improper for the commissioner to refrain from adopting the device, provided that he paid damages where damages resulted. The rider, so regarded, is quite consistent with the finding of negligence, and implies that, as Rich J pointed out in argument, there was negligence vis a vis the plaintiff, but no carelessness in administration generally.”

256   In Mifsud v Commonwealth of Australia [1968] 2 NSWR 83, the plaintiff sued his employer for personal injuries on the ground of negligence. 257 Having considered their verdict the jury, upon their return, stated “We find for the defendant and we allow the plaintiff, Mr Mifsud, the following:-” then items of damage were stated. 258 The trial judge then said “You thought you could do that, notwithstanding the fact you are finding in favour of the Commonwealth.” The foreman replied “Yes”. The trial judge then entered a verdict for the defendant. By majority, the Court of Appeal dismissed the appeal, Asprey JA said, at 89:

“In this case the judge did not ask any questions as to the reasons for the verdict. All he did was to make sure: (1) he had heard alright when they returned a verdict for the defendant, and (2) the jury had rightly distinguished between the plaintiff and the defendant. Thus it was clarified beyond all doubt for him that the jury were finding on the question of liability. If there is an ambiguity in the verdict it has been said it is the right of the judge to redirect the jury, but the possibility of ambiguity here lay in the question for which party did the jury intend to find? What passed between the judge and the jury showed very clearly that the possibility of such an ambiguity did not in fact exist. The jury intended to find for the defendant. It follows that what the jury added by way of a rider after unambiguously returning a general verdict for the defendant became surplusage and although contradictory should be rejected. The authorities for such a proposition, that is to say the rejection of surplusage contradictory to a general verdict, are well established. Some of them may be found in Halsbury 3rd ed., vol. 23, para. 70, p. 37, n. O, and there is a collection of them in the appropriate volume of the English & Empire Digest Replacement Volume. ”

259   I turn then to the judgment of the High Court in Mourani v Jeldi Manufacturing PtyLimited (1983) 57 ALJR 825. In this action the plaintiff sued his employer for damages for personal injury claiming on counts for negligence at common law and breach of statute. At the conclusion of his summing-up the trial judge gave the jury written questions for their consideration, including questions whether the defendant had been negligent at common law, and whether it had been negligent in relation to the statutory count, and, in that event what was the measure of the plaintiff’s damages. 260 The jury answered “No” to the question as to common law negligence, “Yes” to the question as to statutory negligence, and “Nil” to the damages question. 261 This apparent inconsistency between the answer to the second and third questions caused the trial judge to proceed to ask the jury certain further questions for the purpose of elucidating its verdict. Following an answer received, his Honour gave the jury further directions on workers compensation and the measure of damages, after which the jury retired again and returned with a small verdict in favour of the plaintiff. 262 Following an unsuccessful appeal to the Court of Appeal seeking a new trial, the plaintiff was originally granted special leave to appeal to the High Court. However, on the hearing of the appeal special leave to appeal was rescinded. 263 It was held by the whole Court that s 90 of the Supreme Court Act 1970 gives a power to leave to the jury questions of fact on the basis of answers from which its verdict can be ascertained and its general verdict formally given or entered. Section 90 does not entitle the judge to interrogate the jury about their reasons for a general verdict. 264 At 826, their Honours said in a passage which is of much importance for present purposes.

“The answers which the jury gave to the series of questions which was left with it by the learned trial judge in the present case did not constitute a general verdict. They were answers to questions of fact which, if properly framed, his Honour was entitled to leave to the jury and which the jury was, under s 90 required to answer. When it appeared from the answer given to one of the questions that the jury may have, to adapt the learned trial judge’s words, misunderstood or misapprehended their precise task, his Honour was entitled, in the exercise of his discretion and subject to the ordinary supervision by an appellate court of the exercise of such a discretion, to seek elucidation of the answer which the jury had given to a particular question and, if the jury was prepared to provide such elucidation, to give the jury an opportunity of amending the answer to overcome the effect of manifest error or mistake. The course of seeking such elucidation is fraught with danger and the discretion to seek it should be exercised sparingly and with care. The circumstances of the present case, however, plainly justified the learned trial judge in seeking such elucidation and, once it was obtained, in giving to the jury the opportunity of correcting the error they had made, as a result of an omission in his Honour’s summing-up, in the particular answer. This did not involve a questioning by the trial judge of the jury on matters lying behind a general verdict. At the relevant time, all that the jury had done was to answer the questions that had been left to it.” (my emphasis)

265   The judgment of the High Court in Mourani received close consideration by the Court of Appeal in Otis Elevators Pty Limited v Zitis (1986) 5 NSWLR 171. In proceedings seeking damages for personal injuries the judge put to the jury before they retired to consider their verdict a list of seven questions. Questions one and two went to the general verdict. Questions three to seven, in effect, requested a dissection of the general verdict of damages with the evident object of providing an indication of past losses for the purpose of awarding interest. Figures provided by the jury in answers to two of the questions revealed two fundamental inconsistencies, one of which was readily reconcilable mathematically with the general verdict, the other of which revealed an inconsistency between the amount awarded for general damages and the award for past and future economic loss. By majority (Priestley and McHugh JJA; Kirby P dissenting) the appeal was dismissed because the answers given by the jury were held not to be inconsistent. 266 McHugh JA held that answers obtained from a jury to questions which should not have been put cannot invalidate a general verdict. They should be ignored on an appeal. 267 McHugh JA further made the point that on the question of inconsistency it is the findings behind the jurors’ answers, not the answers themselves which are relevant. At 204, his Honour said:

“In the cases where an answer to a question has resulted in the setting aside of a general verdict, the answer to the question was directly and necessarily inconsistent with the general verdict. That is not the case here. Moreover, I do not think that the defendant can succeed even if one could compare the answers inter se. The particular answers represent the jury’s assessment of the value of the plaintiff’s disability in particular sectors of his claim. The assessments may be erroneous but they are not inconsistent with each other since each assessment deals with a different issue, eg, loss of income, as opposed to extent of pain and suffering. Moreover, it does not follow from the answers given in this case, odd though they are, that the findings behind them are inconsistent. And it is the findings behind the answers, not the answers, which would be relevant.”

268   In Bromley v Tonkin (1987) 11 NSWLR 211 at 233, Clarke JA summarised the authorities relating to a demonstration of apparent confusion by the jury in relation to questions posed by the trial judge and an attempted clarification by the judge. This was an action before a judge and jury in which the plaintiff sought damages from his former solicitor for negligent advice. 269 Clarke JA said:

“Turning to the authorities they establish, in my opinion, the following propositions:

(1) It is open to a trial judge to ask the jury to bring in either a general verdict, a special verdict (upon which it is unnecessary to elaborate) or to answer specific questions submitted under the Supreme Court Act 1970, s 90.

(2) In the event that the jury answers specific questions submitted then the trial judge should direct the foreperson to return a general verdict in accordance with the findings tendered in answer to the questions:

‘… But the formality of requiring the jury to return a verdict may be dispensed with if there be no objection. When a jury answers specific questions and is discharged without giving a general verdict, the jury and the parties are, in the absence of express objection, taken to have authorized the court to enter such verdict and consequent judgment as flows in law from the answers which are given.’

(3) It is never open to a trial judge to question a jury in order to ascertain the grounds of their decision - whether provided in answer to special questions or by way of a general verdict: Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825; 50 ALR 519.

(4) A general verdict in a civil proceeding is a statement by the jury as to the party in whose favour it finds, together with the amount of damages assessed if the finding is for the plaintiff: Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 197 per McHugh JA and the cases cited therein.

(5) Once a general verdict, which has been sought by the trial judge and is clear in its terms, is given by a jury it is not open to a trial judge further to question them: Mifsud v Commonwealth of Australia [1968] 2 NSWR 83 at 87 per Herron CJ; at 89 per Asprey JA; Barnes v Hill [1967] 1 QB 579 at 587 per Lord Denning MR; Arnold v Jeffreys [1914] 1 KB 512 and Hassan v Moore Engineering (Cooma) Pty Ltd (1969) 70 SR (NSW) 448 at 453-454; 89 WN (Pt 2) (NSW) 99 at 104; [1969] 1 NSWR 146 at 149 per Asprey JA.”

270   In MacKenzie v The Queen (1996) 190 CLR 348 the High Court was concerned with the question of alleged inconsistency between jury verdicts on two counts in an indictment. Despite their length I set out the following passages (at 365-368) from the judgment of Gaudron, Gummow and Kirby JJ:

“ Inconsistent verdicts
The argument that two or more jury verdicts are inconsistent (or, as sometimes described repugnant or illogical) ordinarily arises, in the context of criminal trials, when it is suggested that a conviction resting upon one of the verdicts is thereby demonstrated to be unsafe or unsatisfactory. In civil trials, the problem of inconsistency or incompatibility has often arisen where special verdicts are taken on questions, resulting in the argument that the respective answers cannot logically stand together.
Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the ‘constitutional’ tribunal for resolving disputed factual questions. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law.
On the other hand, whilst ordinarily a jury is as inscrutable as the Sphynx, sometimes, by a series of verdicts, or where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury’s thinking. This does not arise unlawfully or irregularly. If the result of this insight is to case doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.
From a review of the cases, a number of general propositions can be stated:
1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court’s record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge’s directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.
2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of “differences in the evidence presented at the two trials” or “the different views which the juries separately take of the witnesses”.
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
“He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count; a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman , in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:
“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused which might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."
We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case.”
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.”
(Citations have been omitted)

271   Otis Elevators was considered by the Court of Appeal in Quinn v RoclaConcrete PipesLimited (1986) 6 NSWLR 586. This was an appeal by a plaintiff in an action for damages for personal injury by an owner driver of a truck. 272 At the end of the evidence in the trial certain agreed questions were put to the jury by the judge and the jury’s answers indicated that the jury had not, although awarding general damages, made any award for damages for out-of-pocket expenses though this had been agreed upon by counsel, nor any award for future economic loss or future pain and suffering and loss of amenities. The Court, (Kirby P, Mahoney and McHugh JJA) held that in determining whether an appellate court should set aside a general verdict on the ground that facts, external to the jury’s discussion, indicate that the jury misdirected itself in arriving at its verdict in such a way as to be detrimental to a party, answers to legitimate agreed questions put to the jury on a claim for damages for personal injuries may be relevantly taken into account. 273 Kirby P pointed out that the questions as to future loss of income or future pain and suffering had been objected to in Otis Elevators by both parties. In these circumstances, McHugh JA was of the view that they had the effect of interrogating the jury as to the basis of its assessment of damages. Accordingly, his Honour considered that the jury’s answers should be disregarded and the general verdict sustained. 274   The President pointed out that in Otis Elevators the questions related to future pain and suffering etc. Here the questions related to past wage loss and pain and suffering. The former were inadmissible as interrogation. They were unsustained by s 90. The latter was specifically stated as permissible by common law to permit the computation of interest. 275 After referring to certain other areas of distinction between the two cases the President said (at 595):

“For these reasons, nothing contained in Otis Elevators Pty Ltd v Zitis prevents this Court from scrutinising the answers given by the jury to the agreed questions. Those answers may not be disregarded as surplus to the general verdict. When examined, they demonstrate internal inconsistency, a significant omission and plain perversity in or misunderstanding of the jury’s proper function. Although it is not necessary to refer to the questions which the jury returned to ask, it is clear from a reading of these that the jury was confused. Certainly it was unclear before further direction, upon certain fundamental matters, central to its task.”

276   A much earlier case: Bradbury v N.Z. Loan & Mercantile Agency Co Limited (1927) 27 SR 15 is authority for the proposition that in a trial before a judge and jury, the judge is not bound to receive the first verdict returned by the jury and may direct them to reconsider it, giving them such further direction and assistance as he or she thinks proper. The jury may alter their verdict if they wish to do so before it is recorded. The judge, however, is not entitled to force a jury to give a verdict which they do not wish to give. 277   It may be of assistance if I record at this stage the factors which influenced me to discharge the jury without accepting the submission by senior counsel for the plaintiffs “that it would be appropriate to recall the jury with a view to clearing up the inconsistency because if their answer to 33(a) is no, then that’s an end to the comment that the defence answered that imputation (sic).”(transcript 1841). That submission was, of course, in the absence of the jury. Thereafter the transcript (1841-2) reads:

“HIS HONOUR: I don’t think I can interrogate them, so it seems to me to turn into a legal matter issue. As they have answered 33(a) no, the answer to 33(b) (ii) is irrelevant. That would be the argument, wouldn’t it?
HUGHES: Your Honour I put my submission. We say that if your Honour is not minded to clear up the problem the dominant answer is 33(a) and its corresponding answers.
HIS HONOUR: That, if I may respectfully say so, must be obviously be your approach. What approach Mr Littlemore will take I don’t know. But the one thing of I would be fearful of doing would be of questioning the jury as to how they reached this situation. They have answered or not answered the questions, and that’s something to be sorted out afterwards in legal argument. If I call them back and start to question them about it, I am entering forbidden territory.
IN THE PRESENCE OF THE JURY
HIS HONOUR: Well members of the jury, I am going to utter the words that you have been longing for.
(His Honour thanked the jury for their attendance and dismissed them.)
(Discussion as to when would be the best time for further argument.)”

278   The matter was then stood over to a date to be fixed in the New Year. 279   I was deeply conscious of the caution by the High Court in Mourani that for a trial judge to seek elucidation of a jury’s answer or answers to a question or questions is fraught with danger and the discretion to seek it should be exercised sparingly and with care. 280   I had already sought some elucidation and I was fearful that any further elucidation would possibly expose the jury’s reasoning processes and lead to a frustration of the trial. 281   To use the expression of senior counsel for the plaintiffs “it was a consumately difficult case in many respects” and had occupied the jury for thirty four sitting days. The prospect of putting the trial at risk by seeking further elucidation from the jury did not seem to me to be justified by the events which had occurred. 282   I reasoned as follows. The jury had obviously overlooked my direction that they were not to proceed further in the comment questions if (a) were answered No. This is not surprising bearing in mind the complexity of the matters that they had to consider in providing answers to the long list of questions. 283   Regrettably, the agreed template for the comment questions did not include the direction to proceed no further if question (a) were answered in the negative. 284   It seemed to me that the jury were under the misapprehension that they must answer either (b)(i) or (b)(ii) despite the negative answer to (a). There was a misapprehension of course as to their assumption that they had an option with regard to the (b) questions. But for present purposes nothing seems to turn on that particular misapprehension. 285   It seemed to me that the jury would in all likelihood have taken the view that despite answering (a) in the negative, they were nevertheless obliged to do the best they could to answer (b)(i) or (b)(ii). This was not necessarily an impossible task because the question posed in (a) was concerned solely with the understanding of “the ordinary reasonable reader”. 286   The fact that the jury did not answer question (c) seemed to me to emphasise the predominance of the conclusion that the relevant imputation would not have been understood by the ordinary reasonable reader to be an expression of opinion. 287   By contrast when the jury was dealing with the fourth imputation the jury answered question (c) in the negative, having declared that the fourth imputation would have been understood by the ordinary reasonable reader as an expression of opinion by answering question (a) in the affirmative and (b)(ii) in the affirmative. 288   Of course, no problem would probably have arisen if the foreman’s attention had not been directed to any question after (a) when it had been answered in the negative. I say, probably, because if the last mentioned course had been adopted, it may have been that the foreman would have volunteered the fact that the jury had answered (b)(ii). One will never know. 289   Before I turn to the specific submissions by the parties, it should be noted that the Court of Appeal (Moffitt P., Hope and Reynolds JJ.A) held in Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 at 760, that the answers by jurors to questions posed pursuant to s 90 do not constitute special verdicts. 290 Their Honours said:

“Seeking from, and obtaining from, a jury a special verdict, which is a verdict in the true sense, is quite different from a judge asking a jury specific questions and receiving their answers, in aid of their finding a general verdict. The procedures directed to having the jury find a special verdict were used where there were contested legal issues, but the parties could not agree upon some relevant fact or facts, so that these facts were then determined specifically by the jury as their verdict, leaving the parties thereafter to contest the legal issues.”

291 Of course, the answers do not constitute a general verdict. In argument the plaintiffs relied upon cases in which inconsistent verdicts were under consideration and the defendants contended that such cases are of no assistance in resolving apparent inconsistencies in answers by the jury to questions under s 90.

Submissions by the Plaintiffs

292   In argument, the plaintiffs contended that, properly understood, the jurors’ answers to the comment defence in relation to the third imputation constituted a rejection of the comment defence. The negative answer to question (a), it was argued, swamps or overarches the affirmative answer to question (b)(ii) and the predominance of the negative answer is emphasised by the jurors’ abstention from answering question (c). That affirms that the jury fully and firmly intended to reject the comment defence to the third imputation. 293   It was emphasised that in determining whether a trial had miscarried by reason of inconsistent verdicts, the cases required that the verdicts must “be necessarily inconsistent”: see Brancato vAustralian Telecommunications Commission (1986) 7 NSWLR 30 at 32; MacKenzie at 369. 294   It was submitted that in considering whether or not there is a necessary inconsistency between verdicts, the courts have manifested a traditional reluctance to accept that the jury’s findings are vitiated by inconsistency: see Mercer (at 595). The alleged inconsistency in Mercer related, of course, to a rider to the jury’s verdict. However, it was contended that the principle has more general application. 295   The same principle applies to special verdicts, which it was contended, should extend by analogy to the present situation. Thus, in Chitty’s Archbold’s Practice (12th Ed.) at 451, one reads:

“Yet, the Court will, in general, construe a special verdict in such a manner as to give effect to it, if possible.”

296   The plaintiffs contended that a further relevant principle is that where the jury, contrary to a direction such as was given at paragraph 343 in the subject summing-up, gives an answer which was unnecessary and inappropriate, such answer is a nullity to which no effect can be given: see Otis Elevators at 204E, per McHugh JA. It is mere surplusage, and even if contradictory, it should be rejected; see Mifsud at 87 per Herron CJ, and at 89 per Asprey JA. Mifsud was, of course, a case involving a rider by the jury to its general verdict. 297   Then it was argued that there was no necessary inconsistency between the relevant answers, in that, as distinct from question (a), the jury were not concerned in question (b)(ii) with the understanding of the ordinary reasonable reader congruently with Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474. 298 So, it was said, that in questions (b)(i) and (ii) the jury were being asked whether “any comment” possessed the necessary characteristics, even though it would not have been understood as comment by the ordinary reasonable reader. 299 An interesting argument was structured by the plaintiffs as follows:

“The validity of the jury’s answers as a platform for judgment can be tested by propounding two inconsistent hypotheses which are the only ones possibly available:
Hypothesis 1 :
The jury’s answer to question 33(b)(ii) overtook the answer to question 33(a) so as to negate it.
In that event the damages awarded by the jury must be taken to be confined to the first imputation. There is no inconsistency between the answers and the damages awarded.
Hypothesis 2 :
The jury’s answer to question 33(b)(ii) did not affect the integrity of the answer to question 33(a). In that event the damages are referable to the first and third imputations.
Given the presumption of regularity that applies to the findings of a jury, there is no basis in the answers for a conclusion that this jury assessed damages on the basis of any alleged cause of action not properly available as the basis of an award.”
Submissions by the defendants

300   The defendants contended that it was sufficient that the jury’s answers were inconsistent and not necessarily inconsistent to justify a conclusion that the trial had miscarried. It was submitted that the plaintiffs had conceded that there was a contradiction on the face of the record between answers 33(a) and 33(b)(ii) together with the associated questions. A further concession was made, it was contended by the plaintiffs, that the jury did not understand the task that presented itself to them in respect of questions 33 and 34. Thus, there should be a retrial and the matter should not be left to be resolved on appeal: Australasian Steam Navigation Company v Howard Smith & Sons [1889] 14 AC 321 at 323. 301 It was submitted that the instant case is one of legal inconsistency in the sense in which that phrase was used by the majority judgment in MacKenzie. In the case of legal inconsistency the High Court made it clear (at 366) that this will result in verdicts on the face of the Court’s record which, in law, cannot stand together. 302   To pick up the words used by the majority (at 368) the inconsistent answers represent, “on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”. 303   The defendants contended that the evident confusion in the minds of the jury demonstrated a lack of clarity, not in the judicial instruction on the applicable law, but in the absence from the template of an exhortation that should have been under question 33(a) saying:

“If you have answered this question No, go to question 34”.

304   The “general verdict rider cases” could be distinguished, it was submitted, because the answer to 33(b)(ii) could not be considered as subservient to the answer to 33(a). 305   It was submitted that the plaintiffs can obtain no benefit from the surplusage approach in Otis Elevators because that case was only concerned with a question wrongly put which could not be used to invalidate a general verdict. As yet, there is no general verdict in the instant case. 306   It was further submitted that I erred in discharging the jury without “clearing up the inconsistency”. Particular reliance was placed upon Gibbons v Howley [1990] VR 762. The Full Court (Crockett, Fullagar and Nathan JJ) there said (at 765):

“As to the first of them, there can be no doubt that at common law a judge is not bound to receive at once the first verdict a jury brings in. This is true of the verdict both of a criminal and of a civil jury. In Halsbury , 4th ed., vol. 11, para. 320 it is said that the judge ‘…may direct them to reconsider it. If their verdict is meaningless or inconsistent, he may refuse it. If, however, they insist on a general verdict of guilty or not guilty the judge must accept it.’”

307   Reliance was placed on the following passage from the judgment of Kirby P in Quinn v Rocla at 595:

“When examined, they demonstrate internal inconsistency, a significant omission and plain perversity in or misunderstanding of the jury’s proper function. Although it is not necessary to refer to the questions which the jury returned to ask, it is clear from a reading of these that the jury was confused. Certainly it was unclear before further direction, upon certain fundamental matters, central to its task.”
It was submitted by the defendants here that those comments are apposite to the instant case and, as in Quinn , there should be a new trial.

308   It was noted that in Bromley v Tonkin (at 235) Clarke JA expressed the view (disagreeing with the majority in Mifsud) that if a general verdict is returned with a rider which introduces ambiguity then regard should be paid to both the verdict and the rider and unless the ambiguity is removed the jury should be discharged and the case stood over for a new trial. 309 Be that as it may, it was argued by the defendants, that in the instant case there was no general verdict, and no rider, so the relevant answers to (b)(ii) are not to be treated as surplusage. 310 Reliance was placed upon the following statement of principle by Clarke JA (at 236):

“The judge is entitled, and indeed under a duty, to question the jury in the event that an ambiguous verdict is returned, or the jury appear confused, in an endeavour to resolve the ambiguity or remove the confusion: Bakaldis v Hill (1968) 87 WN (Pt 1) (NSW) 64 at 65 per Jacobs JA: R v Crisp (at 296; 173); R vEllis (1852) Legge 749 and Hassan (at 454; 104; 149)”.

311   And later his Honour said:

“I would add this - if it becomes apparent that a jury is confused or an ambiguous verdict is proffered it is the right and duty of the trial judge to see clarification of the verdict or answers and it is only in the event that the jury are unable or unwilling to reach a unanimous verdict which is certain and free from ambiguity that the jury should be discharged and a new trial ordered. However, as explained in Mourani v Jeldi Manufacturing Pty Ltd (at 826; 519-520), the task of elucidation should be undertaken with care and discretion.”

312   It was submitted that the appropriate course would have been for me to have declined to receive the answers which were inconsistent with the negative response to question (a) and to redirect the jury in accordance with the original direction in par. 343. 313   Reference was made to the judgment of Brooking J (with which Young CJ and Nicholson JJ agreed) in Anderson v Ntzounas (1988) VR 748. There the Full Court of Appeal held that in a civil proceeding in the County Court where the appropriate questions are put to the jury by consent and answered in an acceptable form and neither party insists on the formality of the actual giving of a general verdict, and the jury is simply discharged after answering the questions, the jury by implication gives, and the judge accepts, a general verdict which is a verdict within the meaning of s 73(3A) of the County Court Act 1958. That sub-section has the effect of depriving the trial judge of the power to order a new trial in civil proceedings because the jury has given a verdict. Absent such a verdict, the judge has power under sub-section (3) to order a new trial upon such terms as he or she thinks reasonable. The particular passage upon which the defendants seek to rely is to be found at p 752, where Brooking J said:

“Unless leave has been reserved to move for judgment notwithstanding the verdict, the suggestion that an answer to a question cannot be supported on the evidence will not provide this foundation: Prestinenzi v Steel Tank and PipeConsolidated Pty Ltd [1981] VR 421. In addition, if the questions and answers are found to be insufficient to determine the outcome of the case, it may be open to a party to resist the entry of judgment: compare Vlahos v Easywear (Aust) Pty Ltd [1974] VR 155, at p 158 (a missing question) with Williams v IncorporatedNominal Defendant [1986] VR 169 (a missing answer). But these two decisions are not examples of “express objection” but cases where it was, or might have been, said that no verdict flowed from the answers given.
The result of all this is that when, with the express or implied consent of the parties, questions are asked of the jury in order to obtain findings of fact on the issues necessary to determine the case, and that jury provides answers to those questions in proper form, there will always be a general verdict to support the resulting judgment”.

314   The defendants emphasised the reference by Brooking J to “answers to those questions in proper form”. 315   Applying that principle the defendants contended that in the instant case the parties have been left with questions and answers insufficient to determine the outcome of the case; the jury’s answers were not relevantly “in proper form”. Therefore, it was argued “that it may be open to the defendants to resist the entry of judgment”. 316   Dealing with the two hypotheses postulated by the plaintiffs in argument to support the assessment of damages, to which I have referred earlier in outlining the plaintiffs’ arguments, reliance was placed by the defendants upon the following passage from the joint judgment of the Court of Appeal (Handley, Beazley and Stein JJA) in TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 688:

“The jury returned a single verdict on the three causes of action based on the second telecast, a course sanctioned by s 9(5) of the Defamation Act 1974. However the trial judge could have directed the jury to return separate verdicts. Where the jury return a general verdict on more than one cause of action which cannot be supported on all causes of action, there must be a new trial: see Cutts vBuckley (1933) 49 CLR 189. The Court is not entitled in a defamation case to speculate that the jury would or might have awarded the same damages on the other causes of action: see Bray v Ford [1896] AC 44 , 53.
In such circumstances, a trial judge should consider exercising the power conferred by s 9(5) to require the jury to return separate verdicts. The taking of separate verdicts could avoid the necessity for a new trial if an appellate court should conclude that one or more of the disputed imputations was not capable of being conveyed”.
That passage, it was argued, dispenses with the plaintiffs’ argument in reliance upon the two hypotheses.

317   The case of Bray v Ford, to which their Honours referred, was a case in which the judge misdirected the jury in a libel action in favour of the plaintiff upon a material part of the libel and the jury gave a verdict for large damages. 318 The Court of Appeal held that the nature of the libel was such that the jury would have been entitled to give, and would probably have given, the same verdict irrespective of the misdirection. Reversing that decision, the House of Lords held that since the assessment of damages is the peculiar province of the jury in an action for libel and since the jury might, in assessing the damages, have been influenced by the misdirection there must be a new trial. Lord Herschell said (at 52):

“But in the case of an action for libel, not only have the parties a right to trial by jury, but the assessment of damages is peculiarly within the province of that tribunal”.

Thus, the defendants argued here that there should be a new trial.

319   In Weber v Birkett [1925] 2 KB 152 the plaintiffs sued the defendant for a slander and for a libel. The defendant pleaded an apology and paid into Court two sums of 105 each, one in respect of the slander and the other in respect of the libel. The jury returned a verdict for a lump sum of 200 to cover both causes of action. 320 The Court of Appeal held that in the circumstances it was necessary for the jury to give a separate verdict on each issue. Instead of doing so they found a verdict of 200 and, when asked by the judge to appropriate it, and say how much they gave in respect of the slander and how much in respect of the libel, the jury insisted that they were unable do so. The Court of Appeal held that in the circumstances there was no verdict at all, and the trial judge was quite right in treating the trial as a mistrial, and refusing to enter judgment for either party. 321 Thus, the defendants submitted that judgment cannot be entered here because there is no general verdict capable of extraction from necessarily inconsistent answers. 322 The defendants contended that it was not possible to say that the negative answer to question 33(a) swamped or overarched the affirmative answer to question 33(b)(ii). It would be equally valid to say that the positive answer to 33 (b)(ii) was capable of swamping or overarching the negative answer to 33(a). Nor it was submitted, could the plaintiffs obtain any assistance from the jury’s not answering 33(c). They were merely correctly obeying the exhortation that appears at the bottom of the page only to proceed to 33(c) if they had answered Yes to 33(a) and either 33(b)(i) or 33(b)(ii). 323 In conclusion the defendants argued that because of the inconsistent answers the plaintiffs are not entitled to their verdicts and judgments here in the event that the qualified privilege defence fails. If the qualified defence fails, the defendants submitted that I should refer the matter to the Court of Appeal pursuant to Pt 12 r 2 of the Supreme Court Rules. 324 Rule 2(1) provides:

“Where any proceedings are commenced in a Division, the Court in the Division in which the proceedings are pending may -
(a) in a case where the Court makes any order under Part 31 rule 2 for the decision of a question of law; or
(b) in any other case, where the Court states the question to be decided or determined and is satisfied that special circumstances exist which render it desirable to make an order under this subrule,
on application by a party or of its own motion, make an order that the proceedings be removed into the Court of Appeal.”

325   This application was opposed by the plaintiffs. 326   The defendants submitted that the appropriate course would be for me to determine the question of qualified privilege and consequent upon that finding, determine whether there shall be a general verdict for the plaintiffs or defendants in respect of qualified privilege but then to refrain from entering judgment, “because the circumstances are as extraordinary as they are”, remit the matter, including the question whether judgment may be entered in these circumstances, directly to the Court of Appeal. 327   The plaintiffs opposed this last submission on the basis, it was contended, that this was a case where “the Court of Appeal would be aided by the views of the judge at first instance”: see Murphy v FAI General Insurance Co Ltd per Giles J (5 July 1993, unreported). 328   One can add to that reference Sivakumar v Pattison [1984] 2 NSWLR 78.

Conclusion

329 Having rejected both the common law defences of qualified privilege and the statutory defences under s 22 of the Act, the plaintiffs are entitled to a general verdict in the amount of damages assessed by the jury subject only to the resolution of this outstanding question in relation to the alleged inconsistent answers. I must either decide whether I should proceed to verdict and judgment or refer the matter to the Court of Appeal as sought by the defendants. I do not consider, in light of the authorities and the circumstances of this particular case, that the circumstances are so special that I should decline to rule upon the matter myself. I propose to rule on the matter and leave it for resolution by the Court of Appeal in the normal fashion. 330 In ruling upon this matter I am naturally conscious of the fact that I formed a prima facie view which led me to discharge the jury without seeking further elucidation. Thus, I must seek to avoid the temptation to find reasons which would justify my prima facie view. 331 It seems to me that in resolving this particular issue which is concerned with answers to questions under s 90, one is entitled to draw, to some extent, upon the principles which have been enunciated by superior courts in relation to riders on general verdicts, inconsistent general verdicts and inconsistent special verdicts. 332 I agree, however, with senior counsel for the defendants that an answer to question (b)(ii) could not be taken to be subordinate to an answer to question (a) in the same sense as a rider may be taken to be subordinate to a general verdict. That is a matter to be borne in mind. 333 Applying the principles to be gleaned from the cases I think the following principles could safely be applied to the instant case:

(1) The appropriate question is whether there exists a necessary inconsistency.

(2) There is a traditional reluctance to accept that jury’s findings are vitiated by inconsistency.

(3) It is open to a trial judge in an appropriate case, to draw his or her own conclusions as to the jury’s reasoning process in answering a question apparently inconsistent with an earlier answer.

(4) If inconsistent answers on the public record are perverse or constitute (inter alia) an affront to logic and commonsense which is unacceptable, then the answers should not be allowed to stand.

(5) At the end of the day, it all depends on the facts of the case. “There are no hard and fast rules” ( MacKenzie at 368).

334   I accept, as I must, that I had the discretion to seek further elucidation of the answers which the jury had given to the relevant questions. 335   This takes me to the passage from the High Court judgment in Mourani set out above. I was entitled, in the exercise of my discretion “to seek elucidation of the answer which the jury had given to a particular question and, if the jury was prepared to provide such elucidation, to give the jury the opportunity of amending the answer to overcome the effect of manifest error or mistake”. However, I would only have been entitled to seek that elucidation without at the same time drawing from the jury the grounds of their decision as manifested in an answer to a particular question. 336   Thus, the High Court warned in Mourani that “the course of seeking such elucidation is fraught with danger and the discretion to seek it should be exercised sparingly and with care”. The judicial discretion has thus been invested by the High Court with an unusually high degree of qualification. 337   Factors which militated against the exercise of this restricted discretion in the instant case could be summarised as follows:

(1) It was manifestly apparent that the jury had, understandably overlooked the direction given at paragraph 343 of the summing up set out earlier.

(2) This was compounded by the absence of an exhortation in the template not to proceed further if question (a) were answered no, together with the conjunction AND between the upper box and the two lower boxes.

(3) There is a possible explanation, I think, for the jury’s affirmative answer to (b)(ii), despite the negative answer to (a), namely, the absence in (b)(ii) to the reference of “the ordinary reasonable reader”.

(4) Of paramount importance is the fact that the foreman affirmed without qualification (and this is common ground) that the jury’s answer to question 33(a) was No. It would in these circumstances be extraordinarily difficult to conclude that by their answer to (b)(ii) the jury intended to neutralise the negative answer to (a).

(5) In resolving this particular issue one can call upon a consistent commitment by the subject jury during the trial to the proper discharge of their duty which included the answers overall to the numerous questions which were submitted to them. No question of “plain perversity”, arises.

338 In essence, therefore, I am comfortably satisfied that the jury clearly intended to hold that the defendants had not established that the third imputation would have been understood by the ordinary reasonable reader as an expression of opinion and not a statement of facts. 339 By reason, however of the form of the template, and overlooking the direction at par. 343 of the summing-up, they erroneously believed they nevertheless had to do the best they could to answer either question b(i) or (b)(ii). The answer to (b)(ii) should, in my view, be treated as surplusage. This is the approach which I propose to take. I do not consider, as I have said, that the circumstances are sufficiently special to justify referring the matter to the Court of Appeal pursuant to Pt 12 r 2 of the Supreme Court Rules.

Verdict

340   The defences of qualified privilege having been rejected, the plaintiffs are entitled to verdicts consistent with the damages assessed by the jury. Accordingly, I find as follows:

(1) Verdict for the first plaintiff against the defendants in the sum of $150,000 together with interest to be assessed.

(2) Verdict for the second plaintiff against the defendants in the sum of $30,000 together with interest to be assessed.

I will stand the matter over to a date to be fixed to hear argument on interest and costs.

Reasons for refusal of Application by Defendants for leave to amend Particulars of Qualified Privilege

341   When the hearing of this matter resumed before me on 14 March 2000, senior counsel for the defendants sought leave to amend the defendants’ Particulars of Qualified Privilege in relation to both common law qualified privilege and statutory qualified privilege. Of particular significance, the defendants sought to rely upon statutory qualified privilege in relation to both publications, whereas during the course of the trial (consistently with the Second Further Amended Defence) the defendants expressly declared that statutory qualified privilege was only relied on in relation to the Novosti publication. 342   The proposed amendments were included in a letter dated 22 December 1999 from the solicitors for the defendants to the solicitors for the plaintiffs. It will be noted then that this letter was written only five days after the jury’s answers to the questions posed for them. There was an immediate response, on 24 December 1999, from the solicitors for the defendants, stating that their clients intended to oppose the defendants’ application “to amend its defence”. Those letters were marked MFI.79 and MFI.80 respectively, and are set out hereunder:

“22 December 1999

Ms J Munsie
Mallesons Stephen Jaques
level 60, Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000

By facsimile: 9296 3999

Dear Justine,
RE: SKALKOS & ANOR ats ASSAF & ANOR

I refer to the above matter, which remains incomplete until the learned Trial Judge has heard argument and ruled on the issues involved in the various Qualified Privilege defences.

This letter serves to put the Plaintiffs on notice that, at the resumption of the trial in March next year, the Defendants will seek leave further to amend the present Defence to read as follows:-

Qualified Privilege
1. Common Law (both matters complained of)
The Defendants published the matters complained of pursuant to a social or moral duty to do so and, specifically, to inform the recipients about the matters of public interest referred to below .
The recipients of each of the matters complained of had an interest in receiving the matter published because they were:

(a) The Prime Minister’s personal staff;
(b) Senior public servants;
(c) Ministers of the Crown;
(d) Senior Officers of Telecom concerned with Telecom’s advertising and marketing activities;
(e) Members of that section of the community of a Serbian, non-English speaking background;

and it related to the matters of public interest stated below, and those recipients had an interest in knowing the facts and matters stated.
Furthermore, the matters complained of were published to the Prime Minister. Ministers of the Crown, senior public servants and persons at Telecom on an occasion of qualified privilege at common law in that they were published in the course of discussion of government of political matters in that the matters complained of related to the conduct of government departments.
Particulars of Matters of Public Interest:

(a) The communication of Government information on such matters as Taxation, Superannuation rights and obligations, Health, Road Safety, Housing, charges for telephone and like services, Electoral matters and the Commonwealth Bank share float, to the non-English speaking community;

(b) Government policy in relation to the matters particularised at (a) above;

(c) The expenditure of taxpayers’ funds in relation to the translation, production and placement of Government advertising and information intended for the non-English speaking communities;

(d) The conduct of the Plaintiffs in relation to the translation, production and placement of Government advertising and information intended for the non-English speaking community;

(e) The desirability of the Prime Minister’s establishing a committee including experts in communications with the non-English speaking community to investigate future management of Government advertising to that section of the Australian community;

(f) The provision of services to the Government by companies such as the Second Plaintiff, and the fair and reasonable price for such services.
2. Defamation Act, Section 22 ( both publications ):

(a) The subject or subjects of the matters complained of were the matters of public interest stated above;

(b) The Defendants rely upon both an interest and an apparent interest;

(c) The reasonable grounds for the Defendants’ belief that the recipients of the matters complained of had an interest or apparent interest were that the matters complained of related to the matters of public interest stated above, and that the Defendants believed that those recipients were:

(i) Persons with a particular interest in Government policy affecting the advertising of Government information to the non-English speaking community;

(ii) Members of that section of the public with a particular interest in receiving Government communications in a language other than English (viz. Serbian)

(d) The reasonable grounds for the Defendants’ belief were, as to :

(i) That the recipients were members of the staff of the Prime Minister; Minsters of the Crown and senior public servants; and members of the staff of Telecom working in that section of Telecom’s activities concerned with advertising and marketing;

(ii) That the Defendants published “Novosti”, a Australian newspaper published in the Serbian language;

(e) The Defendants’ conduct was reasonable in the circumstances because they believed what they published to be true, and took care that the information contained in the matter complained of was accurate. Further, the fact that “Novosti” was a specialist publication for persons who required news and government information concerning the non-appearance of such information in the Defendants’ newspaper “Novosti” was of vital importance to them.

It is my belief that no prejudice can result to your clients from these further amendments. While I consider all appropriate particulars have been furnished, I stand ready to answer any reasonable request for further and better particulars of the proposed amendments. Please note that this office will be closed from 28 December 1999 to 7 January 1999.

I wish you the compliments of the season.

Yours faithfully

TONY LAZAROPOULOS
Legal Counsel.”

----
“Confidential communication 24 December 1999
Mr Tony Lazaropoulos
Legal Counsel
Foreign language Publications Pty Limited
5013 Gamers Avenue
Marrickville NSW 2204
Fax: [phone]
Dear Sir,
Assaf & anor v Skalkos & anor
We refer to your letter dated 22 December 1999.
Our clients intend to oppose the defendants’ application to amend its defence.

Yours faithfully”

343 It should be noted at the outset, that this matter has a long interlocutory history. It has been before various judges of this court on approximately 25 occasions, and approximately 10 interlocutory judgments have been delivered. I do acknowledge, however, that it was not until 17 May 1999 that the form of the plaintiffs’ imputations which were to go to the jury was ultimately finalised. Be that as it may, the parties have had something to the order of six years in which to formulate their respective cases, and to get the matter ready for trial. 344 Bearing in mind that this trial ran for some seven weeks, culminating in the answers by the jury to fifty-one questions, it might be thought, at first blush, that a significant amendment to the defendants’ Particulars at that stage would present formidable difficulties. 345 Senior counsel for the defendants however forcefully submitted that justice demanded that the defendants be entitled to amend their Particulars of Qualified Privilege so that they might accord with the evidence in the trial and the relevant answers by the jury. He submitted that the only substantial difference represented by the amendment to the nature of the defendants’ case was that the s 22 defence was now sought to be pleaded not just to the Novosti publication, but also to the publication of the letter to the Prime Minister and the specified officers at Telecom. 346 Further, he submitted that the plaintiffs had ample opportunity to seek any clarification or elaboration of the amendments sought, and they had elected not to do so; this indicated a lack of embarrassment to them by any such amendment. He submitted that if the amendments were allowed they would attract no need for evidence to be tendered by any of the parties. 347 Reliance was placed by the defendants on the fact that Pt 20 r 1 of the Supreme Court Rules expressly permits leave to amend being granted at any stage of the proceedings, including after judgment or in the Court of Appeal. 348 Against that background some brief comment may be made in relation to the broad nature of the amendments sought. I refer first to the Particulars of Qualified Privilege at Common Law in relation to both matters. These Particulars, as amended by consent during the trial, are set out earlier in this judgment, and divided into part one and part two, purely for the sake of convenience. 349 It will be noted that as to part one, the defendants seek to substitute “the recipients” for “the public” where appearing. “The recipients” are then identified under paragraphs 1(a) - (e) to accord with the evidence led at the trial and in the relevant answers by the jury. 350 In relation to part two, the allegation that the matters complained of were published to the Prime Minister is sought to be supplemented by reference to publication to “Ministers of the Crown, senior public servants, and persons at Telecom”. In relation to both parts one and two, the particulars of matters of public interest (under Pt 67 r 18(1)(a)) have been significantly amended by way of elaboration, again to accord with the evidence. 351 With regard to the Particulars under s 22 (1)(c), the defendants seek to amend paragraph 2(c) by amending the defendants’ belief that the recipients were “members of the public” and inserting in lieu thereof:

“(i) Persons with a particular interest in Government policy affecting the advertising of Government information to the non English speaking community;
(ii) Members of that section of the public with a particular interest in receiving Government communications in a language other than English (viz. Serbian)”

352   The amendments were resolutely opposed by senior counsel for the plaintiffs. He contended that “the meat of the defence, if there is any meat” in the qualified privilege defence, is to be found in the Particulars. He submitted that the amendments sought to raise allegations of publication of the matters complained of, directly opposed to the way in which the defendants conducted the trial on the issue of publication. The proposed amendments purported to enlarge the range of publication much more widely than the range of publication proved at the trial. The new particulars of publication, he contended, were not matched by the evidence at the trial. He contended that if those wider particulars of publication had been before the jury, they could have been used by the plaintiffs at the trial to support their case of malice. 353   This argument in relation to the difference between the publication sought to be proved by the plaintiffs at the trial and the wider publication alleged in the respective amended Particulars was developed in some detail, upon which I do not find it necessary to elaborate. However, I should mention that the plaintiffs contended that if particulars of that width of publication had been provided before the trial, then the letter would have been tendered by the plaintiffs, with its consequential impact on damages, for the jury’s consideration. The defendants contended that such a letter would not have been admissible. 354   Senior counsel for the plaintiffs said to the Court that if the defence of qualified privilege had been particularised in the way set out in the letter dated 22 December 1999, the plaintiffs would have conducted their case in a different manner, and such assurance was given to the Court. 355   Senior counsel for the defendants responded:

“My learned friend in a self-serving way asserted to the Court, ‘which we say in good faith we would have had scope to conduct the case differently’. We do not accept that submission is made in good faith. It will have to be demonstrated to the Court there is some disadvantage flowing from these particulars as opposed the approach that the plaintiffs took.” (sic)

356   Specifically in this context, senior counsel for the plaintiffs said:

“We say this is a case where we can say, and do say in good faith, that we would have had scope to conduct the case differently at the trial if this, that is now said to be asserted, had been conceded at the trial.”

357   The plaintiffs relied upon the following statement by Sheppard J in Federal Commission of Taxation v Brambles Holdings Pty. Limited (1991) 99 ALR 523 at 529:

“One knows, of course, that sometimes amendments are sought because new counsel are brought into a case and see it differently from counsel whom they have replaced. This often happens and is no reflection on any member of the profession. In complex affairs different minds will approach problems differently. I would suspect that that is what has occurred in the present case. In such a case one might adopt a more relaxed attitude, but this cannot be done in a case where counsel for the other party says, in good faith, that he may have conducted his case differently at the trial if the point had been relied upon there.”

358   I do not think that senior counsel’s assurance, in good faith, is to be taken lightly. Defamation litigation is still one area of civil litigation where pleadings, particulars, and most importantly, forensic tactics, can be of extreme importance. Unquestionably in the conduct of this hard-fought, complex trial, (both as to the law and facts) that has been the situation right from the outset. The parties have had ample opportunity in the pre trial procedures to formulate with care and precision their respective cases. 359   Senior counsel for the defendants submitted that a letter in the terms of the letter presently under review could not have been formulated prior to the trial. This is simply because the Particulars have been drafted to accord with the evidence as it has fallen out, and the answers provided by the jury. The plaintiffs deny that the proposed amendments to the Particulars do accord with the evidence, but be that as it may, the thrust of what is in the letter could have found its way into pre trial Particulars. 360   It is impossible to determine, at this stage, how the plaintiffs would have conducted their case if the Particulars provided by the defendants prior to the trial had been even broadly along the lines of those now sought to become part of the pleadings. 361   An important question of principle, of course, arises here because the situation is that unlike most litigation, this trial has necessarily been conducted in two stages. Now the defendants seek, at the conclusion of stage one, to formulate amended Particulars as a platform to launch arguments in support of their case in stage two. A court must necessarily exercise much circumspection before allowing such a situation to occur. Of course, the fundamental issue to be resolved is whether such amendments would be unfairly prejudicial to the plaintiffs. 362   The particulars of publication are important, and I must say that I find it difficult to accept that had the wider publication been particularised prior to the trial, the plaintiffs could have been denied the right to put before the jury the Particulars of the extent of publication alleged by the defendants in the defence of qualified privilege. 363   To the extent that it is relevant, I made it perfectly clear during the course of the trial, correctly I hope, that in view of the nature of the case and the long interlocutory process, that much weight should be given in determining the admissibility or otherwise of evidence to the pleadings and the Particulars. 364   Allowing for the wide power which the Court has to admit amendments to Particulars and or Defences, I formed the view that it would be prejudicial to the plaintiffs to allow the proposed amendments both as to the qualified privilege defence insofar as it was sought to be pleaded to the letter to the Prime Minister, and the officers of Telecom and the proposed amendments to the Particulars. For these reasons the application for leave to amend the Particulars and the statutory defence of qualified privilege was refused.

**********
ANNEXURE

JOSEPH ASSAF & ETHNIC COMMUNICATIONS PTY LTD

v

THEODORE SKALKOS & FOREIGN LANGUAGE PUBLICATIONS PTY LTD

QUESTIONS FOR JURY

JOSEPH ASSAF & ETHNIC COMMUNICATIONS PTY LTD

v

THEODORE SKALKOS & FOREIGN LANGUAGE PUBLICATIONS

IMPUTATIONS

LETTER TO PRIME MINISTER

FIRST IMPUTATION

Question 1 Has the First Plaintiff, Joseph Assaf, established that the letter dated 21 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The First Plaintiff exploits publishers of ethnic community newspapers for his selfish financial purposes, by selling government advertising to them at exorbitant prices”?

YES/NO

Question 2 If you answered “Yes” to question 1, has the First Plaintiff, Joseph Assaf, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of him?

YES/NO

Question 3 Has the Second Plaintiff, Ethnic Communications Pty Ltd, established that the letter dated 21 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The Second Plaintiff exploits publishers of ethnic community newspapers for its selfish financial purposes, by selling government advertising to them at exorbitant prices”?

YES/NO

Question 4 If you answered “Yes” to question 3, has the Second Plaintiff, Ethnic Communications Pty Ltd, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of it?

YES/NO

SECOND IMPUTATION

Question 5 Has the First Plaintiff, Joseph Assaf, established that the letter dated 21 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The First Plaintiff has, as part of a scheme to make exorbitant profits from government ethnic advertising, exploited disadvantaged persons such as aged pensioners, invalid pensioners and the unemployed”?

YES/NO

Question 6 If you answered “Yes” to question 5, has the First Plaintiff, Joseph Assaf, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of him?

YES/NO

Question 7 Has the Second Plaintiff, Ethnic Communications Pty Ltd, established that the letter dated 21 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The Second Plaintiff has, as part of a scheme to make exorbitant profits from government ethnic advertising, exploited disadvantaged persons such as aged pensioners, invalid pensioners and the unemployed”?

YES/NO

Question 8 If you answered “Yes” to question 7, has the Second Plaintiff, Ethnic Communications Pty Ltd, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of it?

YES/NO

THIRD IMPUTATION

Question 9 Has the First Plaintiff, Joseph Assaf, established that the letter dated 21 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The First Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”?

YES/NO

Question 10 If you answered “Yes” to question 9, has the First Plaintiff, Joseph Assaf, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of him?

YES/NO

Question 11 Has the Second Plaintiff, Ethnic Communications Pty Ltd, established that the letter dated 21 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The Second Plaintiff conducts its business in such an unethical manner as to cause ethnic communities to be deprived of essential government information”?

YES/NO

Question 12 If you answered “Yes” to question 11, has the Second Plaintiff, Ethnic Communications Pty Ltd, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of it?

YES/NO

FOURTH IMPUTATION

Question 13 Has the First Plaintiff, Joseph Assaf, established that the letter dated 21 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“In conducting the business of Ethnic Communications Pty Ltd, the First Plaintiff employs bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about his unethical and wasteful conduct”?

YES/NO

Question 14 If you answered “Yes” to question 13, has the First Plaintiff, Joseph Assaf, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of him?

YES/NO

Question 15 Has the Second Plaintiff, Ethnic Communications Pty Ltd, established that the letter dated 21 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“In conducting its business, the Second Plaintiff employs bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about its unethical and wasteful conduct”?

YES/NO

Question 16 If you answered “Yes” to question 15, has the Second Plaintiff, Ethnic Communications Pty Ltd, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of it?

YES/NO

NOVOSTI

FIRST IMPUTATION

Question 17 Has the First Plaintiff, Joseph Assaf, established that the article in Novosti dated 28 July 1993 conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The First Plaintiff exploits publishers of ethnic community newspapers for his selfish financial purposes, by selling government advertising to them at exorbitant prices”?

YES/NO

Question 18 If you answered “Yes” to question 17, has the First Plaintiff, Joseph Assaf, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of him?

YES/NO

Question 19 Has the Second Plaintiff, Ethnic Communications Pty Ltd, established that the article in Novosti dated 28 July 1993 conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The Second Plaintiff exploits publishers of ethnic community newspapers for its selfish financial purposes, by selling government advertising to them at exorbitant prices”?

YES/NO

Question 20 If you answered “Yes” to question 19, has the Second Plaintiff, Ethnic Communications Pty Ltd, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of it?

YES/NO

SECOND IMPUTATION

Question 21 Has the First Plaintiff, Joseph Assaf, established that the article in Novosti dated 28 July 1993 conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The First Plaintiff has, as part of a scheme to make exorbitant profits from government ethnic advertising, exploited disadvantaged persons such as aged pensioners, invalid pensioners and the unemployed”?

YES/NO

Question 22 If you answered “Yes” to question 21, has the First Plaintiff, Joseph Assaf, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of him?

YES/NO

Question 23 Has the Second Plaintiff, Ethnic Communications Pty Ltd, established that the article in Novosti dated 28 July 1993 conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The Second Plaintiff has, as part of a scheme to make exorbitant profits from government ethnic advertising, exploited disadvantaged persons such as aged pensioners, invalid pensioners and the unemployed”?

YES/NO

Question 24 If you answered “Yes” to question 23, has the Second Plaintiff, Ethnic Communications Pty Ltd, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of it?

YES/NO

THIRD IMPUTATION

Question 25 Has the First Plaintiff, Joseph Assaf, established that the article in Novosti dated 28 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The First Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”?

YES/NO

Question 26 If you answered “Yes” to question 25, has the First Plaintiff, Joseph Assaf, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of him?

YES/NO

Question 27 Has the Second Plaintiff, Ethnic Communications Pty Ltd, established that the article in Novosti dated 28 July 1993 to the Prime Minister conveyed to the ordinary, reasonable reader the imputation or an imputation not substantially different from:

“The Second Plaintiff conducts its business in such an unethical manner as to cause ethnic communities to be deprived of essential government information”?

YES/NO

Question 28 If you answered “Yes” to question 27, has the Second Plaintiff, Ethnic Communications Pty Ltd, also established that that imputation so conveyed would have been understood by the ordinary reasonable reader as being defamatory of it?

YES/NO

PUBLICATION

Question 29

Have the Plaintiffs proved that the letter to the Prime Minister was published to one or more of Colin Harvey, Theresa Hall or Carolyne Mitchell at Telecom either:
(a) by the Defendants;

YES/NO

or

(b) as a natural and probable consequence of the publication of the letter to the Prime Minister by the Defendants?

YES/NO

Question 30

Have the Plaintiffs proved that the letter to the Prime Minister was published to Telecom either:

(a) by the Defendants;

YES/NO

or

(b) as a natural and probable consequence of the publication of the letter to the Prime Minister by the Defendants?

YES/NO

CONTEXTUAL IMPUTATIONS

LETTER TO PRIME MINISTER

Question 31

31(a)

(i) Have the Defendants established that the letter to the Prime Minister would have conveyed to the ordinary reasonable reader the imputation:

“the Plaintiffs were lining their pockets with taxpayers’ money for doing very little”?

YES/NO

and

(ii) that that imputation was substantially true?

YES/NO

Only if you answered “Yes” to both 31(a)(i) and 31(a)(ii), go to 31(b).

31(b) Have the Defendants established that, by reason of the substantial truth of the imputation mentioned in 31(a), the publication of such of the defamatory imputations as you find to have been conveyed in the letter to the Prime Minister did not further injure the Plaintiffs reputation?

YES/NO

Only if you answered “ Yes” to question 31(b), you must find for the Defendants in respect of the defamatory imputations found by you to have been conveyed in the letter to the Prime Minister.

NOVOSTI

Question 32

32(a)

(i) Have the Defendants established that the article in Novosti would have conveyed to the ordinary reasonable reader the imputation:

“the Plaintiffs were taking money from the taxpayers in a “rort” and giving little in return”?

YES/NO

and

(ii) that that imputation was substantially true?

YES/NO

Only if you answered “Yes” to both 32(a)(i) and 32(a)(ii), go to 32(b).

32(b) Have the Defendants established that, by reason of the substantial truth of the imputation mentioned in 32(a), the publication of such of the defamatory imputations as you find to have been conveyed in the article in Novosti did not further injure the Plaintiffs’ reputation?

YES/NO

Only if you answered “ Yes” to question 32(b), you must find for the Defendants in respect of the defamatory imputations found by you to have been conveyed in the article in Novosti .

COMMENT

LETTER TO PRIME MINISTER

Question 33 If you answered Yes to questions 9 and 10 in respect of the following imputation:

“The First Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”

have the Defendants established:

(a)

that the imputation would have been understood by the ordinary reasonable reader as an expression of opinion and not a statement of fact?

YES/NO

AND

(b)(i)	(b)(ii)
that the opinion was based upon proper material for comment? YES/NO	OR	that the material upon which the opinion was based was to some extent proper material for comment? YES/NO and that the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment? YES/NO YES/NO

If Yes to 33(a) and either 33(b)(i) or 33 (b)(ii), go to Question 33(c).

(c) Have the Plaintiffs established that, at the time the letter to the Prime Minister was published, the Defendants did not hold the opinion that

“The First Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”.

YES/NO

If No to 33(c), you must find for the Defendants in respect of the imputation set out in this question.

Question 34 If you answered Yes to questions 11 and 12 in respect of the following imputation:

“The Second Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”

have the Defendants established:

(a)

that the imputation would have been understood by the ordinary reasonable reader as an expression of opinion and not a statement of fact?

YES/NO

AND

(b)(i)	(b)(ii)
that the opinion was based upon proper material for comment? YES/NO	OR	that the material upon which the opinion was based was to some extent proper material for comment? YES/NO and that the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment? YES/NO YES/NO

If Yes to 34(a) and either 34 (b)(i) or 34 (b)(ii), go to Question 34(c).

(c) Have the Plaintiffs established that, at the time the letter to the Prime Minister was published, the Defendants did not hold the opinion that

“The Second Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”

YES/NO

If No to 34(c), you must find for the Defendants in respect of the imputation set out in this question.

Question 35 If you answered Yes to questions 13 and 14 in respect of the following imputation:

“In conducting the business of Ethnic Communications Pty Ltd, the First Plaintiff employs bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about his unethical and wasteful conduct”

have the Defendants established:

(a)

that the imputation would have been understood by the ordinary reasonable reader as an expression of opinion and not a statement of fact?

YES/NO

AND

(b)(i)	(b)(ii)
that the opinion was based upon proper material for comment? YES/NO	OR	that the material upon which the opinion was based was to some extent proper material for comment? YES/NO and that the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment? YES/NO YES/NO

If Yes to 35(a) and either 35 (b)(i) or 35 (b)(ii), go to Question 35(c).

(c) Have the Plaintiffs established that, at the time the letter to the Prime Minister was published, the Defendants did not hold the opinion that

“In conducting the business of Ethnic Communications Pty Ltd, the First Plaintiff employs bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about his unethical and wasteful conduct”

YES/NO

If No to 35(c), you must find for the Defendants in respect of the imputation set out in this question.

Question 36 If you answered Yes to questions 15 and 16 in respect of the following imputation:

“In conducting its business, the Second Plaintiff employs bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about its unethical and wasteful conduct”

have the Defendants established:

(a)

that the imputation would have been understood by the ordinary reasonable reader as an expression of opinion and not a statement of fact?

YES/NO

AND

(b)(i)	(b)(ii)
that the opinion was based upon proper material for comment? YES/NO	OR	that the material upon which the opinion was based was to some extent proper material for comment? YES/NO and that the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment? YES/NO YES/NO

If Yes to 36(a) and either 36 (b)(i) or 36 (b)(ii), go to Question 36(c).

(c) Have the Plaintiffs established that, at the time the letter to the Prime Minister was published, the Defendants did not hold the opinion that

“In conducting its business, the Second Plaintiff employs bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about its unethical and wasteful conduct”

YES/NO

If No to 36(c), you must find for the Defendants in respect of the imputation set out in this question.

NOVOSTI

Question 37 If you answered Yes to questions 25 and 26 in respect of the following imputation:

“The First Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”

have the Defendants established:

(a)

that the imputation would have been understood by the ordinary reasonable reader as an expression of opinion and not a statement of fact?

YES/NO

AND

(b)(i)	(b)(ii)
that the opinion was based upon proper material for comment? YES/NO	OR	that the material upon which the opinion was based was to some extent proper material for comment? YES/NO and that the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment? YES/NO YES/NO

If Yes to 37(a) and either 37 (b)(i) or 37 (b)(ii), go to Question 37(c).

(c) Have the Plaintiffs established that, at the time the article in Novosti was published, the Defendants did not hold the opinion that

“The First Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”

YES/NO

If No to 37(c), you must find for the Defendants in respect of the imputation set out in this question.

Question 38 If you answered Yes to questions 27 and 28 in respect of the following imputation:

“The Second Plaintiff conducts its business in such an unethical manner as to cause ethnic communities to be deprived of essential government information”

have the Defendants established:

(a)

that the imputation would have been understood by the ordinary reasonable reader as an expression of opinion and not a statement of fact?

YES/NO

AND

(b)(i)	(b)(ii)
that the opinion was based upon proper material for comment? YES/NO	OR	that the material upon which the opinion was based was to some extent proper material for comment? YES/NO and that the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment? YES/NO YES/NO

If Yes to 38(a) and either 38 (b)(i) or 38 (b)(ii), go to Question 38(c).

(c) Have the Plaintiffs established that, at the time the article in Novosti was published, the Defendants did not hold the opinion that

“The Second Plaintiff conducts its business in such an unethical manner as to cause ethnic communities to be deprived of essential government information”

YES/NO

If No to 38(c), you must find for the Defendants in respect of the imputation set out in this question.

JUSTIFICATION

LETTER TO PRIME MINISTER

Question 39 If you answered Yes to questions 9 and 10 in respect of the following imputation:

“The First Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”
have the Defendants established that this imputation was substantially true?

YES/NO

If Yes , you must find for the Defendants in respect of this imputation.

Question 40 If you answered Yes to questions 11 and 12 in respect of the following imputation:

“The Second Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”
have the Defendants established that this imputation was substantially true?

YES/NO

If Yes , you must find for the Defendants in respect of this imputation.

Question 41 If you answered Yes to questions 13 and 14 in respect of the following imputation:

“In conducting the business of Ethnic Communications Pty Ltd, the First Plaintiff employs bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about his unethical and wasteful conduct”
have the Defendants established that this imputation was substantially true?

YES/NO

If Yes , you must find for the Defendants in respect of this imputation.

Question 42 If you answered Yes to questions 15 and 16 in respect of the following imputation:

“In conducting its business, the Second Plaintiff employs bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about its unethical and wasteful conduct”
have the Defendants established that this imputation was substantially true?

YES/NO

If Yes , you must find for the Defendants in respect of this imputation.

NOVOSTI

Question 43 If you answered Yes to questions 25 and 26 in respect of the following imputation:

“The First Plaintiff conducts the business of Ethnic Communications Pty Ltd in such an unethical manner as to cause ethnic communities to be deprived of essential government information”
have the Defendants established that this imputation was substantially true?

YES/NO

If Yes , you must find for the Defendants in respect of this imputation.

Question 44 If you answered Yes to questions 27 and 28 in respect of the following imputation:

“The Second Plaintiff conducts its business in such an unethical manner as to cause ethnic communities to be deprived of essential government information”
have the Defendants established that this imputation was substantially true?

YES/NO

If Yes , you must find for the Defendants in respect of this imputation.

QUALIFIED PRIVILEGE

LETTER TO PRIME MINISTER

Question 45

In respect of the letter published to the Prime Minister’s office, have the Plaintiffs established:

(a) That the Defendants did not believe in the truth of the matter they published?

YES/NO

or

(b) That the Defendants had an indirect motive in publishing the matter?

YES/NO

Question 46

In respect of the letter published to Telecom, have the Plaintiffs established:

(a) That the Defendants did not believe in the truth of the matter they published?

YES/NO

or

(b) That the Defendants had an indirect motive in publishing the matter?

YES/NO

NOVOSTI

Question 47

In respect of the article published in Novosti, have the Plaintiffs established:

(a) That the Defendants did not believe in the truth of the matter they published?

YES/NO

or

(b) That the Defendants had an indirect motive in publishing the matter?

YES/NO

DAMAGES

LETTER TO PRIME MINISTER

Question 48

What damages do you assess as having been suffered by the First Plaintiff for publication of the letter addressed to the Prime Minister?

$_________________

Question 49

What damages do you assess as having been suffered by the Second Plaintiff for publication of the letter addressed to the Prime Minister?

$_________________

NOVOSTI

Question 50

What damages do you assess as having been suffered by the First Plaintiff for publication of the article in Novosti?

$_________________

Question 51

What damages do you assess as having been suffered by the Second Plaintiff for publication of the article in Novosti?

$_________________

Last Modified: 09/25/2000