Australian Broadcasting Corporation v Comalco Ltd

Re: AUSTRALIAN BROADCASTING CORPORATION
And: COMALCO LIMITED
No. ACT G19 of 1985
Defamation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.
Neaves J.
Pincus J.

CATCHWORDS

Defamation - Television programme - Programme concerned with social effects of open-cut mining operations in close proximity to aboriginal reserve - Contrary statements and opinions expressed - Whether alleged defamatory imputations established - Qualified privilege - Whether public importance of subject matter of programme of itself sufficient to attract privilege - Malice - Material false to the knowledge of the publisher - Fair comment - Whether every factual statement in programme upon which comment based must be shown to be true - Damages - Whether trading corporation has a reputation other than a reputation in the way of its trade or business - Aggravated damages - Mitigation of damages.

Broadcasting and Television Act 1942 (Cth), s.59

HEARING

CANBERRA

#DATE 11:9:1986

Counsel for the appellant : Mr R.V. Gyles Q.C. and Mr T.K. Tobin Q.C.

Solicitors for the appellant : Colquhoun Murphy.

Counsel for the respondent : Mr S.P. Charles Q.C. and Mr R.C. Macaw.

Solicitors for the respondent : Macphillamy Cummins and Gibson.

ORDER

1. The appeal be allowed to the extent that the judgment of the Supreme Court of the Australian Capital Territory given on 22 February 1985 awarding Comalco Limited damages in the sum of $295,000 against against the Australian Broadcasting Corporation and ordering the Australian Broadcasting Corporation to pay the taxed costs of Comalco Limited of the proceedings in that Court be varied by substituting for the sum of $295,000 the sum of $100,000.

2. Each party bear its own costs of the appeal to this Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The appellant is a statutory corporation charged with the duty of providing broadcasting and television services to the Australian people. One of its functions is to provide information to the public on current affairs and other subjects of interest.

In connection with this function it has for more than twenty years prior to the event with which this proceeding is concerned conducted a television programme, called Four Corners, which deals with current affairs and presented weekly. The programme is well known and is generally well regarded by the viewing public.
About the beginning of 1979 it acquired from Granada, an English television company, a film made by Granada which dealt with the effect on the Aborigines at Weipa in Queensland of the conduct of open cut mining of bauxite. The film was published by the appellant as part of a Four Corners Programme telecast on 19 and 20 May 1979. It contained material critical of Comalco Limited, a company which had mining rights and which conducted open cut mining in the area.
Comalco Limited sued the appellant for libel claiming that the film contained much that was defamatory of it. It was said in the statement of claim that the published material contained ten defamatory imputations concerning its alleged conduct, namely,

1. That the plaintiff treats the Aborigines at Weipa shamefully.

2. That the plaintiff treats the Aborigines at Weipa like dogs.

3. That the plaintiff has brought the Aboriginal community of Weipa South into shame and disgrace.

4. That by its mining operations at Weipa, the plaintiff continues the deliberate killing of Aborigines commenced by early Australian settlers.

5. That the plaintiff, as did the early Australian settlers, deliberately kills Aborigines so as to obtain the benefit of their land.

6. That the plaintiff is without decency and integrity in its treatment of the Aboriginal community at Weipa.

7. That the plaintiff is responsible for segregated schooling of Aborigines at Weipa.

8. That the plaintiff is responsible for discrimination against the Aboriginal community at Weipa in relation to housing and health care.

9. That the plaintiff conducts an unequal conflict with the Aboriginal people at Weipa.

10. That the plaintiff does not attempt to restore the environment at Weipa affected by its mining operations.

The appellant denied that the imputations were made in the published material or were defamatory or were made of the respondent, or were made by the appellant. It pleaded also that certain parts of the material complained of were fair comment on matters of public interest and that the whole of it was privileged as a publication of a matter of public interest. The respondent pleaded by way of reply that any of the published material which was comment was not fair and that the defendant published such material maliciously and that if the published matter complained of constituted matters of public interest the defendant made such publication maliciously.

The learned Chief Justice, the trial Judge, found that except for the ninth imputation the imputations alleged were made in the published material and were defamatory. He held that the defence of privilege did not extend to the publication of defamatory material. He found further that, in any event, the defendant was actuated by malice. He found in respect of one item relied upon in respect of the eighth imputation the defence of fair comment was established. He found that in respect of such of the other material as was comment it was not fair and the defendant was actuated by malice. He gave judgment for the respondent for damages in a substantial sum and for costs.
The appellant appeals against the decision of the learned Chief Justice. The grounds of appeal relating to matters other than damages, are as follows:

"2. His Honour was in error in holding that the matter complained of was as a matter of law, capable of giving rise to the imputations numbered 1 to 8 and 10 in the Statement of Claim as amended.

3. His Honour was in error in holding that the matter complained of was capable of giving rise to and did give rise to the imputations contended for by the respondent numbered 1 to 8 and 10 in the Statement of Claim as amended.

4. His Honour was in error in holding that, as a matter of fact, the passages contended for by the appellant were not comments but were statements of fact.

5. His Honour was in error in holding that the matter complained of was not published on an occasion of qualified privilege.

6. His Honour was in error in holding that there was evidence of malice such as would defeat the defence of fair comment.

7. His Honour was in error in holding that, as a matter of law, there was evidence capable of establishing malice on the part of the appellant to defeat the defence of qualified privilege and that, as a matter of fact, the appellant was actuated by malice in the publication complained of.

8. His Honour was in error in refusing leave to the appellant to file a defence of justification at the commencement of proceedings.

...

12. His Honour was in error in finding that the passages alleged to be comment numbered 1,2,4,7,9-11 in the reasons for judgment were not based on facts truly stated."

At the outset Mr. Gyles QC for the appellant submitted that with respect to each of the imputations there were four questions to be asked, first, is the imputation made in the telecast?, second, is it made by the appellant?, third, is it made of the respondent?, and fourth is it defamatory of the respondent?
Mr. Gyles pointed out that it is a question of fact whether a particular imputation is made in particular published material, the relevant test being that expressed by Lord Selborne in Capital & Counties Bank v. Henty (1882) 7 App Cas 741 at 745 in the following words:

"The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense."

Mr. Gyles referred in confirmation to Nevill v. Fine Art Co. (1897) AC 68 and Mirror Newspapers Ltd. v. Harrison (1982) 149 CLR 293. And he used the observation of Mason J. in this last mentioned case at pp 300 and 301 setting out the distinction referred to in the last paragraph of that observation as being critical to this appeal. The observation in full was as follows:

"Sugerman ACJ was correct also in stating that a case of this kind is to be distinguished from the 'rumour' cases. The essence of those cases is that the defendant gives his imprimatur to the rumour; by passing it on he gives it credence, implying that it is well founded or that it may be so.

As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.

In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader."

If this passage is to be regarded as critical in this case it would be so because only some viewers, namely those in whom the telecast excited a belief or prejudice from which they proceeded to arrive at conclusions unfavourable to the respondent would do so, whereas that conclusion would not be drawn by ordinary reasonable viewers seeing and hearing the telecast and drawing on their own knowledge and experience of human affairs. And there is a question with respect to each imputation alleged by the respondent whether that imputation would be carried to the mind of the ordinary reasonable viewer drawing on his own knowledge and experience of human affairs only, rather than to the mind of a viewer in whom it excited what may be called personal emotional feelings of animosity or prejudice which themselves, to his mind, added defamatory meaning or sting to the words and images portrayed.
The following discussion as to the possible defamatory nature of the words and images portrayed does proceed with this question in mind. It is essential that in relation to the subject matter, which as is well known, excites emotional and racial reactions, and on occasion much heated controversy, the warning presented by this question has to be remembered. There are undoubtedly potential viewers who, excited perhaps by the mere public mention of the subject, would add to what was said and shown conclusions of their own, not fairly arising out of those words and images. Suffice it to say that in the following discussion a reference to what is defamatory is to material which carries defamatory imputation only to the ordinary reasonable viewer drawing on his own knowledge and experience of human affairs.
In this connection it is useful to remember that in respect of the various imputations alleged, it is the message conveyed to the ordinary reasonable viewer by the whole of the telecast which is critical. The statements carrying what is called a defamatory sting are to be considered in the light of those, if any, which would qualify that sting. As Lord Shaw said in Stubbs Ltd. v. Mazure (1920) AC 66 at p 80:

"... the results of a calumnious falsehood arise from the impression which it - all of it, including reservations, cautions and all the rest - makes upon the minds of the readers, an impression which may be quite apart from any artificial restriction which the author of the falsehood sought to impose. It is for those results that the author or promulgator of the libel is responsible."

But in relation to a publication of views on some controversial subject of people who take opposing sides, it is not a question of taking into account reservations or cautions. The unfortunate viewer is assaulted by assertion and contradiction in circumstances in which there is neither time nor opportunity to cross examine the contestants or to assess the merits of the conflicting assertions.

In Bik v. Mirror Newspapers (1979) 2 NSWLR 679 the defamatory matter was so qualified that it was held that in the light thereof the ordinary fair minded reader would conclude that there was no defamatory sting in the publication. In Savige v. News Limited & Ors (1932) SASR 240 defamatory imputations were regarded as subsisting notwithstanding denials coming from an authoritative source. The comments of Angas Parsons J. at pp.243 and 244 illustrate the problem and how it may be dealt with. He said:

"The argument put forward on behalf of the defendants which I have endeavoured to summarize emphatically, is no doubt strong, but on the question of libel or no libel, it is in my judgment, not sound, for a reasonable reader would understand that the paragraph contained two conflicting assertions, one by Essad Bey, and the other by Major-Gen. Dunsterville. The reading public would believe either, according to its selection. The refutation is not of something which has been published in what is sometimes referred to as 'the gutter press', which, there appearing, might count for little, but the charge is alleged to be contained in a book to which some importance has been attached in that it has been translated from the original German language in which it was written into English. Moreover, the author is not some anonymous writer, or a person notoriously of no character or no standing, but it is a Bey, and would from bearing that title be known as an important person. ... however great the standing and authority of Major-Gen. Dunsterville may be, certainly not beyond what is stated in the notice, and it is not unreasonable to hold that some readers would prefer the statement of Essad Bey to the denial of the alleged commanding officer. These readers might reason intelligently that this is not an irresponsible charge by an insignificant person, but is one made by a man of some distinction who, it might be thought, is not likely to have concocted what he is alleged to have written, but is one who writes with such knowledge that he not only graphically describes an incident, but also particularizes three Australian officers by name as participants in it, and knows their rank and the battalions in the Australian forces from which they had been drawn for service. There is, the reader might think, such an appearance of intimate knowledge in the paragraph that though the denial is emphatic and circumstantial, the reader might believe that the 'son of a wealthy Baku oil magnate' would not be likely to expose himself to actions for libel by publishing false charges against named officers whose alleged marriages to Persian girls were only three out of what he said were 'numerous marriages'."

Where, as in this case the viewer is invited to treat seriously the contributions of all contestants, it is inevitable that some ordinary reasonable viewers reacting according to their knowledge and experience of human affairs, will be induced to accept the asertions of one party and to discount those of the other. And in this telecast the problem is presented in vivid form. Thus, one of the participants in the broadcast, Mr. Wolomby, asserts that the respondent's bulldozers have destroyed the land, the trees and the animals and that no one will bring the trees back. Mrs. Hall, in effect, asserts the same. Mr. Stewart asserts that the trees are being put back to the satisfaction of the people of Weipa South. Mrs. Hall and Mr. Penrith assert that there is segregation in the schools. Mr. Stewart denies this. Mr. Miller asserts that the standard of housing at Weipa South is so low that three feet of water comes into the houses. Mr. Stewart denies this.
It is Mr. Gyles' submission that the ordinary reasonable man in contemplation, when the question is libel or no libel, will refrain from drawing any conclusion save that there is a question or suspicion that the respondent has acted in a reprehensible way in relation to the Aborigines of Weipa. And if that is all then the imputations alleged, which are of guilt, but not of suspicion, are not sustained. The matters discussed in Mirror Newspapers Ltd. v. Harrison (supra) are in point. But the better view would seem to be that the knowledge and experience of human affairs of persons in the ranks of ordinary reasonable viewers will vary infinitely, and, when invited, impliedly, by the telecast to treat all of it seriously, some will believe the harsh things said against the respondent and some will not. Some, influenced perhaps by the images of large bulldozers arrayed on treeless brown soil and the sad lament of Mr. Wolomby and Mrs. Hall, will believe the land is destroyed and unrehabilitated. Some will regard the credibility of the Aboriginal speakers as biased and self interested. And some, on the other hand will regard Mr. Stewart as bound to support his company and will discount his testimony accordingly. But with respect to each of the imputations it is impossible to say that some ordinary reasonable viewers calling upon their knowledge and experience of human affairs would not accept the imputations made against the respondent.

So far as it is true that some will accept the defamatory imputations the libel is proved. Of course when one comes to damages the circumstance that the defamatory assertions were denied and to some persons, no doubt, convincingly, is of considerable importance.
Mr. Gyles said that the publication of the telecast by the appellant in this case is to be distinguished from statements made by way of publication of rumour. Thus the party who states what is rumoured and is defamatory must, to support a plea of justification, prove the truth of what is said to be rumoured, because he has given his authority thereto. But where, as in this case, the appellant did not, give its authority to any defamatory statement made by any person or image portrayed in the telecast, and was not understood by the viewers so to do, the situation is different. It was the contention of Mr. Gyles that, where a defamatory statement is a republication of what another person has said, it is not a necessary consequence that the party republishing adopts the defamatory sting. The method of republication may disassociate the publisher from the sting. In that case the republisher is not the publisher of defamatory matter. As Mr. Gyles said, the manner of republication may be such that the viewer understands that the republisher, in this case the appellant, is saying nothing at all. It will be seen merely as the provider of a forum, a vehicle by which others put forward their views. It was described as his simple submission, that that does not involve any adoption by the appellant of those views.
It was said that it was a question "of high public policy and of high interest to the common law of defamation" to know how the law handles the sort of programme in question in this case. If the provider of the mechanism for a telecast is always responsible for what is said by speakers in the programme then there must be censorship. In that case there will be lost to the public that open discussion which the benefits of qualified privilege are intended to support.
Mr. Gyles sought assistance from the observations of Griffith CJ in Ronald v. Harper (1910) 11 CLR 63 at p 77 that:

"It is said that when a person repeats a slander he adopts it as his own. That is a very good general rule, but I decline to adopt it as a rule of invariable application. Words injurious of another may be used under such circumstances as to show that the person who has repeated them gives them his own authority. It is entirely a matter of fact..."

But these observations have not been regarded as supporting the kind of submission as that made by Mr. Gyles. The observations of the Full Court of New South Wales in Wake v. John Fairfax & Sons Limited (1973) 1 NSWLR 43 at pp 49 and 50 are in point, namely,

"Another ground of appeal relates to the eighth count. Part of the matter complained of in that count was what purported to be a report of a statement by Carr including the following words: 'Details of how bookmakers Wake and Field knew Amerigo Lady was "dead" will come out either in their appeals to the Greyhound Control Board or in possible later court action.' The jury were instructed that this was capable of conveying the defamatory imputation that 'the plaintiff knew that Amerigo Lady was "doped" and had taken dishonest advantage of that knowledge.' The argument for the appellant is that this publication is not equivalent to passing on a rumour or embracing or adding weight to a defamatory utterance by a third party. It was, so the argument ran, merely reporting what a steward had said. The main, if not the sole support for this argument was Ronald v. Harper (1910) 11 CLR 63; and in particular a passage in the judgment of Griffith CJ (1910) 11 CLR 63 at p 77: 'It is said that when a person repeats a slander he adopts it as his own. That is a very good general rule, but I decline to adopt it as a rule of invariable application. Words injurious to another may be used under such circumstances as to show that the person who has repeated them gives them his own authority. It is entirely a matter of fact, and I do not think that, in a case such as this, the jury, in finding that the defendant used these words, intended to find that he meant to re-affirm the charge.'

The Chief Justice cannot be understood to be asserting in the passage quoted that the publisher of defamatory hearsay is in some special position if he does not adopt the imputation or re-affirm it. He was not purporting exhaustively to state the law on this topic.

There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted. The purpose of the republication will also have a significant bearing. There can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts it or re-affirms it. Principle and authority both lead in a different direction. Lord Devlin said in Lewis v. Daily Telegraph Ltd. (1964) AC 234, at p 284: 'For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it.'

Bell v. Byrne (1811) 13 East 554; 104 ER 486 is authority for the proposition that if one asserts defamatory matter as from himself or says that it was asserted or written by another, it is equally the subject of an action.

When a defamatory publication purports to repeat or report the defamatory statement of another it is an essentially different libel from one where the same imputation is conveyed directly. It may require to be charged or defended differently, but it is nonetheless libel.

In 'Truth' (NZ) Ltd. v. Holloway (1960) 1 WLR 997 which was an appeal to the Privy Council from the Court of Appeal of New Zealand, Lord Denning, speaking for their Lordships, said at p.1002: 'Their Lordships see nothing wrong in this direction. It is nothing more nor less than a statement of settled law put cogently to the jury. Gatley opens his chapter on Republication and Repetition with the quotation: 'Every republication of a libel is a new libel, and each publisher is answerable for his act to the same extent as if the calumny originated with him.'' Gatley on Libel and Slander 6th Ed. (1967) now adds a note as to Lord Denning's apparent approval."

There is, however, in any event, a difficulty in accepting the submission that, in relation to the telecast of 19 and 20 May 1979, the appellant was in any sense the mere provider of electronic equipment to persons desiring to put forward points of view on a public question. This telecast was made on the initiative of the appellant as part of the activity of "Four Corners" as an entity whose function it was to provide entertaining and high class material including information on public questions. This activity involved Four Corners using its equipment, on occasion, as a vehicle which enabled persons to telecast their views. But this programme was and was understood to be a Four Corners programme in which it purported to inform viewers as to what was said and shown in the Granada film. It was presented under the general control and direction of Four Corners, the content thereof being its choice. The telecast the subject of this case was peculiarly that of Four Corners. The film which was shown was one which Four Corners had purchased and made its own property. It did this for the express purpose of itself presenting the words and images therein as a matter of interest to the Australian public. Four Corners was proud of its initiative in obtaining the film. It realised that portions of it would shock viewers and in that sense was good television. It was part of Four Corners modus vivendi to present itself as an energetic, progressive and efficient purveyor of entertaining and well informed programmes. It had its own reputation to think of and develop. And by introducing comments of its own it set up what may be called the atmosphere, namely an expectation of disclosures of hardships suffered by the Aborigines arising out of mining operations in Queensland in relation to which the respondent was named as a mining company having a relationship of potential benefactor towards the local Aborigines. Four Corners introduced the programme in a trailer showing an elderly Aboriginal woman saying:

"Why can't they give us back our land? If not, why can't they stop the mining, or give compensation to the people, where we could go back to our tribal lands."

This was described by the compere as:

"A moving response to one impact of mining in Australia, seen in the recent controversial British current affairs report."

In the opening of the programme itself the compere said:

"Everyone knows black Australians have had a bad deal in their own land -- illustrations abound, most prominently in country town fringe dwelling, where the scandal of black infant mortality, unemployment levels and rampant sickness confronts us all.

But Australia's heightened conscience about Aborigines is a product of the 60s and 70s. When the national focus is on uranium in 1979 as it were, then recent but earlier arrangements can be overlooked and often forgotten.

For example, Comalco in 1957 signed a mining agreement with the Queensland State Government, which as well offered Aborigines a good deal -- it was a lease to mine bauxite at Weipa. Not only an exciting new mineral development but a bonus for Aborigines on a remote reserve -- they would be given work, financial assistance and the prospect of a new life in a new community.

This year that community was examined by a British current affairs team -- an outsider's view of the way we look overseas.

The result was shown to more than 20 million viewers in the United Kingdom. It coincided with an activist campaign mounted by Aborigines to bring their case to international notice in Europe and ultimately to the United Nations.

The two combine to bring alive once again, and into critical attention abroad, the vexed issues betwen white Australians and black Australians."

When Four Corners decided to replay the Granada Film it knew what was in it. Clearly, it knew that parts thereof were critical of the respondent's conduct in relation to the Aborigines and also defamatory. And so far as statements and images were defamatory it was the decision of Four Corners that those statements would be made and that the defamatory sting therein, if there were such sting, should take effect, albeit, that the sting would be understood as not being put forward as representing the views, of Four Corners. Four Corners were aware of every word and image that was to be presented in the telecast. It edited the material to avoid offence to the Premier of Queensland.
Realising that the Granada film contained much material critical of the respondent it designed a debate at which representatives of the Aboriginal people and the local manager of the respondent would have an opportunity to contribute. It was the decision of the appellant that the words and images of the Granada film and the material in the debate should be telecast. It did not make its facilities available to any party. It used its facilities for its own purposes which were to portray matters of public interest and to perform its function in an entertaining way so that the reputation of Four Corners as part of the appellant would be maintained and enhanced and the public would be informed. In these circumstances it is quite unreal to suggest that Four Corners in presenting the programme in question was merely providing the vehicle for persons desiring to discuss a current affair publicly to do so. The method of presentation would not have conveyed that notion to viewers.
It is a consequence of this assessment of what it was that Four Corners was engaged in, in presenting the programme, that in respect of each of the imputations made in the programme the answer to Mr. Gyles' second question must be "Yes".
But that does not mean that the statements of speakers in the programme would be understood as being put forward by Four Corners as statements of fact made by or of opinion held by it. It would be understood by viewers, certainly in general, that Four Corners was not expressing any views of its own on the matters dealt with in the programme. But it was impossible for a person in the position of Four Corners to present and publish matter spoken by strangers which was defamatory of other persons, wash its hands of the responsibility for what was shown and depicted, and take up the attitude that it had no connection with the defamatory sting, if any, in the statements and images in the telecast.
At the same time, so far as the images of the locality and activities thereat were presented in the programme, viewers would understand that Four Corners was presenting them as images actually observed through the cameras of Granada when it made the film, and as representing features which the viewer could accept as authentic. Subject thereto, so far as the images contributed to the making of any of the imputations, the situation is the same with them as with the statements of fact and comment made by speakers. They are images which Four Corners chose to present and which it did present as statements attributed to another, namely Granada, as to observed features.
The circumstance that viewers would understand that, in general at least, Four Corners was not expressing any views of its own as to the propriety or otherwise of the conduct of the respondent raises questions for consideration in relation to the defences of fair comment and qualified privilege, but does not throw doubt on the proposition that such defamatory matter as was contained in the telecast was published by Four Corners and thus by the appellant.

The Imputations
As to the first imputation, that the respondent treats the Aborigines at Weipa shamefully, the conclusion of the learned Chief Justice that the imputation was made in the telecast, that it was made of the respondent by the appellant and that it was defamatory, was in my opinion correct. The other imputations found to have been made of the respondent by the appellant support the overall imputation that the telecast as a whole defames the respondent by saying in various ways that the respondent treats the Aborigines at Weipa shamefully.
This imputation is but a reflection of those other more specific imputations. In addition the Granada film is constructed from first to last to suggest that the respondent and its parent companies are exploiting what was an Aboriginal reserve, making large profits, neglecting the housing and health of the Aborigines, denying them compensation, destroying their hunting and recreational lands, discriminating against them in living standards and ignoring the social evils caused by drink for which they are ultimately responsible.
As to the imputation concerning the treatment of the Aborigines like dogs, the second imputation, it is conceded by the appellant that these words appear in the programme and were spoken of the respondent. In the light of the foregoing the answer must be that the words were published by the appellant. The only question therefore is whether the imputation alleged, does, in the light of the programme as a whole, arise.
It is the appellant's contention that, taking the telecast as a whole, the imputation that the respondent treated the Aborigines like dogs just did not arise therefrom. It is put that the critical question is what impression would be made in the mind of the ordinary reasonable viewer of the telecast upon viewing and hearing the whole of the programme. The submission is that there is so much said of the benefits bestowed upon the Aboriginal people of the area that a viewer assessing the programme as a whole, just would not draw the conclusion that the message of the telecast was that the respondent treated the Aborigines like dogs. Thus, it was pointed out in the programme that the respondent had contributed much money to the Aboriginal Assistance Society and indeed had set it up and that it had contributed to various facilities at Weipa South. But in submitting an argument of this kind it is important to have regard to the nature of the publication. In the course of a monograph canvassing various views of the conduct of persons it may be natural for the reader or viewer to form a view of what, in the end, the publication is saying about the conduct in question, treating specific statements as subject to qualification. But where what is submitted are the statements of various persons as to alleged conduct of others and the statements are in the form of accusation and refutation thereof, and the contending statements are all put forward as statements to be taken seriously, the viewer is left to make up his mind whether or not he accepts the accusation. The situation may well be that certain ordinary reasonable viewers will believe the accusation and others will not. And while in the mind of relevant viewers, the accusation stands as something not refuted or washed away, it remains, even after the telecast is considered as a whole, as a straight out statement defamatory of the party accused. And that is the situation in relation to the second imputation. Taking the telecast as a whole, some reasonable viewers might have good reason to and believe that imputation. Thus Mrs. Hall states that they are treated like dogs. The viewer is told and shown that the Aborigines live in poor standard houses and are in a cramped area and that there is drinking which is said to have been introduced by the respondent. They are told other facts suggestive of the Aborigines being disadvantaged by the respondent's mining operations and conduct. But there is no refutation of the fact that the Aborigines lived in poor housing, cramped areas and that the respondent introduced drinking. Accordingly, the statement that the Aborigines are treated like dogs has a foundation which is cerainly not washed away by the rest of the telecast.
It is, I think, impossible by any bane and antidote approach to eliminate from the telecast the defamatory imputation that the respondent treated the Aborigines like dogs.
It is another question however whether the statement is to be regarded as one of fact or comment. The learned Chief Justice considered it to be comment. The respondent contends to the contrary. It was necessary for it to show at least that the decision of the Chief Justice was manifestly wrong. But the relevant passage appears after a recital of conduct of the respondent criticised by Mrs. Hall and after the reporter in the film said to her, in effect, that she had no high opinion of the respondent's conduct. She confirmed this with emphasis, giving her opinion that the respondent's conduct was to treat the Aborigines like dogs.
As to the third imputation, namely that the respondent had brought the Aboriginal community into shame and disgrace, the questions are whether the imputation which, if made was clearly defamatory, was made at all, or of the respondent, or made by the appellant. As indicated above, this last question must be answered in the affirmative.

The third imputation was that arising from the following passage, namely:

"... and, again what they brought to the community was shame and disgrace to the people, brought in drinking -- that's the worstest thing, after destroying our land, taking the land away from us, which now today most of the younger ones are suffering; also not only the younger ones, the married people whose homes are broken, children deserted, deaths and accidents."

One question is whether the imputation is made of the respondent. The learned Chief Justice decided that it was and I am unable to say that he was in error in this. The appellant suggests that the imputation is made of the white people generally or the Government of Queensland in sanctioning the whole enterprise and the bringing in of drinking. The learned Chief Justice took the view that the imputation was made of the respondent. The words were spoken by Mrs. Hall in the following passage:

"The white people are in the best places, they've got good housing, they've got good parks, lawns, air conditioned homes. Which for blacks, we are in one little block. All they did was gave us these few houses what I call them Box Houses, and that's the only thing that they have given us. Not all the men are employed, there are about twelve or twenty. Young people who leave school and who have passed their exams, can ask for a job - they can't get a job.

And of course, there is still discrimination between the blacks and the whites in the school. The blacks are in one class, and the whites are in one class. And again, they brought to the community was shame and disgrace to the people - brought in drinking, that's the worstest thing after destroying our land, taken the land away from us which now today, most of the younger ones are suffering. Also not only the younger ones, the married people whose homes are broken, children deserted, deaths and accidents. These are the problems we are facing. How could we stop them?"

When she refers to "they" in this monologue Mrs. Hall would be regarded as casting a wide net extending over all those reasonably indicated in the telecast. Those so indicated may be identified from the terms of the monologue and the rest of the telecast.

The opening comment of the compere in the trailer referred to above are material to the question. The Granada report opens with the following introduction:

" This is the Aurukun reserve on the remote northern-most tip of Queensland -- these are some of the most under-privileged people in the world, yet they live in one of the most richest countries. They're Aborigines, the first Australians.

Reserves like this are the last remaining places where they still live on their own land. Now that last foothold is under threat.

Fifty miles away, here at Weipa, is the world's biggest bauxite mine. Strip-mining on a massive scale produces the vital raw material for one in five tons of the western world's aluminium.

Ten thousand miles away in London, the Weipa mines profit have helped create the world's international mining group, whose discreet headquarters are in this quiet square. The company is Rio Tinto-Zinc, which doesn't draw attention to its spectacular success.

The Aborigines, who used to live at Weipa, are dispossessed - mining has meant broken promises, social problems and destruction of their way of life.

Now such mining is seen as a continuation of the shameful treatment Aborigines have suffered since the white settlers first arrived."

Mrs. Hall's comments are made after the "reporter" has drawn attention to various circumstances. They are that strip mining is being conducted at Weipa, the profits from which have helped to create Rio Tinto-Zinc, the world's international mining group "which doesn't draw attention to its spectacular success". Rio Tinto-Zinc's major Australian subsidiary is "in the forefront of the struggle between mining companies and the Aborigines", that struggle is unequal because it is between Australia's most influential business and the people on the bottom rung of its society, that Rio Tinto-Zinc's profits were 270 million dollars in 1978 nearly half of which came from Rio Tinto-Zinc's 73% owned Australian subsidiary CRA which owns 45% of the respondent. Also that the respondent leased 2400 acres of a former Aboriginal reserve from the Queensland Government in 1957 and conducts large open strip mining thereon. Also that the Weipa mining agreement bound together the respondent and the Queensland Government for more than twenty years, the respondent paying royalties to the Government but "Comalco didn't pay the Aborigines either royalties or compensation"

It was pointed out also by the reporter in the Granada film that the respondent built a town at Weipa North for 3000 people predominantly white who enjoy luxuries and facilities available elsewhere, that most of the Aborigines "dispossessed" from their former reserve, live at Weipa South which is what remains of the reserve and is "run by Comalco's landlords, the Queensland Government".
In this setting Mrs. Hall speaks of the destruction of the Weipa bush, the beauty of which is now gone, the area being "ripped out" leaving big holes, the place being red and dusty. Mrs. Hall refers to the white people in Weipa North with good housing and other conditions and says, "all they did was give us these few houses". She adds that the young people cannot get employment and that there is discrimination in the schools on racial grounds between blacks and whites.
It is against this background that Mrs. Hall spoke what I have called her monologue. As to who "they" are the ordinary reader would be likely to note that "they" are the people who have destroyed the land and failed to employ the Aborigines and of whom Mrs. Hall spoke when in answer to the reporter's question "So you wouldn't say that in fact Aborigines are treated the same way as Europeans as far as Weipa and Comalco are concerned?" and she replied, "No - we are treated like dogs I would say".
Having regard to the spotlight thrown on to the respondent by the reporter, especially his emphasis on the profitability of Rio Tinto-Zinc, CRA and the respondent, the identification of Comalco as the actual strip miner at Weipa and the builder of Weipa North, the references to the potential employer who has failed to employ, are plainly to the respondent. The ordinary reasonable viewer could hardly fail to understand that Mrs. Hall was blaming the respondent primarily and perhaps also the Queensland Government for all the various disabilities referred to in the monologue as being imposed upon the Aborigines at Weipa South.
Accordingly, the conclusion of the learned Chief Justice that the words complained of were used of the respondent is not shown to be erroneous.
But it is also a question whether the imputation is made at all in the programme. It is pertinent to ask whether Mrs. Hall should be understood to be saying more than that the respondent brought in drinking and as a consequence shame and disgrace followed. To say of the respondent that it brought in drinking, and shame and disgrace resulted, is very different from saying, simpliciter that the respondent brought shame and disgrace to the people or even did so by bringing in drinking with overtones that it knew or ought to have known that Aboriginal shame and disgrace would follow. Taking Mrs. Hall's statement as a whole there is the categorical statement that the respondent brought shame and disgrace to the people, but it is immediately qualified by Mrs. Hall giving particulars of the sense in which she used that statement. It is a genuine case of bane and antidote. To my mind the message she conveyed was that the respondent brought in drinking and shame and disgrace to the people was a consequence of that. There is no suggestion in what Mrs. Hall said that the respondent was responsible for the shame and disgrace resulting from bringing in drinking on the ground that it knew or ought to have known that if it brought in drinking shame and disgrace would follow. The imputation which does arise, namely that the respondent brought in drinking, is not the imputation which is pleaded. If it had been pleaded it would not have been defamatory. In modern conditions to provide drink and drinking facilities in any community, although deplored by many people, cannot be regarded as deserving condemnation. Accordingly imputation number three is not shown to have been made in the telecast.
The fourth and fifth imputations may be considered together.
The appellant's primary submission in respect of both these alleged imputations is that they do not arise from the words and images said by the respondent to support them. Those words and images are:

(a) portion of the editorial comment by the compere of the programme as follows:

"For example, Comalco in 1957 signed a mining agreement with the Queensland State Government, which as well offered Aborigines a good deal --- it was a lease to mine bauxite at Weipa. Not only an exciting new mineral development but a bonus for Aborigines on a remote reserve --- they would be given work, financial assistance and the prospect of a new life in a new community."

(b) the statements of the reporter in the Granada film,

"Now such mining is seen as a continuation of the shameful treatment Aborigines have suffered since the white settlers first arrived. ... Rio Tinto-Zinc's major Australian subsidiary is in the forefront of the struggle between mining companies and the Aborigines. But the struggle is unequal -- Australia's most influential business interests in conflict with people on the bottom rung of its society."

(c) the observations of Mr. Mick Miller, namely,

"Nothing has changed from the days when the early settlers wanted the land for, for pasture, for the grazing of their sheep and cattle. In those days they, they went out and they killed Aboriginal people. They shot them down, they poisoned their water holes, they poisoned their food -- today it's done a little bit more subtly.

They're doing it by other means, by moving in with the bulldozers and flattening the lands of the Aboriginal people.

And when they destroy the land belonging to the Aboriginal people, they destroy the Aboriginal people themselves."

The learned Chief Justice found that the imputations numbered four and five were made in the programme, that they were made of the respondent and by the appellant. Of course they were defamatory.
Inevitably, the mining referred to is that of the respondent at Weipa. The real question is whether the words and images would convey to the ordinary viewer that it is being said that the respondent by engaging in that mining deliberately kills or has killed Aborigines or deliberately kills Aborigines so as to obtain the benefit of their land. And the critical question is whether the ordinary viewer would understand from the words and images that it was being said that the respondent engaged in killing which was deliberate.
The relevant passages state that the early white settlers treated the Aborigines shamefully and that the current mining is seen as a continuation of that shameful treatment. Mr. Miller explains that nothing has changed. I think at that stage he is to be taken as asserting that shameful treatment is continuing. He then goes on to explain that the early form of shameful treatment was for the settlers to shoot the Aborigines and poison their water holes and kill them to obtain the land for grazing. He goes on to say that today "it's" done more subtly and "it" is being done by other means. And whatever "it" is, is being done by the miners by other means. In other words there is no shooting or poisoning of wells but the objective is achieved "by moving in with the bulldozers and flattening the lands of the Aboriginal people". In the whole of the passage to that stage Mr. Miller has been referring to the methods by which the white men took the land, in the early days by killing, and in present days by bulldozing the land. In other words the respondent does not achieve his object by killing. The final passage spoken by Mr. Miller indicates that bulldozing destroys the land and that that destruction of land destroys the Aboriginal people themselves. Looked at fairly that last passage has the appearance of the giving by Mr. Miller of a piece of information to viewers, so that they would understand that destruction of the land of the Aboriginal people operates to destroy the people themselves. That result is stated to be a consequence of the destruction of the land. And undoubtedly Mr. Miller is saying that as a result of destruction of the land which is being engaged in by the respondent, if carried out to a sufficient degree Aboriginal people will be destroyed. But so to say is far from saying that the respondent deliberately kills or has killed, or intends or ever intended to kill Aborigines. That could possibly be imputed if words were used indicating that the respondent knew, when it engaged in the bulldozing, that the result of bulldozing would be to "destroy" the land in the sense referred to by Mr. Miller and that as a consequence of such destruction Aborigines would die. In the absence of words so indicating there is no element of deliberation in the alleged causation of Aboriginal deaths by the conduct of the respondent, even if what was done by it was to destroy the land, in the relevant sense. The imputation in both the fourth and fifth imputations is not that as a consequence of bulldozing of the land for the purpose of the mining there were deaths of Aborigines. It is that the respondent deliberately killed Aborigines. It is my view, therefore, that it was an error to hold that imputations four and five arose from the telecast.
There is another approach which to my mind is valid and leads to the same result. Viewers would know that, so far as the land could be said to be destroyed, it was destroyed in a special sense. The top layer of the vegetation of a substantial area, not being most of the reserve, had been removed. But it could recover, and in every real sense, the land itself remained in situ and as such was not physically destroyed. It remained living earth. To speak of the destruction of the land was to speak figuratively rather than literally. To speak in the same figurative sense about consequential destruction of the Aboriginal people was not to import the notion of physical death, but something short of that, such as spiritual decay.
The connection of the Aborigines with the land is inevitably a spiritual thing. But even to destroy the spirit of the people is not to kill them. To speak of destroying the people, by destroying their land is to refer to an assault on the spiritual bond between the land and the Aborigines. The fruitfulness of the land may have been lost but the land persists. The fruitfulness of Aboriginal existence may have been lost, but the life of the Aboriginal people persists.
Accordingly, I do not consider that it is possible to conclude, from the words and images relied upon, that the respondent deliberately killed any Aboriginal people.
As to the sixth imputation concerning the allegation of lack of integrity on the part of the respondent, the appellant contended that the words used would not be understood as words implying a reprehensible attitude or reprehensible conduct on the part of the respondent, but would be understood rather as creating only a suspicion or suggestion of attitude or conduct actually reprehensible. As guilt and not suspicion was pleaded as the imputation, only the lesser defamatory element was shown and was not pleaded. However, the learned Chief Justice concluded the words implied an actual lack of integrity and decency on the part of the respondent and I cannot see any reason for a challenge to that conclusion. The appellant also contended that the second question should have been answered in its favour. But as indicated above it is not possible to take the view that the imputation is not made by the appellant.
As to the seventh imputation, it is a real question whether it is said of the respondent that it is responsible for segregation. The appellant relies on the refutation by Mr. Stewart of the allegation that there is segregation in the debate. But Mr. Stewart knowing that the respondent was being blamed for the alleged segregation, dealt with the question as though the real point, so far as he was concerned, was not whether the respondent was responsible for it, if it existed, but whether in fact it did exist. And the questions put to him by the Four Corners interviewer, Mr. Ross, are in the same vein. It is quite apparent that Mr. Ross was aware that Mr. Stewart's role was to protect the respondent from allegations made against it. He describes the matter of education which has arisen in the telecast as a very important matter, namely, whether there is segregation in fact. There is then assertion and counter assertion between Mr. Penrith and Mr. Stewart as to the fact. Underneath is an assumption that somebody, allegedly the respondent, was to blame for segregation if it existed. There was no protest by Mr. Stewart that if there was segregation the respondent had nothing to do with it, it being a matter for the Education Department. If the respondent was not responsible for segregation, if it existed, a protest to that effect from Mr. Stewart would have been natural. The absence of such protest could not fail to have an influence on the understanding of the ordinary reasonable viewer. Mr. Stewart's attitude would tend to support the allegation made in the telecast by Mrs. Hall in direct terms, and Mr. Penrith by implication, and which was impliedly wrapped up in the attitude of Mr. Ross, that if there were segregation that was a matter for which the respondent had at least some responsibility.
If one looks at what was said by Mrs. Hall it is clear that she said that the respondent was responsible for segregation. The relevant passage is:

"The white people are in the best places, they've got good housing, they've got good parks, lawns, air conditioned homes. We blacks - we're in one little block. All they did was gave us these few houses what I call them Box Houses, and that's the only thing that they have given us. Not all the men are employed, there are about twelve or twenty. Young people who leave school and who have passed their exams, can ask for a job - they can't get a job.

And of course, there is still discrimination between the blacks and the whites in the school. The blacks are in one class, and the whites are in one class. And again, they brought to the community was shame and disgrace to the people - brought in drinking, that's the worstest thing after destroying our land, taken the land away from us which now today, most of the younger ones are suffering. Also not only the younger ones, the married people whose homes are broken, children deserted, deaths and accidents. These are the problems we are facing. How could we s them?"

In this speech of Mrs. Hall it is clear that every wrong alleged is attributed to the respondent. It is the respondent which has given just a few houses, who fails to employ Aborigines, who committed "the worstest thing" in bringing in drink, after destroying the land. Discrimination in classes is in a central part of the catalogue of conduct of the respondent detrimental to the Aborigines. It is apparent that Mr. Ross proceeded on the unspoken assumption from the material in the telecast that the allegation was that if there were segregation the respondent was responsible for it. I am unable to respond to the submission that the learned Chief Justice was in error in concluding that the imputation made in the telecast was that there was segregation and that the respondent was responsible for it.

Next, the appellant complained of the treatment by his Honour of the subject of the risk of financial harm. One striking aspect of the judgment is that although the general damages were large, the learned trial judge made no finding that "harm has occurred or will necessarily occur". His Honour appeared to be of the view that "the evidence is only of the risk of loss, and not of actual loss" (par.6.39).
It is true that the respondent called evidence of ways in which it could have been injured by the publication complained of. For example, it was said (a matter of which, indeed, judicial notice might have been taken) that a substantial mining company has to deal with governments, and they are likely not to treat it so favourably if they have a poor opinion of its record in restoring the environment.
In an elaborately presented case, there seems to have been not a sentence of evidence to prove that any real damage, slight or large, had been done. For example, no governmental official was called to say that he, momentarily or permanently, thought less of the respondent as to its care of the environment because Mrs. Hall took a poor view of its performance in that field. Perhaps the respondent did not want to trouble such officials by asking them whether they had seen the program and their reaction to it, but an inference equally open is that the respondent was well aware that no such official would inform himself on the matter by watching the television.
The absence of any evidence as to damages from a single person with the capacity to do the respondent harm did not oblige the learned trial judge to refrain from giving damages for the mere risk of financial harm, and the contention on behalf of the appellant to the contrary must be rejected. But his Honour should have given considerable weight to the absence of such evidence, where, on the respondent's own case, many relevant viewers could have been approached to give evidence; for example, it was pointed out that the general public buys the respondent's principal retail product, namely aluminium foil for domestic use.
It may be that the rather abstract way in which the case on damages was conducted was due to a view of the measure of damages being taken, on the respondent's side, akin to that favoured by Mahoney J.A. in Andrews' case (above) and adopted by his Honour. However that may be, once it is accepted that the respondent is entitled, by reason of its corporate status, only to proved financial loss, it would seem to follow that, as a measure of the mere risk of such loss, the general damages awarded are too high.
A further legal question raised on behalf of the appellant with respect to damages was an alleged misdirection by the learned trial judge with respect to the question of extra-territorial reputation. It is unnecessary to deal with that point in detail and enough to say that the legal conclusion arrived at by his Honour (par.6.38) seems plainly correct. It is relevant to observe, however, that in the result the quantum of damages awarded does not appear strongly to reflect the curiously limited scope of the allegations of publication on which the respondent relied - i.e. publication in two States only, as well as in the Australian Capital Territory. If the general damages awarded by his Honour for mere risk of loss are to be regarded as reasonable, then a much greater award would have been appropriate had the respondent relied upon the Australia-wide publication which in fact occurred.
The case is plainly one in which it is desirable to reassess the damages here rather than send the matter back for a new trial on that question. The impression created by the evidence is that the principal impact of the publication was, very understandably, on the feelings of the senior executives of the respondent. It seems, on the face of it, improbable that the rather rambling criticisms made by participants in the program did any great damage to the respondent's financial position, particularly when it is kept in mind that they were immediately rebutted on the same program by a convincing witness, Mr. Stewart. Although, for reasons I have tried to explain, I do not think the appellant's "debate" argument relieves it of liability, the powerful refutations of the attacks made on the respondent must have greatly lessened any harm done to it.
I agree that the proper course is to reduce the damages to $100,000 and with the orders as to costs mentioned in the reasons of Neaves J.

[1986] FCA 381

11 SEPTEMBER 1986