Bass v McDonald and TCN Channel Nine Pty Ltd (No.8)

[2001] NSWSC 1033

Reported Decision: [2001] NSWSC 1033
[2001] ACL Rep 145 NSW 57

New South Wales

Supreme Court

CITATION:	Bass v McDonald & TCN Channel Nine Pty Ltd (No.8) [2001] NSWSC 1033
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 16791/90
HEARING DATE(S):	17 - 19 October 2001 22 & 23 October 2001 25 & 26 October 2001 29 - 31 October 2001 1 & 2 November 2001 5 - 9 November 2001
JUDGMENT DATE:	21 November 2001
PARTIES :	Robin Bass Thomas McDonald TCN Channel Nine Pty Ltd
JUDGMENT OF:	Sperling J at 1

COUNSEL :	Mr T Molomby with Mr R Rasmussen for the Plaintiff Mr B McClintock SC with Mr M Richardson for the Second Defendant
SOLICITORS:	William Oates Lawyers for the Plaintiff Gilbert & Tobin Lawyers for the Second Defendant
CATCHWORDS:	Defamation - qualified privilege at common law and "Qualified Protection - Excuse" under Queensland and Tasmanian legislation - publication of riposte by a third party - whether defences made out
LEGISLATION CITED:	Defamation Act 1889 (Queensland), s16
CASES CITED:	Loveday v Sun Newspapers Ltd (1938) 59 CLR 503
DECISION:	See paragraphs 34 to 36 of the judgment.

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

Sperling J

Wednesday 21 November 2001

16791/90 Robin Bass v Thomas McDonald & TCN Channel Nine Pty Ltd Draft Judgment (No.8 – Qualified privilege at common law and statutory qualified protection, Queensland)

: Before final addresses, I had ruled that the reply of malice was not available in this case to the defence of qualified privilege at common law, and that the equivalent reply was not available to statutory qualified privilege. The issues remaining for determination were the defences of common law and statutory qualified privilege, truth (in its various forms, depending on place of publication), unlikelihood of harm (NSW only) and damages (if the claim survived the defences). The issues for the jury were truth in relation to that defence, unlikelihood of harm and damages. The issues for me were the defences of common law and statutory qualified privilege and the second limb of the defence of truth (which varied from one place in Australia to another).

2 Mr McClintock moved for judgment on the defences of common law and statutory qualified privilege. I heard argument concerning these defences (Transcript 447 – 487), but I reserved my decision and allowed the case to go to the jury on the issues which were for them to decide.

3 In relation to publication in NSW, where the defence of truth is pleaded separately to each imputation, the jury found that the first imputation (that the plaintiff was a shonky operator) was substantially true, but not so in relation to the second imputation (that the plaintiff could not be relied upon to pay money due to his workmen). They rejected the defence of unlikelihood of harm (which applied only in relation to NSW). They found that truth was established in relation to publication of the programme as a whole elsewhere in Australia. They assessed damages at $10,000.

4 The second limb of the defence of truth is public interest or qualified privilege in relation to publication in New South Wales; and public benefit in some other parts of Australia where publication occurred. The plaintiff, however, concedes public interest and public benefit where those elements arise. Accordingly, the jury’s findings as to truth determine that defence against the plaintiff in relation to the first imputation (for NSW) and in relation to the programme as a whole (for other parts of Australia).

5 The effect of the jury’s findings is that the plaintiff is entitled to damages as assessed by the jury, for the publication of the second imputation in NSW, subject to the defence of qualified privilege.

6 It remains then for me to decide whether the defence of qualified privilege at common law is made out. Although it is unnecessary to do so, I will also decide whether the defence of statutory qualified privilege is made out, as pleaded in relation to publication in Queensland and Tasmania. (I have ruled that there was no evidence of publication in Tasmania but the legislation of Queensland and Tasmania is identical.)

7 The “60 Minutes” programme went to air on 22 July 1990. On 16 July 1990, the plaintiff had given a recorded interview to the defendant in which he recounted a series of events which, if true, amounted to a course of malicious victimisation, directed against him by the BWIU or by certain officers of that union, culminating in a black ban which put him out of business altogether. The transcript of the interview is some 24 pages in length.

8 On 18 July 1990, Mr McDonald, state secretary of the union was interviewed. At that stage, the defendant had a good deal more evidence of alleged misconduct by the union. Mr McDonald’s interview was not limited to the allegations made by the plaintiff. It included a response to allegations made by a Mr Fields who also complained of alleged abuse of power by the union.

9 The programme, as compiled, consisted of several segments. These included a segment concerning the plaintiff and a segment concerning Mr Fields. The segment concerning the plaintiff was brief. The following is the transcript of that segment:

MUNRO “Employers like contractor Robin Bass accuse the union of victimisation”.
BASS “It was a personal vendetta as far as I was concerned against Robin Bass. Nobody else just Robin Bass”.
MUNRO “Bass says he hasn’t worked for 5 months and his house is now up for sale all because of a BWIU blackban”.
McDONALD “ He was a shonky operator who owed workers money and he got into a dispute with the Union for that particular reason ”.
MUNRO “At one stage Bass employed 185 men. Now he can’t even employ himself”.
“I’ve got a statutory declaration here from a senior BWIU official. He says the RW Bass affair was perhaps the greatest case of victimisation I have observed by any one union against any one contractor. Now that’s a very serious allegation. The man’s name is not there because he is in fear of his livelihood and life”.
McDONALD “Obviously I’m not sure if who this anonymous person is”.
MUNRO “I appreciate that”.
McDONALD “I’m not even sure whether its some person claiming to be an official of the union that’s not an official of the union. It’s a wild allegation”.
MUNRO “The allegation is this”.
SUPPOSED “I’m aware through my work as a
UNION BWIU official that officers of the
OFFICIAL BWIU met with executives from a major construction company and warned them that if they employed RW Bass it could lead to industrial problems”.
McDONALD “ We make no apologies to any employer that does not meet their legal obligations to our members ”.
MUNRO “So is the BWIU more interested in worker’s rights or just bashing the bosses…”
[Emphasis added.]

10 The defence of qualified privilege at common law, when based on riposte, is stated sufficiently in Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, 514 (per Latham CJ):

The result is that in my opinion, the learned trial judge and the Full Court were right in deciding this case upon the basis of the following statement taken from Gatley on Libel and Slander, 2nd ed. (1929) p293: “A person whose character or conduct has been attacked in the public press is entitled to appeal to the same tribunal in his defence and vindication, and if, in answering such attack, he makes relevant defamatory statements about the person who has attacked him, such statements are prima facie privileged”. This principle protects both the person attacked and the proprietor of the newspaper which publishes his reply to the attack.

And at 515 (per Starke J):

A man who attacks another in or through newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself. He has appealed to the public and provoked or invited a reply. A person attacked has both a right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply. Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion.

11 That case also decided, by a majority, that the defence runs notwithstanding publication of the riposte in the same publication as the attack.

12 Mr McClintock submitted that this was a straightforward case of the defendant publishing a riposte made on behalf of the union to an attack on it by the plaintiff.

13 Mr Molomby submitted that the defendant was not entitled to protection under the defence because –

(a) the defendant had itself created the occasion for which it claimed privilege; and

(b) the statements by Mr McDonald, selected by the defendant from his recorded interview, were not in response to the plaintiff’s attack.

14 As to the first of Mr Molomby’s points – point (a) above – a media company creates the occasion for which privilege is claimed whenever it publishes an attack by one third party on another, followed by or together with a riposte by the party attacked. The publication is an act of choice, irrespective of whether the publisher has obtained the material comprising the attack by passively receiving it or by actively obtaining it. The proposed distinction is that, if the publisher has sought out the attack rather than passively receiving the material, the publisher is, in a sense, the instigator; whereas, if the material simply arrives, the attacker is the instigator.

15 Whether that distinction makes a difference may depend on other circumstances. For example, at one extreme, if the company has secretly recorded the attack, that may be one thing. But where, as here, the attacker was an enthusiastic participant in the generation and publication of the attack, that is another.

16 In the present case, the plaintiff was sought out by the defendant, but it cannot be doubted that he then became an enthusiastic participant in the generation and publication of an attack on the union. This is shown by the following extracts from the plaintiff’s evidence. At Transcript 161:

Q. Did you have any particular purpose in mind in giving that interview to them?
A. Yes.
Q. What was that?
A. To let the people of Australia know what the building industry was about, to stand up and be counted, don't be frightened because you're dealing with the BWIU, and let people realise that there's people out there that want to hear these things and, as I said, stand up and be counted and don't be frightened to say what you want to. A lot of people won't say things, and I think it comes down to because they're frightened to and I understand that.
But I had nowhere to go. I needed to let people know that so much of what the industry was about. It was because there were certain people within the industry that got a little bit of power and it went to their head. You got to have the union. I believe in the union, but not to the extent where they were out to, to put me out of business. I was a family man that had a responsibility to look after my family.

And at Transcript 246:

Q. You wanted the widest possible publicity to the allegations about the BWIU that you made to Mr Munro, didn't you?
A. Yes.
. . . . .
Q. And it is true to say that you wanted the people of Australia to know about your allegations about the BWIU, didn't you?
A. Yes.

17 In these circumstances, the fact that the defendant was, in a sense, the instigator of the occasion for which privilege is claimed is a distinction without a difference. The plaintiff authorised the publication of his attack on the union. That he did so with enthusiasm puts that beyond doubt.

18 Mr Molomby argues that this is a special case, where the publisher has instigated the controversy by procuring both the attack and the riposte. That is also a distinction without a difference. It does not seem to me to be material – as Mr Molomby said it was – that, in such a case, the publisher is able to choose which of two willing participants to approach first. True, the publisher then chooses which of the two will be protected, but the initial attacker also makes the choice by assuming the role of the attacker. I see no need, in justice, to generate a new principle to cover such a case.

19 The authorities cited in argument in relation to this point were so remote from the present case on their facts as to be unhelpful.

20 As to Mr Molomby’s second point – point (b) above – the argument is that the attack by the plaintiff was not faithfully represented in the programme, and the statements by Mr McDonald which were incorporated in the programme were not made by him in response to the plaintiff’s attack on the union.

21 I have to disagree with the first limb of this argument. Brief though it was, what was said on air by the plaintiff and by Mr Munro concerning victimisation and the black ban, culminating in the plaintiff being put out of business, was an accurate summary of the alleged course of events recounted by the plaintiff in the interview recorded on 16 July 1990.

22 As to the second limb of Mr Molomby’s argument, it was submitted that there were, relevantly, two statements by Mr McDonald incorporated in the programme, neither of which, it was said, was uttered by Mr McDonald in response to the plaintiff’s attack on the union at the time when the utterances were made, that is, in the course of Mr McDonald’s interview. (They are emphasised in the extract from the programme reproduced earlier in this judgment.) The first utterance was –

He was a shonky operator who owed workers money and he got into a dispute with the Union for that particular reason.

23 The second utterance was –

We make no apologies to any employer that does not meet their legal obligations to our members.

24 The transcript of the interview with Mr McDonald conducted on 18 July 1990 – two days after the plaintiff’s interview – is some 31 pages long. It ranges over a number of matters including complaints against the union by a Mr Fields and by the plaintiff.

25 Discussion of Mr Fields’ allegations preceded discussion of the plaintiff’s allegations. Mr Fields had – through his company – supplied granite cladding to Concrete Constructions on a Sydney site. He asserted that the union had wrongfully procured the termination of his contract with Concrete Constructions. The interview was broken off to allow Mr McDonald to speak to another union official, Mr Ferguson. The interview then resumed:

Q. Mr McDonald, you’ve spoken to Mr Ferguson?
A. Yes, the investigations have revealed that this company has got a reputation throughout the industry of er setting up one company after another, going bankrupt, owing all sorts of people money and then starting all over again with a fresh business.
Q. Even though he was a bankrupt?
A. Yes, you see unfortunately you see the bankrupt er laws in this country seem to be fairly deficient and will allow an individual to set up a new company even though they still owe a lot of money from the last company that they er run.
Now in this case, investigations reveal that er he owed tens of thousands of dollars in wages, holiday pay, superannuation and redundancy payments to his employees.
Q. So you make no apologies?
A. We make no apologies to any employer that does not meet their legal obligations to our members. We regard that as a corrupt practice. Now we want the employers, and everyone else in our industry, to be legitimate.
If it is legitimate, it will be a better industry for all of us.
Q. Right.
[Emphasis added.]

26 It was the sentence emphasised above which was incorporated into the programme as one of the utterances by Mr McDonald specified by Mr Molomby.

27 The interview with Mr McDonald then continued as follows:

Q: Mr McDonald there’s a, one other gentleman by the name of John Higgins. We are told. One of your own organisers, who told a successful brickie contractor, Robyn Bass, whom I think Mr Ferguson is also aware of, that the BWIU wouldn’t stop until Bass was ruined. That is what Bass has told us. And he is ruined. Are you aware of – Robyn Bass Pty Ltd?
A. I have heard of er er that particular company. Er, I’m certainly er not heard any allegation that the union would not stop until he was er put out of the industry. Now, er I understand that Mr Bass is in a similar position to the last gentleman, and that er he was a shonky operator who owed workers money and he got into a dispute with the union for that particular reason .
[Emphasis added.]

28 The passage emphasised was incorporated in the programme as the other utterance specified by Mr Molomby.

29 It is convenient to deal first with Mr McDonald’s statement that the plaintiff was a shonky operator who owed workers money and who got into a dispute with the union for that reason.

30 Mr Molomby says that the statement was not in response to the plaintiff’s assertions but in response to an assertion, attributed by Mr Munro to the plaintiff, that the plaintiff had been told by an organiser employed by the union that the union would not stop until the plaintiff was ruined, and that the plaintiff was in fact ruined. I would regard that, however, as a reasonable summary of the plaintiff’s assertion of victimisation and black ban, by the union, putting the plaintiff out of business. The part of what was said by Mr McDonald at the interview which was put to air was, therefore, said by him in response to the substance of the plaintiff’s attack on the union. It was in riposte to the plaintiff’s attack.

31 I come then to the other statement by Mr McDonald, namely, that the union made no apology to any employer that did not meet their legal obligations to union members. Mr Molomby says that statement was made by Mr McDonald in response to allegations by Mr Fields, whereas it was incorrectly presented in the programme as a response to the assertion of victimisation of the plaintiff.

32 What Mr Molomby says in relation to this further utterance by Mr McDonald is correct but it does not, in my view, have the consequence for which he contends. The complaints by Mr Fields and by the plaintiff were similar, in that both included allegations of wrongful action by the union against them, including the procuring of termination of their respective contracts with Concrete Constructions. In each case Mr McDonald’s response was that the action by the union was justified, inter alia, by a failure on the part of each of the complainants to meet their legal obligations to their employees, including the non-payment of wages.

33 Mr McDonald would have expected – or hoped – that what he said in his recorded interview in justification of the union’s actions would be broadcast as a response, if the complaints by Mr Fields and / or the plaintiff were put to air. His response to both complaints was in the same vein. In these circumstances, the defendant was, in my view, impliedly authorised by Mr McDonald to use whatever he said in that vein in riposte to either complaint or both of them, provided that what was selected was in general terms and was equally to applicable to both cases. That was the position in relation to this utterance. The authorisation was implied because it went without saying.

34 For these reasons, I hold that the relevant utterances by Mr McDonald, as incorporated by the defendant in the programme, were in riposte to the plaintiff’s attack on the union. The defence of qualified privilege at common law is made out.

35 Although unnecessary to decide, the defence of statutory qualified protection under s16(1)(g) of the Queensland legislation involves the same considerations and is also made out.

36 The parties should bring in short minutes of order. Submissions in relation to costs will be heard on that occasion, if not agreed.

-o0o-

Last Modified: 11/23/2001