Bolkus v Australian Broadcasting Corporation
[2010] SASC 150
•28 May 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BOLKUS v AUSTRALIAN BROADCASTING CORPORATION
[2010] SASC 150
Judgment of The Honourable Justice David
28 May 2010
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPROPER CONDUCT
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - INNUENDO - IMPUTATION
Action for defamation by lobbyist (plaintiff) against broadcaster (defendant) - defendant broadcast three radio segments and published two news articles on the internet regarding plaintiff's role as a lobbyist for the South Australian Jockey Club - plaintiff alleged various imputations arose from those publications, including that the plaintiff acted inappropriately or improperly, did not have a valid contract with the South Australian Jockey Club, collected money to which he was not entitled, dealt in a non-transparent way, or was involved in something corrupt - whether imputations as pleaded were conveyed - whether those imputations, if conveyed, were defamatory.
Held: Imputations as pleaded were not conveyed.
Australian Broadcasting Corporation Act 1983 (Cth); Supreme Court Civil Rules 2006 (SA), referred to.
Amalgamated Television Services v Marsden (1998) 43 NSWLR 158; Lane and Hurley v Channel Seven Adelaide Pty Ltd (2008) 101 SASR 141; Lewis v Daily Telegraph Ltd [1964] AC 234; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Reader's Digest Services Proprietary Limited and Another v Lamb (1982) 150 CLR 500, applied.
BOLKUS v AUSTRALIAN BROADCASTING CORPORATION
[2010] SASC 150Civil:
DAVID J. The plaintiff, Nick Bolkus, alleges that he was defamed by the defendant, the Australian Broadcasting Commission (“the ABC”), in five separate publications.
At the relevant time, Mr Bolkus was a political lobbyist and a former Labor Party Senator. The ABC was a corporation established pursuant to the Australian Broadcasting Corporation Act 1983 (Cth), and a radio broadcaster and publisher of news over the internet. Mr Steven Ploubidis was the Chief Executive Officer of the South Australian Jockey Club (“the SAJC”). It was agreed that Mr Ploubidis was suspended on full pay on 5 December 2008. There is no dispute that his employment was terminated on 20 March 2009.
The five publications Mr Bolkus alleged defamed him are as follows:
·a broadcast on 891 Adelaide local radio morning program at about 8.30 am on 25 March 2009 in which the participants were Matthew Abraham, David Bevan and Bill Spear (“the first publication”);
·a news story broadcast on 891 on 26 March 2009 summarising the first publication (“the second publication”);
·a broadcast on 891 Adelaide local radio morning program at or about 9.30 am on 27 March 2009 in which the participants were Matthew Abraham, David Bevan, Megan Lloyd and Greg Kelton (“the third publication”);
·an ABC News online story entitled, “SAJC Lobbyist Payment Questioned” on 26 March 2009 at 1.14 pm (“the fourth publication”); and
·an ABC News online story entitled, “SAJC ‘not told’ about Bolkus payment” on 26 March 2009 at 8.26 pm (“the fifth publication”).
All of these publications concerned the sale of the Cheltenham Racecourse by the SAJC, Mr Bolkus’ role as a lobbyist in bringing about that sale and, in particular, whether Mr Ploubidis acted in employing Mr Bolkus as a lobbyist without the authority of the board.
In his pleadings, Mr Bolkus alleged that the natural and ordinary meaning of all the publications resulted in him being defamed.
Pursuant to an order of a Master of this Court,[1] I am to decide the following preliminary discrete issue:[2]
That this action be referred to trial on the issue of to [sic] determine whether the imputations alleged in the statement of claim were conveyed, and if so, whether those alleged imputations are defamatory.
In other words, it is my task to decide as a matter of fact whether the imputations in relation to each publication arise as alleged, and if they do, were they defamatory.
[1] Pursuant to r 211 of the Supreme Court Civil Rules 2006 (SA).
[2] Order, Bolkus v Australian Broadcasting Corporation (Supreme Court of South Australia SCCIV‑09‑1066, Master Withers, 3 December 2009).
It is to be noted that there is an assertion that an imputation arises by way of true innuendo. I set out para 4 of the statement of claim:
4.The Plaintiff asserts that a further imputation arises by way of a true innuendo to the following effect:
4.1 the Plaintiff has dealt in a non-transparent way (in the sense of there being no accountability) with the CEO (rather than obtaining authority from the proper organs of the SAJC), which CEO was at the time suspended and has since been dismissed for improper conduct.
PARTICULARS OF FACTS AND MATTERS RELIED UPON
4.2 The CEO (Ploubidis) was sacked on 20 March 2009.
4.3 Prior to his sacking Ploubidis had been suspended from his position as CEO.
4.4 The sacking or dismissal of Ploubidis was for alleged improper conduct.
I heard argument as to whether I should receive further evidence as to that knowledge set out in para 4 of the statement of claim. I ruled that the fact that Mr Ploubidis was suspended on 5 December 2008 on full pay, and sacked on 20 March 2009, and that the dismissal was for alleged improper conduct, are matters that can be assumed to have been within the knowledge of the listeners and readers of the publications. Accordingly, no evidence was given before me on these matters.
CDs of the first three publications were tendered in evidence. Agreed transcripts of the five publications were also tendered in evidence and were referred to in argument.
The Law
My first task is to decide whether the pleaded imputations arise from each of the broadcasts. If I find that all, or any of them do arise, then I must decide whether those which arise have a defamatory nature.
In deciding the first question I adopt the test set out in by Lord Reid in Lewis v Daily Telegraph Ltd:[3]
In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question …
I am mindful of the fact that three of the publications in the present case are of a transient nature. As stated by Hunt CJ in Amalgamated Television Services v Marsden:[4]
The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed: Capital and Counties Bank Ltd v George Henty & Sons; English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book (Morgan v Odhams Press Ltd), and the less the degree of accuracy which would be expected by the reader: Morgan v Odhams Press Ltd; Steele v Mirror Newspapers Ltd. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Lewis v Daily Telegraph Ltd; Morgan v Odhams Press Ltd; Steele v Mirror Newspapers Ltd; Mirror Newspapers Ltd v World Hosts Pty Ltd; Parker v John Fairfax & Sons Ltd. There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: Lewis v Daily Telegraph Ltd. The principles stated in these last two paragraphs – as encapsulated in Farquhar v Bottom – have been adopted in this Court: see, eg, John Fairfax & Sons Ltd v Foord; Crampton v Nugawela.
All of these considerations, and more, apply to matter published in a transient form – and particularly in the electronic media.
[Footnotes omitted.]
[3] Lewis v Daily Telegraph Ltd [1964] AC 234 at 259.
[4] Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165-6.
If I find that the pleaded imputations do arise, then my next task is to decide whether they are defamatory. The test of whether a publication is defamatory is clearly set out by the majority (French CJ, Gummow, Kiefel and Bell JJ) in Radio 2UE Sydney Pty Ltd v Chesterton:[5]
[5] Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 477.
In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person’s reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.
Further on, they added:[6]
The general test for defamation is relevant to all imputations which are said to have injured a plaintiff’s reputation in some respect. The likelihood that the ordinary reasonable person may think the less of a plaintiff because of the imputations is assessed by reference to that person’s general knowledge and their knowledge of standards held by the general community, as they may apply to what is said about the plaintiff. Because such a person can be expected to apply the standards of the general community, he or she may be described as “decent”. The standards are not to those of a moral or ethical kind. That a particular imputation may not require the application of a community standard does not render the general test inapplicable. The inquiry as to the effect upon reputation remains.
Also Brennan J stated in Reader’s Digest Services Proprietary Limited and Another v Lamb:[7]
Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees – Lord Selborne’s reasonable men (Capital and Counties Bank v Henty) or Lord Atkin’s right-thinking members of society generally (Sim v Stretch) or Lord Reid’s ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd) - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Dean), being a standard common to society generally (Miller v David; Myroft v Sleight; Tolley v JS Fry & Sons Ltd.)
[Footnotes omitted.]
Applying those principles, I deal with each of the five publications in turn.
[6] Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 484.
[7] Reader’s Digest Services Proprietary Limited and Another v Lamb (1982) 150 CLR 500 at 505-6.
The first publication
I set out the first publication in full:[8]
[8] Transcript of radio interview with Mr Bill Spear of SAJC, Australian Broadcasting Commission, Mornings with Matthew Abraham and David Bevan, 25 March 2009, commencing at about 8.30 am.
Abraham: Let us just go to the question now of the SAJC, as we said at the start of the program, it is … umm … and it is not just the SAJC now, but the racing industry in South Australia, including its governing body, that is fighting on several fronts and fighting within.
Bevan: Hmmm.
Abraham: There is a board meeting of the SAJC later today, and that will be an interesting board meeting, because certain questions will be put at that board meeting about decisions that appear … umm … from the information we have, to have been made in the last couple of months. At a time when the board … the best complexion you could put on it is that it is in a “caretaker mode” the worst complexion is that the SAJC has been in crisis.
Bevan:Hmmm … This programme is able to confirm that in the last couple of months, that’s in February and March (that's this month and last month), lobbyist Nick Bolkus was made … given two payments of $68,250. We caught up with Bill Spear before we started the program and asked him about these payments. Now who are these two people? Nick Bolkus is a former Labor senator and he is basically running fundraising in SA for the Australian Labor party, and he has worked as a lobbyist in his own right and he is a member of the Bespoke Company with Ian Smith and Alexander Downer. So that is who Nick Bolkus is, he is an Adelaide businessman, ah, former politician, and chief fundraiser for the ALP here in SA. Who is Bill Spear? Bill Spear is a member of the SAJC board, he is a member of the board’s finance committee, and it was Bill who took the SAJC to court last November and asked for an injunction on the SAJC’s affairs, following his concerns regarding membership stacking. We caught up with Bill just before we started the program, and asked him if he could confirm that two substantial payments have been made to Nick Bolkus and what were they.
Bill Spear: Well they, they would be … umm … large amounts I presume and can only presume, because we haven’t been given the detail of it yet, that they were for the successful, successful completion of the sale of Cheltenham agreement with Urban Developments and Jennings.
Abraham: And these payments were of the order of what, 68, two payments of the order of $68,000. We have that independently from another source and you have been able to confirm that?
Bill Spear:Well I’ve been able, I have been able to establish that the payments were in that vicinity; just exactly what they were, I haven’t seen yet …
Abraham: And they were made … sorry Bill Spear, so two payments … okay … around the ballpark of $68,000 …
Bill Spear: Yep.
Abraham: Two … two payments of $68,000 each so … umm … were made to Nick Bolkus sometime in the last month?
Bill Spear: Month or so, yes …
Abraham:While the board was in … effectively under investigation, the CEO was suspended and it was for all intents and purpose what you would describe as caretaker mode?
Bill Spear: Yes, the board has been in caretaker mode since in … awww … I think back in ah … December or January … early January I think at that stage.
Bevan: Well does it concern you that two payments of $68,250 have been made by the SAJC to a lobbyist while your club has been in caretaker mode?
Bill Spear: I wouldn’t have been so concerned if I had perhaps known about them beforehand. The concern that I probably have at this stage is that … they, they … the payment has been made without real reference to the board.
Abraham: … Or to the finance committee?
Bill Spear:Or to the finance committee.
Abraham:Now, under the rules of governance you have there, is it right that if there is a payment of under $10,000 dollars ….
Bill Spear:Hmmm …
Abraham: … it doesn’t have to go before the board …
Bill Spear: Correct …
Abraham: … or the finance committee
Bill Spear: Correct …
Bevan: But anything of this size would have to?
Bill Spear: Normally would have to, yes.
Bevan: Who authorised these payments?
Bill Spear: I don’t know because I haven’t been able to get right to the bottom of this. It is a question that I will have to ask, ah, at our board meeting this afternoon.
Bevan: When you were first inquiring about this matter … and … what did you ask, and what were you told?
Bill Spear: Well, I just made a general, a general query - have we made any payments in the last couple of months to our lobbyist, and of extensive amounts, and not small amounts? And I was told “yes, we have”.
Bevan:You were told “yes, you’ve made?” …
Bill Spear: Yep.
Bevan:… your first inquiry you were told “yes we have made large payments” or you were told “no, we have just been making relatively small payments?”.
Bill Spear: Well initially … initially it was … I was told that they were small payments, and then it was confirmed later that they were large payments. But, at this point of time, it is very difficult to find out why, how , or when, until such time as I ask direct questions tonight.
Bevan: It doesn’t sound terribly transparent Bill Spear?
Bill Spear: Well … David and Matt … it … it…it’s not transparent. Because, we have a system in place predominantly to control the expenditure of the club and large amounts, of course, should always be before the finance committee. Or, the board members and the finance committee members should be in fact informed of that payment, that, or that payment is going to be made. Now the legitimacy of the payments to Nick Bolkus could be quite so. There could be a contract, there could be an arrangement, there could be anything, in place. I don’t know of it, but there could well be. Now I would expect in normal circumstances that I would have got a notation saying that we are going to complete the contractual arrangement with Nick Bolkus and we are going to pay this amount of money this week. Now, ah, my argument probably then rests as has … well my argument would have been, well has the completion of the sale of Cheltenham been arrived at? That’s all and if it had been well then Mr Bolkus has earned his money.
Abraham: The board might have had a discussion about whether the sale had formally been completed given that there is now um … a hurdle, and that is a Supreme Court action being taken by the Cheltenham Residents Association.
Bill Spear: Well that happened after our last board meeting, so I, I really can’t tell you exactly what the situation is, we haven’t been briefed on that yet.
Bevan: Right, but do you think that that this is worth discussing with your other board members, whether or not the jockey club should be paying substantial amounts of money to a lobbyist as a success fee for the sale of Cheltenham when there is a question mark surrounding the sale?
Bill Spear: Of course, of course, and I will be certainly asking that at our board meeting.
Bevan: Because you might want the money back?
Bill Spear: Well it’s always very hard to get money back. It’s like the government, if you give them money at some stage, to get it back it’s always very difficult, so I would suggest to you that, ah, that would be of concern.
Abraham: You’ve sat on the finance committee of the SAJC for how long Bill Spear?
Bill Spear:About, ah, just over 12 months.
Abraham:12 months. In that time how many payments of this order, say $136,500? Would you regard that as fair-to-middling? High? Low?
Bill Spear:That, that ... apart from the capital works programs ... the capital construction programs, etc, where there are progress payments, quite excessive progress payments on various things, that is a high, and a large amount. Yes.
Bevan: And to your knowledge, has Nick Bolkus, or anyone else been employed as a lobbyist for a long period of time by the club? And what are their duties? And how much has the club been handing over?
Bill Spear: Well I don’t know that, I don’t know that specifically. I know that when the process for the sale of Cheltenham and the tendering, etc, was done back in 2006 or thereabouts and ahh ... the board was informed that Nick Bolkus would be acting as a lobbyist for the club ... for and on behalf of the club. I asked whether we were going to get reports and I was told no, we are not going to get reports, he is just going to work for us in the corridors of power.
Bevan: And you won’t get reports, so there was no way for the club to really measure what you were getting for your money. When I say the club, I mean the club’s board.
Bill Spear: Well that was a concern I had, but ah ... in those days the CEO who was in charge of the negotiations with Mr Bolkus, reported to the board that there were not reports being made and that he was, he was happy that ... because of his consultation with Mr Bolkus that the job was being done.
Bevan:And that CEO was Mr Steve Ploubidis?
Bill Spear: That’s correct.
Bevan: Okay ... Well Bill Spear thank you for talking to 891 Mornings.
Bill Spear: Thank you for having me.
Abraham: Bill Spear. And as you would have heard there these and other matters no doubt will be raised at the board meeting today. It’s 17 to nine.
Bevan:Now we have put in a call to Nick Bolkus. Just to say look, is there anything that you would like to say regarding that interview with Mr Spear, and perhaps you can explain what it is that you have been doing. And confirm, any elements of the story that you would like to ... any ... any comments at all. So we have left that call with Mr Bolkus and we are waiting for him to get back to us.
In relation to that publication, Mr Bolkus contends the following in his pleadings:
3.The natural and ordinary meaning of the exchange is
3.1 the Plaintiff, in his position as a lobbyist, has in some way which is presently unknown to Mr Spear, acted inappropriately and/or improperly, whether or not illegally, in the receipt of monies by him from the SAJC;
3.2 the Plaintiff does not have a valid contractual relationship with the SAJC and payments made to him are not pursuant to a valid contract, are not authorised, and otherwise are improper on the basis that the Plaintiff failed to present reports to the contracting parties or otherwise failed to comply with any agreement which was entered into;
3.3 the Plaintiff took monies from the SAJC notwithstanding that he may not as yet have earned such monies;
3.4 there is no transparency (in the sense of accountability) in the work which the Plaintiff does as a lobbyist.
As can be seen, the first publication deals with an interview by the presenters Mr Abraham and Mr Bevan with Mr Bill Spear, a member of the SAJC. The gist of the interview was that Mr Spear was concerned that the board had not been consulted about, and had not approved payments by the club to Mr Bolkus for his work as a lobbyist concerning the sale of the Cheltenham Racecourse.
The first imputation
I turn to the first alleged imputation, namely that Mr Bolkus acted inappropriately or improperly in the receipt of monies from the SAJC.
Mr Heywood-Smith, for Mr Bolkus, argues that the very nature of the broadcast itself indicates that Mr Bolkus is getting something for nothing because of his involvement with the Australian Labor Party, and in some way unknown to Mr Spear, the guest on the program, is acting inappropriately or improperly.
I find that no such imputation arises. There is no suggestion that Mr Bolkus was not properly employed by Mr Ploubidis as Chief Executive Officer to act as a lobbyist, and there is no suggestion that he did not properly earn the money for which he was employed. The whole tenure of the discussion concerns the inappropriateness of the lines of communication between Mr Ploubidis and the board. I point out there is no suggestion that Mr Bolkus knew that the board had not been consulted. I find that the first imputation does not arise.
The second imputation
Mr Heywood-Smith argues that there is a clear imputation arising that Mr Bolkus is a participant to a transaction lacking in transparency, from which he is the beneficiary of a substantial amount of money. I reject that argument. I find that none of the assertions made in the pleaded imputation arise. It was made clear in the first publication that the concern of Mr Spear was not whether there was a valid contract between Mr Bolkus and the board; and not whether Mr Bolkus has done his job and earned his money; but the relationship between Mr Ploubidis and the board. In particular I point out the following passage:[9]
Bill Spear: Well … David and Matt … it … it…it’s not transparent. Because, we have a system in place predominantly to control the expenditure of the club and large amounts, of course, should always be before the finance committee. Or, the board members and the finance committee members should be in fact informed of that payment, that, or that payment is going to be made. Now the legitimacy of the payments to Nick Bolkus could be quite so. There could be a contract, there could be an arrangement, there could be anything, in place. I don’t know of it, but there could well be. Now I would expect in normal circumstances that I would have got a notation saying that we are going to complete the contractual arrangement with Nick Bolkus and we are going to pay this amount of money this week. Now, ah, my argument probably then rests as has … well my argument would have been, well has the completion of the sale of Cheltenham been arrived at? That’s all and if it had been well then Mr Bolkus has earned his money.
[9] Transcript of radio interview with Mr Bill Spear of SAJC, Australian Broadcasting Commission, Mornings with Matthew Abraham and David Bevan, 25 March 2009, commencing at about 8.30 am.
I also find that there is no imputation of impropriety because Mr Bolkus failed to present reports to the board. I point out the following passage:[10]
Bill Spear: Well I don’t know that, I don’t know that specifically. I know that when the process for the sale of Cheltenham and the tendering, etc, was done back in 2006 or thereabouts and ahh ... the board was informed that Nick Bolkus would be acting as a lobbyist for the club ... for and on behalf of the club. I asked whether we were going to get reports and I was told no, we are not going to get reports, he is just going to work for us in the corridors of power.
Bevan: And you won’t get reports, so there was no way for the club to really measure what you were getting for your money. When I say the club, I mean the club’s board.
Bill Spear: Well that was a concern I had, but ah ... in those days the CEO who was in charge of the negotiations with Mr Bolkus, reported to the board that there were not reports being made and that he was, he was happy that ... because of his consultation with Mr Bolkus that the job was being done.
Bevan:And that CEO was Mr Steve Ploubidis?
I find that it is clear from that passage in particular that Mr Bolkus was employed by the club through Mr Ploubidis; that that took place in 2006, and there was no requirement to provide reports to the board.
[10] Transcript of radio interview with Mr Bill Spear of SAJC, Australian Broadcasting Commission, Mornings with Matthew Abraham and David Bevan, 25 March 2009, commencing at about 8.30 am.
The third imputation
I find that there is nothing in the first broadcast to indicate any imputation that Mr Bolkus took monies from the SAJC without having earned such monies. The exchange makes it clear that he was employed by the club, through Mr Ploubidis, to do a specific job.
The fourth imputation
I also find that that imputation as pleaded does not arise. The thrust of the first publication was that Mr Bolkus was dealing with Mr Ploubidis as Chief Executive Officer direct, and not the board, and that Mr Ploubidis, according to Mr Spear, reported to the board that because of his consultation with Mr Bolkus, Mr Ploubidis was happy with the job being done.
The imputation by way of true innuendo
I have already ruled that there is no need to call evidence that Mr Ploubidis was suspended on 5 December 2008 and sacked on 20 March 2009 for the purposes of deciding whether an imputation by way of true innuendo arises as pleaded. The clear inference is that Mr Bolkus was dealing with Mr Ploubidis in 2006, well before he was either suspended or sacked. I find that the imputation as pleaded does not arise.
It was suggested in argument that the imputation might be that rather than dealing with Mr Ploubidis in 2006, when he had not been suspended or sacked, it can nevertheless be inferred that Mr Bolkus was dealing with a person who was subsequently sacked. It is argued that this imputation is defamatory. I reject that argument. Although Mr Bolkus was paid by the board in 2009, there is no inference that can be drawn by a reasonable listener that he was dealing with Mr Ploubidis after he had been suspended or sacked.
If the imputation is merely that Mr Bolkus dealt with Mr Ploubidis concerning the sale of Cheltenham, and Mr Ploubidis was later sacked, that could not be defamatory of Mr Bolkus.
I find, applying the test of the ordinary reasonable reader, none of the imputations as pleaded in regard to the first publication arise.
The second publication
I set out the second publication in full:[11] It is to be noted that this publication is a short news broadcast.
South Australian Jockey Club board member, Bill Spear, says the board was not told that a prominent lobbyist will be paid significant amounts of money to help sell the Cheltenham Racecourse. He says more than $100,000 was paid to former Labor Party politician and now lobbyist Nick Bolkus in the last two months for helping complete the sale. Mr Spear says he will raise the issue at a board meeting later today
“I wouldn’t have been so concerned if I’d have perhaps known about them beforehand. The concern that I probably have at this stage is that the payments been made without real reference to the board.”
[11] News story broadcast on 891 Adelaide local radio summarising the first publication, Australian Broadcasting Commission, 26 March 2009.
Mr Bolkus pleads:
7.The natural and ordinary meaning of the publication is:
7.1 the Plaintiff is a party to a transaction lacking in transparency pursuant to which he is the beneficiary of a substantial sum of money.
I find that the alleged imputation does not arise. Mr Bolkus’ contention that his identification as a party to a transaction lacking in transparency indicates that he knew there was a lack of transparency between Mr Ploubidis and the board. There is no suggestion in the publication to support that. If the contention by Mr Bolkus is that the transaction lacked transparency in the sense that Mr Ploubidis did not properly advise the board, and Mr Bolkus was not a party to that, then that would not be defamatory. It is a criticism of the relationship between the board and Mr Ploubidis, not of Mr Bolkus.
The third publication
The third publication is a regular program on station 891, where Mr Bevan and Mr Abraham are joined by two journalists, Megan Lloyd and Greg Kelton. They discuss current issues. I set out the third publication in full:[12]
[12] Transcript of discussion with journalists Megan Lloyd and Greg Kelton, Australian Broadcasting Commission, Mornings with Matthew Abraham and David Bevan, 27 March 2009, commencing at about 9.30 am.
Bevan: Before you both leave the ummm ... the ... the trouble with the jockey club, is that worrying the government?
Lloyd: Doesn’t seem to be.
Kelton: No no no, not at this stage.
Lloyd: Well openly, outwardly it doesn’t seem to be.
Presenter: Should it be?
Lloyd: I don’t think it’s a good look at all for them. And now you have got, and and you know ... and now you’ve got the net ... the net keeps getting bigger and bigger ... or slightly wider ... maybe just creeping out a little bit more. And obviously to that ... ah ... the net in the last 24 hours or so, has taken in you know, the biggest fundraiser for the Labor Party in this state, so ... you know ... in former senator Nick Bolkus (“NB”).
Kelton: Well that’s what happens. These things start off as small things, like Watergate started off ...
Lloyd: Hmmmm ...
Kelton: … as a burglary and look where that ended up. I mean, I am not saying that this is the equivalent of a Watergate, but these small, sort of internal problems within one organisation sometimes have a tendency to just grow like Topsy and who knows what this Upper House inquiry might uncover.
Lloyd: I think it’s interesting that, like, they seem to be happy to have an Upper House Inquiry and the Independent Gaming Authority seems to be quite happy to really allow the responsibility for questioning what’s going on to be conducted by the media, and by the Thoroughbred Racing, you know, which has now also been in effect caught up with it. I mean they are just quite happy with the Thoroughbred Racing to sort of almost direct what is actually happening. And to say as long as the board changes and, you know the things that we require is fine, you know there’s a body set up with actually powers to inquire into this. Well let’s use them. Otherwise, why have them ...
Kelton:Yeah but you never have an inquiry unless you know exactly what they’re going to find out. That’s the problem.
Bevan: It is as curious situation that we’ve got ...
Lloyd: ... Well then one wonders why we are not having the inquiry then.
Bevan: Yeah. And it is a curious situation that we have a club that is being run ... ah ... with the same board ... ah ... that was ... it was under its watch that these things which have now been the subject of one inquiry and some have been referred to the police and the Office of Consumer Affairs. That board is still in place ...
Lloyd: Absolutely, and gagging someone who, you know ... this board has to actually stand down and they have to face re-elections and then we are finding out that you know, that board member Mr Spear says that he can’t talk now, that he has been gagged ...
Bevan: ... after speaking on this program.
Lloyd: Yeah. So I find that extraordinary that they could be influencing the, you know, what the, I guess, is the flow of public information, about what’s actually going on and the activities. You know, this is a board that in a sense has been told, you’ve got to go ... you’ve got to face election but we’re still going to gag the debate?
Kelton: Yeah ... and you can stick around for a couple of months ...
Lloyd: Yeah.
Kelton: ... and sort out your affairs.
Lloyd: Yeah.
Kelton: Well who’s watching them?
Lloyd: Good question.
Abraham: On the question of Nick Bolkus, just coming back to Megan. There is no suggestion he is not doing anything other than operating ...
Lloyd: Oh absolutely ...
Abraham: Properly as a lobbyist and he has got a right to do that as a private individual and a business man in his own right, um, the interesting thing there though is that it just throws in to the mix a connection with the Labor Party. That the focus of our interview yesterday with Bill Spear was really, the um, I suppose the probity of the board either seeing things or not seeing things. What it signed off on and what it hasn’t signed off on and while it was in caretaker mode ... so. But it is an interesting issue and one that won’t go away I don’t think so, in the short term.
Bevan: Greg Kelton, state editor with The Advertiser, thanks for coming in. Megan Lloyd, state editor of The Sunday Mail, thanks for coming in.
In the third publication, the issue of the SAJC and Mr Bolkus, and the sale of the Cheltenham Racecourse was one matter discussed. In his pleading Mr Bolkus contends in relation to that publication that:
9.The natural and ordinary meaning of the 27 March broadcast [the third publication] is that the Plaintiff is involved in something corrupt.
Mr Heywood-Smith argues that there is an inference that Mr Bolkus is involved in something corrupt, especially in relation to the following comments made in the broadcast:[13]
[13] Transcript of discussion with journalists Megan Lloyd and Greg Kelton, Australian Broadcasting Commission, Mornings with Matthew Abraham and David Bevan, 27 March 2009, commencing at about 9.30 am.
Lloyd: I don’t think it’s a good look at all for them. And now you have got, and and you know ... and now you’ve got the net ... the net keeps getting bigger and bigger ... or slightly wider ... maybe just creeping out a little bit more. And obviously to that ... ah ... the net in the last 24 hours or so, has taken in you know, the biggest fundraiser for the Labor Party in this state, so ... you know ... in former senator Nick Bolkus (“NB”).
Kelton: Well that’s what happens. These things start off as small things, like Watergate started off ...
I find it difficult to know what those comments really mean. In the course of the program, there is a great deal of loose and frivolous discussion, consistent with the program providing entertainment as well as information. However, having listened to the broadcast and read the transcript, including the above quoted section, I can find nothing to indicate that the natural and ordinary meaning of the publication is as pleaded. The thrust of the discussion is about the problems of the SAJC. I cannot discern any suggestion that Mr Bolkus is involved in something corrupt. Indeed, at the end of the broadcast the following exchange took place:[14]
Abraham: On the question of Nick Bolkus, just coming back to Megan. There is no suggestion he is not doing anything other than operating ...
Lloyd: Oh absolutely ...
Abraham: Properly as a lobbyist and he has got a right to do that as a private individual and a business man in his own right, um, the interesting thing there though is that it just throws in to the mix a connection with the Labor Party. That the focus of our interview yesterday with Bill Spear was really, the um, I suppose the probity of the board either seeing things or not seeing things. What it signed off on and what it hasn’t signed off on and while it was in caretaker mode ... so. But it is an interesting issue and one that won’t go away I don’t think so, in the short term.
[14] Transcript of discussion with journalists Megan Lloyd and Greg Kelton, Australian Broadcasting Commission, Mornings with Matthew Abraham and David Bevan, 27 March 2009, commencing at about 9.30 am.
The fourth and fifth publications
I set out the fourth and fifth publications in full:
The fourth publication[15]
[15] Transcript of ABC News online story entitled, “SAJC Lobbyist Payment Questioned”, Australian Broadcasting Commission, 26 March 2009 at 1.14 pm.
SAJC Lobbyist Payment Questioned
Posted Thu Mar 26, 2009 10:21 am AEDT
Updated Thu Mar 26, 2009 1:14 pm AEDT
South Australian Jockey Club (SAJC) board member Bill Spear wants to know why the board was not told that a lobbyist would be paid to help with a sale of Cheltenham racecourse.
Mr Spear says more than $100,000 was paid to former Labor politician, now lobbyist, Nick Bolkus in the past two months for helping complete the sale.
Mr Spear says he will raise the payments issue at a board meeting today.
“I wouldn’t have been so concerned if I’d have perhaps known about them beforehand,” he said.
“The concern that I probably have at this stage is that ... the payment has been made without real reference to the board.”
The fifth publication[16]
[16] Transcript of ABC News online story entitled, “SAJC ‘not told’ about Bolkus payment”, Australian Broadcasting Commission, 26 March 2009 at 8.26 pm.
SAJC “not told” about Bolkus payment
Posted Thu Mar 26, 2009 8:26 pm AEDT
The South Australian Jockey Club (SAJC) has held its monthly board meeting, after a turbulent few weeks in which it sacked its chief executive officer.
Board member Bill Spear revealed that the board was not told about a $100,000 payment to former Labor party politician Nick Bolkus, now a lobbyist.
The payment was made for his help in completing the sale of Cheltenham.
After the meeting, SAJC chairman John Naffine was tight-lipped about what was discussed.
“We had a standard routine board meeting today, the same as we have each month,” he said.
“It obviously covered a lot of issues and everything’s been resolved 100 per cent satisfactorily.”
Both publications are ABC News online stories of 26 March 2009. In his pleadings Mr Bolkus contends the following:
12.The natural and ordinary meaning of each of the two Internet publications pleaded in paragraphs 10 and 11 hereof is:
12.1 the Plaintiff is a party to a transaction lacking in transparency and resulting in payment of a substantial sum of money to himself;
12.2 the Plaintiff is involved in questionable business dealings.
Both publications are concerned about the lack of communication between Mr Ploubidis and the board. There is no suggestion in either publication that Mr Bolkus knew about that lack of transparency and was therefore involved in a transaction lacking in transparency. There is no suggestion that he was involved in questionable business dealings. Similar to the other publications, the concern is with the processes of the SAJC. I find that in relation to those two publications the imputations as pleaded do not arise.
Conclusion
I find that in each of the publications the imputations alleged in the statement of claim were not conveyed.
3
1