Bolkus v Nationwide News - [2005] SADC 138

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BOLKUS v NATIONWIDE NEWS
Reasons of His Honour Judge Burley
13 October 2005
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - POLITICAL
Plaintiff's claim for damages for libel - publication in Weekend Australian on 7-8 February 2005 - photograph of plaintiff with article but no other mention of plaintiff - article about Federal Electoral Commission Rules relating to political donations - whether article defamatory - nature and ordinary meaning - true innuendo - held, article defamatory - damages $45,000 awarded.
Jones v Skelton [1963] 1 WLR 1362; Lewis v Daily Telegraph [1964] AC 234; Farquar v Bottom [1980] 2 NSWLR 380; John Fairfax Publications v Rivkin (2003) 77 ALJR 1657; Humphries v TWT Ltd (1993) 120 ALR 693; Amalgamated Television Services v Marsden (1998) 43 NSWLR 158; Pritchard v Krantz (1984) 37 SASR 379; E Holton & Co v Jones [1910] AC 20; Slim v Daily Telegraph Ltd [1968] 2 QB 157; Random House Australia Pty Ltd v Abbott & Ors (1999) 167 ALR 224; Favell & Anor v Queensland Newspapers Pty Ltd [2005] HCA 52; Rogers v Nationwide News (2003) 77 ALJR 1739; Broome v Cassell [1972] AC 1027, considered.

BOLKUS v NATIONWIDE NEWS
[2005] SADC 138

The plaintiff claims from the defendant damages for alleged defamation.
The proceedings arise from the following undisputed facts.
At all material times since 1983, the plaintiff was an Australian Labor Party Senator. He was a Minister in the Federal Labour Government from March 1988 to March 1996. He was a member of Cabinet from December 1990 to March 1996.
The defendant is and was at all material times the publisher of “The Weekend Australian,” a newspaper which is widely distributed in the States and Territories of Australia. In the edition of the Weekend Australian published for the 7-8 February 2004, of the following article and pictures appeared as described in paragraph 4 of the Statement of Claim:
4.1 An article as follows:
Loopholes that keep donors in shadows
Michael Bachelard
· Victorian political reporter
HIDDEN in an obscure corner of the political funding disclosures released this week is a $15,000 gift to the Queensland branch of the ALP.
The donation came from F B Nominees. Company searches reveal that this is one of a large suite of private companies directed by Richard Scheinberg, a Sydney property developer, the head of Australia’s 16^th richest family with an estimated fortune of $265 million and a Jewish community leader.
This, though, is an example of the more transparent disclosures in Australia’s inadequate regime for political donations – a regime the Australian Electoral Commission, which administers it, says is full of loopholes and open to large-scale rorting and corruption.
Look behind the F B Nominees donation and a remarkable story emerges. In late 2001, Mr Scheinberg was having trouble with the Queensland Government over a development proposal in Redcliffe, in Brisbane’s northern…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] SADC 138
Decision Date: 13 October 2005

CaseChat Overview and Summary

The case of Bolkus v Nationwide News involved the plaintiff, Bolkus, who sought damages for libel against Nationwide News, arising from an article published in the Weekend Australian on 7-8 February 2005. The article in question contained a photograph of the plaintiff but made no other mention of him. The piece centred on the Federal Electoral Commission Rules relating to political donations. Bolkus argued that the article was defamatory, asserting that it implied improper conduct on his part in relation to political donations. The case required the court to determine whether the article indeed amounted to defamation and, if so, to what extent.

The primary legal issue before the court was whether the article published by Nationwide News was defamatory of Bolkus. The court needed to ascertain whether the nature and ordinary meaning of the article conveyed an imputation that Bolkus had engaged in improper conduct regarding political donations. Additionally, the court had to consider whether the lack of explicit mention of Bolkus in the article's text but presence of his photograph contributed to any defamatory imputations. This involved a close examination of the article's content, context, and the reasonable reader's perception.

The court concluded that the article was indeed defamatory. It found that the combination of the photograph and the context of the article, which was about political donations, conveyed an imputation that Bolkus had acted improperly in relation to donations. The court held that the reasonable reader would perceive the article as defamatory, particularly in light of the absence of any explicit mention of Bolkus in the text, which could be seen as a tactic to associate him with the topic of political donations. The court awarded Bolkus $45,000 in damages for the defamation.

The court's decision was definitive, awarding the plaintiff $45,000 in damages. This ruling underscored the importance of context and the reasonable reader's perception in defamation cases, even when the defamatory content is not explicitly stated. The decision highlights the need for careful consideration of both text and imagery in publications to avoid defamatory implications.

Orders