Bolkus v Nationwide News
[2005] SADC 138
•13 October 2005
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 16th 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 suburbs.
The Government controlled an 8ha V-shaped piece of land, known as The Hook, between two blocks the developer already owned. Local environmentalist Rick Pass said Mr Scheinberg intended to build a canal estate, but needed the extra piece of land. This would radically increase the value of each block within the development to about $600,000 and lift his total profit by $10 million.
But The Hook was part of the Moreton Bay Marine Park and, according to Mr Pass and the local Peninsula Environment Group, “teeming with migratory wading birds”.
In November 2001, F B Nominees made a $10,000 donation to the Queensland ALP. It is the first political donation The Weekend Australian can identify from the Scheinberg family or its entities.
In early 2002, Mr Scheinberg stepped up his lobbying effort. He approached the pro-development Redcliff City Council, asking it to put his case to the four state ministers involved. On February 27, 2002, he and his offsider, Richard Suchowiecki, held a 75-minute meeting with the council’s general purposes committee and council agreed.
Discussions with government agencies continued. In July 2002, another donation, this time of $15,000 and reported by the AEC this week, was sent to Queensland Labor’s head office.
In May 2003, Environment Minister Dean Wells announced his backing for a deal with Mr Scheinberg’s company. The state would give the developer The Hook and in return he would bestow upon the state 128ha of mostly undevelopable mangrove wetland he owned at nearby Deception Bay and also fund infrastructure. Mr Wells, who is the local MP, called the proposal a coup for the environment and the people of Deception Bay. Mr Pass (who is running against him for the Greens in today’s election) called it a disaster.
Mr Wells said he had not heard of the donations before The Weekend Australian asked him yesterday. He did not solicit them and would not be influenced by them. He said he had never had any communication from Labor’s state office about the Redcliffe development. The final decision was yet to be made by the Beattie cabinet.
ALP state secretary Cameron Milner said he knew Mr Scheinberg, and that Mr Suchowiecki had briefed him on the development.
But he said there was “no connection ever between political contributions and what the Government has done”.
Mr Scheinberg’s accountant, Ken Martin of Martin and Langsworth in Sydney, said Mr Scheinberg would not return this newspaper’s calls. Mr Martin dismissed the $25,000 in donations as “pocket money”.
There is no suggestion the donations were improper.
This story can be traced precisely because F B Nominees disclosed its dealings, as did Manildra’s Dick Honan, who declared his donations, mainly to the Liberal Party.
Much more insidious is the ease with which donations can be hidden, making the purchase of political favours impossible to expose.
The AEC has made repeated attempts to convince the politicians to tighten the rules.
“The deficiencies in the current legislation primarily revolve around loopholes that can allow the true source of donations to go undisclosed,” the AEC said in a submission to a parliamentary inquiry after the 2001 federal election.
“Financial arrangements can be contrived to avoid full disclosure by means that nevertheless meet the letter of the law.”
But the very politicians who benefit from slippery rules are the ones who make them. So the AEC’s pleas fall on deaf ears, year after year.
Take the Liberal Party’s Cormack Foundation. It is an “associated entity” of the party, which means it is run by or set up by the party. It is the Victorian party’s biggest donor, with a $1.8 million contribution in 2002/2003. Under the Electoral Act, the foundation and the party must disclose the source of that money.
But the trail goes cold immediately. The only contributors to Cormack are stockbroker J B Were and the National Australia Bank. Where the money originated is unclear and the Liberals are not required to disclose it, although they claim it came from the sale of radio station 3XY for $14 million in the early 1980s. An AEC spokeswoman said the money could be the donations of other big companies or people who’d prefer others not to know. There’s nothing in the rules to stop anyone giving the Liberals $1 million anonymously through Were.
J B Were isn’t an associated entity (and therefore doesn’t have to report),” she said.
The National Party does things differently. It sets up trust companies run by party officers out of party buildings, but somehow these are not deemed associated entities. The party has at least six of them and they paid more than $2 million into the party in New South Wales and Victoria in 2002-2003.
Another loophole is that political parties get to decide what they list as a donation and what they list as an “other receipt”. Buying a $50,000 ticket in a raffle with one ticket and a frozen chook for a prize, for example, could be deemed an “other receipt”.
Whilst individual donors are separately required to disclose any contribution, the fine or failing to do so is only $1000, and there has never been a prosecution for a breach.
If a party decides to describe a donation as “other receipt”, no donor report is required. But even making this minimal distinction is optional. The New South Wales ALP didn’t bother this year – it’s contributions were all listed as “unspecified”.
Political parties must report any donation over $1500. But if a business made 52 weekly donations of $1499 each, a party has no obligation to disclose. The same applies if a $1499 donation is made to each separate state body of a party.
The rules for donating directly to candidates are even less stringent. Donations made outside election campaigns are not required to be disclosed. Disclosure, the AEC says, is “for all intents and purposes a voluntary code”.
4.2Photographs under the heading “Pocket Money or Political Donation?” of the following persons
4.2.1 the plaintiff
4.2.2 Mr Dean Wells, Queensland Environment Minister;
4.2.3 Mr Rick Pass, Environmentalist and Greens candidate;
4.2.4 Mr Tan
4.3Underneath the photographs were the words “Plans: Greens Candidate Rick Pass at the wetlands to be developed into an estate, and from top left, Mr Bolkus, Mr Wells and Mr Tan.
The alleged meaning of the articles and photographs are pleaded as follows:
5The publication of the article and photographs, together with the caption to the photographs, in their natural and ordinary meaning, or alternatively by reason of the facts and matters hereinafter set out at paragraphs 5.5 below, meant and were understood to mean:
5.1 the plaintiff was involved in misappropriation of funds in connection with political donations;
5.2that the plaintiff’s activities with respect to receipt of political donations were corrupt;
5.3there is a suggestion (concerning the Redcliffe development proposal) of corruption in the sense of political favours for hidden donations, to Government, political parties or politicians, and that in a manner (unspecified in the article) the Plaintiff was personally involved in such or like corrupt practices.
PARTICULARS OF FACTS AND MATTERS
5.5a proportion of the readers of “The Weekend Australian” were aware, as at the time of publication, that:
5.5.1allegations had been made publicly that Senator Bolkus had been guilty of wrongdoing in accepting an allegedly undeclared donation to the Australian Labor Party from Mr Tan;
5.5.2the photograph identified as that of Mr Tan was a photograph of Mr Dante Tan, a Philippine businessman, and that Mr Tan had been the subject of allegations that he was a fugitive from Filipino law;
5.5.3the matter of the allegation of the donation of Mr Tan to the ALP had been the subject of investigation with respect to possible breaches of legislation and of disclosure laws relating to political donations.
In paragraph 5 the plaintiff has raised the contention that the impugned words by their natural and ordinary meaning, bear the meanings as set out in sub paragraph 5.1 to 5.3 It was pleaded in the alternative that by reason of the matters referred to in paragraph 5.5 that the meanings set out in paragraphs 5.1 to 5.3 arose, by way of true innuendo.
In relation to paragraph 5 of the amended Statement of Claim the defendant has pleaded as follows:
3.The Defendant denies that the publication complained of gave rise to or was capable of giving rise to any of the meanings set out in paragraphs 5.1 to 5.4 of the Statement of Claim, either as natural and ordinary meanings or by reason of the facts and matters set out in paragraph 5.5 of the Statement of Claim.
4.As to paragraph 5.5 of the Statement of Claim, the Defendant:
4.1 says that in early July 2003 there had been publicity that the South Australian Taxation Commissioner had been called in to investigate allegations of impropriety surrounding a 2001 electoral raffle involving the plaintiff, concerning raffle tickets sold to an associate of fugitive Filipino businessman Dante Tan;
4.2 says that in January 2004 there was publicity that investigations by the South Australian Police and the South Australian Taxation Commissioner had cleared the plaintiff of wrongdoing;
4.3 admits that the photograph identified as that of Mr Tan was a photograph of Mr Dante Tan, a Philippine businessman, and that Mr Tan had been the subject of allegations that he was a fugitive from Filipino law;
4.4 otherwise denies the matters set out in paragraph 5.5 of the Statement of Claim.
Although paragraph 3 refers to paragraph 5.4 of the Statement of Claim it is common ground that the Amended Statement of Claim did not contain paragraph 5.4 and I have read paragraph 3 as only referring to paragraphs 5.1 to 5.3 of the Amended Statement of Claim. In addition, Mr Harris QC, counsel for the defendant, accepted that the allegation in paragraph 4.2 of the defence should have stated that the publicity referred to was confined to the State of South Australia.
As a result of the pleadings, the only matters in issue at trial were whether or not the impugned words bare the meanings attributed to them by the plaintiff and, if the plaintiff was thereby defamed, what was the proper measure of damages.
In order to succeed the plaintiff must show not only that some or all of the meanings contended for may be attributed to the impugned words, but also that some or all of those meanings are defamatory. It was not suggested by Mr Harris that if the meanings referred to in paragraphs 5.1 and 5.2 of the Amended Statement of Claim could be attributed to the article, those meanings were other than defamatory of the plaintiff.
I turn now to the question of whether or not the meanings contended for by the plaintiff or any of them, could be attributed, either as the natural and ordinary meaning of the article or by way of true innuendo, to the impugned words.
In using the expression “impugned words”, I include the photographs, headlines and captions which form part of the article.
In Jones v Skelton [1963] 1WLR 1362, at 1370, Lord Morris said:
The ordinary and natural meaning of words may be either the literal meaning or it may be implied or inferred or an indirect meaning; any meaning that does not require the support of extrinsic facts passing beyond general knowledge, but is a meaning which is capable of being detected in the language used, can be part of the ordinary and natural meaning …
… the ordinary and natural meaning may therefore include any indication or inference which a reasonable reader, guided not by any special, but only by general knowledge, and not vetted by any strict legal rules of construction would draw from the words.
The plaintiff is confined to the imputations pleaded although that does not mean that the plaintiff will be rigidly confined to a precise nuance and shade of meaning, Pritchard v Krantz (1984) 37 SASR 379 at 386 per King CJ.
The parties agree that whether or not the words are capable of bearing the meanings contended for is a matter of law and it is a matter of fact as to whether or not the words actually bear such meanings. It is also common ground that the meaning intended by the publisher is irrelevant for the purpose of construing the words, although it may be relevant to the question of damages: E Holton & Co v Jones [1910] AC 20 at 23; Slim v Daily Telegraph Ltd [1968] 2QB 157 at 172.
Given that South Australian defamation trials are before a judge sitting without a jury, I must determine the meanings to be attributed to the article as would the ordinary and reasonable reader. I bear in mind what Lord Devlin said in Lewis v Daily Telegraph [1964] AC 234 at 277:
… [T]he layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.
Mr Heywood-Smith QC, counsel for the plaintiff, referred me to Farquar v Bottom [1980] 2 NSWLR 380 where Hunt J (as he then was) set out by reference to the authorities the approach to be taken in deciding whether or not the words complained of were capable of conveying the imputations complained of. His Honour said (at 385-6):
In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton [1963] SR (NSW) 644. I must proceed on the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7); who is neither perverse: ibid; nor morbid or suspicious of mind: Keough v Incorporated Dental Hospital of Ireland (1910) 2 IrR 577 at 586); nor avid for scandal Lewis v Daily Telegraph Ltd ([1964] AC 234 at 260).
This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (supra at 258); Jones v Skelton (supra at 650); Lane v The Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412). It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer; Lewis v Daily Telegraph Ltd (supra at 277); Morgan v Odhams Press Ltd ([1971] 2 All ER 1156 at 1163); Lang v The Australian Consolidated Press Limited ([1970] 2 NSWR 408 at 412); Middle East Airlines Arlivan SAL v Sungravure Pty Ltd ([1974] 1 NSWLR 323 at 340) …
Mr Heywood-Smith correctly pointed out that the alleged defamatory matter is unusual in the sense that nowhere in the article is the plaintiff referred to. The only references to the plaintiff was his photograph and the caption to the photograph. They appear with a photograph of two of the individuals referred to in the article and with a photograph of another person, a Mr Tan, who was also not referred to in the article other than in the caption.
The defendant said, in correspondence which was tendered at trial (Exhibit P9), that the insertion of photographs of the plaintiff and Mr Tan were accidental. I accept that this was so but, as I have said, the defendant’s intentions are not relevant to the question of meaning.
Mr Heywood-Smith submitted that the article included the topic of misappropriation of moneys provided by way of political donations and of corrupt conduct with regard to the receipt of political donations. He also submitted that the article carried suggestions of corruption in the sense of political favours for hidden donations to Government or to political parties or to politicians. Mr Harris contended to the contrary.
At the outset of the submissions, Mr Heywood-Smith reminded me that, in deciding whether or not the impugned words bore the meanings attributed to them, I exercised the function of a jury. In other words it was not a matter of interpreting the words as a lawyer might; rather, I must approach the task from the point of view of an intelligent lay person who is not specially “trained to derive meanings specifically from documents” (T143/2). This means that the text should not be subjected to an “over-meticulous scrutiny: Random House Australia Pty Ltd v Abbott & Ors (1999) 167 ALR 224 at 257.
I have also derived assistance from a decision of Hunt CJ, Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 where Hunt CJ at CL said (at 165E):
The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed … 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 the newspaper, the less likely it is that the ordinary reasonable reader will have to read it with a degree of analytical care which may otherwise have been given to a book. … and the less the degree of accuracy which would be expected by the reader. … The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. … 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.
I consider the latter observation in that passage is particularly apposite to a case such as this where the plaintiff is tied to the article by the presence of a particular pictorial representation and no more. There has been, in my view, an oblique implication of the plaintiff in corrupt conduct and the manner in which this has occurred is equivalent to the “loose talk about suspicion” referred to by Lord Devlin in Lewis v Daily Telegraph [1964] AC 234 at 285, cited with approval by the majority in Favell & Anor v Queensland Newspapers Pty Ltd, as yet unreported decision of the High Court handed down on 27 September 2005, Jud No [2005] HCA 52 at 6.
There was little difference between the parties as to the applicable legal principles. One of the cases cited by Mr Harris, John Fairfax Publications v Rivkin (2003) 77 ALJR 1657 is instructive. In that case McHugh J (at para [26]) said, in relation to the test of reasonableness:
However, although a reasonable reader may engage in some loose thinking, he or she is not a person “avid for scandal”. A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If “[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and the antidote must be taken together. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions, is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. (Footnotes omitted)
Numerous cases were cited by counsel, each offering statements of principle couched in varying terms, which require careful analysis. If there is to be a minute examination of the authorities, that examination is to be contrasted with the approach to be taken to deriving the ordinary meaning of the words judged from the standpoint of the ordinary person acting reasonably. The detail of the one and the generality of the other can lead to error. The application of simply stated principles to a given factual situation can become an obscure process if an attempt is made to canvas numerous authorities all of which state the relevant principles in slightly different ways. Of the various authorities cited to me, I have derived the most assistance from the passage cited from the judgment of Hunt J in Farquar v Bottom referred to earlier in these reasons. Although His Honour has referred to a number of authorities, he has produced a clear statement of principle as to the approach to be taken in determining whether or not impugned words may have attributed to them meanings contended for by the plaintiff.
Another difficulty which arises where a Judge is the tribunal of fact is that the Judge must undertake an intense scrutiny of the words complained of for the purposes of understanding the parties respective positions in relation to the impugned words. This is to be contrasted with the need to adopt the position of the ordinary person acting reasonably required in making findings as to what meanings may be attributed. The intellectual bifurcation carries its own difficulties. Nevertheless, it is a process which must be undertaken.
The first part of the process, namely a relatively detailed examination of the impugned words, is necessary, at least in this case, because the parties have taken a quite different view as to the purport of the article. On the one hand, the plaintiff contends that the article is about corruption, actual and potential, with regard to political donations; on the other hand the defendant has contended that the theme of the article is centred upon the inadequacies of the rules relating to disclosure of political donations. In my opinion, the article is about both in the sense that it talks about inadequacies in the rules relating to political donations which might give rise to the opportunity for corruption which may in turn may result in actual corruption.
The article is critical of a process. It is couched in the language of criticism which is no better exemplified than by the introductory phrase “[h]idden in an obscure corner”. Such a tone might render the reporter liable to the criticism that assertions are made for which there is no apparent justification in the body of the article itself. The article then turns to the theme of the inadequacies of the rules relating to political donations. It is said that those rules are full of loopholes which open the process to large scale rorting and corruption .
An example of an allegedly more transparent political donation is then referred to. A recitation of the events relating to the Redcliffe proposal which is followed by the statement that there is no suggestion that the donations amounting to $25,000 were improper brings to mind what was said by McHugh J in John Fairfax Publications v Rivkin (supra) when His Honour said:
Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. The bane and antidote must be taken together.
In the article it is asserted that it is easy to hide political donations and consequently it is therefore impossible to expose the purchase of political favours. An example is given of the $50,000 chook raffle.
Does such an article, given the presence of the photograph of the plaintiff, mean that the plaintiff was involved in misappropriation of funds in connection with political donations (Statement of Claim, para 5.1), that his activities with respect to the receipt of political donations were corrupt (para 5.2), and/or that there is a suggestion of corruption and a sense of political favours for hidden donations and that the plaintiff was personally involved in such corrupt practices (para 5.3)?
I should say at the outset that I do not see that paragraph 5.3 of the Statement of Claim adds anything to paragraph 5.2 of the Statement of Claim. If paragraph 5.2 is to be made out, at the very least the article has to give rise to a suggestion, by reference to the Redcliffe development proposal or otherwise, of corruption in the sense of political favours for hidden donations. For this reason I intend to direct my inquiry as to whether or not the meanings of paragraphs 5.1 and 5.2 of the Statement of Claim have been made out by the plaintiff because I consider that paragraph 5.3 is only a more elaborate way of asserting what is contained in paragraph 5.2.
Mr Heywood-Smith submitted that it was inevitable that the ordinary reader, acting reasonably, would attribute to the article the meanings referred to in paragraphs 5.1 and 5.2. Mr Harris submitted that the ordinary reader, acting reasonably, having read the article, would be puzzled about the presence of the photograph of the plaintiff and the reference to him in the caption because there was no other reference to the plaintiff in the article.
I remind myself that the plaintiff’s primary contention is that the meanings in sub-paragraphs 5.1 and 5.2 are to be derived from the reading of the article by itself and not by reference to extraneous material. The alternative position adopted by the plaintiff is that the meanings in sub-paragraphs 5.1 and 5.2 arise by way of true innuendo. Consequently, my first task is to determine whether or not the meanings contended for may be derived solely by reference to the article itself. In my opinion, the tenor of the article, the presence of the plaintiff’s photograph, his being named in the caption and the photograph appearing immediately to one side of the heading “Loopholes that keep donors in the shadows” and immediately under the headline “Pocket money or political donation?”, would create in the mind of the ordinary reader, acting reasonably, the belief that the plaintiff’s activities with respect to receipt of political donations were corrupt (para 5.2). I do not consider the meaning contended for in paragraph 5.1 has been made out. The article does not found a meaning based on misappropriation of funds as the alleged improper conduct. Rather, the emphasis is upon the corrupt purchase of political favours.
It could not be suggested that an allegation of corruption against a politician was other than defamatory. Accordingly, I find that the impugned words by themselves, meant that the plaintiff’s activities with respect to the receipt of political donations were corrupt and that the plaintiff was thereby defamed.
I turn now to the question of whether or not the meaning contended for in paragraph 5.1 of the Statement of Claim arose by way of true innuendo. The particulars provided in the Statement of Claim to support that contention are as follows:
5.5a proportion of the readers of “The Weekend Australian” were aware, as at the time of publication, that:
5.5.1 allegations had been made publicly that Senator Bolkus had been guilty of wrongdoing in accepting an allegedly undeclared donation to the Australian Labor Party from Mr Tan;
5.5.2 the photograph identified as that of Mr Tan was a photograph of Mr Dante Tan, a Philippine businessman, and that Mr Tan had been the subject of allegations that he was a fugitive from Filipino law;
5.5.3 the matter of the allegation of the donation by Mr Tan to the ALP had been the subject of investigation with respect to possible breaches of legislation and of disclosure laws relating to political donations.
Sub-paragraph 5.5.2 is admitted in the Defence. The evidence relied upon by the plaintiff to support the particulars consists of a number of newspaper articles commencing in June 2003 and ending in February 2004 which have been admitted as Exhibit P2. The publication of those articles in Exhibit P2 is not in dispute. The articles deal with various instances of political donations involving various politicians including the plaintiff over the period referred to. They all appear in either the Australian or the Weekend Australian. I have no doubt, and I so find, that the ordinary reader of the Australian and the Weekend Australian would have been aware of some, if not most of these articles, at the time of reading the article the subject of these proceedings.
The initial articles referred to the then Immigration Minister Mr Ruddock and various political donations including a donation by Mr Tan.
Reference to the conduct of the plaintiff commenced with an article in the Australian on 24 June 2003 bearing the headline “Bolkus accused as Abbott returns Dante fire”. Reference was made to a donation of $9,880 for “raffle tickets” paid for by Mr Tan prior to the 2001 Election. It was alleged in the article that Mr Bolkus did not fully disclose the donation. In an article in the Australian on 25 June 2003 under the headline “Labor concedes on Dante donation”, it was stated that the South Australian branch of the Labor Party would make a correction with the Australian Electoral Commission regarding the donation of $9,880. It had originally been declared in the name of the plaintiff but, according to the article, it was acknowledged that it came from Mr Tan.
It is also clear from these articles that, as alleged in sub-paragraph 5.5.3, that the donation by Mr Tan had been the subject of investigation in relation to possible breaches of the disclosure laws.
In my opinion, an ordinary reader acting reasonably who was aware of the matters referred to in paragraph 5.5 of the Statement of Claim, would not conclude that the plaintiff had been engaged in conduct amounting to misappropriation of funds in connection with political donations. By “misappropriation of funds” I mean the retention of moneys by the plaintiff given as a political donation. The publication of the articles referred to in paragraph 5.5, the evidence for which is Exhibit P2, do not suggest either directly or indirectly that the plaintiff retained any political donations for his own use. The article centred upon disclosure of the donation as opposed to its retention by someone other than the political party to which it was made.
In light of the foregoing, the impugned article was libellous in that it meant that the plaintiff’s activities with respect to the receipt of political donations were corrupt.
I bear in mind that it is not in dispute that on 12 June 2004 an apology was published by the defendant in the following terms (Exhibit P14):
APOLOGY
In the Weekend Australian on February 7-8 2004 an article entitled “Loopholes that keep donors in the shadows” was published with a photograph of Senator Nick Bolkus under the heading “Pocket money or political donation?”
It has been suggested that the heading to the photographs in the context of other persons photographed with Senator Bolkus implies that he has been guilty of impropriety in relation to political donations.
The Weekend Australian accepts that any such implication is false, and did not intend to make such an implication.
The Weekend Australian apologies to Senator Bolkus for any hurt or embarrassment caused to him by the publication.
The position of the apology in the Weekend Australian could almost be said to have been “[h]idden in an obscure corner of the” newspaper. Perhaps the description “obscure” is too harsh, but it could hardly be said that the apology had anywhere near the prominence of the impugned article. It could easily have been missed.
I note also that, although there had been communication between solicitors for the respective parties prior to the publication of the apology, no notice was given by the defendant to the plaintiff that the apology would be published.
It is common ground that the wording of the apology follows the draft retraction and apology sent by the plaintiff’s solicitors to the defendant approximately six weeks after the publication of the relevant article.
In Humphries v TWT Ltd (1993) 120 ALR 693 at 701, the Full Court of the Supreme Court of the Australian Capital Territory dealt with the effect that an apology has on damages which might be awarded. The members of the Full Court, in a joint judgment, said:
His Honour [the trial judge] said in dealing with this aspect
… when there has been a substantial retraction of the libel, by way of correction and apology, the hypothetical bystander may not need much convincing in terms of dollars and cents that the allegations against the plaintiff are true.
Whether that is so in a particular case depends on matters of degree; the seriousness of the defamation, the extent of its publication, the fulsomeness of the correction and apology, and the extent to which the correction and apology would come to the attention of those to whom the defamation was published.
The position and size of the apology in this case is such that, far from being fulsome, it bordered on the begrudging. As such, I do not consider that its impact plays a significant role in reducing damages otherwise awardable to the plaintiff.
As to damages generally, it was also said in Humphries (supra at 699):
The purpose of an award of damages for defamation is to provide consolation for the plaintiff’s personal distress, reparation for the harm done to his reputation, and vindication of that reputation: Carson v John Fairfax & Sons Ltd (1993) 113 ALR 577 and 589.
To make the imputations proved against a minister whose reputation is as it was found to be in this case would, in the absence of correction and apology to mitigate the harmful effects of the defamation, attract a high award of damages. That would be so even in the absence of circumstances of aggravation. The imputations involved assertions of impropriety by a minister to the proper allocation of public funds.
In my opinion those remarks apply with some force to this matter. An allegation of corruption in relation to the use of political donations was made against a serving member of the Australian Senate. It is a most serious allegation to make, although it has not been attended by circumstances which would give rise to either aggravated or punitive damages.
I turn to consideration of the plaintiff’s evidence.
He was born in 1950. Having completed his secondary education at Adelaide High School, he obtained a law degree from the Adelaide University in early 1972. He was admitted as a practitioner of the Supreme Court of South Australia in 1973. He became involved in local politics when he was at University. In 1974 he stood for the State seat of Torrens. He was not successful but he later stood for the Senate. He was eventually elected in 1980, taking his place in the Senate in 1981.
Prior to his election as a senator he had worked as an adviser to a succession of Ministers in the Whitlam Government.
As a member of the Senate, he served on a range of committees including the Senate Legal Committee. He became chairman of that committee in about 1986. In March 1988 he was appointed Minister for Consumer Affairs. After the 1990 election, he was promoted to Cabinet as Minister for Administrative Services. After the 1993 election, he was appointed Minister for Immigration and Minister Assisting the Prime Minister involving Cultural Affairs. He held those positions until 1996 when Labor lost Government. He was then appointed Shadow Attorney General. In 1998 he became Shadow Minister for the Environment. He led the Opposition debate for the Wick Native Title legislation in the Senate as the Shadow Attorney General.
After the 2001 Election, the plaintiff limited his participation in the political process to the Opposition backbench. He was a member of various committees, sometimes sitting in the chair or deputy chair. He resigned from the Senate at the completion of the Senate sittings on 30 June this year.
The plaintiff is married with three children.
Part of the plaintiff’s claim for damages is based on the contention that he suffered economic loss as a result of the publication of the article.
In about mid-March 2003 the plaintiff made a public announcement that he intended to seek pre-selection for the Senate in respect of the next Elections. A copy of a newspaper article about that announcement is Exhibit P5. In the article some Labor sources were quoted as saying that the process could “get nasty”. The announcement preceded the controversy relating to political donations which occurred in the second half of 2003 and which is the subject of newspaper articles in Exhibit P2.
The plaintiff gave evidence about his reaction to reading the impugned article. He said, and I accept, that he was particularly angry about the article. He thought he was being linked to misappropriation, rorting and fraudulent behaviour. He thought that because Mr Ruddock had previously been portrayed as a central figure in the controversy that surrounded Mr Tan, mention should have been made of him. That was his initial reaction. He subsequently thought that neither Mr Ruddock nor he should have been included within the article.
The plaintiff was asked to state his opinion as to the role played by the Australian Newspaper in Australian politics. He said, and I accept, that “[t]he Australian resonates at the core of the political establishment, it’s a national newspaper, it does have a degree of respect that other daily suburban newspapers don’t have or capital city newspapers don’t have. It’s read by politicians across the country.” (T91-28)
He said that the publication of the article may have created a problem for him in relation to seeking re-endorsement on the Senate ticket.
After a desultory exchange of correspondence between the parties, proceedings were commenced on 30 June 2004. As I mentioned before, an apology was published by the defendant without notice to the plaintiff on 12 June 2004. In addition, on about 17 June 2004, the plaintiff announced his retirement from politics. Exhibit P13 is a copy of an article about that announcement. He is quoted as having said:
I turn 54 next month. It’s a chance to start a new career and obviously spend more time with my two kids (girls), who are eight and three years old. …
I have lost a bit of the respect of the politics that you need to have. I have seen it all before. You can become cynical about the job.
In relation to P13 he was asked (T98-18):
QDid that article accurately report the public statement or press release issued by you at or shortly prior to that date.
AI didn’t issue a press statement that led to this article, I, in fact, spoke to the Advertiser journalist and gave him what was in the tray and (sic) exclusive and that led to this article appearing on 17 June.
I take it from that answer that the plaintiff did not dispute the remarks attributed to him in the article. This is also apparent from his cross-examination on the topic.
The plaintiff was asked what the causes of his changing his decision concerning the seeking of pre-selection. He gave a detailed answer to the question (T100 et seq). Summarising at the end he said (T101-3):
So, I am not saying the Australian article was the only factor, but the fact that I wanted to protect my reputation on the way out and didn’t want to engage in a nasty personal fight was pretty important to me.
His evidence continued (T101-7):
QWas the fact of the Australian article a matter that was mentioned to you by any persons involved in the pre-selection process.
AI think it is fair to say, by the time the article appeared, the issue had died out. The issue itself, the core issue had died out, but after the article appeared, the possibility of continuing publicity was raised as a factor among some of those who weren’t supporting me. That was coming back to me.
I have carefully considered the plaintiff’s evidence in relation to his reasons for resigning from Parliament. I think he was stating the truth whenever he addressed this question. I consider that although he thought that he had the numbers to obtain a place on his party’s Senate ticket, he anticipated that the process might be nasty and he was unwilling to be the potential subject of such nastiness. The fact of the publication of the article the subject of these proceedings was only one of many considerations that he took into account in deciding to retire from politics. It could not in that sense be said to be causal of any economic loss. In my view, the predominant reasons for resigning were not associated with any concern the plaintiff may have had as to the use to which the publication of the article may have been put in relation to the pre-selection process.
There was no other basis upon which it might be said that there was an economic component to the damages sustained by the plaintiff and accordingly I hold that, in assessing damages, the plaintiff is not entitled to a component of damages representing economic loss.
The extent of the publication goes to the question of damages. Evidence of circulation is contained in the letter from the defendant’s solicitors to the plaintiff’s solicitors. (Exhibit P3). It shows that the circulation for the weekend of 7 and 8 February 2004 was 272,596. The South Australian component of that circulation was 34,102.
Mr Heywood-Smith referred me to a number of cases on the question of quantum of damages.
I think it appropriate to permit counsel to refer to other awards of damages: Rogers v Nationwide News (2003) 77 ALJR 1739 at 1752. Although that case dealt with an appellate court having regard to other awards of damages in deciding whether or not the award under appeal was appropriate, the approach applies with equal force to a judge at first instance. It is also clear that from what was said by the High Court in Rogers that reference to other cases is of limited assistance. There is a significant subjective element in the formulation of an award of damages in defamation cases: Broome v Cassell [1972] AC 1027 per Lord Hailsham LC at page 1070 and per Lord Reid at page 1085.
No character evidence was called, but the plaintiff’s good character was not in issue at the trial. I find that, at all material times, the plaintiff enjoyed a reputation of good character.
The plaintiff did not give a great deal of evidence in relation to his reaction in the publication of the offending article. Whilst the article, as I have found, constituted a serious allegation of impropriety, namely corrupt conduct, against the plaintiff, his principal reaction was one of anger and of concern in relation to the way in which his political opponents might use the article against him. I do not for a moment suggest that he was not markedly affected by the publication of the article, but I do not think this is a case where he was deeply wounded by its publication and remained so over a protracted period of time. I think he has taken a pragmatic attitude by not permitting the publication of the article to affect him unduly. I think he is to be commended for taking such a course. It does not diminish the seriousness of the allegations made about him and the need for the award to vindicate the plaintiff, but it does otherwise lessen the damages that would be payable if he had been a person who was extremely sensitive to criticism. In all the circumstances I consider that an award of damages of $45,000 is appropriate.
I will hear counsel as to costs.
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