Brander v Ryan and Messenger Press Pty Ltd No. Scgrg-99-119

BRANDER v RYAN & MESSENGER PRESS PTY LTD

[2000] SASC 446

Full Court: Prior, Lander and Bleby JJ

1................ PRIOR J:......... I agree with the orders proposed by Lander J for the reasons he has prepared.

2................ LANDER J. ....

Introduction

This Court has before it both an appeal and a cross appeal from a decision of a single Judge of this Court, who allowed an appeal by the plaintiff against the dismissal of the plaintiff’s action in the Magistrates Court. I shall continue to refer to the parties as plaintiff and defendants.
The plaintiff is and was at all material times the Chairman of a political party known as Australian National Action.
The first defendant is the Editor of nine newspapers entitled “The Messenger’ circulating in Adelaide and suburban metropolitan areas and published by the second defendant.
The plaintiff brought action on 4 October 1995 against both defendants in respect of an article published in all nine of the Messenger newspapers on 26 April 1995 claiming that the article was defamatory of him. The first defendant was the author of the article and as I have already said Editor of the newspapers which published it.

The Article

It would be as well to set out the article upon which the plaintiff based his proceedings;
“It’s Little Mikey and the big bad racists
How did little Mikey Brander get to be the leader of the racist gang National Action?
Did he beat all the other, bigger NA chaps in a peeing contest or something?
It is hard to imagine how you can piddle higher than everyone else if you sit down to take a pee.
There must be a simple explanation. Perhaps he is on steroids. Growth hormones certainly can make you edgy and irritable.
And why does he look so miserable all the time? Do you have regular bowel movements at the same time every morning, Mikey?
Or perhaps you are taking your medication in the wrong order. I honestly don’t know if you’re on anything, Mikey, but it’s time you had a urine test.
For a leader, little Mikey always looks the odd one out alongside the other chaps, doesn’t he? So neat, so tidy, so freshly-scrubbed. So very white.
The bigger lads really should do something about their personal hygiene and dress standards if their intention is to panic the populace by frightening them.
Frankly, chaps, the old shaved heads, mirrored sunnies, grunge t-shirts, bovver boots and beer guts have become rather ho-hum. Imagine if you were out there in bell-bottom trousers and pink paisley shirts with stingray collars? Now that is a truly frightening thought.
You could even work up a baton twirling routine among yourselves, with Mikey out front doing the splits in a delicious green leotard. With a ‘Have a nice day’ button pinned to his chest, screaming: ‘I hate Asians!’ Terrifying.
Selecting the right music might be a problem. The chaps look like they’re into heavy metal but try telling me Mikey isn’t a Partridge Family fan.
When they take to the streets, Mikey and the bigger chaps always remind me of a male mutual support group out on a weekend excursion who have managed to give their escorts the slip.
Hey, loosen up, guys! Even political revolutionaries with a brittle potential for violence can still get in touch with the inner child. Follow your leader.
Little Mikey seems to be afflicted with his own peculiar brand of attention deficit disorder: ‘Look at me, everybody - look at me, me, me!’
Afterwards, I imagine him going home to be greeted with, ‘Little man, my what a busy day you’ve had,’ by his mum who tucks him into bed with a hot mug of Horlicks. Or perhaps he gets a whack over the head for mixing with the wrong company.
Was he an annoying little brat as a kid or is he just an annoying little brat now?
This is a fair question since he has made such a public spectacle of himself with his anti-Asian street marches and by standing for election to Enfield Council on Saturday week.
There are other questions: What does he do for a living? What does he want out of life, personally speaking? Does he have any distinguishing birthmarks or tattoos? Does he eat Chinese takeaway? Does he drive a Japanese car? Does he varnish his toenails?
C’mon, Mikey, get a life.”

The Pleadings

The plaintiff claimed that the article was defamatory of him in that, on the natural and ordinary meaning of the words, the following imputations arose:
1...... That the plaintiff was simply attention seeking and holds no genuine views in relation to the immigration debate and that his political actions lack integrity.
2...... That the plaintiff is a racist.
3...... That the position held by the plaintiff as head of National Action is not to be taken seriously.
4...... That the plaintiff displays female like behaviour and that therefore the plaintiff is not a man.
5...... That the plaintiff consumes drugs.
6...... That because of the plaintiff’s appearance he should not be the leader of the political party National Action.
7...... That the plaintiff hates Asians and is racist.
8...... That the plaintiff is childish and not to be taken seriously.
9...... That the plaintiff has an attention deficit disorder.
10.... Because of the characteristics attributed to him in the article the plaintiff is not to be taken seriously in entering the Enfield Council election.
11.... That the plaintiff may have homosexual tendencies.
Leave was given to add the last mentioned imputation on the first day of the trial.
The plaintiff claimed damages and in particular claimed exemplary damages upon the basis that the article was written by the first defendant and published by the second defendant with the intention of diminishing the plaintiff’s chances of electoral success in the Enfield Council elections which were to be held shortly after the publication of the articles.
The particulars of claim do not refer to aggravated damages although it would appear from the transcript that the parties proceeded upon the basis that the plaintiff was claiming aggravated damages and entitled to lead evidence and make submissions in that regard.
The defendants jointly filed a defence in which they denied that the words were capable of bearing any defamatory meaning of the plaintiff or that the words bore or were understood to bear any of the meanings complained of by the plaintiff or any other meaning defamatory of the plaintiff.
The defendants pleaded that the words were published by the defendants in jest and would have been so understood. They gave particulars of that plea. That defence, if it be a defence to an action in libel, was not pressed.
Next the defendants pleaded the imputation which they say arose on the natural and ordinary meaning of the words being;
“... that the plaintiff as the leader of Australian National Action and a candidate for election to the Enfield Council at Local Government elections had adopted a high public profile espousing racist and, in particular, anti-Asian political opinions and philosophies.”
The defendants pleaded that that imputation was true in substance and in fact, or in the alternative, was fair comment on a matter of public interest. Particulars for the defence of justification were given.
The defendants identified the matter of public interest for the defence of fair comment as being;
“... the on-going public debate regarding multi-culturism and immigration and the activities of and views espoused by the plaintiff as the leader of Australian National Action and a candidate for election to the Enfield Council at Local Government elections.”
The defendants pleaded, in the alternative, that if the words were capable of bearing the meanings that the plaintiff was a racist or the plaintiff hated Asians, as claimed by the plaintiff, the words were not defamatory of the plaintiff or were true in substance and in fact, or in the alternative, fair comment on a matter of public interest. They repeated the particulars of justification previously given and identified the same matter of public interest previously pleaded in these further pleas of fair comment.
The pleas of justification and fair comment were only to the claims by the plaintiff that the article gave rise to the imputation that the plaintiff was a racist and the plea that the plaintiff hates Asians and was a racist.
Lastly, the defendants pleaded that the words were published on an occasion of qualified privilege. They gave particulars of facts and circumstances which they said gave rise to the occasion.
The occasion of qualified privilege arose, it is pleaded, because the publication of the words constituted a communication made to the public on government or political matter.
It was further pleaded that the plaintiff had, on a previous occasion, stood as a candidate for election to the Enfield Council and was standing as a candidate for election to that Council in the 1995 Local Government elections. Moreover, it was pleaded, that Australian National Action candidates were also standing for election to other councils in those elections.
It was pleaded that the words related to the suitability of the plaintiff for office as a member of the Enfield Council; that the publication of the words was confined to areas of circulation of the Messenger Group of Newspapers comprising electorates in the Local Government elections including electorates for Enfield Council; and that publication of the words was one of the most reasonably practicable modes of communication with electors in the Local Government elections including electors for the Enfield Council.
It was claimed that the words related to matters which were relevant to electors determining how they should cast their votes and in determining the suitability of the plaintiff for office as a member of the Enfield Council. The words, it was claimed, were relevant to debate over the policies of governments and elected representatives at the Federal State and Local levels.
For all of those reasons it was said that the defendants had a duty to publish the words to the readers of the Messenger Group of Newspapers who had a corresponding interest in receiving such matters.
Clearly enough the occasion of qualified privilege is of the kind identified by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

The Issues

It can be seen, therefore, the pleadings gave rise to the following issues:
1...... Did all or any of the imputations contended for by the plaintiff arise.
2...... If the imputations that the plaintiff is a racist and hates Asians arise, were those imputations:
(1)defamatory of the plaintiff,
......... (2) true in substance and fact, and
(3)published on an occasion of qualified privilege.
......... (4) protected by a plea of fair comment.
3...... Whether if any of the other imputations contended for by the plaintiff arose were they defamatory of the plaintiff.
4...... If they did arise and were defamatory of the plaintiff whether the words were published on an occasion of qualified privilege.
Justification was therefore relevant in relation to the plea that the plaintiff was a racist and hated Asians but not otherwise relevant. So also was the defence of fair comment, only relevant to the imputations, which the plaintiff said arose, that he was a racist and hated Asians.
It follows therefore that, if it was established, as a matter of fact that the plaintiff was a racist and hated Asians, then the only issues to be decided were whether any of the further imputations claimed by the plaintiff arose; whether they were defamatory of and concerning the plaintiff; and if they were, whether the publication of the words was protected by an occasion of qualified privilege.
As I have already noted, the defendants did plead the imputation that they said arose on the natural and ordinary meaning of the words. That plea was not a proper plea in my opinion; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 per Brennan CJ and McHugh J at 527. However for reasons which I will come to shortly that no longer matters because that plea was only directed to the question of whether or not the plaintiff was a racist.

The Magistrate’s Finding

The Magistrate who tried this action concluded that the words did convey the imputation that the plaintiff was a racist and hated Asians and those words were defamatory of the plaintiff. He however found that those words were true in substance and in fact.
He then found that a number of the imputations which the plaintiff contended for did arise and were defamatory of the plaintiff. Specifically he found that the following imputations arose and that they were defamatory of the plaintiff:
1...... That the plaintiff does not have credible or genuine views in relation to the immigration debate and is motivated by juvenile attention seeking.
2...... The plaintiff is not to be taken seriously in his political beliefs.
3...... The plaintiff consumes drugs.
The Magistrate also found that the imputations that the plaintiff displays female like behaviour and effeminate and homosexual behaviour also arose. He made no finding as to whether or not those words were defamatory of the plaintiff.
He made no findings in respect of the other imputations contended for by the plaintiff except that he found that the imputation that the plaintiff has an attention deficit disorder did not arise.
As I have already said, he found that the imputation that the plaintiff was a racist and hated Asians had been justified and the defence made out in that respect.
He also found that the publication was an occasion of qualified privilege in that the publication was one concerning political discussion and discussion of a government and of a political matter. In answer to the plaintiff’s claim that, if these words were published on an occasion of qualified privilege, the occasion was lost because the defendants were actuated by malice, the Magistrate determined that the publication was reasonable; Lange v Australian Broadcasting Corporation.
The Magistrate said after referring to the judgment of the High Court in Lange v Australian Broadcasting Corporation:
“This is one of those cases which test the boundaries of established principles. There is some change in language in the development of these cases from political discussion to discussion of government and political matters. Nothing can hang on that. In this case Mr Brander is clearly in the political arena. My factual findings establish that he has stood for positions in parliament and was standing for local government office at the time of the article about which he complains. The very activity of himself and Australian National Action in pursuing his and its agenda in the immigration debate is political discussion and is the discussion of a government and of a political matter. What is at issue here is the expanded defence of qualified privilege striking the proper balance between right to reputation and freedom of speech. If the test of the defendants’ access to qualified privilege is reasonableness then the fact that Mr Brander and National Action have pursued their objectives by the incitement of racial hatred and the use of Nazi symbolism, aggression and threats to intimidate those who oppose them, must go on one side of the scales of reasonableness. They balance the defamatory imputations of Mr Brander being childish, not to be taken seriously and the calculated separation of him in physical and other attributes from the male macho aggressive elements typical of Australian National Action. I weigh those factors and say the article was reasonable and comes under the expanded umbrella of qualified privilege which is available for political discussion.”
The Magistrate thereby dealt with the question whether the article concerned political or government discussion and the further question whether the defendants’ conduct was reasonable. I can say immediately that I cannot agree with the learned Magistrate’s reasons in so far as he suggests the test of reasonableness, in the assessment of whether an occasion of qualified privilege of this type arises, can be measured by reference to the reasonableness or unreasonableness of the plaintiff’s political beliefs.
The Magistrate also considered the defence of fair comment and found that the whole of the article was protected by fair comment.
He said:
“Mr Brander and his associates in Australian National Action are racists in the worst sense. They are willing to pursue their objectives by the incitement of racial hatred and the use of Nazi symbolism, aggression and threats to intimidate those who oppose them. SG Tallentyre’s oft quoted 1906 paraphrase from Voltaire “I disapprove of what you say, but I will defend to the death your right to say it” has been called into play during this case. Nothing in my decision deprives Mr Brander and Australian National Action of the right to pursue their views on the immigration debate. However the need for boundaries to freedom of speech was well expressed by Oliver Wendall Holmes Jr. In Schenk v United States 249 U.S. 47(1919): “The most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theatre and causing a panic ... The question in every case is whether the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantial evils that Congress has a right to prevent.”
In the context of Mr Brander and Australian National Action exploiting instincts of tribalism by inciting racial hatred, using Nazi symbolism, aggression and threats to intimidate those who oppose them it is my finding that this robust lampooning and satirical article is fair comment. In a democratic, tolerant society such as ours to deprive opponents of people who use tactics like Mr Brander of the right to mount the word attack in this article is to put at risk the very fabric of society.”
I think it may be inferred that the learned Magistrate upheld the defence of fair comment. However, as I have previously said, fair comment was not raised as a defence to the imputations then being considered by him. It was only raised in relation to the imputations that the plaintiff was a racist and hated Asians. The Magistrate was therefore wrong to find the defence made out. In any event the Magistrate’s reasoning did not address the essential elements of the defence.
He separately addressed malice as if the defendants had relied upon the common law defence of qualified privilege pre Lange v Australian Broadcasting Corporation. He found that the first defendant’s attack was:
“... motivated by a strongly held objection to what I have found to be racist views and objectionable methods of Mr Brander and Australian National Action. It is not an attack motivated by malice against Mr Brander himself. It is motivated by an objection to the hostility, intimidation, violence and fear that Mr Brander and Australian National Action have cynically used to pursue their objectives. This is not malice in the legal sense.”
The learned Magistrate dismissed the plaintiff’s claim.

The Appeal to the Judge

The plaintiff appealed to a Judge of this Court complaining of the findings of the Magistrate in relation to qualified privilege and fair comment and also the Magistrate’s finding that the imputation that the plaintiff was a racist had been justified. The plaintiff did not complain of the Magistrate’s failure to consider any other imputations apart from those which the Magistrate found made out.
Although Mr Brander complained of the finding that the imputation that he was a racist had been justified, that complaint was abandoned during the course of the appeal before the Judge. The abandonment by the plaintiff of the complaint of the finding that he was a racist narrowed the issues in dispute. Because the defendants had raised their defences of justification and fair comment only in relation to the imputations that the plaintiff was a racist and the plaintiff hated Asians and was a racist these defences did not need further consideration.

On the hearing of that appeal the defendants filed a notice of alternative contentions in which they claimed that the words complained of by the plaintiff did not bear the following imputations:
(a).... Mr Brander consumes drugs;
(b).... Mr Brander is effeminate;
(c).... Mr Brander has homosexual tendencies,
and in so far as the Magistrate had made findings that those imputations arose the Magistrate was wrong. They also asserted in that notice of alternative contentions that none of those three meanings were defamatory of the plaintiff:

It can be seen that the defendants did not complain of the findings that, on the ordinary and natural meaning of the words, the imputations that the plaintiff
1.Does not have credible or genuine views in relation to the immigration debate and is motivated by juvenile attention seeking; and

2.Is not to be taken seriously in his political beliefs;
were wrong.

The Judge found that the article did not give rise to the imputation that the plaintiff displayed homosexual behaviour or had homosexual tendencies. He also found that the words were not defamatory. I think in that respect he meant that because the imputation did not arise the words were not actionable in respect of any such imputation.
The Judge found that no imputation that the plaintiff took drugs arose on the natural and ordinary meaning of the words and he went on again to find that the imputation in the article that Mr Brander took drugs was not defamatory. Again, I think he did not mean that an imputation of that kind was not defamatory but simply that the imputation did not arise and was therefore not actionable.
He did however find that the words did give rise to an imputation that the plaintiff displayed female-like behaviour and effeminate behaviour.
He also observed that the defendants had not complained of the finding that the words bore the meaning that the plaintiff was motivated by juvenile attention seeking.
His Honour then addressed the defences of qualified privilege and fair comment. He addressed the defence of fair comment notwithstanding that the defendants had not raised that defence in respect of those imputations.
He found that the article contained sufficient references to political matters for the article to be covered by qualified privilege within the ambit of privilege discussed in Lange v Australian Broadcasting Corporation. He found however that the qualified privilege was lost because of the unreasonable conduct of the defendants. He did not make any finding on malice.
He then considered fair comment and concluded that the defence of fair comment had not been made out.
The Judge concluded that the imputations that the plaintiff was motivated by juvenile attention seeking and the further imputation that he was effeminate did arise on the natural and ordinary meaning of the words and were defamatory of the plaintiff. He also found that neither of those imputations were protected by either qualified privilege or fair comment.
He observed that neither party complained about the Magistrate’s finding that the imputation that Mr Brander did not hold his political beliefs sincerely arose on the natural and ordinary meaning of the words and was defamatory but the defendants were protected by the defences of qualified privilege and fair comment. He said that that finding that the words were defamatory but protected by qualified privilege must stand.
Because the defendants had not complained of the Magistrate’s finding that the imputation arose the Judge did not need to consider that matter. However the plaintiff did not complain of the finding that the particular words giving rise to the imputation were published on an occasion of qualified privilege. The failure of the parties to address that finding led to the unsatisfactory result that a part of the article was published on an occasion of qualified privilege, which occasion was not lost because the defendants were reasonable, whilst the rest of the article was not protected by qualified privilege because the defendants had been unreasonable. That is illogical. The publication was either protected or not protected by qualified privilege. In my view it was not appropriate to allow the Magistrate’s finding to stand where that finding was inconsistent with the Judge’s view of the law.
His Honour allowed the appeal and set aside the order dismissing the plaintiff’s claim against the defendants and ordered that judgment be entered for damages and interest to be assessed. He referred the matter back to the Magistrate to assess damages and interest.
After His Honour had made those orders further applications were made to him by the plaintiff. The plaintiff sought to have the Judge revoke his order referring the matter back to the Magistrate because the plaintiff contended the Magistrate’s reasons indicated bias against the plaintiff. His Honour rightly in my opinion refused that application. That application, if it was to be made, had to be made in the first instance to the Magistrate after the remitter.
The plaintiff also applied for costs and His Honour allowed the plaintiff half his costs of trial and half the costs of the appeal.

The Appeal and Cross Appeal

The defendants have lodged a notice of appeal (which was subsequently amended) against the decision of the Judge. The grounds of appeal are:
“1..... That the learned Judge erred in holding that the matter complained of was capable of conveying an imputation that the plaintiff engaged in effeminate or female like behaviour.
2...... That the learned Judge erred in failing to hold that the matter complained of was protected by the defence of qualified privilege as being a discussion of government and political matters.
3...... The learned Judge erred in failing to hold that the matter complained of was protected by the defence of fair comment on a matter of public interest.
4...... The learned Judge erred in exercising his discretion to allow the plaintiff to recover one half of his costs of the trial and of the Appeal.”
The plaintiff has lodged a notice of cross appeal. The grounds of the cross appeal are:
“1..... That the learned appeal Judge erred in finding that no defamatory imputation arises from the article to the effect that the respondent displays homosexual behaviour.
2...... The learned appeal Judge erred in finding that no defamatory imputation arises from the article to the effect that the respondent takes drugs.
3...... The learned appeal Judge erred in that he failed to make specific findings in relation to the existence or otherwise of malice on the basis that malice did not need to be considered because of the conclusion that he reached in respect to qualified privilege namely that it was not available to the respondents.”
Both the notice of appeal and the notice of cross-appeal indicate misconceptions on the part of the respective parties.
The third ground of appeal is not available. The defence of fair comment only applied to the imputation that the plaintiff was a racist. That imputation was justified and the plaintiff has abandoned his claim in respect of those imputations. The defence of fair comment was not raised in respect of any other imputations. The defendants did seek to argue that the whole of the publication and all of the pleaded imputations were protected by fair comment, notwithstanding that there was no plea to that effect in their defence. They suggested that the trial had proceeded as if such a plea had been raised. It was argued that the appeal to the Judge below also proceeded upon that basis. The plaintiff, however, was not prepared to concede that the parties had merely assumed that the plea of fair comment applied to the whole article and all imputations pleaded. It seems to me in the absence of some clear acknowledgment by the plaintiff that the matter was conducted as if the defendants had raised a wider plea the defendants should, on appeal, be restricted to argument in accordance with the issues raised on the pleadings.
It was for that reason that the Court indicated to the defendants’ counsel that the Court would not hear argument on fair comment The third ground of appeal is not available to the defendants.
One other matter should be mentioned. Early in the defendants’ oral argument, on this appeal, the defendants’ counsel, Mr Harris QC, indicated that he would be arguing that the common law principles relating to ridicule had been adapted by the implied freedom of political discussion found in the Constitution. It was foreshadowed that the defendants would argue that a politician could not claim that he or she had been defamed if the effect of the defamation was to hold the politician up to ridicule only, because of the implied freedom in the Constitution to discuss political matters.
It was pointed out to the defendants that if that was a defence it had not been pleaded, nor had it been argued before the Magistrate or the Judge from whom the appeal was brought. It was not a ground of appeal to this Court. Indeed the argument had not been adverted to in the written outline of submissions. Counsel nevertheless claimed to be entitled to press the argument. The Court refused to entertain that argument because the matter had not been raised at any time before the hearing; Coulton v Helcombe (1986) 162 CLR 1 at 7-8. This was not the type of case where it was either expedient, or the interests of justice necessitated, that the argument be put; Green v Somerville (1979) 141 CLR 594 at 608.
In my opinion there are three grounds of appeal available to be argued by the defendants; grounds 1, 2 and 4. The defendants have again not suggested that the finding of the Magistrate and the Judge that the imputation that the plaintiff was motivated by juvenile attention seeking was not made out. It follows that the plaintiff’s claim must succeed at least in respect of that imputation, unless the defendants’ plea of qualified privilege succeeds.
The third of the plaintiff’s grounds is not a proper ground of appeal. The plaintiff succeeded before the Judge in defeating the defence of qualified privilege. He found that the defence had not been made out because the defendants’ conduct was not reasonable. Therefore the question of malice did not need to be decided. The plaintiff is not entitled to appeal from the Judge’s failure to specifically consider malice. The plaintiff is entitled to rely on the plea, in this Court, if the defendants otherwise convince this Court that the defendants’ conduct was not unreasonable. The question of malice is a matter which could have been raised by a notice of alternative contentions. I will treat it as an alternative contention rather than a ground of appeal.
The appeal and cross-appeal can therefore be addressed in this way. First this Court should identify the imputations which do arise, on the natural and ordinary meaning of the words, apart from two imputations. The imputations that the plaintiff is a racist and hates Asians have been justified and the plaintiff has abandoned all claims in respect of them. The other pleaded imputation which does not need to be addressed is the imputation found by the Magistrate and not challenged by the defendants on this appeal, that the plaintiff does not have credible or genuine views in relation to the immigration debate and is motivated by juvenile attention seeking.
Secondly, after determining the imputations which do arise, it will be necessary to address the only defence which has been raised in relation to those other imputations, that of Lange v Australian Broadcasting Corporation qualified privilege. If the article is an article relating to political and governmental discussion, and thereby covered by Lange v Australian Broadcasting Corporation qualified privilege, then this Court must determine whether the defendants’ conduct was reasonable and, if the defendants can persuade this Court that the publication was reasonable, whether the occasion of qualified privilege is defeated by malice.
Thirdly, if the view of this Court is that the plaintiff is entitled to succeed in respect of some or any of the imputations then this Court must consider whether the exercise of the Judges discretion as to costs miscarried.
The imputations contended for by the plaintiff after the hearing before the trial Judge are these:
The plaintiff engaged in a feminine or female-like behaviour.

The respondent displays homosexual behaviour.

The respondent takes drugs.

The plaintiff was motivated by juvenile attention seeking.

The learned Judge found in favour of the plaintiff in respect of the imputation in paragraph 1. He assumed, because it was not challenged by the defendants, the imputation in paragraph 4. He found for the defendants in respect of the imputation in paragraphs 2 and 3.
The plaintiff has maintained on this appeal that all of the imputations referred to above arise on the natural and ordinary meaning of the words. The plaintiff did not claim that any true innuendo arose, but his case was confined to the words in their natural and ordinary meaning. On the other hand the defendants have contended, by their silence, that the only imputation which arises on the natural and ordinary meaning of the words is that contained in paragraph 4. In respect of the imputation in paragraph 4 the defendants contend that the plaintiff cannot succeed because the publication was protected by an occasion of qualified privilege.
In considering what imputation might arise, the ordinary reader would have regard to the whole of the publication and the impression created by the publication and would not confine himself or herself to the meaning of each word within the publication; Lewis v Daily Telegraph [1964] AC 234 per Lord Devlin at 285; Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 at 304.
It is important therefore, in my opinion, to first consider the article as a whole.
It was argued, by the defendants, that this article has the effect of ridiculing the plaintiff. Whether it was so intended is not to the point; Lee v Wilson &MacKinnon (1934) 51 CLR 276 at 288. The intention of the publisher may be important on the question of malice, but not on the question of the meanings that may be attributed to the publication; Love v Mirror Newspaper Limited & Others [1980] 2 NSWLR 112 per Hunt J at 124.
In this case however, I think it may be inferred from the article itself that the defendants were intending to hold the plaintiff up to ridicule.
I think this article does hold the plaintiff up to ridicule. The whole text of the article is to, belittle the plaintiff and the article does that by reference to the plaintiff being ‘little’, ‘growth hormones’, ‘sitting down to pee’, ‘bowel movements’, ‘green leotard’, his ‘mum’ and being an ‘annoying little brat’.
Whilst the matter is still to be tested in the High Court, there is authority for the proposition that to hold a plaintiff up to ridicule, even in the absence of moral blameworthiness, is actionable as a defamation. It would be appropriate to follow that authority. In my opinion, a publication may be defamatory of a plaintiff even where it imputes no moral discredit or blameworthiness to the plaintiff, if the article holds the plaintiff up to ridicule or contempt; Boyd v Mirror Newspapers Limited [1980] 2 NSWLR 449; Ettingshausen v Australian Consolidated Press Limited (1991) 23 NSWLR 443 at 449; Berkoff v Burchill [1996] 4 All ER 1008 at 1018. The defendants did not argue otherwise.
It might be that in this case, a number of imputations could have been pleaded by the plaintiff relevant to a claim that he had been held up to ridicule. However, even though the article does hold him up to ridicule he did not advance a case of ridicule but rather advanced a case based upon imputations that he claimed arose not only out of the natural and ordinary meaning of the words, but, of the literal meaning of the words.
Thus, he claimed that the more serious imputations were that he was a feminist and exhibited homosexual traits.
The plaintiff pointed to this sentence in the article: “It is hard to imagine how you can piddle higher than everyone else if you sit down to take a pee” to rely upon the imputation that he claimed arose that he engaged in feminine or female like behaviour.
In my opinion, to give such a construction to the words in the context of this article as a whole would be to give a strained, forced or unreasonable interpretation.
I do not read these words in the context of the whole of the article to suggest that the plaintiff engaged in feminine or female like behaviour. I do not read the words as suggesting that the plaintiff sits “down to take a pee” and because of that engaged in feminine or female like behaviour.
I suppose if the words were taken to their literal conclusion a forced interpretation might give rise to the imputation claimed. But that would be to take the words out of their context. The article, in my opinion, does not allow it to be said that the first imputation arises.
There is nothing in the whole of the article whether read broadly or literally which would allow the second imputation to arise.
In the amendment which was allowed at trial the plaintiff replied on the following words as giving rising to the imputation that he may have homosexual tendencies; “if you sit down to take a pee ...” “...with Mickey out front doing the splits in a delicious green leotard...” “...does he varnish his toenails?...”
Each of those phrases does have the effect of holding the plaintiff up to ridicule, but the words read separately or even collectively, in my opinion, do not give rise to an imputation that the plaintiff may have homosexual tendencies.
The plaintiff relied in his pleadings for the third imputation on these words in the article; “I honestly don’t know if you’re on anything Mickey but it’s time you had a urine test”.
In argument before the Judge he also relied upon the reference to ‘steroids’ and ‘growth hormones’ as supporting the third imputation, namely that he takes drugs or consumes drugs.
In my opinion, such an imputation cannot arise. Again, the sentence must be read in the context of the whole of the article but when so read there is no suggestion in the article that the plaintiff takes or consumes drugs. The first sentence relied upon claims that the author does not know whether the plaintiff is on anything. At the very highest it might be said that the imputation which arises is that the author suspects that the plaintiff takes drugs. However that was not the imputation which was pleaded nor the case which was fought. In my opinion, the imputation which has been pleaded cannot arise on the natural and ordinary meaning of the words.
In my opinion, therefore none of the imputations contended for by the plaintiff arise except the imputation that the plaintiff does not have credible or genuine views in relation to the immigration debate and is motivated by juvenile attention seeking.
In the end result neither party has raised for consideration of this Court the matter which was left in an unsatisfactory state before the Trial Judge in relation to the imputation that the plaintiff did not hold his political beliefs sincerely.
However, in my opinion, it would be appropriate for this Court to proceed upon the basis that that imputation does arise, it having been found by the Magistrate, a finding which the defendants have not challenged.
I will therefore proceed upon the basis that the plaintiff has made out only two imputations. First that he did not hold his political beliefs sincerely and secondly that he does not have credible or genuine views in relation to the immigration debate and is motivated by juvenile attention seeking.
The plaintiff is a politician and was at the time a candidate for the Enfield Council Local Government Elections. Claims that he did not hold his political beliefs sincerely and that he did not have credible or genuine views in relation to the immigration debate and is motivated by juvenile attention seeking are defamatory of the plaintiff.

That being the case the question is whether the publication of the words is protected by qualified privilege.

Qualified Privilege

Common law principles, including those relating to the defence of qualified privilege, must conform with the requirements of the Australian Constitution.
The Australian Constitution provides freedom of communication on matters of government and politics. Such is “an indispensable incident of that system of representative government which the Constitution creates”; Lange v Australian Broadcasting Corporation at 559.
Whilst the Constitution protects a freedom of communication between people concerning political or government matters the Constitution does not confer personal rights on individuals; Lange v Australian Broadcasting Corporation at 560.
The freedom of communication which the Constitution protects is not absolute but is limited to what is necessary for the effective operation of a system of representative and responsible government; Lange v Australian Broadcasting Corporation at 561.
A person who has been defamed has no remedy if the remedy itself would infringe upon the freedom to discuss government and political matters.
The common law in so far as it impacts on the freedom to discuss government and political matters cannot be at odds with the Constitution. It follows therefore that any limitation of a defence which would restrict freedom of discussion of that kind could not be inconsistent with the Constitution.
For those reasons the Court in Lange v Australian Broadcasting Corporation concluded that each member of the Australian community has an interest in publishing and receiving information, opinions and argument concerning government and political matters. Thus the defence of qualified privilege is enlarged so as to enable that freedom of discussion to occur.
There is a duty to publish and an interest in receiving discussion of government or politics at local government level; Lange v Australian Broadcasting Corporation at 571.
It follows that since Lange v Australian Broadcasting Corporation it has been recognised that newspapers have a duty to publish information relating to government or political matters because the Australian community generally has an interest in receiving information, opinions and argument relating to those subjects. It follows that any such publication will be an occasion of qualified privilege.
However the defendant must establish not only the duty to communicate, which arises by virtue of the Constitution, but also that he or she acted reasonably in all of the circumstances of the case.
In Lange v Australian Broadcasting Corporation the High Court said at 574:
“Whether the making of a publication was reasonable must depend upon all of the circumstance of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.”
It follows that an occasion of qualified privilege will arise if the defendant can establish that the subject matter of the publication was government or political matter and, that consistent with the Australian Constitution the publisher had a duty to publish that material and there was a corresponding duty within that part of the Australian community to whom the material was published to receive the material. The publisher will have to also prove that his or her conduct in publishing that material was reasonable.
Even if those matters are made out the occasion of qualified privilege may be lost if the plaintiff who has been defamed by the publication can establish that the publication was actuated by common law malice ‘to the extent that the elements of malice are not covered under the rubric of reasonableness’.
The High Court said in relation to malice at 574:
“In the context of the extended defence of qualified privilege in its application to communications with respect to political matters, ‘actuated by malice’ is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.”
In my opinion, this publication was of government or political matter. It was published in a form which may be described as satirical and which invited the reader to hold the plaintiff up to ridicule. Nevertheless in the circumstances of this case the subject matter of the article was government or political matter.
Clearly enough the matter involved the suitability of the plaintiff as a candidate for election to Enfield City Council. The subject matter also included other members of the plaintiff’s political party and their suitability as candidates for election to other councils.
In my opinion, the article was of government and political matter and was not published too widely.
I think, provided the defendants were not unreasonable, that this was an occasion of qualified privilege.
The defendant did not approach the plaintiff before publishing the article but, in my opinion, it would be appropriate to accept the submission made by the defendants, on this appeal, that an approach to this plaintiff would not have been practicable; Lange v Australian Broadcasting Corporation at 574.
The learned Magistrate found in the circumstances of this case that the defendants had not been unreasonable. However, in so far as he found that by reference to the unreasonable conduct of the plaintiff, in my opinion, he was wrong. His other findings of fact must still stand.
In late 1994 and early 1995 there was a build up of National Action rallies. Media coverage of the first Prospect rally was striking for the Nazi regalia, skinhead presence and the confrontational nature of the rally. The Melbourne rally was violent and media reports showed the presence of skinheads and neo Nazi types. The disruption of the immigration conference by the plaintiff involved the plaintiff shouting down speakers and attention seeking. The plaintiff is a racist and hates Asians. However, the question of whether or not it was reasonable to write an article in the terms published by the defendants has to be considered not so much against the conduct of the plaintiff, however unreasonable that conduct may be, but in the circumstances of the defendants’ behaviour.
Of course all of the circumstances of the case will be relevant. It is relevant to be aware of all of the matters relating to the plaintiff’s behaviour to which I have referred for the purpose of determining whether the defendants’ conduct was reasonable. However the defendants’ conduct cannot be measured simply by reference to the plaintiff’s conduct.
In the end it is for the defendants to establish that their conduct was reasonable. Their conduct will not be reasonable “unless the defendants had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue”.
In my opinion, the defendants did establish, in the evidence of Mr Ryan, that they had reasonable grounds to believe that the two imputations which I have found arise on the natural and ordinary meaning of the words were true and certainly established that they did not believe the imputations were untrue. Mr Ryan’s evidence also established that proper steps had been taken to verify the accuracy of the material in the article. He had been aware of the plaintiff’s activities and those of National Action since 1994.
The defendants did not seek a response from the plaintiff prior to publication.
It is to be remembered that in Lange v Australian Broadcasting Corporation the High Court at 574 said that the defendant’s conduct would not be reasonable unless a response was sought from the person defamed and the response was published except where it was not practicable to seek a response or not necessary to give the plaintiff an opportunity to respond.
In my opinion, in this case, it was not practicable nor indeed was it necessary in view of the plaintiff’s conduct for the defendants to seek a response from the plaintiff.
In my opinion, the defendants did establish that their conduct was reasonable and that the article published in its form was protected by an occasion of qualified privilege. The defendants only needed to establish that the conduct was reasonable in the light of the two imputations which have been found to be defamatory. The defendants justified other imputations. The remainder of the article was not defamatory.
That leaves to be considered the question of malice. Malice, of course, in qualified privilege of the type identified in Langev Australian Broadcasting Corporation falls to be considered in circumstances where it has already been held that the defendant’s publication of the article was reasonable.
In this case the Magistrate concluded, and rightly in my opinion, that the motivation for the publication of this article was for the dissemination of political information to those persons who might be called upon to exercise their vote in relation to the Enfield Local Government elections and other Local Government elections.
In those circumstances and having regard to the fact that the defendants had established their conduct to be reasonable, in my opinion, it could not be said that the defendants were actuated by malice as it has been explained in Lange v Australian Broadcasting Corporation.
In my opinion, the defence of qualified privilege has not been defeated by the plaintiff establishing that the defendants were actuated by malice.
In those circumstances the defence of qualified privilege has been established to defeat a claim for defamation based upon both imputations which the Magistrate found arose in the natural and ordinary meaning of the words and the plaintiff’s claim should have been dismissed.
I would allow the defendants’ appeal from the decision of the Judge of this Court and set aside his orders allowing the appeal from the Magistrate. In lieu thereof I would order that the appeal to the single Judge of the Supreme Court be dismissed. That order would have the result that the plaintiff’s claim is dismissed and the plaintiff must pay the costs in the Magistrates Court.
I would order the plaintiff to pay the costs of the appeal to the single Judge of this Court.
It follows that the plaintiff’s cross appeal to this Court must be dismissed.
I would hear the parties as to the costs of the appeal and cross appeal to this Court.
BLEBYJ. I agree with the orders proposed by Lander J and with the reasons that he gives.

[2000] SASC 446

21 December 2000

Key Legal Topics

Areas of Law

Defamation Law

Legal Concepts

Defamatory Imputations

Qualified Privilege

Reasonableness of Conduct

Freedom of Political Discussion

Malice in Defamation