Chakravarti v Advertiser Newspapers Ltd
[1996] SASC 5431
•29 January 1996
COURT IN THE IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), PERRY(2) AND WILLIAMS(3) JJ
CWDS
Defamation - publication - defamation - statements amounting to defamation - particular statements - newspaper articles - Royal Commission proceedings - purported resolution of ambiguities in evidence by newspaper defamatory - protocol to determine defamation on the pleadings outlined - "fair and accurate" defence under s7 of the Wrongs Act discussed. Wrongs Act s7 referred to. Prichard v Krantz (1989) 37 SASR 379, considered.
HRNG ADELAIDE, 6-7 November 1995 #DATE 29:1:1996 #ADD 11:3:1996
Counsel for appellant: Mr J Sacker QC with him Mr A Harris
Solicitors for appellant: Lawson Downs
Counsel for respondent: Mr P Heywood-Smith with
Mr R Bradshaw
Solicitors for respondent: Johnston Withers
ORDER
Special damages not awarded.
JUDGE1 DOYLE CJ In this appeal the appellant, Advertiser Newspapers Ltd, challenges a judgment in which the appellant was found liable to the respondent for defamation. I will refer to the appellant as the defendant or as "The Advertiser", and I will refer to the respondent as the plaintiff.
2. These proceedings arose out of two articles published by "The Advertiser". They were published on 15 July 1992 and 18 July 1992. I will refer to them as "the first article" and the "second article" respectively.
3. These articles were concerned with the proceedings of the Royal Commission that had been appointed to investigate the near collapse of the State Bank and its various associated companies. One of these companies was Beneficial Finance Corporation ("BFC"), a wholly owned subsidiary of the State Bank. On 14 July the Commission heard evidence from Mr D W Simmons, who had been Chairman of BFC and also Chairman of the Board of the State Bank. The first article related to that evidence. On 17 July the Royal Commissioner made public extracts from Mr Simmons' diaries that had been received in evidence by the Royal Commission. The second article related to this and other material.
4. At the time dealt with in the testimony and the diary extracts, the plaintiff was a senior executive of BFC. At that time, Mr Baker was the managing director of BFC. The plaintiff was one of a small group of executives who were next in seniority to him. Others in that position included Mr Reichert and Mr Martin.
5. The plaintiff was mentioned in both articles. He brought an action in defamation against the respondent.
The articles and the evidence 6. The first article began on the front page of the Advertiser, with a prominent headline, "Bannon accused on resignations". The article was as follows:
The Premier, Mr Bannon, misled Parliament over the
resignation of Beneficial Finance Corporation Chief Mr John
Baker in August,2 1990, according to evidence before the
State Bank Royal Commission.
Former bank chairman Mr David Simmons admitted yesterday the
public reason given for the resignation of Mr Baker and his
deputy, Mr Erich Reichert, was not right and Mr Bannon knew
the real reason.
Mr Simmons said he told Mr Bannon on July 30, 1990, there
was a "question" of either criminal or civil misconduct to
be looked at in relation to four Beneficial executives,
including Mr Baker and Mr Reichert. He said he told Mr
Bannon about loans to Beneficial executives and Mr Bannon
reacted angrily.
Mr Simmons confirmed he told Mr Bannon the question of
criminal or civil misconduct was in reference in Mr Baker,
Mr Reichert, Mr Garry Martin and Mr Manob Chakravarti. "I
had gone through the whole scenario and had told him
(Bannon) all I knew at that stage," Mr Simmons told the
commission.
Mr Bannon told Parliament on August 7, 1990, that
Beneficial's managing director Mr Baker had retired after
"differences of opinion" with the board over the "direction"
of Beneficial. The Royal Commissioner, Mr Samuel Jacobs, QC,
said yesterday the public explanation that there had been a
difference of opinion over direction was not true.
Mr Jacobs: "The fact was, to put it in its blandest form,
there had been a difference of opinion between the board and
these officers as to their conduct."
Mr Simmons: "Yes."
Mr Jacobs: "The reason...announced publicly - I am going to
put it quite bluntly - it really just wasn't true, was it?
It really wasn't the reason at all, was it?"
Mr Simmons: "Not really, but to give any other reason at
that stage could have prejudiced any position that was being
taken. The investigation wasn't completed at that stage and
there was I believed, as I had said to the Premier, it may
be criminal rather than civil."
Mr Jacobs: "It would have been closer to the mark to have
said something like there was a difference of opinion
between these officers and the board as to what was
appropriate conduct for officers of the company."
7. The article then continued on page 2, under the heading "Bannon Stands Accused":
That would be pretty bland and somewhere near the truth
wouldn't it?" Mr Simmons: "Yes."
Mr Simmons said he was involved in the "events" that led to
the resignation of Mr Baker and Mr Reichert, but it was
another executive, Mr Michael Hamilton, who sought their
resignation.
Mr Simmons was asked how Mr Bannon responded when told the
conduct of those involved may be criminal rather than civil
and what Beneficial had learnt they had been doing. "I think
he was very angry, particularly with the reference to the
Melbourne joint venture," Mr Simmons said. (No explanation
of "the Melbourne joint venture" was given in the
commission.)
Mr Simmons agreed the bank had been concerned that
Beneficial may be sued for unfair dismissal.
The Advertiser reported last year that Mr Martin left
Beneficial in September, 1991, after his job was axed.
Mr Chakravarti also left Beneficial late last year."
8. There is a sizeable amount of transcript which contains the testimony before the Commissioner on that day. The crucial passage concerning the plaintiff was on pages 13441 to 13444, where Mr Simmons was being questioned by his counsel. The evidence relates to a meeting on 30 July 1990 between Mr Simmons and the then Premier of South Australia, Mr Bannon. At this meeting Mr Simmons informed the Premier of matters relating to the affairs of BFC. The evidence went as follows:
(p.13441) Q. Could I, on one more of these meetings, go
back to the meeting of July, 30 July 1990. You have your
typed file note of that meeting.
A. Yes, I do. Yes.
Q. There is a section in that, two sections in that file
note, one is Beneficial.
A. Yes.
Q. And the other is entitled 'Loans for Executives'.
A. Yes.
Q. Which is a reference to loans to the Executives of
(p.13442) Beneficial.
A. Yes.
Q. You told the Premier the details of what is in this file
note.
A. Yes.
Q. In relation to both of those topics.
A. Yes.
Q. I don't want to read out all that is in it on those two
topics but did you make it clear to the Premier that with
reference to Messrs Baker, Reichert, Martin and Chakravarti
there was a question of either civil or criminal misconduct
to be looked at.
A. Yes.
COMSR Q. While we are on that, were you, yourself, involved
in the events that led to the resignation of Mr Baker and Mr
Reichert.
A. I was involved but I don't believe that I sought - I
thought Mr Hamilton sought their resignation.
Q. You knew why.
A. Yes.
Q. You knew the terms in which that was publically (sic)
announced. Do you remember the terms in which that was
publically announced.
A. Yes.
Q. What is your recollection of that. (p.13443)
A. That there had been a difference of opinion with the
Board on direction.
Q That was - putting it at its best - a half truth, wasn't
it.
A At that stage the position wasn't exact and there was a
possibility of proceedings, or may have been proceedings.
Q The fact was, to put it in its blandest form, there had
been a difference of opinion between the Board and these
officers as to their conduct.
A. Yes.
Q. The reason it was announced publicly - I am going to put
it quite bluntly; it really just wasn't true, was it.
A. The difficulty -
Q. I'm not sure where it was announced, but the reason you
just gave that there had been a difference of opinion as to
the direction, that really wasn't the reason at all, was it.
A. Not really, but to give any other reason at that stage
would have prejudiced any position that was being taken.
Q. Could have prejudiced.
A. Well, the investigation wasn't completed at that stage
and there was I believed, as I had said to the Premier, it
may be criminal rather than civil.
Q. I mean, it would have been closer to the mark to have
said something like there was a difference of opinion
between these officers and the Board as to what was
appropriate conduct for officers of the company. That would
be pretty bland and somewhere near the truth, wouldn't it.
A. Yes.
Q. But there was no hint, was there, of anything like that
at all, in what was said.
A. No.
Q. But the Premier knew from what you had told him.
A. Well, I had gone through the whole scenario and had told
him all I knew at that stage. (p.13444)
Q. When you told the Premier that their conduct may be
criminal rather than civil.
A. Yes.
Q. And told him of your summary of what Beneficial had
learnt they had been doing.
A. Yes.
Q. Did the Premier respond in any way.
A. Well, as I said yesterday, I think he was very angry,
particularly with reference to the Melbourne joint venture.
Q. I won't read it out, but it's item six on p.3 of the note
dated 30 July that you are talking about.
A. Yes.
Q. The word 'civic' should be 'civil', is that so.
A. Yes.
Q. I think one of the concerns - just touching on the terms
here which the Bank, or Beneficial announced their departure
from the company - there was, of course, concern that, on
the other hand, beneficial may be sued for unfair dismissal.
A. Yes.
Q. Or proceedings may be instituted.
A. I think at that stage it hadn't been finalised.
9. There was a dispute as to the accuracy of the transcript, but the trial judge's findings in relation to this were not challenged on this appeal. The dispute was as to whether Mr Simmons assented to the proposition put by counsel immediately before the Commissioner intervened (p 13442). The transcript first issued did not record any answer. A corrected page was later issued, recording the answer "Yes." The judge found that the corrected version was correct.
10. The second article also began on the front page of the Advertiser, and consisted of two parts under a larger headline, "Loans May Be Criminal: Bank Chief's Diaries". The first part included a "graphic" which was described as "An excerpt from Mr Simmons' diaries". The graphic was in fact of a page, on which the following words were printed:
Preliminary audit reveals Baker, Reichert, Chakravarti and
Martin have all loans which were not approved, and were not
authorized and are in excess of agreed benefits ... May be
criminal rather than civic.
11. The first part of the article was printed in four columns. The graphic appeared at the head of the second and third columns, immediately below a photograph of Mr Simmons.
12. The text of the second article was as follows:
"Sensational allegations of a conspiracy within the State
Bank group and multimillion-dollar unauthorised loans
involving senior executives have been revealed in diary
notes kept by former bank chairman Mr David Simmons.
Mr Simmons says the circumstances surrounding the loans "may
be criminal".
The loans include unapproved loans to four senior Beneficial
Finance Corporation executives and a $37 million joint
venture arrangement with a Melbourne developer.
Mr Simmons's diaries also refer to a "Beneficial
conspiracy", how board presentations had been "pulled" and
how internal audit reports were "screened".
Several hundred edited pages of diary notes kept by
Mr Simmons were released yesterday by the State Bank Royal
Commission." (section omitted) "In notes dated July 30,
1990, concerning a meeting with the Premier, Mr Simmons
claims the group profit would be substantially down on the
figure of $58 million to $60 million given earlier to Mr
Bannon by the managing director, Mr Tim Marcus Clark. His
notes reveal the likely profit as $33 million of which
$30.6 million was a tax adjustment.
Mr Simmons records details of loans to executives: "Prior
to last board meeting (then Beneficial chief John) Baker
asked me to approve a loan of $2 million to several
executives including himself. "(I) said I was not prepared
to and should go to the board. "Board said would approve of
it provided that it had Audit sign off. The loan concerned
me.
"In telling management of investigation of Beneficial,
suggested we should see all loans. "Preliminary audit
reveals (John) Baker, (Erich) Reichert, (Manob) Chakravarti
and (Garry) Martin (all Beneficial Finance executives) have
all loans which were not approved and were not authorised
and are in excess of agreed benefits.
"The loan I looked at was a joint venture and it appears
that this joint venture with a Melbourne developer is in
default and the account is in default at a level of $37
million rather than within the approved board $30 million.
"May be criminal rather than civic (civil misconduct).
"There also appears to be loans from a company called
Pegasis (sic) which is a joint venture company between
Beneficial and Alastair McGregor."
Mr Simmons writes that the effect of these loans was that
Mr Baker could not exercise proven control over his deputy
Mr Reichert, who "arranged structured finance which has
proved to be a disaster".
He said board presentations were pulled and not accurate,
that internal audit reports were screened, that the
Beneficial board did not get the true picture, and there was
a conspiracy of silence.
Mr Simmons records that when a profit of $10 million was
wanted, the accounts were adjusted. "Believe that Baker,
Reichert, Martin and Chakravarti will have to go -
question, when?" he says."
13. The most relevant part of Mr Simmons' diaries relied upon by the trial judge was the following passage:
"Loans for Executives
1. Prior to last Board meeting Baker asked me to approve a
loan of $2M. to several executives including himself.
2. Said was not prepared to and should go to the Board.
3. Board said would approve of it provided that it had
Audit sign off for the loan concerned.
4. The loan concerned me.
5. In telling management on investigation of Beneficial
suggested we should see all loans.
6. Preliminary audit reveals Baker, Reichert, Chakravarti
and Martin have all loans which were not approved, and were
not authorised and are in excess of agreed benefits. The
loan I looked at was a joint venture and it appears that
this joint venture with a Melbourne developer, Tribe and
Crispaulie is in default and the account is in default at a
level of $37M. rather than within the approved 30M. May
be criminal rather than civic. (sic)
7. There also appears to be loans from a company called
Pegasis which is a joint venture company between Beneficial
and Alastair McGregor.
8. The effect of these loans are:
a) Baker could not exercise proven control over Reichert
who arranged structured finance which has proven to be a
disaster.
b) Board presentations were pulled and not accurate.
c) Internal audit reports were screened.
d) The Board of Beneficial did not get the true picture.
e) Accountant was told want $10M. Profit and accounts were
adjusted.
f) Conspiracy of silence.
g) Believe that Baker, Reichert, Martin and Chakravarti
will have to go - question when.
h) Clark, John Sulan, at my suggestion, are seeing
Chakravarti - now feel he will be weakest."
14. Later, as the trial judge noted, there appears an entry which includes the topic, "Beneficial conspiracy".
FINDINGS BY THE TRIAL JUDGE
15. The trial judge found that the plaintiff was entitled to recover damages in relation to both articles.
16. The trial judge rejected the defence that each of the articles was a fair and accurate report of the proceedings before the Royal Commission and therefore privileged by section 7 of the Wrongs Act 1936 and at common law.
17. In relation to the first article, the trial judge found that discrepancies between the evidence and the article were such that the report lost the protection of the fair and accurate report defence. His Honour also briefly dealt with alternative matters argued by the plaintiff in relation to section 7, holding that the article passed the test of being on a matter of public concern and being published for the public benefit, and further that there was no obligation on the defendant to qualify disparaging evidence reported from the Commission by placing it in the context of other differing evidence. His Honour also rejected the plaintiff's contention that there had been a failure by "The Advertiser" to publish a reasonable letter in contradiction or explanation of the report, such a failure being an event that would have disentitled "The Advertiser" to the protection of section 7. The trial judge also rejected the contention of the plaintiff that the article was published maliciously.
18. His Honour also considered that the common law privilege available in respect of a report of a court or other proceedings would be lost if the report was not a fair and accurate one, and so held that, even if the defence was available to the defendant, it was defeated for the same reason as the statutory defence.
19. Finally, the trial judge considered the argument that the article was not defamatory. He referred to various discreditable inferences to be drawn from the article, and held that the article was defamatory of the plaintiff. He considered that the defendant's limited attempts to justify the statements were not made out.
20. In relation to the second article, the trial judge first considered the issue of fair and accurate report. He found that the effect of the headline, the graphic, and lines 36-44 of the article was to report that the loans in which the plaintiff was involved may amount to criminal or civil misconduct. He found that on this score Mr Simmons' note was ambiguous, and so the article had resolved the ambiguity adversely to the plaintiff. He said:
"The difference between the two (the report and the diary
text) is subtle, perhaps, but the subject was obviously
important and the result was to make an imputation on the
character of the plaintiff that may well not have been
perceived by a reasonable person who read only the diary
notes. In this respect the report ... was inaccurate and
unfair."
21. The trial judge therefore rejected the statutory defence. He also rejected alternative contentions made by the plaintiff which were similar to those advanced with respect to the first article.
22. The trial judge also found that the article was defamatory. He said that various discreditable imputations were made by the article, and that the evidence and admissions in the case largely failed to justify or mitigate the libel.
23. His Honour then considered the matter of damages. He refused to make a finding of malicious publication, rejecting twelve matters which the plaintiff suggested went to show malice. However, His Honour also considered whether the defendant's conduct, both before trial and at trial, was a proper basis for an award of aggravated damages. He held that there was aggravation in pleas of justification made in "The Advertiser"'s defence, which pleas were not supportable in court and in relation to which no sufficient explanation was made as to their continued maintenance.
24. His Honour assessed damages at $250,000. The award included $175,000 for special damages (the plaintiff's economic loss) and general damages of $75,000. His Honour stated that the damages were assessed at $225,000 for the first article and $25,000 for the second. His Honour allowed $18,000 for interest.
ISSUES ON APPEAL
25. The defendant now appeals to this court in relation to the finding of liability, the assessment of damages, and the award of interest.
26. The defendant complains that the trial judge failed to determine which, if any, of the pleaded imputations were in fact conveyed by the articles. The defendant complains that His Honour, in effect, simply considered what imputations the articles conveyed, and so departed from the plaintiff's own pleadings.
27. The defendant also complains that the trial judge was wrong in his conclusion as to the meaning of the two articles.
28. As to both articles, the defendant argues that trial judge was mistaken in rejecting the defence of fair and accurate comment. In particular, it is said that the trial judge should have approached the issue by comparing the impression that a person would have had if present in the Royal Commission with that received by reading the article. It is said that the article would not have substantially altered the impression that a person would have received from being present at the Commission.
29. Next, it is said that the trial judge failed to hold that the articles conveyed the meanings contended for by the defendant, and that such meanings were true.
30. Then, it is said that the trial judge was wrong to award the plaintiff special damages, as the finding of economic loss was against the weight of evidence and made without regard to various pertinent factors.
31. Finally, it is said that the award of damages was in any case manifestly excessive.
32. At the appeal, leave was sought by the plaintiff to amend its Notice of Appeal to include two new paragraphs. These were the two grounds first mentioned above, namely that the trial judge failed to make findings as to which (if any) of the imputations pleaded by the respondent arose, and that the trial judge erred in failing to find that the imputations pleaded in respect of each article were not conveyed by those articles. After hearing argument on this point, this Court deferred the question of leave until after the appeal had been fully argued. The plaintiff was given leave to supply the Court with written submissions in response to the defendant's application, and the defendant was given leave to supply a written reply to those submissions. I would grant leave to the defendant to amend its Notice of Appeal as proposed. The amendments do no more than raise by way of appeal issues which were before the trial judge, were contested at trial, and were disposed of by the judgment.
33. The plaintiff also raised several issues at the appeal by a Notice of Cross-Appeal and a Notice of Alternative Contention.
34. In the former, the plaintiff complains that the assessment of the plaintiff's general damages at $75,000 is manifestly inadequate.
35. In the latter, the plaintiff raises four further arguments. These were, first, that the defendant lost the protection of the statutory defence due to the defendant's failure to publish a reasonable letter contradicting the report; secondly, that the statutory defence did not extend to reports relating to a Royal Commission; thirdly, that the trial judge should have found that the report was not fair and accurate on the basis of various other factors, as well; fourthly, that the trial judge should have found that the defence was defeated by malice in any case.
THE FIRST ARTICLE - THE PLEADINGS
36. The plaintiff pleaded that the first article, in its natural and ordinary meaning, meant that:
"(a) The plaintiff was involved in criminal or civil
misconduct, whilst an executive of Beneficial Finance, in
respect of loans from Beneficial Finance to himself.
(b) The plaintiff's conduct in receiving loans direct to
himself as an executive of Beneficial Finance which loans
were in excess of his entitlement was such as to render him
not a fit and proper person to be or remain a Beneficial
Finance executive or to be or remain in any other position
of trust."
37. The defendant pleaded that if the first article was defamatory of the plaintiff, it meant no more than that the plaintiff was suspected of being involved in criminal or civil misconduct in respect of loans and that Mr Simmons told the Premier that he suspected the plaintiff and three others may have been guilty of criminal or civil misconduct.
38. The plaintiff, by his Reply, denied that this was the natural and ordinary meaning of the words used. If it was, he pleaded that the words used "carried the further imputation that the suspicion was well founded." I accept the defendant's submissions that this is to plead, in different words, an imputation of guilt, and so it is simply a repetition of the claim that the article imputed guilt.
39. The defendant denied by its Rejoinder this further plea by the plaintiff.
40. Having identified in his pleading the meaning upon which he relied, the plaintiff is, in my opinion, bound by that meaning. The point was considered by this Court in Prichard v Kranz (1984) 37 SASR 379. In that case, after considering a number of decisions, King CJ said (at 386):
"These passages all support the view that a plaintiff is in
some sense bound by the meanings which he attributes to the
words in his Statement of Claim. It seems to me, moreover,
that the passages cited above from Lewis v Daily Telegraph
Ltd (1964) AC 234 as to the desirability of pleading the
meanings attributed to the words and the cases in which
particulars have been ordered, are posited on that view of
the law. An allegation of the meanings to be attributed to
the words used, whether in a Statement of Claim or by way of
particulars supplied in compliance with an order, serves no
good purpose, and may perhaps be a trap for a defendant, if
those meanings can be ignored at trial and other meanings
relied upon. The purpose of pleadings and of particulars is
to define the issues at trial and to give the opposing party
fair notice of the case against him.
A plaintiff would not, of course, be confined to a precise
nuance and shade of meaning pleaded or particularised.
Modern judges, in any class of case, have a considerable
discretion as to the rigour with which they will confine a
case presented by a party to the precise language of the
pleadings. In many cases, moreover, the more serious
allegation can be regarded as including the less serious.
In that sense, the Court is free to attribute to the words a
less injurious meaning than that attributed to them in the
pleading. ... It seems to me, however, that it would be
contrary to the purpose of pleadings and particulars if a
plaintiff could obtain a judgment upon the basis of a
meaning of the words used which was not merely a less
serious form of the imputation pleaded, but amounted to an
imputation of a substantially different kind."
41. I respectfully agree with these remarks. They are supported by authority: Lewis v Daily Telegraph Ltd (1964) AC 235 at 258-259, 265, 273, 282; Farquhar v Bottom (1980) 2 NSWLR 380 at 385. In my opinion, they are also supported by consideration of fairness and practicality relating to the trial process.
THE FIRST ARTICLE - DETERMINATION OF MEANING
42. Accordingly, it is necessary at the outset to consider whether the first article has the meaning which the plaintiff attributes to it. For these purposes I am concerned with, to express it briefly, an imputation of misconduct (the allegation in the Statement of Claim) and an imputation that the suspicion of misconduct was well founded (the allegation in the Reply, which allegation I deal with although raised only by Reply). Does the first article impute wrong-doing to the plaintiff, or that the reported suspicions are well founded, or does it do no more than report evidence in a manner which does no more than impute suspicion?
43. That question is to be answered by applying the standard of "ordinary men and women" who are neither unusually suspicious nor unusually naive: Lewis v Daily Telegraph (1964) AC 234 at 259 Lord Reid; at 286 Lord Devlin. The same approach has been taken in Australia, where the point of reference has been described as "the ordinary reasonable reader": Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 Mason J; at 304 Brennan J.
44. In applying this standard it is important to distinguish between the reader's understanding of what the writer of the article is saying or conveying, and further conclusions drawn by the reader based on his own experiences, beliefs and prejudices. In short, one must distinguish between what the writer has said and what the reader infers from that. This is how it was put by Mason J in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 273 (at 301):
"A distinction needs to be drawn between the reader's
understanding of what the newspaper is saying and judgments
or conclusions which he may reach as a result of his own
beliefs and prejudices. It is one thing to say that a
statement is capable of bearing an imputation defamatory of
the plaintiff because the ordinary reasonable reader would
understand it in that sense, drawing on his own knowledge
and experience of human affairs in order to reach that
result. It is quite another thing to say that a statement
is capable of bearing such an imputation merely because it
excites in some readers a belief or prejudice from which
they proceed to arrive at a conclusion unfavourable to the
plaintiff. The defamatory quality of the published material
is to be determined by the first, not by the second,
proposition. Its importance for present purposes is that it
focuses attention on what is conveyed by the published
material in the mind of the ordinary reasonable reader."
45. The courts have not been slow to scrutinise the mind and personality of this ordinary reasonable reader. Dicta abound as to that reader's qualities. I think that what Hunt J said in Farquhar v Bottom (1980) 2 NSWLR 380 at 386 sums up adequately the reader's characteristics:
"The 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. He is a layman, not a lawyer, and his
capacity for implication is much greater than that of a
lawyer. Especially in newspaper cases, he is understandably
prone to engage in a certain amount of loose thinking. On
the other hand, the reader of a book would read it with more
care than he would a newspaper. But in both cases, there is
also a very wide degree of latitude given to the capacity of
the matter complained of to convey particular imputations
where the words are imprecise, ambiguous, loose, fanciful or
unusual."
46. The article in question was a report of evidence given to a Royal Commission. In substance it was and purported to be no more than a summation, with quotations, of evidence given by Mr Simmons.
47. But our law has taken the approach, for obvious and good reasons, that repetition of a libel uttered by another person is actionable. It would be too convenient an excuse to be able to preface a libel with the words "X said that ..."
48. It is therefore necessary to consider whether the report by "The Advertiser" of Mr Simmons' evidence conveyed the imputation which the plaintiff alleged. If it did, then it is necessary to consider whether, in so doing, the report was a fair and accurate report for the purposes of the Wrongs Act. If it was, then "The Advertiser" escapes liability. But it cannot escape liability simply by attributing the allegations to Mr Simmons.
49. One final point should be made, before I turn to the article. On a number of occasions courts have dealt with newspaper articles reporting on police investigations and the laying of criminal charges. The view has generally been taken that an article reporting such events does not, to the ordinary reader, impute guilt of the matter under investigation and the matter charged. It was in that context that Mason J made the remarks set out above, distinguishing between what the newspaper imputes by its report and conclusions which the reader might draw for himself or herself, after reading the article. Mason J went on to add (Mirror Newspapers Ltd v Harrison (1082) 149 CLR 293 at 301) that a report stating that a person has been charged with an offence:
"... is capable of bearing the imputation that the police
suspected him of having committed the offence and that they
had reasonable cause for doing so."
50. Ordinarily, such a report carries no further imputation.
51. In the present appeal the defendant argued that it had done no more than report allegations of suspicion, and that its report did not impute anything beyond suspicion. Its report, like the report of an arrest or of a charge, imputed nothing about the actuality of the matters suspected.
THE FIRST ARTICLE - THE IMPUTATIONS PLEADED AND THE IMPUTATIONS MADE
52. In the present case the plaintiff alleges an imputation of guilt or, what seems to me to be the same thing, an imputation that suspicions were well founded. The defendant denies this, but admits an imputation of suspicion.
53. It seems that His Honour concluded that the first article imputed discreditable conduct to the plaintiff. The imputations which His Honour identified were these. First, conduct on the part of the plaintiff which had brought him into collision with the Board on the issue of appropriate conduct and that raised a matter of such gravity as to raise a question of criminal or civil misconduct. I add that the article identifies, as I read it, loans to executives including the plaintiff as the source of the concern. Secondly, that the plaintiff was involved in something discreditable linked to "the Melbourne joint venture". Thirdly, that the plaintiff had left BFC under a cloud because of questionable conduct, which conduct I think that the ordinary reader would understand to be the involvement in loans to executives.
54. His Honour, in deciding whether the article was defamatory, referred as well to other discreditable imputations which he had identified in considering whether the report was a fair and accurate report. It seems to me that the imputations already identified as having been found by His Honour, cover the ground of the criticisms made by His Honour of the accuracy of the report, with the possible exception of an imputation that the plaintiff had been dismissed from his employment (as distinct from having left his employment) because of his conduct which might be criminal or civil. I will refer to this as the fourth imputation.
55. The first question, in my opinion, is whether these imputations are meanings attributed to the article by the plaintiff? That is, are they meanings pleaded by the plaintiff?
56. In my opinion the first imputation is within the scope of the meaning pleaded by the plaintiff. Granted, His Honour included the reference to coming into collision with the Board. That was not pleaded. But in my opinion that imputation is within the scope of sub-paragraph (a) of the pleaded imputations. And, it has to be said, the imputation is of involvement in conduct in respect of loans raising a question of civil or criminal misconduct. This imputation is in that respect a lesser imputation than that which the plaintiff pleaded. It imputes conduct involving loans and a collision with the Board as fact, but imputes in addition not criminal or civil misconduct but a question or suspicion of such conduct. But, consistently with Prichard v Kranz (1984) 37 SASR 379, such an imputation may be treated as embraced by the plaintiff's pleading. I do not consider that to do so is unfair to the defendant. This is the meaning that the defendant itself pleaded.
57. In my opinion the second imputation is not one pleaded by the plaintiff. To the extent that it might be read as a reference to conduct involving loans, it is but a specific instance of the first imputation. To the extent that it involves something different, it is outside the plaintiff's pleading. I put it to one side as hereafter irrelevant.
58. In my opinion the third and fourth imputations found by His Honour, are imputations which fall within the plaintiff's pleading. In my opinion para 4(b) of the Statement of Claim embraces an imputation that the plaintiff left or was dismissed from his employment because of conduct relating to loans to executives which was questionable or which might be civil or criminal misconduct. This conclusion on my part may be a little generous to the plaintiff, but I reach it because in my opinion the reference to the plaintiff not being a fit and proper person to remain a BFC executive can be read as including a reference to him leaving his employment because of misconduct or being dismissed for misconduct.
59. It follows, therefore, that His Honour was entitled to find for the plaintiff in respect of these imputations, if conveyed by the article. To that question I now turn.
60. In considering this question I am not concerned with the fairness or accuracy of the report as a report of Mr Simmons' evidence, but with the meaning which it would convey to the ordinary reasonable reader.
61. In my opinion, the article does convey the first imputation. It conveys to the reader that the plaintiff had been involved in some way in loans to executives, and that this raised a "question" of criminal or civil misconduct. In my opinion the article does not state or imply criminal or civil misconduct in fact. The tone of the article is that there was a distinction between the fact of the loans and the conclusion to be reached about them. Indeed, the article quotes Mr Simmons as having said that the investigation (into the loans) was not complete. Granted, that is in the context of Mr Simmons saying that the conduct "may be criminal rather than civil", but I do not consider that that shift of language conveys guilt or a conclusion rather than suspicion or "a question".
62. In my opinion the article does convey the third imputation. Having left hanging (line 53) the question of civil or criminal misconduct, it then refers to the plaintiff as having "left Beneficial" (line 64) - a conjunction which does imply that he did so with the "question" unresolved. This is reinforced, in my opinion, by the reporting of the Commissioner's questions. These were reported in a manner which suggested (wrongly, although that is irrelevant for present purposes) that he referred to a difference of opinion with the Board and all of the executives named, a difference which led to a request for the resignation of two of the other executives involved. Of course, the careful and reflective reader will observe that the plaintiff's resignation was not sought by Mr Hamilton, and that it (or his leaving) came a year later than the other resignations, but in my opinion the ordinary reader would be left with the understanding that the plaintiff left with (and in an unstated way because of) the question of civil or criminal misconduct unresolved.
63. In my opinion the article does not convey the fourth imputation. I have considered with care the trial judge's reasoning on this point. It is correct that the plaintiff is linked with Mr Baker and Mr Reichert, and that their "resignations" are reported in terms implying dismissal. It is also true that they are not said to have been dismissed, and so the language used of them does not draw a clear distinction between them and the plaintiff. But it is plain from the article that Mr Baker and Mr Reichert were dealt with differently, and that the plaintiff and Mr Martin remained with Beneficial Finance Corporation after they had left, and for about a year. It is also clear that the Premier's statement to Parliament related to the resignations of Mr Baker and Mr Reichert alone. In my opinion the trial judge erred in finding that the article imputed that the plaintiff had been dismissed.
64. It follows that I agree with the trial judge's conclusion as to the first and third imputation. I respectfully disagree with his conclusion as to the second imputation.
THE FIRST ARTICLE - WAS IT A FAIR AND ACCURATE REPORT? 65. I have concluded that the first article conveyed two defamatory imputations which are embraced by or within the meaning attributed to the article by the plaintiff.
66. There is the first imputation, that the plaintiff, had engaged in conduct involving loans to executives which had brought him into conflict with the board on the issue of appropriate conduct and which raised a question or suspicion of criminal or civil misconduct, but no more than that.
67. And there is the third imputation, that the plaintiff had left his employment with Beneficial Finance Corporation under a cloud because of questionable conduct involving loans to executives.
68. In conveying that meaning, is the article a fair and accurate report of Mr Simmons' evidence? If it is, then by s7 of the Wrongs Act it is privileged unless it is proved to have been published maliciously, and subject to certain provisos.
69. I agree with the approach which His Honour identified as the approach to be taken in answering this question. As His Honour said, there can be no objection to a summary of evidence, as long as it is substantially accurate. Minor inaccuracies must be accepted, subject to the same proviso. Like His Honour, I accept the approach which Hunt J took in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63:
"The issue will be whether the report of which the plaintiff
complains substantially altered the impression which the
reader would have received if he had been in court; if there
is in the report a substantial misrepresentation of a
material fact prejudicial to the plaintiff's reputation, the
matter complained of is not a fair protected report
(citation omitted). A fair report is a substantially
accurate summary of the proceedings, neither more nor less.
The question is not whether it is fair or unfair to any
particular person; the question is whether it substantially
records what was said and done (citation omitted)."
70. I merely add that in my opinion one must assume that the person in court on the occasion in question heard all of the evidence accurately and remembered all of it.
71. In my opinion the article is a fair and accurate report to the extent that it reports that Mr Simmons said that the plaintiff had been involved in conduct involving loans to executives which conduct raised a question of civil or criminal misconduct. In my opinion that is the clear tenor of the evidence which Mr Simmons gave before the Royal Commissioner began to ask questions. In my opinion the answers which he gave to counsel, after the Royal Commissioner's questions, were to the same effect. I do not read these further answers as limited to Mr Baker and Mr Reichert, the two executives whose resignation was the subject of the Royal Commissioner's questions. I read the questions and answers as returning to the conduct of all four, albeit by way of further explanation to the Commissioner of the manner in which the resignations were handled. In that respect, I differ from the trial judge. He found that the reference to the Premier being "very angry", and to the "Melbourne joint venture", related only to Mr Baker and Mr Reichert, but that the article was written in a manner which linked the plaintiff to these matters. I agree with what he says about the article, but in my opinion in that respect the article does not alter the impression conveyed by Mr Simmons' evidence.
72. In my opinion Mr Simmons' evidence linked all four executives to conduct involving loans to executives, to a question of "civil or criminal misconduct" or conduct which might "be criminal rather than civil" (I do not think that any difference in meaning is conveyed by the different expressions), and to an investigation (not completed when Mr Simmons spoke to the Premier) into these matters.
73. But, in my opinion, the article was not accurate in reporting that Mr Simmons said that there had been a difference of opinion between the board and all four executives relating to appropriate conduct for them. The article was written in a manner which conveyed this impression of Mr Simmons' evidence. I agree with the trial judge that the questions on this topic related only to Mr Baker and Mr Reichert. And I am of the opinion that this was a significant point of distinction. It is one thing to have engaged in conduct which "raised a question" but was still under investigation, another thing to have had an actual difference of opinion with the Board over the question of appropriate conduct, even through the precise link between the two (conduct under investigation and difference of opinion) is not explained.
74. So, in my opinion, the article was not a fair and accurate report to the extent that it reported that Mr Simmons had given evidence of a difference of opinion between the plaintiff and the Board on the matter of appropriate conduct. In my opinion the article conveyed the impression that this difference in some way involved loans, and so was in that sense on the same topic as the "question of civil or criminal misconduct". But what the article reports is an actual difference of opinion, not just a question still under investigation.
75. It follows, to look ahead for a moment, that in my opinion this is a defamatory imputation, and that in this respect the article is not a fair and accurate report. But, when one considers the question of damages, one must take into account that the article fairly and accurately reports that conduct involving loans and under investigation had raised "a question of civil or criminal misconduct". Where the article errs is in reporting a collision with the Board on this matter.
76. In my opinion the article is not a fair and accurate report to the extent that it imputes that the plaintiff had left his employment with Beneficial Finance Corporation under a cloud because of questionable conduct involving loans. Mr Simmons gave no evidence at all touching the plaintiff's departure. In my opinion the article does link the plaintiff's departure to the questionable conduct.
77. This means that the plaintiff is entitled to damages in respect of the first article, but only in respect of the two imputations identified by me. I will come later to the question of damages. But, as I have already indicated, in my opinion the fair and accurate report that conduct of the plaintiff involving loans raised a question of civil or criminal misconduct must affect the amount of damages to which the plaintiff is entitled.
JUSTIFICATION
78. I do not understand the defendant to have contended that these two imputations should have been found by the judge to be justified. What it sought to justify was an imputation of suspicion based on reasonable cause, which imputation, on my approach, it had no need to justify.
AVAILABILITY OF WRONGS ACT DEFENCE
79. The plaintiff argued before the trial judge, and by a Notice of Alternative Contention on appeal, that the defendant's refusal to publish a letter written by the plaintiff in answer to the article, deprived the defendant of the protection of s7. Proviso (b) to the section provides as follows:
"Provided that -
...
(b) the protection intended to be afforded by this section
shall not be available as a defence in any proceedings if it
is proved that the defendant has been requested to publish
by the same newspaper ... a reasonable letter or statement
by way of contradiction or explanation of such report or
other publication and has refused or neglected to do so."
80. The plaintiff wrote to "The Advertiser" after reading the article. At the time he believed that Mr Simmons had not, in evidence, assented to the question (p 13442) about civil or criminal misconduct. The reporter in question believed that he had. Later, (and after the letter was written) by direction of the Commissioner, the answer "yes" was added to the transcript.
81. The plaintiff's letter, the judge found, was not a "reasonable letter" because it stated the plaintiff's belief that Mr Simmons neither intended to nor did make any allegation to the Premier or to the Royal Commissioner of criminal or civil misconduct extending to the plaintiff. The judge said:
"For the defendant to have published the letter as it stood
would have amounted in the circumstances to an admission of
seriously inaccurate reporting and could well have invited
protests, if not more, from its reporter and from Mr
Simmons."
82. The judge regarded the balance of the letter as attracting an obligation to publish, but held as a matter of law, and rightly in my opinion, that the defendant's obligation related to the letter as a whole, and that it was not for the defendant to excise parts of the letter which parts did not attract the operation of proviso (b).
83. The case is, in this respect, an unusual one. It is one thing for the plaintiff in his letter to deny, as he did, any misconduct. But the plaintiff chose to assert what Mr Simmons intended and (wrongly) what he had said (or not said) in evidence. I do not think that the publication by "The Advertiser" of the plaintiff's letter would have amounted to an admission of "seriously inaccurate reporting", as the judge concluded. The letter would have been understood by the ordinary reasonable reader as containing the plaintiff's claims, not necessarily facts. But it might have invited contradiction by the reporter and by Mr Simmons, as the judge pointed out. And, in my opinion, on the question of what was said in evidence, I consider that the letter was not reasonable because it denied that Mr Simmons had given the evidence which he in fact gave. In my opinion "The Advertiser" was entitled to stand its ground on this point and to treat as not reasonable a letter which contradicted its belief as to Mr Simmons' testimony. In doing so it ran the risk of being proved wrong, and losing its defence under s7. But a letter which contradicted the fact of Mr Simmons' testimony (as things turned out) was not a reasonable letter. Had this letter made the point that the transcript did not record an answer to the relevant question, and raised a doubt about what Mr Simmons had said, in my opinion it would have been a reasonable letter for the purpose of section 7.
84. Accordingly, the judge was right to reject the plaintiff's argument on this point.
MALICE
85. The plaintiff pleaded that the defendant was actuated by malice. This required proof by the plaintiff. In this context "malice" embraces the desire to injure the person who is defamed, or the misuse of the occasion which gives rise to the privilege. In the latter sense one considers whether the defamatory statement was published for a purpose foreign to the privileged occasion, which here was the reporting of evidence given to a Royal Commissioner. One must consider whether there is evidence of an ulterior motive or purpose. To prove malice the plaintiff must prove that the desire to injure or the other ulterior motive are the dominant motive for the publication. These principles are established by the speech of Lord Diplock in Horrocks v Lowe (1975) AC 135 at 149.
86. The trial judge dealt at the one time with malice in relation to both articles. Although that involves me in considering now circumstances related to the second article, it is convenient to do so.
87. The trial judge made a finding of fact which, to my mind, is more or less fatal to the plaintiff's argument on motive. Referring to the journalists and others involved in the articles he said:
"However, I have no reason to think that the two journalists
and the editorial superiors did not believe that the
articles were a fair and accurate report in each case or
that they wrote and published them with an indifference to
their fairness or accuracy or with any ulterior motive. I
can add, lest there be any doubt about it, that I am
satisfied that, when she wrote the first article, Ms Read
(the reporter who was present when the evidence was given
and whose name appeared at the head of the article) believed
that Mr Simmons answered "yes" to Mr Abbott's question, as
indeed she noted at the time."
88. Having so found, the judge went on to deal with the specific matters which the plaintiff alleged in support of his plea of motive. It is unnecessary to deal with all of them.
89. The plaintiff relied upon the fact that the defendant proceeded on the basis that there was no doubt that Mr Simmons had answered the relevant question, even though the reporter had used the uncorrected transcript which did not record an answer. It seems to me that the judge's finding answers this point. The defendant's confidence in the accuracy of its reporter's notes does not, in my opinion, indicate any ulterior motive.
90. The plaintiff relied upon the refusal or failure to publish letters (there were several) written to it by the plaintiff and by his solicitors. In my opinion, that in itself is unexceptional. I do not think that the failure to publish disclaimers or responses will often provide proof of motive because, as Lord Diplock pointed out, such an attitude is consistent with a belief in the truth and accuracy of what has been written: Horrocks v Lowe
(1975) AC 135 at 154. In the present case, in my opinion, both articles appear to have been written with some care (despite inaccuracies) and they were not extravagant or sensationalist in their style. I find no intrinsic evidence of malice. While that is not decisive, in such a case I would be slow to infer malice from a failure to publish letters by way of response to the articles. To put it simply, one must be careful to distinguish standing one's ground from a desire to seize an opportunity to cause harm.
91. The plaintiff also relied upon a failure to publish the fact that a report by the Auditor-General had exonerated the plaintiff of wrongdoing. In addition, and linked to this matter, the plaintiff relied upon the manner in which the defendant conducted its case, particularly its persistence in pleading that the plaintiff had been involved in wrongdoing after the Auditor-General had exonerated the plaintiff, and its pursuit of the plaintiff in cross-examination on these matters. The judge found that certain of the defendant's pleas were insupportable, and made without proper enquiry. But he was not prepared to find that the defendant's conduct evidenced malice. He said:
"I am not satisfied, however, that the defendant has been
shown to have defended this action before trial in bad faith
or improperly or unjustifiably, with the exception, as I
have already found, of the matters described in paragraphs
10 to 12 of the particulars of malice. Nor do I consider
that the conduct of the defence at the trial itself supports
the plaintiff's aggravation argument."
92. It is difficult for this Court, on appeal, to recapture the atmosphere of the trial, or to comprehend the nuances of the evidently protracted pre-trial manoeuvrings of the parties. I remind myself that my concern is with the defendant's state of mind at the time of publication. Litigation often leads to hostility not previously present. There are signs here that the defendant conducted its defence of the action vigorously and quite aggressively. But the trial judge was aware of that and took it into account. Bearing this in mind, and the firm findings of the trial judge, who in this respect is best placed to judge, I am not prepared to conclude that he was wrong.
THE SECOND ARTICLE - THE PLEADINGS
93. The plaintiff pleaded the following imputations, said to arise on the natural and ordinary meaning of the words used.
"(a) The plaintiff had engaged in criminal conduct in
connection with a loan or loans made to him;
(b) The plaintiff was a party to a conspiracy within the
State Bank Group in connection with multi million dollar
unauthorised loans;
(c) The plaintiff had received one or more loans which were
not approved or authorised and which provided greater
benefits to him than those to which he was entitled and that
the plaintiff had been involved in criminal, or at least
civil, misconduct in connection with obtaining those loans;
(d) The plaintiff had received a loan which had not been
approved or authorised and which provided benefits in excess
of his entitlement, in relation to a joint venture with a
Melbourne developer, which loan was $37 million in default;
(e) The plaintiff had engaged in criminal or at least civil
misconduct in connection with that loan;
(f) The plaintiff's conduct in relation to the stated loans
was such as to render him not a fit and proper person to be
or remain a Beneficial Finance executive or to be or remain
in any other position of trust."
94. Once again the defendant pleaded a lesser imputation. Omitting the particulars pleaded, the defendant said that the words meant that:
"(a) The plaintiff was suspected of having engaged in
criminal conduct in connection with a loan or loans made to
him; ...
(b) A preliminary audit had revealed that the plaintiff had
received one or more loans which were not approved or
authorised by the board of directors of BFC, provided
greater benefits to him than those to which he was entitled
and that the plaintiff was suspected of having been involved
in criminal or at least civil misconduct in connection with
obtaining these loans; ...
(c) It was Simmons' opinion that the plaintiff's conduct in
being involved with loans to BFC executives meant that the
plaintiff should no longer remain in the employment of BFC."
95. As to these imputations, the defendant pleaded truth.
96. And, once again, the plaintiff pleaded that if this was the meaning of the words used, the meaning carried the further imputation that the relevant suspicion was well founded.
THE SECOND ARTICLE - THE IMPUTATIONS PLEADED AND THE IMPUTATIONS MADE
97. The judge found that the graphic (see above), resolved adversely to the plaintiff the ambiguous reference in item 6 of Mr Simmons' note to something which might be "criminal rather than civil". It was unclear, he said, whether this comment in Mr Simmons' note referred to the loans referred to in the first sentence or to the joint venture loan. The graphic was presented in a manner which resolved the doubt, he said. This conclusion was assisted by the headline and by the manner in which the article (see line 44 in particular) broke paragraph 6 into three separate paragraphs. He referred to the difference between Mr Simmons' note and the text of the article as "subtle", but in the end significant.
98. In my opinion the first of the pleaded imputations does not arise. I do not consider that the article imputes criminal conduct, even by its reference to a conspiracy. In my opinion it does no more, read as a whole, than report evidence about conduct which Mr Simmons considered "may be criminal". The distinction between "may be" and "is" is significant. In my opinion the article observes it. In my opinion it does not state or imply that any suspicions were well founded. However, in my opinion the article does impute a suspicion of criminal conduct in connection with loans, and this lesser imputation is within the scope of the plaintiff's pleading.
99. In my opinion the second of the pleaded imputations is conveyed by the opening paragraph of the article (lines 6-12). The ordinary person would understand the plaintiff to be one of those involved in the conspiracy.
100. In my opinion the third of the pleaded imputations is conveyed by the article. It reports the obtaining of unapproved and unauthorised loans, and that that conduct raised the suspicion of criminal rather than civil misconduct. The article does suggest that the misconduct is at least civil misconduct, the question being whether it is criminal.
101. In my opinion the fourth of the pleaded imputations is conveyed by the third paragraph (lines 12-14) of the article. The loose language implies that four executives were involved in the joint venture.
102. In my opinion the fifth of the pleaded imputations is also made out. The second and third paragraph of the article are clearly linked. They state, in effect, that the plaintiff was involved in the $37 million joint venture. The graphic and line 44 of the article all combine to suggest that what is being said is that the loan referred to does involve civil misconduct, and conduct which might be criminal. This is to be contrasted with the first of the pleaded imputations, which alleges an imputation of criminal conduct as a fact.
103. In my opinion the sixth of the pleaded imputations is made out, in the sense that lines 57-59 of the article, in the light of what came before, impute that Mr Simmons had expressed the view in his notes that the plaintiff's conduct in relation to loans was such that he was not fit to remain an employee of BFC.
104. Each of these imputations is defamatory of the plaintiff.
THE SECOND ARTICLE - WAS IT A FAIR AND ACCURATE REPORT? 105. In my opinion the article was a fair and accurate report in relation to the first imputation which I have found. I respectfully disagree with the trial judge. I consider that there is no ambiguity in Mr Simmons' notes. They do state, in my opinion, that the loans involving the plaintiff "may be criminal rather than civic." I consider that part 6 of the note, taken as a whole, is dealing with a single topic, loans, of which one example is given, and that the comment relates to all of the loans.
106. In my opinion, in relation to the second imputation the article is not a fair and accurate report. The "conspiracy of silence", to which Mr Simmons referred, was obviously related to the handling of loans. But I consider that the first paragraph of the article suggests a more active form of conspiracy, and one which has more serious overtones than a "conspiracy of silence" - which in common speech often means little more than a failure to disclose.
107. I consider that in relation to the third imputation the article is a fair and accurate report. I consider that Mr Simmons' notes are capable of meaning that the unauthorised loans involving the four executives "may be criminal rather than civil", in the sense of at least civil misconduct and possibly criminal misconduct. To the extent that his notes are ambiguous (and I do not think that they are) I consider that the article does not become unfair or inaccurate in resolving that ambiguity. We know from the notes that the loans were regarded as unapproved and unauthorised. We know from the notes that Mr Simmons thought the loans revealed a "conspiracy of silence", and that the four executives "will have to go". In this context I consider that the impression conveyed by the article, of civil misconduct and possibly criminal misconduct, is substantially the impression that the listener in court would have got.
108. As to the fourth and fifth imputations, (which are linked) my conclusion is that the article is not a fair and accurate report. Mr Simmons' notes indicate clearly, in my opinion, that the loan he "looked at" was but an instance of the loans which caused concern, and left open the question of which of the executives was involved in it. It did not imply that all four were. In my opinion the first three paragraphs of the article imply that the joint venture arrangement did involve all four executives. In that respect it is inaccurate.
109. But, in my opinion, the defamatory imputation is largely overshadowed by the third imputation, because the fourth and fifth imputations involve no more than a specific instance of the third (protected) imputation - involvement in loans that may be criminal rather than civil. This is a factor which must be considered in relation to damages.
110. It follows that in imputing misconduct in relation to that loan the article is not a fair and accurate report. The defence under s7 of the Wrongs Act is not available.
111. The article is, I conclude, a fair and accurate report in relation to the sixth imputation. Mr Simmons' notes clearly mean that the plaintiff's conduct in relation to loans was such that, in Mr Simmons' opinion, the plaintiff could not remain employed by Beneficial Finance Corporation.
112. It follows that the plaintiff succeeds subject to justification, in my opinion, in relation to the second, fourth and fifth imputations.
113. I regard the second imputation as serious. It goes, in the ordinary person's mind, well beyond merely unauthorised behaviour. I regard the fourth and fifth imputations as less serious, because the plaintiff has already been identified as involved in loans which gave rise to the possibility of civil or criminal misconduct.
114. It follows that I differ from the trial judge in relation to the second article. I have found that there were defamatory imputations which were not protected by the defence of fair and accurate report, being imputations which the judge found were protected. And I have not put the emphasis upon the graphic which the judge did. But in the end I agree that the plaintiff was entitled to succeed.
THE SECOND ARTICLE - OTHER MATTERS
115. I agree with the judge's reasons for concluding that the failure to publish a letter from the plaintiff relating to the article did not deprive the defendant of protection under s7.
116. I have dealt with the question of malice.
117. The judge found that the defendant had failed in its attempt to justify these imputations. That finding was not attacked in appeal.
DAMAGES
118. It is appropriate that I should summarise my conclusions.
119. As to the first article, the plaintiff is entitled to damages in respect of two imputations. First, that conduct of the plaintiff relating to loans had brought him into conflict with the board on the issue of appropriate conduct and the plaintiff's conduct raised a question of criminal or civil misconduct. Secondly, an imputation that the plaintiff left his employment with BFC because of conduct relating to loans which conduct raised unresolved questions of civil or criminal misconduct. But the article fairly and accurately reported that conduct of the plaintiff involving loans had raised a question of civil or criminal misconduct.
120. There is not a great deal of difference between my findings and those of the trial judge. He found for the plaintiff also on an imputation relating to "the Melbourne joint venture", whereas I have not.
121. As to the second article, the plaintiff is entitled to succeed in relation to the reporting of a conspiracy in connection with unauthorised loans. But the reporting of unauthorised loans involving a question of civil or criminal misconduct is not actionable. The plaintiff is also entitled to succeed in relation to the imputation that he was involved in the joint venture loan, but this adds little to the issue of involvement otherwise in unauthorised loans.
122. The judge found, on the basis of slender evidence, that the plaintiff was dismissed from employment with Leal Boss as a result of the publication of the first article. There was no evidence from the plaintiff as to the reasons given for his dismissal, as to the way in which it was effected, or as to any attempt by him to obtain reasons. The judge thought it unrealistic to criticise the plaintiff for not calling someone from Leal Boss to say why he was dismissed. That I accept, but I find it difficult to understand the silence from the plaintiff himself about the circumstances of the dismissal.
123. The difficulty which I have with the assessment of damages arises from the fact that, as I have found, the article was not actionable to the extent that it reports that the plaintiff had been involved in conduct relating to loans which raised a question of civil or criminal misconduct. The imputations on which the plaintiff is entitled to succeed are more definite - a conflict with the board (not just a question) and leaving employment under a cloud - but knowing nothing about the circumstances of the dismissal from Leal Boss, I do not consider that one can conclude on the balance of probabilities that the defamatory imputations were the cause of the dismissal. I would not favour a pedantic approach on this issue, nor would I call for strict proof on such a difficult issue. But I cannot accept the soundness of a finding for the plaintiff in the light of what the defendant reported in the first article without incurring liability, and knowing nothing at all about the reasons for the dismissal.
124. In my opinion the plaintiff's evidence does not provide a basis for an award of economic loss in respect of his employment with Leal Boss. On the scant evidence given it is moreover, impossible to say what effect the defamatory imputations have had on the plaintiff's employment prospects since his employment with Leal Boss came to an end.
125. In the end, the issue is one of causation. Did the plaintiff prove that the defamatory imputations caused the loss of his employment and subsequently damaged his prospects of re-employment? This is not the same issue as that with which I deal next, namely, the effect on damages of other defamatory but privileged or protected statements.
126. It is on this issue of causation that I am unable to agree with the trial judge.
127. I turn now to the question of damages for injury to reputation.
128. As to the first article, it might be said that the defamatory imputation did not add a great deal to those parts of the article which were able to be published with impunity. But damage was done to the plaintiff because the article implied more than conduct causing suspicion. It is not clear what effect there may be on damages when a lesser imputation is either justified or privileged, and a greater one is found to have been proved.
129. The basic rule at common law in relation to damages is that damages may be reduced by reference to the poor character which a person possessed before publication. This stems from the fact that the tort relates to a loss of reputation, and it is material to determine the plaintiff's previous character to help measure that loss (see Duncan and Nield on Defamation, 2nd ed, at (18.17)).
130. It is also open to a defendant, even if it cannot completely justify an allegation (for example, that a plaintiff has six convictions for dishonesty), to partially justify that allegation (by proving two such convictions) and be liable for damages only for the remainder: see Speidel v Plato Films (1961) AC
1090 at 1141-2 Lord Denning.
131. This rule might seem to apply by analogy to the present case. That is, although some imputations were privileged, others were not. Therefore the defendant was liable to pay damages only in respect of those latter imputations. However, given that there was some discredit attached to the privileged imputations, and that the actionable imputations did not go greatly beyond this, it may be argued that the damages to be awarded for the actionable imputations should be reduced. This reduction would reflect the amount of damage caused to the plaintiff's reputation by the imputations which were privileged.
132. However, a court must be careful in taking this sort of approach. The mitigation principle has been kept within tight bounds. It is obviously open to abuse if it is used merely to pillory the plaintiff with various discreditable rumours, or to permit a defendant to escape substantial liability merely because someone else had initiated the damaging story which the defendant then printed (see, for example, Dingle v Associated Newspapers Ltd (1964) AC 371 at 396 Lord Radcliffe). Therefore, there have always been strict rules as to what evidence may be led to establish a previously tarnished reputation, and as to the range of situations in which mitigation is allowed and by reference to which factors.
133. In Dingle v Associated Newspapers Ltd (1964) AC 371, the defendant published an article which defamed the plaintiff, a town clerk, by alleging that he had acted in an underhand way in seeking for the town corporation to acquire certain shares at a certain price. It was considered that the defendant was liable in damages to the plaintiff for this article, and the question arose as to damages.
134. It appears that the matter of the share acquisition was first raised in a select committee of Parliament which was considering the Bill which would, among other things, effect the acquisition of the shares. The committee published a report which was critical of the plaintiff, stating among other things that the corporation had offered less than the shares were worth and that the corporation had presented a one-sided view which failed to disclose the true position of the company to be acquired.
135. The defendant was the publisher of the Daily Mail, which over the next six months referred to the matter more then twenty times. However, only the one article was both objected to and found to be defamatory. This article was said to have imputed sharp practice to the plaintiff.
136. The trial judge, in assessing damages, took into account a mitigating factor, namely the plaintiff's previously tarnished reputation. This tarnishing arose from what had been said about him in the report (which was covered by absolute privilege), and from previous non-actionable articles published on the same topic by the defendant and also by other newspapers. The House of Lords rejected this reasoning. While accepting that the defendant was only liable in respect of those parts of its article which were not privileged or which had not been justified (at 394 Lord Radcliffe), it was said that the trial judge had erred in reducing damages by reference to the damage caused to reputation by the previous articles. In the leading speech, it was said (at 396 Lord Radcliffe):
"In my opinion, it would be directly contrary to principle
to allow (evidence of other statements about the same
subject matter). A libel action is fundamentally an action
to vindicate a man's reputation on some point as to which he
has been falsely defamed, and the damages awarded have to be
regarded as the demonstrative mark of that vindication. If
they could be whittled away by a defendant calling attention
to the fact that other people had already been saying the
same thing as he had said, and pleading that for this reason
alone the plaintiff had less reputation to lose, the
libelled man would never get his full vindication. It is, I
think, a well understood rule of law that a defendant who
has not justified his defamatory statements cannot mitigate
the damages for which he is liable by producing evidence of
other publications to the same effect as his; and it seems
to me that it would involve an impossible conflict between
this rule and the suggested proof of tarnished reputation to
admit into consideration other contemporary publications
about the same incident. A defamed man would only qualify
for his full damages if he managed to sue the first defamer
who set the ball rolling: and that, I think, is not and
ought not to be the law." See also Lord Denning at 411-412
and Lord Morris of Borth-y-Gest at 415-418.
137. In my opinion, this reasoning is also applicable to the present case. Of course the defendant is only liable for that part of the article which is not privileged. Therefore one must subtract from the defamatory effect of the article that effect which derives from the non-actionable parts, in accordance with Lord Radcliffe's approach. However, one may not reduce the award of damages which would go to vindicate the plaintiff in relation to a false imputation, merely because other statements have been made (either in the same article or in other previous articles) which are almost as discreditable but which are justified or privileged.
138. In the present case, for instance, the fact that suspicion had been cast upon Mr Chakravarti, far from reducing the damage likely to be done to him by further imputations, was a fact that made him more vulnerable to damage by inaccurate reporting. The fact that someone is in the parlous situation in which Mr Chakravarti found himself is not a fact which calls for a less careful handling of reputation.
139. However, the second article involves a slightly different situation. I have noted above that the fourth and fifth imputations are to some extent overshadowed by the third imputation (that the unauthorised loans may involve civil or criminal misconduct), which imputation was privileged, as the imputations complained of are to some extent only specific instances of the wider, protected imputation. However, there is a sense in which they produce a greater defamatory effect than would be produced without them, one which goes beyond the sting of conduct that "may" be criminal or civil misconduct.
140. In my view, this second article, which came after the dismissal, was if anything the more serious libel. The imputation of a conspiracy involving unauthorised loans was a serious one, but of course by now the plaintiff had lost his job.
141. The trial judge assessed special damages (or economic loss) at $175,000, and general damages at $75,000. Recognising that there was "a good deal of arbitrariness about the division of damages", he assessed damages in respect of the first article at $225,000 and in respect of the second article at $25,000. It seems clear that His Honour attached nearly all of the economic loss to the first article. He said that most of the injury resulted from the first article.
142. Recognising the advantage which the trial judge had in this respect, I am reluctant to interfere with his assessment of general damages.
143. There are, of course, differences between the imputations upon which he founded and upon which, in my opinion, the judgment for the plaintiff can be sustained. But overall the impact of the imputations is, in my opinion, much the same.
144. The award was a high one, but the imputations were quite serious. I realise that it is now for me to assess damages afresh, having found that the trial judge's award cannot be sustained, but I consider it appropriate to give weight to His Honour's assessment.
145. In respect of general damages, it is difficult to distinguish between the two articles, but I accept that the first to be published may have caused the greater damage. I would fix damages at $45,000 in respect of the first article and at $40,000 in respect of the second article.
146. For reasons already indicated, I would dismiss the cross-appeal by the plaintiff.
147. In my opinion the orders of the Court should be that the appeal be allowed, that the judgment for the plaintiff be set aside, that there be substituted a judgment in favour of the plaintiff in the sum of $85,000 and that the cross-appeal be dismissed.
JUDGE2 PERRY J This is an appeal against a judgment pronounced in favour of the respondent for damages for two separate libels which the learned trial Judge found appeared in issues of the Advertiser newspaper published by the appellant on 15 and 18 July 1992.
2. The text of the articles and the circumstances surrounding their publication are set out in the reasons for judgment of the Chief Justice.
THE FIRST ARTICLE
3. In my opinion, the respondents claim based on the first article should have been dismissed on the ground that the defamatory meanings pleaded by the respondent cannot fairly be attributed to the article in question.
4. It is important to have regard to the meanings asserted in the plaintiff's statement of claim. They were:
"4. In their natural and ordinary meaning, the said words
(insofar as they relate to the plaintiff) meant, and were
understood to mean that:-
(a) the plaintiff was involved in criminal or civil
misconduct, whilst an executive of Beneficial Finance, in
respect of loans from Beneficial Finance to himself.
(b) The plaintiff's conduct in receiving loans direct to
himself as an executive of Beneficial Finance which loans
were in excess of his entitlement was such as to render him
not a fit and proper person to be or remain a Beneficial
Finance executive or to be or remain in any other position
of trust."
5. That was a plea which raised, as popular or false innuendoes, two specific inferences said to arise from the article.
6. With respect to the learned trial Judge, it is not at all easy to discern in his reasons for judgment an express finding one way or the other as to whether or not those meanings were fairly attributable to the words complained of. Instead, almost as though putting aside what the respondent had pleaded, the learned trial Judge simply found in general terms different inferences which he thought an ordinary reader would conclude. As to this, he found:
"The ordinary reader would conclude that the plaintiff's
conduct had brought him, as an executive of Beneficial, into
collision with 'the board' (of either Beneficial or the Bank
- it matters not which) and that the matter of his conduct
was of such gravity that it raised a question whether it
amounted to criminal or civil misconduct, with the
possibility tending towards the former rather than the
latter in the view of the Chairman of both Boards. While
'the Melbourne joint venture', reference to which had made
the Premier particularly angry, was not explained, any
reader was likely to infer that it was something
discreditable to those involved in it who included, the
article implied, the plaintiff. There was also an
imputation that the plaintiff had left Beneficial under a
cloud, most obviously because of his questionable conduct.
In my opinion the article was defamatory of the plaintiff."
7. With respect to the learned trial Judge, I find it difficult to relate those findings to the meanings asserted in the statement of claim.
8. As to paragraph 4(a) of the statement of claim, the respondent clearly advanced a case based on an inference of actual "criminal or civil misconduct", whereas the article imputed no more than a question or suspicion of such conduct. While it is true that there are cases where a meaning not pleaded but which is of the same kind but less injurious than the pleaded meaning may properly be found in favour of a plaintiff, that course should not be followed where to do so would be unfair to the defendant. In my opinion, an allegation that the respondent was actually involved in criminal or civil misconduct is so different from an allegation of mere suspicion that it would be unfair to the appellant to find for the respondent on such a basis.
9. It is true that the appellant pleaded in its defence that the words meant and were understood to mean only a suspicion of criminal or civil misconduct, but the respondent was not entitled to rely on an allegation in the defence as an alternative basis on which to assert a basis of liability not asserted in his own pleading. Indeed, the respondent in his reply joined issue with the assertion that the meaning was restricted to suspicion only of criminal and civil misconduct, and asserted that the article "carried the further imputation that the suspicion was well founded". The respondent cannot be permitted to eschew the meaning suggested by the appellant but then be permitted to recover on the basis of that meaning, when the only meaning which he asserts in his own pleading is not made out. On the other hand, if the respondent had accepted the more limited meaning suggested by the appellant, and made it part of his case against the appellant, the course of the trial may well have been radically different.
10. There is no suggestion that during the course of the trial the respondent departed from his position as pleaded. In those circumstances, he is bound by his pleadings and the course of the trial.
11. As to paragraph 4(b) of the statement of claim, the words "the plaintiff's conduct in receiving loans direct to himself as an executive of Beneficial Finance which loans were in excess of his entitlement" cannot be regarded as arising out of the first article as the article does not refer to loans "in excess of his entitlement". The balance of the plea in 4(b) is, as the appellant contended during the hearing of the appeal, merely a rhetorical flourish.
12. It follows that the respondent's claim based on the first article should have been dismissed on the footing that the defamatory meanings asserted in the statement of claim could not fairly be attributable to the words complained of. In those circumstances, it is unnecessary to address the question of the applicability of s7 of the Wrongs Act 1936 or the defence of fair and accurate report of the proceedings at common law.
13. I would allow the appeal with respect to that part of the judgment as relates to the first article.
THE SECOND ARTICLE
14. I agree that the plaintiff's claim based on the first, third and sixth imputations failed for the reasons given by Doyle CJ
15. I would agree with the reasons of Doyle CJ with respect to the second article in upholding the judgment in favour of the respondent with respect to that article, on the basis identified in the Chief Justice's reasons.
16. I agree that the claim for economic loss was not made out.
17. As to the assessment of damages with respect to the second article, I would agree with the observations made by the Chief Justice and with his assessment of $40,000.
18. I further agree that the cross-appeal by the plaintiff should be dismissed.
19. In the result, I would allow the appeal, set aside the judgment for the plaintiff pronounced by the learned trial Judge, and substitute a judgment in favour of the plaintiff in the sum of $40,000.
20. The cross-appeal should be dismissed.
JUDGE3 WILLIAMS J This appeal concerns two articles published in The Advertiser newspaper on 15 July 1992 and 18 July 1992 respectively. The facts of the case (including copies of the articles themselves) have been set out fully in the reasons given by other members of this Court. My present analysis is directed to highlighting matters where my process of reasoning or conclusions have departed from other members of the Court.
"SPOT THE DIFFERENCE". 2. The problem in this case is analogous with the task required in well known newspaper competitions where the reader is asked to find slight differences in detail between two cartoons which are displayed side by side. In the present case the problem is to identify differences in the substance of word pictures contained in three publications - firstly the statement of claim (paragraphs 4 and 7), secondly the two newspaper articles themselves and thirdly the Royal Commission evidence and exhibits. In addition, (bearing in mind the appeal process), there is fourthly a need to compare the substance of these three publications against the conclusions of the trial judge.
A PRELIMINARY QUESTION
3. I have found it convenient as a starting point to satisfy myself (as I have done) that the provisions of s7 of the Wrongs Act would be available by way of defence if the newspaper articles are (upon their proper construction) "fair and accurate" within the meaning of that section. My reasoning appears later but it is fundamental to my process of reasoning that I should foreshadow this conclusion so as to leave the way clear for a discussion of the process of analysis of the documents as discussed below.
A PROTOCOL FOR COMPARISON
4. A procedure for comparing the "word pictures" of the various documents in a case such as the present may be developed in accordance with the following protocol:
1. The allegations in the statement of claim as to the
plaintiff's assertions must form the benchmark against which
the other publications must be measured. If the matter of
the plaintiff's complaint does not fall fairly within the
terms of the issues joined at trial, then it is not to the
point to identify actionable imputations in the newspaper
articles which have not been placed in issue on the
pleadings. At the outset of the case the defendant must be
put fairly on notice of the case which it has to meet so
that it can consider its defences and the evidence which
will be adduced. In some civil cases justice can be
achieved by allowing amendments to the pleadings in the
course of trial or during the appeal process. In the
present circumstances, I consider that it is necessary to
limit the plaintiff to his pleadings and to the issues as
joined at trial. An examination of the pleadings is crucial
in order to identify the ambit of the dispute.
2. The newspaper articles must be examined alongside the
statement of claim with a view to detecting whether each
pleaded assertion as to alleged imputation marries up with
the terms of the actual publication. If the published
article does not contain the pleaded imputation then the
plaintiff must in that respect immediately fail. However if
and to the extent that the newspaper does contain the
impugned material then the plaintiff will have crossed the
hurdle and the newspaper article may then be subjected to
the next stage in the process of comparison of documents.
3. The newspaper article (to the extent that its
imputations lie within the framework of the statement of
claim) may then be compared with the Royal Commission
transcript of evidence and any relevant exhibits. At the
end of the day, if the published article is seen to
satisfactorily reflect the Royal Commission proceedings,
then the defendant will be absolved from liability by the
operation of the Wrongs Acts7 - the availability of which I
have assumed as earlier mentioned. However, if the article
does not pass this test and if its defamatory meaning has
been established upon the proper construction of the
pleadings then the plaintiff will succeed unless some other
defence is available. I am not now concerned to consider
any other defence.
5. The trial judge appears to have taken a different and shorter path than the protocol above described. Undoubtedly, this has led the appellant to seek our leave to include the following paragraphs in the notice of appeal:
"His Honour erred in failing to make findings as to which
(if any) of the imputations pleaded by the respondent arose.
His Honour erred in failing to find that the imputations
pleaded in paragraphs 4(a) and (b) and 7(a)(c)(e)(f) of the
amended statement of claim were not conveyed by the first
and second articles respectively." (I would give leave to the appellant to amend the notice of appeal in the terms sought).
6. The trial judge appears to have passed over the close scrutiny of the statement of claim (and especially par4 thereof) mentioned in step 1 of the protocol and the comparison of the statement of claim and the newspaper articles mentioned in step 2 of my protocol. Instead, His Honour has made his own assessment of the criticisms which might be made of the newspaper articles (in the light of the Royal Commission proceedings) as if the matter were at large before him. In my opinion, upon the facts of this case the pleadings must give a degree of rigidity to the proceedings if justice is to be achieved. As the procedure which I have outlined was not followed at trial, I consider that it is necessary for this court itself to go through the task which I have described and to "spot the difference" (or alternatively the coincidence) between the pleadings and the newspaper articles after a preliminary analysis of the ambit of the allegations contained in the statement of claim - subject to the effect of any subsequent pleading.
SUSPICION V GUILT
7. The statement of claim asserts that each of the two newspaper articles contains an imputation that the plaintiff was guilty of certain discreditable conduct whereas the defendant has pleaded by way of defence that the imputation was only of a suspicion of such conduct. The plaintiff in reply has maintained that if the defendant's assertion be correct then there is an imputation that the suspicion was well founded. I think that the plaintiff is trying to have his cake and to eat it. In my opinion, the essence of the plaintiff's pleading is an assertion that the article contains overtones of guilt and I propose to confine the plaintiff to that assertion alone irrespective of the different ways in which ostensibly it has been pleaded.
8. In the absence of any alternative primary allegation by the plaintiff asserting an imputation of suspicion, I do not think that the defendant was required to consider how it might extend its pleading or its evidence to deal with such a situation. In some circumstances an allegation of suspicion of guilt could be treated as a "lesser" allegation within Prichard v Krantz
(1989) 37 SASR 379. However, having regard to the way in which issue was joined in this case, I would not be prepared to accommodate the plaintiff in this respect. The parties by their pleadings have dictated the issues and must live by them in circumstances where to do otherwise would result in injustice to one of them.
THE FIRST ARTICLE
9. The statement of claim only relies upon "the natural and ordinary meaning" of the contents of the newspaper articles. As regards the first article the plaintiff asserts in par4 of the statement of claim:
"In their natural and ordinary meaning, the said words
(insofar as they relate to the plaintiff) meant, and were
understood to mean that:-
(a) the plaintiff was involved in criminal or civil
misconduct, whilst an executive of Beneficial Finance, in
respect of loans from Beneficial Finance to himself.
(b) The plaintiff's conduct was such as to render him not a
fit and proper person to be or remain a Beneficial Finance
executive or to be or remain in any other position of
trust."
10. I consider that this pleading has a narrow ambit. Par(a) is directed to the suggestion that the plaintiff was involved in misconduct in respect of loans to himself.
11. Par(b) addresses the plaintiff's alleged unfitness by receiving these loans. Before this court it was asserted on behalf of the appellant that par(b) added little to par(a); I agree.
12. The first article deals with these instances of misconduct only in terms which allege a suspicion. If one accepts this, then the defence leads straight to the s7 defence which is then clearly made out in fact upon a reading of the Royal Commission transcript. I am not prepared to read anything more into pars4(a) or (b) so as (for example) to embrace obliquely an imputation relating to dismissal from or leaving of employment. If this was the intended thrust of the pleading then it should have said so directly in the same way as par7 of the statement of claim so clearly identifies the complaint with respect to the second article. I consider that the trial judge's criticism and his analysis of the first newspaper article went beyond the ambit of the pleadings.
13. In my opinion the defendant's pleaded justification of the first article and its reliance upon s7 should be upheld. In my opinion the plaintiff's claim with regard to the first article fails.
14. As an addendum, it should be noted (in the light of Prichard v Krantz) the manner in which I am prepared to follow through the effect of the "lesser" imputation of suspicion in terms of the defendant's pleading to the consequential defence. That course is to be distinguished from now accepting any new cause of action by the plaintiff based upon an assertion of suspicion - which the plaintiff's pleading simply rejects without alternative.
THE SECOND ARTICLE
15. The plaintiff pleaded six imputations with respect to the second newspaper article (in terms of par7 of the statement of claim) as follows:
"In their natural and ordinary meaning, the said words
(insofar as they relate to the plaintiff) meant, and were
understood to mean that:-
(a) the plaintiff had engaged in criminal conduct in
connection with a loan or loans made to him;
(b) the plaintiff was a party to a conspiracy within the
State Bank group in connection with multimillion dollar
unauthorized loans;
(c) the plaintiff had received one or more loans which were
not approved or authorized and which provided greater
benefits to him than those to which he was entitled and that
the plaintiff had been involved in criminal, or at least
civil, misconduct in connection with obtaining those loans;
(d) the plaintiff had received a loan which had not been
approved or authorized and which provided benefits in excess
of his entitlement, in relation to a joint venture with a
Melbourne developer, which loan was $37 million in default;
(e) the plaintiff had engaged in criminal, or at least
civil, misconduct in connection with that loan;
(f) The plaintiff's conduct was such as to render him not a
fit and proper person to be or remain a Beneficial Finance
executive or to be or remain in any other position of
trust."
16. In my opinion, the plaintiff succeeds with respect to par(d) and (e). The plaintiff complains that he was wrongly described in the article as being associated with a joint venture with a Melbourne developer in a way which reflected to the plaintiff's discredit. This complaint is fairly raised in the pleadings. It was also brought to the notice of the defendant by the plaintiff's letter dated 19 July 1992. In the "graphic" - comprising a purported excerpt from Mr Simmons' diaries - the defendant resolved an ambiguity on the face of the original diaries in a way which was unfair to Mr Chakravarti by clearly associating him with a joint venture with a Melbourne developer whereas the topic was left "up in the air" upon the face of the relevant diary itself. (My conclusion reflects that of the trial judge in this respect).
17. As regards allegation (b), my reasoning is also similar to that of the trial judge. His Honour concluded that the reference in the article to a "conspiracy" would not be, to the ordinary reader, "a substantially inaccurate representation of the diary notes". I consider that the newspaper report is a fair and accurate one in terms of s7 and is protected thereby.
18. In the case of allegation (a) I consider that the newspaper article asserts only suspicion whereas the ambit of par(a) is confined to guilt - upon which the defendant has joined issue as abovementioned. In any event, par(a) is a fair and accurate report of Mr Simmons' notes and would attract the protection of s7 if I were to take a different view of the Prichard v Krantz point and allow the plaintiff to rely upon the "lesser" imputation confined to suspicion. As regards allegation (c), I consider that the newspaper article again reflects Mr Simmons' notes and the report, being fair and accurate, is again protected by s7.
19. Allegation (f) is something of a make weight which, in the light of my conclusions, has relevantly no independent standing except as being supportive of conclusions in par(d) and (e). To this extent I will treat it as something giving rise to damage.
20. In summary, it is my view that the plaintiff is entitled to succeed in respect of the allegations set out in par7(d) and (e) statement of claim and also (to the limited extent above mentioned) in respect of par7(f).
21. Upon the question of damages, I do not consider that the plaintiff has established his claim for special damages for economic loss. I do not consider that a nexus has been established between the publication of the matters mentioned in par7(d)(e) and (f) of the statement of claim and the termination of the plaintiff's employment.
22. In my opinion the plaintiff's damages should be assessed at $40000.
WRONGS ACT SECTION 7 23. As foreshadowed at the commencement of these reasons, I concluded that the defendant, in principle, was entitled to rely upon s7 of the Wrongs Act in respect of each article. I agree with the trial judge's conclusions with respect to the application of this section. The defendant asked the plaintiff to publish letters in response to the articles but in neither case was the plaintiff's request reasonable. In the first instance the plaintiff proceeded upon a misapprehension of what had transpired in the Royal Commissioner's hearing; the transcript of evidence was eventually subject to correction. In the second instance, the terms of the plaintiff's letter were not reasonable; the letter makes reference to the "purported diaries" of Mr Simmons - a description which was not reasonable in the light of the evidence. The letter also reflected unnecessarily upon the authors of the newspaper article.
CONCLUSION
24. In other respects I consider that the trial judge was correct and I need not elaborate.
25. I intimate that this is not a case in which I consider that the Court should entertain an application by the respondent to amend pleadings at this late stage; the respondent in closing written submissions has foreshadowed this possibility. The case has been conducted in an atmosphere where the pleadings were crucial. It would be unfair to the appellant to allow the respondent now to shift his ground of complaint.
26. In my opinion this appeal should be allowed and the order of the trial judge should be set aside; the plaintiff's claim with respect to the first article should be dismissed and judgment should be entered for the plaintiff with respect to the second article for damages amounting to $40000. The parties should be heard with respect to interest and costs.
Key Legal Topics
Areas of Law
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Defamation
Legal Concepts
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Defamation
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Implied Terms
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Unjust Enrichment
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Contempt of Court
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Admissibility of Evidence
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Expert Evidence
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