Chapman & Ors v Conservation Council of SA & Ors No. Scciv-98-81
[2002] SASC 4
•21 January 2002
CHAPMAN & ORS v CONSERVATION COUNCIL OF SA
[2002] SASC 4WILLIAMS J
SUMMARY
Publication No 6 is defamatory of Mrs Chapman. Publications No 7 and 11 are defamatory of Mr Tom and Mrs Wendy Chapman. The remaining Publications No 1-5 and 8-10 are not defamatory of any plaintiff.
Publications No 6, 7 and 11 each appear in Environment South Australia (the journal of the Conservation Council) Publication No 6 carries the heading “President’s Message - Hindmarsh Island - Suppression of Free Speech”. Publication No 7 carries the heading “A Win for Freedom of Speech - a further update Hindmarsh Island (Kumarangk) Bridge”. Publication No 11 carries the heading - “Hindmarsh Island - Not so secret political business”.
The defamatory imputations arising with respect to Publications 6, 7 and 11 are set out in part 5 of the accompanying reasons; the defendants do not assert that any of these imputations are true.
The defences of fair comment and qualified privilege fail with respect to the defamatory publications. The dominant motive of each defendant was to damage the standing of Tom and Wendy Chapman in order to influence them and others to withdraw support for the building of a bridge to Hindmarsh Island. The conduct of each defendant was part of an orchestrated campaign to “target” and attack the Chapmans’ interests and to influence public opinion against the government and others who were interested in the bridge building contract.
The damages which Tom and Wendy Chapman are entitled to recover (as compensation for their injured feelings and harm to their reputations) are subject to mitigation by reason of the overlap between the effect of these libels and earlier libels which were the subject of a number of other actions and settlements involving other parties in respect of libels to the same purport. (see Wrongs Act s 11). The effect of this requirement has been brought to account.
The plaintiff Andrew Chapman has not been defamed but Tom and Wendy Chapman are entitled to damages assessed as follows:
Wendy
Chapman
Tom
Chapman
Publication No 6 Wendy Chapman is awarded as against Professor Shearman and the Conservation Council
$20,000
Publication No 7 Tom and Wendy Chapman are each awarded as against Ms Bolster, Mr Owen and the Conservation Council
$25,000
$25,000
Publication No 11 Tom and Wendy Chapman are each awarded as against the Conservation Council
$30,000
$30,000
Questions of interest and costs have yet to be determined.
INDEX
Page No
1 An overview of the plaintiffs’ case 5
2 The undisputed background 7
3 The Constitution of the Conservation Council 9
4 The legal principles
(a) The nature of libel 10
(b) The defence of qualified privilege 12
(c) The defence of fair comment on a matter of
public interest 14
(d) Abuse of privilege in Australia 15
(e) The exceptional case 20
(f) “Reasonableness” 225 The identification of defamatory imputations (and
consequential issues thereby raised on the pleadings) 236 Community values 27
7 Mr Owen’s anti bridge campaign
(a) The interest of the shack owners 29
(b) The relevance of a “campaign” 34
(c) The origins and extent of the campaign 36
(d) The underground campaign 408 Evidence of malice
(a) General evidence 42
(b) As regards Professor Shearman 44(c) As regards Ms Bolster 44
(d) As regards Mr Owen 45
(e) Particulars of malice as pleaded 459 The facts upon which the defamatory publications are based 47
(a) Suppression of free speech 47
(b) Developers’ planning obligations 5010 Ms Margaret Bolster 52
11 Professor Shearman 56
12 Mr Owen 59
13 Mr and Mrs Chapman and Andrew 62
14 The Non Party Witnesses 63
15 An application to amend the defence 66
16 Mitigation of damages 69
17 Analysis of the publications
1 Latest moves to build a bridge 79
2 ABC telecast 81
3 Media release-New alliance 82
4 Media release-How many wrongs 83
5 Hindmarsh Island-Update 84
6 President’s message 85
7 A win for freedom of speech .89
8 Hindmarsh Island & the human condition 91
9 The Washpool .92
10 Divide and rule .93
11 Hindmarsh Island-Not so secret political business .94
18 Schedule of publications
1 Latest moves to build a bridge 99
2 ABC telecast 101
3 Media release-New alliance 105
4 Media release-How many wrongs 107
5 Hindmarsh Island-Update 108
6 President’s message 110
7 A win for freedom of speech 112
8 Hindmarsh Island & the human condition 114
9 The Washpool 116
10 Divide and rule 118
11 Hindmarsh Island-Not so secret political business 119
19 Schedule of background facts 122
20 The planning process 127
21 Conclusion 129
1. An overview of the plaintiffs’ case
The plaintiffs’ claim damages for libel in respect of eleven individual publications occurring between 22 February 1994 and September 1995 or thereabouts. The text of each publication is set out in Part 18 hereof.
At the time of the publications for which they were responsible the personal defendants respectively held office within the Conservation Council - Professor Shearman as President, Ms Bolster as Vice President and Mr Owen (as from 2 August 1994) as a member of the Executive Committee or Board. It is not in dispute that where one of the abovementioned publications at its foot is attributed to one of the personal defendants by name (as appears in Part 18) then such person is the author (or co-author as the case may be) and is responsible for publication as relevant to this case.
It is the plaintiffs’ case that the Conservation Council and its officers in the course of a campaign against the building of the Hindmarsh Island bridge were party to attacks upon the reputation of the plaintiffs as persons known to be the developers of a marina and real estate project which would be serviced by the Bridge. The plaintiffs’ contend that the campaign was designed to influence public opinion and to persuade those with an immediate commercial interest to withdraw from the project or to abandon the bridge construction and continue to rely upon ferries to provide access to the Island. It is not in dispute that the commercial arrangements to build the bridge were contractually locked in place by the South Australian government in March 1993; thereafter it was not possible for a new government (elected in December 1993) to avoid the contractual commitment without monetary compensation (unless Parliament legislated to the contrary or the parties waived their rights or there were some intervention in exercise of Federal law). The campaign waged under the aegis of the Conservation Council can be identified as originating in May 1993 and continuing in one form or another from about October 1993 at least throughout the next two years. The campaign gained momentum in February 1994 when the State Government (after an enquiry by The Hon Mr SJ Jacobs QC) publicly acknowledged the contractual commitment which it had inherited from the preceding Government). It is the plaintiffs’ case that there were aspects of the anti-bridge campaign (to which the defendants were party) which went beyond the bounds of justifiable debate or lawful protest; the 11 publications now in issue are claimed to be instances of these excesses in the course of “the struggle” (as Mr Owen describes it).
The plaintiffs’ allege that defamatory attacks were made through media releases and by publication of articles in Environment South Australia - a periodical produced by the Conservation Council for circulation amongst its member organisations and the conservation movement more generally. Volume 4 No 3 part 1995 (which contains the most recent article of complaint) claims that the journal’s circulation is 6000 and that “unaudited readership 100,000 includes educational institutions, libraries, Government departments and member groups”.
The defendants deny the alleged defamatory imputations; in some cases there is a dispute as to whether the words have been written of and concerning the plaintiffs. The defendants also plead fair comment upon a matter of public interest and they further assert that the publications were made on occasions of qualified privilege (in accordance with common law principles and as these were extended by Lange – see below). In order to make out this last mentioned defence the defendants assert that their conduct as publishers was reasonable with respect to discussion of “Government or political matters” (see Lange v Australian Broadcasting Commission (1997) 189 CLR 520 at 574). There is an issue as to whether these defences are available but in any event the plaintiffs reply that any defence of fair comment or qualified privilege which might otherwise be available to the defendants is defeated because the defendants were actuated by malice.
In respect of some publications and to some imputations the defendants purport to plead truth as a defence but in each case the supposed justification is a false plea in that the defendants purport to deal with imputations which the defence puts forward rather than the imputations relied upon by the plaintiffs.
A special situation arises with respect to Publication No 11 the author of which is stated to be “Kumarangk Coalition”. It is alleged that a practice developed amongst the anti bridgers of publishing and operating under this assumed name in the course of the “struggle” with a view to creating difficulties for the plaintiffs in finding someone to sue in respect of tortious activity. It is not in dispute that the name Kumarangk Coalition (sometimes written Kumarank Coalition) was adopted soon after the Chapmans took steps in March 1994 to secure injunctive relief in the Federal Court against those who were alleged to be interfering with their banking services and the contractual arrangements to build the bridge. The fact that Publication 11 is published over this name is relied upon by the plaintiffs as one important thread in a case of circumstantial evidence as to the dominant motivation of the publisher.
The defendants claim that the Kumarangk Coalition is an amorphous body which cannot be identified. The plaintiffs’ case is that Ms Bolster as editor of Environment SA (and Vice President of the Conservation Council) was well aware of the Coalition’s place within the campaign structure and that the use of that name carried with it a particular significance. The Kumarangk Coalition requires separate treatment as does Mr Owen’s involvement in taking the campaign “underground” in order to escape legal responsibility.
To the extent that the defendants claim to have published (on occasions of privilege) material which is defamatory of a plaintiff it becomes important to examine the motivation for the publication. However, I understand the plaintiffs’ case to be that for the most part the defendants were intentionally and unjustifiably mischievous rather than malevolent but in any event the plaintiffs allege that a desire to inflict harm to the plaintiffs was uppermost in the minds of the defendants when publishing.
In AustralianBroadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 par 340 attention is drawn to difficulties facing plaintiffs in this type of case:
“A defence of qualified privilege is a very difficult defence for plaintiffs to overcome. No narrow view, rightly, is taken of public interest. It may extend to “the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion”. And, a defence of fair comment (absent malice) will prevail unless “no fair minded [person] could honestly hold [the] opinion [expressed]”. Proof of a defendant’s absence of good faith by a plaintiff is necessary to overcome a defence of qualified privilege, which imposes a very heavy burden upon a plaintiff, a proof in effect of a negative.”
(See also Pratt & Ors v British Medical Association [1919] 1 KB 244 at 275-276 where the meaning of “malice” is discussed).
Undoubtedly some ill will has been generated by the present proceedings but I do not assume that this necessarily relates back to the dates of the various publications. A great deal of time has been occupied in a seven week trial in taking evidence as to the motivation of the defendants and the reasonableness of their conduct. However care is necessary to distinguish between situations in which there may be the “mere presence” of malice and situations in which the publication is “actuated” by malice. It is also necessary to distinguish between the state of mind which as now relevant is called “malice” and the various mental elements which are associated with the economic torts (as discussed below) which were apparently committed or anticipated in the course of “the struggle”. To establish their case as to malice, the plaintiffs rely upon evidence extrinsic to the publications as well as material which is patent upon the face of the publications.
2 The undisputed background
The controversy surrounding the decision to build a bridge to Hindmarsh Island has been the subject of a Royal Commission and many legal actions. The framework of facts (apart from Mr Owen’s crucial role) is well known and is the subject of extensive documentation.
In the interests of economy I have reproduced in an appendix to these reasons [see Part 19] a chronology of some of the more significant events in this framework which was provided to me as part of the plaintiffs’ opening address. The case was fought against the background of that document (which I have slightly modified). Some of the items in that schedule were not formally proved. However on all trials much is taken by all parties as assumed and only those facts really in dispute strictly proved. In such cases what is assumed is in proof: in Re Robson [1952] SASR 101 at 105 per Napier CJ citing R v Higham 119 ER 1352 at 1355. For present purposes, I consider that the facts set out on that schedule have been sufficiently established or assumed by counsel.
Many of the items referred to in the chronology concern the planning process associated with Government approval for the building of the Hindmarsh Island bridge and for a real estate development. The steps in that process have also been reduced to tabular form in an appendix to these reasons. [see Part 20].
On 27 October 1989 the Department of Environment and Planning wrote to Conservation Council to place it on notice that an Environmental Impact Statement (EIS) had been required for a bridge to Hindmarsh Island in accordance with a decision of Cabinet on 23 October 1989. Guidelines for the preparation of the report were enclosed.
In November 1989 Binalong Pty Ltd issued for public comment a draft Environmental Impact Statement relating to a Bridge to Hindmarsh Island, Marina extensions and waterfront development. The Conservation Council responded to that proposal on 18 December 1989 expressing qualified approval for the proposal.
A supplement to the draft EIS was published in January 1990. Major Projects and Assessments Branch of Department of Environment and Planning issued its report on the project in March 1990. This report followed a requisition by the Department for a supplementary report dealing with anthropological issues; that report was supplied in January 1990 by Mr R Lucas.
On 11 April 1990 the Governor in Executive Council granted consent pursuant to s 51 of the Planning Act 1982 to Binalong’s application under s 51 of the Planning Act to the development of a bridge. On 12 April 1990 the Manager of Aboriginal Heritage Branch of the abovementioned Department exercising delegated powers under s 6 of the Aboriginal Heritage Act 1988 authorised Binalong to establish the marina/waterfront development subject to conditions. On 22 March 1993 a deed was executed between Minister of Transport Development, District Council of Port Elliot and Goolwa and Binalong Pty Ltd whereby the Minister agreed to procure the construction of the Bridge and roadworks; the deed provided for Binalong to contribute to the cost of the works by way of a debt to the Minister but subject to certain priority payments to Partnership Pacific Ltd (Binalong’s secured financier). Partnership Pacific is a subsidiary of Westpac Bank. On 9 September 1993 the Environmental Resources and Development Committee of the South Australian Parliament (ERD Committee) tabled a report as to its concerns regarding the building of the bridge. On 15 February 1994 (after obtaining a report from Mr Jacobs QC) the newly elected South Australian Government confirmed its intention to honour the contract entered into by its predecessor. In March 1994 the developer took proceedings in the Federal Court to restrain interference by protestors with the building of the bridge and the provision of banking services and on 29 March 1994 obtained interim injunctions which were modified on 19 April 1994. On that lastmentioned date interim orders against the Conservation Council, Professor Shearman and Ms Bolster were discharged for lack of evidence. On 7/8 May 1994 Professor Shearman and Ms Bolster attended a seminar conducted by the Environmental Law Association on the topic “Defending the Environment” where Professor Shearman complained in the course of a lecture about the oppressive effect of the Federal Court injunction upon the anti-bridge campaign.
My conclusion upon the reading of the background documents is that there was a process of community consultation before planning approval for the bridge was issued. The adequacy of that process became a matter for debate.
3 The Constitution of the Conservation Council
The Conservation Council of South Australia Inc is the peak (or “umbrella”) conservation organisation for South Australia and represents member groups (fluctuating between 50 and 65 in all) whose main purpose is conservation and protection of the environment; the Conservation Council claims that those combined groups represent over 60,000 members (and this is confirmed by Ms Bolster’s evidence). It is partially funded by grants from the Federal and State Governments. It is a non profit, non political party organisation. The evidence shows that the Conservation Council is influential in public affairs in South Australia. The Council is in a position through the goodwill of its members and associated organisations to provide expert advice to government and the community. The Council is also accustomed to lobby and to proselytise with respect to selected issues. My assessment is that the Conservation Council occupies a respected and powerful position of influence within the community.
As at September 1995 the Conservation Council ran 16 working groups to advise the Council on various environmental issues. One of these groups was the Environmentalists and Aboriginal Reconciliation Action Group (“EARAG”) whose purpose was declared to be “Promotion of Aboriginal reconciliation and the forging of links, particularly in relation to the conservation movement and environmental issues”.
Membership of the Conservation Council in terms of its 1993 rules is confined to organisations which become affiliated with the Council and which meet a strict set of criteria. Such organisations have voting rights via councillors appointed to represent the organisation at meetings of the Conservation Council; the number of councillors to be appointed by a particular organisation is dependent upon its own membership in accordance with a prescribed scale. It is the practice of the Conservation Council only to admit incorporated bodies to membership. (As a result of this requirement the admission of The Friends of Goolwa and Kumarangk to membership of the Conservation Council was deferred for some months until May 1994 to enable the association to become incorporated).
The Executive Committee (which includes the President, Vice President, Secretary, Treasurer and committee members) are elected by the councillors in general meeting from amongst their number but the Executive Committee itself has power to fill vacancies by election or appointment (see Rule 55); there is also a power to include staff on the Executive.
The rules contemplate the creation of Research Action and Resource Groups or Committees but these groups are not required to pay an affiliation fee. The operation of these groups is required to be reviewed by the Executive from time to time (see Rule 44 & 56).
The Conservation Council employs salaried core staff but it is largely dependent upon voluntary activity. Ms Bolster explained how a degree of informality is necessarily associated with the flexible workings (in an organisational sense) of the various sub-committees and working groups; these may hive off a matter of interest to a designated subgroup to satisfy the exigencies. Ms Bolster explained how those participating voluntarily in the affairs of the Conservation Council “came and went” as their interest in a particular topic waxed or waned or as the topic of interest was disposed of.
This evidence is important in order to understand how Mr Owen (when he expressed an interest) was so quickly absorbed into the workings of the Conservation Council in the latter part of 1993 without formality. It also assists in explaining how the Kumarangk Coalition could be created as an apparent entity working alongside other interests within the Council. Ms Bolster’s evidence also explains how (until the Friends of Goolwa and Kumarangk became incorporated during 1994) the Friends’ organisation after May 1993 was treated as a de facto member of the Council.
Having regard to the issues in this case I have found it to be convenient to refer to the terms of the 1993 constitution; I note that this has since been substantially revised. Although the 1999 revision (incorporating changes in November 1995 and February 1999) is much easier to read than its predecessor there is no great change in structure. I note that provision has now been made for three Vice Presidents instead of only one.
4 The legal principles
(a) The nature of libel
The gist of the tort of libel is the publication of material (in this case words) conveying a defamatory imputation. Such an imputation is one to the plaintiff’s discredit or which tends to lower him in the estimation of others or causes him to be shunned or avoided or exposes him to “hatred, contempt or ridicule”. This lastmentioned phrase has been criticised as too narrow and the test proposed in Sim v Stretch (1936) 52 TLR 669 by Lord Atkin is “Would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?” However untruth alone does not render an imputation defamatory. The issue is whether the words in their particular context impinge adversely upon the reputation of the particular plaintiff. (see also Reader’s Digest v Lamb (1981) 150 CLR 400 at 505-506 and Berkoff v Burchill & Anor [1996] 4 AER 1008.)
An imputation which may tend to injure a person’s reputation in his business calling or office is defamatory if it imputes to the plaintiff some quality or lack of quality which is essential to that business calling or office. The mere fact that the words tend to injure the plaintiff in the way of his calling is insufficient to found an action unless they involve a reflection upon personal character or professional reputation [see Milmo, P & Rogers, WVH, Gatley on Libel and Slander (9th ed) Sweet & Maxwell London, 1998, par 2.26].
An allegation of insanity will diminish confidence in a person and may therefore be defamatory. (Morgan v Lingen (1863) 8 LTR 800). However, to say that someone is “crazy” or “lunatic” when taken in context does not necessarily impute a mental disorder. “Sheer lunacy” as descriptive of conduct may therefore not be construed literally (see Gatley supra at 2.6 and cf Publication No 4).
Words or matter which merely injure the feelings of the plaintiff or cause annoyance but without in any way reflecting on character or reputation or tend to cause the plaintiff to be shunned or avoided are not actionable as defamation [Gatley supra at par 2.9]. However, if the words are defamatory then the court may have regard to the injury to the plaintiff’s feelings in fixing damages. Words which tend to cause inference with a person’s business are not as such defamatory unless they tend to injure the plaintiff’s reputation.
It is the effect of a statement upon right thinking members of society generally which provides the criterion by which an imputation will be judged. It is the impression which the statement would produce upon the minds of the average reasonable person which stands to be considered. However in applying this test it is necessary to put aside conclusions which (although excited by the publication) substantially arise by reason of an individual’s own beliefs and prejudices. In Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Mason J said 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.”
It is sufficient that the imputation in a statement is one which might lead at least a group of people to think less of the plaintiff so long as the statement is made to members of that group. (see Krahe v TCN Channel Nine Pty Ltd & Ors (1986) 4 NSWLR 536 at 544). However in such a case it will be necessary for the plaintiff to plead the sectional attitude as an extrinsic fact; that has not happened in the present case which has been argued with reference to general community attitudes. (see Reader’s Digest Services Pty Ltd v Lamb (1981) 150 CLR at 500 at 507).
(b) The defence of qualified privilege
Qualified privilege at common law was described by Lord Atkin in Adam v Ward [1917] AC 309 at 334:
“...a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”
Qualified privilege is defeated if the plaintiff proves that the defendant was activated by “express” or “actual” malice. The plaintiff must prove that the defendant’s dominant motivation was something not directly connected with the privilege so as to constitute an abuse of the privilege of the occasion. The usual motive is a desire to injure the plaintiff.
This defence has been “extended” by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The court after reviewing the limits of common law privilege and the criterion for its application then pointed out the shortcomings involved in applying the principle of Adam v Ward to a publication made to the general public. The High Court (without disturbing the operation of existing principle) then grafted onto the general principle a test to meet the circumstances where the occasion is claimed to be privileged only on the footing of the relevance of the published matter to a discussion of government or political matters and where otherwise the audience would be too wide to attract the general defence of qualified privilege.
The High Court said at 571:
“...this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter.”
and at 574:
“Having regard to the interest that the members of the Australian community have in receiving information on government and political matters that affect them, the reputations of those defamed by widespread publications will be adequately protected by requiring the publisher to prove reasonableness of conduct. The protection of those reputations will be further enhanced by the requirement that the defence will be defeated if the person defamed proves that the publication was actuated by common law malice to the extent that the elements of malice are not covered under the rubric of reasonableness. In the context of the extended defence of qualified privilege in its application to communications with respect to political matters, “actuated by malice” is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.”
and further at 574:
“Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing (that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.”
I have discussed below the topic of “reasonableness” and the circumstances in which malice might arise independently of conduct which is otherwise characterised as “reasonable” within the Lange test. At first blush it would seem that the presence of malice would be incompatible with reasonable conduct. My conclusion (as appears below) is that it was necessary for the High Court to express itself as it did in order to maintain a consistency between the Lange defence and the principle which it extends.
It is at present far from clear as to the ambit of the discussion which is protected by the Lange principle.
In Australian Broadcasting Commission v Lenah Game Meats [2001] HCA 63 par 196 Kirby J pointed out that:
“In Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, a majority of this Court held that, because of the integration of politics within the Commonwealth, the implied constitutional freedom of communication, as there expressed, protected political discussion in relation to all levels of government including State government. Whether that approach is compatible with the constitutional principle expounded in Lange has not yet been decided. It is not communication at large, nor communication relevant to politics generally, that is protected by the implication upheld in Lange. To be inconsistent, the law must conflict impermissibly with the postulated operation of the Constitution.”
For present purposes I have treated the Lange principle as having the capacity to include (at least potentially) matters germane to State and local government politics.
(c) The defence of fair comment on a matter of public interest
It is of the essence of this defence that the published material is an honest expression of opinion. An imputation of corrupt or dishonourable motives will render the comment unfair unless such imputation is warranted by the facts truly stated (see Publication No 6). The essential elements of the defence are:
(a)the words are an expression of opinion (as opposed to a statement of fact).
(b)the opinion is with respect to a topic of public interest.
(c)the comment was fair; this requires the opinion to be expressed on a matter of fact (or on privileged material such as the judgment of a court or the proceedings of Parliament) and to be expressed honestly (see Tobin and Sexton - Australian Defamation Law par 13010).
This defence will also be defeated by malice (the onus of proving which lies on the plaintiff). In Renouf v Federal Capital Press of Australia (1977) 17 ACTR 35 Blackburn J said at 54:
“If the plaintiff can show that the opinion represented by the comment was affected by personal hostility, or some such irrelevant motive, in such a way that it does not represent a disinterested judgment upon the matter which is the subject of the comment, then the reply of malice succeeds, notwithstanding that it is not proved that the comment...did not represent the defendant’s real opinion.”
Balkin and Davis Law of Torts (2nd ed) at 549 provides the following definition as to the extent of the fair comment defence:
“...criticism on matters of public interest, in the form of comment upon true or privileged statements of fact, such comment being made honestly by a person who did not believe the statements to be untrue and was not otherwise actuated by malice.”
In London Artists Ltd v Littler Grade Organisation Ltd & Ors [1969] 2 QB 375 Lord Denning MR said at 391:
“In order to be fair, the commentator must get his basic facts right. The basic facts are those which go the pith and substance of the matter: see Cunningham-Howie v Dimbleby [1951] 1 KB 360, 364. They are the facts on which the comments are based or from which the inferences are drawn - as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v Foot [1952] AC 345; but he must get them right and be ready to prove them to be true. He must indeed afterwards in legal proceedings, when asked, give particulars of the basic facts: see Burton v Board [1929] 1 KB 301; but he need not give particulars of the comments or the inferences to be drawn from those facts. If in his original article he sets out basic facts which are themselves defamatory of the plaintiff, then he must prove them to be true: and this is the case just as much after section 6 of the Defamation Act, 1952, as it was before. It was so held by the New Zealand Court of Appeal in Truth (NZ) Ltd v Avery [1959] NZLR 274, which was accepted by this court in Broadway Approvals Ltd v Odhams Press Ltd [1965] 1 WLR 805. It is indeed the whole difference between a plea of fair comment and a plea of justification. In fair comment he need only prove the basic facts to be true.”
(See also Nationwide News Pty Ltd & Anor v Redford [2001] SASC 198 par 43).
(d) Abuse of privilege in Australia
In determining the imputations which arise by reference to the natural and ordinary meaning of words, the intention and knowledge of the publisher are immaterial. However these two lastmentioned matters become of importance when the defence of qualified privilege is under consideration. The speech of Lord Diplock in Horrocks v Lowe [1975] AC 135 is authoritative as to the principles relating to “malice” in defamation law. However, it appears that in one respect the Australian approach to the question of malice is different from that which has found favour with Lord Diplock.
Under the general law (considered apart from Lange) a distinction is to be drawn between abuse of privilege and lack of privilege. This distinction may be difficult to apply in practice. In Adam v Ward [1917] AC 309 Lord Loreburn identified this distinction at 321:
“Language has been used in some cases which seems somewhat to confuse the two separate points, namely, whether the defendant has gone beyond the privilege which the occasion creates, and whether the defendant has forfeited the privilege by malice. Excess of privilege in part of a defamatory publication may of course be evidence of malice as to the whole of it, but the two things are different.”
Lord Finlay LC said at 318:
“The privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. The introduction of such extraneous matter may afford evidence of malice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication.”
Lord Dunedin said at 327:
“...if the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto, than to say, though the result may be the same, that the defamatory statement is evidence of malice”.
In Horrocks v Lowe [1975] AC 135 Lord Diplock expressly relies on Lord Dunedin’s speech when dealing with the case where the publication incorporates matter for which protection is unnecessary in order to satisfy the underlying legal purpose of the privilege. At p 151 Lord Diplock said:
“As Lord Dunedin pointed out in Adam v Ward [1917] AC 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference.”
As Adam v Ward shows, once an occasion of qualified privilege is found by the Judge, at common law the plaintiff must show, (if he can) that the defamatory matter was not published for the purpose of the privilege. In Guise v Kouvelis (1947) 74 CLR 102 at 117 Dixon J said:
“...since upon this issue the burden is upon the plaintiff, a question of the sufficiency of evidence to sustain the issue, which, of course, is one for the Court, is a question whether the plaintiff has displaced, not whether the defendant has established, privilege for the communication. Whether or not the occasion gives a privilege is a question of law for the judge, but whether the party has fairly and properly conducted himself in the exercise of it is a question for the jury: per Lord Campbell CJ in Dickson v Earl of Wilton (1859) [175 ER 790 at 793].”
Where the specific matter of complaint is part of a wider publication relating to a topic which itself would attract privilege, it seems that in Australia the distinction between absence of privilege for the occasion and abuse of a privileged occasion as identified by Lord Loreburn should be maintained.
In Bellino v Australian Broadcasting Corporation (1995) 185 CLR 183 the High Court of Australia made its analysis by reference to the various speeches in Adam v Ward. It seems that in Australia Lord Dunedin’s approach (as adopted by Lord Diplock in Horrocks v Lowe) has not been preferred.
In Bellino at 203 Brennan CJ summarised the position as follows:
“Except in those clear cases where the defamatory matter is “extraneous” in the sense of being “unconnected with and irrelevant to the main statement”, Lord Dunedin would have left the connection between the defamatory matter and the general subject matter of the publication as a factor for consideration by the jury in determining the issue of express malice. Lord Finlay’s exposition, on the other hand, requires the judge to consider that connection in determining whether the publication of the defamatory matter fell within the occasion of qualified privilege that covered the publication of the “main statement” and entitles the jury to take the same or a similar factor into account in determining the issue of malice.
In Australia, Lord Finlay’s analysis appears to have commanded assent in Code jurisdictions as well as at common law...”
And at 204:
“Protection for such a statement, however, is not determined by negating Lord Dunedin’s test of “unconnected with and irrelevant to the main statement”. It is determined by the positive criterion of relationship to or nexus with the relevant subject of public interest. That criterion is not satisfied unless the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest. In the present case, the question is whether those passages of the programme which contained the imputations found by the jury contributed to the discussion of the subjects of public interest specified in the defendant’s particulars. Before answering that question, it is convenient to refer to the issues (other than the publication of defamatory matter) on which the plaintiff bore the onus of proof and the judge’s function in considering the evidence on those issues.
As Adam v Ward shows, once an occasion of qualified privilege is found by the judge, at common law the plaintiff must show, if he can, that the defamatory matter was not published for the purpose of the privilege.”
(I note that Brennan CJ was in dissent in Bellino but that does not affect the usefulness of the above remarks).
In the present action, the defendants’ “primary case” (as defence counsel described it) relies upon the extended application of the defence of qualified privilege by virtue of the application of the principles in Lange. The defendants assert the “reasonableness” of their individual conduct on an occasion of qualified privilege by virtue of the subject matter of the publication being relevantly related to a discussion of government or political matters (see Lange at 573).
It seems to me that if the general common law principles already discussed are consistently applied to the “Lange extension” there will be some situations in which the ambit of the extended privilege (based on an analysis of “conduct”) will determine whether or not the privileged occasion encompasses defamatory matter written maliciously; there will be other occasions when the matter may be determined by reference to whether the privilege has been forfeited by the reason of abuse of privilege.
In Lange at 574 the High Court appears to have accommodated these two possible approaches in observing that the extended privilege may be defeated if the publication was actuated by common law malice “to the extent that the elements of malice are not covered under the rubric of reasonableness”. Whether or not the conduct of the defendant is “reasonable” may be measured partly by reference to the defendant’s own conduct and partly by reference to the behaviour of the plaintiffs (see Brander v Ryan (2000) 78 SASR 234 at 249). If one applies the principles discussed by Brennan CJ as abovementioned there may be circumstances arising out of the plaintiffs’ behaviour where the defendant has not gone beyond the privilege which the occasion creates but nevertheless forfeits that privilege if actuated by express malice - to be proved as a fact.
However, the ambit of malice as known to the common law and as extended by Lange may not entirely coincide. At 574 the High Court said:
“In the context of the extended defence of qualified privilege in its application to communications with respect to political matters, “actuated by malice” is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.
In Theophanous (1994) 182 CLR 104 at 137, the Court held that, once the publisher proved it was unaware of the falsity of the material, had not acted recklessly, and had acted reasonably, malice could not defeat the constitutional defence. But once the concept of actuating malice is understood in its application to government and political communications, in the sense indicated, we see no reason why a publisher who has used the occasion to give vent to its ill will or other improper motive should escape liability for the publication of false and defamatory statements. As we have explained, the existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was actuated by that ill will or other improper motive Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327-329. Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff’s onus of proof on this issue.”
This statement may be compared with Lord Diplock’s exposition in Horrocks v Lowe [1975] AC 135 at 150 with respect to common law malice:
“Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant’s dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.
Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity.”
It is the plaintiffs’ case that each of the defendants has not used the occasion of publication for the purpose of making a contribution to public discussion but for the predominant purpose of administering a blow to the reputation of the plaintiffs (or one or more of them) in furtherance of a campaign to persuade or coerce those involved in the bridge project to have a change of mind. The plaintiffs rely upon the circumstances of publication as well as the other extrinsic evidence and intrinsic evidence in the publication to support the allegation of malice.
(e) The exceptional case
Generally speaking the media do not have the benefit of the defence of qualified privilege at common law (see Morosi v Mirror Newspapers [1977] 2 NSWLR 749 at 777-8 and Stephens & Ors v West Australia Newspapers Ltd (1994) 182 CLR 211 at 261). This topic is also discussed in the passage from Lange which I have quoted. However, as the High Court acknowledged in Lange there are “a few exceptional cases”. The example given is Loveday v Sun Newspapers Ltd & Anor (1938) 59 CLR 503 at 525 where Dixon J identifies a social duty upon a newspaper to publish a reply to material which was published under the plaintiff’s authority; the course taken by the plaintiff completed the foundation for qualified privilege in that case.
Despite the way in which Stephens was qualified by Lange (so as to conform to the requirements of the Australian Constitution) the following extracts from the reasons given by McHugh J in Stephens provide guidance at 261:
“Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large. Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested. In Howe & McColough v Lees, Higgins J said that the word ‘interest’ was not used in any technical sense. However, his Honour said that the person must not be ‘interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news’. In the same case, O’Connor J said that the interest must be ‘of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it.”
And at 265:
“Accordingly, it is now appropriate for the common law to declare that it is for ‘the common convenience and welfare’ of Australian society that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers. The scientist who discovers that lack of governmental action is threatening the environment, the ‘whistleblower’ who observes the bureaucratic or ministerial ‘cover up’, and the investigative journalist who finds that grants of public money have been distributed contrary to the public interest are examples of persons who have special knowledge of matters affecting the exercise of public functions or powers or the performance of duties by public representatives or officials. If such persons, acting honestly, inform the general public of what they know about such matters, their publication will be made on an occasion of qualified privilege. The defence of qualified privilege will be available even if the information is subsequently proved to be incorrect. Thus, the occasion will still be privileged even if the ‘whistleblower’ mistakenly but honestly publishes information which defames another person or the scientist or journalist honestly overlooks some fact which undermines the thesis of his or her claim. The publication of erroneous information may be evidence of malice in some cases. But by itself an error in the published information will not destroy the occasion of privilege.”
Qualified privilege (if the conditions in Adam v Ward are satisfied) is available to meet the situation where a statement honestly made has insufficient foundation in fact. The defence of fair comment on the other hand requires that the comment be on a matter of public interest and based upon an adequate foundation of fact. The exceptional cases to which I have referred are only concerned with qualified privilege.
By reason of the way in which the plaintiffs in the present case chose to open up the public debate and alternatively by reason of the special topics which have been canvassed it seems to me that it is at least arguable that qualified privilege at common law might attach to communications with the subscribers to Environment SA. I have made this assumption for the purpose of my analysis. In this respect upon one view of the facts some of the publications in the present case may be the exception to the Morosi principle.
(f) “reasonableness”
The High Court in Lange adopted the test of “reasonableness of conduct” in light of the basic criterion contained in s 22 of the Defamation Act (NSW). Although the element of reasonableness of conduct under the Lange test is not necessarily tied to the New South Wales statutory provisions, decisions under that legislation may be helpful.
Thus in Austin v Mirror Newspapers Ltd [1986] 1 AC 299 at 313 Lord Griffiths on behalf of the Privy Council said:
“In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. These circumstances will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be.”
And at 317:
“The harder hitting the comment the greater should be the care to establish the truth of the facts upon which it is based.”
In Wright v Australian Broadcasting Commission & Anor [1977] 1 NSWLR 697 Reynolds JA (with Glass JA agreeing) said at 712:
“The connection between the subject and the defamatory imputation remains relevant. It may be tenuous, or it may be real and substantial. If what was said includes comment, it is relevant to consider whether it was fair and whether it followed logically from facts known or stated. Questions of the exercise of care before the defamatory utterance are also relevant, and questions as to whether the maker of the statement knew whether he was likely to convey a misleading impression. These are but examples of what I conceive to be involved in the inquiry to be made by the judge in order to determine whether the defendant has satisfied him that it was reasonable of him to defame the plaintiff in the way he did.”
I have brought these principles to account in my own assessment of the facts of this case.
5 The identification of defamatory imputations (and consequential issues thereby raised on the pleadings)
Brander v Ryan (2000) 78 SASR 234 contains a useful summary of the principles which I am now required to apply and the steps to be taken with respect to each publication in order to establish whether or not liability has been proved. The first step is to decide whether the words in question were written of or concerning the plaintiffs (or any of them) and whether any of the alleged imputations arise and, if so whether any such imputation is defamatory. I have undertaken this exercise in detail with respect to each publication later in this judgment (see Part 17) but it is convenient now to provide a synopsis of my conclusions as follows:
Synopsis of conclusions
Publication No 1
(22 February 1994)This is a media release which is critical of the Brown Government and of earlier dealings of the Bannon Government.
It does not reflect upon the reputations of the plaintiffs or upon their activities. The publication is not one which is written about the plaintiffs.Publication No 2
(22 February 1994)This is an ABC telecast which incorporates an extract from a speech by Ms Bolster. During the present trial ABC agreed to pay a lump sum to Mr Tom Chapman and Mrs Wendy Chapman with respect to defamation claims concerning a number of publications which included this one. The segment from Ms Bolster’s speech is clearly incomplete and it is not possible sufficiently to identify the context in order to assess whether the words spoken by Ms Bolster are defamatory. It is not possible to ascertain the meaning of the words for which Ms Bolster is responsible - whether defamatory or otherwise. These comments do not apply to the legal position of the ABC which was able to choose what to include in the broadcast.
Publication No 3
(9 March 1994)This is a media release with respect to a proposed rally outside Parliament House. It does not reflect upon the reputation of any of the plaintiffs..
Publication No 4
(15 March 1994)This is a media release which is critical of Government and its planners (presumably public servants). It is not a reflection upon any of the plaintiffs. Moreover, the media release in alleging “sheer lunacy” is not to be read literally so as to impute mental impairment.
Publication No 5
(say June 1994)This journal article associates Mrs Wendy Chapman with an injunction application but, I have reached the conclusion that this document standing alone is not defamatory. (However refer to Publication No 6).
Publication No 6
(say September 1994)
This journal article must be read together with the publication referred to in Publication no 5 to which the reader’s attention is drawn. The combined effect of Publications No 5 and 6 is defamatory of Mrs Wendy Chapman. The relevant imputation is set out later in this part of my reasons. Standing alone Publication No 6 is also defamatory of Mr Tom Chapman but I consider that Publication No 5, limits the effect of Publication No 6 and I therefore do not treat Publication No 6 as defamatory of Mr Chapman.
Publication No 7
(say Dec 1994)This journal article attributes oppressive conduct to Mr Tom Chapman and Mrs Wendy Chapman and is defamatory of them. The topic is a development of that which gave rise to Publications No 5 and 6.
Publication No 8
(say June 1995)This journal article is not dealing with any of the plaintiffs.
Publication No 9
(say June 1995)This journal article is not dealing with conduct of any of the plaintiffs.
Publication
No 10
(7 June 1995)This media release is an abridged version of Publication no 8. It is not dealing with any of the plaintiffs.
Publication
No 11
(say Sept 1995)This journal artic This journal article is defamatory of Mr Tom Chapman and Mrs Wendy Chapman. It suggests a failure on their part to observe their obligations in a way which calls in question their professional practices.
In my opinion only Publications 6, 7 and 11 are defamatory. Publication 6 (which is to be read in light of a reference back to Publication 5) is defamatory only of Wendy Chapman; Publications No 7 and 11 are defamatory of Tom and Wendy Chapman. I do not consider that the plaintiff Andrew Chapman is defamed by any publication.
Defamatory imputations
In respect of the three defamatory publications I find that the following imputations arise:
Publication No 6 That Wendy Chapman was party to the commencement of Court proceedings and the issue of legal letters for the purpose of (i) suppressing freedom of speech, (ii) stifling debate and (iii) stopping the Conservation Council from engaging in legitimate expression of opinion in public regarding the Bridge issue.
Publication No 7 That with respect to the right of freedom of speech upon the Bridge issue Tom and Wendy Chapman are oppressing the ordinary citizens of Goolwa.
Publication
No 11That during the planning process for the bridge the developers (Tom and Wendy Chapman) consulted with the aboriginal people in a less than meaningful way and with respect to the bridge building they failed to consult aboriginals when they had an obligation to do so.
Publications No 6 and 7 impute motive and conduct which the ordinary person would treat as dishonourable. Publication No 11 attributes to developers a cavalier attitude (at the least) in the discharge of their professional responsibilities.
In my opinion when read fairly and in context the natural and ordinary meaning of the words complained of in the statement of claim (with respect to Publications No 6, 7 and 11) carry the imputations set out above. In my judgment each of these imputations would tend to “lower Tom or Wendy Chapman (as the case may be) in the estimation of right thinking members of society generally”. They are statements which if false bring discredit upon the reputation of the persons about whom they are written.
During the course of the trial I gave the defendants an intimation which made it necessary for them only to address the imputations pleaded with respect to Publications No 5, 6, 7 and 11. The evidence (apart from that dealing with the defendants’ motives and the “reasonableness” of their conduct) in fact has been substantially confined to those publications and to the more general question of the identification of the plaintiffs in the various articles. However, in the four publications lastly mentioned there is an internal identification. Publication 5 identifies the activities of Wendy Chapman and this is carried forward into Publication No 6 by virtue of its cross-reference to Publication 5. Publication No 7 refers to “the Chapmans” but there did not seem to be an issue at trial that this was a reference to Tom and Wendy Chapman. Publication No 11 refers to Tom and Wendy Chapman as being the developers. (Without the aid of Publication No 5, the ordinary reader would have treated article No 6 as referring both to Tom and Wendy Chapman).
With respect to Publication No 6 the defendants plead a false issue. They assert that insofar as the words meant that the plaintiffs silenced the defendants from expressing valid concerns on the bridge by legal process then that statement is true. However, the imputation alleged by the plaintiffs (and the one which I find to be proved) is one involving the plaintiffs’ purpose. The relevant ground of defence does not directly deal with the meaning alleged by the plaintiffs and it provides no answer in law.
With respect to the imputation of oppression of ordinary people which is raised by Publication No 7 the defendants again plead truth insofar as the words complained of meant that the plaintiffs had caused people to be intimidated by legal proceedings or the threat of legal proceedings. In my view it is an embarrassment to introduce a plea which requires the Court to determine whether “oppression” mentioned in the publication is synonymous with the “intimidation and threat of legal proceedings” mentioned in the defence. If the defendants consider that the imputation alleged by the plaintiffs is true then the proper course is to plead directly to the statement of claim and not to some modification thereof, which the defendants may consider to be more advantageous to their case. Again, the defendants avoid joining issue with the plaintiffs and their false plea should be treated as having no force.
As regards Publication No 11 the defendants plead truth in respect of an imputation that the plaintiffs failed to properly consult with Aboriginal people during the planning process; however the defendants do not limit their assertion to the planning process for the bridge. To the extent that this plea deals squarely with one of the defamatory imputations which I have found to arise, it may be arguable that there is upon the pleadings an issue of fact to be determined as to whether or not during the planning process for the bridge the plaintiffs’ consultations with the Aboriginal people were less than meaningful. It is to be noted that in this plea (referred to by counsel as a Polly Peck Plea) the defendants do not assert that Wendy Chapman made an admission in the Federal Court as alleged in the statement of claim nor do they plead that any breach of condition attaching to the building of the bridge was committed by Tom or Wendy Chapman.
Upon a fair reading of the pleadings (despite what I have said in the previous paragraph) I do not consider that a defence of truth (or justification as it is often called) is properly raised. This conclusion was confirmed by the acknowledgements of defence counsel. His position was reaffirmed in the course of argument Despite the “false issues” which I have mentioned, it has not been difficult for the defendants (under the rubric of “reasonableness”) to canvass these topics in the course of presenting the “Lange defence”. Thus, the defendants have presented a case based upon alleged intimidation of the people of Goolwa by the plaintiffs with respect to legal proceedings so as to stifle free speech. The defendants have also put a case which alleges some breach of the planning process with respect to the bridge. The defendants have therefore been afforded a full opportunity to present the case of their choice and I do not consider that the plaintiffs have been disadvantaged in any substantial way.
Subject to consideration of the defences as pleaded and the reply it is my opinion upon the face of the statement of claim and upon bringing to account the matters admitted in the defence that the Conservation Council is liable in respect of Publications 6, 7 and 11 and that jointly with it Professor Sherman is liable in respect of Publication No 6 and that jointly with it Ms Bolster and Mr Owen are liable in respect of Publication No 7; upon this provisional view Mrs Wendy Chapman has been defamed by Publication No 6 and Mr Tom and Mrs Wendy Chapman have each been defamed by Publication No 7 and by Publication No 11.
6 Community Values
For the purposes of the law of libel a statement must be viewed in the light of the prevailing community standards. As appears from Part 5 of these reasons it is my judgment that only Publications No 6, 7 and 11 carry an imputation which is defamatory of any of the plaintiffs. It is convenient that I mention community values which are relevant to my assessment of these publications.
In my opinion right thinking members of society generally will be concerned with the plight of the Australian Aborigine - whether in an urban environment or in more remote areas. I consider that these members of society would be more demanding as regards the standards which they would expect a developer to observe when dealing with the disadvantaged than when dealing with those who are seen as better able to look after their own interests. To say (for example) that a person in commerce has been able to by-pass the interests of a banker is very different from asserting that during a planning “process” (ie when taking the steps required by law) one step with respect to consultation with Aborigines has been carried out by a real estate developer in a way which is less than meaningful (see Publication No 11). In my view society would condemn the latter conduct and it would reflect to the discredit of the person responsible.
The present case is different from that which arose in Chapman v Nationwide News [1999] SASC 553 where the relevant words of the article merely said that “consultation of Aborigines over the bridge has been insufficient”. The critical difference between that case and the present is the reference to an objective standard of the “planning process” in Publication No 11.
In about March and April 1994 the anti bridge campaign (to which I have referred in Part 1) stalled when Federal Court injunctions were obtained or foreshadowed. For a time some anti bridgers were unwilling to persist with their active participation in demonstrations and protests by reason of anticipated legal consequences. This has led to the publication of three articles Publications No 5, 6 and 7 (in successive parts of Environment SA – in about June, September and December 1994); Publication No 6 incorporates a reference to No 5. It seems to me that having regard to community values, Society’s attitude with respect to an allegation that a person was using court proceedings or threat thereof for the purpose of suppressing free speech of citizens with respect to matters of environmental importance and the planning process more generally – being matters of moment – will be regarded differently than if the issue were seen to be trifling. I do not consider that the imputation with respect to interference with free speech can be satisfactorily assessed at large and without having regard to the topic – in this instance “The Hindmarsh Island Bridge issue”. The statement of claim does not make any express reference to the topics with respect to which the plaintiff is supposed to have been acting to suppress freedom of speech. It is an allegation made generally. However, the grievance which is being aired is apparent upon the face of the Publications No 5 and 7 (and in the cross reference from Publication No 6 to No 5) and I have addressed the case upon this basis.
Community attitudes change. However, at the times of issue of Publications No 6, 7 and 11 I consider that the effect of the imputations arising with respect to these publications as regard the reputations of the plaintiffs is significantly affected by the issues which are seen to be at stake. My assessment of community values has thus led me to a conclusion that the reputation of Tom and Wendy Chapman (or one of them as the case may be) would be lowered in the eyes of right thinking members of society by Publications No 6, 7 and 11 by reason of the imputations mentioned in Part 5. My reasoning is developed in later parts of this judgment.
The defamatory nature of each imputation in Publications No 6, 7 and 11 lies in its tendency to excite against the relevant plaintiffs the adverse opinions or feelings of other people (being the reasonable readers of the publications). Each of the three publications reflects poorly upon the reputation of Mr or Mrs Chapman; each publication contains an attack upon the moral character or business practices of a plaintiff, attributing to him (or her) conduct, which judged by ordinary community standards, is unacceptable and leading to an adverse effect upon reputation. Publications No 6, 7 and 11 each has the effect of inviting the reader’s condemnation of Mr or Mrs Chapman (as the case may be).
In reaching this conclusion I have applied the principles discussed by Heuston, RFV & Buckley RA, Salmond & Heuston on the Law of Torts (21st Edition, Sweet & Maxwell Ltd, London, 1996 at 141):
“The test of the defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinions or feelings of other persons. The typical form of defamation is an attack upon the moral character of the plaintiff, attributing to him any form of disgraceful conduct, such as crime, dishonesty, untruthfulness, ingratitude, or cruelty. But a statement may be defamatory if it tends to bring the plaintiff into ridicule or contempt even though there is no suggestion of any form of misconduct. An action will lie, therefore, for the publication of a caricature of his personal appearance or manners. In some circumstances it might even be defamatory to say of a man that his acts were legally justified. Rightminded men sometimes think the less of one who has successfully pleaded a technical defence – eg the Gaming Acts or the Statute of Limitations. Successful litigants have in the past been booed on leaving the court. Again a statement is defamatory if it amounts to a reflection upon the fitness or capacity of the plaintiff in his profession or trade, or in any other undertaking assume by him.”
It is the standards of the right thinking member of society which are to be applied.
7 Mr Owen’s anti bridge campaign
(a) The interest of the shack owners
This is the story as to how Mr Owen a shack owner on Hindmarsh Island used his professional skills arising from his training as a research librarian and geography teacher in his struggle (on behalf of himself and the Friends of Goolwa and Kumarangk) to avoid the development which would be associated with construction of a bridge between the Island and Goolwa. He has not worked alone. He has harnessed the support and professional skills of academics as well as people living on the Island. Arguably, the government’s decision to build a bridge to Hindmarsh Island was not immediately accompanied by a comprehensive environmental management plan for the Island. If the anti bridgers had confined themselves to seeking improvements to the environmental management techniques and programmes then the issue would have been far less controversial. However, Mr Owen (and others with him) chose to oppose a decision of an elected government; this decision was effectively beyond recall (in the absence of intervention by the Federal Government) unless the parties entitled to the benefit of the commercial agreements could be persuaded to give way. A significant feature of the anti bridge campaign was therefore the attempt to coerce. Such a campaign is necessarily different from a normal political lobby.
It was open to Mr Owen and his supporters to try to convince the various commercial interests that there was a better way to develop than to build a bridge. Ostensibly this was tried but the reality is that in practice a bridge was necessary in order to satisfy the various commercial and governmental requirements. With the benefit of hindsight it can be seen that since February 1994 in terms of the public debate employing legitimate argument Mr Owen was fighting a losing battle without much ammunition unless the building of the bridge could be frustrated in law by the over-riding application of some Federal law. The campaign did include a successful attempt to invoke Federal law and to this extent a proper lobbying situation can be identified. That aspect of the campaign must be separated from steps which were designed merely to hurt the Chapmans or the bridge builders (including the South Australian Government.)
Mr Owen’s campaign purports to raise a number of “issues”. These are summarised in an information package dated 30 May 1994 and distributed at about that time The issues are there summarised as including:
“Aboriginal heritage issues
International agreements to protect wetlands for migratory birds
environmental management
the built heritage, particularly of Goolwa
poor planning policies and practices
civil liberties”
I draw attention to the way in which the campaign developed. It was an environmental campaign in May 1993; Aboriginal issues had been added by January 1994 and civil liberties after April 1994.
Mr Owen has a shack on Hindmarsh Island’s southern foreshore overlooking the Coorong estuary and the mouth of the Murray River. He has used the shack since 1980 but has only lived there permanently since 1998. His shack lies immediately to the west of and adjoining the “Mouth House”, a shack then owned by Ms Lewis and occupied at the relevant time (post October 1993) by Mr Milera (since deceased) and Mrs Milera. Mr Owen was a secondary school geography teacher in metropolitan Adelaide (having obtained an arts degree at Adelaide University majoring in geography and history). He also did some two years study in religious education. He undertook further training as a teacher/Librarian and took appointments with various school resource centres. In 1986 Mr Owen obtained an appointment at Adelaide College of TAFE as deputy principal in charge of the learning resources programme and he remained in this position until retirement in 1998. Mr Owen had responsibility for the “Learn Network” of all resource and training centres across TAFE. He was the Foundation President for 8 years of the Resource Centre Teachers Association where he gained experience (so I infer) at lobbying Government.
In my opinion Mr Owen is a clever man, he has literacy skills as a “wordsmith” combined with powers of advocacy as a lobbyist; he also has organisational ability. He has an assertive personality which no doubt contributed to his success in the affairs of the Conservation Council. Mr Owen’s prolific writings show that he is ready to take his assertions to the very limits of the truth but also prepared to go beyond that point. His letter to the District Council of Goolwa dated 21 December 1994 is an example. He was prepared to brand the Chapmans’conduct as “criminal” when it suited his purpose.
Mr Owen had been watching events since the original planning approval for the bridge by the Governor in Council issued on 11 March 1990. He had made a submission in response to the 1989 draft EIS (which he read). He has developed an intimate knowledge of the documents. His address to a public meeting at Goolwa on 8 October 1993 shows a remarkable knowledge of facts which must have involved some research effort. Mr Owen was generally aware of opposition to the building of the bridge as evident by petitions to Parliament in 1991, 1992 and 1993. In 1993 he became associated with a group of anti bridgers whose purpose was to lobby the State Government to try to exert pressure on the South Australian Government to change its mind in terms of its announced intention to build a bridge. This group became the Friends of Goolwa and Kumarangk. When it became evident in 1993 that the State Government itself was about to proceed with the bridge building he embarked upon a course to garner support for his cause and later to pursue action to thwart the project. Despite extensive litigation and a Royal Commission his pivotal role in the turmoil which was created has never been identified. The absence of the evidence of “key people” before the Stevens Royal Commission is acknowledged by Mr Owen in a letter to Justice Matthews dated 5 February 1996. Mr Owen wrote that letter in his capacity as Chair of the Friends of Goolwa and Kumarangk Inc. My finding is that Mr Owen himself is a “key person” with special knowledge.
In summary Mr Owen involved himself in the following steps:
(1)He approached a meeting of the Conservation Council on 21 May 1993 and solicited the Council’s support for opposition to the bridge building on environmental grounds. He made a written submission to the Council.
(2)He secured appointment to Conservation Council’s EARAG sub-committee (Environmentalists and Aborigines Reconciliation Action Group).
(3)He took steps to incorporate an organisation called the Friends of Goolwa and Kumarangk (a group of anti bridgers of which he was the President) so that it could affiliate with the Conservation Council and provide Owen with formal status under the rules of the Conservation Council to qualify for membership of the Conservation Council’s Executive.
(4)He wrote letters ostensibly in the name of a representative of Lower Murray Aboriginal Heritage Committee to members of Government and he provided detailed argument (upon reading of planning documents) for overturning the bridge building arrangements. He used his position of assistant to the Lower Murray Heritage Committee to obtain access to classified information (see s 35 Aboriginal Heritage Act) which he then used as part of his own writings. In this way he was able to link up the concerns expressed by Aboriginal interests with his own campaign.
(5)He provided briefing material to the media (for example Victor Harbour Times 17 March 1995 - and fax to Advertiser reporter Mr James - dated 3 June 1994).
(6)He participated in covert operations conducted under the name “Kumarangk Coalition” for the purpose of putting activities beyond the reach of court injunctions which were anticipated at the suit of the plaintiffs or their associated entities.
(7)He acted as a public face of the Kumarangk Coalition.
(8)He became a member of the Executive of the Conservation Council and used that position and his association with Friends of Kumarangk and Goolwa to develop an association with other bodies namely a trade union, Greenpeace and aboriginal interests for the purposes of protest against the building of the bridge.
(9)He went in search of argument justifying opposition to the bridge but he also looked to see how those involved with the bridge could be “targeted”. He then worked up a campaign in which he used his connections as set out above to disseminate his messages.
(10)He took part in the “counselling” of anti bridge pickets and he personally picketed the bridge site and attended protest meetings.
(11)He participate in the composition of various letters and leaflets (see for example a pamphlet distributed in the Goolwa district in about June 1994 which is expressed in extravagant terms in its criticism of developers).
(Mr Owen personally took his cause to Canberra in December 1993 as President of the Friends; he there met up with an Aboriginal delegation for the purpose of approaching government; I have treated his efforts in this respect as being part of a “proper lobbying situation” to which I have already referred and isolated from the campaign to hurt the Chapmans and the bridge builders).
The Wetlands of South Australia have been little islands in an often desert landscape. They were revered by indigenous people and exploited by Europeans, quite naturally, because the wetlands were few and this was a dry land.
Sleeping wetlands may be revived, not by a single kiss, but simply by taking away abusive elements. Ancient wetlands like The Washpool, await the magic of restoration ecology when they may again become the oasis for wild life on intercontinental journeys or simply a haven for less adventurous species.
Fish can come from nowhere, they seem to drop from outer space when the water returns - it can be like the miracle of creation. Reeds and rushes and complex invertebrate food chains make wetlands uniquely rich. The health of this planet depends not just on bio-diversity ie a wide range of species, but on species richness, because richness is the texture of bio-diversity, the dimension within variety. It implies distribution and numbers and many other factors. Species richness is a particular feature of wetlands. They are a refuge for endangered species, threatened because of loss of habitat.
For farmers, the richness of a region may be measured by the number of wet spots. During recent decades, it has been a money spinner for developers to drain wetlands, in old parlance ‘swamps’, and produce a crop of houses, usually unimaginative, as habitat for multiplying homo sapiens.
Gradually the eco-tourism potential from developing our wetlands is adding weight to the simple biological wisdom of conserving them.
The Washpool (near Aldinga Scrub) is one of an Aboriginal ‘songline’ of springs which includes Kingston Park, Hallett Cove, Port Noarlunga, Red Ochre Cove, Port Willunga, Sellicks Beach and Carrickalinga. It features in Tjilbruke Dreaming. There is speculation that the ‘songline’, or ‘dreaming trail’ ultimately may be established as connecting Kangaroo Island through Goolwa, Kumarangk, Mt Lofty, the Flinders Range and Alice Springs northward even up to Darwin.
Wetlands are the kidneys of the planet. The rest of the world has by and large destroyed its wetlands in the course of ignorant and greedy development. But it is not too late for SA to restore its wonderland of wetlands. The wisdom of Willunga Council and its many environmental groups can lead the way.
Margaret Bolster,
Vice-President, CCSAPublication No 10 - Media release 7 June 1995
HINDMARSH ISLAND and the
HUMAN CONDITIONDIVIDE AND RULE
A wise aboriginal man said recently “the human condition hasn’t changed. Aboriginal people were not intrinsically better than or different to white people. But Aboriginal Law had evolved to contain the human condition”.The Hindmarsh Island (Kumarangk) “issue” is a microcosm of the inadequacy of White Law to accommodate the Australian Indigenous culture. Our economic system is driven by competition and exploitation which were anathema to the Aboriginal way, comments CCSA.
“The Ngarrindjeri women, after 150 years of resignation and suffering, were finally empowered to help white society understand what their Law and Dreaming had taught them - that enough was enough. The Island, the River, and life itself can’t take any more abuse”, said Ms Bolster.
Intimidation or pseudo-legal, clever and expensive manipulation of real issues to achieve financial or political or media supremacy is ultimately destructive of the last toehold of aboriginal culture. This is spiritual rape feeding on fear, jealously, greed and loneliness.
Essentially Hindmarsh Island (Kumarangk) is an environmental and a spiritual issue. It lies nearly destroyed in a dying river. That the Colonists came and saw and conquered is historical fact. The explanation for the life crisis of Hindmarsh Island and the River in which it lies, is scientifically evidenced and recorded.
Anthropology simply provides insight and a spiritual explanation of the way in which Aboriginal Law would not have permitted this to happen. The Land was Mother to its people. We could learn and be enlightened.
“With love and commitment to a new partnership between black and white Australians we could move to a new way of seeing things. We risk losing the chance to change and are reverting to tactics of division and assimilation”.
“In the spirit of Reconciliation, these women have come together as a group. Thus identified, there are wealthy and powerful right-wing forces who apparently seek to discredit, undermine and destroy them. It is a very frightening moment in Australian history”, said Richard Owen.
What is at stake is clearly more than a Bridge to Hindmarsh Island.
Further comment:
Richard Owen Margaret BolsterPublication No 11 - Environment SA July/Sept 1995
Hindmarsh Island
Not-so-secret political businessFirst the bridge and now the commission to nowhere …all funded by SA taxpayers.
Despite increasing opposition the SA Government persists with a Royal Commission which it claims will decide the truth about the spiritual significance of Kumarangk (Hindmarsh Is) to Aboriginal women. Due to appalling reporting in commercial press many people in the community remain confused about the issues and believe the commission should continue as it will reveal the ‘truth’. Unfortunately Terms of Reference for the commission prevent it from investigating an of the issues which could reveal the political reasons for this assault on Aboriginal cultural beliefs. It is worth re-examining some of the history of this saga to identify who is currently benefiting and why the Commission should be abandoned immediately.
The Hindmarsh Island bridge should never have been an issue at all. There was and continues to be widespread local community opposition to building a bridge to Hindmarsh Island. This was ignored. The bridge was proposed by the State government as an adjunct to the terms of planning approval for Binalong developers Tom and Wendy Chapman to proceed with a marina and housing development on the island.
Despite widespread community and environmental concerns the Government decided to fund the building of the bridge to cost SA taxpayers $6.4m when the developers said they were unable to do so. It should be remembered that this bridge was believed to benefit a small number of Hindmarsh Is landowners. The bridge, objectively speaking, was never in the best interest of the SA community. At Berri a bridge was desperately needed to support crucial SA primary industries.
Consultation with the relevant Aboriginal groups throughout the planning process was token. Wendy Chapman has admitted in Federal Court that Binalong never consulted directly with any of the organizations listed as a condition for building the bridge.
In opposition the Liberals repeatedly indicated that they would stop the Hindmarsh Is Bridge. Once in Government they commissioned the Jacobs Inquiry which examined the financial and contractual obligations in relation to the bridge. The findings are undisclosed and the report exempt under Freedom of Information. Pre-election promises were rescinded and the bridge given the go-ahead in May 1994. Michael Armitage, State Minister for Aboriginal Affairs, authorised the Dept of Road Transport to do as much damage to Aboriginal sites as necessary for construction of the bridge. At the request of the Ngarrindjeri people and after investigation by constitutional lawyer Cheryl Saunders, Federal Minister Tickner declared a ban of the bridge for 25 years. The decision to stop the bridge was on the basis of all materials submitted to Saunders. The secret women’s business was just one part of the significance of the area to Ngarrindjeri people.
Attention returned to the Hindmarsh Is bridge in March 1995 with Ian McLachlan resigning, after admitting he had misrepresented events to the Australian public. McLachlan had authorised the photocopying of materials he had received which were meant for Tickner’s office. This included a male staff member copying the contents of an envelope marked ‘Confidential Appendices 2 & 3. To be read by women only.’ He had claimed that the envelope containing the secret knowledge was neither sealed nor marked confidential.
In May 1995, Liberal Party campaigner Sue Lawrie organised a meeting of the Aboriginal women who now claim the Kumarangk women’s business was fabricated (known now as he dissident women). In evidence at the Commission most of these women have revealed that they know little or none of their Ngarrindjeri language, traditional stories and mythology. Why should it be surprising that they have also not heard about the women’s business? This exploitation of divisions within Aboriginal communities for political purposes can only be viewed with sadness and abhorrence.
Based solely on frenzied media reports which ensued from the dissident women’s claims, the SA Government demanded that Tickner resign and an investigation be undertaken. Before the announcement of the Federal inquiry, Premier Brown had established the Royal Commission to determine ‘whether the “women’s business”, was a fabrication’. Contrary to endless media reports Tickner did not stop the building of the bridge solely on the basis of the women’s business and the contents of the secret envelopes. The basis of the Royal Commission is thus fundamentally flawed and its real purpose comes into question. In some respects the Royal Commission seems to be just another attempt to discredit Aboriginal beliefs as apart of a post-Mabo backlash. It also appears to be part of a campaign to discredit Federal Minister for Aboriginal Affairs, Robert Tickner, and to allow the reinstatement of Ian McLachlan on the Liberal frontbench in the approach to the Federal election. The women who hold strong beliefs in relation to Kumarangk have rightly said that they will not be a part of this inquisition into their beliefs So how can an adequate outcome ever be reached by this Commission?
Kumarank Coalition
Side note to above article
The next issue of ESA (to be distributed in January 1996) will feature an article by Paul Leadbeter (ELCAS (SA) Inc and Director Australian Centre for Environmental Law, the University of Adelaide), entitled Citizen Enforcement of the Development Act and the Environment Protection Act. In this Paul reminds us that “Where there is an apparent breach of the provisions of the Development Act (DA) individuals and community groups are often frustrated by the failure of the relevant authorities to take any action under the legislation regarding that breach. They should not forget that s85 of the DA provides that any person may apply to the Environment Resources and Development Court for an order to remedy or restrain a breach of the DA. Obviously, it is preferable that enforcement action be initiated by the relevant authority…However it is useful to know that if the authority will not initiate proceedings, there is the option to do it yourself. Ed
19 Schedule of background facts
1977 Binalong first purchases land on Hindmarsh Island
Dec 1982 Approval granted for the construction of the first basin for the Goolwa Marina
1988 Binalong commenced planning for extension of Marina and subdivision of land
1989 Binalong continues planning for Marina development
26 Oct 1989 Minister for Environment and Planning advises Binalong that Cabinet approved construction of a bridge, subject to a satisfactory EIS (together with the other requirements)
4 Nov 1989 Draft EIS issued for public comment. Copy of Draft EIS available at Conservation Centre for inspection
5 Dec 1989 Public meeting held at Goolwa, as part of the EIS process
18 Dec 1989 CCSA lodge response to Draft EIS
Jan 1990 Edmonds instructed to prepare archaeological report for Marina area and bridge site
10 Jan 1990 Lucas agrees to prepare anthropological report for Hindmarsh Island
23 Jan 1990 Binalong receives the archaeological report prepared by Vanessa Edmonds
March 1990 Major Projects and Assessments Branch completes Assessment Report in respect to the proposed development, which recommends some conditions
19 Mar 1990 Meeting of Coorong Consultative Committee when Committee advised that planning approval for bridge likely to be issued within a month.
11 Apr 1990 Minister for Environment and Planning notifies Binalong of the granting of approval for the construction of a bridge to Hindmarsh Island and for Marina extensions and waterfront development, and encloses conditions for the approval.
12 Apr 1990 Aboriginal Heritage Branch of the Department of Environment and Planning notifies Binalong of authorisation to establish the Marina/waterfront development, with conditions
20 May 1991 Binalong notifies Aboriginal Heritage Unit that construction work had commenced on stage one of the Marina Goolwa development
Oct 1991 Government assumes responsibility for initial funding construction of bridge
26 Aug 1992 Letter from Minister for Environment and Planning to Binalong advising in respect of amended planning approval for stages 2 to 6 of the development
31 Mar 1993
Tripartite agreement executed (Binalong, SA Government and Goolwa District Council)
21 May 1993
R Owen addresses Conservation Council on behalf of Friends of Goolwa and Kumarangk (then known as Friends of Hindmarsh Island)
13 July 1993 Letter from Office of Planning and Urban Development to Binalong advising of amended planning consent
3 Aug 1993 Public forum organised by FOGAK and Conservation Council
9 Sept 1993 The Environmental Resources and Development Committee of SA Parliament tables report
8 Oct 1993 Public meeting held at Centenary Hall, Goolwa
27 Oct 1993 Bridge work commenced
29 Oct 1993 Bridge work stopped
9 Nov 1993 Letter from Department of State Aboriginal Affairs to Connell Wagner, authorising construction of a bridge at the Brooking Street alignment
11 Dec 1993 State Government election - Arnold Government defeated, and Brown Government elected
20 Dec 1993 Government appointed Mr S Jacobs to prepare a report in respect to the Government’s obligation to construct a bridge
15 Feb 1994 Ms Laidlaw, Minister for Transport announces findings by Mr Jacobs, and advises that the State Government will proceed to construct the bridge
22 Feb 1994 ABC 7.30 Report containing statement by Ms Bolster - Publication No 2
9 Mar 1994 Conservation Council the Media Release “New Alliance” Publication No 3
9 Mar 1994 Conservation Council issued Media Release “How many wrongs must Government achieve to try and make it right” Publication No 4
14 Mar 1994 Open letter from Conservation Council to Westpac bank dated 14 March 1994, signed by Professor Shearman
15 Mar 1994 Professor Shearman interviewed by Keith Conlon on Radio 891
18 Mar 1994 Letter from Westpac bank to Conservation Council dated 18 Mar 1994
24 Mar 1994 Letter from Conservation Council to Westpac bank dated 24 Mar 1994, signed by Professor Shearman
24 Mar 1994 Rally on steps of Parliament House
29 Mar 1994 Application issued by Binalong against Conservation Council and others in Federal Court, seeking injunctions
Justice O’Loughlin granted injunctions in the Federal Court against Conservation Council and others15 Apr 1994 Receivers and Managers appointed to Binalong by Westpac Bank
19 Apr 1994 Justice Heerey granted injunctions in the Federal Court against Friends of Goolwa and Kumarangk and others; injunctions against Conservation Council, Ms Bolster and Professor Shearman discharged
22 & 27 Apr 1994
Letters sent by plaintiffs’ solicitors to various persons
29 Apr 1994 Dr Draper completed report for State Government
3 May 1994 State Minister for Aboriginal Affairs issued an authorisation allowing bridge work to proceed
May 1994 Hinsliffe Report on environmental impact of bridge released
11 May 1994 Bridge work recommenced
12 May 1994 Federal Minister (Robert Tickner) issued declaration pursuant to the Aboriginal and the Torres Strait Islanders Heritage Protection Act (“the Heritage Act”)
23 May 1994 Professor Saunders appointed by Federal Minister for Aboriginal Affairs to prepare a report pursuant to the Heritage Act
May/June ‘94 Conservation Council published Environment South Australia containing article entitled “Hindmarsh Island (Kumarangk) Update. Conservation Council in Court” Publication No 5
7 July 1994 Professor Saunders delivers her report to the Federal Minister
9 July 1994 Federal Minister makes declaration pursuant to section 10 of the Heritage Act, preventing the construction of a bridge from Goolwa to Hindmarsh Island for a period of 25 years
22 July 1994 Chapmans commenced action in Federal Court pursuant to the Administrative Decisions Judicial Review Act, to review the declaration made by the Federal Minister
8 Aug 1994 Binalong put into liquidation
Sep/Oct ‘94 Conservation Council published Environment South Australia containing President’s message entitled “Hindmarsh Island-Suppression of Free Speech” Publication No 6
Nov/Dec ‘94 Conservation Council published Environment South Australia containing an article “A win for Freedom of Speech...A Further Update” Publication No 7
9 Feb 1995 Federal Court (Justice O’Loughlin) handed down judgment in ADJR proceedings, overturning the 15 year Declaration made by the Federal Minister
8 June 1995 State Government announces a Royal Commission into matters relating to Hindmarsh Island
Apr/June ‘95 Conservation Council published Environment South Australia containing an article entitled “Hindmarsh Island & the human condition...Divide and rule” Publication No 8
Apr/June ‘95 Conservation Council published Environment South Australia containing an article entitled “The Washpool” Publication No 9
7 June 1995 Conservation Council issued media release entitled “Hindmarsh Island and the Human Condition..Divide and Rule” Publication No 10
19 July 1995 Hearings of the Stevens Royal Commission commence
Jul/Sept ‘95 Conservation Council published Environment South Australia containing an article entitled “Hindmarsh Island...not so political business” Publication No 11
7 Dec 1995 Full Court of the Federal Court dismisses appeal by Federal Minister, and confirmed order setting aside 25 year ban upon construction of the bridge to Hindmarsh Island
19 Dec 1995 Federal Minister announced that a fresh application had been received pursuant to the Heritage Act relating to Hindmarsh Island
21 Dec 1995 Report of Royal Commission handed down. Premier announced that bridge work would recommence
16 Jan 1996 Justice Matthews commences to prepare report for the Federal Minister pursuant to the Heritage Act
6 Sept 1996 High Court declares the appointment of Justice Matthews invalid
20 THE PLANNING PROCESS
1.An application and for the further development of the Marina Goolwa was lodged with the South Australian Planning Commission during 1988.
On 19 December 1988 notice was given to adjoining landowners of the application for development, creating 813 new allotments, and for marina and commercial, retail and residential development.
2.On 2nd February 1989 Binalong’s application was forwarded to Mr Henry Rankine, at the Point McLeay Community Council for comment.
3.On 21st April 1989 the Department of Environment and Planning, Major Projects and Assessments Branch wrote a letter to Binalong, raising the issue of access to Hindmarsh Island.
4.The Minister for Environment and Planning notified Binalong by letter dated 26 October 1989 that State Cabinet had approved the construction of a bridge to Hindmarsh Island, subject to a satisfactory EIS.
5.The Department of Environment and Planning invited public comment in respect to the Draft EIS lodged by Binalong, by public notice dated 4 November 1989.
6.A similar public notice was published in the Victor Harbour Times on 8th November 1989.
7.By letter dated 12 January 1990, the Department of Environment and Planning notified Binalong that further investigations will be required for the purpose of determining an application pursuant to section 12 of the Aboriginal Heritage Act.
8.By notice published in the Government Gazette on 29th March 1990, the Executive Council gave notice pursuant to section 50(1) of the Planning Act that Division III of Part V of the Act applies to the application for the Hindmarsh Island lodged by Binalong.
9.By letter dated 11 April 1990, the Minister for Environment and Planning notified Binalong that the Governor in Executive Council granted consent to Binalong’s application, pursuant to this Section 51 of the Planning Act, and enclosed a set of conditions relating to the development.
10.By letter dated 12 April 1990 the Department of Environment and Planning, Aboriginal Heritage Branch notified Binalong that authorisation pursuant to Section 13 of the Aboriginal Heritage Act was granted to “establish the Marina/waterfront development” (as detailed in both the draft EIS and the supplement to the Draft EIS for Hindmarsh Island Bridge, Marina Extensions and Waterfront development)”. This authorisation is subject to the conditions set out in section 4.6 of the Assessment Report.
11.By letter dated 26 August 1992 the Minister for Environment and Planning notified Binalong of consent given by the Governor in Executive Council, pursuant to Section 51 of the Planning Act, for the development of stages 2-6 of the Marina development, and enclose a list of conditions relating to the development.
12.On 31 March 1993 a deed was executed between the Minister of Transport, the District Council of Port Elliott and Goolwa and Binalong, relating to the construction of the bridge.
13.On the 22nd April 1993, a further approval was granted by the Governor in Executive Council to Binalong for the development of Stages 2-6 of the Marina Goolwa.
14.Of 13 July 1993 a further approval was granted by the Governor in Executive Council to Binalong for the development of Stages 2-6 of the Marina Goolwa. This approval amended he previous approvals cover by replacing the condition which required a bridge to be completed to “practical completion” before Stage 2 could be commenced with a condition which provided that the Binalong could commenced Stage 2 after the “substantial commencement” of the construction of a bridge.
21 Conclusion
I have summarised in part 5 the reasons for my conclusion that only three publications (No 6, 7 and 11) give rise to defamatory imputations affecting the reputation of one or more of the plaintiffs. The defendants rely upon claims of qualified privilege and fair comment but I am satisfied that each of the personal defendants was activated by malice which would defeat any such defence. I impute malice to the Conservation Council by reason of the state of mind of the person or persons responsible for publishing in its name (see Waterhouse v Broadcasting Station 2GB [1985] 1 NSWLR 58 at 72 per Hunt J).
The defamatory imputations which I have identified are set out in Part 5 of these reasons. I have sometimes described or referred to the imputations in an abbreviated or imprecise fashion (see below for example). That has been done as a matter of convenience in the particular context but such references should be treated as embracing the imputations and only the imputations identified in Part 5.
In reaching my conclusions as to the motivation of the defendants I have been conscious of the serious nature of the allegations of “actual malice” which the plaintiffs advance. I consider that with respect to each defendant the fact as to state of mind as pleaded ought to be established having regard to the Briginshaw principle and to the standard or degree which is there discussed. (see Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 at 107 and 362-363). In the present case the evidence as to motivation for Publications No 6, 7 and 11 is strong. The plaintiffs have produced clear and cogent evidence of motivation which satisfies the civil standard of proof and discharges the onus which Mrs Chapman (together with her husband in two instances) bears.
All three personal defendants were substantially discredited in the witness box. The Conservation Council of SA is liable for these publications made in its name and on its behalf by its officers.
Each of the publications was made in the course of and for the dominant purpose of a campaign to attack those associated with the building of the bridge. The defendants claim that that they were only interested in preventing the bridge from being built. However, the means adopted was to coerce the Chapmans and their interests and also to seek to demonstrate to others that the Chapmans were not the sort of people with whom they should be associated in business. The defendants’ statements were not the honest expressions of their real opinions and they did not have an honest belief in the truth of the facts which they asserted.
The personal defendants (by way of explanation for their actions) have given evidence as to their concern for the consequences of building a bridge to Hindmarsh Island. They claim to be acting to protect the wetlands of the Lower Murray from further degradation by an influx of visitors; they also condemn the urban sprawl which they anticipate from the development of the Island as a suburb of the Town of Goolwa. For these environmental reasons (amongst others) they sought to ensure that the bridge project was abandoned. They called in aid the very considerable power which the Conservation Council is able to wield. Although the personal defendants in their own minds justify their conduct by reference to their environmental concerns, I am satisfied that their immediate object in publishing Publications No 6, 7 and 11 has been to coerce the Chapmans to give way.
In my opinion the conduct of the defendants in the circumstances is not reasonable. I do not consider that the defendants had reasonable grounds for believing that the imputations (for which they respectively were responsible) were true; they did not take proper steps to verify the accuracy of the material; they were (at least) recklessly indifferent as to the truth of what they published.
Publications No 6 and 7 have a common theme although Publication No 7 is expressed in more extravagant language than Publication No 6. When publications are part of a series in the course of a campaign it is difficult to assess the effect of the successive verbal blows which are delivered. This depends upon the repetitive effect of the defamatory assertions in a different form. The publications are spaced some time apart. The later publication may reinforce and exacerbate the effect of the earlier publication or alternatively the later publication may have reduced impact if it is merely repeating “old news”. In the present instance there is room for argument, particularly as between publications Nos 6 and 7 as to how the assessment should be approached. As I pointed out in Roberts and Case v Bass (2000) 78 SASR 302 (par 55) there is a degree of artificiality in such an exercise when the cumulative effect of separate publications needs to be considered. In the present case Publication No 7 has been written in a way which is sufficiently different from Publication 6 as to ensure that it is not passed over lightly as “old news” for regular subscribers. Publication No 7 is written in a provocative style.
Although the thrust of Publication No 11 is different from the two earlier publications (No 6 and 7) it is part of a continuing attempt by an officer of the Conservation Council to denigrate Tom and Wendy Chapman in the eyes of the conservation movement and more generally. The attack contained in Publication No 11 has been turned in a different direction from the earlier publications but its place in the overall campaign is a relevant factor.
It must have been apparent to each of the personal defendants that none of them had any reasonable basis for believing the truth of the allegations; the personal defendants are intelligent and well informed people who must have realised that they were engaged in a public relations exercise to score points against the Chapmans.
Publications No 6 and 7 (as well as Publication No 5) were under the editorial control of Professor Shearman and Ms Bolster was on the editorial committee. Publication No 11 was published by the Conservation Council under the editorial control of Ms Bolster the Vice President. There are clear and continuing links between all personal defendants.
The defendants do not seek to justify an allegation that the plaintiffs issued proceedings for the purpose of stifling debate. Nor do the defendants seek to justify the “state of consultation” nor as to what Mrs Chapman “admitted” as mentioned in Publication No 11. The issue before me nevertheless is what was in the minds of the personal defendants as relevant to the matters pleaded by way of defence. My finding is that they each (as relevant) had an absence of honest belief in the truth of what was published or was recklessly indifferent as to whether the statements (as now relevant) were true or not.
The claims made in Environment SA as to its readership and circulation are substantially greater than Ms Bolster’s evidence would suggest. I have therefore discounted the published claims. (Ms Bolster herself is the editor responsible for the claims but she was not cross-examined thereon). In my opinion the contents of Environment SA is generally of a quality which would attract attention and it does not surprise me that its readership is claimed to be many times greater than its circulation; I find that the readership is much larger than the circulation.
In fixing damages I have brought to account the effect of s 11 of the Wrongs Act 1936 as previously discussed. I have had regard to the fact that each of the tortious acts appears to have occurred in the course of a concerted campaign in which each blow which was delivered must have had some cumulative effect. Each blow must have had the effect of besmirching the reputation of Tom or Wendy Chapman. Each blow independently must have caused some pain to Wendy Chapman and in two instances also to Tom Chapman.
In fixing damages I have had regard to the important position of influence occupied by the Conservation Council with regard to public affairs. Liability having been established, the damages to be awarded must reflect the unique and responsible position occupied by the Conservation Council and the authority which will be seen by the ordinary person as attaching to its statements. The result is as follows:
Publication No 6
September 1994The President’s message “Suppression of Free Speech” written by Professor Shearman carries the imputation that Wendy Chapman was party to the commencement of Court proceedings for the purpose of stopping the Conservation Council (and others) from engaging in legitimate expression of opinion regarding the Hindmarsh Bridge issue.
The steps taken by Chapmans’ solicitors (including the terms of the various letters to the anti bridgers and the resultant publicity) created an exceptional situation of privilege which entitled Professor Shearman to allay the concerns of his supporters and to explain to conservationists generally the limits of their rights to oppose the building project. (The exceptional case is discussed in pt 4(e) of these reasons).
This article was written on an occasion of qualified privilege (at common law) but any claim to privilege is defeated by malice. Professor Shearman’s history discloses his preparedness (using his own expression) to “target” the developers and their financiers in order to apply improper pressure. This is what happened on this occasion. This publication is part of a campaign designed to injure the Chapmans in terms of reputation.Publication No 7
December 1994“A Win for Freedom of Speech” was written by Ms Bolster and Mr Owen. It carries the imputation that Tom and Wendy Chapman are oppressing the people of Goolwa in relation to the Bridge issue.
The publication did not occur on a privileged occasion. In any event the publication was malicious. The publication is part of the campaign to which Mr Owen and Ms Bolster are party to coerce Tom and Wendy Chapman to withdraw from the Bridge project and to denigrate them in the eyes of others.Publication No 11
September 1995“Hindmarsh Island-Not so secret political business” is published by the Conservation Council over the name “Kumarangk Coalition”. It reflects adversely upon the way in which Tom and Wendy Chapman as developers carried out the planning process for the bridge and the way in which thereafter they gave effect to consultative obligations with respect to the bridge building.
I consider that this publication was dealing with a topic of “government or political information” and has the potential to attract the Lange defence. However, the conduct of the publisher was not reasonable. No proper steps were taken to verify the accuracy of the information. The publication was for the purpose of the campaign as abovementioned and the subject matter of complaint was published without any honest belief in the truth of the imputation on the part of the person responsible for the publication. The publication was actuated by malice.
There is a public interest in encouraging bodies such as the Conservation Council to participate in public debate but within limits; individual reputations must be protected. The principles which I have discussed achieve a balance between these considerations.
In the result:
(1)Professor Shearman and the Conservation Council are jointly and severally liable to Mrs Chapman in respect of Publication no 6 in respect of which I award her $20,000 as damages.
(2)Ms Bolster and Mr Owen and the Conservation Council are jointly and severally liable to Mr Tom and Mrs Wendy Chapman respectively in respect of Publication no 7 in respect of which I award each of them $25,000 as damages.
(3)The Conservation Council is liable to Mr Tom and Mrs Wendy Chapman respectively in respect of Publication no.11 in respect of which I award each of them $30,000 as damages.
(4)The claims made by all plaintiffs are otherwise dismissed.
I will hear the parties upon questions of interest and of costs.
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