Chapman v Allan

[1999] SASC 460

CHAPMAN & ORS V ALLAN & DRAPER
[1999] SASC 460

Full Court:  Doyle CJ, Duggan and Lander JJ

1 DOYLE CJ and LANDER J.   This is an appeal by a defendant (the second defendant) from a decision of a Judge of the District Court.  The Judge awarded two of the plaintiffs in an action for defamation the sum of $50,000 each and an amount by way of interest.
2 This appeal seeks to overturn the finding that the second defendant defamed the first and second plaintiffs, and the award of damages which followed that finding.  We will hereafter refer to the parties in their original capacities.  On occasions it will be convenient to refer to the first and second plaintiffs as "the Chapmans".  On occasion it will be convenient to refer to the second defendant as "Draper".
3 The three plaintiffs brought the action against the first defendant and Draper for damages for a libel contained in a weekly newspaper known as "Green Left Weekly".
4 The Chapmans are husband and wife and the parents of the third plaintiff.
5 The plaintiffs themselves, and in co-operation with Binalong Pty Ltd, are the developers of land at Hindmarsh Island in South Australia.
6 At this stage it suffices to say that the plaintiffs claimed that an article published in "Green Left Weekly" defamed them.  They claimed that the article meant that they, in connection with the proposed construction of a bridge to Hindmarsh Island, had attempted to have the bridge constructed without obtaining proper planning approvals, and without following the required planning processes.  They claimed that the article also meant that they had acted without regard to the protection of sites that were significant aboriginal heritage sites, and that they had acted in disregard of the interest of the aboriginal people in these sites, and that they had been part of a process that had defeated the rights and interests of the aboriginal people.  We emphasise that this is just a summary.
The Pleadings
7 The Statement of Claim was amended, but for convenience we will refer to the Further Amended Statement of Claim as the Statement of Claim.
8 The plaintiffs' Statement of Claim alleged that the first defendant, Margaret Dianne Allan, carried on business as the publisher of a weekly newspaper known as "Green Left Weekly", which is disseminated throughout Australia.  That matter is no longer in dispute.  The first defendant took no part in the trial or in the appeal.
9 The Statement of Claim alleges that in issue number 266 of 12 March 1997, the "Green Left Weekly" included an article entitled "Hindmarsh Island: conspiracy against land rights".  The Statement of Claim alleges that the article was described as "the cover story" and was purportedly written by "Carla Gordon".
10 The Statement of Claim sets out the whole of the article.  The article is written in a manner that suggests that it is based on an interview with Draper.  It includes quotations attributed to Draper.  The article is in the following terms.  (We have italicised the passages complained of and, for convenience, numbered them.):
"Dr Neale Draper, the former South Australian government archaeologist and anthropologist, believes that the Hindmarsh Island (Kumarangk) bridge affair has been the greatest test yet of the state and Commonwealth Heritage Protection acts, one that has failed the Ngarrindjeri people of the lower Murray region of South Australia.
At the time of the initial planning application for construction of the bridge in 1993, Draper had just been moved from the state government's Aboriginal Heritage branch to National Parks.  Draper had proved too diligent in his job as heritage inspector.
"During 1990 and 1991, I went with a group of elders to Roxby Downs and discovered that Western Mining had bulldozed two very large Aboriginal sacred sites during road construction.  There were all sorts of agreements in place to ensure that this never happened, but it had.  So I busted them for it, as it was my job to do.
"A reported offence like this usually goes through a process to see if prosecution should be mounted.  However, this was all avoided with Western Mining.  Some senior government officials decided it was all too complicated and had me transferred to National Parks instead.
"In October 1993, the Lower Murray Aboriginal Heritage Committee faxed letters to the Commonwealth minister for Aboriginal affairs, Robert Tickner, and the state minister, saying it had discovered that a bridge was about to be built through a registered Aboriginal site.
 The LMAHC had not been consulted.
 "I had just got news that a planning application had come through to Goolwa for a 'road traffic connector' to Hindmarsh Island - the word 'bridge' didn't even appear on it.  It was a huge $4-6 million project, but it was being put through like it was a shed in someone's backyard.  That was how it sneaked through.
"At the time, the Aboriginal Heritage branch was overloaded.  Every mining and planning application in the state was passing through half a dozen people, and there wouldn't have been time to rubber stamp, let alone investigate them.  Of course they were never meant to."
Draper was sent to Goolwa in late October, after the LMAHC letter was received.  "There were protesters blocking the ferry landing, and
 Aboriginal people were arriving all day.  They were trying to stop a
 work access track from being bulldozed across the registered site.
"The construction company [Chapman's] was poised to build the bridge so, with the help of some Aboriginal people, I borrowed some road closure gear from the transport department and blocked the path."
 After this initial attempt to build the bridge without an
 environmental impact statement, funds were provided for Draper to conduct a heritage study.  The Preliminary Draper Report (1994) to the state government assessed the Ngarrindjeri claims of cultural significance of Hindmarsh Island as genuine.
The report's findings were accepted by the state government, but the minister exercised his discretion under the Aboriginal Heritage Act to authorise the destruction of the area to allow the construction of the bridge.
Draper's research found that "Goolwa was a major indigenous ceremonial, social and trade centre, and the dreaming tracks from the north and west continued on to the east, across the sacred Goolwa Channel to Hindmarsh Island and other islands near the Murray mouth, and on down the Coorong or up river.  The Goolwa crossing to Hindmarsh Island is an enormously significant, and secret, sacred place.
"With an Aboriginal site, it is hard to find an actual boundary, but here we had what I could only describe as named 'suburbs.'  Each archaeological and landscape feature has a name and ancestry.
"It was one continuous urban setting with the equivalents of sports grounds, ovals, meeting halls, cemeteries and specific home and visitors' camps.  It was laid out very much like Victor Harbour or Goolwa today.
"It's  not surprising that the town of Goolwa sits on the same spot as the core of indigenous cultural authority.  Before white fellas were here, it was already the port of the mouth of the Murray Darling.  It was already on the primary coastal trade routes from Victoria, through Adelaide, Port Augusta and beyond.
"Pituri native tobacco from the Queensland Diamantina was traded through Goolwa down into western Victoria.  Red ochre from Booatoo in the north Flinders Ranges was going in the opposite direction.  It was one of the big visiting centres, and a place where people had fights, corroborees, conventions, meetings, marriages, settled disputes and traded in prestige and ritual objects.
The final Draper Report (1996) assessed the Ngarrindjeri claims as genuine and provided as much cultural detail as the traditional owners would allow, together with a wide range of anthropological, archaeological and historical evidence.
Draper is particularly critical of the Stevens Royal Commission (1995) which is now being used by Prime Minister Howard as an excuse for special legislation to allow construction of the bridge.  Adelaide lawyer Greg Mead has also published a critical summary of the evidence given to that royal commission, titled A Royal Omission.
"Because it was set up as an interrogation of the validity of cultural beliefs, the royal commission wasn't a forum to consider the Ngarrindjeri claims.  There has been enormous criticism of its inquisitorial approach.  It is very cynical for John Howard to say now that the commission proved this or that, because it was a farce from start to finish.
"Only one side of that story - the dissident women and their supporters - got all the time and credentials in the commission.  Two staff from the South Australian Museum were accepted as representing Australian anthropology when neither was an anthropologist.  All of the witnesses for the proponent women, including myself, were subpoenaed and treated to hostile cross-examination."
Important documents, including a manuscript that contains a number of references to Ngarrindjeri secret and sacred men's business, only resurfaced at the museum after the final submissions were made to the commission.
 According to Draper, the Ngarrindjeri women still have not been
 adequately heard.  The royal commission was conducted in their absence, and the 1996 Mathews Inquiry could not guarantee protection of culturally sensitive material, so the Ngarrindjeri had to withdraw material.
"It has cost millions of dollars because every inquiry has been defeated by the Chapmans, or because the dissident women's battery of lawyers manage to have things overturned on technicalities.  The traditional owners, who are entitled by federal and state law to have their case heard, their cultural heritage considered, haven't had a shot at it.
"The 1996 Evatt Report into the federal Aboriginal Heritage Act documents this, yet the government is going to make special legislation that says that everyone gets a fair go except the Ngarrindjeri.  That is a breach of every human rights convention that Australia is a part of.
"The government can try to get the Hindmarsh Island bridge bill through the Senate again, but that will probably shift the issue into the international arena.  The other possibility is that the Ngarrindjeri take a case of denial of natural justice to the High Court.
Draper is concerned not only that the bridge development has again demonstrated the weakness of the Aboriginal Heritage Protection acts to protect sacred sites, but also that it is now feeding into a broader discussion of land rights and native title.
 "Australia's legislation to protect highly significant indigenous
 cultural heritage places flunks the test.  In the case of Hindmarsh Island, this failure is not that a decision has been made by governments to try to build the bridge, but that enough money, lawyers, political clout and biased media coverage could deprive the Ngarrindjeri of their dual rights under Australian and indigenous law - to be heard and believed with respect to the nature and significance of their cultural heritage, and to continue to practise their culture and hold its essential secrets, the core of their very identity.  A well-funded smear campaign has repeatedly been able to rout the processes available to the traditional owners to get a fair hearing.
"The conservative lobby, including the Adelaide Review, The Institute of Public Affairs and some newspaper columnists, have kept up a tide of anti-Aboriginal heritage propaganda since before the royal commission began.
 "The hysteria being whipped up about heritage and native title by
 federal and state Liberal politicians is for political convenience.  They portray the Wik decision, Hindmarsh Island, ATSIC funding, everything in the Aboriginal arena, as tainted with corruption and waste.  Black fellas are stereotyped as children who can't be trusted with money or to the tell the truth.
"They are mixing all this up so that Joe and Janet Public can't tell the difference, and it all becomes a knot of hatred and discontent - shades of Hitler and the Jews.  That will enable them to sweep human rights aside and, of course, the mining and development industries are the real beneficiaries."
For more information, contact Neale Draper at Archaeology, School of Cultural Studies, Flinders University, GPO Box 2100 Adelaide 5001 or e-mail [email protected].  Also see
It is claimed in the Statement of Claim that the article is defamatory of the plaintiffs in its natural and ordinary meaning and in the alternative by way of innuendo.  A number of imputations are pleaded in the Statement of Claim in relation to the parts of the article complained of.
12 The Statement of Claim alleges that the article was published of and concerning the plaintiffs. 
13 It is alleged, in para 15(a) of the Statement of Claim that "... passages of the story [set out in the Statement of Claim] are represented in the story to be direct quotations of the words of the second defendant".
14 It is further claimed in paras 15(c) and (d) of the Statement of Claim:
"(c) In the premises, the matter referred to as quotations of the second Defendant in paragraphs (a) and (b) above was published by the second Defendant to the first Defendant, or alternatively the second Defendant published such matter to Carla Gordon, or to some other person, who in turn published the same to the first Defendant, and republished by the first Defendant as referred to in paragraph 6, and for the reasons in paragraphs 7, 9, 11, 12 and 13 such publication and republication contained matter published of and concerning the plaintiffs which was defamatory.
Particulars Of Publication 
The plaintiffs say that such publication is to be inferred from the terms of the publication complained of, and in particular its identification of statements in such passages as the second Defendant's quotes.
(d)  The passages of the article in paragraphs 7, 10, 11 or 14 not represented as direct quotations from the second Defendant but represented as his statements were published by the second Defendant to the first Defendant, or alternatively, the second Defendant published such matter to Carla Gordon, or to some other person, who in turn published the same to the first Defendant.
Particulars Of Publication.
The Plaintiffs say that such publication is to be inferred from the terms of the publication complained of, and in particular its identification of statements and such passages as the second Defendants' statements."
15 The Statement of Claim asserts that Draper is liable for the publication by the first defendant of the matter contained in "Green Left Weekly":
"16. The second Defendant is liable for the said republications by the first Defendant by reason that:
     (a)  The second Defendant authorised or intended the first Defendant to repeat or republish matter published by him to the first Defendant (or alternatively published by him to Carla Gorton, or to some other person, who in turn published the same to the first Defendant) as referred to in the preceding paragraph.
     (b)  Further, or in the alternative to (a), the repetition or republication by the first Defendant of matter published by the second Defendant to the first Defendant (or alternatively published by him to Carla Gordon, or to some other person, who in turn published the same to the first Defendant) was the natural and probable result of that publication by the second Defendant.
17.  Further, or alternatively, the second Defendant is liable for the whole of the aforesaid defamations by the first Defendant in that the publication of the same by the first Defendant was the natural and probably result of what the second Defendant published to the first Defendant (or alternatively published to Carla Gordon, or to some other person, who in turn published the same to the first Defendant).
17A. Further or in the alternative, the second Defendant is jointly liable with the first Defendant for the publication of the words complained of to the extent they consist of statements quoting the second Defendant or statements not in direct quotations but otherwise represented as statements of his in that he was the author of the same."
16 The plaintiffs' case in substance was that contained in paragraph 16 of the Statement of Claim.  The plaintiffs claimed that Draper authorised or intended the first defendant to repeat or republish the matters published by Draper to the first defendant or some other person, or alternatively that Draper was liable because the publication by the first defendant was the natural and probable result of the publication by Draper to either the first defendant or Carla Gordon or some other person.
17 The plea in paragraph 17 does not add much if anything to the plea in paragraph 16(b).  The plea in paragraph 17A is unclear.  We do not understand how it could be said that Draper would be jointly liable with the first defendant for the publication of the words complained of "to the extent they consist of statements quoting the second Defendant or statements not in direct quotations but otherwise represented as statements of his in that he was the author of same."  The plea seems to suggest that some joint liability arises in defamation if one party publishes a statement which that party attributes in whole or in part to another party.  There is no authority for that proposition and the proposition does not need further exploration.
18 Initially, both defendants filed Defences.
19 The first defendant, in her Defence (which was filed in response to an earlier Statement of Claim) admitted that she was the publisher of "Green Left Weekly" and that it was disseminated throughout South Australia.  She denied that it had a wide readership and claimed that the circulation was 3,422 nationally, of which 357 copies were published in South Australia.
20 The first defendant also admitted that the article pleaded was substantially in the form contained in "Green Left Weekly" except for a minor matter which is inconsequential.
21 She denied, however, that the words pleaded were defamatory of the Chapmans or of the third plaintiff or that the words or the imputations pleaded were understood to bear or were capable of bearing the meanings alleged by the plaintiffs.
22 She further pleaded that the words were a matter of fair comment upon a matter of public interest.
23 She pleaded, in the further alternative, that if the words published were defamatory of the plaintiffs, she was under a duty to publish the article to the persons to whom the article was published and therefore the words were published on an occasion of qualified privilege.
24 She pleaded particular defences appropriate to publication in New South Wales, Queensland, Tasmania, Western Australia, the Northern Territory and the Australian Capital Territory.
25 She admitted that the article represented that some of the words were direct quotations of the words of Draper and that it represented that some of the passages were partly a direct quotation of Draper.
26 She denied, however, that the matters referred to as quotations of Draper were published by Draper to her (directly or through Gordon) and republished by her.  She also denied that Draper was liable for republication by her.
27 Lastly, she pleaded that if the words were defamatory of the Chapmans and of the third plaintiff she would rely in mitigation of any damages upon the fact that she had published an apology to the respondents and the third plaintiff in the edition of "Green Left Weekly" of 6 August 1997.
28 The plaintiffs filed a Reply to the first defendant's Defence.
29 Sometime later the first defendant filed a document in the following terms:
     "The first defendant HEREBY DISCONTINUES her defence to this action save as to quantum."
30 It may be that that notice, which was filed after the plaintiffs had filed a Reply to the first defendant's Defence, amounted to a withdrawal of the first defendant's Defence:  see Rule 52.02.

31 It is not entirely clear whether the plaintiffs consented to the purported withdrawal by the first defendant of her Defence, although the plaintiffs seem to have proceeded thereafter on the basis, because there was no defence, that they were entitled to damages as assessed against the first defendant:  see Rule 52.02
32 If they consented to the withdrawal by the first defendant of her defence then, it seems to us, that carried with it by implication a consent to the withdrawal of any admissions made by the first defendant in her Defence.  In so far as the claim against the first defendant was concerned that is not a matter of moment because, in the absence of a defence, the plaintiffs were entitled to proceed to assess damages.
33 However, in so far as the Chapmans claim to be entitled to rely upon any admissions made by the first defendant in her Defence for the purpose of their case against Draper, it has to be noted that those admissions were, by way of this notice, withdrawn.
34 Draper also filed a Defence.
35 He pleaded that none of the words were published of and concerning the Chapmans or of the third plaintiff, and denied that the words were defamatory.  He further denied that they were capable of bearing any of the defamatory meanings alleged by the plaintiffs.
36 Draper pleaded that the words were fair comment upon a matter of public interest, being the conduct of the plaintiffs and Binalong Pty Ltd in the proposed extension of a marina development at Hindmarsh Island.  Draper identified the facts which were said to support the claim that the comment was fair and the claim that the comment was upon a matter of public interest.
37 Draper next pleaded, in the alternative, that the words were true.
38 Further Draper denied that he had published the words complained of to the first defendant or Carla Gorton.  (Carla Gorton is presumably the Carla Gordon referred to in the plaintiffs' pleading).
39 He pleaded:
"19.1 That on two occasions on dates occurring some time prior to 12 March 1997 but which the defendant does not now recall he spoke with one Carla Gorton then a student at the Flinders University.
19.2 The said Carla Gorton requested the defendant to provide and the defendant provided oral information to her about issues concerning legislative protection of Aboriginal Heritage particularly in the context of a dispute concerning the proposal to build a bridge between Goolwa and Hindmarsh Island.
19.3 The defendant did not publish to the said Carla Gorton the words set out in paragraph 6, 9, 10, 11, 12, 13 and 14 of the Further Amended Statement of Claim.
19.4 The defendant did not approve or consent to or otherwise authorise the publication of the words set out in paragraphs 6, 7, 9, 10, 11, 12, 13, and 14 of the Further Amended Statement of Claim."
40 Draper then pleaded that if he published the words complained of the occasions of publication by him to Carla Gorton were occasions of qualified privilege.
41 It is unclear why Draper pleaded qualified privilege in respect of any publications made by him to Ms Gorton.  No action was brought upon those publications, and no defence needed to be raised.  The action was brought upon the republication in "Green Left Weekly".
42 Draper denied all of the allegations made in paragraphs 16 to 18 of the Statement of Claim. 
43 In the further alternative, Draper pleaded that regard had to be had, pursuant to s11 of the Wrongs Act 1936, to compensation paid or agreed to be paid to the Chapmans or the third plaintiff in respect of other libels to the same purport or effect, and pleaded a number of other libels.
44 Lastly, Draper pleaded that he had made an offer of apology at a case evaluation conference on 10 October 1997 and that had to be taken into account in the assessment of any damages (s9 of the Wrongs Act 1936).  That plea became important in relation to the tender at trial of an apology.
The Issues

45 The third plaintiff failed in the action against Draper.  There is no cross appeal by the third plaintiff, and in those circumstances the third plaintiff's claim can be ignored in the further consideration of this appeal.
46 The first defendant does not complain about the verdict which has been entered against her in respect of the publication in "Green Left Weekly".
47 The Chapmans had to establish that Draper published, in permanent form, material defamatory of and concerning them.
48 The Chapmans therefore needed to prove that the article contained in "Green Left Weekly" was defamatory; that it was defamatory of and concerning them; that it was published to a person or persons apart from them, and that Draper published or was responsible for the publication of the material contained in the article in "Green Left Weekly".
49 The Chapmans did not bring a claim against Draper in relation to any publication of defamatory material to Carla Gorton.  Because Draper was not alleged to be the publisher of the "Green Left Weekly", it was necessary that the Chapmans establish that Draper authorised or approved of the publication of the words attributed to him in the article.  Alternatively, if publication of defamatory material to Ms Gorton was proved, the Chapmans had to establish that there was an obligation on the publisher of "Green Left Weekly" to repeat the words which had been published to her or to her agent, or that the republication of the words was a natural consequence of the publication to Ms Gorton of the original words.
50 In short, the Chapmans needed to establish that Draper published defamatory words of and concerning them to Ms Gorton or some other person, and that in doing so Draper became liable for the republication of the words in "Green Left Weekly" for one of the reasons to which we have referred.
51 If the Chapmans could make out those matters then they would be entitled to a verdict unless Draper could establish either of his defences of justification or fair comment.
52 Having regard to Draper's pleading, he was not entitled to rely upon a defence of qualified privilege in respect of the publication contained in "Green Left Weekly".  As we have already pointed out, the plea of qualified privilege was limited to the publication of words by Draper to Carla Gorton.  As that was not any part of the Chapmans' claim, that plea is irrelevant.
The Trial

53 In the trial before the learned Judge both of the Chapmans gave evidence.  They could, of course, give no evidence of any communication between Draper and the first defendant or Ms Gorton or anyone else on behalf of the first defendant.  They were not party to any communications of that kind.
54 The Chapmans tendered six exhibits in support of their case.  Because of the way in which the trial was conducted, some regard has to be had to those exhibits.
55 The Chapmans tendered the article in "Green Left Weekly" of 12 March 1997. 
56 They tendered a book of documents which included communications between the Department of Environment and Planning and the Chapmans and Binalong Pty Ltd.  The book also contained communications to Mr Henry Rakine, an aboriginal person closely connected with the area.  The book contained a draft environmental impact statement for the construction of a bridge between Goolwa and Hindmarsh Island.  There are a number of other communications to and from the Chapmans relating to the construction of the bridge.  There are communications to and from State and Commonwealth Ministers.  None of the documents contained within that exhibit could prove that Draper spoke the words in question to Ms Gorton or to some other person.
57 Nor would the documents assist in determining, if Draper did speak the words in question, that he was liable for the republication.
58 There is nothing within those documents which bears upon any communication between Draper and the first defendant or any agent of the first defendant.
59 The Chapmans also tendered a volume of press clippings, probably to establish their reputation.
60 A statement by the Honourable S J Jacobs QC was also tendered by consent.  Mr Jacobs, in that statement, said that he met and spoke with Draper on at least two occasions and spent about four or five hours with him.  He said that the purpose of the discussions was to gain an understanding of Aboriginal grievances which, he found, were not supported by any documents in the files of the government departments that had been involved in the matter.
61 He said that Draper informed him that there was no complaint against the Chapmans or Binalong Pty Ltd.  Draper told Mr Jacobs that the Chapmans and Binalong Pty Ltd had dealt with Aboriginal sites on the island in a sensitive and co-operative fashion. 
62 Mr Jacobs said, in his statement:
     "Nothing that Dr Draper said to me suggested that the Chapmans had failed to take all proper steps to consult Aboriginal interests in the planning process for the development.
     In fact, the effect of what Dr Draper told me was that the letter of the 9 November 1993 should not have been written because "we (that is, he and the Department) fell down on our job.' "
63 We think that document was tendered to prove that the words contained in the article in Green Left Weekly were untrue.  Of course, no onus lay upon the Chapmans to establish that the words were not true or that the substratum of fact upon which Draper's plea of fair comment was based was not made out.  To that extent the document was, at that stage of the case, irrelevant.  The document only became relevant in relation to the pleas of truth or fair comment.
64 The last exhibit tendered by the Chapmans was a document headed as follows:
"This document is strictly confidential and is prepared and provided to Margaret Allan by her solicitors Johnson Withers solely for the purpose of obtaining legal advice in relation to proceedings currently before the District Court of South Australia".
65 The document was a "draft article" by Draper, proposed for publication in "Green Left Weekly", the publication said to be "as a term of settlement".  The effect of the text of the draft article was that Draper made no criticisms of the Chapmans in connection with the Hindmarsh Island bridge, and indeed expressed the view that in all respects they had conducted themselves properly.
66 The Judge was told very little about the document.  The document was apparently handed by Draper's solicitors to the Chapmans' solicitors at a case evaluation conference.  It was given to the plaintiffs on that occasion on a without prejudice basis.  The offer then made did not result in a settlement of the case.  That much was common ground.
67 The Chapmans' purpose in tendering the document was to use it as an admission by Draper that he had spoken the words complained of to Ms Gorton.  We will return to that matter later.  They claimed to be entitled to tender the document because any privilege in the document had been waived.  The waiver of privilege, it was said, arose by reason of Draper's plea in paragraph 22 of his Defence.
68 In that paragraph Draper pleaded:
"22. In the event that the words referred to in paragraphs 7(a), 9(a), 10(a), 11(a), and 12(a), 13(a) and 14(a) of the Further Amended Statement of Claim are found to have been published by the second defendant (which is denied) and insofar as they were defamatory of the plaintiffs (which is denied) the second defendant will rely in mitigation of any damages flowing from the publication of those words upon:
22.1 ...
22.2 The second defendant's offer of an apology made at Case Evaluation Conference on 10 October 1997, pursuant to section 9 of the Wrongs Act."
69 The Chapmans also relied upon their own pleadings and, in particular, paragraph 4.2 of their Reply.
70 In that paragraph they pleaded:
     "As to the alleged apology referred to in sub paragraph 22.2 of the Further Amended Defence of the Second Defendant, the Plaintiffs say:
(a)  The alleged apology did not constitute an apology or a retraction.
(b)  The alleged offer of apology was not made by the Second Defendant as soon afterwards as he had had an opportunity of doing so following the commencement of the within action.
(c)  The alleged offer was conditional on unreasonable or unacceptable conditions, namely, it was provided on a not for publication basis and further as a without prejudice offer to settle the matter on the basis that the second defendant would allow the publication of the same if the plaintiffs otherwise withdrew their claim and bore their own costs."
71 It was argued by the Chapmans that Draper's plea in paragraph 22.2 brought this document, which is a document admittedly prepared in connection with an attempt to negotiate the settlement of a civil dispute, within the exceptions in s67c(2) of the Evidence Act.
72 The Judge dealt with the question of legal professional privilege and its waiver.  He held that paragraph 22.2 of Draper's Defence amounted to a waiver of any privilege attached to the document and therefore the document was admissible.  We agree with that conclusion, as far as it goes.
73 The document, when it was prepared, would have attracted legal professional privilege.  It was a document prepared solely for the purpose of the proceedings and for the further purpose of the first defendant's solicitors obtaining her instructions in relation to an offer of a draft article to be published in Green Left Weekly.  The privilege arose to protect a communication between the first defendant and her solicitors, even though the article in its terms appears to be a statement by Draper.
74 The Judge was entitled to infer that any privilege in the document had been waived.  The provision of the document by Draper's solicitors to the Chapmans' solicitors amounted to a waiver of any legal professional privilege which would previously have attached to that document.  The Judge was entitled to infer that Draper and the first defendant had authorised the use of the document.
75 In our opinion that was not the only question which needed to be addressed for the purpose of determining whether or not this document was admissible.
76 Even if this document was not a document to which legal professional privilege attached, or was a document in respect of which legal professional privilege had been waived, the document might have been inadmissible by reason of the provisions of s67c of the Evidence Act, because it was a document which was prepared in connection with an attempt to negotiate the settlement of a civil dispute.
77 Draper's counsel objected to the tender of the evidence relying upon s67c of the Evidence Act.  That section provides:
"(1) Subject to this section, evidence of a communication made in connection with an attempt to negotiate the settlement of a civil dispute, or of a document prepared in connection with such an attempt, is not admissible in any civil or criminal proceedings.
(2)  Such evidence is, however, admissible if -
     (a)  the parties to the dispute consent; or
     (b)  the substance of the evidence has been disclosed with the express or implied consent of the parties to the dispute; or
     (c)  the substance of the evidence has been partly disclosed with the express or implied consent of the parties to the dispute, and full disclosure of the evidence is reasonably necessary to -
          (i)  enable a proper understanding of the other evidence that has already been adduced; or
          (ii) avoid unfairness to any of the parties to the dispute; or
     (d)  the communication or document included a statement to the effect that it was not to be treated as confidential; or
     (e)  the proceeding in which the evidence is to be adduced is a proceeding to enforce an agreement for the settlement of the dispute or a proceeding in which the making of such an agreement is in issue; or
     (f)  the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or
     (g)  the making of the communication, or the preparation of the document, affects the rights of a party to the dispute; or
     (h)  the communication was made, or the document was prepared, in furtherance of -
          (i)  the commission of a fraud or an offence; or
          (ii) the doing of an act that renders a person liable to a civil penalty; or
          (iii) the abuse of a statutory power.
(3)  Subsection (1) does not apply to parts of a document that do not concern attempts to negotiate a settlement of a dispute, if it would not be misleading to adduce evidence of only those parts of the document."
78 The Judge referred to s67c.  He said that it did not assist Draper.  He did not explain why.
79 It can be seen that the general principle established by sub-section (1), that evidence of communications made in connection with an attempt to negotiate a civil dispute, or evidence of a document prepared in connection with such an attempt, is not admissible in any civil proceedings, is subject to a number of exceptions.
80 This document satisfies the criteria necessary to bring it within s67c(1) of the Evidence Act. It therefore may not be admissible because of the provisions of that subsection. In that regard the question of waiver of legal professional privilege is irrelevant. Section 67c(1) rather assumes that the communication referred to does not attract legal professional privilege. The type of communication referred to would usually attract the privilege accorded to a "without prejudice" communication: Davies and Davies v Nyland and O'Neil (1974) 10 SASR 76 at 88.
81 The document, because it comes within s67c(1), was not admissible unless it came within any of the sub-paragraphs of subsection 67c(2).
82 The document clearly does not come within sub-paragraphs (b), (d), (e), (f), (g) or (h) of subsection 67c(2).  It could only become admissible therefore if it comes within sub-paragraphs (a) or (c).
83 We turn first to the application of sub-paragraph (a).
84 By pleading as he did in his Defence, Draper must be taken to have consented to the tender of the document in evidence, if it was otherwise admissible.  If it was evidence of an admission by Draper of having spoken the words in question, it was relevant and admissible, subject to the operation of s67c.
85 By their pleading in reply, the Chapmans did not consent to the tender of the document.  They objected to its use on grounds that did not rely upon s67c.  They made no reference to s67c.  But there is nothing in that Reply that can be regarded as a consent by them to the waiver of the bar imposed by s67c.
86 When counsel for the plaintiffs opened their case to the Judge, he said that he proposed to prove the document as an admission by Draper.  Counsel for Draper then foreshadowed an objection to its use in evidence, and counsel for the plaintiffs said that he was aware of that objection.  He indicated that he relied upon the pleading of the draft article in Draper's Defence as a waiver of any confidentiality.
87 After the close of the plaintiffs' case, the Judge permitted them to reopen their case to deal with the tender of this document.  No point is taken on that.  Counsel for the plaintiffs then tendered the document, arguing that it had been pleaded into relevance by Draper.  His argument was that any confidentiality, and presumably any bar to its use derived from s67c, had been waived.  Counsel for Draper opposed the tender.  He made it plain that Draper did not consent, for the purposes of s67c(2)(a), to the admissibility of the document.  He informed the Judge that Draper no longer relied upon the document as an apology, acknowledging that the plaintiffs' objections to Draper's reliance upon s9 of the Wrongs Act were well taken.
88 By now the parties had reversed their positions.  The pleadings remained as before.  But the plaintiffs now sought to use the draft article, relying upon Draper's waiver of any obstacle to that use.  Draper now opposed the use of the draft article, making it plain that he did not consent to its use.

89 The terms of s67c(2)(a) require that both parties to the dispute consent to the use of the document.  We put to one side the attitude of the first defendant, no party having raised that matter before the Judge or before us.  It cannot be said that, at any stage, the pleadings evidenced a mutual consent to the use of the document.  It is not necessary to restrict one's consideration to the pleadings.  However, it seems to us that apart from the pleadings there was never a mutual consent.  When counsel for the plaintiffs raised the matter in his opening, counsel for Draper immediately indicated an objection to the use of the document.  It would, we consider, be unduly artificial to say that it was too late for him to do so, on the basis that counsel for the plaintiffs had joined in a consent indicated by Draper's Defence.  Nor was there a mutual consent at any later stage.
90 We do not feel completely satisfied with the approach that we have taken, but however the matter is analysed it is difficult to reach a wholly satisfactory conclusion.  It seems to us even more unsatisfactory to resolve the matter in terms of an analysis along the lines of offer and acceptance in the law of contract.  That is, by treating the statement by the plaintiffs' counsel in the opening as an acceptance of a consent indicated by Draper's plea in his Defence.  There is much to be said for the view that a document caught by s67c cannot be tendered under the exception in s67c(2)(a) unless, at the time of tender, there is mutual consent.  There may be circumstances in which a party would be prevented from withdrawing a consent earlier given, particularly when the other party has acted to its prejudice upon the basis of that consent.  But there is no suggestion of that here.
91 Unless the situation is analysed as one in which, at the time of the opening, the plaintiffs accepted a consent manifested by Draper's Defence, a mutual consent cannot be found.  It seems unreasonable to hold Draper to the consent said to be manifested by his Defence, yet allow the plaintiffs to disavow the refusal of consent manifested by their Reply.  It seems to us that the sensible approach is, as we have indicated, to enquire whether at any stage there was in fact a mutual consent to the use of the document, and that question must be answered in the negative.
92 For those reasons, we conclude that the document was not admissible under s67c(2)(a).
93 We now turn to sub-paragraph (c).
94 The question is whether the pleading in paragraph 22.2 has partly disclosed the substance of the evidence contained within the document, and whether full disclosure of the document has become necessary to enable a proper understanding of the other evidence which had already been adduced or whether the document should be admitted to avoid unfairness to any of the parties to the dispute.
95 It cannot be the second.  It cannot be unfair to the Chapmans that the offer of the apology not come to the notice of the Court.  It was no part of the Chapmans' case that Draper had apologised or that the apology had the effect of reducing the damages by reason of that apology.
96 Nor was the substance of the document necessary, in our opinion, to enable a proper understanding of the other evidence already adduced in the trial.  The Chapmans did not need, as part of their case, to establish the falsity of the words in the article.  Nor did they need to establish that Draper had offered an apology or had offered to be associated with a further article in the Green Left Weekly.  They did need to establish that Draper had spoken the words attributed to him to Ms Gorton or some other person and that he was liable for the subsequent publication in Green Left Weekly.  But, on that point, the document did not assist with an understanding of other evidence that had been adduced.
97 There is the further difficulty that any part disclosure of "the substance of the evidence" constituted by the document had not taken place with the consent of the parties.  We refer to what we have already said on that.
98 In those circumstances, in our opinion, the document did not come within any of the exceptions provided for in s67c(2).
99 The document was, therefore, inadmissible.
100 That was the totality of the Chapmans' case.  It was on that evidence that they rested for the purpose of satisfying the various matters which they were required to prove to obtain verdicts against Draper.
101 Draper tendered a number of documents none of which bear upon the question of publication.  He tendered, however, an apology which was printed in the "Green Left Weekly" on 6 August 1997.
102 That apology reads:
"    Apology
In the March 12, 1997, issue number 266 of Green Left Weekly, an article covering an interview relating to the Hindmarsh Island Bridge Affair appeared.  In this article, we referred to the bridge construction company.  In referring to this construction company as the "Chapmans", we did so in error.  The construction company was not in fact associated with Wendy or Andrew Chapman nor any other member of the Chapman family.  We regret this error and apologise to the Chapmans for any hurt or embarrassment that may have been caused by this error."
103 We are not sure why Draper tendered that apology.  It was not made by him.  Perhaps Draper thought that he could rely upon another party's apology.  He had not pleaded the effect of that apology.  The apology could not have had any significant effect upon damages.
104 Draper did not give evidence. Instead his counsel submitted that there was no case to answer. That submission was made in circumstances where Draper had tendered evidence in documentary form during the cross examination of the Chapmans and tendered another exhibit apparently after the close of Chapmans' case. Whether a submission of no case to answer was appropriate was not argued and does not need to be decided on this appeal: Rasomen Pty Ltd (trading as Shell Fairview Park) v Shell Company of Australia Ltd (1997) 144 ALR 497 at 505; Protean (Holdings) Ltd (Receivers and Managers appointed) and Others v American Home Assurance Co (1985) VR 187 at 237. In any event, the learned Trial Judge allowed the submission to be made, but before hearing the submission he called upon Draper's counsel to elect whether or not any evidence would be called in the event that the submission failed.
105 In the circumstances of this case, where counsel had tendered evidence and then claimed that there was no case to answer, it was appropriate for the learned Trial Judge in the exercise of his discretion to require counsel to indicate whether, in the event that the submission was unsuccessful, he would be calling other evidence.  Draper's counsel submitted to the election which he was called upon to make, and indicated that he elected to call no evidence.
106 It was on that evidence that the learned Trial Judge was obliged to consider whether or not the respondents had made out their case against the appellant. 
Identification
107 The Chapmans pleaded and proved that they were well and widely known in South Australia, at the time of the publication of the article, as persons involved in the development of land on Hindmarsh Island, and through that development connected with the construction of the bridge to Hindmarsh Island.  The bridge was intended to benefit the development of the Chapmans' land on Hindmarsh Island.
108 The Chapmans relied upon the ordinary meaning of the words in the article to identify them as the persons referred to. The ordinary meaning, for these purposes, as for the purposes of determining whether the article had the meaning that the plaintiffs attribute to it, has been the subject of some consideration in the cases. For present purposes it suffices to say that the standard is that of the ordinary man and woman, sometimes encapsulated as the ordinary reasonable reader: see Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 Mason J, at 304 Brennan J; Chakravarti v Advertiser Newspapers Ltd (1998) 72 ALJR 1085 at 1115-1117 Kirby J; (1996) 65 SASR 527 at 540 Doyle CJ.
109 In considering the issue of identification, it is relevant to bear in mind that the construction of the bridge to Hindmarsh Island, and the impact of that construction on sites claimed to be of significance to the cultural heritage of aboriginal people, including the Ngarrindjeri people, had been the subject of a major and long running controversy in South Australia.
110 The Article itself, however, refers directly to the Chapmans by name on two occasions: see paragraphs numbered 3 and 4 of the Article.
111 The Judge found that the ordinary reader of the article would have identified the Chapmans as the persons referred to in the article, on the basis that they were well known as the developers of the land on Hindmarsh Island and as persons involved in the construction of the bridge.  We agree with that finding. 
112 We do not agree, however, with the Judge that all of the passages complained of include references to the Chapmans.  Because the Article identifies the Chapmans it does not follow that each passage can be understood to refer to the Chapmans.  Each passage must be read in its terms and considered in the context of the whole Article.
113 In relation to the first passage complained of, the ordinary reader with knowledge of the background facts would readily read the reference to the failure to consult the Heritage Committee, and the "sneaking through" of the planning application, as a reference to a failure by the Chapmans and an application made by the Chapmans.  That reading of the article would have been assisted by the reference, in the second passage complained of, to the Chapmans by name.  The ordinary reader would not necessarily treat the brackets around the Chapmans' name as indicating that this was an insertion and assertion by another person.
114 Each of these passages appears as a direct statement made by Draper.  Together, they clearly link the Chapmans to the construction of the bridge and to the process of gaining approval for that construction.
115 The third passage complained of would be read by the ordinary reader as referring again to the Chapmans, because of its reference to the attempt to build the bridge without an environmental impact statement.  This would be read as a reference to an attempt by the Chapmans, in some way linked to the "sneaking through" of the application and to the attempt to bulldoze a track across a registered site.
116 The fourth passage again identifies the Chapmans by name.  It clearly links them to a process of defeating the attempts of the Ngarrindjeri women to have their side of the story told.
117 We agree, with some hesitation, that the fifth passage complained of could also be taken by the ordinary reader to refer to the Chapmans.  They had already been linked to the construction of the bridge without a proper consultation process, and to attempts to suppress the point of view of the Ngarrindjeri women.  In that context, the reference to depriving the Ngarrindjeri of their rights through "money, lawyers, political clout, and biased media coverage" could be read by the ordinary reasonable reader as referring to the Chapmans, although not necessarily to them alone.
118 We do not consider that the sixth passage complained of could be read by the ordinary reader as referring to the Chapmans.  In this passage the attack has turned to the "conservative lobby" and to politicians.  We consider that there is nothing in this passage that could be taken to refer to the Chapmans.  In that respect we disagree with the trial judge.
Defamatory Meaning
119 The Judge dealt quite briefly with the question of whether the article was defamatory.  He did so in a passage in which he also appears to have dealt with the issue of whether the passages complained of referred to the Chapmans.
120 We agree that the article contained material defamatory of the Chapmans that was attributed to Draper.
121 The plaintiffs pleaded a number of ordinary and natural meanings for the passages complained of, which meanings were said to be defamatory of them. In that respect they followed common practice: see Chakravarti v Advertiser Newspapers (1998) 72 ALJR 1085 at 1097-1099 Gaudron and Gummow JJ.
122 We agree that the first passage complained of could be taken by the ordinary reader to mean that the Chapmans failed to carry out proper or required processes of consultation with aboriginal people, and had acted in a surreptitious and underhand manner.  The passage implies that the Chapmans had acted improperly, and perhaps unlawfully.  We agree that the passage implied that the Chapmans had not respected the rights of aboriginal people.
123 In their context, the second and third passages, especially when read together could be taken by the ordinary reader to mean that the Chapmans were prepared to damage a site of cultural significance contrary to law and without having gone through proper processes in relation to the matter.  These passages imply a disregard for the interests of aboriginal people.
124 The fourth passage could be read by the ordinary reader as meaning that the Chapmans had succeeded in defeating attempts by the Ngarrindjeri women to have their point of view heard.  This passage gives rise to a clear inference that the Chapmans did that in disregard of the rights and interests of those people.  Such an inference undoubtedly arises when that passage is read in conjunction with the fifth passage.
125 The fifth passage complained of has a similar meaning.  It implies an unfair and improper use of legal and other means to deprive the Ngarrindjeri people of their rights.  It associates the Chapmans with that process, while not necessarily attributing that process to them alone.
126 We have already explained why we do not consider that the ordinary reader would read the sixth passage complained of as referring to the Chapmans.
127 Overall, the passages attributed to Draper would be read by the ordinary reader as meaning that the Chapmans had, using money, the law and other means, acted in disregard of the interests of the Ngarrindjeri people, and tried to achieve their ends by improper and unlawful means.
128 In substance, we agree with the conclusions reached by the Judge in relation to the defamatory meaning of the article.  However, we consider that the heading to the article is to be put to one side, that having nothing to do with Draper.  We also put to one side, for reasons we have indicated, the final passage complained of.
Publication
129 We have already explained that the Chapmans had to prove that Draper published the defamatory material to Ms Gorton, and that he was liable for the republication of that material by her in the form of the article.  The Chapmans would prove this by proving that Draper authorised or approved the publication of the material attributed to him, or that republication by Ms Gorton was the likely consequence of the initial publication to her.
130 In outlining the circumstances of the trial, we made the point that no attempt was made, by calling Ms Gorton or otherwise, to provide direct proof that Draper spoke the words complained of to Ms Gorton.  It will be recalled that in his Defence, Draper admitted speaking to Ms Gorton, a student at Flinders University, about the Hindmarsh Island bridge.  However, he denied speaking the words complained of, and denied approving or authorising the publication of the passages complained of.
131 When the plaintiffs' counsel closed their case, what basis was there for a finding that Draper had spoken the words in question to Ms Gorton, and was liable for the republication by her?  There was no admission of either matter in the pleadings.  There was no direct evidence of either matter in the pleadings.  There was no evidence that Draper knew that Ms Gorton was a reporter for "Green Left Weekly", or that she was in some way linked to that journal.  There was no evidence about the circumstances of any publication to Ms Gorton that might support an inference that he knew or should have realised that what he said to her would be republished in a journal.
132 The admission of the article into evidence could not, of itself, provide any evidence of these matters.  The publication of the article was the product of the work of the first defendant.
133 Whilst the article was admissible in the case against Draper to prove the contents of the article, the article could not be tendered to prove the truth of those assertions.  This article was not tendered pursuant to s45B of the Evidence Act and the plaintiffs were not entitled to rely upon the provisions in that section to establish the statements of facts asserted in the article.  Section 45B was not adverted to at any time by any party and the Judge did not address the question of the article's admissibility under that section and in particular the discretion to exclude in s45B(3).  The plaintiffs did not argue at trial or on appeal that they were entitled to rely upon s45B in aid of proof of publication.
134 The admission by Draper that he had spoken to Ms Gorton about the Hindmarsh island bridge was not an admission of either of the crucial matters that had to be proved.
135 The material proved as part of the plaintiffs' case enabled the Judge to find that Draper was an archaeologist and anthropologist, employed by the South Australian Government.  It enabled him to find that Draper had had a close involvement in aboriginal heritage issues connected with the construction of the Hindmarsh Island bridge.  The Judge made the following finding, which finding we consider was properly made:
"Dr Draper, in his government capacity, became involved from as early as 1990 in and about the marina development and was in a position to assess the development abilities of the plaintiffs and their concern at the discovery of sensitive areas and the preservation of the same.  He clearly was in a position to assess the bona fide and caring approach to the sites.  Dr Draper appears to have had an active role after 1993 as is apparent from the statement of Mr Jacobs QC.  Clearly from that statement in 1993 Dr Draper was then critical of his department and alleged at earlier times 'falling down on our job'.  However, it is important to note that Mr Jacobs recalled that in his view 'Dr Draper informed me that there was no complaints against the Chapmans or Binalong ...... in the planning process for the development'.  It must have been quite apparent to the second defendant that the Chapmans did all that they were required to do in and about the development process.
...
It was clear on the evidence of Mrs Chapman and the written material, that Dr Draper was in government employment in and around aboriginal heritage issues and had been involved at relevant site inspections on Hindmarsh Island as early as 1989 as well as in receipt of environmental impact statements and was present at the bridge site in 1993.  From the statement of Mr Jacobs in the course of his inquiry in 1994, he held certain critical views about his department."
136 In relation to the defendant's liability for the initial publication to Ms Gorton, and the republication by her, the Judge made this finding:
"The question of liability in this case is centred on whether the republication in the article of the words spoken to Carla Gorton arose as a natural and probable consequence of the conversation which took place between the second defendant and Ms Gorton.
My findings of the actual association by Dr Draper with Hindmarsh Island bridge issues are most important.  I have no doubt in finding he was a person of strong views and opinions and prepared to state the same.  The drawing of inferences leading to liability is always an area which calls for careful consideration.
However, bearing in mind the above factual findings, it is most logical and, in the words of Gillard J in the Nationwide News case, a legitimate inference of the second defendant's participation in an interview to restate his views.

I believe the only inference to be drawn is his willingness to be interviewed and the consequence of such interview would be the republication of his views.  The repetition of his views was clearly the natural consequence of the interview."
137 This appears to be a finding that Draper was involved with the controversy about the construction of the Hindmarsh Island bridge at the time of construction, had strong views about the way in which aboriginal heritage issues were handled, and was critical of the approach of the government department in which he was employed.  From this the Judge has inferred that Draper would have been willing to state his views in an interview.  We do not disagree with his reasoning or his findings to that point.
138 However, the Judge seems to have further inferred that Draper made the statements attributed to him, and made them in a context in which he knew or should have known that they would be republished in a publication that would be distributed to other people.
139 In our opinion, there is no basis at all for the latter two findings.
140 The decision that the Judge had to make fell to be made on the basis of the evidence presented by the plaintiffs.  We have already summarised the material that was before the Judge.  None of that material bore directly on the two crucial issues. 
141 There was admissible evidence tendered by the plaintiffs supporting a finding contrary to the finding that Draper made the statements attributed to him.  The Hon Mr S J Jacobs said in his statement:
     "Dr Draper informed me that there was no complaint against the Chapmans or Binalong.
     He said that they had dealt in a sensitive and co-operative fashion with Aboriginal sites on the Island.
     Nothing that Dr Draper said to me suggested that the Chapmans had failed to take all proper steps to consult Aboriginal interests in the planning process for the development.
     In fact, the effect of what Dr Draper told me was that the letter of the 9 November 1993 should not have been written because 'we (that is, he and the Department) fell down on our job'."
142 That evidence is contrary to the inference that Draper made the statements attributed to him in the Article.  If what Draper told Mr Jacobs was the truth then it cannot be inferred, in the absence of other evidence, that he would have communicated the contrary views to Ms Gorton reported in the Article.
143 When the plaintiffs' counsel closed their case, counsel for Draper submitted that there was no case to answer. The Judge in the exercise of his discretion rightly required counsel for Draper to elect to call no evidence before entertaining a submission of no case to answer, and counsel then so elected. In our opinion the Judge, in that respect, acted correctly: Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54.
144 Having done so, there was no need for the Judge to consider separately whether the plaintiffs had made out a case to answer.  The Judge was entitled to move directly to the question of whether the plaintiffs had proved their case on the balance of probabilities:  Residues Treatment at 73-74.  It was appropriate to proceed in this manner because all relevant evidence was now before the Judge.
145 There was no direct evidence of publication by Draper to Ms Gorton, or of the circumstances in which that had occurred.  The Judge made a finding, open to him, that Draper had been involved in the bridge controversy, and had strong views about it.  As it happens, that evidence did not include evidence that Draper was critical of, or hostile towards, the Chapmans.  As we have already said, there was no evidence at all that Draper knew of any intention on the part of Ms Gorton to republish anything that he might have said to her, or that he knew that she had a link to "Green Left Weekly".
146 All that being so, we consider that it was not open to the Judge to draw the inference that he drew.  He was entitled to find that Draper had spoken to Ms Gorton about the controversy.  Draper had admitted that in his defence.  But there was simply no basis for a finding that he had spoken the words complained of, or a finding that he was responsible for the republication.  There was no evidence to support that finding.  It is one thing to say that Draper was knowledgeable about the controversy, and had strong views about it.  It is another thing altogether to find that he made statements, that he had denied making, and made them in circumstances such that he was liable for their republication.
147 The failure of Draper to give evidence was not capable of bridging the gap that existed in the plaintiffs' case.
148 Applying well known principles, the failure of a defendant to give evidence is capable of supporting an inference that is able to be drawn from evidence tendered for a plaintiff. An unexplained failure by the defendant to give evidence, or to call evidence from a witness, when that evidence might be expected to answer the inference that is able to be drawn on the plaintiffs' evidence, is a permissible aid to proof. It is a permissible aid to proof because it enables the Court to infer that the uncalled evidence would not support the case of the defendant, and would not provide an answer to the inference that is able to be drawn from the plaintiffs' evidence. But this process of reasoning can be followed only if there is first a basis, found in the evidence for the plaintiff, for the relevant inference that calls for an answer to be given. This method of reasoning cannot be employed simply to fill a gap, or to convert mere conjecture into inference and proof: Jones v Dunkel (1959) 101 CLR 298 at 307-308 Kitto J, at 312 Menzies J, at 320-321 Windeyer J.
149 In the present case, the evidence led by the plaintiffs did not rise above mere conjecture in relation to the initial publication by Draper to Ms Gorton, and his knowledge or awareness of her intention to republish: see Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162 Stephen J, at 168-169 Mason J.
150 A failure on the part of a plaintiff to make out a prima facia case on a matter requiring proof, cannot entitle a plaintiff to judgment on the basis that the defendant, who might be able to give evidence on the point, has not done so: see Hummerstone v Leary [1921] 2 KB 664 at 667 Bray J and J-Corporation Pty Ltd v BLF (1992) 111 ALR 377 at 383 French J.
151 In our view the plaintiffs did not establish that Draper had any communication with Ms Gorton except to the extent admitted in the defence.  That admission did not allow a finding that Draper had spoken the words referred to in the Article.  Because there could be no finding of any communication between Draper and Ms Gorton in terms of the article, it follows that there could be no finding of any liability for republication whatsoever.
152 For those reason, we consider that the Judge's reasoning on this point cannot be accepted.  The process by which the Judge concluded that Draper had published the words in question, and authorised their republication, was not permissible.  It involved pure conjecture.  It was certainly not proof on the balance of probabilities.  Nor was there evidence of the crucial matters, which evidence could lead to a finding in the plaintiffs' favour on the basis that Draper could have given evidence in answer but did not do so.
153 We now deal with one other aspect of this issue.
154 We have already explained that the so-called draft article was, in our view, not admissible.  The Judge did not refer to it in reaching his conclusion that Draper was liable for the publication of the defamatory material.  However, recognising that the admissibility of the draft article gives rise to difficult issues, it is appropriate to consider the position if it was admissible.
155 The first paragraph of the draft article is as follows:
"An article appeared in Green Left Weekly Issue No. 266 of March 12th, 1997 under the heading 'Hindmarsh Island Conspiracy Against Land Rights' in which a number of paragraphs were presented as quotations from me.  Lest there be any misunderstanding about the matters discussed in the article or the involvement in those matters of Wendy, Tom or Andrew Chapman or their company, Binalong Pty Ltd, I provide the following clarification and explanation."
156 The balance of the article, expressed as a statement by Draper, explains that Draper makes no criticism of the plaintiffs in relation to the Hindmarsh Island bridge.  The article concludes as follows:
"As stated above, in my dealings with the Chapmans, I found them to be considerate of and attentive to the concerns of the Ngarrindjeri. They, like the Ngarrindjeri, have been the losers of the failure by State and Federal legislation and processes to adequately identify and resolve disputes involving major development projects and indigenous heritage."
157 That concluding paragraph is a fair reflection of the tone of the article.
158 On appeal, it was argued that the first paragraph of the draft article supported the inference that Draper admitted that he had spoken the words complained of to Ms Gorton.  The submission was that the failure to deny that the paragraphs "presented as quotations from me" contained statements made by Draper was significant.  It was submitted that this failure gave rise to an inference that, in truth, Draper did not deny that he had spoken the words in question, and that that inference was open to confirmation (if required) by Draper's failure to give evidence.
159 The Judge made no reference to this line of reasoning in his reasons for judgment.
160 The draft article makes sense, bearing in mind its origin, only as part of a settlement offer made by both defendants.  As we have said, the draft article exonerates the Chapmans from any criticism in connection with the construction of the Hindmarsh Island bridge.  It is difficult, impossible really, to reconcile the terms of the article with the criticisms made of the Chapmans in "Green Left Weekly".  This makes it difficult to treat the draft article as an admission that those criticisms were made by Draper.
161 But in any event, the draft article was proposed as part of a possible compromise.  In that context, the Court must be careful about drawing inferences of the sort suggested.  In particular, an obvious explanation for Draper failing to disavow the statements attributed to him in the original article, or the accuracy of the article in reporting him, is that such a course of action would be unlikely to secure the participation of the first defendant in the proposed compromise.  The essence of the proposed compromise was, in this respect, the publication by the first defendant of a statement by Draper that there were no criticisms to be made of the Chapmans.  In that context, there would be nothing to be gained, and something to be lost, by risking a controversy with the first defendant about the circumstances of the original publication.
162 There is, therefore, an obvious explanation for the fact pointed to by counsel for the Chapmans.  In our opinion, one would not readily infer from the terms of the draft article, and the very limited information before the Court about its origin, that Draper was admitting that he had made the statements complained of to Ms Gorton, and had done so in circumstances in which the republication was authorised by him.  And, as we have already mentioned, in considering whether the required inference is to be drawn, one must also bear in mind the fact that the effect of the draft article is that Draper makes no criticisms at all of the Chapmans.
163 The matter is not without difficulty, but we are not prepared to draw the inference from the terms of the draft article that the Chapmans submit can and should be drawn.  It follows, once again, that the failure by Draper to give evidence cannot lead to a finding in the Chapmans' favour.
164 It follows from all this that, in our opinion, the Judge should have found that Draper was not liable for the publication of the defamatory material, and should have dismissed the claim on that basis.
165 It is somewhat unsatisfying that the case should be disposed of on that basis.  However, that is how the case stands.  The plaintiffs closed their case without providing, as we have concluded, evidence on this vital issue.
Justification
166 This Defence was, in effect, abandoned at trial.  In any event it was not pursued on appeal.  It is not necessary to refer to it any further.
Qualified Privilege
167 There was no plea of qualified privilege in relation to the publication in "Green Left Weekly".  The only such plea was in relation to a communication between Draper in his capacity as a lecturer at Flinders University, and Ms Gorton as a student at that university.  That plea was irrelevant to the cause of action raised against Draper.
168 On appeal Draper sought to argue that the subject matter of the Article comprised discussion of government and political matters: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
169 In our view it was not open to Draper to raise that argument for the first time on appeal.
170 No plea of qualified privilege was raised in relation to the publication of the Article itself.  No plea of the particular kind sought to be argued on appeal was ever pleaded.  No argument was addressed to the Judge on qualified privilege.
171 That defence was never a live issue at any time before or at trial. It is too late to raise that alternative defence on appeal: Coulton v Holcombe (1986) 162 CLR1 at 7: University of Woolongong v Metwally (No. 2) (1985) 59 ALJR 481 at 483.
172 Our view is that the Judge was not required to consider any defence of qualified privilege it not having been pleaded in relation to the publication in "Green Left Weekly". 
Fair Comment
173 This Defence was pleaded and extensively particularised.
174 Whilst no submissions were put to the Trial Judge on this defence it cannot be said that the defence was abandoned.
175 Draper's counsel tendered a number of exhibits during the cross examination of Mrs Chapman.  With the exception of the apology, to which we have already referred, the documents were only relevant in respect of either or both of the defences of justification or fair comment.  The documents presumably were tendered in the case of the defence of fair comment to establish the facts upon which the comments were based.  It is not clear that that is the case because there is no record of the purpose of the tender and these defences were not addressed in submissions.  However we can think of no other reason for the tender of the documents.
176 For those reasons we think it can be said that the defence was not abandoned.
177 In any event the defence was relied upon on appeal in a modified form.
178 Counsel for Draper conceded that the Defence could not be made out in relation to the first, second and third passages complained of.  But counsel submitted that the Defence was made out in relation to the fourth and fifth passages complained of. 
179 The submission was that the subject matter of the article was a matter of public interest.  We accept that.  It was then submitted that the passages referred to were expressions of opinion based on a substratum of fact sufficiently indicated by the article.  The substratum of fact was said to be the whole dispute over the Hindmarsh Island bridge, and to include the Royal Commission into the aboriginal heritage issues.
180 Apart from establishing that the subject matter of the Article was a  matter of public interest, to succeed on this defence Draper had to establish that the passages complained of were comment as opposed to statement of fact.  The comment had to be recognisable as comment and had to be based on facts which were true.  It was necessary for Draper to establish that the comment or the opinion was capable of being held upon the proved facts.
181 If Draper was able to establish these matters the defence could still be defeated if the Chapmans could prove that the comment was unfair in the sense that it was not made honestly: Jones v Skelton (1963) 37 ALJR 324; Sutherland v Stopes [1925] AC 47 at 63; Hawke v Tamworth Newspaper Co Ltd (1983) 1NSWLR 699 at 720. The Chapmans would establish that the comment was unfair if it was established that the comment did not reflect the honest expression of Draper's real view: O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 176.
182 Draper, in his defence, simply asserted that the words were fair comment.  He had no obligation to go further.  He did not have to say that the comment reflected his honest opinion.  As we have already said he particularised the substratum of facts upon which the comment was said to be based.
183 The plaintiffs filed a reply in which they addressed the plea of fair comment.  They denied that the words were fair comment and then addressed the particulars in some detail.  They then raised a plea of malice and in that plea asserted that Draper had "published the publication knowing it to be false or in wilful blindness as to the truth or otherwise of its contents.."  They also asserted that Draper "made the publication despite being advised of relevant facts by letter from the Plaintiffs' solicitor to the Second Defendant of 13th April 1994".
184 The plaintiffs did not plead in so many words that the comment was unfair because it did not reflect the true expression of Draper's view.  It would have been better if the plaintiffs had addressed that matter directly.
185 The plea that Draper was advised of relevant facts by letter of 13 April 1994 was not made out.  Although the plaintiffs tendered a number of communications both to and from themselves they did not tender that letter.
186 The plea that the words were published knowing them to be false, we think, raises obliquely but adequately, the issue whether the comment was fair.
187 We are satisfied that the plaintiffs have accepted in their pleadings the obligation to prove that the comment was not fair and have given Draper sufficient notice of that plea.
188 This defence is only relevant if, contrary to our view, publication and liability for republication was established.  We assume, for present purposes, that liability is established.
189 Let it be further be assumed that Draper had made out that which he had to establish to raise the defence of fair comment.  The Court would then be called upon to consider this defence in the circumstances of the case.  That is, where publication and republication had been proved, the draft article had been admitted against Draper, Mr Jacob's statement was in evidence and Draper had not given evidence.
190 The question of whether the plaintiffs had established that the comment was not fair would have to be answered in that context.
191 In our opinion the plaintiffs would have discharged the onus which lay upon them.  They would have established, through the draft article and Mr Jacob's statement, that the comment did not reflect Draper's view.  Indeed having regard to the evidence in those two documents it might be said that the comment contained in the article contained in the Green Left Weekly was the antithesis of Draper's view.  The conclusion would have to be that the comment in the article did not express Draper's real view.
192 Whilst the ultimate onus lies upon the plaintiffs to establish that the comment was unfair in that sense, in the circumstances of this case assuming the admission of the draft article and the other evidence, to which we have referred, the evidential onus moved to Draper to displace the adverse inference arising from proof of what Mr Jacobs said.  His absence from the witness box means that he did not discharge that evidential onus.
193 In our view, even if Draper could make out the elements of the defence of fair comment the defence would ultimately have failed, if it had to be considered.
Damages
194 On appeal, complaint is made that the Judge wrongly increased the damages on account of the manner in which Draper's case was conducted. It was submitted that it was not open to the Judge to do so, there having been nothing improper or unjust in the manner in which the Defence was conducted: see Steele v Mirror Newspapers (1974) 2 NSWLR 348 at 379. In our view the short answer to this submission is that there is no indication that the Judge did increase the damages on this account. Granted, in a portion of the judgment headed "Conduct of Defendants" the Judge said:

"I view the second defendant's conduct since the publication as inexcusable and deserves censure."
195 He was critical of Draper for causing the Chapmans to prove their case, to undergo cross-examination but then failing to give evidence himself.  The Judge took the view that Draper should have made it clear that no criticism could be made of the Chapmans.
196 As we said, the short answer to this submission is that the Judge does not appear to have increased damages on this account.  When the Judge came to assess damages he made no reference to this matter.  The fact that the Judge expressed the view that he did about Draper does not give rise to an inference that he must have done so because he regarded that as relevant to damages.  We take the view that the Judge was simply expressing his view about Draper's conduct.
197 In his Defence, Draper also relied upon s11 of the Wrongs Act.  That section provides:
"At the trial of an action for a libel, the defendant may give in evidence in mitigation of damages that the plaintiff has already recovered or has brought action for damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought."
198 At the trial, the defendant tendered a bundle of pleadings in actions brought by the Chapmans against other persons.  These actions were still on foot.  They related to alleged defamatory publications occurring between March 1992 and March 1997.  Evidence was also given of matters in which the Chapmans had sued for defamation and had settled on the basis of a monetary payment.  These actions were in respect of alleged defamatory statements published between April 1994 and April 1998.  The Judge made an order suppressing the amounts of the payments made to the Chapmans.
199 In relation to this matter, the Judge said:
"I have set out the dates of various alleged publications.  They relate to different dates with different subject matter and different publishers.  Clearly the history of the development sage is often mentioned, but, each action relates to different factual material.  There are no other matters involving this article in the Green Left Weekly.  I do not consider section 11 has application."
200 We have looked at the material relied upon by Draper in support of this plea.  Most of the publications were in 1995 and earlier.  However, the publications do relate to the construction of the Hindmarsh Island bridge, and in a number of cases the statements complained of were statements quite similar in content to one or other of the statements complained of in the present case.  Granted, in none of the other actions did the Chapmans sue in respect of the article that appeared in "Green Left Weekly".  But a number of the libels in respect of which the Chapmans have sued appear to us to be for the same purport or effect as the libel for which action has been brought in the present case.
201 Were the appeal by Draper to fail in all other respects, it would be necessary for us to hear further submissions on this matter, and possibly to remit the matter to the trial Judge for further consideration. Our impression is that the Judge has dismissed the plea in mitigation on the basis that none of the other actions brought by the Chapmans relate to the same article. If that is what he has done, he has erred. On the other hand, even if the libels relied upon are to the same purport or effect of the libel complained of, the difference between time of publication, and the limited area of overlap, may mean that in the end they will not operate to reduce the damages recoverable by the Chapmans: see Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14 at 24-26 Miles CJ. As things stand, we face the further difficulty that in the submissions before us the amounts recovered by way of damages were not identified, nor was any detailed analysis made of the content of the other libels in respect of which the Chapmans have sued.
202 As we are of the view that the appeal succeeds on other grounds, it seems unnecessary at this stage to take this matter any further.  Should our conclusion that Draper's appeal succeeds on other grounds be reversed, it will be necessary for further consideration to be given to this issue.
203 Finally, there was a complaint that the damages were in any event excessive.  Subject to the question of mitigation, we would reject that complaint.  The Judge accepted the evidence from the Chapmans about their anger and hurt at being named in the article and about the imputations conveyed by the article.  The Judge found that, in connection with the Hindmarsh Island bridge, the Chapmans had done all in their power to deal properly with issues of aboriginal heritage and preservation of that heritage.  On his findings, there was no valid criticism that could be made of their conduct.  As the Judge said, the defamatory imputations "impeached their moral integrity and professional practices".  The imputations that were made were quite serious, and were likely to cause substantial harm to the plaintiffs' reputation.
204 We consider that the Judge's award of $50,000 to each of the plaintiffs was a generous one, but, subject again to the issue of mitigation, our view is that under the circumstances the award cannot be said to be manifestly excessive.
Conclusions
205 For those reasons we would allow the appeal, set aside the judgment for the first and second plaintiffs in the action, and substitute an order that the action by the plaintiffs against the second defendant be dismissed.  We will hear the parties on costs.
206 DUGGAN J.   I agree that the appeal should be allowed for the reasons given by Doyle CJ and Lander J.  I also agree with the orders proposed by them.

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