Chapman v Allan & Draper No. DCCIV-97-533 Judgment No. D3915

[1998] SADC 3915

CHAPMAN & ORS v ALLAN and DRAPER

[1998] SADC D3915

Judge Lowrie
Civil

BACKGROUND

1 The plaintiffs are property developers, shareholders and directors of a company, Binalong Pty Ltd, (hereinafter called "the company"). They sue the first defendant alleging that she carried on business in Australia as the publisher of a weekly newspaper known as the Green Left Weekly. It is further alleged that the plaintiffs were defamed in an article printed in such paper on 12 March, 1997, which purported to publish an interview with the second defendant. They now seek damages.
2 The first defendant appeared and denied the relevant allegations, and, in the alternative, alleged that the statements made in the article were factual and true in substance and/or matters of fair comment and public interest. However, the first defendant did admit that she was the publisher of the paper which is disseminated throughout Australia. The circulation of the relevant issue was 3,422 nationally of which 357 was in South Australia.
3 The second defendant appeared and denied the relevant allegations, and, in the alternative, further pleaded that he had spoken to the person who appeared to have written the article in the publication, but denied that he published the words as set out therein and pleaded privilege. He then raised a further plea in the event that the finding was that the words were published by him, that the plaintiffs had benefited from other libel actions, and, then further pleaded an offered apology made out during interlocutory proceedings on 10 October, 1997.

HEARING
4 When the hearing of this matter commenced on 20 August, 1998, the first defendant did not appear.
5 My attention was drawn to a document on file which was dated 10 November and filed on 14 November, 1997. An unusual document which was purported to be a notice of discontinuance. It said:
"The First Defendant HEREBY DISCONTINUES her Defence to this action, save as to quantum."
6 The action then proceeded against the second defendant.
PLEADINGS
Statement of Claim
7 The plaintiffs set out the nature of their directorship and shareholding in the company and particularly the development of a marina and residential allotments carried out by the company on land at Hindmarsh Island. This development had commenced in about 1988 and it was proposed to carry out an extension to such development. In 1989 there was a proposal to build a bridge from Goolwa to Hindmarsh Island.
8 During the course of the development application the company was required to carry out an environmental impact study at the request of the Department of Environment and Natural Resources. Such study was carried out between October 1989 and April 1990. Subsequently on 12 April, 1990, the company was granted an approval by the Governor under section 51 of the Planning Act 1992 to carry out the marina extension and build the bridge.
9 It was alleged that on 12 March, 1997, because of wide publicity, a substantial section of the public knew or understood that the plaintiffs were the developers proposing the marina extensions and bridge building and also by such date a substantial section of the public knew that there were issues in regard to the bridge construction and as to whether the same desecrated aboriginal tradition, or, whether the company or indeed the plaintiffs had properly carried out such relevant surveys.
10 The plaintiffs stated that in the publication of the Green Left Weekly, issue Number 266 of March 12, 1997, there was a typed headline which read "Hindmarsh Island Conspiracy Against Land Rights" and a story described as a "cover story" by Carla Gorton appeared in that weekly. After repeating the caption of "Hindmarsh Island: conspiracy against land rights", the story read as being an interview with the second defendant. The frontispiece and the two page article is attached to this judgment. That shows the setting out of the article.
11 The plaintiffs allege that the article referred to their activities and that they had not consulted the Lower Murray Aboriginal Heritage Committee (referred to as "LMAHC") and such words as published concerning the plaintiffs were defamatory because in their natural meaning they meant the plaintiffs had, in obtaining planning approval for the bridge, failed to carry out any proper consultation with the aboriginal people as required by law and/or the relevant authorities.
12 They alleged the plea, as set out in regard to such lack of consultation and the manner reflected on the plaintiffs, was defamatory because it alleged that in paragraph 7(d)(i) - (xi) as follows:
"Such words, in their natural and ordinary meaning, carried the imputations that the Plaintiffs:

1. in obtaining a planning approval for the bridge, had failed to carry out any consultation, or any proper consultation, with Aboriginal people as required by law and/or relevant authorities
   (ii) had not acted properly, or were unlikely to have acted properly, in relation to Aboriginal consultation whether in connection with obtaining a planning approval for the bridge or otherwise
   (iii) had not carried out legal or proper processes in obtaining an approval and/or Aboriginal heritage clearance for the bridge
   (iv) had acted in a surreptitious and/or underhand manner in securing planning approval and/or Aboriginal heritage clearance for the bridge
   (v) had not respected rights of Aboriginal people
   (vi) undermined or avoided legal or proper processes
   (vii) did not obtain a valid or proper planning approval to build the bridge
   (viii) had acted illegally in the course of carrying out planning processes for the bridge
   (ix) had acted dishonestly, unethically, incompetently, immorally and/or improperly in the course of carrying out planning processes for the bridge
   (x) were unfit to be developers
   (xi) caused Binalong to act in the manner referred to in sub-paragraphs (i)-(xi) inclusive."
   13 The plaintiffs then pleaded alternatively that if the words did not carry out such imputations in their ordinary meaning, then such imputation by way of innuendo would arise.
   14 The plaintiffs, in regard to further parts in the article, said the following words in the article:
   "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 ......",
   were published concerning the plaintiffs, were defamatory, and, that the natural meaning of the words carried the imputation that (inter alia) the plaintiffs were attempting to interfere with an aboriginal site and were acting in disrespect of aboriginal tradition or sensitivities, or acting illegally in violation of the relevant provisions of the Aboriginal Heritage Act 1988.
   15 The plaintiffs also said that the words "after this initial attempt to build the bridge without an environmental impact statement" referred to, and were understood to refer to, the activities of the plaintiffs. Again such words were alleged to be defamatory.
   16 The plaintiffs also pleaded that, further, when the article said:
   "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."
   Again, it was alleged they were defamatory of the plaintiffs because such words implied that the plaintiffs had not respected aboriginal people, or, improperly attempted to stop the proper hearing of aboriginal claims, and, wrongly defeated the proper entitlement of aboriginals.
   17 The plaintiffs then pleaded that the final four paragraphs of the article were defamatory of them.

Defence of First Defendant
18 The first defendant admitted she was the publisher of the Green Left Weekly and its Australia-wide circulation and admissions of the plaintiffs’ interests in the company. The first defendant admitted the publication of the article on 12 March, 1997, but denied the defamatory allegations and pleaded that the words were true in substance and were, in fact, a fair comment on a matter of public interest and gave particulars of such a plea and an alternate plea of qualified privilege. The first defendant then pleaded the provisions of various interstate statutory provisions.
19 However, the first defendant did admit that the printed words were the direct quotations of the second defendant and admitted the republishing of the same and an alternate plea in mitigation of an apology published on 6 August, 1997. A copy of that apology is annexed.

Defence of Second Defendant
20 The second defendant made certain admissions concerning the plaintiffs’ marina and bridge developments and that a substantial section of the public knew or understood Mrs Chapman was involved with the company and the bridge proposals injured or desecrated aboriginal tradition.
21 The second defendant then admitted the publication of the article, but denied the same referred to the activities of the plaintiffs or were defamatory. In the alternative the second defendant pleaded that the specific words referred to in the article were fair comment on matters of public interest and stated a factual basis for such plea and further the words were true in substance and in fact.
22 The second defendant admitted those paragraphs of the article were his direct quotations, but denied the same were published to the first defendant, but admitted on two occasions prior to 12 March, 1997, he spoke to a Carla Gorton concerning legislative protection of aboriginal heritage particularly in the context of the bridge proposals. The second defendant denied that he approved, consented or authorised the publication and pleaded qualified privilege and particularised the same.
23 The second defendant denied that he was responsible for the republication of the article.
24 The second defendant then pleaded that, despite the denials, if publication was established and found defamatory then in mitigation the following should be noted:

1. Compensation already received by the plaintiff in numerous defamation actions, and,

2. The offer of an apology made at a case evaluation conference on 10 October, 1997.

Reply
25 The plaintiff filed a reply to the last mentioned defence denying that the building of the bridge was subject to any conditions or that the published article was a matter of fair comment or public interest, and, further, that the second defendant made the publication with malice and particularised the basis of such allegation.
26 The plaintiffs, in regard to the alternate plea, said other compensation had no application and, in regard to the apology, said that it did not constitute an apology and, further, was conditional on unreasonable grounds.

PLAINTIFFS’ EVIDENCE
Mrs Chapman
27 The first and second plaintiffs are husband and wife, and, the third plaintiff is their son. Wendy and Thomas Chapman gave evidence.
28 Mrs Chapman outlined that both she and her husband have been involved in and about businesses associated with land and land development for 34 years. They were involved in a land agency firm in Adelaide called Dawe, Horace, Chapman & Co; a long established real estate business. Mrs Chapman said she has had for many years an interest in local government, and, she became the first female Lord Mayor of Adelaide in 1983. She said that she received much publicity and notoriety because of this appointment. She said during this time for approximately 8 years she was chairman of the Tourism Industry Council and outlined that she had been involved in many other appointments including being a member of the Jubilee 150 Board as well as a member of the Formula 1 Grand Prix Board.
29 Mr Chapman has been active between Apex Clubs and was president of the World Council of Young Men’s Service Clubs.
30 The Chapmans outlined how their family company was established in the mid-1960s and was involved in land development and particularly, in purchasing land on Hindmarsh Island in about 1977. The company had commenced a marina/housing development on that island and "the first boats were in the water about ’85 or ‘84". Consequently, because of that development, the Chapmans became significantly involved in the Goolwa community, and since 1980 this development had been their principal business involvement.
31 Mrs Chapman said during this time they were involved in the development of a tourism facility at Signal Point at Goolwa which is an interpretive centre of the Murray Mouth region, and, displays exhibits involving aboriginal heritage of that area. At that time they became associated with Mr Henry Rankine, the person who narrated the details for that display.
32 Mrs Chapman was made a Member of the Order of Australia in 1986 for her services to local government and the general community.
33 Mrs Chapman said that over the years they had been involved in development not only in this State, but in Melbourne, Sydney, Darwin and other places.
34 An exhibit which is now marked "P2" was placed before me which contained much of the formal material in regard to the further development of the Hindmarsh Island complex which commenced in or about 1989. This was a proposal to extend the marina area which had already been established on Hindmarsh Island. That plan involved extending the development in seven stages. The development application was then made to all relevant government authorities. When that extension was proposed in 1988 it did not include any proposal for a bridge between the mainland and the island. However, subsequently, a bridge became part of the development for traffic requirements.
35 Mrs Chapman outlined that there was a ferry system from the mainland to the island and for many years there had been debate in the community about the advantages of a bridge and that the proposal caused much public as well as political debate.
36 Mrs Chapman said that in 1988-89 they had engaged a Miss Vanessa Edmonds, an archaeologist with specialties in the field of aboriginal matters, to prepare an assessment of the proposed development. Mrs Chapman said that at that time they were aware of what could be "matters of Aboriginal significance in the area". Miss Edmonds had also prepared a prior report for the government and, at their request, she prepared a further report for the company concerning the marina and bridge development. This type of report has been referred to as an "environmental impact statement".
37 That report took into account the sites which had been documented as aboriginal archaeological areas, and indeed, because the Chapmans were aware of the significant areas, the same were made into "reserves" to ensure their protection.
38 Subsequently, the company made its planning application and it went on public display. The relevant plans were displayed by the local council office as well as the Conservation Council office in Adelaide. Mrs Chapman said the proposals received very wide publicity.
39 As is required by law, the proposal went to the Department of Environment and Planning and by letter of 21 April, 1989, the department acknowledged the application and pointed out that it was still awaiting information from the Point McLeay Community Council. The projects officer also outlined that the department had drawn the application to the attention of the Aboriginal Heritage branch. It appeared that there was very little debate about the extension to the marina development, but, the focus was on the bridge site. That letter said:
"A major issue which needs resolving is the question of access to Hindmarsh Island. I have forwarded, to the Department of Highways, the additional traffic information you provided so that the potential impact on traffic flow can be assessed."
40 The Minister of Environment and Planning in response to the company application wrote to Mr Chapman by letter dated 26 October, 1989, advising that the application had received Cabinet consideration. Cabinet required that an environmental impact study be prepared and:
"...... Cabinet agreed to recommend to the Governor that a Section 50 declaration be made to enable the Governor to exercise control over your development. This means that a decision on your proposal will no longer be made by the South Australian Planning Commission.
Cabinet also approved the following:
That the Department of Road Transport contribute from the Highways Fund toward the construction of a bridge, an amount of money not exceeding 50% of the total construction cost of the bridge proposal or $3.0 million, whichever is the lesser. ......
The contribution of monies for construction will be subject to:

1. a satisfactory EIS, and authorisation of an appropriate SDP;"
   41 Mrs Chapman advised that when the company had lodged its development application prior to October 1989, they had carried out a number of preliminary matters with respect to an environmental impact study including retaining Ms Nadia McLaren, a private consultant, from a group called "Sociological and Ecological Assessments" in regard to research work. The Chapmans had, in the course of this application, on 4 September, 1989, written to Mr Henry Rankine of Point McLeay, a person with whom they had prior dealings, and who was a responsible person with regard to various aboriginal matters. In that letter they enclosed a copy of an archaeological survey of Hindmarsh Island and said they were anxious to talk further with Mr Rankine, particularly about their development. They attended on him with Nadia McLaren.
   42 Mrs Chapman outlined how they then proceeded in the preparation of the environmental impact study. After receiving the government letter in October 1989, the environmental impact statement was then prepared which included the letter of 9 November, 1989, to Mr Rankine and the same went on public display. Following that time Mrs Chapman said many people made submissions on the statement.
   43 As shown on page 6 of Exhibit P2, the draft environmental impact statement in paragraph 6.5.1 included comments on "Aboriginal Heritage", and, in paragraph 6.5.2, "Post-Settlement Heritage". Mrs Chapman said that as part of the preparation of that document they had attended Mr and Mrs Rankine. This had been done at the suggestion of the Aboriginal Heritage branch that they were people to whom they should consult concerning the application.
   44 The Department of Environment and Planning, Aboriginal Heritage branch, then wrote a letter of 12 January, 1990, which is page 12 of Exhibit P2 in response to the Chapmans' then application. It is an important letter and it stated as follows:
   "I refer to an application for Aboriginal Heritage Determination pursuant to Section 12 of the Aboriginal Heritage Act 1988, made on behalf of Binalong Pty Ltd on 3 January 1990 in respect to development on Hindmarsh Island.
   The preliminary report An Archaeological Survey of Hindmarsh Island, Edmonds (1988) indicates that there are a number of Archaeological sites on Hindmarsh Island. Consequently, it is possible archaeological sites exist in the area of the proposed development as outlined in the Draft Hindmarsh Island Bridge Marina extensions and water-front development EIS.
   Furthermore, no anthropological surveys have been conducted in the vicinity to determine the significance of Hindmarsh Island for Aboriginal Traditional Owners of the area.
   For these reasons it will be necessary for you to engage suitable experts under Section 12(6) of the Act to survey the area of proposed development on Hindmarsh Island and provide information suitable for determining whether any entries should be made in the Register of Aboriginal Sites and Objects.
   I have enclosed a copy of the Branch’s Register of consultants for your convenience. The Branch recommends Mr Rod Lucas, anthropologist, and Ms Vanessa Edmonds, archaeologist as suitable consultants for this project. Any site reports for this area held by the Branch will be made available to the consultants engaged.
   Your assistance in this matter is greatly appreciated and the Branch will provide assistance to you during the process of the determination where possible."
   I have underlined a passage which has received much comment.
   45 Mrs Chapman said that immediately on receipt of that letter, the company instructed both the named persons, Miss Edmonds and Mr Lucas, who subsequently prepared reports including discussion with aboriginal persons with regard to the contents of those reports.
   46 Mrs Chapman mentioned that in December 1989 an incident occurred at the entrance of the marina where it became apparent that some aboriginal artefacts had been unearthed. They immediately contacted the Aboriginal Heritage branch as well as Mr Rankine. The site was inspected, covered, stabilised and planted in accord with their directions. Mrs Chapman believes that this was the first occasion she became aware of the existence of the second defendant, Dr Draper. She believed he was involved in the inspection of this site.
   47 Miss Edmonds forwarded her report on 23 January, 1990, and a copy of her covering letter is on page 13 of Exhibit P2. In the second paragraph of that letter Miss Edmonds commented:
   "There are four other copies, one has been sent to Neale Draper, Aboriginal Heritage Branch, another to the Point Macleay Community Council, one to Mr. George Trevorrow at the Ngarrindjeri Lands and Progress Association, Camp Coorong and I have kept a copy for my own records."
   Mr Rankine was a respected member of the Point McLeay Community Council.
   48 It is apparent that on 23 January, 1990, Dr Draper was aware of this report.
   49 Mrs Chapman said nothing was forthcoming after the same was distributed.
   50 Mrs Chapman said she believed that Mr Lucas, in the preparation of his report, conferred with all aboriginal people in and about the area including Mr Wilson, Mr Trevorrow and Mr Day. Mr Day was involved with the Lower Murray Aboriginal Heritage Committee.
   51 After Mr Lucas had provided his report, Mrs Chapman said a further supplementary or additional environment impact statement was prepared and submitted which incorporated the Edmonds and Lucas reports.
   52 Mrs Chapman said in this time there were difficulties in the actual location of the bridge alignment and amendments were made to the site. This was subsequently approved. Mrs Chapman was aware that the Lucas report contained some recommendations in relation to anthropological matters.
   53 A document which appeared at page 21 of Exhibit P2 and headed "Assessment Report for the Proposed Hindmarsh Island Bridge Marina Extensions and Waterfront Development" was prepared by the Major Projects and Assessments Branch Department of Environment and Planning. Paragraph 4.6 of this report was headed "Aboriginal Heritage Issues" and commented upon the anthropological study of Mr Lucas and recommendations "which need to be addressed". In that paragraph it mentioned:
   "It is necessary for the proponent to consult with the Aboriginal Heritage Branch about implementing these recommendations, particularly with regard to burials, skeletal remains and the discovery of other material during excavation.
   The archaeological study is satisfactory on the understanding that the recommendations put forward by Edmonds (1989) and quoted in the Supplement will be followed. The anthropological study (Lucas 1990) is satisfactory, but the recommendations from this report have not been addressed in the Supplement. In this regard it is necessary for liaison to occur between the proponent and the Aboriginal Heritage Branch before any development proceeds."
   54 The Minister of Environment and Planning wrote to the plaintiffs by letter dated 11 April, 1990, on page 28 of Exhibit P2, approving the application. That letter was in the following terms:
   "I am pleased to advise you that the Governor in Executive Council today granted consent to your application, made pursuant to Section 51 of the Planning Act and dated Marsh 1990, for development of a bridge to Hindmarsh Island and for marina extensions and waterfront development on the Island.
   In making this decision the Governor had regard to the officially recognised Environmental Impact Statement for the project.
   The Governor’s consent is subject to the conditions set out in the attachment to this letter.
   I also confirm that the Government will pay Binalong Pty. Ltd. 50% of the total construction costs of the bridge or $3.0 million, whichever is the less, and that this payment will be made within 7 days of practical completion of bridge construction. Commitments covering bridge construction are outlined in an agreement drafted by the Crown Solicitor (a copy of which has been forwarded to you for consideration). The Government’s commitment will be contingent upon the agreement being duly executed by all parties as soon as practicable.
   I congratulate you on your initiative in putting forward this proposal and on the manner in which you have proceeded to respond to requirements for the Environmental Impact Statement and the application to the Governor. I look forward to a successful implementation of the project."
   55 The attachment to the letter contained consent to both development of the bridge and stage 1 with conditions. Some of those conditions included as follows:

1. Consent is granted to development outlined as Stage 1 of the project as detailed in the Section 51 application, dated March 1990 and held in Docket No. 2116/88 and subject to the following conditions being fulfilled -
          (a)   That Binalong be required to pay that portion of cost for water supply approach and reticulation mains attributable to the proposed development as determined by the E&WS Department. All water supply connections within the development should be to the requirements of the E&WS Department.
   (b)   The following recommendations on anthropological matters should be carried out by Binalong as follows:
   · Binalong should consult directly with the relevant Aboriginal representative bodies identified herein, and with any other Aboriginal persons chosen by those bodies. The expense of such consultations in respect of time and travel on the part of Aboriginal representatives to be borne by the developer.
   · All relevant Aboriginal representative bodies should be notified immediately and fully consulted concerning any possible skeletal material revealed by survey of the development of the site.
   · Binalong and all subsequent agents such as construction crews, etc should be fully conversant with the provisions of the Aboriginal Heritage Act, 1988, particularly in respect of skeletal material.
   · Binalong and all subsequent agents, should be fully acquainted with the procedures of Aboriginal Heritage Branch in respect of Aboriginal skeletal material.
   · Binalong should forward a full report of any action taken in respect of Aboriginal skeletal material revealed as a consequence of survey or development activity on the Hindmarsh Island site, to the relevant Aboriginal representative bodies, at this point identified as the Ngarrindjeri Tendi, Raukkan Community Council, Ngarrindjeri Lands and Progress Association and the Lower Murray heritage Committee."
   56 The conditions in the attachments flow from the matters which were set out in the prior government assessment report, and, those conditions attach to stage 1 of the development of the marina and not the bridge.
   57 The plaintiffs then received a letter from the Department of Environment and Planning, Aboriginal Heritage Branch, dated 12 April, 1990, in the following terms:
   "Re.:      HINDMARSH ISLAND DEVELOPMENT
   Pursuant to Section 6 of the Aboriginal Heritage Act 1988 which provides for Ministerial delegation to the Manager of the Aboriginal Heritage Branch, authorisation, under Section 13 of the Act, is granted to Binalong Pty. Ltd. to establish the marina/waterfront development (as detailed in both the Draft E.I.S. and the Supplement to the Draft E.I.S. for Hindmarsh Island Bridge, Marina Extensions and Waterfront Development) as no Aboriginal sites of archaeological or anthropological significance will be affected by such a development.
   Such authorisation is subject to the conditions set out in Section 4.6 (Aboriginal Heritage Issues) of the Assessment Report for the Proposed Hindmarsh Island Bridge Marina Extensions and Waterfront Develop-ment, Major Projects and Assessments Branch, Department of Environ-ment and Planning."
   58 As is seen from that letter, it gives approval for the development as no sites of "archaeological or anthropological significance will be affected by such a development".
   59 Mrs Chapman said the responsibility and construction of the bridge became an obligation of the government which then engaged the company "Built Environs" for the purpose of constructing the bridge.
   60 The plaintiffs and their company had no contractual or other relationship for the building of the bridge, apart from some financial obligation.
   61 As the marina/housing development was in stages, the Chapmans made an application for commencing stages 2 to 6. Subsequently the government, by letter dated 26 August, 1992, approved such development. The letter said:
   "I am pleased to advise you that on 6 August 1992, Her Excellency the Governor in Executive Council granted consent to your application, submitted pursuant to Section 51 of the Planning Act, for a further consent to be issued in relation to stages 2 - 6 of the Marina Goolwa development.
   The Governor’s consent is subject to the conditions as set out in Attachment 1 to this letter.
   I look forward to a successful implementation of the project and wish you well in your endeavours."
   62 It is interesting to note that the attachments to that letter and the conditions of approval did not contain the consultative requirements as required in stage 1 in the attachment of the prior consent of 11 April, 1990. The question was then asked of Mrs Chapman:
   "Q.  Nonetheless, to your knowledge, whenever in the course of your company’s work at the marina there was any matter encountered that was of Aboriginal significance, was that dealt with in the way that you had previously undertaken to the Aboriginal Heritage Department.
   A.  The dropping of the conditions made no difference whatsoever to our responsibility and caring.
   Q.    Or attitude.
   A.    Or attitude."
   63 The Chapmans said by October 1993, at a stage when it was proposed to commence the construction of the bridge, a body of opposition had developed to that construction. This opposition included aboriginal and other groups. Mrs Chapman said that on 8 October, 1993, there was a public meeting in Goolwa called by persons who opposed the construction of the bridge. Mrs Chapman said she was not present, but she has heard a tape recording and she was able to identify for instance Mr Henry Rankine as being present at the meeting. It was suggested at this meeting that there had not been any consultation with aboriginal people. Mrs Chapman said clearly that was incorrect.
   64 This was the first time the plaintiffs had heard any criticism that there had been a lack of consultation with aboriginal persons. Subsequent to this meeting a picket line was established at the bridge site.
   65 Mrs Chapman said she believed that Dr Draper was involved as he was on site on the day when the tractors and bulldozers came to commence the diversion road and eventually all work ceased.
   66 After the bridge work stopped, the plaintiffs received a copy of a letter from the Department of State Aboriginal Affairs which had been addressed to Connell Wagner (SA) Pty Ltd, the engineers for the bridge building project. In that letter it commented that:
   "Field inspections have been conducted by the Senior Archaeologist, Culture and Site Services and members of the Lower Murray Aboriginal Heritage Committee, of areas in which Aboriginal Heritage sites might be directly impacted by bridge construction between Goolwa and Hindmarsh Island."
   The letter listed some four areas, then finally:
   "With respect to the requirements of the South Australian Aboriginal Heritage Act (1988), there are no objections to the bridge construction project proceeding, subject to the above conditions, and the further requirement that any suspected discovery of Aboriginal sites, objects or remains during the course of the project should be reported without delay to this Department, and work in the vicinity of such discovery halted subject to this consultation."
   Mrs Chapman viewed that the senior archaeologist referred to in that letter was Dr Draper.
   67 Mrs Chapman commented that a Mr Langmaid and Dr Draper came to their office and discussions then ensued. At that time, Dr Draper had met a person who was understood to have some capacity with the LMAHC, but Mrs Chapman pointed out that in those discussions, no reference was made by Dr Draper to the bridge site or anything affecting aboriginal cultural matters, nor were any concerns raised by him.
   68 She recalled another occasion when Dr Draper and other aboriginal persons inspected the marina site where apparently some topsoil had been removed, but such persons were happy with the way in which that soil had been restored. At this time Mrs Chapman said there had been considerable discussion in the general community about the bridge and its development. Again, when this topsoil problem was discussed with Dr Draper, there was no discussion centred at all on the bridge development.
   69 Mrs Chapman said that by this time it was approximately December 1993 and a new state government had been elected which appointed Mr Jacobs QC to prepare a report on bridge matters. Subsequently, the report was delivered finding that the government was contractually bound to build the bridge.
   70 In July 1994, Federal intervention occurred and an interim order was made proclaiming a 25 year building ban pursuant to the Aboriginal and Torres Strait Heritage Protection Act. Mrs Chapman said that subsequently she and others were co-plaintiffs in proceedings in the Federal Court in relation to that interim order, evidence was given by her and others and eventually judgment was made in their favour. That matter was subject to an appeal and the appeal was dismissed.
   71 The next step was the institution of a Royal Commission by the State government at which Mrs Chapman attended and gave evidence. Then there was a further Federal inquiry by Justice Mathews and, again, she cooperated.
   72 Mrs Chapman outlined that she had read the edition of the Green Left Weekly, being Number 266 published on 12 March, 1997, and particularly an article headed "Hindmarsh Island: Conspiracy Against Land Rights" which was a story prepared by one Carla Gorton.
   73 Mrs Chapman commented that in the second column in the second paragraph the words:
   "‘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.",
   were printed.
   74 Mrs Chapman said that she, at all times, believed Mr Henry Rankine was involved with this committee. The Chapmans had been involved with Mr Rankine from the outset of their development application. Those discussions continued after Mr Lucas had presented his report. Mrs Chapman, when she read this comment, was "very, very angry" and viewed the statement as incorrect.
   75 She was then directed to the next paragraph which said:
   "‘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."
   76 Mrs Chapman said that she was familiar with the words "road traffic connector" as it was the name given by the Connell Wagner study to the bridge. Mrs Chapman pointed out that by October 1993 approval had been given for the construction of the bridge and the preparation of the environmental impact statements had been called for. She confirmed those environmental impact statements made reference to a bridge and the statements in the article were inaccurate and wrong.
   77 Her attention was also drawn to the paragraph which said:
   "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."
   The last sentence is a damaging statement. Mrs Chapman confirmed that they had at all times cooperated with the Aboriginal Heritage branch and carried out both archaeological and anthropological studies as directed by that branch who were then provided copies of the same. The letter from the Aboriginal Heritage branch of 12 April, 1990, was written after the relevant material was obtained and unconditional approval was given by that branch for the marina development.
   78 Mrs Chapman reiterated that when Miss Edmonds prepared her report at the end of 1989 a copy was sent to Dr Draper. Mr Lucas undertook his aboriginal anthropological study and again that report also was provided to the government. Mrs Chapman said it was apparent from the report that Mr Lucas consulted with aboriginal people. Mrs Chapman said she had fully cooperated with the Aboriginal Heritage branch and supplied all the relevant and requested environmental impact statements and believed that there was ample time given for such persons to peruse and comment on the same.
   79 Mrs Chapman’s attention was then drawn to the paragraph which said:
   "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."
   Mrs Chapman again confirmed that her company was not in any way involved with the construction of the bridge.
   80 Her attention was drawn to the paragraph in the fourth column, which said:
   "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."
   Mrs Chapman viewed that paragraph as grossly inaccurate and wrong. She said she was extremely angry because that comment was exceptionally hurtful and extremely slighting on "my character as well as on my family". She considered at all times the effect of the bridge and its impact on the environment as most important. Mrs Chapman commented:
   "Our environmental impact study contained many, many examinations of impacts or assumed impacts of our development upon the environment and the site of the bridge was a part of that EIS and it was duly considered reported on and accepted in terms of the approval."
   Mrs Chapman said she viewed that consideration as important because, "I’m not a destroyer".
   81 Mrs Chapman’s attention was then drawn to the following paragraphs which said:
   "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."
   She viewed that passage as a reference to her and her family by the use of the word "Chapmans" and as a reference to the Federal proceedings in which she and her family had been involved which caused the overturning of what she referred to as the "Tickner 25 year order". She was offended by that comment as she believed she and her family had acted within the law exercising their lawful rights and said that she and her family had been aggrieved by the Tickner order and hence her involvement in the Federal Court proceedings.
   82 Mrs Chapman also commented that she had at all times cooperated with the aboriginal people, including a Professor Saunders who attended her and had provided her with much information. She said "we bent over backwards to provide everything we could" and provided Professor Saunders with "volumes of material".
   83 Mrs Chapman said she had cooperated with all persons who had in any way involved themselves in inquiries, the royal commission, and had continually provided "volumes of material" for such hearings.
   84 Mrs Chapman’s attention was then drawn to the paragraph which said:
   "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.",
   and, particularly, the words "well-funded smear campaign has repeatedly been able to rout the processes available to the traditional owners to get a fair hearing". Mrs Chapman said she viewed those words as a reference to her and to the Hindmarsh Island development, as there was reference to "Hindmarsh Island", and, it was "outrageous" to suggest they had involvement in a "well funded smear campaign".
   85 Mrs Chapman reiterated they never had large funds of money available to provide lawyers, indeed, at that time they were receiving social security payments. She stressed and reiterated that they had never taken any steps to deprive the Ngarrindjeri people of their right to be heard, or, indeed, their right to be believed, and, she was in no way involved in any type of "smear campaign". She said her family had never endeavoured to rout the processes available to the traditional owners to get a fair hearing. Mrs Chapman said she not only made full disclosure at every step to nominated aboriginal persons, whom she believed were in responsible positions, but cooperated fully with every hearing in and about this matter, and made herself available for examination and cross-examination or interviews by any person.
   86 She felt that this criticism of her and her family was totally scurrilous as it was untrue, and she found the whole article:
   "...... very, very hurtful - very hurtful - and when one has spent one’s life caring to build a reputation and having contributed so much to community life, it is very hurtful."
   87 Her attention was then drawn to the final page which said:
   "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 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."
   88 Mrs Chapman said she regarded those statements as also referring to both her and her family and their development. She said when she read this:
   "I absolutely saw red, because I saw that we were being thrown into this vicious, venomous cocktail, and I believe that those two paragraphs are exactly that, and for the suggestion to be made that we were in the middle of a knot of hatred and discontent with shades of Hitler and the Jews - I mean, that is a very, very dreadful thing to have printed and said about you."
   89 At no time was it ever her belief that "Black fellas are stereotyped as children who can’t be trusted with money or to tell the truth". Indeed up until 1993, Mrs Chapman said she had always had good relations with aboriginal persons.
   90 Her attention was drawn to the headline which talked of "Conspiracy Against Land Rights" and she reiterated that she had never at any time, nor had any of her family or company, been involved in any form of conspiracy. She said that when she saw that headline she was asked how she interpreted it and she said:
   "Well, when I first read this, it impacted to me that I was being or that we were being accused of wrongdoing and cheating Aboriginals out of their rights."
   She did not view that as having an innocent meaning and she had never been involved with any type of scheme or arrangement to deprive a person of their rights, land or otherwise.
   91 Mrs Chapman then produced numerous volumes of both the print and electronic media which related to her, her family, and her company. She said the same did not "capture all of the material that has flowed over the years", but, approximately 50% of the same. This material dates from 1980 through to 1997 and contains repeated references to the Chapmans as "developers". The five volumes of this material were tendered.
   92 Mrs Chapman was cross-examined at length about her evidence and various matters which had occurred over the years in this development saga, including slightly more of the background of the development on Hindmarsh Island. It appeared that such development first commenced in about 1984 when a small marina was constructed. A further development application was lodged in early 1988 to extend the marina.
   93 Mrs Chapman confirmed that initially Vanessa Edmonds was engaged by the Aboriginal Heritage branch of the South Australian government and carried out a survey of sites on the island and there had been discussions in 1988 with Miss Edmonds about the protection of little known archaeological sites on the island. Prior to this time, Mrs Chapman said they had used Wallace Planning Consultants and subsequently, in 1989, the Chapmans had retained the services of Miss Edmonds and Mr Lucas on the recommendation of the Aboriginal Heritage branch in relation to the involvement of archaeological sites on the island.
   94 Mrs Chapman confirmed that the reason they instructed Miss Edmonds and Mr Lucas was because of the specific referral by the Aboriginal Heritage branch and not any suggestion by their then planners or advisors.
   95 Mrs Chapman agreed that it was a government requirement as part of the environmental impact study that they obtain the archaeological and anthropological reports. However, Mrs Chapman confirmed that although she had seen both the Edmonds and Lucas reports they could not now be produced because of section 35 of the Aboriginal Heritage Act 1988. She believed the authors of these had conferred with aboriginal people.
   96 Questions were put to Mrs Chapman about the contents of the reports and whether there was a reference to a "bridge". She said she could not comment on those matters. She confirmed that the eventual approval of the department included some of the recommendations of Mr Lucas. Mrs Chapman mentioned that when she read those conditions they were, in the main, talking about skeletal remains.
   97 Mrs Chapman said that she recalled some matters in the Lucas report that indicated he had had discussions with aboriginal groups and he believed that they were to go back and talk amongst themselves and return with their comments.
   98 Mrs Chapman’s answer to a specific question was that it was her understanding the government had made all the necessary applications for the construction of the bridge.
   99 Mrs Chapman’s attention was drawn to the 6 August, 1997, edition of the Green Left Weekly headed "apology". The apology is an annexure to this judgment and was in the following terms:
    "In the March 12, 1997, Issue No. 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."

Mr Chapman
100 Mr Thomas Chapman confirmed that he was in court while his wife had given evidence-in-chief and was cross-examined and accepted all facets of that evidence.
101 Mr Chapman confirmed that they commenced their development company in the late-1960s and land was subsequently purchased on Hindmarsh Island in 1977. They then proceeded with the marina development in about 1984. Thereafter, they desired to expand that development and confirmed the development applications as identified by his wife.
102 Mr Chapman confirmed his contact with Miss Edmonds concerning her studies and reports and gave a brief history of the events which have happened concerning the bridge proposals and debate.
103 He confirmed his involvement with the development application and consultation with the various archaeological and anthropological experts.
104 Mr Chapman said that since about the 1980s he has been involved in the development of real estate, both on his own behalf, and with others in South Australia and other states. Prior to this time, he had been a land agent in the family firm of "Daw Brothers Horace Chapman" and because of this background, had expertise in the development of land and the associated planning processes. After his involvement with Hindmarsh Island, he became involved with the local community and chaired the committee for the bicentennial project for the creation of Signal Point which he described as a user-friendly museum and an interpretive centre for the area. He said there was a significant amount of aboriginal involvement in that project and, in particular, contact with Mr Henry Rankine who was responsible for much of the material now on display at that centre.
105 He said he was well aware of all the environmental impact statements that were prepared for their development and the long period it took to collate the material for such studies. He said a copy of the early report was forwarded to Mr Rankine for his interest. He said he did that because he had undertaken to send a copy of the report to him. He knew that Mr Rankine was a responsible person from the Point McLeay Community Council because of his knowledge of the area. He also believed that he was head of what the community called the "Ngarrindjeri People" and held himself out to be in discussions.
106 Mr Chapman confirmed his involvement with the obtaining of the Edmonds and Lucas reports as directed by the Aboriginal Heritage branch.
107 Mr Chapman gave brief evidence about his involvement with the preservation of sites which they had found on Hindmarsh Island and that they took action to protect such sites. He viewed the letter of 12 April, 1990, as he was told by the heritage branch a "blanket" approval for their development and he regarded that as completing the formal requirements as far as any aboriginal issues were concerned. He felt that was only one part of the environmental impact statement process.
108 Mr Chapman confirmed that eventually it became the responsibility of the government to attend to the construction of the bridge and they executed an agreement with the government which has been referred to in these proceedings as the "Tripartied Agreement". That was an agreement between local council, the government and his company and dealt with the bridge construction.
109 Mr Chapman also outlined the events which forced the bridge construction to cease including the nature of the people who had gathered. Later on that day he said that the second defendant, Dr Draper, was at the site accompanied by people who he believed may have been members of the LMAHC. Dr Draper subsequently came to the marina and he talked with him on this occasion. Also at this time Dr Draper attended on the island and looked at their property including an area from which they had moved sand, called a "borrow pit", and such area was cleared by Dr Draper. He said at all times Dr Draper was friendly and he loaned him the facilities. He felt there was nothing that he found that would cause any interruption to their work. He said he viewed the discussion about the bridge approaches as having been cleared.
110 Mr Chapman said that earlier on they had found some skeletal remains and had taken all appropriate steps by contacting the relevant persons and this area was restored. At no time in these discussions, or thereafter, was it ever mentioned to him that there was any lack of consultation either with Dr Draper or any other persons. This aspect had never been raised.
111 The relevant paragraphs of the article in question were placed before Mr Chapman and he very much reiterated his wife’s complaints with that article. He summarised it by saying he was "appalled". He had never conducted a development in the way that was described in the article and he did not believe a reputable developer would act in such a manner as he "never had or never would".
112 Mr Chapman confirmed the manner in which both he, his wife and family, and, as far as necessary, the company, had cooperated with all inquiries, the royal commission and courts. He said:
"We went out of our way to make sure that we did everything that was required of us, it was the great scurry when some information was sent out inadvertently, we hadn’t even opened it, it was picked up and immediately returned. We offered to make sure that any sensitive information was only seen by a female solicitor, my wife and a female anthropologist. There was nothing more that we could have humanly done to expedite, to make it simple, easy for those Aboriginal women to get their point of view across."
113 Consequently, he said that the items referred to in the article were totally wrong. Mr Chapman commented that he thought the media was unjustifiably against them. They were certainly not involved in any smear campaign as they had no funds whatsoever and he was very offended by that comment.
114 He viewed the final paragraphs in the article as a reference to, and felt the whole of the article was based on, what the Chapmans had done.
115 Mr Chapman was cross-examined as to the historical matters he had placed in his evidence-in-chief and also his views on various consultations with aboriginal people. Again he believed, like Mrs Chapman, that Mr Lucas had discussed matters with aboriginal groups and they would come back after considering matters. That was how he understood that report as he and his wife were prepared to consult with any person about relevant matters.
116 The parties tendered, by consent, a copy of the statement obtained from Mr Samuel Jacobs QC which statement outlined how in December 1993 he was instructed by the Minister of Roads and Transport to report on various matters relating to the proposed bridge linking the mainland of Goolwa to Hindmarsh Island and was asked to independently assess relevant facts. Mr Jacobs commented that he had, for the purpose of that inquiry, access to files of relevant government agencies. He said:
"I also met and spoke with Dr Neale Draper of the Department of State Aboriginal Affairs (formerly the Aboriginal Heritage Branch of the Department of Environment and Planning).
I saw Dr Draper at least twice, and spent about 4 or 5 hours with him."
117 Mr Jacobs outlined that he had perused a report relating to the bridge from the department dated March 1990. In that statement he outlined many matters which he had obtained from perusal of relevant material from departmental files, and, finally concluded with the following:
"Meetings with Dr Draper
In order to gain an understand of Aboriginal grievances, which I found were not supported by the above documents on departmental files, I had discussions with Dr Draper.
Dr Draper informed me that there was no complaint against the Chapmans or Binalong.
He said 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’."
118 Counsel for the plaintiffs intimated he did not propose calling the third plaintiff as he could not add to or take the matter any further.
119 Counsel for the plaintiffs also intimated that he was asked and did concede that the Lucas report did not make any reference or does not use the words specifically "the bridge".

Re-opening of Plaintiffs’ Case
120 Plaintiffs’ counsel sought leave to reopen his case on one matter which he had overlooked. When plaintiffs’ counsel opened he briefly canvassed what I will call the Draper apology pleading (paragraph 22.2) and the detailed reply to the same (paragraphs 4(1) and (2)) and sought leave to tender the form of apology and, if required, said he would call the solicitor who was acting for the plaintiffs at the conference and who received the document.
121 The second defendant’s counsel agreed that the document was handed to the plaintiffs’ solicitor.
122 Counsel for the second defendant opposed the tender on the basis that although pleaded it was not an apology as such in terms of section 9 of the Wrongs Act 1936, and, further, was not relevant until the presentation of the second defendant’s case. He contended that there was no waiver of privilege, and, in any event, it would only arise after the presentation of the second defendant’s case.
123 I viewed the pleading as a waiver of any privilege that may have existed. Once the apology was specifically pleaded it made the document relevant and admissible and delivered brief reasons for my view. That document is attached.

SECOND DEFENDANT’S CASE
124 When counsel for the second defendant opened his case, he addressed certain comments in regard to the Edmonds and Lucas reports. Apparently he had requested that the plaintiffs, through their counsel, produce certain pages of the same. The advisors then appropriately raised the issue of section 35 of the Aboriginal Heritage Act and felt they were unable to produce such reports or pages thereof.
125 Counsel for the defendant raised for consideration whether that section applied. I intimated that I viewed the response of the plaintiffs’ advisors as appropriate. Counsel then endeavoured to persuade me that there were some pages or parts of those reports which would not be subject to section 35. I had difficulty in accepting that suggestion.
126 Counsel for the plaintiffs intimated that his clients were in possession of two reports and viewed the section had application which prevented any part of those reports being disclosed.
127 I accepted that submission.
128 Having made such a ruling, counsel for the second defendant then intimated that he viewed such material as important and required an opportunity to obtain ministerial authority for the same to be divulged as without the material the evidence would be incomplete and consequently his client would be placed in an unfair position.
129 The adjournment application was opposed by plaintiffs’ counsel.
130 I intimated I would be prepared to grant such an adjournment but it would be on a basis that the defendant bore the costs of the same. I viewed the application as late. It appeared that this matter had been subject to numerous interlocutory proceedings as well as detailed pleadings. I considered if, at this stage, the second defendant was placing relevance on this material as part of his defence, then ministerial approval for the disclosure of the reports should have been obtained well before trial.
131 After these matters had concluded counsel for the second defendant then advised me that he proposed to make a "no case" submission, and the section 35 material would not affect that issue.
132 After some discussion with defendant’s counsel, I intimated, bearing in mind the comments in the cases of Copper Industries Pty Ltd v Hill (1975) 12 SASR 292 and the Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 and the discretion which exists, that I considered, because of the nature of the pleadings and the plaintiffs’ evidence, that this was a matter that, if the second defendant desired to proceed with that submission, he would be obliged to elect as to whether he proposed to called evidence.
133 Following that ruling, I was informed by counsel for the second defendant that the second defendant proposed to proceed with the submission and elected not to call evidence.
134 I then heard that submission and eventually ruled that the second defendant had a case to answer.
135 Consequently the parties then proceeded to addresses.
136 It is necessary to review the matters of law placed before me in the no case submission as those matters were repeated in counsels’ final addresses.

SECOND DEFENDANT’S SUBMISSIONS
Publication of Libel
137 The matters placed before me in the submissions can be summarised as follows.
138 There is no admissible evidence of publication by the second defendant, or, the circumstances of any publication in support of the plaintiffs’ pleadings in paragraphs 15, 16 and 17 of the statement of claim.
139 The statement of claim alleged that the relevant passages in the Green Left Weekly were "represented in the story to be direct quotations of the words of the second Defendant", by either a direct quotation or partly as a direct quotation and as such were published by Dr Draper to the first defendant, or, alternatively, that he had published such matters to Carla Gorton or to some other person who in turn published the same to the first defendant.
140 Paragraph 16 of the statement of claim alleged that Dr Draper was liable for the publication of the first defendant by reason of the fact that he authorised, or, intended the first defendant to repeat or re-publish the matter, or, in the alternative, that the re-publication was the result of his actions.
141 The second defendant’s counsel said that the plaintiffs have the onus of proving that Dr Draper published to Carla Gorton the actual words used in the paragraphs of the article, and, that the publication was either authorised or it was the natural and probable result of those actions.
142 The second defendant’s counsel submitted further that on both these issues, particularly on the evidence of publication or re-publication, that the article itself is inadmissible hearsay as there is no presumption that the newspaper report is accurate. Counsel considered that the article before me purports to be under the hand of one Carla Gorton and purports to quote Dr Draper in that article, but, submitted that, notwithstanding that, it is in itself not evidence of publication by Dr Draper. What is required in this type of case is for the plaintiffs to call evidence to establish the words were spoken by Dr Draper to Carla Gorton. It was contended that this could be done in a number of ways, but, simply to tender the article is not in itself evidence of publication because it offends the hearsay rule and that there is no presumption of accuracy in a newspaper report.
143 In support of this contention counsel referred to the 8th Edition of Gatley (1981). Paragraph 1296 is headed:
"Action for slander. In an action for slander, the plaintiff may succeed in getting the defendant to admit in answers to interrogatories that he spoke the words complained of; and publication may then be proved by putting in the answers. But if no such admission is obtained, or if the defendant denies in the answers that he spoke the words, the plaintiff must call those who were present and heard him. The witnesses must prove the actual words alleged to have been published; it is not sufficient for them to state what they conceive to be the substance or effect of the words, or their impression of what was said."
144 In actions for slander one can see that the essential element of proof is the requirement to prove the spoken words.
145 Counsel for the defendant then pointed out that Dr Draper, by virtue of paragraph 19.3 of his defence, said:
"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."
Then in 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.",
and then went on to plead qualified privilege.
146 On the face of the pleadings, Dr Draper has always denied the words which were alleged to have appeared in the article.
147 Counsel then referred to the cases in the footnote to the section in Gatley. They were Tocker v Great Atlantic and Pacific Tea (1963) 190 A. 2d 822, on the basis that there is no presumption that a newspaper report is accurate and Lakidi v Lalobo [1971] EA 87, as authority for the proposition that tendering a newspaper which purports to quote an interview is not prima facie evidence that it was spoken by that person because it is hearsay evidence.
148 I was also referred to Dalrymple v Sun Life Assurance Co of Canada 56 DLR (2d) 285, where the plaintiff alleged that a branch manager of the defendant slandered him in the course of his work duties. The allegation was that the defendant, Attridge, had slandered the plaintiff in a conversation with one Shinner. At the trial, the plaintiff, to prove publication and slander, gave evidence of what Shinner had told him of what Attridge had stated in the course of the relevant conversation. The trial judge held the evidence was inadmissible and dismissed the action on the grounds that the alleged conversations were occasions of qualified privilege and there was no evidence of malice. There was subsequently an appeal and a new trial was directed. The Appeal Court’s comments were directed to questions of malice and qualified privilege. At the new trial the judge ruled that the evidence of what was said by Shinner was not admissible on the ground that it offended the hearsay rule.
149 The learned appeal judges recited the principle of R v Christie [1914] AC 545 at 548, which restates the principle that evidence relating to what some person not a party to the proceedings has said or wrote is not admissible as proof of the truth of the utterance and that the learned trial judge had relied on a comment from Button on Libel and Slander, 2nd Ed, p68 on a case of slander dealing with the issue of publication when it was said:
"The burden of proving publication is, in all cases, upon the plaintiff. In the case of a slander, publication must be proved out of the mouth of that indispensable witness who heard the slander utter."
150 It was suggested that the plaintiff was endeavouring to say that he was slandered by the principal and he was giving evidence of the agent’s comments suggesting that the agent had implied authority to communicate the words of the plaintiff. The court viewed that if ever there was a vicarious liability contention, that could not render the words admissible. In any event the court held that the words used, per se, were not defamatory, nor did they support any pleaded innuendo.
151 Counsel then referred me to the decision of Lakidi v Lalobo (supra) which is a decision of the Court of Appeal at Kampala. The plaintiff at first instance had succeeded in a case and received damages for libel. It appears from the appeal judgment that there was an article which appeared in a newspaper called "The People" which was a question and answer type article, and, the action arose out of an alleged defamatory matter in that article.
152 It appears from the judgment that the pleadings were somewhat limited and the defence was "extraordinarily brief" consisting of two paragraphs which contained a simple denial. The Court of Appeal noted that it was not clear until the appellant was called as to what the real defence was, and from the comments in the judgment that the pleadings were irregular then:

"..... this appeal might never have been necessary. As it was, the most important issue, from the point of view of the defence, that is, whether the words complained of were ever spoken by the appellant, seems to have been overlooked by the advocate for the respondent, who does not appear to have adverted to it in his address, and, indeed, by the Chief Justice, who made no express finding on it."
153 What the court did find was the article gave the impression that it was questions of the reporter and the answers of the appellant. It went on to state that if the appellant was guilty of libel it was necessary to prove that the answers were substantially what the appellant had said expressly or impliedly or an authorised publication.
154 That case was cited to me on the basis that it is necessary for the plaintiff to prove that the person had supplied or approved the text and in that case it was lacking.

Lack of Authorisation for Publication
155 Counsel for the defendant then said that there was no evidence of authorisation by Dr Draper for the article and relied on the decision and submissions in Speight v Gosnay (1891) 60 LJQB at 231. This case concerned an action in slander with a false imputation about the chastity of the plaintiff, an unmarried woman, in the presence of the plaintiff’s mother, and the mother repeated those allegations. This case is really an authority for the principle that in "an unauthorised repetition of a slander, it is not the person who utters the slander but the person who repeats it that is liable". But there is an exception to that rule in a case where the learned judge pointed out that the words used were "not actionable in themselves. In order to make them actionable, the plaintiff must show that she has suffered some special damage". The learned judge was concerned with the republication of the slanderous words and how in some situations the action against the slanderer may be established. A further exception was if the republication was the natural consequence of the slander, but that was not present in that case. As was then pointed out, the mother to whom the comments were made knew that the same were untrue.
156 Counsel for the second defendant submitted that because of those reasons there was no evidence of publication by Dr Draper of the article.

Editorial Interference
157 Counsel for the second defendant also said I should draw an inference regarding the brackets in the paragraph in the third column of the article that commences "The construction company [Chapman’s] was poised to build the bridge ...." it was submitted that they are:
"clearly an editorial insert and clearly cannot be attributed to Dr Draper. So one of the two express references in our submission is not attributable to Dr Draper at all".
158 I am unable to make such an inference from the article and the evidence.

Article not Defamatory
159 Counsel for the second defendant then drew my attention to the final paragraph on the second page, in the first column, which said:
"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. "
160 He said that paragraph is not defamatory because, as has been mentioned before, there have been numerous inquiries at a cost of millions of dollars; the fact that "the dissident women’s battery of lawyers manage to have things overturned on technicalities" was a reference to the case of Wilson v The Commonwealth, and, consequently, that as a result the relevant finding of the court, meant that the paragraph could not be seen as defamatory as it was the truth of the matter.
161 I have difficulty with that submission as indeed a number of submissions in isolating paragraphs of this article. I consider one has to view this article as a whole and consider the natural and ordinary meaning of those words.
162 Counsel then pointed out a paragraph on the first page of the article which said, "I had just got news that a planning application had come through to Goolwa for a ‘road traffic connector’ to Hindmarsh Island ......", and submitted that there was no reference to the plaintiffs in that passage and that it related to the period in October 1993. He contended that that related to the government’s own responsibility for approval of the bridge and had no reference at all to the Chapmans and, because of that, the plaintiffs could not maintain any defamatory case in that passage.
163 The article then further talks about the attempt to build the bridge "without an environmental impact statement". Counsel pointed out that they acknowledged that the Chapmans did prepare their environmental impact statements and the context of the article related to the time period two years later when the government was proceeding with the bridge, and, if that was the position, the government had excluded the preparation of such environmental impact statements and consequently that paragraph could not be defamatory.
164 Counsel particularly made reference to the date of October 1993 as important; a time when clearly the Chapmans were not involved.
165 Counsel for the second defendant took me to many paragraphs where the Chapmans had not been named, including the concluding paragraphs of the article where it was stated that the "hysteria being whipped up by both federal and state Liberal politicians is for political convenience" and submitted that that had no reference to or in any way concerned the Chapmans.
166 Counsel for the second defendant drew my attention to the heading of the article and he said that it was a matter of editorial control and that it could not in any way be attributed to Dr Draper. He conceded that the article does not refer to a conspiracy and viewed that the headline could not in any way be attributed to Dr Draper and therefore the only inference from that is that it was one of editorial direction and not the second defendant.

Summary of Argument
167 In summary, what counsel for the second defendant urged upon me was that there was no evidence of publication by Dr Draper and/or that in any event the various statements, if I did find were published, were not capable of defamatory meaning in their natural or ordinary meaning and certainly could not bear any of the innuendos as pleaded. The second defendant was admitting that in a global type submission the facts in the article were true.

PLAINTIFFS’ SUBMISSIONS
Publication of Libel
168 Counsel for the plaintiffs referred to paragraph 1 of the defence of the first defendant where it said:
"The first defendant admits the allegations made in paragraph 1(a) of the Amended Statement of Claim and that the Green Left Weekly is disseminated throughout Australia. The first defendant denies that the Green Left Weekly has a wide readership and says that the circulation for the relevant issue was 3,422 nationally of which 357 was in South Australia."
169 And paragraph 13 of that defence acknowledged that the relevant article appeared on pages 3 and 4 of that publication.

Inferences to be Drawn from Article
170 Counsel for the plaintiffs then referred to the recent Victorian decision of Justice Gillard of The Queen v Nationwide News Pty Ltd and Others delivered on 22 December, 1997. The factual matters in that case arose out of the criminal trial of one Brian Quinn who was alleged with another to have conspired to defraud G J Coles and Co Ltd. During the trial "The Australian" newspaper carried an article arising out of that trial. Subsequently, an action was commenced and contempt of court proceedings issued against "The Australian". The relevant allegation was that the article "had a tendency or was calculated to interfere with the due administration of justice". "The Australian" newspaper was tendered as a whole showing the context of the alleged offending article. The article in question was printed under a headline by one "Mark Westfield". Apart from "The Australian", the editor was joined, as well as the purported author of the article, Mark Westfield. There was no evidence to establish that at the relevant time the person described as the editor was in fact the editor of the newspaper. Consequently, the proceedings against him were dismissed. However, the fourth respondent, Mark Westfield, and his counsel submitted there was no evidence that he wrote or was responsible for the alleged offending article, a submission similar to that as made before me. It was said at page 4 that:
"...... at most the evidence established that the proprietor who printed and published the newspaper held Mark Westfield out as the writer and the person responsible for the article. He said there was no direct evidence that Mark Westfield wrote the article.
The question comes down to whether it is open to the court to infer from the material before the court that Mark Westfield held himself out as being responsible for the article.
The line between legitimate inference and conjecture is on occasions a difficult one to draw.
In considering whether it is a proper inference to draw one considers the question on the probabilities and common experience.
It is clear that there is such a person as Mark Westfield because he is joined in the proceeding, an appearance was filed on his behalf and he was represented in the court. Accordingly, I am prepared to find that such a person exists. Secondly, in the normal course of things, a person is not described as the author of an article in a well-known national newspaper without his permission. In my opinion I am entitled to infer from the photograph and name appearing in the rectangular box on p24 as being some evidence that he was responsible for the article.
I accept that although one may draw inferences in a criminal case on the balance of probabilities, the ultimate question of proof of an element must be upon the whole of the evidence and proof beyond reasonable doubt - see Dawson J in Shepherd v the Queen (1990) 170 CLR 573 at 579-80.
No evidence was called by the respondents. I am entitled to take that fact into account to consider whether the applicant has established beyond reasonable doubt that the fourth respondent was responsible for the article. I so find."

Admissions in Pleadings
171 Reference was also made by counsel to the admission of paragraphs 15(a) and (b) of the statement of claim - the article being quotations of the second defendant - but in paragraph 19 the second defendant denied the publication and then 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 the dispute concerning the proposal to build a bridge between Goolwa and Hindmarsh Island."
172 Then the second defendant denied the publication of the words to Carla Gorton and further pleaded qualified privilege.

Failure to Give Evidence
173 Counsel viewed the failure of the second defendant to give evidence as support for the relevant inference of responsibility for the article.

Natural and Ordinary Consequences of Publication
174 Counsel then placed some reliance upon the matters set out in the apology being Exhibit P6. He cited the case of Williams v John Fairfax Group Pty Ltd (1991) 7 BR 160, where the issues were the republication of certain written material prepared by Mr Schofield and his critique of a seafood restaurant. The defamation action was on the grounds that the republication by way of the repetition of the critique was the natural and ordinary consequence of the first publication. The plaintiffs sought to have the paragraph struck out as disclosing no cause of action. The learned judge held that the defendants were liable for republication if the repetition was the ordinary and natural consequence of the original publication. It was not necessary to prove that the defendants had authorised or intended the repetition to take place and relied on the case already cited of Speight v Gosnay (supra) to assert that it was arguably open to a jury to find that the repetition of the matter complained of in the present case was foreseeable.
175 Counsel said that there was no denial that the person, Carla Gorton, was a reporter and, indeed, the first defendant admitted that the article was by Carla Gorton. Dr Draper’s defence was that he admitted that he spoke with Gorton but described her as a student. There was no denial that he was aware that she was a reporter and in some way connected with the publication and, as commented by counsel, "didn’t come along and give evidence in relation to what he sought to raise in his defence".
176 Counsel for the second defendant pleaded the matters in answer to the allegations raised by counsel for the plaintiffs. I think the submissions could go further and they could have contained the details as apparent from the evidence of both plaintiffs and particularly Mrs Chapman which was of the active involvement by Dr Draper in and about, not only the earlier marina development and discovery of aboriginal artefacts, but the subsequent development of the bridge. The second defendant was a person who was clearly well-versed not only in the plaintiffs’ day to day performance as developers, but, as well, in all the development steps or directions and/or obligations directed by his branch and carried out to the letter by the plaintiffs.
177 Counsel for the second defendant then referred further to issues raised in regard to the identifying of the Chapmans, and, referred me to the 9th edition of Gatley and the matters set out in paragraphs 7.2 and 7.3 as a basis for the proposition that, from the large bulk of material which was tendered and accepting the summary as mentioned by counsel for the second defendant in the final stages of his address, I am able to say from that material that it was common knowledge in March 1977 that the Chapmans were developers and they and/or their company were associated with the development of the bridge. Counsel for the second defendant dissected this material into various categories but even accepting that categorisation, there is a significant amount of material available to make such a finding.
178 I accept the plaintiffs’ evidence that this material may be 50% of what was published. In any event this is one of those rare cases where one is able to take judicial knowledge and the finding must be that since 1993 and thereafter the Chapmans and their company were connected with the bridge construction to Hindmarsh Island. I have no doubt in making such a finding that any person who was reading the article in question would be aware of that fact.
179 My attention was drawn to the suggestion in the article regarding the initial attempt to build the bridge without an environmental impact statement. This occurred in October 1993 and the emphasis in the article was that it was the Chapmans who were trying to get the bridge built and a specific referral to the construction company "[Chapmans]", must be viewed as evidence which identifies the Chapmans for the purposes of these proceedings. The Chapmans, as developers, were the persons responsible for planning applications.
180 This contention was supported by the reference to the "Chapmans" in the article.
181 Counsel for the plaintiffs submitted that when one reads the article as a whole the innuendo is apparent and represents a strong attack on the plaintiffs. It reflects not only on their ability as developers, but there are allegations that they did not consult with aboriginal people and also flouted the planning process. Counsel submitted that these matters of comment were being made by the second defendant, holding himself out as a "former South Australian government archaeologist and anthropologist", and, by a person who was fully aware of all of the proper steps undertaken by the Chapmans in their development.
182 Counsel for the plaintiffs gave a rather colourful description saying, "he wasn’t a spectator, not on the outer when the one footballer was hit, but he was in the middle of the pack, one of the principal players".
183 Counsel very properly made the remark that the article mentions initially that the years 1990 and 1991 and then in October 1993 were periods when Dr Draper was involved in and about the work at Hindmarsh Island and those matters are not reflected in the article. It was suggested the only finding should be that there was proper consultation between the Chapmans and aboriginal people in accordance with their planning process including obtaining of environmental impact statements which were made public.
184 Counsel for the plaintiffs urged upon me that, because of not only the common knowledge of the relationship between the Chapmans and the marina and bridge developments but also because of their specific mention on two occasions, that is the only innuendo and inference to be drawn. This therefore links them with the other paragraphs in the article and particularly in regard to the planning application being "sneaked through", the alleged lack of consultation with aboriginal people, and, further, the following paragraph which deals with the attempt to build the bridge "without an environmental impact statement". That statement badly reflects on the plaintiffs bearing in mind the steps that they had carried out in regard to their development and the obtaining of environmental impact statements.
185 Counsel also submitted that the reference to the Chapmans on the second page of the article, in the first column and the final paragraph with respect to their action in having matters overturned on technicalities, reflects on what was their legal right as so decided and the inference from the article was that the plaintiffs, by technicalities and spending of money, had blocked so-called proper objections by aboriginal people when clearly that was not the case.
186 Further reference was made to the "well-funded smear campaign" as being directly related to the plaintiffs by reason of the general thrust of the article, and, particularly to them being named, as well as the paragraph talking of "hysteria".
187 Then of course there is the final paragraph:
"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 edu.au/Archaeology/Home_Page.html."
188 Counsel urged that the article in all respects was a very serious defamation of the plaintiffs and further that I should bear in mind the conduct of the second defendant who, in fact, said to Mr Jacobs that he viewed the Chapmans as having behaved sensibly and properly. Since it appears he was aware of the true situation and that the stated matters were blatantly untrue, he could not justify the same.
189 As appears from the second defendant’s amended defence he denied the principal allegations, but did admit certain matters in that defence including:

1. The second defendant admits that on 12 April 1990 Binalong was granted approval by the Governor under Section 51 of the Planning Act to carry out marina extensions and to build a bridge from Goolwa to Hindmarsh Island but says that the approval was subject to the condition that Binalong consult directly with the Ngarrindjari Tendi, the Raukkan Community Council, the Ngarrindjari Lands and Progress Association and the Lower Murray Aboriginal Heritage Committee and with any other Aboriginal persons chosen by those bodies, about anthropological matters."
   190 And in paragraph 9:
   "...... at or about 12 March 1997 the public or a substantial section of the public knew or understood that the second-named plaintiff had been a director or otherwise involved with a company which was in receivership or liquidation and which had been involved in a proposed marina development on Hindmarsh Island."

LIABILITY OF THE SECOND DEFENDANT FOR PUBLICATION
Publication
191 Publication, in civil defamation proceedings, means the communication of defamatory matter to a third party.
192 The defamatory matter must be communicated to someone who is capable of understanding it. This does not mean that the person must understand that the matter was communicated in a defamatory sense, only that the defamatory matter was conveyed to that person. See Capital & Counties Bank v Henty (1882) 7 App. Cas. 741 per Lord Penzance, and contrast with Gatley 7th Ed, which says that in order to amount to defamation, the words must convey a defamatory meaning to those who read them.
193 In certain circumstances the publisher of defamatory matter may be liable not only in respect of the original publication but also in respect of the republication of such matter by someone else.  The judgment of Lopes LJ in Speight v Gosnay (supra), is regarded as containing the locus classicus in relation to a defendant’s liability for republication. At page 232 he identified four separate classes of case in which liability arises:
(a)  Where the defendant authorised the repetition of the original publication;
(b)  Where the defendant intended that the repetition should take place;
(c)  Where the repetition was the natural consequence of the original publication;
(d)  Where there was a moral obligation upon the person to whom the original publication was made to repeat it.

Submissions
194 The plaintiffs’ allegation is that the words of Dr Draper were published by either direct quotations or partly as direct quotations by Dr Draper to Carla Gorton, or that Dr Draper published matters to Carla Gorton or some other person who in turn published the same to the first defendant. The plaintiffs submitted that he was liable for the publication by reason of the fact that he authorised or intended the first defendant to republish the matter, or, in the alternative, that the republication was the natural and probable consequence of his actions.
195 The second defendant argued that, in order to succeed, it is a necessary part of the plaintiffs’ case, a matter of onus, to produce evidence that the material was published by the second defendant. In the second defendant’s submission there is no evidence of publication by Dr Draper.
196 In Gatley 7th Ed, para 1296 it is stated that:
"In an action for slander the plaintiff may succeed in getting the defendant to admit in answers to interrogatories that he spoke the words complained of; and publication may be proved by putting in the answers. But if no such admission is obtained, or if the defendant denies in the answers that he spoke the words, the plaintiff must call those who were present and heard him. The witness must prove the actual words alleged to have been published; it is not sufficient for them to state what they conceive to be the substance or effect of the words, or their impression of what was said".
The second defendant submitted that this principle transcends both libel and slander.
197 A copy of the article in the Green Left Weekly was tendered by the plaintiff. It purports to quote Dr Draper. According to the second defendant, none of that amounts to evidence of publication by Dr Draper. To say that the article purports to quote Dr Draper would infringe the hearsay rule. There is no authority that, if you produce a newspaper report that purports to quote somebody, that is prima facie evidence that that was what the person said. See Lakidi v Lolobo (supra). There is no presumption of accuracy in a newspaper report. See Tocker v Great Atlantic and Pacific Tea (supra).
198 According to Button on Libel & Slander, "in the case of slander, publication must be proved out of the mouth of that indispensable who heard the slander uttered". Counsel for the second defendant maintained that Dr Draper has always denied that he spoke the words reported. The indispensable witness in this case was missing and as a result, the only basis upon which the conclusion that Dr Draper uttered the words could be drawn is a hearsay. In other words, it was necessary for the plaintiff to call evidence that the words were spoken by Dr Draper to Carla Gorton or to some other person, by either interrogation of the first defendant or admissions. According to the second defendant, this did not occur.

Authorised Publication

"[A] person who derives profit from, or who furnishes means for carrying on the concern, and entrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable although you cannot show that he was individually concerned in the particular publication."
See R v Gutch (1829) M & M 432; 173 ER 1214.
199 For example, a person who supplies information of a defamatory nature to a newspaper will, to the extent to which the newspaper republishes it, be liable in defamation for what he told the journalist, and what the journalist and his newspaper told the public at large. In the case of newspapers, it is necessary to prove that at least one copy was published. Once the matter complained of has been published, the cause of action is complete.
200 In Lakidi v Lolobo (supra), Spry Ag P observed that in that case:
"the article complained of took the form of questions and answers and in [his] opinion it was intended to give the impression to an ordinary, reasonable, reader, that the questions were those of the reporter and the answers those of the appellant, and that the answers were in the appellant’s own words. To render the appellant guilty of libel, it was, in [his] opinion, necessary for the respondent to prove that the answer represented substantially what the appellant had said and that he had, expressly or implied, authorised their publication. .... Authorisation should very readily be implied when a person has agreed to give an interview to a press reporter and that once that fact is established, the onus would shift to the person who alleged that he had not authorised that publication."
201 In order to establish authorisation, it is not sufficient to show merely that reporters were present. In J Lyons & Co v Prescott-Decie, Lord Hewart CJ said that he was not prepared to hold that a man, because he made a speech and knew, or might reasonably be expected to know, that reporters were present, and that a report of his speech would appear in a newspaper, was responsible for the publication of the report if it were defamatory. On the other hand a defendant was held to have authorised a publication in a newspaper where the evidence was that he knew that he was talking to a newspaper reporter and knew and intended that what he said would be reproduced. See Hay v Smither (1911) Times, 17, 18, 19 January.
202 The source of the defamation is not protected by reason of the fact that it is republished in an altered form, provided what is subsequently published is to the same effect. If a man gives an interview to press reporters intending that the substance of the interview, during the course of which he makes defamatory statements, should be published in their respective newspapers, and the newspapers publish those statements, not necessarily in precisely the same words but adhering to the sense and substance of them, the individual will be made liable not merely for the slander in publishing them to the reporter but for libel in that he authorised the publication which subsequently was made in the newspaper itself. See Parker v Prescott (1869) LR 4 Exch 169.
203 It will always be a question of fact as to whether the defamatory publication was to the same substance and effect as the information originally supplied by the source.
204 In Cook v South Australian Trotting Association [1930] SASR 166, Montague Smith J said:
"It was strongly urged for the defendants that they could not be liable unless they authorised the libel in the very words in which it was published. If this argument is correct, then it must follow that a man could never be liable when he desired another to make and publish an outline or summary of a speech or writing, because such an outline or summary necessitates condensation and consequent alteration of language. But the argument cannot as it seems to me to be correct. The man who requests another to make and publish an outline or summary of a speech, writing, or proceedings, must know that the words will be, to some extent, those of him who makes such summary or outline; and he must therefore be taken to constitute him an agent for the purpose, and he be answerable for the result, subject always to the question whether the authority has been really followed."

Submissions
205 The second defendant submitted that there is no evidence of authorisation by the second defendant.
206 The plaintiffs say that if the second defendant succeeds in that submission, in any event, there does not need to be authorisation. In Williams v John Fairfax Group Pty Ltd (supra), the plaintiffs were the manager, supervisor and a waitress of a restaurant. They were criticised in a restaurant review by the second defendant. The critique was published in the newspaper. The review was later described and parts were read on a radio program. It was held that the defendants would be liable for republication if a repetition was the ordinary and natural consequence of the original publication. It was not necessary to prove the defendants had authorised or intended that the repetition take place. The decisions of Speight v Gosnay (supra); Ratcliffe v Evans and Dempster v Coates unreported 11 April, 1990, NSW Court of Appeal are to the same effect.

Natural and Probable Consequence of Publication
207 The original publisher may be liable even though he did not authorise or intend the republication and even though there were no circumstances imposing a duty on the original publishee to repeat the slander or libel, provided the repetition was the natural or probable consequence of the original publication.
208 Thus in Ratcliffe v Evans, Bowen LJ said:
"verbal defamatory statements may, indeed, be intended to be repeated, or may be uttered under such circumstances that their repetition flows in the ordinary course of things from their original utterance. Except in such cases, the law does not allow the plaintiff to recover damages which flow from the original slander but from its unauthorised repetition."
209 And in Speight v Gosnay Lopes LJ said:
"…. If the repetition of these words had been the natural consequence of the defendant’s uttering them, that would have been sufficient [to establish liability]."
This case was concerned only with the second class of case (ie whether intention was present), so that the general exposition of the law by Lopes LJ was obiter. However, the case of Dempster v Coates per Clark JA accepted the veracity of the third class.
210 In Slipper v BBC [1991] 1 QB 283, their Lordships considered the question against the general background of causation in the law of tort, holding that there were no specific or special rules relating to defamation actions. The defendant’s argument that a plaintiff must establish also that the republication was authorised or intended was rejected as well.
211 The question of whether the republication is the natural and probable consequence is one of fact. See Ronald v Harper (1910) 11 CLR 63 at 77.
212 There are numerous occasions on which the republication of defamatory matter is the natural and probable result of the original publication. The question of the liability of the original publisher is often relevant where a newspaper publishes a report of a speech made by the defendant in circumstances where the defendant knew that a reporter would be present.
213 A prominent person giving an interview will normally be responsible for the subsequent publication of what he or she said to a reporter as it is the natural and probable consequence of the interview that his or her statements will be reported. In Sims v Wran [1984] 1 NSWLR 317 Hunt J said at page 320:
"Where a prominent politician such as the defendant makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his act will be that his statement will be republished in the media, thereby making him responsible for that republication. And usually responsible for whatever form in which that republication takes place…"
214 The speaker will not be liable in respect of the report unless it can be shown that he authorised or in some way secured its publication. Hallett J adopted the correct approach in McWhirter v Manning (1954) Times, 30 October at page 3, where he said that:
"It was argued that because Mr Manning knew that there were reporters at the meeting and that a report of what he said might and probably would appear in the printed report, he must be taken as having caused the publication of the defamatory words in the report.... It was plain that once the words had flown out of Mr Manning’s mouth he did nothing further whatever to procure publication of those words, or some or any of them, in a printed form. From then on it was other people who got them into print."
Duncan & Neil on Defamation submit that while this case did not involve a newspaper report, the same principle would apply.

Submissions
215 According to the second defendant, even if there was prima facie evidence of publication, there was no evidence of authorisation of the republication by Dr Draper or that it was the natural and probable consequence of the original publication (Speight v Gosnay). There was nothing to say that Dr Draper knew that Carla Gorton was a reporter. There was no evidence that Dr Draper knew that she was connected with the Green Left Weekly and therefore it would not arise that republication could be expected as a reasonable and probable or natural consequence.
216 In the pleadings, the second defendant said that on two occasions on dates prior to 12 March, 1997, he spoke with Carla Gorton. Carla Gorton was a student at Flinders University where Dr Draper was a member of staff and she requested that he provide and he 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.
217 In the second defendant’s submission, this situation differed from the circumstances in Lakidi v Lolobo (supra) where the appellant was asked to receive reporters from a newspaper known as The People. He agreed, and they put questions to him. Subsequently, an article appeared which was perceived and later conceded as being defamatory of the respondent. In the present case, there was no denial that Carla Gorton was a reporter; there was no suggestion that Dr Draper did not know who Carla Gorton was; but there was nothing to show that Dr Draper was aware he was speaking with someone who was associated with the Green Left Weekly.
218 Moreover, in his defence, Dr Draper admitted that the statements contained in the article were represented as having been made by him, but he denied actually making those statements. As an added illustration of the denial by Dr Draper that he ever spoke the words reported, the second defendant pointed to the evidence from the Chapmans of their dealings with Dr Draper over time. It was submitted that the only evidence was to the effect that whenever Dr Draper expressed himself on any of these issues it was to the effect that the Chapmans had done the right thing. The whole course of conduct of any matters involving Dr Draper demonstrated that he consistently took that attitude and that attitude was quite inconsistent with what is expressed and attributed to him in the article. It was submitted that those matters were very significant pieces of circumstantial evidence which should be considered before a conclusion is drawn that they could be attributed to Dr Draper. They were quite inconsistent with everything else that had been proved that he said.
219 The plaintiffs then placed before me the article purporting to be critical of government planning processes and drawing the Chapmans into the critique and, indeed, finally mentioning his personal e.mail address.
220 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.
221 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.
222 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.
223 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.

Conclusion
224 There is no evidence of authorised republication. At any rate, on the authorities, such authorisation is not necessary for liability to arise. The question of liability in this case turns on whether the republication by the first defendant of the words represented as having been spoken to Carla Gorton by the second defendant, arose as a natural and probable consequence of the conversations which took place between the second defendant and Carla Gorton.
225 This case is distinguishable from many in this type of proceedings because what is apparent is the long involvement with the Hindmarsh Island bridge of Dr Draper and his vocal views about relevant issues.
226 The plaintiffs’ evidence established that they first met the second defendant in 1989-90 during the actual development on Hindmarsh Island and thereafter as a government employee who was no doubt privy to all steps including environmental taken in the development application.
227 Their evidence further establishes that the second defendant was present in 1993 when "interested" persons stopped construction work on the bridge.
228 The evidence of Mr Jacobs QC is very important. That evidence establishes that the second defendant held strong and critical views of his own department alleging the department had fallen down "on our job".

DEFENDANT’S ALTERNATE MITIGATION PLEA
Alternate Plea in Mitigation of Damage Other Libel Actions
229 The defendant pleaded in mitigation the fact that compensation had been received and agreed to in a number of actions in which the plaintiffs had issued defamation proceedings and claimed the benefit of section 11 of the Wrongs Act 1936. Section 11 provides:
"Evidence in mitigation of damages

1. 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."
   230 The pleadings listed some nine actions commenced by the plaintiffs against numerous companies in regard to alleged defamatory matters.
   231 Counsel, by consent, placed before me details of completed defamation actions involving the plaintiffs. The schedule is as follows:
   · An article on 22 July, 1994, in "The Australian". An apology was provided on 3 October, 1997, and a sum paid in settlement,
   · An article on 28 March, 1995 in "The Bulletin". An apology was provided on 16 December, 1997 and a sum paid in settlement.
   · An article on 7 July, 1995. in "The Canberra Times" An apology was made on 15 July, 1998, and a sum paid in settlement.
   · A segment on 14 July, 1994, on Channel 10. A sum was paid in settlement.
   · A segment on 6 April, 1994, on Channel 10. A sum was paid in settlement.
   · An article on 6 April, 1998, in "The Australian". An apology was placed on 27 July, 1998.
   232 I made a suppression order in regard to amounts as at least one was of a confidential nature.
   233 By consent, I was handed a copy of numerous further proceedings in this court which are in various interlocutory steps. It appears that there are some ten actions current. I list the following dates:
   Date of alleged defamation publication or station    Defendant
   28/3/95    The Bulletin
   22/07/94  The Australian
   13/3/97    Dean Whittaker
   12/07/94  John Porter
   14/07/94  Channel 10
   10/06/94  Conservation Council and Others
   7/06/95    The Canberra Times
   24/02/94  Channel 7
   February 1994 Conservation Council and Others
   11/03/92  ABC and others
   234 Section 11 of the Wrongs Act 1936 refers to libels "of the same purport or effect as the libel for which such action is being brought".
   235 Given the nature of interstate media publications, the same libel can be published simultaneously in all states of Australia, and, separate actions may then follow. A court can consider in its assessment process the overall position in regard to each of the actions of those specific areas of libel.
   236 The first defendant admitted the interstate publication details of the Green Left Weekly. I assume this action is the only proceeding which issued following that publication, if otherwise, then section 11 would have application.
   237 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 saga 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.

APOLOGY
238 A final matter was raised in the defence as follows:
"22.2      the second defendant’s offer of an apology made at Case Evaluation Conference on 10th October 1997, pursuant to section 9 of the Wrongs Act."
239 That pleading then prompted a reply in the following terms:
"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 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."
240 Counsel for the defendant agreed that the written material was part of the offer. The document was headed:
"Draft article by Dr Neale Draper proposed for publication in Green Left Weekly as a term of settlement",
and, proceeded to say in the second and third paragraphs:
"It must be said at the outset that I make no criticism of the way Tom, Wendy or Andrew Chapman or Binalong conducted themselves in relation to Binalong’s application for planning approval for the proposed expansion of the marina development on Hindmarsh Island and the construction of a bridge between Goolwa and Hindmarsh Island in 1989 and 1990. Tom, Wendy and Andrew Chapman and their company Binalong did all that they were required to do under the planning processes which were in place at that time. In particular I make no criticism of the way they consultated with Aboriginal people in relation to their proposals. In my dealings with the Chapmans at that time I found them to be co-operative and attentive to Aboriginal heritage issues. They appeared to have a genuine concern to protect indigenous heritage and to consult with the relevant indigenous people about their development plans.
My criticisms are not of the developers but rather of the inadequate governmental planning and Aboriginal heritage assessment processes which caused the Hindmarsh Island Bridge debacle."
241 The article then goes on about a number of what I would call environmental and planning issues. Then, there is the final paragraph.
"The Chapmans have not taken part in this anti-Aboriginal crusade. As stated above, in my dealings with the Chapmans, I found them to be considerate of and attentive to the concerns of the Ngarrindgeri. They, like the Ngarrindgeri, 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."
242 The plaintiffs’ pleading is sufficient for me to reject such a purported apology.

FINDINGS
243 The evidence of the plaintiffs, and particularly Mrs Chapman, was unanswered. In any event there was no aspect of the cross-examination of the plaintiffs that in any way caused me to have any doubts about the truthfulness or accuracy of such evidence.
244 My findings are:
1.  That the plaintiffs have led exemplary lives. I accept Mrs Chapman’s evidence that they had been involved in and about development projects for almost a life time, and, apart from this occupation, she has devoted herself to local government and civic duties for which she has received much media attention. No doubt for those government, civic and voluntary duties she was made a Member of the Order of Australia in 1986. Mr Chapman, apart from his development occupation, was also active in community affairs including being the president of Apex Clubs of Australia and a world president of Young Men’s Service Clubs and as well the chairman of the National Council of Independent Schools.
2.  That both plaintiffs in their working lives have involved themselves with land development in many states, but particularly South Australia, and, have been totally involved in and about the development of land at Hindmarsh Island having purchased the same in the late 1970s, and, commenced their development of that island in the mid-1980s.
3.  In the late 1980s they decided to further develop their marina development on Hindmarsh Island in some seven stages and thereupon with professional advice proceeded with a planning application for the extension of that marina development. During this time they had, of their own volition, been aware of sensitive aboriginal areas and had consulted with all authorities in and about the preservation and restoration of such sites.
4.  The application in early 1990 was with the Department of Environment and Planning and particularly the Aboriginal Heritage branch which processed the same and recommended they obtain reports from a named anthropologist and archaeologist as consultants for their planning application. The Chapmans thereupon obtained such reports at their own expense referred to as the "Lucas" and "Edmonds" reports and made copies available to all relevant parties. The Minister for Environment and Planning advised Mr Chapman in April 1990 of the approval for such development. However, by this time the plan encompassed the bridge as well as the marina extension.
5.  Initially there were conditions which related to their marina development and the need to consult with aboriginal representative bodies which clearly they accepted.
6.  Dr Draper was initially involved when some aboriginal artefacts and skeletal material had been discovered on Hindmarsh Island and thereupon the Chapmans consulted with all relevant persons to ensure that all such material was properly restored and preserved. All actions by the Chapmans after this discovery showed a very proper and caring manner and clearly they had no difficulty in accepting the conditions which attached to the development approval in April 1990.
7. By 12 April, 1990, the Department of Environment and Planning and the Aboriginal Heritage branch advised the plaintiffs that under the Aboriginal Heritage Act 1988 the relevant authorisation was granted. That letter of approval can be viewed as interpreted by the Chapmans as an unconditional approval for their development.
8.  The Chapmans, in regard to the development of the marina extensions which subsequently incorporated the bridge, carried out every requested step by all authorities including the Aboriginal Heritage branch of the Department of Environment and Planning to their complete satisfaction.
9.  There is no basis whatsoever for any criticism in any way of the manner in which the Chapmans applied themselves in either their legal and/or moral obligations regarding the development of land at Hindmarsh Island and the bridge. It is apparent from ministerial matters that they were complimented on their approach to this development.
10.  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.
11.  From the bulk of both print and other media reports at 12 March, 1997, clearly a substantial or significant section of the public were aware of the plaintiffs’ involvement in and about the Hindmarsh Island marina and Goolwa bridge development. The bridge proposals had generated much controversy and debate vis-a-vis questions of aboriginal tradition.
12.  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.

IS THE ARTICLE DEFAMATORY?
245 The banner heading "Hindmarsh Island Conspiracy Against Land Rights" may well be an editorial caption, but, it immediately focuses the attention of the reader on Hindmarsh Island, and, as is evident from my findings, the only persons known to the general public for land development on Hindmarsh Island were the Chapman family.
246 The word "conspiracy" would be interpreted to mean that some persons were combining to do something which was unlawful, albeit morally wrong and in this instance such a stand against land rights, and, although the picture is unclear it would follow that the action taken was against aboriginal land rights and consequently must reflect on the actions of the Chapman family.
247 On then reading the article, immediately in the opening paragraph, there is a reference to the fact 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". The article specifically refers to the "1993 construction of the bridge".
248 It is apparent from my summary that the plaintiffs’ development action and relevant environmental impact studies were all completed and filed with all relevant authorities including discussion with persons of the LMAHC prior to this date to the total satisfaction of planning bodies and had not been "sneaked through".
249 A person reading such article would associate the developers, the Chapmans, directly with that allegation. That allegation is untrue and defamatory of the plaintiffs and carries the imputations as pleaded.
250 The article then confirms in the reader’s mind the Chapmans involvement by the specific naming of them in the final paragraph of the third column, where it states "‘The construction company [Chapman’s] was poised to build the bridge .....". Clearly an incorrect statement as the building of the bridge was a government responsibility, but, more importantly, it links the Chapmans with the prior allegation of "sneaking through" the application.
251 The naming of the Chapmans would immediately confirm to the reader that they were the people involved in this "conspiracy".
252 The further paragraph mentions the failure to provide an "environmental impact statement" for the building of the bridge. On the summary above it is correct that there was no specific environmental impact statement requested for the actual bridge, but the Chapmans had, of their own volition, and then at the direction of the Aboriginal Heritage branch, at their own expense, caused two independent reports to be obtained and provided copies to all relevant authorities including the department which employed Dr Draper and their contents were known to him. The reader would assume the builders were acting in the absence of proper environmental impact statements and safeguards. Again, grossly inaccurate of their conduct, and, defamatory.
253 The "Chapmans" are again mentioned in the fourth paragraph on the second page of the article, when it makes mention of their overturning the claim on technicalities. One comes to this passage after a clear imputation against the Chapmans and the sting is that the Chapmans, by use of substantial funds and technicalities, have overridden proper claims. Such a suggestion is inaccurate
254 In a further paragraph, the same is completed by a suggestion of a "well-funded smear campaign". The reader of the article would assume from the article that the Chapmans were part of that campaign. Again, nothing could be further from the truth.
255 The final paragraph is highly inflammatory with talk of "sweeping human rights aside" as reflecting particularly on Hindmarsh Island, and again, directly at the Chapmans. Indeed a gross defamation of the plaintiffs.

CONDUCT OF DEFENDANTS
First Defendant
256 The first defendant pleaded an apology published on 6 August, 1997. The apology was simply limited to correcting the fact that the bridge construction company was not the Chapmans.
257 I view the apology as inadequate. The apology should have been in detail dissociating the Chapmans from any conspiratorial conduct, setting out the manner in which they had cooperated with all authorities and provided all requested environmental impact statements.

Second Defendant
258 I find, because of the article, the pleadings, the purported apology and then, in effect, putting the plaintiffs to proof, bearing in mind Dr Draper’s detailed knowledge of what I would consider proper and appropriate conduct of the Chapmans, as odd behaviour.
259 I would have considered that, bearing in mind his intimate knowledge of background material, he at the earliest time after the publication should have endeavoured to clarify that no blame for any criticism he may have had of his department’s practices could have been levelled at the Chapmans.
260 His statement to Mr Jacobs QC in 1994 was to this effect.
261 Indeed, the comment of plaintiffs’ counsel was accurate when he said, after mentioning the comment of Mr Jacobs, that Dr Draper said to him that the Chapmans had behaved sensitively and properly, that following the publication:
"He is in a bind. He knows the true situation .. but he has said things which we say on the evidence are just blatantly untrue and he knows that he can’t justify them."
262 The only slight concession he made during these proceedings was a conditional form of apology which the plaintiffs rightly rejected. The second defendant then caused the plaintiffs to prove their case including being subject to long and proper cross-examination and then does not give evidence.
263 I view the second defendant’s conduct since the publication as inexcusable and deserves censure.

DAMAGES
264 Mrs Chapman has led an exceptionally honourable and public-spirited life with much of that devoted to community involvement. Mr Chapman, although certainly well known, gave evidence of his achievements. Their conduct, as I keep reiterating, about their Hindmarsh Island development, was without question, responsible, proper and caring. They did all in their power to concern themselves with issues of aboriginal heritage and preservation.
265 I accept their evidence of their anger and hurt at being named in the article and the imputations which arose therefrom at the hand of Dr Draper. After all "Conscientious men (and women) carrying out public duties have a right to be properly sensitive of their honour: if their moral integrity is impeached such men (and women) are deeply hurt". McKay v Southern (1956) 1 DLR 1. The Chapmans, and particularly Mrs Chapman, was well known for the manner in which she carried out her public duties. This criticism was not directed to that area of their lives, but to the manner in which they carried out their professional lives as land developers. The defamation impeached their moral integrity and professional practices. Such hurt calls for an award of substantial damages.
266 The words of Walters J in the case of McRae v South Australian Telecasters Limited [1976] 14 SASR 162, are appropriate when the learned judge said:
"The assessment of damages in an action for libel is so much a matter of personal judgment that the best I can do is to award such sum by way of damages as I consider appropriate, having regard to all the circumstances of the case. ‘When you are dealing with damages in a libel case, you are endeavouring to express in terms of money several different things which are not really susceptible of a money valuation in any true sense’ (per Sir Wilfrid Green M.R. in Rook v. Fairrie [1941] 1 KB 507, at p 516). And in this connection, I bring to mind the observations of Dixon J. (as he then was) in Smith’s Newspapers Ltd. v Becker (1932) 47 CLR 279, at p300, where the learned judge said: ‘The question what amount awarded to the victim of a public outrage is enough to serve at once as a solatium, vindication and compensation to him and a requital to the wrongdoer can only be solved by an exercise of a discretionary judgment’."
267 The High Court has commented on such awards. See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, and Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150.
268 In terms of the quantum, the award must be sufficient for the plaintiffs to be able to point to it in order to convince a bystander of the "baselessness of the charge". See Broome v Cassel & Co Ltd [1972] AC 1027 at 1071. An award must be an award at a level sufficient to "nail the defamatory statement as a lie". See Rigby v Associated Newspapers Ltd [1969] 1 NSWLR 720 at 743.
269 An important factor is the extent of the publication. A limited publication may lead to a modest award, but a publication in a national daily or by means of television may lead to a substantial award.
270 The Green Left Weekly is a paper of small distribution albeit nationwide. However, although limited publication, no doubt its readers would have faith in and accept its contents.
271 I have been referred to recent decisions and awards. I note the comments of Gaudron J, Gummow J and Kirby J in Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294, a case dealing with damage to reputations. I am in no position to make any finding on malice, but, the defamatory imputations against the plaintiffs by the article are serious. I now note that the Full Court has assessed damages in that case (Judgment No S6901). Some issues are similar. This case is concerned with endeavouring to restore the plaintiffs’ reputation and the findings and monetary sum will assist that restoration.
272 In all the circumstances, I propose to award each of the plaintiffs, Thomas and Wendy Chapman, the sum of $50,000. I do not propose to make any award for Andrew Chapman as he had a nominal involvement in the company.
273 In allowing for interest I will use a rate of 4%. There is no reason why interest should not run from the date of publication of the libel. I assess interest in the sum of $11,000.
274 There will be judgment against both defendants for the plaintiffs, Thomas and Wendy Chapman, in the sum of $111,000. I will hear parties on the question of costs.

ATTACHMENTS
· The frontispiece and two page article
· Apology printed in Green Left Weekly
· Draper draft apology