Conlon v ADVERTISER - News Weekend Publishing Co Pty Ltd - [2008] SADC 91

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CONLON v ADVERTISER - NEWS WEEKEND PUBLISHING CO PTY LTD
[2008] SADC 91
Judgment of His Honour Judge Boylan
18 July 2008
DEFAMATION
Claim for damages - statements published by defendant about politician plaintiff in two newspaper articles - whether inputation defamatory - natural and ordinary meaning of the words.
Assessment of damages - aggravated damages. Held: article defamatory - general damages awarded. No award of aggravated damages
Defamation Act 2005 s.32, referred to.
Farquahar v Bottom [1980] 2 NSWLR 380 at 385 per Hunt J; Lewis v Daily Telegraph [1963] 1QB 234 at 277; Sim v Stretch [1936] 2 All ER 1237 at 1240; Buick v Duncan (1986) 127 LSJS 277 at 281; Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 210; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60; Brookes v Barnard [1964] AC 1129 at 1221; Triggell v Pheeney (1951) 82 CLR 497 at 514, considered.

CONLON v ADVERTISER - NEWS WEEKEND PUBLISHING CO PTY LTD
[2008] SADC 91
A claim for damages for defamation.

The defendant publishes the Sunday Mail, South Australia’s only Sunday newspaper. Mr Rex Jory is a journalist who writes a regular column in it. He wrote two articles about Mr Patrick Conlon, a member of the South Australian Parliament and a Cabinet Minister. There were factual errors in the articles Mr Conlon claims that they defamed him and that he is entitled to damages for that defamation.
I must decide a number of issues: What is the meaning of each of the articles? Is the meaning defamatory? If so, to what damages is Mr Conlon entitled? Is he also entitled to aggravated damages? Before answering these questions I shall set out the relevant events leading up to the publication of the articles, describe the genre of Mr Jory’s column, and his interpretation of the articles at relevant times.
The story begins with a radio interview of another member of Parliament, Mr Leon Bignell. Mr Bignell’s first career was as a sports journalist employed by the ABC. That job involved his attending major sporting events in Australia and around the world, including the Olympic Games. But he changed his career, first, when he joined Mr Conlon’s staff and, next, when he won a seat in Parliament. By November 2006 he was the member for the seat of Mawson.
On Thursday 9 November 2006, Mr Bignell was interviewed on radio.   Part of the interview went like this:
“Interviewer: …   Its been six or seven months now that you’ve actually been an elected… member; What’s the difference like between there and being in the media?
Bignell: … A new challenge. Right through life I’ve kept changing jobs … I was with the ABC as their sports presenter … then I went off and became Patrick Conlon’s media adviser and then Chief of Staff …   He used to sit there and go ‘It’s the best job in the world, you go to the Olympics, the footy … any sporting event in the world’, he goes, ‘What are you doing working for me?’. I said ‘I like a challenge’.”
Mr Jory was sent a copy of the transcript of the interview and published an article based upon it in his column Backchat which appeared each week on the back page of the Sunday Mail. The article appeared in the edition of 19 November 2006. I set out the whole article, including the headline (although Mr Jory does not write the headlines):
It’s a sporting life on the bench
You have to admire the frankness of my old mate, former journalist and now Labor member for Mawson Leon Bignell.
Interviewed on regional radio during a working visit to Ceduna, “Biggles” was asked about the transition from media to politics.
The transcript reads: “A new challenge. Right through my life I’ve kept changing jobs.
“I was with the ABC as their sports presenter, then I went off and became (Transport Minister) Patrick Conlon’s media adviser and then chief of staff.
“He used to sit there and go: ‘It’s (being a minister) the best job in the world. You go to the Olympics, the footy, any sporting (event) in the world’.”
Ah, the sacrifices of public life.
The article contained a mistake. The reference in the interview to the best job in the world was a reference to Mr Bignell’s former job as a sports commentator not a reference to Mr Conlon’s job as a Minister.
Mr Conlon and his wife read the article and both were upset by it. Mr Conlon felt that it reflected badly on his motives for working in public life and he sent an email to Mr Jory complaining. He pointed out the mistake and went on to say that Mr Jory’s article created the strong impression that Mr Conlon was in public life for the shallow pursuit of perks. He asked that the Sunday Mail correct the error. Mr Bignell also complained to Mr Jory, saying that both he and Mr Conlon deserved an apology. The editor of the Sunday Mail replied to Mr Bignell’s email saying that, if there was an error, the paper would rectify it. The newspaper’s eventual response to the complaints was a further article in Backchat on Sunday 3 December 2006:
Still the best job in the world
A few weeks ago I upset Transport Minister Patrick Conlon by suggesting in Backchat he had the best job in the world.
I quoted his former chief-of-staff and now Member for Mawson Leon Bignell, who said in an interview on Ceduna radio: “He (Minister Conlon) used to sit there and go: ‘It’s the best job in the world. You go to the Olympics, the footy, any sporting event in the world’.”
I took it, from reading the transcript, Fix-It-Pat was talking about his job as minister. He assures me he was talking about Mr Bignell’s job as chief-of-staff. I spoke to Mr Bignell this week and accept what he says, but it’s one of those things you can read either way.
Neither Mr Bignell nor Mr Conlon accepted the second article as a correction or apology. Mr Bignell complained again, but the Sunday Mail took no further action. Mr Conlon issued these proceedings.
Backchat
Because the meaning of words is often coloured by context, I say something about the nature, or genre, of Mr Jory’s column. There was no real dispute about this in evidence but there was something of a difference in emphasis. Mr Jory described his column as being “a mixture of what I would describe as hard news or information, observation, perhaps personal comment, humour, whimsy”. Mr Conlon said of Backchat that it “is light hearted but it does contain sometimes quite serious comments.” Mr Conlon’s description of the column is fair. In my view, the column is not so light hearted and whimsical that readers would not take some comments in it seriously.
There was no dispute that the Sunday Mail has a wide circulation throughout South Australia or that Backchat appeared in a prominent position.
Nor was there any dispute that there was a mistake in the first article. I accept that, before he wrote the first article, Mr Jory had misread Mr Bignell’s comment as a reference to Mr Conlon’s job as a Minister and did not realise his mistake. But he understood the true meaning of the reference when he wrote the second article.
The meaning of the first article
Mr Conlon argues that the first article carries the imputation that his motives for being in public life are less than worthy or that, as pleaded, he is in politics for the shallow pursuit of perks. To that, the defendant answers that the article can bear no such imputation; that it is no more than the report of a refreshing admission by a serving politician that public life has its benefits, that it is not all hard work.
I must determine whether or not the article contains the imputation for which Mr Conlon contends. To answer that question I must first decide what is the ordinary and natural meaning of the impugned words he used to sit there and go: It’s (being a Minister) the best job in the world. You go to the Olympics, the footy, and sporting (event) in the world. The test is: what meaning would be ascribed to those words by the ordinary, reasonable person of average intelligence reading a newspaper column of the genre of Backchat?[1] In answering that question, I remind myself that the ordinary and natural meaning is not necessarily the literal meaning; it may be a meaning that is implied or inferred. Further, as one judge has noted, The layman’s capacity for implication is much greater than the lawyer’s… The layman reads in an implication much more freely. [2]
[1] See Farquahar v Bottom [1980] 2 NSWLR 380; at 385 Per Hunt J
[2] See Lewis v Daily Telegraph [1963] 1Q.B. 234 at 277
I have read the words in the context of the whole article and have taken into account the general nature of Backchat. I have concluded that the article contains the imputation for which Mr Conlon contends. True it is that the article appears light hearted and that the words frankness and my old mate lend it an easy, intimate tone. But there is no mistaking the sting: that Mr Conlon is motivated by the attractive “perks” of his job. The irony of the final line invites the reader to join with the writer in agreeing with that imputation.
I go to the second article. Mr Conlon argued that this article is anything but a retraction or correction. Nor is it an apology. It is, says Mr Conlon, an invitation to the reader to come to his own conclusion about the meaning of what was said during the radio interview. He argues that Mr Jory is effectively inviting the reader to share the opinion which Mr Jory expressed in the first article. Mr Jory denied that he was making any such invitation to the reader. He explained the article by saying that, from his position, the original comment could have been read both ways, that he was wrong in reading it in the way in which he had read it but that it could be read either way. He said that the second article is an unequivocal withdrawal of his interpretation. He described it as a “clear clarification”.
In determining whether or not the second article bears the imputation for which Mr Conlon contends, I have again applied the principles to which I have already referred. Again, I conclude that the article does bear such an imputation. The headline suggests that nothing has changed since the publication of the first article. Mr Jory then purports to accept Mr Bignell’s explanation but further clouds the issue by making another factual mistake. He should, of course, have referred to Mr Bignell’s job as a sports commentator not as Mr Conlon’s chief –of-staff. Had he done so, the true meaning of the original comment would have been clear. While Mr Jory purports to accept what Mr Bignell said about the true meaning of the comment in the initial interview he then adds It’s one of those things you can read either way. In my view, the ordinary and reasonable reader would infer from that last sentence that Mr Jory is not changing his position from the earlier article and, indeed, is inviting the reader not to do so either. The second article affirmed the imputation in the first article.
The next issue is whether the articles were defamatory of Mr Conlon. The test is whether the imputation in them would lower Mr Conlon’s reputation in the estimation of right thinking members of the community.[3] It was suggested that, in applying that test, I should take into account the fact that he is a politician prominent in public life. It is true that it has been said that a man who chooses to enter public life must expect to suffer harsh words at times.[4]But in this case the defendant has not pleaded qualified privilege or fair comment. The newspaper fought the case on the basis that the imputation for which Mr Conlon contends is not made out and, even if it is, it is not defamatory of him. In the circumstances of this case therefore, the fact of Mr Conlon’s being a politician is not to the point, although it may be relevant to the question of damages.[5] Applying the test set out, I am of the view that the imputation in both of the articles is defamatory. Further, the second article, by renewing the imputation, compounded the hurt done by the first.
[3] Sim v Stretch [1936] 2 All ER 1237 at 1240
Buick v Duncan (1986) 127 LSJS 277 at 281
[4] Australian Consolidated Press Ptd v Uren (1966) 117 CLR 185 at 210
[5] Buick v Duncan (above) at 281
I turn then to the question of general damages. I should award Mr Conlon damages sufficient to console him for any injury to his feelings, to repair the harm done to his reputation and to vindicate his reputation.[6] I shall not try to categorise the award of damages but I have taken all of those matters into account.
[6] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60
I accept Mr Conlon’s evidence that he entered parliament for “serious reasons” and that he is “a hard working bloke”. I accept that he was hurt by the suggestion that he was in public life for unworthy motives. I also accept that he was hurt because his wife was upset by the articles. There has been no correction or apology. He has suffered on account of the harm deemed to have been done to his reputation and the harm he perceives to have been done to his reputation. In assessing an appropriate amount of damages, I have taken into account the fact that he is a seasoned politician, is accustomed to criticism and has developed something of a “thick skin”. I have also tried to ensure that there is an appropriate and rational relationship between the harm done to Mr Conlon and the amount of damages which I award.[7]
[7] Defamation Act, 2005 s.32
I award $40,000.00 by way of general damages.
Aggravated Damages
Mr Conlon also seeks aggravated damages. He is entitled to such damages if the Sunday Mail’s conduct has been improper, unjustifiable or lacking in bona fides and if such conduct has also exacerbated the injury done to him.[8] He relies upon the following conduct:
·The manner in which the first article was published.
Mr Conlon asserts that the first article was published in an insulting, sarcastic and offensive manner; he cites the final line Ah the sacrifices of public life.
·The republication in the second article of part of the original Bignell interview without its having been corrected.
·Publication of the defamatory imputation in each article when the plaintiff knew that the relevant words were false, insulting and offensive.
·The defendant’s improper motive in publishing the relevant words in the knowledge that they were false.
·The defendant’s improper motive in publishing the relevant words in the second article when it was aware that the words were false.
·(Alternatively) the defendant’s recklessness in publishing both articles where appropriate inquiry would have revealed that the relevant words were false.
[8] Brookes v Barnard [1964] AC 1129 at 1221;
Triggell v Pheeney (1951) 82 CLR 497 at 514
It is not strictly necessary for me to go through each of those particulars because I am not satisfied, even if any of them are made out, that Mr Conlon’s injury has been exacerbated. His injury was caused by the publication of the first article and it is not possible, in my view, to divide the injury done in that article into two parts: first, an injury done by a false reference to Mr Conlon and, secondly, an aggravation to that injury done by the manner or tone of the article as a whole. Such an exercise is quite artificial.
I do not accept that the paper published either article in the knowledge that the defamatory imputation was false, insulting or offensive. I do not accept that, on either occasion of publication, the defendant’s motives were improper. While I have accepted Mr Jory’s evidence that he did not notice the mistake in the second article until he was giving evidence, I am satisfied that he was reckless in not noticing the error before publication. But I do not accept that his recklessness, the fact of the failure to correct the article or the lack of apology in any way aggravated the injury already done to Mr Conlon.
I decline to award aggravated damages.
There will be judgment for the plaintiff in the sum of $40,000.00.