Conservation Council of SA Inc v Chapman

CONSERVATION COUNCIL OF SA & ORS v CHAPMAN & ORS
[2003] SASC 398
Full Court: Doyle CJ, Gray and Besanko JJ

DOYLE CJ: I have had the advantage of reading the reasons prepared by Besanko J.
I am content to rely on his comprehensive statement of the relevant facts and issues. I propose to add some observations on some of the issues to be decided in this appeal.
Publication No 6
I agree with the conclusions of Besanko J.
I will state my reasons for deciding that the publication was not one that concerned matters that attract Constitutional protection in the form of an extended defence of qualified privilege. I do so because of the general importance of the topic. I will also state briefly my reasons for agreeing with Besanko J that the finding of malice by the trial Judge be set aside, recognising as I do that such a finding is not lightly set aside.
In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the High Court said at 559:
“Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates…”
The recognition and protection of that freedom of communication required some modification of the common law, because in some respects the common law of defamation restricted freedom of speech to an extent inconsistent with the constitutional requirement. In particular, the constitutional requirement called for a relaxation of the common law approach that in other than exceptional cases a claim of qualified privilege was not available in respect of a communication to the general public: at 570.
It is important to bear in mind that the constitutional requirement of freedom of communication is anchored in the text of the Constitution. As the court said (at 561):
“However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.” (footnote omitted)
That led to the statement of principle set out below (at 571 – 572):
“ Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.
Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.”
The Court went on to explain that the publisher of the statement who relies upon the constitutional protection must also prove that he or she acted reasonably: at 574. However, it is not necessary to dwell on that aspect of the matter.
Is Publication No 6 a publication that attracts constitutional protection? That question can be answered only by considering the circumstances of the particular case, in the light of the statements of principle set out above. Two aspects of those principles call for particular consideration in this case. First, a communication is protected because it is communication of a kind “… necessary for the effective operation of that system of representative and responsible government provided for by Constitution”: at 561. Second, the subject matter that is protected is “… information, opinions and arguments concerning government and political matters that affect the people of Australia”: at 571. Content is given to these criteria by referring to the basis on which the constitutional protection is available. It is available because Australians must be able to communicate freely with each other “… with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government …”: at 571. I approach the case on the basis that these are statements of principle, to be applied in a practical way. And, as the High Court recognised, matters of government or politics at the State level will often attract constitutional protection, for the reasons given by the High Court.
Publication No 6 was published in the course of a continuing vigorous and widespread public debate in South Australia (and more widely) about the construction of a road bridge to Hindmarsh Island. The opponents of the construction of the bridge relied on the adverse impact of the bridge on the local environment (including bird life). They also relied on anticipated interference with or disturbance of the land in a manner that would damage features of the land that were part of the heritage of the local Aboriginal people, and that would offend traditional Aboriginal beliefs relating to the land. Claims were made that the Chapmans had not consulted adequately or appropriately with the Aboriginal people who had links to the site. The State Government had become closely involved in the matter. The construction of the bridge was subject to various State laws. The Minister of Transport had agreed to become the constructor of the bridge. The Commonwealth Government had become involved when a Minister exercised statutory powers to prevent the construction of the bridge because of its effect on Aboriginal interests. The construction of the bridge had attracted considerable political attention at the State and Commonwealth level.
The debate about the construction of the bridge to Hindmarsh Island had aspects to it that brought that debate within the area of discussion that attracts constitutional protection. In particular, opposition to the bridge rested on matters (protecting the environment and protecting Aboriginal heritage) in which the Commonwealth Government had an interest, had certain legislative powers and in relation to one of which (Aboriginal heritage) the Commonwealth Government had exercised statutory powers already. The construction of the bridge had become a matter of political contention as between the Commonwealth Government and the Opposition in the Commonwealth Parliament.
At the State level the debate over the bridge had involved the Executive Government in a variety of ways, and the issue had become thoroughly political.
It is clear that the discussion of government and political matters at the State level may attract the constitutional protection. It may be that it does so only if the particular discussion has a bearing on matters of government at the Commonwealth level. That more cautious view was taken by Spigelman CJ in John Fairfax Publications Pty Ltd v Attorney-General for the State of New South Wales [2000] NSWCA 198; (2000) 181 ALR 694 at [87]. His Honour found support for that view in what McHugh J said in Levy v The State of Victoria and Others (1997) 189 CLR 579 at 622.
If that view is correct, it nevertheless remains necessary to approach the issue on a broad basis. In the present case, the Commonwealth executive government had become involved in the construction of the bridge, and the issue had received considerable attention in the Commonwealth Parliament. And, as I have said, the claimed impact on the environment and on Aboriginal interests were matters of significance to the executive government of the Commonwealth. Accordingly, Publication No 6 occurred in the course of a debate that raised a number of issues capable of attracting the constitutional protection to a contribution to the debate.
However, it is necessary to go further. The particular publication must be shown to be one “concerning government and political matters that affect the people of Australia”: Lange at 571. A simple example will illustrate this point. Assume that an opponent of the bridge alleged that the bridge was unsafely designed due to incompetence by a structural engineer. That defamatory statement would not attract the constitutional protection in my opinion. The communication would not be one on the protected topics, even though it related to a matter, debate over which involved the protected topics.
It is necessary to examine the link between Publication No 6 and the debate about the bridge. The publication is about the use, by the Chapmans as proponents of the bridge, of legal proceedings, or the threat of proceedings, for the purpose of silencing opponents of the bridge construction because of its impact on the environment. The publication refers generally to the use of legal processes by developers to silence community opposition to proposed developments. It has three main elements – the role and motive of the Chapmans in doing what they did, the use of the courts as a weapon in a matter like this, and the impact on free speech of the use made of the courts.
I agree with Besanko J that, in the present context, the fact that the publication refers to the Federal Court and to court orders is not of itself enough to attract the constitutional protection. The mere fact that the publication deals with the use of the litigation by the Chapmans does not bring it within the constitutional protection. I agree with the observations of Spigelman CJ in Fairfax [at 83]. The fact that the publication refers to freedom of speech is not, of itself, sufficient to bring the publication within the constitutional protection. Nor, in my opinion, does the fact that the publication links these two elements by referring to the use of legal proceedings to stifle free speech.
Gray J at [146] has said that each publication has “directly contributed to the ongoing public comment and debate” about construction of the bridge. I agree with that observation, but is that enough?
As I have said, the question of whether the constitutional protection is attracted to a publication is not to be approached in a narrow way. The question is one of substance. Nor should it be assumed that a particular publication can be characterised in only one way. On the other hand, as I indicated when referring to a defamatory statement about a person involved in the design of the bridge, it is not enough to attract the constitutional protection that the publication relates to the event or matter, debate over which attracts the constitutional protection. In my opinion it is not sufficient that the publication can be said to make a contribution to the “ongoing public comment and debate”. To say that is to do no more than link the publication to the dispute. It is a separate question whether or not the publication itself attracts the constitutional protection.
In the end, I agree with Besanko J that the publication does not attract the constitutional protection. In my opinion the article, having regard to its contents, does not deal with “government and political matters”. Nor, placed in the wider context, does it make a contribution to the dissemination of information about those matters. The publication is made in the course of a public controversy that raises those matters, but that in itself is not enough. The publication is properly characterised as a publication about use by the Chapmans, and developers generally, of legal proceedings to silence or subdue opponents of proposed developments. As such, it does not attract the constitutional protection.
I turn now to the Judge’s finding that the occasion was not one of qualified privilege at common law because of the presence of malice on the part of Professor Shearman.
I agree with Besanko J that the finding cannot stand.
The Judge’s finding that the article was published on an occasion of qualified privilege, according to the common law test, was not challenged. The Judge found that it was an occasion of qualified privilege because the publication was one made by the president of the Conservation Council to members of its member groups, and because the publication dealt with the use of legal proceedings by developers to silence people like those members (claiming to represent the public interest) when they opposed development projects.
There is no indication from the terms of the article that the occasion was used for a purpose other than the purpose that made the occasion one of qualified privilege. In that respect I agree with Besanko J. I do not agree that the article misrepresented the matters with which it dealt in a “mischievous fashion”, even though I acknowledge that the article ignores the fact that Mr and Mrs Chapman brought proceedings to protect themselves against an apprehended legal wrong. To my mind there is no basis for inferring that Professor Shearman had an overriding purpose for inflicting loss on Mr and Mrs Chapman. It was obvious that they were likely to suffer financial loss if the construction of the bridge was stopped. But it did not follow that the purpose of Professor Shearman was to cause that loss. That circumstance made it particularly important to take care to distinguish between the consequence of successful opposition to the construction of the bridge, and the purpose of Professor Shearman. I also consider, with all respect to the Judge, that a public campaign of the kind that occurred here commonly involves reliance on the pressure of public opinion and public disapproval of the project in question. Those matters are commonly brought to bear on both the proponent of the project, and those involved with the proponent. One needs to be careful in inferring malice from that. That sort of thing is part of the ordinary process of public debate. I also agree with Besanko J that the Judge’s reference to Professor Shearman’s involvement in “the campaign” does not advance the matter.
The Judge touched on the question of malice many times in the course of his reasons. He expressed his views on the point in different ways. At [157] he referred to Professor Shearman as having “aimed” publications at Mr and Mrs Chapman “for the purpose of causing them injury”. In my opinion the evidence does not warrant that conclusion. He also refers there to Professor Shearman as making statements “in respect of which he did not have an honest belief”. I agree with Besanko J that that conclusion is erroneous. At [195] the Judge refers to Professor Shearman as intending “to reflect badly upon the Chapmans”. That, with respect, appears to me to confuse legitimate criticism with the use of an occasion for a purpose other than that which makes it one that attracts qualified privilege. The same comment applies to the Judge’s statement at [66] that the object was “to persuade or coerce those involved in the bridge project to have a change of mind”. In the same paragraph the Judge finds that Professor Shearman acted “for the predominant purpose of administering a blow” to the reputation of the Chapmans for the purpose just stated. I consider that there is nothing in the material before the Judge that, properly understood, supports that conclusion.
All in all, for these reasons and the reasons given by Besanko J, I am unable to agree that the material relied on by the Judge supported the conclusion that Professor Shearman used the occasion for a purpose foreign to the purposes that made the occasion one of qualified privilege. To my mind, there was no basis for concluding that Professor Shearman used the occasion other than for the purpose of informing persons with whom he was communicating about the use of legal proceedings by developers to silence opponents of a development project. Proof of hostility or ill-will or bias or prejudice were not irrelevant, but were of little significance.
Publication No 7
Subject to what follows, I agree with the reasons given by Besanko J in relation to this publication.
I agree with him that this publication was not one which attracted constitutional protection. I reach that conclusion on much the same basis as I reached my conclusion in relation to Publication No 6.
I agree with Besanko J that the Judge was right in deciding that the words and imputation complained of are not fair comment. I must say that I regard the decision on this issue as borderline, but in the end I am not persuaded that the Judge was wrong.
Publication No 11
I agree with the trial Judge that this publication attracted the constitutional protection. It attracted that protection because it was about the role of the Commonwealth and State governments in connection with the construction of the bridge. Its focus was on governmental and political issues that were relevant to both levels of government
I agree with the reasons given by Besanko J in relation to this publication.
Conclusion
I would allow the appeal. I would set aside the judgment and orders made at trial. I would order that there be substituted a judgment for the first and second plaintiffs in the sum of $25,000 against the first, second and fourth defendants, and an order that otherwise the claims made by the plaintiffs against the defendants be dismissed. It will be necessary to hear the parties on the question of cost.
GRAY J
Introduction
This is an appeal against an award of damages for defamation.
The plaintiffs, Thomas Lincoln Chapman, Wendy Jennifer Chapman and Andrew Lincoln Chapman claimed damages for defamation arising from eleven publications. The claims were made against the Conservation Council of South Australia Inc, Margaret Bolster, Professor David Shearman and Richard Owen.
On 30 September 2002 a judge of this court ordered that Mrs Chapman recover $20,000 from the Conservation Council and Mr Shearman in respect of a publication described as “publication 6”, that Mr Chapman and Mrs Chapman each recover $25,000 from Ms Bolster, Mr Owen and the Conservation Council in respect of a publication described as “publication 7”, and that Mr and Mrs Chapman each recover $30,000 from the Conservation Council in respect of a publication described as “publication 11”. The claims involving all other publications were dismissed.
The learned trial judge concluded that publications 6, 7 and 11 were defamatory. The defences of justification, fair comment, common law qualified privilege and extended qualified privilege were rejected.[1] The judge found that the defendants were motivated by express malice.
[1] Lange v Australian Broadcasting Commission (1997) 189 CLR 520.

The judge ordered that Mr and Mrs Chapman recover costs fixed at $50,000. The Conservation Council and Mr Shearman were held to be jointly and separately liable for $10,000; the Conservation Council, Ms Bolster and Mr Owen jointly and severally liable for $20,000, and the Conservation Council liable for an additional $20,000.
On appeal counsel for the defendants challenged many aspects of the judge’s reasons and his conclusions. Most issues raised during the trial were reventilated on appeal. It was contended that the judge made errors of fact and law. It was said that his findings of malice were not open on the evidence.
The Parties
The plaintiffs
Mr and Mrs Chapman are husband and wife. Andrew Chapman is their adult son. Mrs Chapman had an extensive involvement in public affairs. She was a former Lord Mayor of Adelaide. She was made a Member of the Order of Australia in 1986 for services to local government and the community. Mr Chapman was an experienced land developer. He too had extensive involvement in public affairs. He had been a prominent figure in service organizations and had served as the president of the National Council of Independent Schools. All claims brought by Andrew Chapman were dismissed.
At relevant times Mr and Mrs Chapman controlled Binalong Pty Ltd. Both were directors and shareholders.
The Conservation Council
The judge observed that the Conservation Council occupied an important position of influence with regard to public affairs. This was a unique and responsible position. He found that the Conservation Council was seen by the ordinary person as a body which made authoritative public statements. He concluded that there was a public interest in encouraging bodies such as the Conservation Council to participate in public debate.
The Conservation Council was described by the judge as:
… the peak (or “umbrella”) conservation organisation for South Australia and represents member groups (fluctuating between 50 and 65 in all) whose main purpose is conservation and protection of the environment; the Conservation Council claims that those combined groups represent over 60,000 members …It is partially funded by grants from the Federal and State Governments. It is a non profit, non political party organisation. The evidence shows that the Conservation Council is influential in public affairs in South Australia. The Council is in a position through the goodwill of its members and associated organisations to provide expert advice to government and the community. The Council is also accustomed to lobby and to proselytise with respect to selected issues. My assessment is that the Conservation Council occupies a respected and powerful position of influence within the community.
As at September 1995 the Conservation Council ran 16 working groups to advise the Council on various environmental issues. One of these groups was the Environmentalists and Aboriginal Reconciliation Action Group (‘EARAG’) whose purpose was declared to be ‘Promotion of Aboriginal reconciliation and the forging of links, particularly in relation to the conservation movement and environmental issues’.
Membership of the Conservation Council in terms of its 1993 rules is confined to organisations which become affiliated with the Council and which meet a strict set of criteria. Such organisations have voting rights via councillors appointed to represent the organisation at meetings of the Conservation Council; the number of councillors to be appointed by a particular organisation is dependent upon its own membership in accordance with a prescribed scale. It is the practice of the Conservation Council only to admit incorporated bodies to membership. (As a result of this requirement the admission of The Friends of Goolwa and Kumarangk to membership of the Conservation Council was deferred for some months until May 1994 to enable the association to become incorporated).
The Executive Committee (which includes the President, Vice President, Secretary, Treasurer and committee members) are elected by the councillors in general meeting from amongst their number but the Executive Committee itself has power to fill vacancies by election or appointment (see R55); there is also a power to include staff on the Executive.
The rules contemplate the creation of Research Action and Resource Groups or Committees but these groups are not required to pay an affiliation fee. The operation of these groups is required to be reviewed by the Executive from time to time (see R44 & 56).
The Conservation Council employs salaried core staff but it is largely dependent upon voluntary activity. … a degree of informality is necessarily associated with the flexible workings (in an organisational sense) of the various sub-committees and working groups; these may hive off a matter of interest to a designated subgroup to satisfy the exigencies. … those participating voluntarily in the affairs of the Conservation Council ‘came and went’ as their interest in a particular topic waxed or waned or as the topic of interest was disposed of.
Ms Bolster
At relevant times Ms Bolster was the vice president of the Conservation Council. The evidence established that Ms Bolster had a long history of involvement with conservation and environmental organisations in a voluntary capacity. Her involvement extended to various management, planning and steering committees with a particular focus on revegetation, natural heritage and biodiversity. Ms Bolster was further involved in government working groups and committees within Department of Environment and Heritage, Department of the Premier and Cabinet and Department of Primary Industry and Natural Resources. In her work with the Conservation Council, she contributed her time and effort on a voluntary basis in positions ranging from editor to vice-president and later president. She was widely read on issues relevant to Hindmarsh Island. Ms Bolster had a commitment to the environment and believed herself to be engaging in public debates in the wider public interest.
The judge made the following findings:
Ms Bolster the second defendant trained as a music teacher in New Zealand came to Australia in 1964 and settled in the Adelaide Hills in 1983. She became a representative from the Mount Lofty Ranges Conservation Association to the Conservation Council of SA in 1990. She became vice president of the Conservation Council of SA from 1992 until 1996 and is currently serving her second year as President (having been elected to the office in the year 2000). She succeeded Professor Shearman as editor of Environment SA in January 1995. At all relevant times since 1992 she has been a member of the Executive of Conservation Council of SA.
Ms Bolster is an enthusiastic supporter of the conservation movement. She has served on many Government committees dealing with conservation issues. Since coming to Australia Ms Bolster has read something of the plight of the Australian Aboriginal and has become interested in the process of Reconciliation. She is the author of the article - Hindmarsh Island and the human condition (Publication No 8). An examination of that publication will provide some insight into the way in which her interests in Conservation and Reconciliation have been blended. She sees commercial exploitation in our economic system as being destructive of the last vestiges of Australian indigenous culture as well as causing irreparable damage to the environment. Within the orthodoxy of the Conservation Council’s principles she requires commercial development to be assessed against a ‘triple bottom line approach involving cash economics, environmental implications and social implications.’
Professor Shearman
Professor Shearman was the president of the Conservation Council from October 1991 until November 1994. Professor Shearman had a distinguished career in the medical field holding positions as professor, senior lecturer and chair at various international and local universities. Through his involvement as a member of the International Panel on Climate Change and Doctors for the Environment he demonstrated an interest in environmental and conservation issues. He acted in a voluntary capacity as president to the Conservation Council. He instigated the publication Environment SA and acted for some time as its editor. He demonstrated an interest in the issues of the environment and conservation.
The judge observed:
From 1991-1994 Professor Shearman was the President of the Conservation Council; he held the Mortlock chair in Medicine at Adelaide University from 1975 until 1997. He is an authority on the Environment and its relationship to health. He is a scholarly man who is passionately committed to the environmental causes which he espouses. ... His distinguished professional record at Edinburgh University, the Royal Infirmary and Yale University well qualified him to lead the Conservation Council of SA as the highly respected umbrella organisation for the conservation movement in South Australia.
Mr Owen
The evidence established that Mr Owen had a long term interest in conservation and the environment through his membership of many groups, boards and panels since the late 1980’s. His involvement included membership of the Hindmarsh Island Landcare group, the Coorong and Lower Murray Lake Ramsar Community Reference Panel and further as a board member on the Conservation Council. He had been active for more than 20 years in revegetation of the Murray mouth region and had been a strong advocate in attempts to prevent further degradation in the region.
The judge outlined Mr Owens’ background:
Mr Owen has a shack on Hindmarsh Island’s southern foreshore overlooking the Coorong estuary and the mouth of the Murray River. He has used the shack since 1980 but has only lived there permanently since 1998. His shack lies immediately to the west of and adjoining the ‘Mouth House’, a shack then owned by Ms Lewis and occupied at the relevant time (post October 1993) by Mr Milera (since deceased) and Mrs Milera. Mr Owen was a secondary school geography teacher in metropolitan Adelaide (having obtained an arts degree at Adelaide University majoring in geography and history). He also did some two years study in religious education. He undertook further training as a teacher/Librarian and took appointments with various school resource centres. In 1986 Mr Owen obtained an appointment at Adelaide College of TAFE as deputy principal in charge of the learning resources programme and he remained in this position until retirement in 1998. Mr Owen had responsibility for the ‘Learn Network’ of all resource and training centres across TAFE. He was the Foundation President for 8 years of the Resource Centre Teachers Association where he gained experience at lobbying Government.
A Matter of Public Interest
The Island
Hindmarsh Island (“the island”) is located south of Adelaide in the lower Murray. In earlier times vehicle access was by ferry that travelled between the township of Goolwa and the island. With increasing development on the island the ferry became a traffic “bottleneck”. In the early 1980’s the local council approached the South Australian government to secure better access to the island. A larger ferry was installed. However traffic flow remained congested. Public meetings were held and local residents called for the construction of a bridge to better cater for the increasing traffic flow between Goolwa and the island. In 1987 the local council approached the Minister for Transport requesting that a bridge be constructed. Thereafter the council continued to pressure the government.
Binalong acquired land on the island in or about 1977. Between 1981 and 1984 Binalong obtained planning and other approvals to develop a marina complex on its land. The proposed complex included marina berths, a motel, a restaurant, a conference centre, and accommodation units. By 1985 the first marine basin had been substantially completed. A number of berths had been established together with supporting infrastructure. The development continued. Accommodation units were built and a restaurant opened.
In early 1988 Binalong decided to expand the marina. Adjacent land was acquired. By July 1988 a planning application pursuant to the Planning Act 1982 had been prepared for the proposed construction. A six stage development was proposed. At the request of the State government the lodging of the planning application was deferred until a draft supplementary development plan for the island had been prepared and made public.
The preparation of the draft supplementary development plan led to the commissioning of an Aboriginal archaeological survey. The survey involved the entire island including the marina and the approach to the ferry. Vanessa Edmonds, an archaeologist, conducted the survey and reported in 1988. By this time another developer had lodged a planning application for a competing development. Submissions from the public were invited in regard to both proposals. Extensive public consultation occurred.
The Bridge Proposal - State Government Involvement
Whilst the development proposals were under consideration the State government expressed a preference for a bridge to be built rather than ferry services improved. In June 1989 Binalong offered to build a bridge. A public meeting was held and a majority of those present favoured a bridge.
In August 1989 the State government advised that it was likely that Binalong's planning application would be treated as a “major project” pursuant to the provisions of the Planning Act. As a result, the project would be considered by cabinet and Binalong was required to follow the environmental impact statement process. In October 1989 Binalong was advised that cabinet would recommend to the Governor in Executive Council that the marina expansion and bridge proposal proceed as a major project and that the State government would contribute either half the total construction cost of the bridge, or $3 million, whichever was the lesser sum.
Binalong prepared a draft environmental impact statement. In November 1989 the draft was made public and comment invited. A public meeting followed in December 1989 arranged by the State government. Following this public meeting the State government prepared a preliminary assessment of the draft environment impact statement. The preliminary assessment suggested that because the section on Aboriginal heritage had been based solely on the 1988 Edmonds report, an additional archaeological survey should be prepared. It was suggested that a comprehensive survey of the bridge site and the proposed marina expansion be conducted by a consultant acceptable to the Aboriginal Heritage Board and the appropriate Aboriginal Heritage Committee. The preliminary assessment concluded:
Similarly, although the Environmental Impact Statement makes reference to discussions with the Point McLeay Community Council, any consultations with the Aboriginal traditional owners and any anthropological study should be carried out by a suitably qualified and experienced anthropologist. This anthropologist should be acceptable to the Aboriginal Heritage Branch which can also advise on the brief for such a study.
Mr and Mrs Chapman then arranged for an anthropological survey to be undertaken by Rod Lucas. Mr Lucas reported in early 1990.
A further report from Ms Edmonds was completed in January 1990. This report identified several new archaeological sites close to the shoreline and not within the proposed marina expansion site.
In March 1990 an assessment report on the draft environment impact statement and its supplement was released by the State government. The six stage development was recommended for approval subject to the conditions set out in the assessment report. These conditions included conditions related to Aboriginal heritage concerns and accorded with recommendations made in the Lucas report. These conditions were contained in paragraph 7.4 of the assessment report. Paragraph 7.4 in turn contained recommendation 2.5 which picked up the conditions recommended in the Lucas report.
In March 1990 an application for approval of the six stage development was lodged. Shortly thereafter the Governor in Executive Council granted consent to the development subject to a number of conditions, including those conditions in section 7.4 of the assessment report which related to Aboriginal heritage matters. The approval granted to Binalong on 11 April 1990 included the following conditions:
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 the 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 the 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.
Other conditions provided that stages two to six of the marina extensions were not to proceed until after the practical completion of the bridge project. The State government confirmed its previous commitment to pay either half of the construction cost or $3 million whichever was the lesser sum.
On 12 April 1990 authorisation was granted pursuant to the Aboriginal Heritage Act 1988 (SA) to Binalong to establish the “marina/waterfront development” as detailed in the draft environmental impact statement and its supplement. This authorisation was subject to specified conditions in the assessment report. The specified conditions were those identified in Section 4.6 of the assessment report. Section 4.6 in turn referred to Section 7.4 of the assessment report.
Formal planning approval pursuant to the Planning Act was confirmed by Executive Council on 26 August 1992 in relation to stages two to six. The 1990 approval was to lapse if the bridge was not substantially completed within two years.
The same conditions were referred to in Sections 4.6 and 7.4 and these conditions reflected the recommendations in the Lucas report. These conditions had to be satisfied before the bridge could be constructed. Stages two to six could not proceed until practical completion of the bridge project. As a result all six stages of the proposed development were subject to the specified conditions of the assessment report.
The State Government and The Financier
By July 1989 Westpac Banking Corporation Ltd had taken over Partnership Pacific Limited the Chapman’s previous financier. On 30 October 1990 Westpac declined to finance stage one and sought repayment of Binalong’s outstanding debt. This led to discussions between the State government and Westpac. As earlier observed the State government decided to build the bridge. This led to a “tripartite” agreement between the State government, the local council and Binalong. As part of the agreement the State government had arranged for Westpac to finance stage one of the marina. Stage one proceeded to completion.
Public Opposition
In November 1991 and October 1992 petitions opposing the construction of the bridge were tabled in Parliament. Prior to this time there had been limited public opposition to the construction of the bridge. However from early 1993 opposition grew. In February 1993 a number of local residents and holiday home owners opposed the bridge. “The Friends of Hindmarsh Island” group was formed to oppose the bridge project. In about October 1993 the Friends of Hindmarsh Island became incorporated as the Friends of Goolwa and Kumarangk Inc[2]. Other organisations also opposed the construction of the bridge. They included the Conservation Council of SA Inc, the Construction, Forestry, Mining and Energy Union, the Goolwa Residents and Ratepayers Association, and in late October 1993 Greenpeace and the Lower Murray Aboriginal Heritage Committee.
[2] Kumarangk was a recognised Ngarrindjeri name for Hindmarsh Island.

In March and April 1993 members of the State opposition voiced concern about the arrangement under which the State government was to contribute to the cost of the bridge. In April 1993 the Legislative Council resolved that its Parliamentary Environment, Resources and Development Committee should hold an inquiry into issues relating to the funding of the bridge. Meanwhile in May 1993 the State government called for tenders for the construction of the bridge. A tender from Built Environs Pty Ltd was accepted in September 1993. The Committee tabled its report in Parliament in October 1993. It recommended that the bridge proposal be reassessed and that a second ferry be investigated to relieve the perceived difficulties to island access.
Bridge Construction
It became public knowledge that work on the construction of the bridge was to commence at the end of October 1993. In early October 1993 a public meeting arranged by the Friends of Goolwa and Kumarangk Inc, the Conservation Council of South Australia and the Construction, Forestry, Mining and Energy Union was held at Goolwa to protest against the construction of the bridge. Further public meetings were held later in October 1993. By late October 1993 protesters had organised a picket at the proposed bridge site. At about this time the Lower Murray Aboriginal Heritage Committee expressed concern about the impact of the proposed bridge on Aboriginal sites. This concern was made known to the Department of State Aboriginal Affairs who in late October 1993 advised the State Office of Planning and Urban Development that concerns existed about Aboriginal heritage sites and consultation with Ngarrindjeri people needed to be considered in the ongoing assessment of the draft supplementary development plan.
Federal Ministerial Involvement
On 23 October 1993 the Lower Murray Aboriginal Heritage Committee wrote to the Federal Minister for Aboriginal and Torres Strait Islander Affairs expressing concern at the proposed bridge construction. The committee considered that the approaches to the bridge project were near Aboriginal sites of significance. The committee was also concerned about other sites on the island and the ecology of the region. It was said that the northern end of the Coorong was sacred to the Ngarrindjeri people.
Work on the bridge commenced on 27 October 1993. The picket was maintained at the site by protesters. That day the contractor was told to cease work by an inspector acting pursuant to the provisions of the Aboriginal Heritage Act. There was concern that the grading of a diversion road could damage an Aboriginal heritage site which had been earlier identified in the 1990 Edmonds report. The proposed bridge construction was the subject of regular comment in the electronic and print media.
On 20 December 1993 the newly elected State government appointed a retired Supreme Court judge to investigate and report on the State's contractual obligations regarding the bridge.
Public demonstrations in opposition to the bridge continued. In March 1994 there was a rally outside Parliament House in Adelaide and a demonstration outside a Westpac bank.
Legal Proceedings
Section 45D proceedings
In March 1994 Binalong sought and obtained an ex parte injunction in the Federal Court pursuant to section 45D of the Trade Practices Act 1974 (Cth) (“the TPA”) against persons and entities involved in picketing and obstructing bridge work. In April 1994 the Federal Court continued an interlocutory injunction against seven of the ten respondents.
Heritage Protection Act Declarations
In April 1994 the Aboriginal Legal Rights Movement sought protection of the proposed bridge site under the Heritage Protection Act 1988 (Cth). In May 1994 an emergency declaration was made by the Federal Minister under section 9 of the Heritage Protection Act. This declaration had the effect of banning bridge construction work for 30 days. In June 1994 the declaration was extended for a further 30 days.
Professor Cheryl Saunders prepared a report pursuant to the Heritage Protection Act at the request of the Federal Minister. The report concluded that, if constructed, the bridge would affect a significant Aboriginal area. It was said that the immediately surrounding area was adjacent to a known Aboriginal site, skeletal remains, known and anticipated were present in the area; and that the proposed bridge site was within an area regarded by Ngarrindjeri women as crucial to the reproduction of the Ngarrindjeri people and their continued existence.
Judicial Review Proceedings
In July 1994 Mr and Mrs Chapman and Andrew Chapman commenced proceedings in the Federal Court for judicial review of the Federal Minister’s decision to make a declaration pursuant to the Heritage Protection Act. His decision was set aside by the Federal Court. An appeal to the Full Federal Court by the Minister was dismissed.
State Royal Commission
In late 1994 through to mid 1995 considerable media debate continued. In June 1995 the State government announced that a Royal Commission would be established to enquire into and report about whether alleged secret “women’s business” was a fabrication. A Royal Commissioner was appointed. The commissioner reported in December 1995 that the whole of the secret “women’s business” was a fabrication. The commissioner was of the view that the purpose of the fabrication was to obtain the declaration under the Heritage Protection Act to prevent the construction of the bridge.
Federal Inquiry
In June 1995 the Federal Minister advised that there would be an independent enquiry into the significance of Hindmarsh Island to Aboriginal people. This enquiry was to be conducted by Justice Jane Matthews. In December 1995 following the dismissal of the Full Federal Court appeal, the Federal Minister announced that procedures had been set in train for the preparation of a further report under the Heritage Protection Act by Justice Matthews. Challenges were initiated in the High Court concerning the appointment of Justice Matthews.
Legislative Intervention and High Court Challenge
There was a change of Federal government in March 1996. The Hindmarsh Island Bridge Act 1997 (Cth) was enacted. This legislation was challenged unsuccessfully in the High Court in April 1998. The construction of the bridge could now proceed. Work commenced in late October 1999 and the bridge construction was completed on 4 March 2001.
Conclusions
This summary of events from 1989 to 2001 demonstrates the extensive and continuing public interest in the Hindmarsh Island bridge development. Many different public interests arose. They included matters of public policy concerning environment and heritage issues, Aboriginal heritage issues, State and Federal government relationships, and political issues including aspects of State and Federal power.
What commenced as a proposal for a commercial development on private property was catapulted into the public domain. Issues of public involvement and public financing became important aspects of the project. Mr and Mrs Chapman took on a role as protagonists for the bridge. They became embroiled in the public controversy. They prepared environmental impact statements. They published extensively to the public through the media.
An analysis of media statements and publications by the Chapmans reveals that they were involved in media publications for more than a decade from 1982. The volume of this material increased during 1991 and included numerous statements throughout the period relevant to the present case. There were a considerable number of statements by the Chapmans to the media in the years 1993 to 1995.
Many of the publications or statements by the Chapmans were in the print media including the Advertiser, the Australian, the News and the Victor Harbour Times. Those publications have a wide readership. The Chapmans had and took the opportunity to add to the public debate on the issue of the bridge construction before a wide audience. They were able to respond to issues raised by the Conservation Council and others.
The Conservation Council and the other defendants became involved as opponents to the development. The issues raised by the proposed development were of governmental and political concern. All levels of government, local, state and federal became involved. It is against this background and during the course of these events that the alleged defamatory publications were given currency.
The Publications
The Chapmans complained of eleven separate publications made between February 1994 and September 1995. With the exception of publication 2 all were made generally under the name of the Conservation Council. Publication 2 was an ABC telecast attributing a number of statements to Ms Bolster. Ms Bolster was involved in publications 1, 3, 4, 5, 7, 8, 9 and 10. Professor Shearman was involved in publication 6. Mr Owen was involved in publication 7. Publication 11 was made specifically under the authorship of the Kumarangk Coalition. At all relevant times the Conservation Council had publicly acknowledged that Kumarangk Inc was one of its members.
As earlier observed the judge found that only publications 6, 7 and 11 were defamatory. Publication 6 was made between September and October 1994, publication 7 in November and December 1994 and publication 11 between July and September 1995.
During at least the period of June and July 1994 Mr and Mrs Chapman were publishing statements about the Hindmarsh Island projects including the proposed bridge. At the same time the Conservation Council and its members were expressing their views to the public.
Publications 1 to 11 and in particular publications 6, 7 and 11 were said by the defendants to raise matters of concern relating to public issues. An analysis of the publications confirms this to be the case. At the broadest level it can be said that the Hindmarsh Island Bridge debate had become a public interest issue. All levels of government were involved. The developer interests and the conservation interests had entered the public arena.
The Trial Judge’s Findings
Publication 6
Publication 6 was in the following terms:
Environment SA Sept/Oct 1994
President’s Message
Hindmarsh Island - Suppression of Free Speech
The legal mechanisms used to silence community groups from expressing valid concerns on the Hindmarsh Bridge issue have profound implications for free speech in Australia. As in the USA they are likely to be used increasingly by developers, large corporations and the rich, to silence opposition posed by environmentalists, consumer groups and concerned individuals.
An important role of the Conservation Council is to speak publicly on matters of environmental importance and to represent the views of the community on such issues. This we did on the implications of the Hindmarsh Island Bridge. It was highly appropriate that we should express our concerns on the potential effects of development on extensive wetlands which have birdlife protected by international agreements. It was appropriate that we should express our views on planning processes which had failed to consider environmental matters and forward management plans.
We were silenced by two different mechanisms. Binalong Pty Ltd and Marine Services Co Pty Ltd acted against the Conservation Council under Section 45D of the Trade Practices Act 1974. This injunction on expressing our opinions was lifted by His Honour Justice Heery but despite this interim viewpoint from His Honour the companies indicated that they would continue the case against us. We believe that this legal process is being used simply to silence us for the view of an eminent legal expert, Andrew Stewart, Associate Professor of Law at Flinders University is that ‘What the law prohibits is intentional interference with the performance of contracts. This obviously limits the capacity of environmentalists to protest against projects for which contracts have already been signed. But it would be ludicrous to suggest that any one who so much as discusses the Hindmarsh Island Bridge or indeed comments on the outcome of the recent Court proceedings is necessarily guilty of contractual interference. Of course those of us with some legal knowledge or the money to pay for legal advice may realise this. But others may not. As a society we must not allow the point to be reached where the mere threat of law suits is enough to silence those who wish only to express a legitimate point of view’.
An even more effective legal mechanism was used to silence those who wished to express an opinion. Dozens of individuals, some of whom never made a public statement on the issue, on meeting privately to discuss the matter had their car registration numbers taken and were then served with legal letters indicating and I quote ‘your past actions give (the company) a claim against you for interference in contractual relations. By your conduct you have already caused (the company) enormous losses’. Thirty two million dollars is then mentioned. The letter then indicates that your past actions have resulted in receivership and a probable ‘fire sale’. If this occurs there will be a claim against you of this magnitude even if the bridge is built.
You be the judge of the intent of these letters! This produced anxiety and even terror in many ordinary members of the community who feared the loss of their houses and other assets. All these individuals were deeply concerned with their local environment and the future. If we were to select model citizens here they were. Some in their eighties were reduced to sleepless nights, other developed anxiety states. Some went away temporarily because of stress. The mechanism being used here is one called a ‘SLAP suit’ commonly used in the United States to silence environmental groups, consumer groups and legitimate viewpoints being put from the community (see article in May/June issue of ESA). However in the United States the Constitution guarantees the right of free speech and the communities are fighting back with anti-SLAP suits, damages for the psychological stress and other injuries incurred by the community. In Australia you will be surprised to find that our Constitution does not provide for the right of free speech and at the moment there is no way that we can proceed with an anti-slap suit. Constitutional review? Forget the monarchy and republicanism - we need constitutional review to give us free speech!
Certainly these events are enough to drive one to cynicism for the only political and press response to these legal events has been several political somersaults, a wail for loss of development and a stampede to salve the muscle spasms brought on by persistent and compulsive genuflection before the altar of State’s rights. Certainly our representatives have not expressed any concern about the suffering and loss of free speech of many of our citizens.
Prof David Shearman, President, Conservation Council of SA
The judge concluded:
In respect of [publication 6] I find that the following imputations arise:
That Wendy Chapman was party to the commencement of Court proceedings and the issue of legal letters for the purpose of (i) suppressing freedom of speech, (ii) stifling debate and (iii) stopping the Conservation Council from engaging in legitimate expression of opinion in public regarding the Bridge issue.
The judge considered that publication 6 imputed motive and conduct which the ordinary person would treat as dishonourable. He said that when read fairly and in context the words complained of carried the identified imputations. He concluded that these imputations would tend to lower Mrs Chapman in the estimation of right thinking members of society generally and that if false would discredit her reputation. He concluded that the words were defamatory.
The judge took the view that the defence of justification had not been properly pleaded. However he observed that when arguing their case on extended qualified privilege the defendants, under the rubric of a submission on reasonableness had presented their case of justification.
In concluding that publication 6 was defamatory the judge reasoned:
There is now spelt out an alleged ulterior purpose for Wendy Chapman’s actions. For the Chapmans (or one of them) to use their resources for the express purpose of standing in the way of community debate on the particular topics seems to me to be conduct which the reasonable person would regard as discreditable.
The judge considered that the publication was made on an occasion of common law qualified privilege. However he concluded that malice had been proven and the defence failed. The judge reasoned that the Lange defence did not apply as that publication was not about a topic “to which the extended privilege applies”. He concluded that in any event Professor Shearman’s conduct was not reasonable. This conclusion was not supported by findings or reasoning. The judge also observed that a Lange defence had it arisen, would have been defeated by malice.
With respect to fair comment the judge concluded:
Insofar as the publication involves expression of opinion I find that the comment does not represent a disinterested judgment by Professor Shearman but was actuated by malice. Any matter of comment was not fair. Professor Shearman said ‘We believe that....’. That expression must be inclusive of Professor Shearman so as to mean ‘I am of opinion that...’. There is no proper factual basis for such an opinion.
Publication 7
Publication 7 was in the following terms:
Environment SA Nov/Dec 1994
A Win for Freedom of Speech…a further update
Hindmarsh Island (Kumarangk) Bridge
The public’s right of freedom of speech has been vindicated in a highly significant judgement in the Federal Court regarding the Hindmarsh Island Bridge issue.
Injunctions that sealed the lips of community concern for the past seven months have been lifted through the efforts of the Conservation Council of SA (CCSA); its member group Friends of Goolwa and Kumarangk Inc; and the Construction, Forestry, Mining and Energy Union.
The lawyers for Binalong P/L sought a stay of proceedings in their action against the above groups on the grounds that the Chapman’s appeal against Federal Minister Robert Tickner’s decision to ban the building of the Hindmarsh Island bridge had implications for their court action.
Justice O’Loughlin refused Binalong’s application for a stay in proceedings, dissolved the injunctions and ordered that Binalong’s lawyers proceed with any intended legal action by 12 Dec 1994.
This is a clear victory for free speech and the rights of the public to protest, to debate, to question and to challenge what is being done in this State. The injunctions have remained since April with no action being taken through the courts to test the validity of the charges.
The people of Goolwa have been intimidated by this action and have been prevented from speaking freely on issues of concern. Whilst the Chapmans seek compensation, who compensates ordinary residents of Goolwa who have suffered greatly under the boot of Binalong?
Baden Chapman Teague - Senator for SA?
In October, Senator Teague, in our opinion, used Parliamentary privilege in the Senate to broadcast misinformation. The commissioned report he referred to uses inaccurate and uninformed statistical data and information. He reveals a complete lack of sensitivity to, in fact ignorance of Aboriginal issues, and a poor understanding of union involvement.
The Friends of Goolwa and Kumarangk approached Senator Teague after his first misleading Parliamentary speech in June this year, but at no stage has he agreed to discuss the issue with conservationists or Aboriginal people. It is disappointing to see a Senator for SA representing short-term financial indulgences (which have cost SA tax payers dearly). CCSA calls on the Senator to justify his assertions to the people of this state, whom he is charged to properly represent.
Richard Owen and Margaret Bolster, CCSA Executive

The judge found that the following imputation arose:
That with respect to the right of freedom of speech upon the Bridge issue Tom and Wendy Chapman are oppressing the ordinary citizens of Goolwa.
The judge considered that the imputation would tend to lower Mr and Mrs Chapman in the estimation of right thinking members of the community generally and if false would discredit their reputations.
With respect to the defence of justification the judge observed:
With respect to the imputation of oppression of ordinary people which is raised by Publication No 7 the defendants again plead truth insofar as the words complained of meant that the plaintiffs had caused people to be intimidated by legal proceedings or the threat of legal proceedings. In my view it is an embarrassment to introduce a plea which requires the Court to determine whether ‘oppression’ mentioned in the publication is synonymous with the ‘intimidation and threat of legal proceedings’ mentioned in the defence. If the defendants consider that the imputation alleged by the plaintiffs is true then the proper course is to plead directly to the statement of claim and not to some modification thereof, which the defendants may consider to be more advantageous to their case. Again, the defendants avoid joining issue with the plaintiffs and their false plea should be treated as having no force.
However the judge considered that as with publication 6 the defence of justification had been canvassed under the rubric of reasonableness because it was suggested that a Lange defence arose.
The judge concluded that publication 7 had a tendency to excite the adverse opinion or feeling of right thinking members of the community against Mr and Mrs Chapman.
The judge took the view that publication 7 did not attract common law qualified privilege. He considered that the extended Lange defence was potentially available but had not been established. Again the judge expressed the bare conclusion that the conduct of the relevant defendants was not reasonable and that the article was motivated by malice.
The judge appeared to give no consideration to the pleaded defence of fair comment.
Publication 11
Environment SA July/Sept 1995
Hindmarsh Island
Not-so-secret political business
Publication 11 was in the following terms:
First the bridge and now the commission to nowhere …all funded by SA taxpayers.
Despite increasing opposition the SA Government persists with a Royal Commission which it claims will decide the truth about the spiritual significance of Kumarangk (Hindmarsh Is) to Aboriginal women. Due to appalling reporting in commercial press many people in the community remain confused about the issues and believe the commission should continue as it will reveal the ‘truth’. Unfortunately Terms of Reference for the commission prevent it from investigating any of the issues which could reveal the political reasons for this assault on Aboriginal cultural beliefs. It is worth re-examining some of the history of this saga to identify who is currently benefiting and why the Commission should be abandoned immediately.
The Hindmarsh Island bridge should never have been an issue at all. There was and continues to be widespread local community opposition to building a bridge to Hindmarsh Island. This was ignored. The bridge was proposed by the State government as an adjunct to the terms of planning approval for Binalong developers Tom and Wendy Chapman to proceed with a marina and housing development on the island.
Despite widespread community and environmental concerns the Government decided to fund the building of the bridge to cost SA taxpayers $6.4m when the developers said they were unable to do so. It should be remembered that this bridge was believed to benefit a small number of Hindmarsh Is landowners. The bridge, objectively speaking, was never in the best interest of the SA community. At Berri a bridge was desperately needed to support crucial SA primary industries.
Consultation with the relevant Aboriginal groups throughout the planning process was token. Wendy Chapman has admitted in Federal Court that Binalong never consulted directly with any of the organizations listed as a condition for building the bridge.
In opposition the Liberals repeatedly indicated that they would stop the Hindmarsh Is Bridge. Once in Government they commissioned the Jacobs Inquiry which examined the financial and contractual obligations in relation to the bridge. The findings are undisclosed and the report exempt under Freedom of Information. Pre-election promises were rescinded and the bridge given the go-ahead in May 1994. Michael Armitage, State Minister for Aboriginal Affairs, authorised the Dept of Road Transport to do as much damage to Aboriginal sites as necessary for construction of the bridge. At the request of the Ngarrindjeri people and after investigation by constitutional lawyer Cheryl Saunders, Federal Minister Tickner declared a ban of the bridge for 25 years. The decision to stop the bridge was on the basis of all materials submitted to Saunders. The secret women’s business was just one part of the significance of the area to Ngarrindjeri people.
Attention returned to the Hindmarsh Is bridge in March 1995 with Ian McLachlan resigning, after admitting he had misrepresented events to the Australian public. McLachlan had authorised the photocopying of materials he had received which were meant for Tickner’s office. This included a male staff member copying the contents of an envelope marked ‘Confidential Appendices 2 & 3. To be read by women only.’ He had claimed that the envelope containing the secret knowledge was neither sealed nor marked confidential.
In May 1995, Liberal Party campaigner Sue Lawrie organised a meeting of the Aboriginal women who now claim the Kumarangk women’s business was fabricated (known now as the dissident women). In evidence at the Commission most of these women have revealed that they know little or none of their Ngarrindjeri language, traditional stories and mythology. Why should it be surprising that they have also not heard about the women’s business? This exploitation of divisions within Aboriginal communities for political purposes can only be viewed with sadness and abhorrence.
Based solely on frenzied media reports which ensued from the dissident women’s claims, the SA Government demanded that Tickner resign and an investigation be undertaken. Before the announcement of the Federal inquiry, Premier Brown had established the Royal Commission to determine ‘whether the ‘women’s business’, was a fabrication’. Contrary to endless media reports Tickner did not stop the building of the bridge solely on the basis of the women’s business and the contents of the secret envelopes. The basis of the Royal Commission is thus fundamentally flawed and its real purpose comes into question. In some respects the Royal Commission seems to be just another attempt to discredit Aboriginal beliefs as apart of a post-Mabo backlash. It also appears to be part of a campaign to discredit Federal Minister for Aboriginal Affairs, Robert Tickner, and to allow the reinstatement of Ian McLachlan on the Liberal frontbench in the approach to the Federal election. The women who hold strong beliefs in relation to Kumarangk have rightly said that they will not be a part of this inquisition into their beliefs. So how can an adequate outcome ever be reached by this Commission?
Kumarank Coalition
The next issue of ESA (to be distributed in January 1996) will feature an article by Paul Leadbeter (ELCAS (SA) Inc and Director Australian Centre for Environmental Law, the University of Adelaide), entitled Citizen Enforcement of the Development Act and the Environment Protection Act. In this Paul reminds us that ‘Where there is an apparent breach of the provisions of the Development Act (DA) individuals and community groups are often frustrated by the failure of the relevant authorities to take any action under the legislation regarding that breach. They should not forget that s85 of the DA provides that any person may apply to the Environment Resources and Development Court for an order to remedy or restrain a breach of the DA. Obviously, it is preferable that enforcement action be initiated by the relevant authority…However it is useful to know that if the authority will not initiate proceedings, there is the option to do it yourself.’ Ed
The judge concluded that publication 11 carried the following imputation:
That during the planning process for the bridge the developers (Tom and Wendy Chapman) consulted with the aboriginal people in a less than meaningful way and with respect to the bridge building they failed to consult aboriginals when they had an obligation to do so.
The judge concluded that publication 11 attributed to Mr and Mrs Chapman at least a cavalier attitude in the discharge of their “professional” responsibilities. The judge considered that publication 11 would tend to lower Mr and Mrs Chapman in the estimation of right thinking members of society generally and that if false would discredit their reputations.
On the asserted defence of justification the judge observed:
As regards Publication No 11 the defendants plead truth in respect of an imputation that the plaintiffs failed to properly consult with Aboriginal people during the planning process; however the defendants do not limit their assertion to the planning process for the bridge. To the extent that this plea deals squarely with one of the defamatory imputations which I have found to arise, it may be arguable that there is upon the pleadings an issue of fact to be determined as to whether or not during the planning process for the bridge the plaintiffs’ consultations with the Aboriginal people were less than meaningful. It is to be noted that in this plea (referred to by counsel as a Polly Peck Plea) the defendants do not assert that Wendy Chapman made an admission in the Federal Court as alleged in the statement of claim nor do they plead that any breach of condition attaching to the building of the bridge was committed by Tom or Wendy Chapman.
Again the judge considered that the defendants had been able to put their case in regard to the defence of justification under the rubric of reasonableness when addressing the Lange defence. The judge concluded:
It seems to me that the article carries with it the imputation that when working through the consultative steps leading to planning consent for the bridge the Chapmans had undertaken aspects of the task as regards Aboriginal interests in a perfunctory manner. The article also carries the imputation that there was some legal obligation attaching to the building of the bridge in respect of which the developer had not satisfied a requirement to consult and had admitted to this.
The judge took the view that qualified privilege at common law did not arise but that the protection of the extended defence of qualified privilege could be raised. He concluded that the conduct of the Conservation Council and Ms Bolster was not reasonable. He did not consider that reasonable grounds for belief in the truth of the imputation existed. He did not accept that any proper step had been taken to verify the accuracy of the information. The judge considered that the purpose of the publication was to “lambast” Mr and Mrs Chapman. The publication was not made for the purpose of communicating government or political information. He further considered that Ms Bolster was at least recklessly indifferent as to whether the material was truthful or accurate. He found the publication was actuated by malice and that accordingly the extended defence of qualified privilege failed.
Issues on Appeal
Defamatory Imputation
A statement is defamatory of a person of whom it is published if it tends to lower that person in the estimation of right thinking members of society generally. [3]
[3] Reader’s Digest Services Pty Ltd v Lamb (1981) 150 CLR 500 at 505-6
Counsel for the defendants submitted that a consideration of whether publications 6, 7 and 11 formed part of the public debate on government and political matters was important when determining whether the publications contained defamatory imputations. It was contended that when publications concern government or political matters a more robust view of the language used would be taken by reasonable members of the community. What might be defamatory in a non government and non political context may amount to no more than “rhetorical hyperbole” or a “vigorous epithet” in the context of discussions about government or political matters. Counsel submitted that this approach was supported by the decisions in Lange and Roberts v Bass[4].
[4] (2002) 194 ALR 161
In Milkovich v Lorain Journal Co the United States Supreme Court reaffirmed as a matter of constitutional principle what was said to have been generally understood at common law, namely that rhetorical hyperbole, the vigorous epithet and loose figurative language were types of speech protected from libel in discussions of government or political matters. The view was taken that such expressions could not reasonably be interpreted as assertions of fact. It was said that protection of such expressions provided an assurance that public debate would not suffer for the lack of an imaginative expression which had traditionally been associated with public discourse. The Court observed that “name calling” is readily recognisable. It is not susceptible to a determination of truth or falsity. When used, such expressions negated the impression that a publisher was seriously maintaining a statement of fact. Such expressions were protected either because the names were mere epithets or because such expressions constituted nothing more than strongly worded views that were not true or false. Characterising such expressions as opinion not demonstrably false in the words of the United States Supreme Court provides an alternative constitutional buttress to the common law proposition that epithets and vituperation are not actionable.
It is inevitable that during the course of public debate about government or political matters, name calling and strong epithets will be commonplace. Right thinking members of the community would understand this to be so. Their estimation of a person will not be lowered by such publications. The Australian community appears to take a robust attitude towards discussion of government or political matters.
As earlier observed publications 6, 7 and 11 were made against the background of extensive and ongoing public debate about government and political matters. As was observed in Lange the Australian community has an interest in the dissemination and receipt of information, opinions and arguments on these issues.
Publication 6
Earlier in these reasons the full text of Publication 6 has been set out[6]. Instituting proceedings to stop the publication and dissemination of material is not uncommon. In the present case earlier reference has been made to section 45D Trade Practices Act proceedings issued by the Chapmans. These proceedings, the terms of the injunctions obtained and the follow up letters demonstrate that the Chapmans were seeking to stop or at the very least restrict public statements being made by the appellants and others about the bridge project. The letters included the assertions:
[6] at [85]
Sir, it remains to be said that you must be aware, as the carefully couched terms of your media interview make clear, of the perilous nature of your conduct, and the large claim to which you have now exposed yourself.
Our clients have a multi million dollar development, and you are attempting to seriously prejudice it by your improper conduct. Any damages awarded to our clients because of your conduct would necessarily be a very large sum.
May we suggest that you carefully reflect on those facts, and that you ensure that your future conduct is strictly within the rules.
A further letter advised:
We are instructed that our clients have identified you as a person who had been involved in attempts to stop bridge work.
On our instructions:
1.Your past actions give Binalong a claim against you for interference in contractual relations, inducing breach of contract, and unlawful interference with trade.
2.By your conduct, and the conduct of others similarly involved, you have already caused Binalong enormous losses.
The delays in the construction of the bridge have cost Binalong millions of dollars. This principally comprises extra finance costs and lost sales revenue.
3.If the bridge is not built, Binalong will suffer further loss, namely –
* the loss of $32m being the current projected profit to be earnt on future development of Binalong’s marina and
* a loss, probably exceeding $15m, in the finance costs incurred by Binalong but not recouped.
4.This conduct of yourself and others has also resulted in Binalong being put into receivership. This may result in the development being sold at a ‘fire sale’ price.
You will appreciate that, if this occurs, Binalong will have claims of the magnitude referred to above even if the bridge is built.
We will be in further contact with you regarding the matters raised in this letter.
In the meantime, our clients reserve all their rights.
Community members who received notice of their potential involvement with court orders, future court proceedings and threatening letters were likely to be fearful of consequences that might follow if court action was successful. Intimidation and fear are closely linked.
Given the ongoing public debate publication 6 did not carry any defamatory imputation. Vigorous language was used but no more than that. Right thinking members of the community would not have had their opinions of Mr and Mrs Chapman lessened by the publication. Right thinking members of the community would have considered that the Chapmans through Binalong had utilised legal process to advance their commercial interest in the bridge project. The Chapmans were entitled to pursue orders restraining the activities of protestors who were by words and conduct preventing the bridge construction. Right thinking members of the community would recognise that Binalong would understandably be seeking to stop discussion and debate that had the potential to, or did, undermine or adversely effect the progress of the bridge project. Right thinking members of the community would not draw the conclusion that the Chapmans were misusing legal proceedings, acting with an improper purpose or engaging in an abuse of process.
Publication 7
Earlier in these reasons the full text of publication 7 has been set out.[7] The judge concluded that a defamatory imputation arose. The Chapmans were oppressing the ordinary citizens of Goolwa. The word “oppression” was not used in publication 7. The publication used the phrases “intimidation by use of legal proceedings” and “that the ordinary residents of Goolwa had suffered greatly under the boot of Binalong.”
[7] at [92]
Publication 7 should be understood to have been made in the context of the earlier summarised ongoing public debate. By November and December 1994 right thinking members of the community were well aware that a major public debate had and continued to rage about the construction of the bridge. The protagonists for and against the bridge had been openly identified. The battle lines had been drawn.
The opponents to the bridge construction project were taking steps to stop the bridge project. Governments at all levels were being lobbied. Attention was directed towards the joint venturers, Local and State government, the Federal government, the financiers and “the developers”. The objectors had a measure of success. The Federal minister became involved. Federal inquiries and activities were counter balanced by State inquiries and activities. Right thinking members of the community would have understood that vigorous debate would occur. In this context publication 7 was not defamatory. In the context of the ongoing public debate the reference to the “boot of Binalong” was a vigorous and colourful epithet but no more. The reference to “intimidation” was an emotive description of the effect of the litigation. In so far as an imputation of oppression arose it was not defamatory.
Publication 11

As to the third major submission of the appellants, I do not propose to discuss each finding of fact of which they complain. I say that because for the two reasons I have already identified, the finding of malice against Mr Owen cannot stand. At the same time, I do not think the position involving Mr Owen (unlike Professor Shearman and Ms Bolster) is so clear that this Court would be justified, bearing in mind the importance of his state of mind and the advantages a trial Judge has in seeing and hearing a witness, in substituting a finding that he was not actuated by an improper motive. There was a substantial case against Mr Owen which was within the pleadings. Had the issue of malice been decisive in relation to Mr Owen, I would have made an order for a retrial.
I will deal with the finding of malice against Ms Bolster in the context of Publication No 11.
Conclusion
In conclusion in relation to Publication No 7, the appellants have not made out the extended defence or the defence of fair comment on a matter of public interest and their challenge to the orders of the Judge in relation to that publication must be rejected.
Publication No 11
Imputations, Defamatory Meaning and Justification
The words alleged to be defamatory and the imputations found by the Judge are set out above.
The respondents pleaded (relevantly) that the imputations which arose from the words were that they failed to consult meaningfully the Aboriginal people during the planning process for the bridge and that they admitted that they failed to consult the Aboriginal people when they had an obligation to do so in connection with the construction of the bridge.
The appellants denied that the imputations alleged by the respondents arose from the words and pleaded that insofar as an imputation arose that the respondents had failed to consult properly the Aboriginal people during the planning process, that imputation was justified.
Although the imputations found by the Judge are related, it is convenient at this point to consider them separately. I will call the imputation that during the planning process for the bridge the respondents consulted with the Aboriginal people in a less than meaningful way, the first imputation and the imputation that with respect to bridge building the respondents failed to consult Aboriginals when they had an obligation to do so, the second imputation. It is apparent from his reasons that the Judge considered that the first imputation related to the period before the planning consent was granted in April 1990 and the second imputation related to the period thereafter.
During final addresses at trial the appellants sought to amend their defence to plead justification in relation to the first imputation. To support the application the appellants’ counsel referred to a decision handed down by the Federal Court shortly prior to the application, Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62. In that case, one of the matters von Doussa J was dealing with was an allegation that throughout the planning process both the State and Binalong dealt with Aboriginal heritage issues in an orderly and comprehensive manner during which appropriate consultation with Aboriginal organisations occurred. The Judge made a finding to the following effect:
“… I do not think that Binalong could have been under any misapprehension that the planning conditions required meaningful and serious consultation between them and representatives of the four organisations identified in the planning conditions, to occur after the grant of planning approval. No such consultation ever occurred.”
The appellants submitted that the respondents were bound by that finding. The Judge rejected that submission. He rejected the appellants’ application to amend. The appellants submitted that the Judge erred. For reasons I will give, it is unnecessary for me to consider the challenge to the Judge’s decision.
The starting point is the appellants’ challenge to the first imputation found by the Judge. The appellants submitted that the Judge’s approach was “unduly and unnecessarily specific”. The appellants submitted that the imputation which arose was that the respondents failed to consult properly with Aboriginal people during the planning processes.
The question of what imputation arises depends on the words used and the context in which those words appear. The question is to be judged from the standpoint of an ordinary reasonable reader. This Court is in as good a position as the Judge to determine what imputation arose. I disagree with the Judge that the first sentence in the relevant paragraph relates to one period of time (ie., before April 1990) and the second sentence relates to another period of time (ie., after April 1990). In my opinion, the first sentence contains a general assertion and the second sentence provides an example in support of the assertion. The general assertion relates to the whole of the period from 1989 to the date construction of the bridge first began on 27 October 1993 and probably thereafter, until the date of Publication No 11. On balance, I think the general assertion relates to the planning processes for the development proposal as a whole and not just the bridge. In my opinion, the Judge erred in his formulation of the first imputation. In my opinion, the first imputation relates to the planning process for the development proposal and relates to the period both before and after the consent was granted in April 1990. That is how an ordinary reasonable reader would understand the words.
The appellants did not challenge the second imputation found by the Judge.
The appellants submitted that an imputation that a developer had not consulted Aboriginal people was not defamatory. It was said that whilst one section of the community might see it as defamatory to say that a developer did not consult adequately with Aboriginal people, another section would not see such a criticism as going so far as to damage reputation. The appellants referred to the following passage from the reasons for judgment of Brennan J in Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 (at 507):
“The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes. But if the imputation is defamatory according to the standards of the community generally, a particular impact of the defamatory imputation may be proved.”
The Judge said that he considered that society would condemn a real estate developer who was said to have consulted Aboriginal people in a less than meaningful way and that such conduct would reflect to the discredit of the person concerned. I agree with the Judge’s conclusion. The Judge’s comment applies with even greater force to the second imputation which alleges a failure to comply with an obligation to consult.
The appellants submitted that the imputation that the respondents failed to consult meaningfully the Aboriginal people during the planning processes was justified. In view of my conclusion as to the first imputation, I think the appellants’ pleadings were sufficient to raise justification in relation to that imputation. In those circumstances, it is unnecessary to consider the appellants’ challenge to the Judge’s decision on their application to amend. The Judge made certain findings of fact in relation to the consultation which took place before the consent was granted. He found that Mr Lucas consulted Aboriginal people during the course of preparing his anthropological report, although it is also clear that Mr Lucas recommended that further consultation take place. Ms Edmonds consulted Aboriginal people during the course of her archaeological survey. Mr Chapman met with Mr and Mrs Rankine in the winter of 1989 and Mrs Chapman and Binalong’s consultant, Ms Nadia McLaren, met Mr and Mrs Rankine later that year. Mr Rankine is an elder of the Ngarrindjeri Tendi. It is not clear to what extent (if at all) the construction of the bridge was discussed, although the resolution of that issue is not critical for present purposes. There was an informal meeting between Mr and Mrs Chapman and certain Aboriginal persons in November 1993 which resulted from the discovery of artefacts, although I doubt whether this meeting could be described as consultation. There was never any formal consultation with any of the four Aboriginal groups referred to in the planning consent.
I think the substance or “sting” of the first imputation (as found by me) was justified. It is necessary to look at the consultation which took place between 1989 and October 1993 and, as I have said, probably thereafter until the date of Publication No 11 in July – September 1995. There was no consultation after the consent and authorisation were granted in April 1990. Mr Chapman had a meeting with one Aboriginal elder (Mr Rankine) in mid 1989 and Mrs Chapman had one meeting with the same person later in 1989. The anthropologist, Mr Lucas met with prominent Aboriginal people during the course of preparing his report in early 1990, but he recommended that consultation with the four Aboriginal groups he identified should take place. His recommendations were adopted by the relevant authorities and became conditions of the consent and authorisation. The archaeologist, Ms Edmonds, consulted with Aboriginal people in the course of her survey, but that occurred before the granting of the consent and authorisation. As I have said there was no consultation with the Aboriginal people after April 1990. The Judge restricted his consideration to the period before April 1990. Looking at that period and the period after April 1990, I think the substance of the first imputation as found by me that the respondents failed to consult meaningfully the Aboriginal people during the planning processes was justified.
The appellants submitted that the second imputation (as found by the Judge) was justified. I doubt whether the appellants have clearly pleaded justification in relation to the second imputation. However, it is unnecessary for me to consider that issue because I have reached the conclusion that the second imputation was not justified. It is true that the construction of the bridge was an integral part of the marina extension and waterfront development and that there was a condition requiring consultation before that development proceeded at least beyond Stage 1. It is also true that the authorisation for the development under the Aboriginal Heritage Act was subject to a condition which required consultation. It is also true that the Judge expressed the second imputation in rather general terms – “with respect to the bridge building”. However, the fact is that there was no condition requiring consultation attached to the consent for the construction of the bridge.
In view of these conclusions, it is necessary to consider whether the appellants have made good a defence in relation to the second imputation. The appellants submitted that they had established the extended defence or the defence of traditional qualified privilege. The Judge referred to fair comment on a matter of public interest in the context of Publication No 11 but as I have said that defence was neither pleaded nor raised by the appellants on appeal. Plainly, the relevant statements are statements of fact.
The Extended Defence
The Judge accepted that Publication No 11 involved a communication on a government or political matter because a discussion as to the operation of the State planning laws is properly characterised as such a matter. As I have said, the respondents did not challenge that conclusion on appeal. I would make the observation that the Judge’s decision on this point can probably be justified on a broader basis. The main topic dealt with in the publication is the justification for the establishment of a Royal Commission to examine the veracity of claims made by certain Aboriginal women. That is a communication on a government or political matter. I think whether there has been any consultation with Aboriginal people in the past is sufficiently linked with that matter to be characterised as part of that topic.
The Judge found that the appellants failed to establish the second requirement, namely, that the conduct in making the publication was reasonable. The Judge identified the conduct of the CCSA and Ms Bolster as relevant. The Judge found that no one responsible for Publication No 11 had reasonable grounds for believing the imputation to be true nor was any proper step taken to verify the accuracy of the information. The Judge found that Ms Bolster was at least recklessly indifferent as to whether the material was truthful and accurate.
In Lange the High Court identified matters relevant to the question of whether conduct is reasonable. The Court said (at 574):
“Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.”
I agree with the appellants’ submission that it may not be necessary in a particular case to show all of the matters identified in the above passage. This case is such an example because I do not think it was necessary in this case to show that the respondents were given an opportunity by the appellants to comment on the assertions. The evidence shows that the respondents were making ample use of the media to counter the arguments put by those opposed to the construction of the bridge. However, whether the person responsible for the publication has reasonable grounds to believe that the statements are true, and has taken steps to verify the information, are important matters.
As to those matters, the appellants referred to the material Ms Bolster relied on for the purpose of making the relevant statements in Publication No 11. The material relevant to the second imputation was the evidence Mrs Chapman gave in the Federal Court in December 1994. I have read that evidence carefully. I think there are reasonable grounds to believe that there was a failure to consult Aboriginals. Mrs Chapman admitted that there had been no consultation in the terms in fact envisaged by the consent and authorisation. I think there are reasonable grounds to believe that there was an obligation to consult in the course of carrying out the development proposal. It is true that it is not clear whether the obligation attached to the construction of the bridge or to the other aspects of the development proposal but the question is not whether the second imputation is true but whether there were reasonable grounds to believe the imputation was true. I think that there were such grounds. I do not think Ms Bolster can be criticised for not taking further steps to verify the information. It was reasonable for her to rely on the evidence Mrs Chapman gave in the Federal Court. The Judge did not find that Ms Bolster knew the relevant statements in Publication No 11 were untrue. In my opinion, the Judge erred in finding that the conduct in making Publication No 11 was not reasonable.
The Judge found that Ms Bolster was actuated by malice in relation to Publication No 11. I start with one observation about the proper approach to the issue of malice in the case of a communication on a government or political matter. I do not think what the High Court said in Roberts v Bass about targeting a candidate for election can be applied to the respondents. In other words, I proceed on the basis that if the evidence supports a finding that Ms Bolster’s dominant motive was to injure or damage the respondents then that is sufficient to constitute malice.
In considering the challenge to that finding, I start with the terms of the publication itself. The publication is a discussion of various issues surrounding the establishment of the Royal Commission and in the course of that discussion some of the history is recounted. The thrust of the publication is not an attack on the respondents. The language used in the publication is forceful in putting a point of view, but is not extravagant. The issues dealt with were in the public arena and of considerable public interest, and, as I have previously said, the respondents were making ample use of the media to put their point of view. Turning to the particular words, they are not extravagant, and I would not construe the words as asserting that Mrs Chapman had admitted that Binalong, knowing that there was a condition for building the bridge which required consultation, had failed to comply with the condition. I would construe the words as asserting that she had admitted to a failure to consult and a statement that there was a condition for building the bridge which required consultation. That was the way the Judge appears to have construed the words bearing in mind that the imputation which he found arose from the words was:
“… with respect to the bridge building they failed to consult Aboriginals when they had an obligation to do so.”
If one then looks at the position in fact, there was no consultation after the consent and authorisation were granted. There was a condition requiring consultation attached to the consent and authorisation for the marina extensions and waterfront development. The construction of the bridge was an integral part of the development proposal, although a condition requiring consultation was not attached to the consent for the construction of the bridge. It may be doubtful whether many members of the community, absent special knowledge or advice, would appreciate the difference between the imputation found by the Judge and the position in fact.
Ms Bolster relied on the evidence of Mrs Chapman in the Federal Court in making the statement which she did. It cannot be said that that was an unreliable source or one suggestive of the need for further inquiries. Mrs Chapman did admit to a lack of consultation. It seemed to be assumed that there was an obligation to consult, although it is not clear how that obligation arose. Absent any suggestion that Ms Bolster knew the statement was untrue, I see no basis for concluding that she did not have reasonable grounds for believing and did believe it was true.
To this point in the analysis I do not think there is any basis for thinking that Ms Bolster was actuated by malice.
The Judge relied, as he was entitled to, on extrinsic evidence. I have outlined the matters he relied on. The fact that the Judge found her evidence on a number of points unsatisfactory and that this Court would be slow to interfere with that finding may be accepted but as I have said earlier, absent admissions, that does not prove malice. Her evidence about what she knew about the Kumarangk Coalition was found to be unsatisfactory. However, there was no evidence that she was intimately involved in the affairs of the Kumarangk Coalition. She said that she attended one meeting of the Coalition for about half an hour. Furthermore, involvement in the activities of the Kumarangk Coalition, whatever one might think about the use of such a mechanism, does not necessarily prove an intention to injure or damage the respondents. It may indicate no more than a desire to continue opposition without being involved in legal proceedings. Ms Bolster may have played a part in certain aspects of Mr Owen’s campaign but even on the findings made by the Judge, her motives cannot be equated with those of Mr Owen.

I have reached the conclusion, having regard to the above matters and the important background facts I identified in the course of my discussion in relation to Publication No 6, that the finding that Ms Bolster was actuated by malice in publishing the defamatory words in Publication No 11 cannot stand. Even if the evidence supports a finding that she was aware that as part of the campaign criticisms were being made of Mr and Mrs Chapman and that from time to time she joined in those criticisms, the evidence falls well short of establishing that her dominant motive in publishing the defamatory words in Publication No 11 was to injure or damage the respondents. Assuming for present purposes that they were improper, Mr Owen’s motives for conducting a campaign of opposition to the bridge cannot be attributed to Ms Bolster simply because she participated in aspects of the campaign. In my opinion, the respondents failed to establish malice in relation to Publication No 11. The appellants made out the extended defence in relation to Publication No 11.
Traditional Qualified Privilege
The Judge rejected the appellants’ submission that Publication No 11 was made on an occasion of traditional qualified privilege on the ground that there could be no privilege attaching to a publication to such a wide readership. With respect to the Judge, I think the issue needs to be analysed in more detail.
The Judge found that Environment SA was circulated among member organisations of the CCSA and the conservation movement more generally. He referred to a statement in the July – September issue of the magazine in 1995 (in which Publication No 11 appears) to the effect that the magazine’s circulation is 6000 and the unaudited readership of 100,000 includes educational institutions, libraries, Government departments and member groups.
Traditional qualified privilege does not ordinarily arise in the case of material distributed to a wide audience. This is because a wide audience is unlikely to have the corresponding interest (or duty) or common interest sufficient to give rise to the privilege. In Lange the Court said (omitting footnotes) (at 572):
“At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication. But, apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication – more often than not occasions of publication to a single person – the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation.”
However, there will be occasions when a large audience will have a sufficient interest to give rise to the privilege (see, for example, Adam v Ward [1917] AC 309). The appellants submitted that this was such a case because the CCSA had a duty to convey information which was relevant to the protection of the environment, including the planning process undertaken in the case of a particular development, and its members and those persons generally in support of the conservation movement had an interest in receiving such information.
In Bowin Designs Pty Ltd & Anor v Australian Consumers Association (Federal Court of Australia, Lindgren J, 6 December 1996 unreported), Lindgren J held that an article published in “Choice” magazine by the Australian Consumers Association that criticised the safety aspects of a portable gas heater manufactured and owned by the applicants was protected by traditional qualified privilege. The magazine was sent by mail to 140,403 subscribers plus approximately 150 persons and bodies on a “free” list such as libraries, and consumer organisations. There were a number of features of the case which were important to the Judge’s decision. The heaters posed a substantial danger and the Association knew that no one else had taken steps to warn owners of suspect heaters, or was proposing to do so, and knew that the identity and addresses of the owner of the heaters were unknown so that the only effective means of communication with them was by means of a general and widely publicised warning. Lindgren J referred to the authorities to the effect that, generally speaking, the public media do not have the benefit of the defence of qualified privilege at common law. He said:
“They did not contemplate publications which, although widely available, are on their face, directed to a particular interest. But more importantly, they do not contemplate publications of warnings against a danger of interest or death.”
Although these particular features are not present in this case, that does not mean that a sufficient duty and interest may not arise between the CCSA and its members. However, as the passage from Lange which I have cited makes clear, publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. It seems to me that is the difficulty for the appellants in this case because on the evidence the extent of publication is not at all clear. There is evidence from Ms Bolster that the magazine was distributed to groups who were in fact established to promote development (eg., the Mineral Foundation). I am not satisfied the appellants have established a relevant duty and interest between the CCSA and those to whom the magazine was distributed, and in those circumstances I would reject the submission that Publication No 11 was published on an occasion of traditional qualified privilege.
Conclusion
In conclusion in relation to Publication No 11, the first imputation (as found by me) was justified and the second imputation (as found by the Judge) was protected by the extended defence and the respondents did not establish malice. The award of damages and the orders of the Judge in relation to Publication No 11 must be set aside. In the circumstances, it is unnecessary to consider the appellants’ submission that the award of damages in relation to Publication No 11 were manifestly excessive.
Conclusion
I would allow the appeal and I would set aside the orders made by the Judge. I would order that there be substituted a judgment for the first and second plaintiffs in the sum of $25,000 each against the first, second and fourth defendants and order that otherwise the claims made by the plaintiffs against the defendants be dismissed. I would hear the parties on the costs of the trial and of the appeal.

[5] (1990) 497 U.S. 1, see also Greenbelt Cooperative Publishing Association Inc v Bresler (1970) 398 US 6

[2003] SASC 398

9 December 2003