DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
DEFAMATION - DAMAGES - GENERAL DAMAGES - REVIEW OF ASSESSMENT
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE - GENERALLY
DEFAMATION - JUSTIFICATION - TRUTH
DEFAMATION - FAIR COMMENT - IN GENERAL
DEFAMATION - OTHER DEFENCES
The appellant (the defendant) appeals against the finding that he published a number of statements defamatory of the respondent (the plaintiff). Broadly, these statements concerned the plaintiff’s application for a liquor licence for the Two Wells RSL, his military service record and his fitness to serve as a member of the RSL State Board and as the Mayor of a suburban council. At trial, the plaintiff was awarded damages of $50,000, including $15,000 for aggravated damages, in addition to interest and costs on an indemnity basis.
The plaintiff is a veteran of the Australian Army where he served for 13 years, including as a catering Sergeant in Vietnam during 1969 and 1970. After leaving full time service, he continued with the Army Reserve for another 13 years. The plaintiff joined the RSL. He has served as the President of the Two Wells RSL since 2006 and between 2016 and 2019, he served as the Mayor of the Adelaide Plains Council.
The defendant is a veteran of the Australian Army. He was a member of the Two Wells RSL between 2011 and 2015. On 26 October 2017, he lodged a Notice of Objection with the Consumer and Business Service in response to a liquor licence application made by the plaintiff. In answer to a request made by the CBS, the defendant sent an email which the Magistrate found conveyed imputations defamatory of the plaintiff (the CBS Email). On 4 December 2017, he left four comments on a Facebook post which the Magistrate also found conveyed imputations defamatory of the plaintiff (the Facebook posts). Finally, on 26 February 2018, the defendant sent an unsolicited email to councillors of the Adelaide Plains Council which the Magistrate found also conveyed imputations defamatory of the plaintiff (the Council Email).
The defendant appealed, contending that the findings of defamatory imputations made by the Magistrate were not made by reference to the pleaded imputations and were therefore “impermissible imputations” and further, that the Magistrate erred in rejecting the defences of justification, fair comment and qualified privilege. The defendant also contested the Magistrate’s finding of malice where that issue was not pleaded in a reply. The defendant contended that the award of general and aggravated damages was excessive.
Held per Livesey J, dismissing the appeal:
1.The rules of procedural fairness in the conduct of litigation dictate that parties are not only bound by their pleadings, but also by their conduct at the trial. Parties who depart, or permit departure, from the pleadings at trial cannot…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cook v Flaherty [2021] SASC 73
Case
[2021] SASC 73
Decision Date
CaseChat Overview and Summary
In Cook v Flaherty, the plaintiff, who had served as the Mayor of the Adelaide Plains Council, brought an action for defamation against the defendant. The case revolved around defamatory publications made by the defendant regarding the plaintiff's military service and his conduct in relation to his application to become a director of the State RSL Board. The dispute involved several key legal issues, including the interpretation of the pleadings, the application of the defences of fair comment and qualified privilege, the existence of malice, and the assessment of damages.
The court examined whether the defamatory imputations found by the Magistrate involved any departure from the case pursued at trial. It was held that even if there were some technical departures from the pleadings, they represented shades or nuances of what was pleaded and did not cause unfairness or prejudice to the defendant. The court also considered the defences of fair comment and qualified privilege, and whether they were applicable in the context of the publications made by the defendant. The court found that the defendant's publications were not fair comment, as they were based on inaccurate facts. Additionally, the defence of qualified privilege was rejected, as the content of the publications went beyond any relevant or germane connection with the objection process.
The court further addressed the issue of malice, finding that the defendant was motivated by hostility, hatred, and a desire to harm and ridicule the plaintiff. As a result, the defences of fair comment and qualified privilege were defeated. Finally, the court assessed the damages awarded by the Magistrate and concluded that the amounts awarded for general and aggravated damages did not disclose appealable error, and the award was not manifestly excessive.
In summary, the appeal was dismissed with costs, and the decision of the Magistrate was upheld. The court confirmed that the defamatory imputations were not a departure from the case pursued at trial, the defences of fair comment and qualified privilege were not applicable, and the damages awarded were not excessive.
Orders
Orders of the court
Held per Livesey J, dismissing the appeal:
1. The rules of procedural fairness in the conduct of litigation dictate that parties are not only bound by their pleadings, but also by their conduct at the trial. Parties who depart, or permit departure, from the pleadings at trial cannot later argue on appeal that the pleadings remain the exhaustive explication of the matters in issue.
2. It cannot be said that the defamatory imputations found by the Magistrate involved any departure from the case pursued at trial. Even if, strictly, they involved some technical departure from the case pleaded or pressed, they represented shades or nuances of what was pleaded and pressed at trial and cannot be said to have caused any unfairness or prejudice to the defendant.
3. Aside from damages, the issue of express malice is ordinarily pleaded in reply to defences such as fair comment and qualified privilege. However, the placement of an allegation of malice in the statement of claim, whilst technically inappropriate and wrong, does not fail to raise the issue. Whilst particulars of the case on malice were not given, the defendant took no issue with this, whether before or at trial.
4. This was not a case where the defamatory imputations concerned “general character and general tendency”. An imputation of dishonesty, even if in general terms, cannot be justified by reference to conduct which is not temporally and qualitatively proximate. In this case, imputations of dishonesty cannot be justified by evidence of alleged dishonesty occurring years before the publication, where the publication purported to address, and would reasonably have been understood as addressing, conduct at the time of the publication. In any event, dishonesty was not put to the plaintiff in cross-examination.
5. The defendant was not expressing any comment or opinion in the CBS Email and the Facebook posts, but strident assertions of fact. In any event, as those assertions were based on inaccurate facts, they were, on that account, not “fair comment”.
6. The Council Email did not contain comment or opinion on the suitability of the plaintiff to be Mayor. In any event, as it was based on the false statement that the plaintiff had “now” been “sacked” from the State RSL Board, it was not “fair comment”. The Council Email was sent after the defendant knew that the National RSL Tribunal had set aside the State RSL Tribunal’s findings and the plaintiff had received televised public apologies.
7. As for the defence of qualified privilege at common law, even if there was a reciprocal interest or duty in the sending and receipt of the CBS Email, which is doubtful, the content went well beyond any relevant or germane connection with the objection process. There was no proved relevant, reciprocal interest in connection with the Facebook posts and the Council Email.
8. The defendant did not succeed in demonstrating that his conduct in the publication of the CBS Email, the Facebook posts and the Council Email was reasonable for the purposes of qualified privilege under statute. Accordingly, the Magistrate did not err in rejecting the defence of qualified privilege, whether at common law or under statute.
9. In the case of fair comment, it was open to the Magistrate to find that the defendant was at least recklessly indifferent to the falsity of his views and the underlying facts. In the case of qualified privilege, whether at common law or under statute, the defendant was motivated by hostility, hatred and a desire to harm and ridicule the plaintiff, which explains why he made the publications. The Magistrate was correct to find express malice and that the defences of fair comment and qualified privilege were defeated.
10. The amounts awarded for general and aggravated damages do not, absent any specific error, disclose appealable error. The damages award is not manifestly excessive.
Background
Background to the litigation
The plaintiff served as the Mayor of the Adelaide Plains Council (formerly known as the Two Wells Council) between 2016 and 2019, following an earlier stint in 2008.[10][10] Plaintiff’s Trial Submissions, [1].Factual background In 2016, the plaintiff applied to become a director of the State RSL Board. As a part of his application, he was required to provide a summary of his military and community service. The plaintiff entrusted a RSL colleague to prepare this summary.[11] It was the following aspect of the summary that aroused controversy:[12]Active Service: Malaya 1967-69 8RARVietnam 1969-70: Served with 8RAR in Long Hai Mountains; Operation Hammersley; Platoon Commander role 8 Platoon, C Company: liaison appointment to US forces at Long Dien.[11] Reasons, [4].[12] Reasons, [5]. The reference to active service in Malaya was an error, the plaintiff took steps to rectify the error, and no party took issue with this at trial or on appeal. On 29 September 2016, the State RSL Tribunal convened a hearing which resulted in a finding that the plaintiff had failed to provide “appropriate or convincing evidence” of his role as Platoon Commander of the 8th Platoon in Vietnam. Consequently, the plaintiff was found guilty of conduct prejudicial to the interests of the RSL and was reprimanded and disqualified from holding his position as a director of the State RSL Board.[13] [13] Tender Book, p 94-97. Following this decision, the South Australian RSL Branch issued a media release on 26 October 2016. Relevantly, the release stated:[14][14] Tender Book, p 100-101.1. Did Mr Flaherty undertake Active Service in Malaya?The tribunal found that Mr Flaherty’s documentation should have read as ‘overseas service in Malaysia’.2.Did Mr Flaherty serve with the eight Battalion, Royal Australian Regiment (8 RAR) in the Long Hai Mountains on Operation Hammersley?The tribunal found that Mr Flaherty did serve the 8 RAR in the Long Hai Mountains on Operation Hammersley.3.Did Mr Flaherty serve at any time in Vietnam as the Platoon Commander of 8th Platoon, Charlie Company, 8RAR?The tribunal found that this claim could not be proven. Mr Flaherty did undertake a platoon commander role; however, he was unable to prove that it was specifically 8th Platoon. The plaintiff appealed to the National RSL Tribunal. In a determination dated 27 February 2017, the National RSL Tribunal set aside these findings and expressed concern about whether the plaintiff had been subjected to a “sustained campaign”:[15]While in places this material provides clarity and certainty, elsewhere it is wrong, ill‑informed, and wanders far from the complaints under examination. In other places it might be argued that Mr Flaherty was the subject of a sustained campaign. …Too much depends on the interpretation of Mr Flaherty’s CV. If the granting of an ICB[16] is accepted as valid (and the panel notes in passing that Mr Flaherty was initially trained as an Infantryman) and the issue of ‘Active Service in Malaya’ as being a lesser matter … then the whole matter revolves around:Whether Mr Flaherty served with 8 RAR on Operation Hammersley as a platoon commander or in a platoon commander role OR simply served with 8 RAR on Operation Hammersley in an unspecified role for a period not specified, and Whether Mr Flaherty ever served with C/8RAR in a platoon commander role.Tentatively the panel agrees with the conclusions of the ST, except that it remains open to the argument that Mr Flaherty, as an infantry trained AACC sergeant with C/8RAR, may have acted in the platoon sergeant role for short periods as claimed: if so, acting as the platoon commander in the absence of the officer would have been quite routine. This avenue relies on the statement by Captain Haines tendered by Mr Flaherty …[15] Tender Book, p 98-99.[16] Infantry Combat Badge.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
I disagree. In my opinion, the award is not manifestly excessive.Conclusion The appeal must be dismissed, with costs.