De Poi v Advertiser-News Weekend Publishing Company Pty Ltd

[2016] SASCFC 25

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

DE POI v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD

[2016] SASCFC 25

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)

15 March 2016

DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - AS TO CAPACITY, FITNESS, RESPECTABILITY AND THE LIKE

DEFAMATION - JUSTIFICATION - GENERALLY - WHETHER PLEA ESTABLISHED

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - ON MATTERS OF PUBLIC INTEREST - WHAT CONSTITUTES PRIVILEGED OCCASION, COMMUNICATION OR CONDUCT

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - REASONABLENESS OF PUBLICATION

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL

This is an appeal against the decision of a District Court Judge dismissing a claim for damages for defamation.

The appellant, Sandra De Poi, sued the respondent, Advertiser-News Weekend Publishing Company Pty Ltd, in relation to an article published in the Sunday Mail on 28 March 2010 regarding the appellant and the 2010 State Election.  The appellant claimed that the article imputed, inter alia, that:

-  The appellant obtained substantial financial benefit through her close Australian Labor Party connections and thereby demonstrated that she lacks integrity; and

-  There are reasonable grounds to suspect the appellant of having breached the Code of Conduct of the Australian Institute of Company Directors by having placed herself at the centre of dishonest electoral practices.

The trial Judge found that the first imputation was not defamatory and that the respondent had justified the second imputation.

Whether the first imputation was defamatory.  Whether the defendant justified the second imputation. Whether the defence of qualified privilege applied.

Held per the Court:

1.  The article is defamatory in that it would cause the ordinary reasonable reader to think less of the plaintiff. 

2.  The trial Judge considered the defence of justification in respect of the second imputation uninvited by the parties.  The Judge’s finding of justification should be set aside.

3.  The mere fact that the topic of a publication is a matter of public interest is insufficient to give rise to an occasion of common law qualified privilege in respect of a publisher with a large audience. It cannot be said that all members of the public had an interest in the imputations. The conduct of the defendant was not reasonable.  The defence of qualified privilege should be rejected.

4.  Taking into account the gravity of the imputation concerning conflict and integrity, the mass media publication of that imputation, and the likely impact the same would have to a business owner, damages in the amount of $75,000 are appropriate.

Defamation Act 2005 (SA) s 8, s 23, s 24, s 28, s 36; Supreme Court Civil Rules 2006 (SA) r 100(1), referred to.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Lewis v Daily Telegraph Ltd [1964] AC 234; Slim v Daily Telegraph Ltd [1968] 2 QB 157; Ten Group Pty Ltd v Cornes (2012) 114 SASR 46; House v The King (1936) 55 CLR 499; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Favell v Queensland Newspaper Pty Ltd (2005) 79 ALJR 1716; John Fairfax & Sons Ltd v Rivkin (2003) 77 ALJR 1657; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; Savige v News Ltd [1932] SASR 240; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Lucke v Cleary (2011) 111 SASR 134; Adam v Ward [1917] AC 309; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Triggell v Pheeney (1951) 82 CLR 497; Coyne v Citizen Finance Limited (1991) 172 CLR 211; Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, considered.

DE POI v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD
[2016] SASCFC 25

Full Court:      Gray, Sulan and Peek JJ

THE COURT.

1. This is an appeal against the decision of a District Court Judge dismissing a claim for damages for defamation.

   Introduction

2. The plaintiff and appellant, Sandra De Poi, was the subject of an article published by the defendant and respondent, the Advertiser-News Weekend Publishing Company Pty Ltd, in the Sunday Mail on 28 March 2010 bearing the headline “Bignell partner’s $10m bonanza”.  She commenced an action in the District Court on 17 March 2011 claiming damages in defamation.  On 26 February 2015, the plaintiff’s claim was dismissed and, on 4 March 2015, the plaintiff was ordered to pay the defendant’s costs on an indemnity basis.

3. The plaintiff is the sole director of and shareholder in De Poi Consulting Pty Ltd, a workplace injury management and occupational rehabilitation provider.  At the time of the State Election in March 2010, she was also a board member of the WorkCover Corporation, a member of the Australian Labor Party and the partner of Leon Bignell, the member for the State electorate of Mawson.

4. The defendant is the publisher of the Sunday Mail, which is circulated throughout South Australia.  On 28 March 2010, the Sunday Mail published the impugned article about the plaintiff in the following terms:

   Bignell partner’s $10m bonanza

   The woman at the centre of Labor’s how-to-vote dodgy documents scandal is a WorkCover director whose consultancy has received nearly $10 million in contracts from WorkCover since 2004.

   Sandra De Poi, the partner of Labor MP Leon Bignell, is also a director of the State Government’s affordable home finance lender, HomeSmart. Ms De Poi was photographed by the Sunday Mail on polling day wearing a blue T-shirt emblazoned with “Family First” and handing out what appeared to be Family First how-to-vote cards.

   However, the cards were actually Labor Party documents which directed voters to give their second preference to Mr Bignell, rather than to Liberal candidate Matthew Donovan, which Family First wanted.

   Mr Bignell has been dating Ms De Poi for three years. She has impeccable Labor Party left faction contacts, having worked as campaign manager for leadership aspirant Jay Weatherill and being involved in fundraising for faction heavyweight Patrick Conlon.

   Ms De Poi is managing director of De Poi Consultancy Services, a workplace injury management and occupational rehabilitation provider. She declined to speak to the Sunday Mail about her role in the apparent ruse.

   The how-to-vote scandal – which Premier Mike Rann has vowed to outlaw after Labor was caught out – is not the first time she has been embroiled in controversy.

   In 2008, Parliament’s Statutory Authorities Review Committee, which inquired into WorkCover Corporation, was told she had a conflict of interest as a board member whose company benefitted from WorkCover contracts.

   No formal steps were taken as a result of the inquiry.

   Construction, Forestry, Mining and Energy Union officer Les Birch told the committee hearing Ms De Poi should be removed from the WorkCover board.

   “How is it not a conflict of interest to have on the board a person who obtains around 12 per cent of all rehabilitation provider services in this state?” Mr Birch asked.

   “The reality is … that the proprietor of that organisation has a very good relationship with politicians in the Labor Party,” he said. “I suggest that that is probably one of the main reasons she gets such a huge amount of work.”

   The conflict of interest claim prompted WorkCover chairman Bruce Carter to write a letter to the Editor of The Advertiser defending Ms De Poi saying “from the outset, Ms De Poi has appropriately declared her potential conflict of interest. In accordance with usual board rules of conduct, Ms De Poi removes herself from all board deliberations and decisions where there is a conflict of interest (real or perceived) relating to her commercial interests”.

   The latest WorkCover annual report has a section dedicated to defending Ms De Poi from claims of conflict of interest. It reads: “In relation to Ms De Poi, the companies in which she has interest, De Poi Consulting Pty Ltd and Refining Skills Pty Ltd, have current contracts with WorkCoverSA for the provision of rehabilitation services as directed by WorkCoverSA’s claims agents. The value of the transactions during the year ended 30 June 2009 was $3,090,689 (2008: $2,739,941). The terms and conditions of the transactions were no more favourable than those available or which might reasonably be expected to be available, on similar transactions to non-board member related entities on an arm’s length basis.”

   The De Poi Consulting website notes Ms De Poi has more than 17 years experience in the workers' compensation area. She is a member of the Australian Rehabilitation Providers Association and the Australian Institute of Company Directors.

   The Institute is aware of Ms De Poi’s role in the how-to-vote cards but declined to comment on whether, if it received any complaint, it would take action against her under its code of conduct, which notes:

   THE member has an obligation, at all times, to comply with the spirit, as well as the letter, of the law and with the principles of this Code.

   Electoral Commissioner Kay Mousley said the tactic of seemingly impersonating other parties does not technically breach the law, however it has been widely condemned by political commentators as being outside the spirit of the law.

5. At trial the plaintiff claimed that the article was defamatory of her and, inter alia, alleged that the article imputed that:

   -She obtained substantial financial benefit through her close Labor Party connections and thereby demonstrated that she lacks integrity;

   -There are reasonable grounds to suspect her of having breached the Code of Conduct of the Australian Institute of Company Directors by having placed herself at the centre of dishonest electoral practices.

6. The defendant admitted publication but denied that the article contained any of the alleged imputations.  In the alternative, the defendant claimed that a number of defences, including qualified privilege in the reporting of government and political matters, and justification or substantial truth, applied.

   Background

7. The plaintiff is an experienced rehabilitation and return to work provider.  In March 1995, she set up her own consultancy business.  By 2010, the business employed about 70 staff, including rehabilitation consultants and clerical support.  The plaintiff is both a successful and well-known businesswoman.

8. The plaintiff was appointed to government board positions including Chair of the Adelaide Cemeteries Authority Board and as a member of the HomeStart Finance and WorkCover Boards.  She remained on the WorkCover Board until her resignation in 2013.

9. The plaintiff’s role on the WorkCover Board was the subject of some controversy in 2008.  At that time, Les Birch, a Workers Compensation Advocate with the Construction, Forestry, Mining and Energy Union, gave evidence at a hearing of a Parliamentary Inquiry into the WorkCover Corporation by the Statutory Authorities Review Committee that was critical of the plaintiff’s conduct as a director.  Mr Birch told the Committee that there was an issue with the plaintiff being on the WorkCover Board and, in particular, said:

   ... how is it not a conflict of interest to have on the board a person who obtains around 12 per cent of all rehabilitation provider services in this state?

   ...

   ... she has relationships with people in the Labor Party.  I suggest to you that that is probably one of the main reasons she gets such a huge amount of work.

10. The Committee did not find any impropriety on the part of the plaintiff or the WorkCover Board.  The Committee concluded:

    After this issue was raised with WorkCover the Corporation engaged a leading auditing company to investigate whether there was a conflict of interest.  They absolved Ms De Poi of any conflict of interest.  In October 2009, the Auditor-General acknowledged that Ms De Poi’s companies have current contracts with WorkCover.  He reported the contracts are for the provision of rehabilitation services as directed by WorkCover’s claim agents, EML.  The report went on to say the terms and conditions were “no more favourable than those available or which might be reasonably be expected to be available, on similar transactions to non-Board member related entities on an arm’s length basis”.

    [Footnotes omitted. Emphasis in original.]

11. The auditing company, PriceWaterhouseCoopers, provided a special report concerning their investigation into matters raised by the Statutory Authority Review Committee concerning the plaintiff’s conduct and, in particular, allegations that the plaintiff had a close relationship with an employee at Employer’s Mutual Ltd, WorkCover’s claim agent.  That special report concluded:

    Summary of conclusions based on the Information received and Interviews held

    Based on the interviews conducted and the information reviewed (albeit that there is limited documented information or external evidence available in relation to these matters), the following observations are made:

    ·   there is no evidence that SDP has received any financial benefit from the relationship with RM and the data extracted from IDEAS does not indicate an unusual growth or increase in market share for De Poi Consulting since the commencement of EM operations in SA (in fact, there was a clear period of market share decline for the first 12 months after EM commenced operations)

    ·   there is no evidence to show that RM has had free use of SDP’s beach house without her present

    ·   there is no evidence to suggest that SDP had any material role to play in relation to RM being recruited by EM.

12. The Annual Report of the Auditor-General for the year ended 30 June 2009, in relation to WorkCover and related parties transactions, expressed the following conclusion:

    In relation to Ms S De Poi, the companies in which she has an interest, De Poi Consulting Pty Ltd and Refining Skills Pty Ltd, have current contracts with WorkCoverSA for the provision of rehabilitation services as directed by WorkCoverSA’s claim agents.  The value of the transactions during the year ended 30 June 2009 was $3.1 million ($2.7 million). The terms and conditions of the transactions were no more favourable than those available or which might reasonably be expected to be available, on similar transactions to non-Board member related entities on an arm’s length basis.

13. On 19 July 2008, in response to an article published in The Advertiser on 16 July 2008 reporting on Mr Birch’s evidence and the Parliamentary Inquiry, the Chairman of WorkCover wrote to the editor of The Advertiser defending the plaintiff and, in particular, advising:

    From the outset, Ms De Poi has appropriately declared her potential conflict of interest. In accordance with usual board rules of conduct, Ms De Poi removes herself from all board deliberations and decisions where there is a conflict of interest (real or perceived) relating to her commercial interests

14. The plaintiff had been married to David Gray.  They divorced in 2001 but remain amicable.  She subsequently entered a relationship with Mr Bignell.  Her relationship with Mr Bignell has since ended but it continued at the time of the 2010 State Election.  Mr Gray is an active member of the Labor Party and, relevantly, was Mr Bignell’s campaign manager in the 2006 and 2010 State elections. 

15. On election day, March 2010, the plaintiff attended at the Hackham West Community Centre polling booth in the Mawson Electorate.  She was observed to be wearing a blue T-shirt that read “Put Your FAMILY FIRST” and handing out how-to-vote cards that placed the Family First candidate first and gave second preference to the Labor Party candidate, Mr Bignell.  Family First was not giving their second preference to the Labor Party in the electorate of Mawson.  The how-to-vote cards were not issued by the Family First party but rather by the Labor Party as part of a strategy to gain second preferences notwithstanding the official Family First position. 

16. The Labor Party’s strategy to obtain second preferences from Family First voters, in Mawson and other electorates, was a controversial aspect of the 2010 election.  In the week following the election it attracted considerable newspaper and other publicity.  In a number of those newspaper articles regarding the how-to-vote cards, the plaintiff was named and identified as Mr Bignell’s partner. 

17. The article the subject of these proceedings was published in the Sunday Mail on 28 March 2010, eight days after the election.  The plaintiff says that this article is different to other articles concerning the how-to-vote card controversy because it impugns her character in a number of respects.  Imputations in the article that specifically concern the how-to-vote scandal in the Mawson Electorate, that were in issue at trial, are no longer pursued on the appeal. 

    The Decision of the Trial Judge

18. In respect to the alleged imputation that the plaintiff obtained substantial financial benefits through her close Labor Party connections and thereby demonstrated that she lacked integrity, the Judge found that the suggested imputation did not arise:[1]

    I do not consider that the imputation pleaded by the plaintiff arises on the natural and ordinary meaning of the words in the article.  The imputation pleaded is convoluted and, as I have said, contains a number of elements.  Whilst the plaintiff has established that the article imputes that she, or her consultancy, received “a substantial financial benefit” and that the article further imputes that she has “close ALP connections,” the only link drawn in the article between the two matters is the reporting relating to Mr Birch. 

    The article does not, as the plaintiff contends, state as a fact that the plaintiff was in a conflict of interest.  Rather it states that the Statutory Authorities Review committee was told by Mr Birch that in his opinion she had a conflict of interest.  Whilst no doubt the plaintiff would have preferred the article to report that she was cleared of conflict of interest allegations by both the Statutory Committee and an independent audit company, I do not consider that the absence of this information gives rise to the pleaded imputation. The reporting of Mr Birch’s evidence is balanced by the fact that the article indicates that no formal steps were taken as a result of Mr Birch’s evidence to the Statutory Authorities Committee.  This is further reinforced by the references to WorkCover’s position that there was no inappropriate conduct by the plaintiff and the reporting that the Plaintiff’s business was treated no more favourably than other rehabilitation providers.  I do not, therefore, consider that the ordinary reasonable reader of average intelligence would form the view that the reason the plaintiff received the substantial financial benefit to her business was because of her close ALP connections.

    Even if I was wrong about this, I do not consider that the third element of the imputation is made out in any sense.  There is no specific assertion in the article that the plaintiff lacks integrity either in this area or in any other respect.  Indeed the only direct reference to her integrity arises in the context of Mr Carter’s defence of the plaintiff’s conduct as a WorkCover board member.  The only manner in which a conclusion that the plaintiff had demonstrated a lack of integrity could arise in my view would be through some impermissible suspicion or belief on the part of the reader. 

    In conclusion I consider the imputation pleaded to be strained and extravagant and I do not consider the imputation is conveyed on the natural and ordinary meaning of the words of the article.

    [1]    De Poi v Advertiser-News Weekend Publishing Company Pty Ltd [2015] SADC 21, [89]-[92].

1. In regard to the alleged imputation that the plaintiff breached the Code of Conduct of the Australian Institute of Company Directors by having placed herself at the centre of dishonest electoral practices, the Judge found that the suggested imputation did arise in part:[2]

   I accept for the reasons outlined above that the article conveys the imputation that the electoral practices were dishonest but I do not consider the imputation that the plaintiff took steps to “place herself at the centre of dishonest electoral practices” necessarily follows from the natural or ordinary meaning of the words of the article. 

   The article makes reference to the plaintiff’s membership of the Australian Institute of Company Directors (AICD) and then states:

   The Institute is aware of Ms De Poi’s role in the how-to-vote cards but declined to comment on whether, if it received any complaint, it would take action against her under its code of conduct, which notes:

   The member has an obligation, at all times, to comply with the spirit, as well as the letter, of the law and with the principles of this Code.

   The Electoral Commissioner is quoted as saying that “….the tactic of seemingly impersonating other parties does not technically breach the law” but the article then goes on to note that the tactic had been “widely condemned by political commentators as being outside the spirit of the law”. 

   Leaving aside my reservation about the imputation that the plaintiff “placed herself” at the centre of the strategy I consider that the ordinary reasonable reader might conclude that there were reasonable grounds to suspect the plaintiff of having breached the AICD code of conduct.  Such an imputation is defamatory. 

   [2]    De Poi v Advertiser-News Weekend Publishing Company Pty Ltd [2015] SADC 21, [105]-[108].

2. The Judge addressed the defence of justification:[3]

   [3]    De Poi v Advertiser-News Weekend Publishing Company Pty Ltd [2015] SADC 21, [110]-[111].

   It is a defence to a claim in defamation to establish that an imputation is true in substance and in fact.  The Defamation Act 2005 provides as follows:

   23—Defence of justification

   It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

   24—Defence of contextual truth

   It is a defence to the publication of defamatory matter if the defendant proves that—

   (a)     the matter carried, in addition to the defamatory imputations of which           the plaintiff complains, one or more other imputations (contextual   imputations) that are substantially true; and

   (b)     the defamatory imputations do not further harm the reputation of the            plaintiff because of the substantial truth of the contextual imputations.

   The position is similar at common law where the defendant is required to prove on the balance of probabilities that the words published in the imputation were substantially true.[4]

   [4]    Sutherland v Stopes [1925] AC 47 & Howden v Truth & Sportsman (1937) 58 CLR 416.

3. The Judge concluded that the defendant had justified the imputation that the plaintiff placed herself at the centre of dishonest electoral practices and accordingly dismissed the claim. 

4. The Judge did not address the defence of qualified privilege at all.  Subject to some brief observations, the Judge did not consider damages.

   The Appeal

5. On appeal, it was contended that the Judge erred in failing to find that the imputation that the plaintiff had obtained substantial financial benefits through her close Labor Party connections and, thereby demonstrated that she lacked integrity, was defamatory.  It was said that the imputation arose out of the ordinary meaning of the article. 

6. The plaintiff further contended that the Judge erred in concluding that the defence of justification was made out in respect of the imputation that the plaintiff breached the Code of Conduct of the Australian Institute of Company Directors by having placed herself at the centre of dishonest electoral practices.  It was pointed out that the defence of justification had not been pleaded by the defendant or otherwise advanced at trial in respect of this imputation.  It was contended that such a finding was not available on the evidence before the Judge in any event. 

7. The plaintiff submitted that this Court should make its own assessment of the damages to be awarded to the plaintiff and that appropriate orders as to costs should be made. 

8. The defendant contended that the Judge was correct to conclude that the imputation that the plaintiff obtained substantial financial benefits through her close Labor Party connections and thereby demonstrated that she lacks integrity was not conveyed.  Further it was submitted, by way of alternative contention, that the article was published on an occasion of qualified privilege.  Reliance was placed on three distinct ways in which it was said that qualified privilege arose, namely, an ordinary occasion of qualified privilege, within the extended qualified privilege defence and within the statutory defence of qualified privilege. 

9. In respect of the imputation that the plaintiff breached the Code of Conduct of the Australian Institute of Company Directors by having placed herself at the centre of dishonest electoral practices, the defendant submitted that such an imputation was not in fact conveyed by the article.  The defendant further contended that the Judge found the imputation as pleaded was only partially conveyed and, accordingly, the claim should have been dismissed.  In the alternative it was submitted that, although the defendant did not plead justification, that defence could be raised and, in that regard, the finding of the Judge upheld, without being pleaded, as no injustice or prejudice had been occasioned to the plaintiff.  In the further alternative, it was said that the defence of qualified privilege arose. 

   The Role of the Appeal Court

10. The powers and functions of a Court of Appeal were discussed by the High Court in Fox v Percy.[5]  Gleeson CJ, Gummow and Kirby JJ referred to the earlier decisions of Warren v Coombes,[6] Jones v Hyde,[7] Abalos v Australian Postal Commission[8] and Devries v Australian National Railways Commission,[9] and observed:[10]

    [5]    Fox v Percy (2003) 214 CLR 118.

    [6]    Warren v Coombes (1979) 142 CLR 531.

    [7]    Jones v Hyde (1989) 63 ALJR 349.

    [8]    Abalos v Australian Postal Commission (1990) 171 CLR 167.

    [9]    Devries v Australian National Railways Commission (1993) 177 CLR 472.

    [10]   Fox v Percy (2003) 214 CLR 118 at 126-8.

    Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:

    [I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

    As this Court there said, that approach was “not only sound in law, but beneficial in … operation”.

    After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

    The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

    Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

    [Footnotes omitted.]

11. We have approached this appeal in accordance with these principles.

    An Imputation

12. The question of whether an imputation is conveyed is a question of fact.[11]  In Slim v Daily Telegraph Ltd, Lord Diplock explained: [12]

    ... Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is “the natural and ordinary meaning” of words in an action for libel.

    ...

    But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single “right” meaning as “the natural and ordinary meaning” of the words complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words slim are capable of bearing and the choice of the one “right” meaning which they do bear disappears. ...

    [Emphasis added.]

    [11]    Lewis v Daily Telegraph Ltd [1964] AC 234, 281.

    [12]   Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173-5.

13. In Ten Group Pty Ltd v Cornes, Kourakis CJ, with whom Gray J agreed on this point, observed:[13]

    In Entienne Pty Ltd v Festival City Broadcasters Pty Ltd Olsson J (with whom Williams J concurred), after referring to Dawes and Murphy, held that the single meaning understood by the ordinary person test, articulated by Lord Diplock in Slim v Daily Telegraph Ltd, did not represent the law in South Australia. Olsson J also expressed the view that it was not the test that was applied by the House of Lords in Stubbs. In my respectful opinion, Olsson J’s latter observation is probably right but that is only because the evolution of the question from one of construction determined by the judge as judge, to a finding of fact by the jury or judge sitting alone as the tribunal of fact, had not yet been fully worked out when Stubbs, Dawes and Murphy were decided. Nonetheless, it has always been accepted that a single meaning had to be identified.

    [Footnotes omitted.]

    [13]   Ten Group Pty Ltd v Cornes (2012) 114 SASR 46, 60

14. After considering the observations of Diplock LJ in Slim v Daily Telegraph Ltd, the Chief Justice held:[14]

    This Court cannot now countenance a departure from the single meaning rule. The social policy implications of any departure suggest that the matter is one for legislative, not judicial, amendment. The Parliament left the state of the law on this question undisturbed when it enacted the Defamation Act 2005 (SA).

    [14]   Ten Group Pty Ltd v Cornes (2012) 114 SASR 46, 62.

15. The determination of the meaning does not turn upon the assessment of the credibility of any witness, nor does the question involve the exercise of any discretion in the sense described in House v The King.[15]  There is no reason why this Court on appeal should not determine the meaning of the article for itself.

    [15]   House v The King (1936) 55 CLR 499.

16. The test for determining the meaning conveyed is well settled.  The meaning is to be determined objectively by reference to the ordinary reasonable reader of average intelligence.  The qualities imputed to the hypothetical ordinary reasonable reader have been stated in numerous High Court authorities.[16]

    [16]   See Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716, 1719-1720; Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1, 7; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 467.

17. In Radio 2UE Sydney Pty Ltd v Chesterton, the plurality explained:[17]

    The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer v Daily Telegraph Newspaper Co Ltd, although Griffith CJ expressed some concern about the ambiguity of the expression “right thinking members of the community”. The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was  confirmed by this Court in Mirror Newspapers Ltd v World Hosts Pty Ltd, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in Gacic referred to the likelihood that the imputations might cause “ordinary decent folk” in the community to think the less of the plaintiff.

    Putting aside Lord Atkin’s additional requirement of being “right-thinking”, the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as “of ordinary intelligence, experience, and education”. Such persons have also been described as “not avid for scandal” and “fair-minded”. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.

    [17]   Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 467.

18. It is necessary to consider the alleged imputations in the context of the entire article, including the headline, and to determine meaning by reference to the broad impression conveyed by the article, not by reference to the meaning of each word in isolation.[18]  In John Fairfax & Sons Ltd v Rivkin, McHugh J summarised the law as follows: [19]

    However, although a reasonable reader may engage in some loose thinking, he or she is not a person “avid for scandal”. A reasonable reader considers the publication as a whole.Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning.The reasonable reader considers the context as well as the words alleged to be defamatory. If “[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together”. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article.

    [Footnotes omitted.]

    [18]   Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, 646; Favell v Queensland Newspaper Pty Ltd (2005) 79 ALJR 1716, 1721.

    [19]   John Fairfax & Sons Ltd v Rivkin (2003) 77 ALJR 1657, 1661-2.

19. It is to be accepted that a publisher who repeats the words of another, without disclamation, endorses those words.[20] It is possible for a publisher to sufficiently qualify and distance itself from the sentiments expressed in a quote.  However, as noted by Angas Parsons J in Savige v News Ltd:[21]

    ... A contradiction of the assertion published, whether made by the newspaper on its own account, or on the authority of anyone else, does not limit the reader to the refutation and oblige him to disregard the assertion if, interpreting the document as a whole, the defamatory meaning charged could be made out as a reasonable, natural or necessary inference from the words used.

    [20]   Lewis v Daily Telegraph [1964] AC 234, 284; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, 246.

    [21]   Savige v News Ltd [1932] SASR 240, 245.

    The Substantial Financial Benefit Imputation

20. By her Statement of Claim, the plaintiff pleaded the following imputation:

    The plaintiff obtained substantial financial benefit through her close ALP connections and thereby demonstrated that she lacks integrity

21. On the appeal, the plaintiff placed particular emphasis on the following aspects of the article:

    -the prominent headline “Bignell partner’s $10m bonanza”;

    -the word “SCANDAL” in bold contained in the caption to the photograph;

    -the subjects to which the article relates, namely:

    -the plaintiff’s close Labor Party connections;

    -the plaintiff’s status as a director of WorkCover;

    -the payments received by the plaintiff’s business in referrals from WorkCover;

    -the intermingling of those three subjects throughout the article, together with the absence of any statement to the effect that there is no relevant causal connection between them;

    -the fact that there appears to be no conceivable reason to intermingle the subjects except to suggest such a causal connection between them;

    -the inherent nature of the subjects themselves, in that a close political connection is the very thing that might in fact be exploited by a person lacking in integrity so as to secure financial benefits from a statutory authority;

    -the express statements of Mr Birch to the unequivocal effect that it was the plaintiff’s close Labor Party connections that explained why “she gets such a huge amount of work”;

    -a statement to the effect that there had been no formal steps taken as a result of an inquiry into whether, inter alia, the plaintiff “had a conflict of interest as a board member whose company benefited from WorkCover contracts”.

22. As earlier noted, the Judge found that the article conveyed the meaning that the plaintiff had close Labor Party connections and that she had obtained a financial benefit.  However, the Judge did not find that there was any imputation of a link between the two.  On the appeal, the following findings of the Judge were challenged:

    -the word “bonanza” does not suggest that any financial benefit was undeserved and such a meaning is not otherwise conveyed by the article;

    -the article conveys “no direct suggestion that the reason the plaintiff or her business received work was due to her close ALP connections”;

    -it is unclear “whether the ordinary reasonable reader would consider the financial benefit was underserved” or that “there was a link between the financial benefit and close ALP connections”;

    -nothing in the article suggests that the plaintiff lacks integrity;

    -the first imputation is “strained and extravagant” and is not conveyed by the natural and ordinary meaning of the words of the article;

    -the reporting of allegations made before the Statutory Authorities Review Committee is “balanced” by a statement in the article to the effect that no formal steps were taken as a result of the Committee’s inquiry.

1. As made clear by McHugh J in John Fairfax & Sons Ltd v Rivkin, the word “bonanza” is not to be interpreted in isolation from the article itself.  The word is used in direct connection to the sum of $10 million and is to be read in the context of the whole article.  The lead paragraph of the article specifies the source of that sum, namely that it has been derived by the plaintiff’s consultancy “in contracts from WorkCover”. 

2. In our view, the Judge erred in failing to take into account the overall impression of the article, including the contribution that the prominent word “bonanza” makes in creating that overall impression.  The word “bonanza” naturally invites the reader to draw the inference that the financial benefits obtained by the plaintiff would not have been obtained were it not for her close Labor Party connections.  A direct statement to that effect is then contained in the article itself in the following statement attributed to Mr Birch:

   “The reality is … that the proprietor of that organisation has a very good relationship with politicians in the Labor Party,” he said.  “I suggest that that is probably one of the main reasons she gets such a huge amount of work.”

3. On appeal, the plaintiff submitted that the defendant “hitched its wagon” to Mr Birch’s statement through its use of the word “bonanza”.  In our view, the defendant endorsed the words of Mr Birch. 

4. The Judge found that the ordinary reasonable reader would not, in light of the balancing material, understand the article to convey the first imputation.  In our view, the Judge further erred in finding that there was sufficient material contained in the article to balance any suggestion that the plaintiff had obtained financial benefits through her Labor Party connections.  The balancing material was said to be a statement in the article that no formal steps had been taken as a result of the Parliamentary Inquiry in which Mr Birch testified.  The Judge also took into account material contained in the article to the effect that WorkCover defended the plaintiff. 

5. There are two difficulties with the Judge’s line of reasoning.  First, it ignores the fact that the article expressly concerned a Parliamentary Inquiry into WorkCover itself, such that the mere denial by WorkCover is not destructive of the basis upon which the defamatory imputation relies.  There is a further matter.  The article itself is incorrect.  The quote attributed to the WorkCover Annual Report is found in the separately published financial statements for that year.  The financial statements for the year ended 30 June 2009 included the following under the heading “Related parties transactions”:

   In relation to Ms De Poi, the companies in which she has interest, De Poi Consulting Pty Ltd and Refining Skills Pty Ltd, have current contracts with WorkCoverSA for the provision of rehabilitation services as directed by WorkCoverSA’s claims agents. The value of the transactions during the year ended 30 June 2009 was $3,090,689 (2008: $2,739,941). The terms and conditions of the transactions were no more favourable than those available or which might reasonably be expected to be available, on similar transactions to non-board member related entities on an arm’s length basis.

6. The article referred to WorkCover defending the plaintiff but, in fact, the quote is a passage derived from compulsory disclosure of related party transactions in the financial statements. Those financial statements were independently audited.  We note that the parties did not bring to light this error either at trial or on appeal. 

7. Second, the article contains no statement to the effect that there had been independent scrutiny of Mr Birch’s allegation by the Statutory Authorities Review Committee, Auditor-General and a private independent auditor.  Those inquiries concluded that there was no relevant conflict of interest and that the relevant contracts were “no more favourable than those available or which might be reasonably be expected to be available, on similar transactions to non-board member related entities on an arm’s length basis”.  It is the absence of that independent contradictory material that leaves it open to the ordinary reasonable reader to infer that Mr Birch’s statements had substance.  In our view, the imputation that the plaintiff obtained substantial financial benefit through her close Labor Party connections is conveyed by the natural and ordinary meaning of the words.

8. The plaintiff claimed that the Judge further erred in concluding that the article did not contain any suggestion that it had been demonstrated that the plaintiff lacked integrity by reason of her deriving financial benefits through her Labor Party connections.  The Judge reasoned that there was “no specific assertion that the plaintiff lacks integrity” and that any conclusion that she lacked integrity could only be drawn “through some impermissible suspicion or belief on the part of the reader”.

9. As earlier discussed, the imputation that the plaintiff obtained substantial financial benefit through her close Labor Party connections was conveyed.  The ordinary reader could and would, without more, readily draw the inference that a person who derived financial benefits by reason of their close political connections thereby lacked integrity.  The ordinary reader would infer that a person who derives a benefit through their connections, in this case with the Labor Party, is not the best qualified or the most expert to win the work on their own merit.  An inference follows therefore that more meritorious persons are deprived of work, in this case WorkCover consultancies, and WorkCover is deprived of the best expert advice.  In our view, the second part of the first imputation, that the plaintiff lacked integrity, follows as a natural inference.  The very connection between the benefit and the political connection supports that inference.

10. In our view, the article is defamatory in that it would cause the ordinary reasonable reader to think less of the plaintiff. 

    The Breach of the Code of Conduct Imputation

11. By her Statement of Claim, the plaintiff pleaded the following imputation:

    There are reasonable grounds to suspect the Plaintiff of having breached the Code of Conduct of the Australian Institute of Company Directors by having placed herself at the centre of dishonest electoral practices

12. As noted above, the Judge concluded that the article was defamatory of the plaintiff as it conveyed the imputation that the plaintiff breached the Code of Conduct of the Australian Institute of Company Directors.   However, the Judge expressed reservation as to whether the whole of the pleaded imputation was conveyed:[22]

    I accept for the reasons outlined above that the article conveys the imputation that the electoral practices were dishonest but I do not consider the imputation that the plaintiff took steps to “place herself at the centre of dishonest electoral practices” necessarily follows from the natural or ordinary meaning of the words of the article. 

    ...

    Leaving aside my reservation about the imputation that the plaintiff “placed herself” at the centre of the strategy I consider that the ordinary reasonable reader might conclude that there were reasonable grounds to suspect the plaintiff of having breached the AICD code of conduct.  Such an imputation is defamatory. 

    [22]   De Poi v Advertiser-News Weekend Publishing Company Pty Ltd [2015] SADC 21, [105], [108].

13. Earlier in the Judge’s reasons, the Judge considered the phrase “placed herself at the centre of dishonest electoral practices” and held:[23]

    The pleaded imputation is that the plaintiff “placed herself at the centre of” the electoral practices.  In other words that she took deliberate steps to put herself in that position.  I do not consider that imputation necessarily follows from the natural or ordinary meaning of the words.  To my mind the words used in the article convey that, as a matter of fact, she was “at the centre” of the scandal.

    The plaintiff further contended in submissions that the description of her being “at the centre” of a practice imports a role of primary instigator or implementer of the practice.   I do not agree.  Nowhere in the article is it suggested that the plaintiff was the primary instigator or the primary implementer of the practice; rather the article states as a fact that she was at the centre of the controversy.  There is no assertion that the plaintiff was in any way involved in the production of the cards or T-Shirt.  There is no suggestion that the plaintiff had any involvement with the cards beyond handing them out and being photographed doing so.  There is no suggestion that she had any involvement with the T-shirt other than wearing it and being photographed doing so.  In context the article makes it plain that that strategy was an ALP strategy and that the plaintiff was but one of the people implementing it. 

    [Footnote omitted.]

    [23]   De Poi v Advertiser-News Weekend Publishing Company Pty Ltd [2015] SADC 21, [97]-[98].

14. On the appeal, the defendant challenged the Judge’s conclusion that the pleaded imputation was defamatory.  It was submitted that, as the Judge had expressed the view that she was less certain about the imputation that the plaintiff placed herself at the centre of the strategy, the Judge should have concluded that the pleaded imputation was not made out.  It was further contended that, in any event, the Judge concluded that the article does not suggest that the plaintiff was a primary instigator or implementer, nor does the article convey the imputation that the plaintiff was one of the main instigators of the dishonest electoral practices. 

15. The submission that the plaintiff failed to prove the pleaded imputation should be rejected.  The plaintiff was entitled at trial to rely upon variant meanings that were no more damaging than, and that fall broadly within, the imputations pleaded, provided that there was no disadvantage to the defendant in allowing that course to be followed.  In Chakravarti v Advertiser Newspapers Ltd, Gaudron and Gummow JJ explained:[24]

    As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.

    [24]   Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 546.

16. Counsel for the defendant submitted that, in any event, no reasonable reader would understand the article to impute that there were reasonable grounds to suspect the plaintiff of breaches of the Code of Conduct.  Consequently, the Judge erred in finding that there had been any such defamatory imputation.  It was submitted that there was no suggestion in the article that there had been any investigation by the Australian Institute of Company Directors into the conduct of the plaintiff.  Further, there was nothing in the article to suggest that there were any reasonable grounds to suspect the plaintiff of breaching the Code.  It was pointed out that the article reported that the Institute “declined to comment on whether, if it received any complaint, it would take action against her under its code of conduct”. 

17. The article conveyed that the Institute had knowledge of the plaintiff playing a role in electoral practices and this comment was directly linked to a section of the Code that the Institute would need to consider when determining whether to take any action.  Taking the article as a whole, a reasonable reader would understand the article to impute that there were reasonable grounds to suspect the plaintiff of breaches of the Code.  In our view, the defendant’s submissions should be rejected. 

18. The plaintiff contended, by way of reply, that the Judge erred in failing to find that the whole of the pleaded imputation was conveyed.  In our view, there is substance to this contention.  The article, in its final paragraphs, states that the Australian Institute of Company Directors was “aware of Ms De Poi’s role in the how-to-vote cards”.  The article also states that the members of the Institute have “an obligation, at all times, to comply with the spirit, as well as the letter, of the law and with the principles of [the] Code” and that the electoral practices the subject of the article have “been widely condemned by political commentators as being outside the spirit of the law”.   It is to be recalled that the first paragraph of the article refers to the plaintiff as the “woman at the centre of Labor’s how-to-vote dodgy documents scandal” and it is clear that the “widely condemned” electoral practices are the “scandal” to which the article is referring.  The word scandal also appears in bold typeface in the caption to the photograph.  The Macquarie Dictionary defines “scandal” as “a disgraceful or discreditable action, circumstance, etc”.  The ordinary reader, in the context of the article as a whole, would understand that the plaintiff had played such role in the disgraceful action that she had, by virtue of that role, placed herself at the centre of it.  As counsel pointed out, the plaintiff is the only participant in the electoral practice referred to in the article.  The ordinary reasonable reader would not understand the plaintiff’s role to be merely accidental or peripheral.  We accept the submission of the plaintiff that the article imputes that the plaintiff involved herself in scandalous activity in such a way that she should be regarded as a central participant. 

19. In our view, the Judge should have found that this imputation was conveyed in its entirety.  In any event, we consider that the variant as found by the Judge did not differ from the pleaded imputation in substance.

    Justification

20. As earlier noted, the Judge concluded that the defence of justification had been made out in regard to the imputation concerning the breach of the Code of Conduct.  The Judge made no reference to the fact that the defendant had not sought to raise a defence of justification to this plea.  It is unclear as to what prompted the Judge to consider a defence not pleaded, particularly in circumstances where the law is clear that if a defendant wishes to justify there must be an express plea to that effect.[25] 

    [25] Supreme Court Civil Rules 2006 (SA) rule 100(1).

21. Counsel for the defendant noted that it had pleaded the defence of justification in respect of a pleaded imputation with a similar sting.  That imputation was found to be justified at trial and the plaintiff did not contest this on appeal.  Counsel submitted that, as the second imputation as found by the Judge was not the pleaded imputation, and in circumstances where the sting of the imputation found was similar to the justified imputation, the defendant should be permitted to rely on the defence of justification as no prejudice would be suffered.

22. The difficulty with this submission is that the plaintiff claimed that she conducted her case on the basis that no plea of justification was advanced in respect of this imputation.  Counsel for the plaintiff pointed out that the Code of Conduct of the Institute was not tendered in evidence and that the truth of the article’s assertion concerning its contents was not proven.  The Electoral Commissioner was not called to give evidence as to whether or not the statements attributed to her in the article were true.  Counsel for the plaintiff further  noted that the Judge’s findings in relation to the electoral practice being outside the spirit of the law were made without hearing the plaintiff on this question.  The question of whether there were grounds to suspect that the plaintiff had contravened the Code of Conduct raises questions which were untried.

23. In substance, the defendant sought to advance a case on the appeal that it did not advance at trial and that, had such an argument been raised at trial, would have been the subject of evidence and submissions.  In Lucke v Cleary, Stanley J, with whom Gray and David JJ agreed, summarised the High Court authorities concerning raising an argument on appeal not put at trial:[26]

    [26]   Lucke v Cleary (2011) 111 SASR 134, 146-7.

    In University of Wollongong v Metwally (No 2), the High Court enunciated the principle relevant to the determination of an application to raise on appeal an argument not put at trial. The court said:

    It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

    In Coulton v Holcombe, the High Court explained the underlying principles justifying this approach:

    It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards.

    The High Court reaffirmed the position in Water Board v Moustakas:

    More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.

    (Footnote omitted.)

    Examples of the High Court allowing a new point to be raised for the first time on appeal can be found in Coulton v Holcombe, National Australia Bank Ltd v KDS Construction Services Pty Ltd (in liq), and Fingleton v The Queen.

    The threshold test to be met by a party which seeks to raise an argument for the first time on appeal is high. An appeal court will only permit a party to do so in the most exceptional circumstances. Where all the facts have been established beyond controversy or where the point is one of construction or of law, the appeal court may, in the exercise of its discretion, entertain the point where it is expedient in the interests of justice to do so but, even in those circumstances, the exercise of the court’s discretion is informed by the proposition that a party will only be permitted to do so in the most exceptional circumstances.

    [Footnotes omitted. Emphasis added.]

24. The fact that the Judge considered the defence of justification uninvited by the parties does not establish exceptional circumstances in this case.  The facts are far from being established beyond controversy.  The Judge’s finding of justification should be set aside. 

    Qualified Privilege

1. The defendant pleaded qualified privilege in respect of both imputations.  The Judge did not address these defences at all.  Both parties made submissions on this topic at trial and on appeal.

2. Under the common law defence of qualified privilege, the defendant must show that the defamatory material was published in accordance with a legal, social or moral duty or interest to persons who had a corresponding duty or interest to receive it.[27]  Reciprocity of duty and interest is essential.[28]  The mere fact that the topic of a publication is a matter of general public interest is insufficient to give rise to an occasion of common law qualified privilege in respect of a publisher with a large audience, such as the Sunday Mail.  The High Court explained in Lange v Australian Broadcasting Corporation:[29]

   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. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers.

   [Footnotes omitted. Emphasis added.]

   [27]   Adam v Ward [1917] AC 309, 334.

   [28]   Adam v Ward [1917] AC 309, 334; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 570.

   [29]   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 572.

3. In our view, the imputations did not concern such exceptional matters as to attract the defence of qualified privilege under the common law.  The imputation concerning integrity was not directly related to the conduct of the election.  It was an old allegation that had been resolved in the plaintiff’s favour pursuant to an independent inquiry.  It cannot be said that all members of the public had an interest in learning of prior false allegations, albeit that they were in respect of a public officer.  In respect of the allegation concerning the Australian Institute of Company Directors’ Code of Conduct, while the general public may have an interest in reading about dishonest election practices, the fact that a public officer may have failed to comply with the Code of Conduct of an entirely separate organisation by being part of such practices goes much further than that which would be reasonably sufficient for the occasion of qualified privilege.

4. Counsel for the defendant submitted that, as a political communication, reciprocity can be presumed between the publisher and electors.  We reject this submission.  It was this deficiency in the common law that the High Court sought to overcome in Lange v Australian Broadcasting Corporation.[30]

   [30]   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

5. In Lange, the High Court recognised that each member of the Australian community had an interest in disseminating and receiving information, opinion and arguments concerning government and political matters.  For this reason, the Court extended the law in relation to qualified privilege such that the defence would prima facie be available to a mass media publisher, provided that the requirement of reasonableness was satisfied.   The Court held:[31]

   No doubt it is arguable that, because qualified privilege applies only when the communication is for the common convenience and welfare of society, a person publishing to tens of thousands should be able to do so under the same conditions as those that apply to any person publishing on an occasion of qualified privilege. But the damage that can be done when there are thousands of recipients of a communication is obviously so much greater than when there are only a few recipients. Because the damage from the former class of publication is likely to be so much greater than from the latter class, a requirement of reasonableness as contained in s 22 of the Defamation Act, which goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires.

   Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.

   [Footnotes omitted. Emphasis added.]

   [31]   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 572-3.

6. The Court provided the following guidance as to when the making of the publication would be considered reasonable:[32]

   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.

   [Footnote omitted.]

   [32]   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 574.

7. The statutory defence provides a broadly similar approach. Section 28 of the Defamation Act 2005 (SA) states:

   (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

   (a)     the recipient has an interest or apparent interest in having information on some subject; and

   (b)     the matter is published to the recipient in the course of giving to the recipient information on that subject; and

   (c)     the conduct of the defendant in publishing that matter is reasonable in the circumstances.

   (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

   (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

   (a)     the extent to which the matter published is of public interest; and

   (b)     the extent to which the matter published relates to the performance of the public functions or activities of the person; and

   (c)     the seriousness of any defamatory imputation carried by the matter published; and

   (d)     the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and

   (e)     whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and

   (f)      the nature of the business environment in which the defendant operates; and

   (g)     the sources of the information in the matter published and the integrity of those sources; and

   (h)     whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and

   (i)     any other steps taken to verify the information in the matter published; and

   (j)     any other circumstances that the court considers relevant.

   (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

   (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

8. As discussed earlier, we are of the view that while the issue concerning dishonest election practices was of general public interest, there was limited public interest in the subject matter of the two defamatory imputations.  Much of the population would have no interest in whether one individual on the WorkCover Board of Directors lacked integrity or had breached the Code of Conduct of the Australian Institute of Company Directors.  Further, the defendant cannot be said to have taken reasonable steps to verify the information in the imputation concerning integrity.  If the defendant had done so, it would have immediately been brought to light that the plaintiff had been absolved of those allegations by an independent auditing company, the Auditor-General and the Statutory Authorities Review Committee. The same had been reported in a public document released by the Committee. 

9. The defendant failed to make a reasonable attempt to obtain a response from the plaintiff as to the imputations.  While the defendant contacted the plaintiff for a comment in relation to the how-to-vote cards, there was no suggestion that the defendant gave the plaintiff notice of its intention to publish an allegation of the plaintiff’s conflict of interest in her position as a director of WorkCover or of its intention to publish the suggestion that the plaintiff may have failed to comply with the Australian Institute of Directors’ Code of Conduct.  In all the circumstances, we do not consider the conduct of the defendant reasonable.  The defence of qualified privilege should be rejected.

   Damages

10. As the Judge found that the article was not defamatory, she did not proceed to assess damages.  This Court has sufficient material before it to make that determination and it is appropriate for it to do so.

11. The plaintiff claimed for general damages, including general economic loss, and aggravated damages.  While damages in respect of the two imputations are to be assessed on the basis that the plaintiff has one cause of action,[33] the fact that more than one defamatory imputation has been conveyed is nonetheless relevant in an assessment of the degree of harm. 

    [33]   Defamation Act 2005 (SA) section 8.

12. In Carson v John Fairfax & Sons Ltd,[34] Brennan J set out some useful principles for an assessment of damages in respect of publication of defamatory matter in a newspaper.  His Honour, as the Chief Justice then was, said:[35]

    [34]   Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.

    [35]   Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 70-1.

    In considering the appropriateness of a sum to be awarded in vindication of a plaintiff's reputation injured by the publication of defamatory matter in a newspaper, it is necessary to have in mind what Mahoney J.A. said in the present case:

    “[T]he plaintiff has no other way of achieving vindication than by an award of damages. There is no power to force a defendant, by public advertisement or letter or otherwise, to provide a vindication of the plaintiff. In the case of defamation by a journalist or a newspaper, the common organs for vindication are within their control. Damages, and the size of the award, are the only means which ordinarily are available to attract the public or private attention involved in the vindication of the plaintiff’s position.”

    Although damages are awarded to vindicate the plaintiff’s reputation, damages are not awarded as compensation for the loss in value of a plaintiff’s reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before. In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff’s reputation. Other heads of damage are compensation for the external consequences produced by the publication of the defamation and “a solatium” for the plaintiff’s internal hurt, that is, for the complex of reactions that the plaintiff has experienced as the result of the publication and its external consequences. In McCarey v Associated Newspapers Ltd. [No. 2], Diplock L.J. said:

    “The injuries that [a plaintiff] sustains may be classified under two heads: (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself. It is damages under this second head which may be aggravated by the manner in which or the motives with which the statement was made or persisted in.”

    The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be “shunned or avoided” is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff’s injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.

    [Footnotes omitted.]

13. In the present case, the Judge summarised the evidence tendered in respect of the question of damages:[36]

    ... I make the observation that the evidence on damages was very limited.  The plaintiff told me that she was “mortified” on reading the article.  When pressed she added that it made her “sick” and “anxious” but little else was said about the topic of distress.  No evidence was called in relation to her reputation.  There was no evidence about the reaction of other people to the article. 

    I do not accept the submission at paragraph 204 of the plaintiff’s written submissions concerning the question of general economic loss.  There was no evidence as to the effect of the publication on the plaintiff’s ability to work, either in her business or on Boards.  The plaintiff continued on the WorkCover Board until her resignation in 2013.  I reject the plaintiff’s evidence that the resignation was in consequence of either the how-to-vote scandal or the article.  There was no other evidence to support that proposition and the press release issued by WorkCover at the time of her resignation suggests another reason for resignation, specifically the fact that her partner, Mr Bignell, had been appointed to the South Australian Cabinet.  Likewise there was no evidence to support a more general proposition that the plaintiff is a less attractive Board member by reason of the article.

    [36]   De Poi v Advertiser-News Weekend Publishing Company Pty Ltd [2015] SADC 21, [126]-[127].

14. In our view, while the publication was likely to have had an adverse impact on the plaintiff’s professional connections, the imputations were not of such a nature that would lead the plaintiff to be shunned or avoided in her social circle or the wider community.

15. The plaintiff resigned from WorkCover in 2013, some three years after the article was published.  We are not able to accept that the resignation was as a result of the publication.  That being said, the defendant failed to produce any evidence that the plaintiff enjoyed anything less than the reputation of a well-respected business woman at the time of publication.  The articles and commentary published in respect of the plaintiff’s involvement in electoral practices in the week leading to the publication of the subject article cannot be used by the defendant in mitigation.  In Carson v John Fairfax & Sons Ltd, McHugh J explained:[37]

    The common law is clear, rightly or wrongly, that the defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff. A fortiori, at common law evidence is not admissible that the plaintiff has recovered damages in respect of other defamatory publications. A defendant must answer for the effect of its own circulation without regard to what others have published. If a defendant wishes to contend that the plaintiff’s reputation was already damaged at the time of publication, it can do so by calling witnesses to prove the nature of the plaintiff’s reputation at that time. But it cannot tender other publications for that purpose. They may or may not have damaged the plaintiff's reputation.

    [Footnotes omitted.]

    [37]   Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 99.

16. Section 36 of the Defamation Act modifies the common law to some extent.  It provides:

    (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—

    (a)     the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or

    (b)     the defendant has published a correction of the defamatory matter; or

    (c)     the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

    (d)     the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

    (e)     the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.

    (2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.

1. The defendant has not made any plea in mitigation pursuant to section 36(1). In any event, those articles are only directly relevant to the second imputation concerning the Australian Institute of Directors’ Code of Conduct and it is the imputations concerning conflict and integrity that, in our view, delivers the real insult to the plaintiff, as she had been cleared of those allegations.

2. The plaintiff submitted that this was an appropriate case in which to award aggravated damages.  In Triggell v Pheeney, Dixon, Williams, Webb and Kitto JJ set out the circumstances in which aggravated damages may be awarded:[38]

   It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times Ltd. v. McGregor must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable. ... - FTN.28

   [38]   Triggell v Pheeney (1951) 82 CLR 497, 514.

3. In support of her claim for aggravated damages, the plaintiff pointed to the defendant’s failure to apologise or print a retraction.  However, we note the comments of Toohey J, with whom Dawson and McHugh JJ agreed, in Coyne v Citizen Finance Limited:[39]

   It is not the case that every unsuccessful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v. Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it: Herald and Weekly Times Ltd. v. McGregor. I take this to be the sense in which Lord Diplock suggested that “persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages”: Broome v. Cassell & Co. But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v. Pheeney, does not warrant an award of aggravated damages to the plaintiff.

   [39]   Coyne v Citizen Finance Limited (1991) 172 CLR 211, 237-8.

4. In our view, the plaintiff has not established that there was any lack of bona fides, or improper or unjustifiable conduct, by the defendant.  As earlier noted, the imputations arose in the context of taking the article as a whole.  However, there was evidence that the caption and the headline to the article were drafted separately to the article’s content.  While some responsibility must be placed on the editor to consider the story as a whole, in a situation where the article was the product of multiple persons, it is difficult to find that there was some deliberate considered conduct on the part of the defendant that lacked bona fides or was improper or unjustifiable.  Further, the author of the article did not apparently read the report of the Statutory Authority Review Committee.  If the circumstances had been that the author deliberately refrained from including the result of the Parliamentary Inquiry, the plaintiff would have a stronger case in aggravated damages.  However, in the present proceedings, we cannot be satisfied that there was conduct on the part of the defendant that meets the factors set out in Triggell v Pheeney.  Rather, it seems to us, that the imputations were a product of poor journalism and sensationalist captioning.

5. Taking into account the gravity of the imputation concerning conflict and integrity, in circumstances where the plaintiff had been cleared of such allegations by independent inquiries, the mass media publication of that imputation, and the likely impact the same would have to a business owner, we assess damages in the amount of $75,000.00. 

   Conclusion

6. We conclude that the imputation that the plaintiff obtained substantial financial benefit through her close Australian Labor Party connections, and thereby demonstrated that she lacked integrity, was conveyed.  The Judge further erred by finding that the defendant had justified the second imputation, that there were reasonable grounds to suspect the plaintiff of having breached the Code of Conduct of the Australian Institute of Company Directors by having placed herself at the centre of dishonest electoral practices.  In our view, the article was defamatory.  We would award damages in the amount of $75,000.00.