De Poi v ADVERTISER-NEWS Weekend Publishing Company Pty Ltd - [2015] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DE POI v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD
[2015] SADC 21
Judgment of Her Honour Judge McIntyre
26 February 2015
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION
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 (ALP) and the partner of the Honourable Leon Bignell, the member for the state electorate of Mawson. She was photographed on election day in 2010 at a booth in the Mawson electorate wearing a blue T-shirt bearing the words “Put Your Family First” and handing out how-to-vote cards that placed the Family First candidate first and giving the second preference to the ALP candidate. The official ticket for the Family First Party gave second preferences to the Liberal Party. The defendant is the publisher of the Sunday Mail circulated throughout South Australia. On 28 March 2010 page 24 of the Sunday Mail contained an article about the plaintiff under the headline “Bignell partner’s $10m bonanza”. The plaintiff says that the natural and ordinary meaning of the words in the article together with the photograph are that:
• She obtained substantial financial benefit through her close ALP connections and thereby demonstrated that she lacks integrity;
• She knowingly engaged in and placed herself at the centre of dishonest electoral practices;
• She was one of the main instigators of dishonest electoral practices, which conduct is consistent with her past history of a preparedness to place herself in conflict of interest in her professional relationships with a view to financial benefit;
• 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.
The defendant admits publication but denies that the article contains the imputations contended by the plaintiff or in the alternative says that if those imputations do arise then a number of defences, including justification or substantial truth and qualified privilege in the reporting of government and political matters, apply.
Held:
1.    The imputations pleaded in paragraphs 5.1 and 5.5 of the third statement of claim are not established.
2.    The defendant has justified the imputation at paragraph 5.4 of the Statement of Claim that the plaintiff knowingly engaged in and placed herself at the centre of dishonest electoral practices and in 5.6 that she placed herself at the centre of dishonest electoral practices.
3.    Accordingly the plaintiff’s claim is dismissed.
Defamation Act 2005 s23, s24, referred to.
Roberts & Anor v Bass (2002) 212 CLR 1; Lewis v Daily Telegraph Ltd (1964) AC 234 at 259; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 531; Lane & Hurley v Channel Seven Adelaide Pty Ltd (2008) SASC 101; Sands v Channel Seven Pty Ltd & Anor; Sands v Channel Seven Adelaide Pty Ltd (2010) SASC 202; Farquhar v Bottom (1980) 2 NSW LR 380 & Favell v Queensland Newspaper Pty Ltd (2005) 79 ALJR 1716; Jones v Skelton (1964) NSWR 485, Channel Seven Adelaide Pty Ltd v SDJ (2006) 94 SASR 296; Jones v Skelton op cit; Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; Lewis v Daily Telegraph Limited op cit; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506; Radio 2UE Sydney Pty Ltd v Chesterton (2000) 238 CLR 460; Cornes v Ten Group Pty Ltd & Ors (2011) 114 SASR 1 at para 9; Sutherland v Stopes (1925) AC 47 & Howden v Truth & Sportsman (1937) 58 CLR 416; Potts v Moran (1976) 16 SASR 284 at 306; Sutherland v Stopes (above); Briginshaw v Briginshaw (1938) 60 CLR 336 & Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Peters v The Queen (1998) 192 CLR 493 & R v Salvo (1980) VR 401, considered.

DE POI v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD
[2015] SADC 21

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 (ALP) and the partner of the Honourable Leon Bignell, the member for the State electorate of Mawson.
The defendant is the publisher of the Sunday Mail, circulated throughout South Australia. On 28 March 2010 page 24 of the Sunday Mail contained an article about the plaintiff under the headline “Bignell partner’s $10m bonanza”. The plaintiff says that this article is defamatory of her. In particular she says that the article imputes that:
1.She obtained substantial financial benefit through her close ALP connections and thereby demonstrated that she lacks integrity;
2.She knowingly engaged in and placed herself at the centre of dishonest electoral practices;
3.She was one of the main instigators of dishonest electoral practices, which conduct is consistent with her past history of a preparedness to place herself in conflict of interest in her professional relationships with a view to financial benefit;
4.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.
The defendant admits publication but denies that the article contains the imputations contended by the plaintiff or, in the alternative, says that if those imputations do arise then a number of defences, including justification or substantial truth and qualified privilege in the reporting of government and political matters, apply.
For the reasons that follow, I dismiss the plaintiff’s claim.
Procedural Matter
During the course of the trial the plaintiff sought leave to amend her reply by filing a fourth reply containing an additional paragraph 7.2 which read:
Malice is to be inferred by reason of the fact that the Editor responsible for the publication of the article was a friend or acquaintance of the former wife of Leon Bignell with whom the plaintiff was then in a relationship, combined with the failure of the Editor to explain the matters pleaded in 2.3.5A, 2.3.5B and 2.3.10 all of which matters evidence a breach of the Defendant’s Professional conduct Policy and further the failure of the editor to explain the cropping of the photograph compounding the matter pleaded in 2.3.5 herein, which cropping also constituted a breach of the Defendant’s Professional Conduct Policy.
I do not consider it appropriate to grant permission for the amendment. No proper basis was advanced for the lateness of this application or why it could not have been made earlier albeit that the amendment in part relates to an asserted failure by the editor to explain matters during the course of her evidence.[1] In my view the form of the pleading is bad as it is argumentative and deals with matters of evidence.[2] Further the proposed amendment does not plead a proper response to a qualified privilege defence because it does not identify the improper motive or purpose nor does it link any improper motive or purpose in a causal sense to the publication of the defamatory material by the defendant.[3]
Issues
1.What are the meanings or imputations attributable to the article?
2.If any or all of the imputations arise, does one of the pleaded defences arise?
3. What is a proper assessment of the plaintiff’s loss if relevant?
[1] DCR54;
[2] DCR98(2)
[3] Roberts & Another v Bass, (2002) 212 CLR 1
Witnesses
The plaintiff, Sandra De Poi, gave evidence about her background, her attendance at the Hackham West polling booth on State Election Day in 2010 and what occurred subsequently. David Gray, the plaintiff’s former husband and Mr Bignell’s campaign director, gave evidence about the 2010 State Election and the plaintiff’s attendance at the polling booth. Finally Tonia Marafioti, Ms De Poi’s PA at the time, gave evidence about a phone call from Mr Crouch the author of the article in question.
For the defence a number of people involved in the production of the article gave evidence. These were Sarah Kolar, a journalist covering the State Election in 2010 who saw the plaintiff at the Hackham West polling booth; Patrick Gorbunovs the photographer who took photographs of the plaintiff at the Hackham West booth; Megan Lloyd the editor of the Sunday Mail at the time and Brad Crouch the author of the article. In addition, Sally Bennie a volunteer at the Hackham West polling centre for the Family First party gave evidence about her observations and actions on Election Day.
In many respects there was not a lot of dispute concerning the objective facts. The main areas of divergence between the parties concerned the interpretation of the facts. Where there was dispute however I preferred the evidence given by the witnesses for the defence for reasons that I will explain in context.
Uncontroversial evidence
The plaintiff is a qualified rehabilitation and return to work provider. After completion of her qualifications she worked in a number of positions before setting up her own consultancy firm in March 1995. She grew the business to about 70 staff including clerical and rehabilitation consultants, by 2010. It is clear that she is a successful and well recognised businesswoman.
The plaintiff was appointed to a number of government board positions including Chair of the Cemeteries Board and membership of the Homestart Board and the WorkCover Board. At the time of her appointment to the WorkCover Board in 2003, it was a requirement of the legislation that the Board contain a person with a background in rehabilitation and OHS. The plaintiff’s name was put forward in that context. Following her appointment she remained on the WorkCover board for approximately 10 years until her resignation in 2013.
The plaintiff’s role on the WorkCover Board was the subject of some controversy in 2008. The plaintiff, in cross-examination in this matter, accepted that this was a legitimate matter of public interest. At that time Mr Birch, an official with the Construction, Forestry, Mining and Energy Union (CFMEU), gave evidence at a hearing of a Parliamentary Inquiry that was critical of the plaintiff’s conduct as a director. An article was published in the Advertiser reporting on that evidence and the Inquiry.[4] The Inquiry did not find any impropriety on the part of the plaintiff or the WorkCover board.
[4] Exhibit D1
The plaintiff was previously 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 was on foot at the time of the 2010 State Election. Mr Gray is an active member of the ALP and, relevantly, was Mr Bignell’s campaign manager in the 2006 and 2010 State elections.
The genesis of the article in question is the 2010 Election Day. It is uncontentious that the plaintiff attended at the Hackham West polling booth in the Mawson Electorate that day. She was observed and subsequently photographed wearing a blue T-shirt that read “Put your Family First”. Whilst wearing that T-shirt she handed out how-to-vote cards that placed the Family First candidate first and gave the second preference to the ALP candidate Mr Bignell. Family First was not preferencing the ALP in the electorate of Mawson. The how-to-vote cards were not issued by the Family First party but rather by the ALP as part of a strategy to gain second preferences notwithstanding the official Family First position.
The ALP’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 gained considerable publicity. The photographs of the plaintiff wearing the T-shirt and handing out the how-to-vote cards were reproduced in much of that subsequent publicity. She was usually named and identified as Mr Bignell’s partner. As Ms Lloyd said in her evidence, the plaintiff became “the face” of the controversy.
The article that is the subject of these proceedings was published in the Sunday Mail on 28 March 2010 a week after the election. The plaintiff says that this article is different to the other articles concerning the how-to-vote card controversy because it impugns her character in a number of respects.
At the Polling Booth
The plaintiff’s evidence
The plaintiff said that she had been brought up in a family that supported the ALP and was concerned with social justice issues. She was a long standing member of the ALP but not an active member. The plaintiff said that she had no specific knowledge of the ALP’s policies or those of the Family First Party at the time of the 2010 Election. Given her evidence as a whole, which demonstrated a sophisticated understanding of and interest in political matters, I do not accept that evidence.
On the day of the election the plaintiff had no formal role to play. She was looking after Mr Bignell’s son. She received a call from Sasha Rann, the then premier’s wife who was a long time friend of the plaintiff. Mrs Rann told the plaintiff that the mood towards the ALP volunteers in two electorates was aggressive and unfavourable. Mrs Rann asked the plaintiff what the mood was in Mawson. After this discussion with Mrs Rann the plaintiff then drove to the Hackham West Booth to speak to David Gray about her conversation with Mrs Rann.
Upon her arrival, one of the ALP volunteers was leaving for some sort of family emergency. Mr Gray told the plaintiff “make yourself useful” and gave her a T- shirt. The shirt was blue and read “Put your FAMILY FIRST”. She noted that the words “Family First” were prominent on the shirt. The shirt was tendered in evidence.[5] The plaintiff was also given how-to-vote cards to distribute. These placed the Family First candidate first and gave second preference to Mr Bignell. She said that she was not surprised about this because Mr Gray told her it was about “getting the second preference” for the ALP from Family First voters. She knew that the Family First party didn’t support the ALP candidate, Mr Bignell, in the Mawson electorate. Mr Gray was saying to people something along the lines of “a vote for Family First is a vote for Liberal”.
[5] Exhibit D15
The plaintiff didn’t see anything wrong with what she was doing. She said that it was clear that the how-to-vote cards were meant as a strategy to give the ALP the second preference. She does not accept that people were misled into thinking they were Family First cards. She believes that the pamphlets were self-explanatory. She was not given instructions about what to do in the event that someone had an issue with the voting cards. No complaints were made to her on the day. She said that given the time of day, there were only about 12 people coming through. She was at the booth for 30-45 minutes in total.
After a while, a photographer arrived and began taking photos. It became apparent to her that he was taking photographs of her. She asked David Gray why that was occurring and he said that there were problems with the T-Shirts and that Family First was “up in arms” about them.
The plaintiff denied that a journalist, specifically Ms Garvis from the Sunday Mail, approached her and asked her about the shirts. The plaintiff says she was not approached by a journalist and did not have a conversation with a journalist. Whilst not entirely clear from her evidence, it appears from her evidence that she was aware that there was a female journalist present. Whilst not entirely clear from her evidence it appears to be because Mr Gray asked the journalist ‘Haven’t you been through here before?”[6]. This evidence does not sit very comfortably with the plaintiff’s response to the defendant’s notice to admit which does not deny a conversation took place but rather says that the plaintiff had no recollection of what, if anything, was said to her by the journalist. When this was put to the plaintiff in cross-examination she reiterated her evidence that she did not get approached by anyone that identified herself as a journalist that day.[7]
[6] [T] 77-78
[7] [T] 79
The plaintiff said that she saw the photographer sometime later at the Woodcroft booth when he was taking photographs of Mr Bignell for a profile piece. She said the photographer said something to her along the lines of “I now know who you are”. She did not say anything to him.
She also gave evidence about being in the car with Mr Bignell later in the day when he had a conversation with the female journalist who had been at the polling booth. Her reasons for saying that she knew it was that particular journalist were, in my view, somewhat confusing. She did not hear Mr Bignell deny that she had been there but she did hear him say that it had only been for 15 minutes. She did not correct him. She agreed that if there were two calls between the journalist and Mr Bignell she only heard one of them. [8]
[8] [T] 98-100
Mr Gray gave evidence in similar terms to the Plaintiff. He confirmed that he and the plaintiff had been married and remained friends after their divorce. He is a member of the ALP at the State and National level. During their marriage, the plaintiff was not involved in the ALP. To his knowledge the plaintiff has never been a campaign manager or fundraiser for the ALP.
Mr Gray is currently employed by United Voice as a Senior Secretary and Senior Political Officer and has worked there since 1998. Mr Bignell first ran for Mawson in 2006. Mr Gray was requested to be Mr Bignell’s campaign director. Mr Gray acted in the same role in 2010.
Prior to the election in 2010, Mr Gray discussed the proposal to use the Family First strategy in the Mawson electorate with the ALP assistant state secretary. The tactic was targeted towards Family First voters to get them to give their second preference to the ALP in seats, such as Mawson, where they were giving their preferences to others. Mr Gray said that he wasn’t aware that “Put Your Family First” was the 2006 Family First slogan. Given his obvious political acumen and involvement in the 2006 election, I find that evidence difficult to accept. When the strategy was first devised, he said they had no idea what Family First were going to do or what kind of “badging” they intended to have on their materials. Mr Gray says that the ALP strategy was only meant to give Family First voters the alternative to give the ALP their 2^nd preference.
Mr Gray agreed that the shirts were designed to attract Family First voters but said that in his view the card was sufficiently clear that it was an ALP document; including the “fine print” which he described as “large enough”. Mr Gray said that all materials had been approved prior to the election and were legal. He said he doesn’t take voters for fools and says that if they were to form a view on how-to-vote based on the cards, they would read them. When it was put to him that the strategy had the capacity to mislead Family First voters into giving second preferences to the Labor candidate rather than the Liberal Party he said:
I believe it distracted. I accept that it had the capacity of having people have a look and grab that card, but in the main when it’s read properly, it’s to say to them ‘You don’t have to, you don’t have to follow Family First preference’^.[9]
[9] [T] 381

Mr Gray said that he chose ALP volunteers and United Voice workers, “who were prepared to do it” to hand out cards. The plaintiff was not among those asked. He also apparently felt the need to explain to volunteers that the shirts were “legitimate”. If questions were asked about the shirts and cards he told volunteers to direct complaints to the ALP.[10]
[10] [T] 381
During the 2010 Election Day, Mr Gray was rostered to be at Hackham West.[11] He arrived at the Hackham West polling booth at approximately 11:50 to start his 12-2 shift. Upon arrival, there were two ALP volunteers wearing the “Put Your Family First” T-Shirts and handing out the ALP second preference cards. He observed no confrontation, aggravation or dissent relating to the ALP’s strategy either then or later.
[11] Exhibit D9
One of those volunteers had to depart about 15 minutes after he arrived. Mr Gray thought that the plaintiff arrived at about the time of that departure. The two began chatting about things such as “the general feel” of the booth and some antipathy towards ALP volunteers elsewhere. He was trying to work and the plaintiff kept chatting and distracting him so he told her to put on the “Put Your Family First” shirt and “make herself useful”. The Plaintiff was apprehensive about wearing someone else’s shirt on hygienic grounds and she queried the purpose of the shirt and cards. He explained that the strategy was to try and obtain Family First second preferences. The plaintiff began to help give out cards whilst continuing to talk to him. There was a steady stream of voters coming in at that time but it wasn’t crowded.
After a while, he noticed photographers present and he said that the plaintiff seemed to think that they were focussed on her. He asked the plaintiff to turn around to test the photographers. Mr Gray’s evidence was somewhat unclear whether he observed one or more photographers but in any event he and the plaintiff confirmed that someone was taking photos of her. He told the plaintiff that she might be right and then told her about a controversy earlier in the morning about whether the Put Your Family First leaflets were legal: He told her that complaints about the family first strategy had been received at the Woodcroft booth, which resulted in the electoral commission investigating and that they “gave the tick”. He also told the plaintiff that the cards were legal because he had ensured that they had been “legalled” in the office before he asked anyone to hand them out.[12]
[12] [T] 372-4
The plaintiff was present at the booth for 34-45 minutes in total. The plaintiff stayed close to him the whole time; they were generally standing around the area seen in the photographs.[13] His impression was that there was more than one photographer but he said media were present throughout much of the day. He was aware of a young female journalist present while the plaintiff was there but does not recall seeing her with the photographer. When it was put to him that a young female journalist approached Ms De Poi seeking a comment he said unequivocally that this did not happen.[14] Mr Gray did not give evidence about speaking to the journalist or of asking her something along the lines of “Haven’t you been through here before?”
[13] Exhibit D2
[14] [T] 386
The defendant’s evidence
In the lead up to the March 2010 election, Sarah Kolar (formerly Garvis) was working for the Southern Times Messenger. The Sunday Mail recruited Messenger reporters for the purposes of the election. She was tasked with covering Mawson. On Election Day, someone at the Sunday Mail news desk notified her that ALP volunteers had been spotted wearing Family First T-shirts. She and other journalists were told to keep an eye out for them. She arrived at the Hackham West polling booth at about lunchtime and saw a person wearing the T-shirt she had been told to look out for. She called the news desk and was told they would send a photographer. The photographer arrived after 30-40 minutes. During that time, she observed the person, who she now knows to be the plaintiff, wearing the blue Family First shirt and handing out the voting cards to voters.
When the photographer Mr Gorbunovs arrived, she briefed him, telling him what she was doing there and that there was someone wearing the Family First shirt. They were about 10-15 metres away from the plaintiff when he started taking photos. She then approached the plaintiff and identified herself as Sarah Garvis as she was then known. She informed the plaintiff that she was working for the Sunday Mail and that she wanted to ask her about the shirts. She may also have mentioned the cards but she can’t be sure. The response from the plaintiff was something to the effect of “no comment” before the plaintiff walked away. Shortly after, the plaintiff left the polling booth. Ms Kolar is unsure where the photographer was during this conversation. Afterwards, she told him that the plaintiff had refused to give her any comment. In cross-examination Ms Kolar did not accept that she walked down the path on two occasions. She had no recollection of a man asking her “Haven’t you been here before?” but conceded that it may have happened.
Ms Kolar recalls there were Family First volunteers present at the polling booth, however they are not visible in the photos. She didn’t see anyone other than the plaintiff wearing the ALP Family First shirts. She says if she had seen someone else she would have directed Mr Gorbunovs to take their photograph as well.
Ms Kolar first saw the photographs later in the day at the Southern Times office. She did not know who the plaintiff was at the time the photographs were taken. She was later informed of the plaintiff’s identity by the newsroom. Ms Kolar then contacted Mr Bignell by phone to ask him about it. He initially denied any knowledge of it but then later called Ms Kolar back to say that Ms De Poi had been at the booth for about 15 or 20 minutes.
Patrick Gorbunovs was a photographer for Sunday Mail at the time of the 2010 state election. On the day, he received instructions via his car phone to attend the Hackham West Community Centre. He arrived there in the early afternoon. He met Sarah Garvis and she told him to photograph a woman who was handing out how-to-vote cards. He didn’t know who the woman was. He stood out front of the community centre and took several photographs.[15] He can’t recall if he walked down the pathway. He only saw one person, the plaintiff, wearing the ALP Family First T-shirt; he had looked to see if there were others but didn’t see anyone else. If he had he would have photographed them as well. After he took the photographs he observed Ms Garvis approach the woman handing out the cards. He didn’t hear the conversation. Ms Garvis came back and told him that she didn’t get any comment.
[15] Exhibit D2
Shortly after, he sent the photos to the newsroom but can’t say from what location. He uploaded the photographs by way of his laptop into the system so they became available to people in the newsroom. No further action was taken or required by him. He went elsewhere as directed on the day. He didn’t talk to any other Sunday Mail journalist regarding his attendance at Hackham West. Mr Gorbanovs denied subsequently being involved in photographing Mr Bignell at the Woodcroft Booth for a profile piece and he also denied speaking to Ms De Poi.
Megan Lloyd was the editor of the Sunday Mail at the time of the 2010 State election. She had held that position for 2 years at the time. On Election Day she was on Twitter when she became aware of stories regarding ALP volunteers reportedly wearing fake Family First shirts and handing out how-to-vote cards. One of these tweets was from Liberal candidate Simon Birmingham. She felt that the idea of volunteers handing out fake how-to-vote cards was very unusual. As a result, she put out a call to journalists in the field to keep an eye out. She was later told a person had been spotted at the Hackham West booth and that photos were incoming.
All the photos from photographers in the field were sent electronically to the pictorial editor’s picture desk. She recognised the photographs taken by Mr Gorbunovs[16] as some of the photographs that were taken at the Mawson electorate. Upon viewing the photos with her Chief of Staff, Petra Starkey, they both agreed that the woman in the photographs looked like Mr Bignell’s partner whom they had met recently at a function. Ms Starkey found a photo of the plaintiff on the De Poi Consulting website for comparison. Both photographs showed her wearing similar, if not identical, headbands; something she also wore when they had met her previously. At this point, Ms Lloyd believed that the idea that candidate’s partner handing out fake how-to-vote cards and wearing a fake shirt would be a big news story.
[16] Exhibit D2
Ms Lloyd made enquiries shortly after seeing the photos to see if the plaintiff was still at the booth, as it would be standard practice for a journalist to go there and talk to her. It was relayed to the newsroom that one of the journalists had tried to speak with the plaintiff but received no comment.
Brad Crouch is the author of the article. He became Sunday Mail state political editor in or around 2008, but had covered politics for some years prior to that. On Election Day 2010, he was “basically the anchor-man” who had to “pull everything together”. He was in the Sunday Mail office on Waymouth St that day. He “vaguely” remembered the newsroom becoming aware of someone wearing bogus Family First shirts. He was sceptical at first but soon found it to be true after sending journalists to investigate at various electorates. He thought that this was likely to be a big story.
Sallie Bennie, a supporter of the Family First party, was a volunteer at Hackham West polling centre at the 2010 Election Day. She and her husband arrived at the booth to set up at 8.00 am. On arrival they saw that volunteers for other political parties were present. There were also a number of voters lining up waiting for the polling booth to open. Ms Bennie approached those voters and asked if they wanted a Family First voting card. A number of people told her they already had one. She thought it strange because she and her husband were the only ones handing out Family First cards. She asked if she could see the card. The card she was shown looked like a Family First form but it gave the second preference to the ALP. Family First was preferencing the Liberal Candidate in Mawson. It was obvious to her after seeing and reading the how-to-vote card that it was printed by the ALP.
She saw two male volunteers wearing blue t-shirts with “Put Your Family First”. They were handing out these how-to-vote cards. She was familiar with the 2006 election materials used by the Family First party. In that election their slogan was “Put Your Family First”. She approached the two men and asked them, “Who do you represent?”; one of them men replied “Labor”. She told them that voters were confused about the cards they were handing out. One man laughed and said “it’s legal”.
She then spoke to the person in charge of polling booth and informed him of the confusion. He said he couldn’t take any action except to record her complaint. Between the time she was at the booth in the morning and when she returned later to clean up, she drafted a letter of complaint about the ALP “Family First” how-to-vote cards to the Electoral Commissioner, which she subsequently posted.[17]
[17] Exhibit D22
Findings
Most of the evidence about the events of the polling day is uncontentious, however, there is a clear difference in the evidence as to whether Ms Kolar spoke to the plaintiff.
Ms Kolar’s evidence was both cogent and compelling. Seeking comment from the plaintiff was a standard practice for a journalist in her position to have engaged in following Mr Gorbunovs’ taking the photographs. It is consistent with her subsequent behaviour in telephoning Mr Bignell once she became aware that the woman in the photographs was his partner. Her evidence that she did approach the plaintiff is supported by Mr Gorbunovs’ evidence. It is also supported by Ms Lloyd’s evidence about being informed that a comment had been sought but that none was forthcoming.
On the other hand, I found the evidence of Mr Gray and Ms De Poi on this topic confusing. For example, their evidence makes it clear that they both were aware that a female journalist was present at the time. It is not clear however how they came to that view. The plaintiff seems to suggest that it was because she overheard Mr Gray speaking to the journalist after she walked past twice. Mr Gray did not give evidence about doing that. It is not clear from his evidence how he reached the conclusion that there was a female journalist present albeit he strongly denied that one had approached the plaintiff. Likewise, the plaintiff’s evidence about Mr Bignell’s subsequent phone conversation and her knowledge that this was the same female journalist was also confusing and not particularly compelling.
I prefer the evidence of Ms Kolar that she did attempt to speak to the plaintiff at the polling booth.
Post Election Publicity
The ALP Family First strategy was, as I have said, the subject of considerable controversy and comment following the election in all forms of media.
The topic of the Family First strategy was covered in both the first and second edition of the Sunday Mail on 21 March 2010.[18] This coverage included an article entitled “‘Sneaky’ Labor tactics – challenge threat over Bignell voting cards”. This was accompanied by one of Mr Gorbanovs’ photographs of the plaintiff. She was identified in the article as Mr Bignell’s “girlfriend”.
[18] Exhibit D5
On Monday 22 March 2010, the Australian published an article entitled “Family First slams Labors dirty tricks” which was accompanied by one of Mr Gorbanovs’ photographs of the plaintiff. She was identified as “a suspected Labor supporter in Mawson”. There was also a photograph of the how-to-vote card. Next to that article was a comment piece entitled “Make no mistake, it’s a shameless con”. The plaintiff was not mentioned in that piece.[19] Also on Monday, the Advertiser contained a photograph of the plaintiff with Mr Bignell and his son celebrating Mr Bignell’s successful defence of his seat.[20]
[19] Exhibit D6
[20] Exhibit D8
The following day, Tuesday 23 March 2010, the Australian printed a further article concerning the Family First tactic entitled “Legal action on cards”. There was no photograph accompanying the article but the article said “Mr Bignell’s partner, Sandra De Poi, was photographed on Saturday handing out the how-to-vote cards”. It was also reported that Mr Bignell said she had done so on the spur of the moment for about 15 minutes.[21]
[21] Exhibit D7
On the same day, 23 March 2010, both the Australian and the Advertiser letters to the Editor column contained a number of letters concerning the how-to- vote strategy. They were uniformly critical. The Australian also contained an editorial comment under the heading “Tricky Tactics Fail Character Test – Dodgy How-to-Vote Cards Will Hurt Labor’s’ Reputation”.[22]
[22] Exhibit D9
On Wednesday 24 March 2010, the Australian contained further coverage of the how-to-vote card controversy under the heading “Xenophon calls for action on voting card deceptions”.[23] There were further letters to the editor critical of the strategy published in the Advertiser on Thursday March 25[24] and on Friday 26 March.[25]
[23] Exhibit D11
[24] Exhibit D12
[25] Exhibit D13
The Sunday Mail, in addition to the article complained of, carried two opinion pieces and a cartoon on 28 March 2010. One was an editorial entitled “Vote card con betrayal of our trust” and the other was an opinion piece that contained adverse comments about the tactics.
The plaintiff was asked about these articles. She did not see all of them at the time. Those that she did see did not concern her because they were mostly opinion pieces. Even though she didn’t like it she didn’t take issue with those articles because she believes people are entitled to their opinion.
The Sunday Mail Article
The article that is the subject of these proceedings was written by Brad Crouch and appeared on page 24 of the Sunday Mail on 28 March 2010. The headline was “Bignell partner’s $10m bonanza”. It was accompanied by a cropped version of one of Mr Gorbanovs’ photographs with the description “Scandal; Sandra De Poi handing out the controversial how-to-vote cards on polling day”.
The plaintiff says that on the Friday afternoon following the election, she was on her way to lunch in her car. Her executive assistant, Ms Marafioti left a message saying Brad Crouch had phoned in relation to the how-to-vote card. The plaintiff rang Ms Marafioti. The plaintiff understood that Mr Crouch was a journalist from what she was told. Ms Marafioti may or may not have said that he was from the Sunday Mail. There was no other detail in the message conveyed by Ms Marafioti other than a request to phone Mr Crouch. The plaintiff did not return his call. She did not receive any other contact from Mr Crouch either on her mobile phone or by email.
Mr Crouch said that following the election he had Sunday and Monday off and that he attended an editorial meeting on the following Tuesday. The subject of the ALP Family First strategy was discussed at the meeting because, to use Mr Crouch’s words, “it had blown up into a big political issue. Apart from the election result, that was the big political issue of the moment”[26]. He said that during the course of the meeting it was decided that their article would focus upon the plaintiff. He was asked:
QWhen did you first start working on your follow-up story, basically this article that was sued upon on 28 March.
APretty much on the Tuesday we decided this woman who had pretty much become the face of the whole incident who was being discussed in other media, who was she. It emerged she was Leon Bignell’s then girlfriend, who was a WorkCover Director, a Home Start Director, the founder of a multi-million dollar business, obviously an intelligent business woman. It was a case of let’s see who this woman is and what she has got to say for herself, why she did it.[27]
[26] [T] 284
[27] [T] 285
Mr Crouch explained how he researched the article. He first checked his employer’s news text library system to see if there were any previous references to Ms De Poi. He found an article that indicated that she was a figure of controversy in 2008.[28] This article related to the Parliamentary Statutory Authorities Review Committee and specifically the evidence of Mr Birch. Part of Mr Birch’s evidence was included in the article. Mr Crouch said he then went to the WorkCover website. The Annual Reports outlined the amount of money Ms De Poi’s consultancy had made out of WorkCover over the years and the defence of her position by the WorkCover Chairman and in the WorkCover Annual Reports. He included these matters in his article.
[28] Exhibit D1
It was put to Mr Crouch in cross-examination that he did not include in his article any reference to the report of the Statutory Committee dated 8 February 2010. He said he did not believe that he was aware of the existence of the final report at the time of writing the March article. He agreed that the report of the Statutory Committee indicated a leading auditing company was engaged to investigate whether there was a conflict of interest and that investigation absolved Ms De Poi of any conflict of interest in respect of the Board. It was put to him:
QDon’t you think it was a matter in the public interest for you to include that in your article.
AWell, as I say, I wasn’t writing the story about this particular inquiry and I believed that the paragraph ‘No formal steps were taken as a result of the inquiry’ and also the letter from Bruce Carter pretty much covered that area.[29]
[29] [T] 308

It was also put to Mr Crouch that the parliamentary report indicated that the Auditor General had likewise cleared Ms De Poi of any conflict of interest. He responded in similar terms to his previous answer namely that he wasn’t writing a report about the enquiry and he thought that the issue was covered off by the paragraphs he referred to earlier.[30]
[30] [T] 309
Mr Crouch agreed that the assertions contained in his article that the plaintiff had been a campaign manager for Jay Weatherill and involved in fund raising for Patrick Conlon were incorrect.
Mr Crouch said later in the week he rang the plaintiff’s office and spoke to a woman telling her that he was a journalist with the Sunday Mail and that he would like to speak to Sandra De Poi. The woman who answered the phone asked him what he wanted to speak to Ms De Poi about. He said he was writing a story about her wearing a fake Family First t-shirt and handing out how-to-vote cards. He wanted to know why she did it, who asked her to do it, if she had any regrets and if it would have any implications for her role as a director of WorkCover and Home Start.[31] He was told that Ms De Poi was busy and that she would get back to him. He left his phone number and that was the end of the conversation. Mr Crouch said that he had made notes prior to his call of the matters that he wished to discuss with the plaintiff.[32]
[31] [T] 288
[32] Exhibit D28
Ms Marafioti gave evidence about the telephone call. It has to be said that her recollection was very limited. Given the lapse of time this is hardly surprising. Ms Marafioti recalled receiving a call from a journalist. She thought he was from the Advertiser. He wanted to speak to Ms De Poi about an article that they were writing. She took down his details and passed on the message to Ms De Poi.
It was put to her that the journalist said that he was Brad Crouch of the Sunday Mail. She didn’t remember his name but she agreed that possibly he identified himself as being from the Sunday Mail. Mr Crouch’s version of what he said to Ms Marafioti was put to her. She said she did not remember what was said and none of those matters that were put to her “rang a bell”.
I accept Mr Crouch’s evidence about his call to Ms Marafioti. It was cogent, compelling and supported by his notes. Of course this does not mean that the whole of what he said was conveyed to Ms De Poi. Plainly however she was alerted to the fact that Mr Crouch was a journalist and that he wanted to speak to her about a story.
Mr Crouch gave evidence about the content of the article that I will deal with shortly. He did not write the headline. The person who wrote the headline was not called.
Ms Lloyd also gave evidence about the editorial meeting on the Tuesday following the election. She said that they debriefed concerning the election and that the topic of the Family First how-to-vote cards was discussed. She gave evidence as follows:
QThe story concerning the Family First how-to-vote card was the topic of discussion at the Tuesday editorial meeting after election.
AAbsolutely.
QWhy.
AOur photograph was continually being used and referred to.
QBy whom.
ABy other media. The story was a massive political story, it did not – By the time we came to work on the Tuesday it was still a very, very much alive story. It was everywhere; on talkback radio, on ABC and 5AA. It was on every news service. It was a story that was not going away. In fact, it was a national story. You had Senator Steven Fielding from Family First, he was in the Senate, commenting on this. It was a big story, it was a national story.
QOn the Tuesday meeting was there anything decided by you about the possibility of a follow-up story in the following Sunday’s edition.
AWe certainly were looking at how we would continue, what story would we be doing for the following Sunday. It’s Tuesday, we’re thinking about the following Sunday. We’re obviously conscious about what’s being reported during the week, we still had quite a few days of the week to go, what would still be relevant or fresh, where could we take this story, conscious of how it was also being reported elsewhere. We would obviously not want to repeat what other people were reporting but find something different. It was an issue worth keeping an eye on and looking into.[33]
[33] [T] 248
She said that Mr Crouch, as the State political editor, came up with a story idea and that their thinking was that the person who had become the face of the how-to-vote card scandal was worth looking into. She was asked why she approved the story written by Mr Crouch and her response was as follows:
I approved it because this was a major political story, it was beyond almost any other sort of election practices that we had seen in recent time. It had been a major newsworthy item of public interest for days, ever since the election day and you have somebody who has put on a T-shirt and handed out deceptive how-to-vote cards to people who are voting on election day and who is this person, and this person turns out to be not just somebody that has just walked in off the street or a small-time party volunteer, they are the partner of a candidate, they are a person that holds several Government appointed Boards, they have a position of standing in the community and they are involving in practices like that and I felt, and I agreed with Brad, that this was something that was worth publishing. This was also a person who was quite controversial, been involved in things that have been of some controversy in the past. It is about context. It is about relevance and it is of public interest.[34]
[34] [T] 251-2
It was put to Ms Lloyd that she knew Ms De Poi independently of meeting her with Mr Bignell shortly prior to the election, specifically it was put to her that Ms Lloyd was a friend of Mr Bignell’s first wife. Ms Lloyd denied this saying that whilst she knew his first wife it was because she was Ms Lloyd’s dental hygienist. I reject the suggestion implicit in the questions asked of Ms Lloyd that this provided the motivation for the publication and form of the story. There was no proper basis for this suggestion.
The plaintiff says[35] that the natural and ordinary meaning of the words in the article together with the photograph are that:
She obtained substantial financial benefit through her close ALP connections and thereby demonstrated that she lacks integrity;
She knowingly engaged in and placed herself at the centre of dishonest electoral practices;
She was one of the main instigators of dishonest electoral practices, which conduct is consistent with her past history of a preparedness to place herself in conflict of interest in her professional relationships with a view to financial benefit;
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.
The plaintiff says that these imputations are defamatory of her and have greatly injured her reputation including her professional reputation and have caused her distress, embarrassment, loss and damage including economic loss.[36]
What are the meanings or imputations attributable to the article?
[35] Paragraph 5 of the Plaintiff’s Third Statement of Claim
[36] Paragraphs 6 & 7 of the Third Statement of Claim
Legal Principles
There was some dispute between the parties as to the appropriate legal principles to be followed. In particular, the plaintiff submitted that, in determining what the ordinary reasonable reader would understand by the matters complained of, the court ought to consider the most damaging meaning conveyed by the publication or the most harmful imputation that arises.[37]
[37] Plaintiff’s Outline of Argument para 7-13
The submission relied upon the following dictum of Lord Reid in Lewis v Daily Telegraph Ltd:[38]
Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try and envisage people who fall between those two extremes and see what is the most damaging meaning that they would put on the words in question.
It is said that the High Court accepted this proposition in Chakravarti v Advertiser Newspapers Ltd.[39]
[38] [1964] AC 234 at 259
[39] (1998) 193 CLR 519 at 531
I reject this submission. This test applies in an interlocutory setting when objection is taken to pleaded imputations. The issue at trial is whether the words used actually impute the matters pleaded in the plaintiff’s statement of claim, not whether they are capable of that meaning.[40] The exercise I will undertake is not to decide the outer limits of the meaning that the words are capable of bearing, rather the exercise is whether the words actually convey the pleaded imputation.
[40] Lane & Hurley v Channel Seven Adelaide Pty Ltd (2008) SASC 101; Sands v Channel Seven Pty Ltd & Anor as above
I will proceed on the following basis:
·The onus of proof rests on the plaintiff to establish on the balance of probabilities that the meanings pleaded were in fact conveyed by the article.[41]
·The natural and ordinary meaning of the publications must be determined objectively by reference to the perception of the ordinary reasonable reader of average intelligence.[42]
·In determining the natural and ordinary reading meaning conveyed to the ordinary reasonable reader the court must approach the matter on the basis that this hypothetical person is neither perverse, naive, suspicious nor avid for scandal. The ordinary, reasonable reader does not live in an ivory tower but rather approaches the interpretation of the publication in the light of their general knowledge and experience of worldly affairs.[43]
·While the ordinary reasonable reader is capable of a certain level of loose thinking nevertheless there is a requirement of reasonableness with the consequence that a publisher will not be responsible for every conclusion reached by the reader. I must reject any meanings which are strained or forced or those which are reached through guess work or suspicion or those which are reached by taking into account the individual beliefs of the reader excited by what was said or shown.[44]
·A reasonable reader considers the publication as a whole and attempts to strike a balance between the most extreme meaning that the words could have and the most innocent meaning.[45]
·Having decided what the words in fact mean, I must then determine whether the meaning is defamatory.[46]
·It is the disparagement of reputation that is the essence of an action for defamation: In other words; does the imputation lower the standing of the plaintiff within the community or the estimation within which she is held or is it likely to cause people to think less of the plaintiff.[47]
·A defamatory statement need not be proven to be untrue by the plaintiff. If the defendant wishes to assert that it is true it is up to the defendant to prove that the statement is true.[48]
[41] Sands v Channel Seven Adelaide Pty Ltd (2010) SASC 202
[42] Farquhar v Bottom (1980) 2 NSW LR 380 & Favell v Queensland Newspaper Pty Ltd (2005) 79 ALJR 1716
[43] Chakravarti v Advertiser Newspaper Ltd (1998) 193 CLR 519
[44] Jones v Skelton [1964] NSWR 485, Favell v Queensland Newspaper Ltd as above; & Channel Seven Adelaide Pty Ltd v SPJ (2006) 94 SASR 296
[45] Jones v. Skelton op cit; Favell v. Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
[46] Lewis v Daily Telegraph Limited op cit; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506
[47] Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
[48] Cornes v Ten Group Pty Ltd & Ors (2011) 114 SASR 1 at para 9
The plaintiff contends that the various imputations pleaded arise and are defamatory of the plaintiff both personally and in her occupation or profession.[49] It is said that in the light of the article as a whole the ordinary reasonable reader would come to the imputations pleaded either directly or by drawing implications without any imaginative inferences or without bringing to bear their own beliefs or prejudices.[50] I will deal with each of the pleaded imputations in turn.
Does the article impute that the plaintiff obtained substantial financial benefit through her close ALP connections and therefore demonstrated that she lacks integrity?[51]
[49] Plaintiff’s Outline of Argument para 23
[50] Plaintiff’s Outline of Submissions para 21
[51] Paragraph 5.1 Third Statement of Claim
This imputation as pleaded contains a number of elements. The first element is that the plaintiff obtained a substantial financial benefit. The second is that this benefit was obtained through her close ALP connections. The third element is that, given the first two elements, a reader would form the view that the plaintiff had demonstrated a lack of integrity. As I have said the onus is on the plaintiff to establish on the balance of probabilities that this imputation was in fact conveyed.
I consider that the words used in the article convey that the plaintiff obtained a substantial financial benefit because of the use of the words “$10m bonanza” in the headline, the reference to the plaintiff’s consultancy receiving “nearly $10 million” and the quoting of figures from the WorkCover annual reports. This is only defamatory if, as the plaintiff contends, the financial benefit is undeserved or improperly obtained.
The article refers to the plaintiff as being the partner of “Labor MP Leon Bignell” and the fact that they had been dating for three years. It also contains the words:
she has impeccable Labor party left faction contacts, having worked as campaign manager for leadership aspirant Jay Weatherill and being involved in the fundraising for faction heavy weight Patrick Conlon.
The assertions concerning the plaintiff’s association with Mr Weatherill and Mr Conlon are, I note, conceded to be incorrect. They were nevertheless included in the article and form part of the context in which I must assess the pleaded imputations. I accept that the article conveys that the plaintiff has close ALP connections. There is nothing defamatory about that of itself.
I therefore conclude that the ordinary reasonable reader would read the article to convey that the plaintiff obtained a substantial financial benefit and also to convey that the plaintiff had close ALP connections. What is less clear is whether the ordinary reasonable reader would consider that the financial benefit was undeserved, that there was a link between the financial benefit and the close ALP connections and that the plaintiff lacks integrity.
The article repeats submissions made to a 2008 Parliamentary Statutory Authorities Review Committee enquiring into WorkCover Corporation by CFMEU officer Les Birch. Mr Birch is reported as asserting that the plaintiff had a conflict of interest as a Board member whose company benefited from WorkCover contracts. The article quotes Mr Birch as follows:
“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 this is probably one of the main reasons she gets such a huge amount of work.
The article goes on to quote the then WorkCover Chairman Mr Bruce Carter’s defence of the plaintiff and to reference the latest WorkCover Annual Report which defended the plaintiff from claims of conflict of interest. In particular it quotes the Report as saying that:
The terms and conditions of transactions were no more favourable than those available or which might reasonably be expected to be available, on similar transactions, to non-Board room member related entities on an arm’s length basis.
The plaintiff complains that nowhere in the article does the defendant say that the plaintiff was cleared of conflict of interest allegations by both the Statutory Committee and an independent audit company. The plaintiff further says that the use of the word “Bonanza” in the headline imports an undeserved windfall. These matters, it is said, convey the overall impression that the plaintiff lacked integrity.
I do not consider that the word “Bonanza” of itself conveys the pejorative meaning suggested by the plaintiff. As defined in the Macquarie Online dictionary it means:
(a) a mine of wealth; good luck.
(b) any fortunate and profitable occasion.
Any suggestion that the financial benefit was undeserved must come from the context rather than the mere use of the word “Bonanza” in the headline. The article quotes the WorkCover report as to the terms and conditions on which the plaintiff or her business received work being no more favourable than arm’s length providers which is far from suggesting an undeserved windfall.
There is no direct suggestion that the reason the plaintiff or her business received work was due to her close ALP connections. The plaintiff appears to contend that the imputation arises in some manner because of the reporting of her ALP connections and the reporting of Mr Birch’s evidence to the Parliamentary Committee. Whilst the plaintiff concedes that the article includes a denial of Mr Birch’s allegations by WorkCover it is said that “the question is left open and imports a dubious tone.”[52]
[52] Plaintiff’s Outline of Argument paragraph 39
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.
That the plaintiff knowingly engaged in and placed herself at the centre of dishonest electoral practices[53]
[53] Paragraph 5.4 of the Third Statement of Claim
There are three elements to this imputation. The first is that the plaintiff knowingly engaged in wearing the T-shirt and handing out the how-to-vote cards. Second, that she placed herself at the centre of that activity and third that it was a dishonest electoral practice. The first two elements are not of themselves defamatory. It is the combination of those elements with an imputation of dishonesty that, if made out, founds the disparagement of the plaintiff’s reputation.
I consider that the article conveys the imputation that the plaintiff knowingly wore the T-shirt and handed out the how to vote cards. Indeed this is an accurate portrayal of what occurred according to the plaintiff’s evidence. She engaged in the practice consciously, albeit without prior planning. She discussed the matter with Mr Gray when asked to put on the t-shirt and hand out the cards. She was aware that she was handing out how-to-vote cards which had as their object obtaining second preferences for the Labor party candidate. She did not accept that the practice was dishonest or misleading but plainly turned her mind to the effect of the t-shirt and the cards prior to engaging in the activity.
In relation to the second element of the imputation the article describes the plaintiff as
The woman at the centre of Labor’s how-to-vote dodgy documents scandal….
It is uncontroversial that the plaintiff was not rostered on as part of the ALP volunteer group at the Mawson Electorate and that her involvement was, in essence, accidental. She was only at the Hackham West Booth for a short period of about 30 – 45 minutes. She had no involvement in the Family First strategy beyond that. However, the plaintiff was photographed wearing the t-shirt and handing out the how-to-vote cards that formed the basis of the controversy. It is plain from the articles tendered in evidence that the plaintiff’s photograph was reproduced on a number of occasions and that she was often identified as Mr Bignell’s partner and named. There were no other photographs of people handing out the cards reproduced in the articles tendered in evidence. As both Mr Crouch and Ms Lloyd said, the plaintiff was “the face” of the controversy.
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.[54] 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.
[54] Plaintiff’s written Outline paragraph 171
The final aspect of the pleaded imputation is that the electoral practice was dishonest. I consider that this is conveyed by the article.
The article implies throughout that the ALP Family First strategy was misleading and dishonest. For example it describes the strategy as “Labor’s how-to-vote dodgy document scandal” and “an apparent ruse”. Elsewhere it refers to “the tactic of seemingly impersonating other parties”.
In summary I consider that the pleaded imputation is established as to the first and third elements that I have described. I am less certain as to the second element given the embellishment that the plaintiff “placed herself” at the centre of the practice and given the submission that this imports a role of primary instigator or implementer.
The plaintiff was one of the main instigators of “dishonest electoral practices” which conduct is consistent with her past history of a preparedness to place herself in conflict of interest in her professional relationships with a view to financial benefit. [55]
[55] Paragraph 5.5 of the Third Statement of Claim.
This pleading again contains a number of elements. First that the plaintiff was one of the main instigators. Second that the electoral practice was dishonest. Third that the plaintiff’s conduct was consistent with a past history of preparedness to place herself in conflict of interest; and finally that she was prepared to do so with a view to financial benefit.
I have already found that the article does impute that the electoral practice was dishonest. I have already found that the article does not impute that the plaintiff was in a conflict of interest. This pleading goes further by suggesting the imputation that the plaintiff had a preparedness to place herself in conflict of interest in her professional relationships with a view to financial benefit. I do not consider that those imputations arise from the terms of the articles. Further the reference in the article to allegations of conflict of interest in the past is introduced by reference to this not being the first time the plaintiff had been “embroiled in controversy”. The link between the past and present is one of controversy, not that the underlying conduct of the plaintiff was consistent.
Finally, as I have found, the article does not impute that the plaintiff was one of the main instigators of dishonest electoral practices.
I consider the whole of the imputation pleaded to be extravagant. I do not consider this imputation is conveyed on the natural and ordinary meaning of the words of the article.
That 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.[56]
[56] Paragraph 5.6 Third Statement of Claim
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.
Summary
In summary, I consider that the imputations pleaded in paragraphs 5.1 and 5.5 of the third statement of claim are not established. I will not therefore consider those matters further. I consider that part of the imputations pleaded in paragraphs 5.4 and 5.6 are established although I am less certain about the pleaded imputation that the plaintiff “placed herself” at the centre of the strategy contained in each of those pleadings. I will proceed to consider whether one of the defences raised in respect of those pleadings arises.
Does one of the pleaded defences arise?
Justification/Substantial Truth
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.[57]
[57] Sutherland v Stopes [1925] AC 47 & Howden v Truth & Sportsman (1937) 58 CLR 416
The notion of substantial truth is meant to convey that:
….slight inaccuracies of detail which do not affect the substance of the charge will not prevent the success of the plea.[58]
[58] Potts v Moran (1976) 16 SASR 284 at 306; Sutherland v Stopes (above)
The defendant says that the sting of the article is the participation of the plaintiff in dishonest electoral practices at the polling booth in Mawson. I accept that submission. As I have noted, the imputations in paragraph 5.4 and 5.6 of the Third Statement of Claim both rely upon that sting. The defence says that the sting is justified. I agree. It is my view that an overwhelming inference arises that the scheme was intended to mislead voters into allocating preferences to the ALP in the belief that they were following the official Family First how-to-vote card.
The colour of the T-shirts and the cards is a colour associated with Family First. The cards give the primary vote to Family First, rather than the ALP candidate. The t-shirt employed the words “Put your Family First” which was the slogan of Family First at the previous State election. The words “Family First” were featured more prominently than “put your”. Likewise the how-to-vote cards display the words “Family First” prominently at the top of the page. They only refer to the ALP party in smaller text at the foot of the page. The T-shirt did not refer to the ALP party in any way. ALP supporters handing out the “Family First” how-to-vote cards wore different clothing from other ALP supporters handing out orthodox how-to-vote ALP cards. Mr Gray’s evidence, as outlined above, conceded that the strategy had the capacity to mislead people who did not read the cards “properly”.
That the strategy had the capacity to mislead is corroborated by the evidence of Mrs Bennie, who spoke of the confusion caused by the ALP cards at the Hackham West polling booth. Also received in evidence were numerous complaints made to the Electoral Commission in relation to the scheme and various letters to the editor and commentaries published in the week after the election all of which indicated a view that the tactic was misleading and, in some cases, had misled.
The scheme was a deliberate strategy implemented by the ALP to gain second preferences from Family First voters in a seat where Family First had given its second preference to the Liberal party. It seems clear that there was disquiet about the possible implications of the strategy given Mr Gray’s evidence. He said that the ALP had sought legal advice about the scheme prior to the election. He spoke about selecting volunteers “prepared” to do it, the steps he took to reassure the volunteers that the process was legitimate and the instructions to volunteers in the event of complaints.
Dishonesty is defined in the Macquarie Online dictionary as:
1. lack of honesty; a disposition to lie, cheat, or steal.
2. a dishonest act as a fraud or theft.
Whilst the scheme did not breach the Electoral Act, it was in my view outside the spirit of the law. It objectively offended the standards of ethics accepted by the community and the standards of morality underlying the law and is accordingly “dishonest”.
The next issue relates to the plaintiff’s involvement. My finding in relation to the dishonesty of the electoral scheme does not involve a serious allegation against the plaintiff. It does not call for anything beyond a finding on the balance of probabilities with the onus falling on the defendant.[59] This is not a question of a criminal offence in which dishonesty is an element but rather an objective test having regard to how the conduct in question can be assessed against the relevant moral and ethical standards of ordinary, decent people.[60]
[59] Briginshaw v Briginshaw (1938) 60 CLR 336 & Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
[60] Peters v The Queen (1998) 192 CLR 493 & R v Salvo [1980] VR 401
There is sufficient material to establish that the plaintiff was aware of the nature and intent of the scheme and yet nevertheless participated in it.
As I have said I have doubts about whether the article conveys the imputation that the plaintiff placed herself at the centre of the electoral practice as opposed to being at the centre of the practice. She was objectively at the centre of the practice in the sense that she had been photographed and had become “the face” of the practice. If the article does convey the impression that she placed herself in that position, I consider that it is justified.
The plaintiff is a prominent and successful businesswoman. She was an ALP member with personal connections to the highest level of the party, a Board member of significant Government instrumentalities, a person who had been involved in past public controversy, her role on the WorkCover Board and the then partner of the ALP candidate for Mawson. She chose to participate in the scheme at Hackham West when invited to do so by David Gray. Whilst I accept that she did not pre-plan her involvement, she considered the issue and discussed her concerns with Mr Gray before engaging in the activity. It was inevitable that by doing so she would become the focus of significant attention if discovered.
The plaintiff wore the T-shirt. She held and handed out the how-to-vote cards. The photographs indicate that she was immediately adjacent to a Family First poster whilst wearing the T-shirt and handing out the cards. The colour of the Family First poster visible in the photographs of the plaintiff closely matches the colour of the plaintiff’s T-shirt and the how-to-vote cards. It was suggested in submissions that the plaintiff was associated with an ALP base at the polling booth. Indeed, there is a complaint that the photograph used in the article was cropped to exclude those ALP posters. This submission is not however borne out by the photographs. Whilst there are a number of posters for the ALP and Mr Bignell visible in the photographs, posters for Family First and the Save the RAH Party are also visible. In my view the plaintiff was more likely to have been associated with the Family First poster by casual onlookers by reason of her T-shirt rather than with the ALP party. There was no apparent reason for anyone to associate her with the ALP in the circumstances.
I find that the plaintiff knew that she was participating in the scheme and that the scheme itself was dishonest when objectively considered. In my view it is not necessary for the defendant to establish that the plaintiff knew the scheme was dishonest at the time she wore the T-shirt and handed out the cards. However, it is my view that the plaintiff, notwithstanding her denials, was aware of the capacity of this strategy to mislead voters. When asked if her case was that the strategy was “completely above board” she did not answer directly.[61] The clear inference to be drawn from her evidence was that she had some misgivings because of her insistence that she was told that the ALP had obtained legal advice on the scheme and that it had been signed off or “legalled”. She also said that being associated with the scandal arising from the how-to-vote card issue made her look “extremely dodgy”.[62] That being the case it seems hard to resist the inference that she thought the scheme itself looked “dodgy”. As I have said, the plaintiff read the T-shirt and the how-to-vote cards. She was made aware of the purpose of those items by Mr Gray. She knew that the items were part of an ALP scheme to get second preference votes from Family First voters when they had preferenced the Liberal Party in Mawson. Taking all of those matters into account I consider that the plaintiff did know that the scheme was dishonest at the time she participated in it.
[61] [T] p60
[62] [T] p33
Conclusion
In conclusion it is my view that the defendant has justified the imputation at paragraph 5.4 of the Statement of Claim that the plaintiff knowingly engaged in and placed herself at the centre of dishonest electoral practices and in 5.6 that she placed herself at the centre of dishonest electoral practices. Accordingly the defence of justification is made out in respect of both imputations.
Damages
In view of these findings I do not need to consider the other defences raised by the defendant, nor do I need to consider the question of damages. Notwithstanding this I will make some brief comments on the question of damages. I note the plaintiff’s outline of argument and the matters set out under the heading of Damages at paragraph 196 and following. I accept the general principles outlined in that submission however, 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.
Conclusion
I therefore dismiss the plaintiff’s claim and I will hear the parties as to the question of costs.