Fleming v Advertiser-News Weekend Publishing Co P/L (No 2) - [2016] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING CO P/L & ANOR (No 2)
[2016] SASC 26
Judgment of The Honourable Auxiliary Justice Malcolm Gray
24 February 2016
DEFAMATION
DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION
DEFAMATION - JUSTIFICATION
DEFAMATION - JUSTIFICATION - TRUTH - SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH
DEFAMATION - JUSTIFICATION - TRUTH - EVIDENCE
DEFAMATION - DAMAGES
Action for defamation against commercial print newspaper (the first defendant) and online publications by commercial newspaper (the second defendant). The first defendant published five articles between 31 August 2008 and 16 August 2009 about the plaintiff being the subject of a police Paedophile Task Force investigation. The publications alleged that the plaintiff was sexually involved with two girls, one under age, and that he had a homosexual affair. The second defendant published four articles online between 31 August 2008 and 8 February 2009. The articles published by the second defendant contain the same words as the first four articles published by the first defendant.
Whether publications convey the imputation that the plaintiff as an Anglican priest had committed, or there were reasonable grounds to suspect that the plaintiff had committed, the criminal offence which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor (the original imputations). Whether the publications convey the imputation that the plaintiff engaged in criminal sexual behaviour while an Anglican priest (the adopted imputation). Consideration of principles to be applied in determining whether the imputations pleaded are conveyed by the publications.
Whether the publication conveys the contextual imputations that the plaintiff while an Anglican priest engaged in sexual misconduct, predatory sexual behaviour, morally reprehensible and deceitful conduct, an immoral adulterous homosexual affair, hypocrisy, abuse of trust, moral cowardice and a false denial of sexual involvement.
Plaintiff permitted to adopt the contextual imputation that the plaintiff engaged in criminal sexual behaviour while an Anglican priest. Defendant permitted to plead justification to that imputation.
Whether defendant’s contextual imputations are conveyed by the publications. Some contextual imputations not conveyed by the pleaded publication but all contextual imputations conveyed by one or other of the publications.
Whether the defendants’ plea of justification had been made out. Criminal sexual behaviour relied upon is gross indecency with a person under the age of 16 years contrary to s 58 of the Criminal Law Consolidation Act 1935 (“the Act”). The imputation that the plaintiff engaged in criminal sexual behaviour while an Anglican priest is substantially true.
Consideration of the basis upon which damages would have been assessed if plaintiff’s claim had succeeded. Claim for personal injury in respect of depressive illness, special damage for economic loss and aggravated damages. Whether plaintiff’s loss of employment caused by publication. Whether grounds for awarding aggravated damages.
Held:
The publications do not convey the original imputations that the plaintiff as an Anglican priest had committed, or there were reasonable grounds to suspect that the plaintiff had committed, the criminal offence which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor. The publications convey the adopted imputation that the plaintiff engaged in criminal sexual behaviour while an Anglican priest, and that imputation is defamatory [109].
The defendants make out their defence that the imputation that the plaintiff engaged in criminal sexual behaviour while an Anglican priest is substantially true [427].
The publications convey the pleaded contextual imputations that the plaintiff while an Anglican priest engaged in criminal sexual behaviour, sexual misconduct, predatory sexual behaviour, morally reprehensible and deceitful conduct, an immoral, adulterous, homosexual affair, hypocrisy, abuse of trust, moral cowardice and false denial of sexual involvement [60].
The contextual imputations upon which the defendants rely are substantially true [465].
Claim dismissed. Judgment for the defendants [520].
Criminal Law Consolidation Act 1935 (SA) s 55, s 57, s 58; Defamation Act 2005 (SA) s 24; Defamation Act 2005 (NSW) s 26; Defamation Act 1974 (NSW) s 16; Civil Law (Wrongs) Act 2002 (ACT) s 136; Defamation Act 2006 (NT) s 23; Defamation Act 2005 (Qld) s 26; Defamation Act 2005 (Tas) s 26; Defamation Act 2005 (Vic) s 26; Defamation Act 2005 (WA) s 26; Evidence Act 1929 (SA) s 34CB, s 69A, s 71A; Supreme Court Civil Rules 2006 (SA) r 120A(4), referred to.
Besser v Kermode (2011) 282 ALR 314; Briginshaw v Briginshaw (1938) 60 CLR 336; Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519; G v H (1994) 181 CLR 387; Singleton v Police [2009] SASC 41; Knuller (Publishing, Printing & Promotions) Ltd v Director of Public Prosecutions [1973] AC 435; Helton v Allen (1940) 63 CLR 691; R v AWL [2003] SASC 416; Rejfek v McElroy (1965) 112 CLR 517; Blake v John Fairfax Publications Pty Ltd [2001] NSWSC 885; Lewis v Daily Telegraph Limited [1964] AC 234; Ten Group v Cornes (2012) 114 SASR 46; Sands v Channel 7 Adelaide Pty Ltd & Anor (2009) 104 SASR 452; Sands v Channel 7 Adelaide Pty Ltd & Anor [2010] SASC 202; Sands v State of South Australia (2015) 122 SASR 195; Triggell v Pheeney (1951) 82 CLR 497; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Steele v Mirror Newspapers [1974] 2 NSWLR 348; Rigby v Mirror Newspapers Ltd (1963) 64 SR (NSW) 34; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474; Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, applied.
Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor (Unreported, Supreme Court of South Australia, Judge Lunn, 31 May 2011); Fleming v Advertiser-News Weekend Publishing Company Pty Ltd & Advertiser Newspapers Pty Ltd [2012] SASC 58; Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor (No 2) [2012] SASC 127 ; Hogan v Hinch (2011) 243 CLR 506; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Fleming v Advertiser-News Weekend Publishing Company Pty Ltd & Anor [2014] SASC 145, discussed.
Fleming v Advertiser-News Weekend Publishing Company Pty Ltd & Anor [2010] SASC 255; Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852; Holt v TCN Channel 9 Pty Ltd (2014) 86 NSWLR 96; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; John Fairfax Publications Pty Ltd & Anor v Gacic & Ors (2007) 230 CLR 291; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619; Praed v Graham (1889) 24 QBD 53; Herald & Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1; R v Cassebohm (2011) 109 SASR 465; R v N, RC (2012) 112 SASR 399; R v Maiolo (No 2) (2013) 117 SASR 1, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"defamation", "defence of justification", "contextual truth", "contextual imputation", "balance of probabilities"

FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING CO P/L & ANOR (No 2)
[2016] SASC 26
Civil
GRAY AJ.
Introduction
The plaintiff’s background
Events prior to the publication
The publications
The first publication
The second publication
The third publication
The fourth publication
The fifth publication
The history of the imputations pleaded by the plaintiff
The defence
The defence of contextual truth
The further amendment of the statement of claim and defence
A complication occasioned by the amendment
Principles to be applied to finding the imputations conveyed
The imputations pleaded by the plaintiff
The first publication and first web publication
The second publication and second web publication
The third publication and third web publication
The fourth publication and fourth web publication
The fifth publication
Conclusion
The contextual imputations pleaded by the defendants
The first publication and the first web publication
Conclusion

The second publication and the second web publication
Conclusion

The third publication and the third web publication
Conclusion

The fourth publication and the fourth web publication
Conclusion

The fifth publication
Conclusion

Particulars of the contextual imputations
Particulars of the defence of justification
The offences particularised in the defence of justification
Pseudonyms
The standard of proof
Issues concerning the evidence of the principal witnesses
The course of the trial
A matter concerning the plaintiff’s initial cross-examination
The principal witnesses
Peter Kay
General
The “kicking” incident
The “undressing” incident
The first mutual masturbation allegation
The mutual masturbation allegation at Dr Kay’s parents’ house
Anglican camp
Mutual masturbation allegation at St Mark’s College
The plaintiff’s return to Australia
The airport incident
The incident of 11 May 1983
The plaintiff’s general criticisms of Dr Kay’s evidence
The plaintiff’s specific criticisms of Dr Kay’s evidence
The “kicking” incident
The “undressing” incident
The first mutual masturbation allegation
The mutual masturbation allegation at Dr Kay’s parents’ house
Anglican camp
The mutual masturbation allegation at St Mark’s College in 1976
The airport incident
The incident of 11 May 1983

The plaintiff’s denial of the incidents
Alan Courtney
Sue Kay
Ms Kay’s conversation with the plaintiff
The disclosure to the Marriage Tribunal
Conversations concerning disclosure to the Marriage Tribunal
The lunch with Ms Kay

The “terrible misunderstanding”
The plaintiff’s responses to the Abbott inquiry
Other related matters

Conclusion

Jane
General
The Meningie incident
The Brighton Beach incident
Other occasions at Brighton
The St Mark’s College incident

The plaintiff’s response to Jane’s allegations
Statements made by Jane
The plaintiff’s general criticisms of Jane’s evidence
Jane’s attitude
Exaggeration
An apparently inconsistent statement
Dr Arnold

The plaintiff’s specific criticisms of Jane’s evidence
The Meningie incident
The Brighton Beach incident
Other occasions at Brighton
The St Mark’s College incident

Conclusion

Dianne Lynch
General
The timing of the incident
The incident
The subsequent allegation made against the plaintiff
The plaintiff’s association with Ms Lynch
Description of the Kermode Street premises
Occupation of Kermode Street
Contact after the incident
The account given by Ms Lynch concerning the incident
Conclusion

Damages
General
Reputation
Depressive illness
Loss of employment
Aggravated damages
Conclusion
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Introduction

The plaintiff, Father John Irving Fleming, brings this action for defamation against Advertiser News Weekend Publishing Company Pty Ltd (“the Sunday Mail”) and Advertiser Newspaper Pty Ltd (“The Advertiser”).
The action against the Sunday Mail is based upon the publication of five articles in the Sunday Mail newspaper on 31 August 2008, 7 September 2008, 9 November 2008, 8 February 2009 and 16 August 2009 respectively.
The action against The Advertiser is based upon the publication by The Advertiser of four of those articles on its website, ‘Adelaide Now’, on 31 August 2008, 7 September 2008, 7 November 2008 (which corresponded with the article published on 9 November 2008) and 8 February 2009 respectively.
The articles published by The Advertiser on its website, Adelaide Now, contain for all intents and purposes the same words as the first four of the articles published in the Sunday Mail newspaper, which are referred to above. Accordingly, the plaintiff brings this action in respect of nine separate publications of five separate articles.
The nature of each of the publications and the imputations that are said by the plaintiff to arise from them are the subject of further analysis later in these reasons.
As against both the Sunday Mail and The Advertiser, the plaintiff claims damages and interest. The claim for damages includes damages for personal injury and claims that the first and second publications in publishing the defamatory imputation caused the onset of a major depressive illness exacerbated by subsequent publications. The plaintiff also claims special damages, particularised as economic loss as a result of the termination of his employment as President of Campion College Australia following one or some of the publications. The plaintiff also claims aggravated damages.
Both the Sunday Mail and The Advertiser have at all times been jointly represented and have defended the action as one. The defendants deny that the articles conveyed the alleged imputations complained of by the plaintiff. In the alternative, the defendants plead a defence of contextual truth in respect of each of the publications. That is, the defendants contend that each of the articles carried certain contextual imputations, which are true both in substance and in fact. Therefore, the defendants have pleaded that the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. Further, the defendants deny that the articles have caused injury to the reputation of the plaintiff or have caused him loss or damage, aggravated or otherwise.
Further details of the pleadings, and in particular its lengthy history of forensic disputation, appear later in these reasons.
The plaintiff’s background
The plaintiff was born in Port Lincoln, South Australia, on 12 June 1943. The plaintiff’s father was the rector at Cummins on the Eyre Peninsula. Shortly after the plaintiff’s birth, he and his family relocated to Western Australia where his father took up a number of rectory appointments. The plaintiff and his family remained in Western Australia until February 1959 when they returned to South Australia.
Following his secondary schooling at St Peter’s College, Adelaide, the plaintiff resided at St Mark’s College in North Adelaide and obtained a Bachelor of Arts degree from the University of Adelaide. He subsequently attended St Barnabus Theological College in 1967 and 1968, a place of training for Anglican priests, where he obtained an honours degree in the Licentiate of Theology from the Australian College of Theology, a national body which oversaw the training of Anglican clergy. In 1993, the plaintiff obtained a PhD from Griffith University, awarded by his thesis entitled, ‘Human Rights and Natural Law: An Analysis of the Consensus Gentium and its Implications for Bioethics’.
The plaintiff was ordained as a deacon in the Anglican Church on 2 February 1969 and as an Anglican Priest on 2 February 1970. He was appointed as assistant curate at St Jude’s Anglican Church, Brighton for that diaconal year and his first year as a priest. In June 1970, the plaintiff was offered a position at the commercial radio station 5AD. That position involved a weekday morning show and his pastoral duties were adjusted to take that into account. At the end of 1970, the plaintiff left St Jude’s to take up an appointment as the chaplain at the University of Adelaide commencing in 1971. This was a full-time position in which the plaintiff resided at St Mark’s College. In 1971, the plaintiff began writing two columns per week for the Adelaide Advertiser Newspaper which continued until he left to reside in the United Kingdom in December 1976. In that period, the plaintiff was also a panellist on a commercial television program, and undertook work in the media department for the Anglican Church, as well as taking on other television related roles. The plaintiff had been actively involved with the Human Life Research Foundation and from 1972 he was on the council of the Right to Life Association and became its Vice President. In 1972, the plaintiff was asked to add to his duties that of chaplain at Flinders University as well as chaplain to Adelaide University. The plaintiff worked in those roles concurrently with a further role as parish priest at St Paul’s Church, Pulteney Street, Adelaide, where he was inducted in September of that year. The plaintiff resided at St Mark’s College in a flat which was part of the premises known as ‘Hawker House’ from 1971 until 1974. Subsequently, in June 1976, the plaintiff became the Vice Master and Assistant Chaplain at St Mark’s College.
The plaintiff met his now wife, Alison McNicol, in 1969. The McNicol family had offered the plaintiff accommodation in a self-contained flat on their property when he first commenced as assistant curate at St Jude’s. Alison McNicol would have been 12 years old at the time, attending St Jude’s with her family as a parishioner and choir girl. Following the plaintiff’s departure from St Jude’s at the end of 1970, he maintained contact with the McNicol family and towards the end of 1973 the plaintiff says that he formed a romantic attachment with Alison McNicol. At that time she was 17 years of age and the plaintiff 30. In July 1974, the plaintiff and Alison McNicol who had by then turned 18 became engaged, and they were subsequently married on 4 January 1975. After their marriage, they resided in a semi-detached cottage provided by St Mark’s College at Kermode Street, North Adelaide until late 1976. In June 1976, the plaintiff resigned from St Paul’s and his other appointments to accept an appointment as Vice Master and Assistant Chaplain at St Mark’s College.
In late 1976, the plaintiff and his wife moved to the United Kingdom where, between 1977 and 1978, he was the assistant curate at St Nicholas Church, Chiswick in West London. They returned to Australia in August 1978 when the plaintiff took up an appointment as Rector of the Anglican Parish of Plympton, South Australia, at the Church of the Good Shepherd where he remained for nine years, resigning from the Anglican Church in 1987 and joining the Catholic Church in that year.
During his time at the Church of the Good Shepherd, the plaintiff resumed writing two columns for The Advertiser together with a weekly feature piece. He continued to be involved with commercial radio. He worked with the radio station 5DN from 1979 for three or four years and then radio station 5KA up until 1987. He had further involvement with radio station 5AA from 1990 to 2004.
In 1980, the plaintiff’s first child was born. His two other children were born in 1982 and 1985.
Following his retirement from the Anglican Church, the plaintiff took up a role as the Foundation Director of the Southern Cross Bioethics Institute where he remained until 2004. Two years after joining the Catholic Church, the plaintiff applied to Archbishop Leonard Faulkner, to be ordained as a Catholic priest. Because the plaintiff was a married man, Archbishop Faulkner required a dispensation from the Vatican to be allowed to ordain the plaintiff.
During this time the plaintiff obtained a PhD from Griffith University in 1993.
The plaintiff was ordained as a deacon in the Catholic Church in November 1994 and as a priest on 20 May 1995. Between 1995 and 2004, he remained in his role as Director at the Bioethics Institute. During that time he also was a member of a number of professional advisory boards and associations, including the Centre for International and Cross Cultural Studies, the Australian Constitutional Convention, South Australian Council of Reproductive Technology, Biotechnological Consultative Group, Aged Care Compliance and Accreditation Forum, John Paul II Institute for Marriage and Family, and the Medical Practitioners Professional Conduct Tribunal.

In 2004, the plaintiff resigned from the Bioethics Institute to take up the appointment as the inaugural President of Campion College in Sydney, a newly established liberal arts college. The plaintiff was employed in this position at the time of the publication of the first article the subject of these proceedings. At that time, his contract of employment had been extended for four years from 1 July 2008.
Events prior to the publication
On 27 August 2008, the plaintiff received email correspondence from Nigel Hunt, a journalist with the Sunday Mail newspaper, with respect to him preparing a “report” for the following Sunday’s edition of that newspaper and requesting an opportunity to interview the plaintiff in Sydney the next day. In the meantime, the plaintiff was advised by a friend that a story of a sexual nature to be run by Mr Hunt would implicate him. On that day, the plaintiff’s wife also received telephone calls about the impending story and she took the next day off work to remain at home with her husband. The next day, Mr Hunt attended at the plaintiff’s home in New South Wales and spoke to the plaintiff’s wife. Mr Hunt provided a handwritten note setting out the matters that the Sunday Mail intended to publish. The note referred to “a lengthy sexual relationship with an underage female”, “a single sexual encounter with another girl when she was aged 17” and “a homosexual relationship with a man for several years after he sought counselling from you on his sexuality”. On the basis that Mr Hunt had said that the plaintiff giving an interview would not change the story, the plaintiff’s wife provided him only with a written response advising that the allegations were defamatory. The plaintiff described the devastating effect on him and the following day he was admitted to the Northside West Clinic, Wentworthville, New South Wales, with severe mental health issues where he remained for three days before being discharged. On 31 August 2008, a friend, Mr Stuart Lindsay, flew to Sydney from Adelaide and brought with him a copy of the Sunday Mail published that day which he showed to the plaintiff. He assisted the plaintiff in preparing a detailed public statement denying the allegations in the publication.
The publications
After the article referring to the plaintiff in the first publication on 31 August 2008, the defendants published four further articled in the Sunday Mail on 7 September 2008, 7 November 2008, 8 February 2009 and 16 August 2009. The articles of 7 September 2008, 7 November 2008 and 8 February 2009 were published on the defendants’ website, “Adelaide Now”.
The common theme of all of the articles published by the defendants is the report that the plaintiff was the subject of a police Paedophile Task Force investigation over allegations that he was sexually involved with an underaged girl in the 1970’s. The articles all make reference to the plaintiff’s activity when he was an Anglican priest relating to allegations that he was sexually involved with two girls, one underaged, and that he had a homosexual affair before he was ordained as a Catholic priest. The persons making the allegations were given the pseudonyms “Jane”, “Jenny” and “Richard”.
The first publication
The first article complained of was published in the Sunday Mail newspaper on 31 August 2008. Also on that date, the article was published on the website, Adelaide Now, and contained essentially the same words as the newspaper article with one of the photographs of the plaintiff that accompanied the newspaper article.
It is difficult to fully reproduce the newspaper article of which the plaintiff claims because of the graphics, photographs and pictorial representations contained in the newspaper article which are not matched in the internet article. However, the general content was the subject of publication on the website. It is convenient to attach as Appendix A the internet publication together with the supplemented links to it ascribed on the web page as ‘Victims Statement Jane’s Story/Cardinal Pell’s reply’, ‘Victims Statement Jenny’s Story/Cardinal Pell’s reply’, ‘Victims Statement, Read Richard’s Story’.
I add the following as descriptive of matters in to the newspaper article which are not set out or form part of the internet publication.
The front page, left column of the newspaper sets out the first six paragraphs of the internet content under the headline ‘Top Priest in Police Church Inquiries.’ Reference is then made to page four of the newspaper. On page four there is headlined “Special Report” then in heavy block letters “Church did nothing” and in lesser block but also highlighted “Police investigate prominent Priest”. On the right hand side of the page is a photograph of Archbishop George Pell together with a graphic of a letter from him to a blanked out addressee, and occupies half of the text on that page.
The article is then continued on page five of the newspaper under the headings “Special Report” and “sex accuser claim”. On the left side of the page is a photograph of the plaintiff adjacent to a letter from Cardinal Pell, again to a blacked out addressee, containing the sentence “the allegations you make against Fr Fleming are of a very serious nature. They should be investigated by the police, and I would encourage you strongly to pursue your claim with them”.
The photograph of the plaintiff is accompanied by a graphic “COMPLAINT: Letter to ‘Jenny’ over her alleged treatment by Father John Fleming (pictured)”. In the middle of the page which includes “Jane’s Story” is a block “ANGLICAN INQUIRIES ‘ON HOLD’” where the following dot points are set out:
·Anglican Church investigations into the allegations against Father Fleming by the two female victims are “on hold”, Archbishop Jeffrey Driver said yesterday.
·“In line with our protocols, these investigations are on hold pending completion of police inquiries, but will be resumed immediately the police inquiries are completed,” he said.
·Asked if it was standard practice for an Anglican priest or employee to be stood aside in the first instance of an allegation being made against them, Archbishop Driver said the Professional Standards Committee had the power to recommend this.
·“Where the allegations are serious, it would be most likely that there would be a recommendation to the archbishop that a person should be stood aside,” he said.
In the bottom right corner of the page, the words “Now read about Jenny & Richard P82” are set out, with black and white cut-out half profiles of a female and a male depicted.
Page 82 of the newspaper has the headings “Insight”, “How we are coping”, “Jenny and Richard have given extensive statements to police concerning their sexual encounters with Father John Fleming. They spoke to NIGEL HUNT about how they have been affected”. Two columns on the left hand side are headed “JENNY’S STORY” and two columns on the right are headed “RICHARD’S STORY”. In the centre of the page there are two photographs arranged in a column. The first photograph is a black and white graphic profile against wire netting taking up approximately three quarters of the page, with the words underneath “INTIMIDATED: Jenny “I felt I wasn’t believed”. The bottom quarter of the photograph columns contains a photograph of the plaintiff with the words above it “ACCUSATIONS: Father John Fleming”.
The second publication
The second article complained of was published in the Sunday Mail newspaper of 7 September 2008. On the same date, the article was published on the website, Adelaide Now and contained essentially the same words in the newspaper article. The internet publication is attached as Appendix B.
The headings on the articles differ. The newspaper headline is “Fleming told me to deny affair”. The headline on the website is “Priest told me to deny affair”. The newspaper has an adjacent photograph of the plaintiff with the caption “DENIALS: Father Fleming at Sydney’s Campion College, where he was appointed head in 2005”. At the foot of two of the columns in the newspaper article is an insert expressed as being “From last week’s ‘Sunday Mail’” with a heading “Church did nothing, sex accuser claims” with two small photographs under this heading, which I take to be of Cardinal Pell on the left hand side and the plaintiff on the right. Otherwise the newspaper and website articles are the same.
The third publication
The third article complained of was published in the Sunday Mail newspaper of 9 November 2008. The article was published on the website, Adelaide Now with the date 7 November 2008 and contained the words in the newspaper article. The internet publication is attached as Appendix C.
Only the headings on the articles differ. The newspaper headline is “Priest sex claim report next year”. The headline on the website is “Father John Fleming sex claim report next year”.
The fourth publication
The fourth article complained of was published in the Sunday Mail newspaper of 8 February 2009. On the same date, the article was published on the website, Adelaide Now and contained the words in the newspaper article. The internet publication is attached as Appendix D.
The newspaper article has a photograph of the plaintiff with the caption “INQUIRY: Father John Fleming”. Otherwise only the headings on the articles differ. The newspaper headline is “Parishioner alleges affair Church investigates priest”. The headline on the website is “Church investigates Father John Fleming over homosexual claim”.
The fifth publication
The fifth article complained of was published on 16 August 2009. The text of the publication is attached as Appendix E. The headline to the article is “Priest sacked from college” and the sub-headline is “Sexual misconduct investigation”. A photograph of the plaintiff occupying two columns has the caption “INVESTIGATION: Father John Fleming at Campion College in 2006”.
The history of the imputations pleaded by the plaintiff
This matter has had a lengthy history of disputes on the pleadings predominately related to the plaintiff’s attempts to strike out the defendant’s pleas of justification and contextual truth.
The action was commenced by summons and statement of claim in the District Court on 28 August 2009 and an order transferring the matter to this Court was made by consent of the parties on 9 April 2010.
What now follows is an account of the amendments made by the plaintiff to the imputations said to arise from the articles and pleaded in the successive statements of claim filed in these proceedings.
Paragraph 14 of the statement of claim filed on 28 August 2009 pleaded:
In this natural and ordinary meaning, the words in the first to the fifth publication published by the first defendant and the first to the fourth web publications published by the second defendant meant and were understood to mean:
(1)that the plaintiff had committed major indictable criminal offences of unlawful sexual intercourse; alternatively
(2)that there were reasonable grounds to suspect that the plaintiff had committed major indictable criminal offences of unlawful sexual intercourse.
In the amended statement of claim filed on 22 December 2009, the words “major indictable” were deleted.
An application was made to Judge Burley to strike out the defendant’s third defence to what was then the plaintiff’s further amended statement of claim containing paragraph 14 as it stood in the amended statement of claim filed on 22 December 2009.
The defence pleaded a defence of justification and a defence of contextual truth to the plaintiff’s pleaded imputations. His Honour struck out a number of paragraphs particularising the defences mainly for breach of what was described as the conduct and repetition rules but otherwise dismissed the plaintiff’s application including the plaintiff’s contention that the defence based on contextual truth was not available to the defendants because the substantial truth of the contextual imputations pleaded by the defendants could not further injure the plaintiff’s reputation because of the gravity of the imputation upon which the plaintiff relied.[1]
[1] Fleming v Advertiser-News Weekend Publishing Company Pty Ltd & Anor [2010] SASC 255.
By notice of appeal filed on 8 September 2010, the plaintiff appealed Judge Burley’s decision to not strike out the defendant’s plea of contextual truth.
Without that appeal being determined, the plaintiff filed a third amended statement of claim by leave on 22 December 2010. The plaintiff pleaded:
5AIn their natural and ordinary meaning, the words in the first publication and the first web publication meant and/or were understood to mean:
(1)     That the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a vulnerable minor in her formative adolescent years who might be as young as 13 thereby resulting in irreversible effects; or alternatively
(2)     That there were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a vulnerable minor in her formative adolescent years who might be as young as 13 thereby resulting in irreversible effects.
…
7AIn their natural and ordinary meaning the words in the second publication and the second web publication meant and were understood to mean:
(1)     That the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be as young as 13; or alternatively
(2)     There were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be as young as 13.
…
9AIn their natural and ordinary meaning the words in the third publication and the third web publication meant and were understood to mean:
(1)     That the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be younger than 13; or alternatively
(2)     There were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be younger than 13.
…
11AIn their natural and ordinary meaning the words in the fourth publication and the fourth web publication meant and were understood to mean:
(1)     That the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be as young as 13; or alternatively
(2)     There were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be as young as 13.
…
12AIn their natural and ordinary meaning the words in the fifth publication and the fifth web publication meant and were understood to mean:
(1)     That the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be younger than 13 in respect of whom he stood in a professional relationship; or alternatively
(2)     There were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be younger than 13 in respect of whom he stood in a professional relationship.
On 9 February 2011, the defendants filed a fourth amended defence and on 10 May 2011 a fifth amended defence.
A further application to strike out these defences was made. In light of this application on the now further amended pleadings, the appeal from Judge Burley’s decision was not determined and the further strike out application was referred to Judge Lunn to be dealt with by reference to the pleadings as they has been further amended. Judge Lunn approached the strike out application independently of the views expressed by Judge Burley in the proceedings that had been the subject of the appeal.[2]
[2] Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor (Unreported, Supreme Court of South Australia, Judge Lunn, 31 May 2011).
One specific matter in contention was the defendant’s plea in the defence specifying oral intercourse as a particular of justification.
The plaintiff contended that, as the plaintiff’s imputation was based on the criminal offence of unlawful sexual intercourse, it was not open to the defendant to allege by way of justification other sexual activities such as oral sex, indecent assault or interference or gross indecency.
Judge Lunn rejected the plaintiff’s contention. He proceeded on the basis that the plaintiff could be alleging an offence which at the relevant time was an offence under s 55 of the Criminal Law Consolidation Act 1935 (SA). The act proscribed by that section was described and commonly known as “unlawful carnal knowledge”. Judge Lunn pointed out that the phrase “unlawful sexual intercourse” did not appear anywhere in that Act at that time. He also concluded that the reference in s 55 to carnally knowing a person under the age of 17 was confined to vaginal sexual intercourse for the reason that a definition of “sexual intercourse” which extended to anal and oral intercourse was not enacted until 1976. The relevant period in which the alleged victim was under the age of 17 years was well before that enactment took effect. He regarded the pleading as ambiguous as to whether it was referring to the offence of carnal knowledge as it existed in the relevant period, or whether it referred to the subsequent enacted offence of unlawful sexual intercourse which left it reasonably arguable that acts of oral intercourse could be included in the expression “unlawful sexual intercourse”.
The plaintiff appealed Judge Lunn’s judgment and, amongst other submissions, contended that the words “sexual intercourse” in the plaintiff’s pleadings meant only penile/vaginal sexual intercourse. That appeal was heard by Justice Peek. In the course of rejecting the plaintiff’s appeal on this aspect (as well as other aspects), Justice Peek set out Judge Lunn’s reasoning for concluding that the plaintiff’s pleading of unlawful sexual intercourse was ambiguous and did not exclude oral intercourse.[3] He regarded Judge Lunn’s reasoning as “plainly correct”.[4] He went on to say:[5]
I consider that talk by senior counsel for the plaintiff of “eschewing any meaning of sexual intercourse other than penile/vaginal sexual intercourse” is none to the point. As the pleadings presently stand, they objectively leave open the possibility of such a plaintiff relying on a meaning of sexual intercourse other than penile/vaginal sexual intercourse; that is to say, oral sexual intercourse.
Of course, if the plaintiff were to amend so as to actually plead “penile/vaginal sexual intercourse” and thereby positively restrict his cause of action to an imputation of penile/vaginal sexual intercourse, that would be a different matter. However this is a course that the plaintiff studiously avoids taking and, as stated above, this appeal has proceeded upon the basis that the plaintiff has not applied to amend or alter the relevant imputation.
[3] See Fleming v Advertiser-News Weekend Publishing Company Pty Ltd & Advertiser Newspapers Pty Ltd [2012] SASC 58 at [16].
[4] Ibid [21].
[5] Ibid [22]-[23].
Following upon Justice Peek’s decision, the plaintiff sought leave to further amend the imputations relied upon. That application was considered by Judge Lunn on 24 July 2012 who pointed out that the plaintiff’s proposal at that time to amend to allege “such criminal offences as attaches to the act of penile/vaginal sexual intercourse” was still ambiguous in not identifying the offence or offences upon which the plaintiff sought to rely.[6]
[6] Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor (No 2) [2012] SASC 127 at [16].

A further amendment was subsequently made to give effect to that consideration. A fifth amended statement of claim pleaded the following imputations and it is on these pleaded imputations that the matters proceeded to trial.
As to the first publication and first web publication the plaintiff pleaded that:
5AIn their natural and ordinary meaning, the words in the first publication and the first web publication meant and/or were understood to mean:
(1) That the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor, which minor was a vulnerable minor in her formative adolescent years who might be as young as 13 thereby resulting in irreversible effects; or alternatively
(2) That there were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor, which minor was a vulnerable minor in her formative adolescent years who might be as young as 13 thereby resulting in irreversible effects.
*Particulars (for justification purposes): The criminal offence was then constituted by section 55 of the Criminal Law Consolidation Act 1935 (SA) and commonly known as ‘unlawful carnal knowledge’.
As to the second publication and the second web publication:
7AIn their natural and ordinary meaning the words in the second publication and the second web publication meant and were understood to mean:
(1) That the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor who might be as young as 13; or alternatively
(2) That there were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor who might be as young as 13.
*Particulars (for justification purposes): The criminal offence was then constituted by section 55 of the Criminal Law Consolidation Act 1935 (SA) and commonly known as ‘unlawful carnal knowledge’.
As to the third publication and the third web publication:
9AIn their natural and ordinary meaning the words in the third publication and the third web publication meant and were understood to mean:
(1) that the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor who might be younger than 13; or alternatively
(2) That there were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor who might be younger than 13.
*Particulars (for justification purposes): The criminal offence was then constituted by section 55 of the Criminal Law Consolidation Act 1935 (SA) and commonly known as ‘unlawful carnal knowledge’.
As to the fourth publication and fourth web publication:
11AIn their natural and ordinary meaning the words in the fourth publication and the fourth web publication meant and were understood to mean:
(1) That the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor who might be as young as 13; or alternatively
(2) That there were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor who might be as young as 13.
*Particulars (for justification purposes): The criminal offence was then constituted by section 55 of the Criminal Law Consolidation Act 1935 (SA) and commonly known as ‘unlawful carnal knowledge’.
As to the fifth publication:
12AIn their natural and ordinary meaning the words in the fifth publication and the fifth web publication meant and were understood to mean:
(1) That the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor who might be younger than 13 in respect of whom he stood in a professional relationship; or alternatively
(2) That there were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor who might be younger than 13 in respect of whom he stood in a professional relationship.
*Particulars (for justification purposes): The criminal offence was then constituted by section 55 of the Criminal Law Consolidation Act 1935 (SA) and commonly known as ‘unlawful carnal knowledge’.
It may be noted that, whilst the gravamen of the imputations pleaded in paragraph 5A, 7A, 9A, 11A and 12A of the fifth amended statement of claim is the same, the description of the minor is slightly different in each case. I was not addressed on the reason or justification for these differences but I take the commonality as being based on the text in the articles of “teenage” and “underage” in reference to the subject of the sexual misconduct alleged. They seem to me to be variants without a difference as s 55 of the Criminal Law Consolidation Act 1935, in its application at the relevant time that the offences were alleged to have taken place, dealt with unlawful carnal knowledge of a female above the age of 13 years and under the age of 17 years.
The defence
The defendants had initially pleaded a defence of justification to the imputations pleaded by the plaintiff by pleading that those imputations were true in substance and in fact. The defendant’s particulars relied upon multiple occasions of oral sexual intercourse between the plaintiff and the person named as “Jane” in the articles. In addition, the defendants pleaded a number of contextual imputations said to arise from the articles which related to the plaintiff’s conduct with the persons named as “Jane”, “Jenny” and “Richard”. Those imputations included criminal sexual behaviour, sexual misconduct, predatory sexual behaviour, morally reprehensible and deceitful conduct, an immoral, adulterous, homosexual affair, hypocrisy, abuse of trust, moral cowardice and false denial of sexual involvement.
The effect of the plaintiff confining in the fifth amended statement of claim the imputation upon which he sued to that of an act of penile/vaginal intercourse, meant that the defendants could no longer maintain a defence of justification by way of acts of oral sexual intercourse but rather now relied upon, by way of defence, a complicated and extensive pleading and particularisation of the contextual imputations that the defendant said arose from each of the articles.
The defence of contextual truth
In Blake v John Fairfax Publications Pty Ltd,[7] Levine J described the effect of the defence of contextual truth. He said:[8]
It is to operate in circumstances where a publication conveys varies imputations, substantially different from the other, but in respect of which the plaintiff elects to sue on one or some only. It entitles the defendant properly to defend the action by pleading the other imputations not sued upon, and justifying them to bring about a just result that otherwise an undeserving plaintiff, by reason of what was in fact published of that plaintiff, should not succeed.
[7] [2001] NSWSC 885.
[8] Ibid [12].
Section 24 of the Defamation Act 2005 provides:
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..
Section 24 has a counterpart in the essentially uniform defamation legislation of the other States and Territories.[9]
[9] Civil Law (Wrongs) Act 2002 ACT s 136; Defamation Act 2006 (NT) s 23; Defamation Act 2005 (NSW) s 26; Defamation Act 2005 (Qld) s 26; Defamation Act 2005 (TAS) s 26; Defamation Act 2005 (VIC) s 26 and Defamation Act 2005 (WA) s 26.
Prior to the introduction of the uniform legislation, New South Wales provided for a contextual truth defence by s 16 of the Defamation Act 1974 (NSW) (the 1974 Act). The effect of the defence of contextual truth under that section was explained by Hunt J in Jackson v John Fairfax & Sons Ltd:[10]
It is perhaps appropriate that I should at this stage describe a little more fully the defence of contextual truth, introduced by the 1974 Act (s 16), and relied upon in this case. It has not, so far as I am aware, been the subject of any judicial or other exegesis, notwithstanding the years which have passed since that Act came into operation. Its origin was the (UK) Defamation Act, 1952, s 5; but its effect is much wider and its expression is more elaborate.
The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputation upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation.
An easy example is the publication which describes the plaintiff (falsely) with having been charged with a criminal offence and which, by reason of additional material, also imputes (truly) that he is guilty of such offence. If the plaintiff sued and complained only of the imputation conveyed by the assertion that he had been charged with that offence, it would be open to the defendant, in accordance with s 16, to plead the contextual imputation that the plaintiff was in fact guilty of such an offence and that such contextual imputation was substantially true. Assuming that the contextual imputation also related to a matter of public interest or was published under qualified privilege, the defendant would succeed in the action complaining of the publication of the imputation pleaded by the plaintiff (and based upon the untrue assertion that he had been charged) if the jury were satisfied that, by reason of the substantial truth of the defendant's contextual imputation, the untrue imputation pleaded by the plaintiff did not further injure his reputation.
In coming to that decision, the jury would be required to weigh or to measure the relative worth or value of the several imputations pleaded by both the plaintiff and the defendant. There is little doubt that in this example the jury would find that, by reason of the substantial truth of the contextual imputation pleaded by the defendant, that pleaded by the plaintiff did not further injure his reputation.
At the other end of the scale is the publication which describes the plaintiff (falsely) as a blackmailer and (truly) as having unlawfully remained in the country on an expired visa. If the plaintiff sued and complained only of the assertion that he was a blackmailer, a defence of contextual truth based upon the imputation that the plaintiff was an illegal immigrant would be doomed to failure. It would, in my view, be open to the trial judge in such circumstances to take such a defence away from the jury because there would be no rational basis upon which the jury could find in favour of the defendant. It is always for the judge to rule in regard to any particular issue whether there is a case to go to the jury: Jones v Skelton (1963) 63 SR (NSW) 644, at p 65680 WN 1061, at p 1070.
In between these two extremes there must, of course, be many degrees. If the publication described the plaintiff (falsely) as a share swindler and (truly) as a rapist, the jury could well have considerable difficulty in weighing or measuring the relative worth or value of the two imputations conveyed. In those circumstances, it seems that the trial judge would be obliged to leave the issue to the jury.
[10] [1981] 1 NSWLR 36 at 38-39.
The practice accepted by the New South Wales courts under s 16 of the 1974 Act had permitted a defendant to plead back imputations pleaded by the plaintiff of which the defendant is able to prove the truth and balance its impact on the plaintiff’s reputation against any imputations or imputations of which the defendant has not sought or been able to prove the truth.[11] In Besser v Kermode,[12] the Court of Appeal, McColl JA with Beazley and Giles JJA agreeing, considered whether this practice was still open and also considered the nature and effect of the section which replaced s 16 of the 1974 Act.
[11] Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 per Simpson J at [23].
[12] (2011) 81 NSWLR 157.
In Besser v Kermode, the Court concluded that the counterpart section in New South Wales to s 24 of the Defamation Act 2005 prohibits a defendant from pleading as contextual imputations any of the imputations originally pleaded by the plaintiff, on the basis that the plaintiff’s own imputations cannot be described as being “in addition to the defamatory imputations of which the plaintiff complains”. In so holding McColl JA observed:[13]
[W]hen the tribunal of fact comes to the weighing exercise the contextual truth entails … it must be able to conclude that because of the substantial truth of the contextual imputations “the defamatory imputations” – that is to say the plaintiff’s cause of action – do not further harm the plaintiff’s reputation.
[13] Ibid [79].
In Besser v Kermode, McColl JA also referred to the proposition that a plaintiff may defeat the defence of contextual truth by simply adopting the contextual imputations as imputations of which he or she complains.[14] Her Honour said:[15]
Mr McHugh repeated the argument advanced before the primary judge[16] that:
“… in any case where a defence of contextual truth is pleaded by a defendant, a plaintiff may defeat that defence by simply adopting the contextual imputations as imputations of which he or she complains. In doing so, a plaintiff would lose nothing, because, by pleading the imputations as contextual imputations, the defendant has signalled an intention to prove their truth. By adopting (or, put more pejoratively, ‘appropriating’) the contextual imputations pleaded by the defendant, the plaintiff could deprive the defendant of a defence under s 26.”
The primary judge accepted that this proposition was correct, but said[17] “it cannot be allowed to dictate the proper approach to statutory construction”. I agree with her Honour.[18] The defendant in this scenario will still be able to justify pursuant to s 25 the imputations it had pleaded as contextual imputations, but which the plaintiff has “adopted”, but will be unable to defeat the plaintiff’s cause of action entirely as it would have sought to do by seeking to have the tribunal of fact weigh its contextual imputations (proved to be substantially true) against the plaintiff’s defamatory imputations. The defendant will still have the benefit of its justification of the imputations it had pleaded in mitigation of the plaintiff’s damages. That outcome is a product of the new defamation model created by the 2005 Act.
[14] Cited with approval in Holt v TCN Channel 9 Pty Ltd (2014) 86 NSWLR 96 at [23].
[15] (2011) 81 NSWLR 157 at [88]-[89].
[16] Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 at [41].
[17] Ibid [41].
[18] Defamation Act 2005 s 23.
The further amendment of the statement of claim and defence
On the first day of the trial in this matter, the plaintiff made a renewed application to strike out the defendant’s defence of contextual truth. I considered that application was not materially different from the applications which had not succeeded before Judge Lunn and Justice Peek to which I have previously referred. I considered that the plaintiff had not made out a case which would cause me to depart from their conclusions and I dismissed that application. The plaintiff at that stage sought permission to amend his pleadings to adopt the contextual imputations pleaded by the defendants. I refused that application, given that the plaintiff had made a deliberate decision to approach the case in the way that he had and that I was not persuaded that he had any good reason at this very late stage to justify making the amendment. I did not consider the explanation proffered that the plaintiff was awaiting the return of subpoenas before giving instructions on making such an amendment to be a satisfactory explanation for the delay in making the application. The plaintiff had every opportunity to adopt the defendant’s contextual imputations, but instead, on every other occasion has deliberately chosen the forensic course of seeking to have them struck out. I also noted that no further significant delay would be occasioned, but as the issues arising from and concerning the contextual imputations would in any event be raised in the trial and their truth or falsity be subject to my determination I was not satisfied that special circumstances existed to justify the giving of permission in the interests of justice for the plaintiff to amend the proceedings.[19]
[19] Supreme Court Civil Rules 2006 (SA), r 120A(4).
The case proceeded to trial. During closing submissions, I raised the possibility that the publications might not convey the very specific imputation that the plaintiff had pleaded. That raised an issue as to whether despite the very specific meaning contended for by the plaintiff, a different nuance of that meaning was available to be found. In Chakravarti v Advertiser Newspapers Limited,[20] Gaudron and Gummow JJ observed:[21]
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 of 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.
[20] (1998) 193 CLR 519.
[21] Ibid p 546 [60].
Arguably, the contextual imputation pleaded by the defendants that “the plaintiff engaged in criminal sexual behaviour while an Anglican priest” is no more than a variant of the imputation pleaded by the plaintiff and is within the situation described by Gaudron and Gummow JJ. In any event, the plaintiff renewed his application to adopt that particular imputation. In view of the fact that the trial had proceeded on the basis of the defendants relying upon and seeking to justify that particular imputation the defendants could not be said to be prejudiced, embarrassed or unfairly disadvantaged by the plaintiff being permitted to amend and properly conceded that was so. Accordingly, I allowed the plaintiff to amend.[22]
[22] See Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519 per Brennan CJ and McHugh J [22].

The plaintiff filed a sixth amended statement of claim adding a third imputation to paragraphs 5A, 7A, 9A, 11A and 12A of the statement of claim, namely:
(3) The plaintiff engaged in criminal sexual behaviour while an Anglican priest.
I then permitted the defendants to amend the defence to admit the meaning of that sub-paragraph and to plead that that meaning is true in substance and in fact. The defendants filed an eighth amended defence pleading as justification the particulars that had been pleaded by them to support the contextual imputation that the plaintiff had adopted insofar as they related to the person named “Jane” in the publication.
A complication occasioned by the amendment
In amending the defence to plead justification to the imputation that I permitted the plaintiffs to adopt, the defendants maintained that same imputation as part of their contextual truth defence. They said that they did so in the event that I found the imputation pleaded by the plaintiff involving an act of penile/vaginal sexual intercourse with a minor to be made out. In the event that I did not find that specific imputation made out but instead found the imputation adopted by the plaintiff as being conveyed by the publication, then the contextual truth imputation that the plaintiff engaged in criminal sexual behaviour as an Anglican priest cannot be an imputation that the defendants can rely upon as part of their contextual truth defence. That follows from the requirement in s 24 of the Defamation Act 2005 that the contextual imputations be in addition to the defamatory imputations of which the plaintiff complains.[23]
[23] Besser v Kermode (2011) 81 NSWLR 157; see supra at paragraph [67].
Principles to be applied to finding the imputations conveyed
My task as the tribunal of fact is to determine the meaning of the words used in the publication as conveyed to the ordinary man or woman. In Lewis v Daily Telegraph Limited,[24] Lord Devlin said:
One always get back to the fundamental question; what is the meaning that the words convey to the ordinary man; you cannot make a rule about that.
[24] [1964] AC 234, 285.
In Ten Group v Cornes,[25] Kourakis CJ adopted the following as a useful summary of the attributes of the ordinary reasonable person:[26]
The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the published words.
The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable persons understanding of the words. In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.
The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse not suspicious nor “avid for scandal”. There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publications in a strained or forced or utterly unreasonable way.
The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of worldly affairs.
The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used. As a result the ordinary reasonable person may imply meanings quite freely and will be prone to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable.
In Sands v State of South Australia,[27] a Full Court of Blue, Stanley and Nicholson JJ said that passage was a convenient summary of the principle relevant to the approach to finding whether an imputation was conveyed.
[25] (2012) 114 SASR 46.
[26] At [51] citing Patrick George, Defamation Law in Australia (Butterworths, 2006) p 131 and omitting the author’s citations. The same referenced passage appears in the 2012 2^nd edition at p 163-164.
[27] (2015) 122 SASR 195.
The plaintiff in this case submitted that I should have regard to the “most damaging meaning” that I as the tribunal of fact would place on the words. A submission to a similar effect had been made in Sands v Channel 7 Adelaide Pty Ltd & Anor.[28] The same submission was dealt with again by the Full Court in Sands v State of South Australia.[29] In the last mentioned case the Court said:[30]
[28] (2009) 104 SASR 452; [2009] SASC 215 and on appeal Sands v Channel 7 Adelaide Pty Ltd & Anor [2010] SASC 202.
[29] (2015) 122 SASR 195 at [176].
[30] (2015) 122 SASR 195 at [176]-[177].
Mr Sands submits that, when considering what imputations were conveyed, regard should be had to the “most damaging meaning”. He relies upon Lord Reid’s dictum in Lewis v Daily Telegraph Limited.
Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between those two extremes and see what is the most damaging meaning that they would put on the words in question.
A similar contention was rejected by Bleby J in Sands v Channel 7 Adelaide Pty Ltd & Anor and on appeal by this Court we agree with those reasons in this respect and reject Mr Sands submission.
Lord Reid’s comments in Lewis v Daily Telegraph Limited are to be understood in their proper context. Lord Reid was addressing the question of law whether the published words in that case were capable of bearing a particular pleaded meaning and whether the Judge had misdirected the jury by failing to direct that the words in question were not capable of bearing that meaning. The question was one of capacity, which raised considerations different from those raised by the question whether the words in fact conveyed the meaning pleaded. It is only at the capacity stage that “the most damaging meaning” might be used to define the limits of possible meanings that might be left to a trier of fact. After reviewing a number of the authorities, (Gray J with whom Nyland and Vanstone JJ agreed) in Sands v Channel 7 Adelaide Pty Ltd & Anor reached the following conclusion with which we agree:
The issue for the trier of fact at trial is the actual meaning of the words, not the question of what those words are capable of meaning. The meaning of the words is not determined by reference to the most damaging meaning that a reasonable ordinary listener might ascribe to those words.
(References omitted)
In the present case, the plaintiff cited three High Court cases as supporting his submission. They were Favell v Queensland Newspapers Pty Ltd,[31] John Fairfax Publications Pty Ltd & Anor v Gacic & Ors,[32] and Radio 2UE Sydney Pty Ltd v Chesterton[33] and one case in the Queensland Full Court, Queensland Newspapers Pty Ltd v Palmer.[34]It is sufficient to say that each of those cases were concerned with the capacity of the words complained of to bear the meaning contended for. They in no way affect the conclusion that the three South Australian Supreme Court cases to which I have referred in holding that the actual meaning of the words is not determined by reference to the most damaging meaning that a reasonable ordinary person might ascribe to them.
[31] (2005) 221 ALR 186.
[32] (2007) 230 CLR 291.
[33] (2009) 238 CLR 460.
[34] [2012] 2 Qd R 139.
The imputations pleaded by the plaintiff
In attempting to determine what the ordinary reasonable reader would draw from each of the articles complained of I refer to a number of features to which the plaintiff and the defendants have drawn my attention. I firstly deal with whether the imputations pleaded by the plaintiff are conveyed.
The first publication and first web publication
The story is on the front page of the Sunday Mail with the headline linking priest, police and church with inquiries. The opening paragraph refers to the Church’s awareness of serious allegations of sexual misconduct. The plaintiff is then named as “being investigated by the police Paedophile Task Force over allegations that he was sexually involved with a teenage girl in the 1970’s”. The reference to the police Paedophile Task Force would connote to the ordinary reasonable reader that the investigation of criminal conduct involving children or young persons who by reason of their age cannot consent to sexual activity with an adult but not the nature of that activity.
The article then refers to “Detectives have also taken statements from another woman and a man who were allegedly sexually involved with the plaintiff after seeking counselling from him”. From that reference I think that the ordinary reasonable reader would wonder at the nature of the sexual involvement alleged without being able to draw any clear inference as to its character.
From the next assertion, namely that Cardinal Pell was aware of one of the allegations before the plaintiff’s appointment to Campion College in 2005 and that Archbishop Faulkner and one of his officials knew the plaintiff was the subject of serious misconduct allegations prior to his ordination as a Catholic priest in 1995, the ordinary reasonable reader would conclude that the allegations had been officially known for some time but it casts no light on the character of the misconduct.
Further, the ordinary reasonable reader could well conclude that the appointment of a prominent lawyer to conduct an independent inquiry into the diocese’s handling of the allegations suggests that they have not been accorded the credence that they deserved. The headline appearing across pages four and five of the newspaper article, “Church did nothing, sex accusers claim” would in my view seem to reinforce that conclusion in the mind of the ordinary reasonable reader.
The statement in the text on page four of the newspaper that “the misconduct involving the two girls – one underaged occurred in the 1970’s …” and “only the allegations involving the underage girl are being investigated by the police” serves to reinforce in the mind of the ordinary reasonable reader the criminality of the conduct without indicating what might be specified in respect of it.
The following reference to the apology of Pope Benedict XVI “to Australian victims of sexual abuse” also leaves the range of what that abuse might cover unresolved in the mind of the ordinary reasonable reader.
I take note also of the generic references to “victims” as descriptive of the persons making the allegations but I think that the ordinary reasonable reader would appreciate that criminality was only being alleged in respect of one of those persons making the allegations.
The article concludes on page five, and the separate article entitled “JANE’s STORY” commences. In my view, the ordinary reasonable reader would be left in some doubt as to the actual nature of the sexual relationship alluded to between the plaintiff and the woman described as “Jane”. The opening paragraph refers to a “sexual liaison” that “irreversibly affected not just her formative adolescent years, but also her adulthood”. The expression “sexual liaison” would be apt, in my view, for the ordinary reasonable reader to consider the possibility that the nature of the acts that constituted the sexual liaison was sexual intercourse as that term was understood at the time of the article. Some doubt might be thrown on that characterisation by the article reporting that “she said [the Anglican Church] affirmed what had occurred was illegal” and further reporting that in her subsequent interview with the Catholic Church “Wasn’t he just being inappropriate?,” she was asked by a church official”. I think that the ordinary reasonable reader would think that such a response by a church official indicates that the sexual activity was of a different order than that of sexual intercourse but nonetheless serious enough to provoke the indignation reported of “How could they say that? They heard what happened”.
The fact that the article goes on to say that there was “a reaction common to many abuse victims” does not speak to the nature of the abuse. A similar comment may be made about the later report in the article referring to the letter to Cardinal Pell “advising him of an illegal sexual liaison with a Catholic priest”.
Near the end of the article recounting Jane’s story it is reported:
Jane said that although she remembers the first occasion vividly, she does not have an accurate memory of exactly how many sexual encounters she had with Father Fleming.
Again the expression “sexual encounters” would engender in the mind of the ordinary reasonable reader a possibility of sexual intercourse as being the nature of the encounters but it leaves open the actual nature of the encounter which would not necessarily be a specific act of sexual intercourse but rather a sexual activity of some kind.
I would expect the ordinary reasonable reader to continue with the article on page 82 of the newspaper. The same expression “sexual encounters” is used in the sub-headline to that page and the first paragraph of Jenny’s story says “Jenny had just one sexual encounter with Father John Fleming, but it has had a profound effect on her life”. A little later in the article it is reported:
… what started out as a questionable shoulder massage at Father Fleming’s request, ended in a sexual experience. The act, which is detailed in her police statement, left her feeling stunned.
I do not consider that the ordinary reasonable reader would necessarily conclude that the sexual experience and act referred to was an act of penile/vaginal sexual intercourse.
Considering the article as a whole, and bearing in mind the impression it conveys, I conclude that the ordinary reasonable reader would not find the pleaded imputations that the plaintiff had committed or that there were reasonable grounds to suspect that the plaintiff had committed the criminal offence which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor to be conveyed by the publication.
However, having regard to the sensational nature of the article, its use of graphics and headlines and the elaboration describing the victims’ reactions, I am satisfied that the ordinary reasonable reader would find that the imputation of the plaintiff’s guilt of a criminal offence was established and draw the conclusion that the plaintiff had committed sexual acts involving a young female person who was not, in law, capable of consenting to those acts. I consider that the ordinary reasonable reader would find that in their natural and ordinary meaning the words in the article meant and were understood to mean that the plaintiff engaged in criminal sexual behaviour while an Anglican priest.
Although the first web publication does not contain quite the same sense of sensationalism that is conveyed by the headlines and graphics in the newspaper article, it is a sufficient counterpart to the newspaper article to cause the ordinary reasonable reader to draw the same conclusion with respect to it as with the newspaper article.
The second publication and second web publication
The second publication in the newspaper has the headline “Fleming ‘told me to deny affair’”. The headline is a reference to “the former wife of the man who had an affair” with the plaintiff. The report initially is of the plaintiff’s actions in relation to the alleged homosexual affair. The article goes on to say:
The revelation follows Father Fleming’s denial of the homosexual affair and two other sexual encounters with teenage girls in the 1970s - one of which is the focus of a Paedophile Task Force investigation. The inquiry and the improper conduct by Father Fleming involving a teenager, “Jenny”, and a young man, “Richard”, were revealed in last week’s “Sunday Mail”.
It is followed by a comment concerning the Catholic Church authorities being “aware father Fleming was the subject of allegations of sexual misconduct” in 2005.
The article refers to a statement released by the plaintiff denying he had “ever engaged in sexual or inappropriate behaviour with a minor” and rejecting the allegations he had been sexually involved with either “Jenny” or “Richard”.
The article then reports on events between Richard’s former wife and the plaintiff and the effect of the plaintiff’s denial on her attitude, thereby casting doubt on the genuineness of the plaintiff’s denial. That aspect is further emphasised with the report that:
The woman at the centre of the Paedophile Task Force investigation, Jane, said Father Fleming’s denial “was no surprise. I didn’t think he would have the courage to confess”.
A little later, the article reports Jane as saying:
“He must believe that his reputation will be proven superior to mine. But this isn’t about reputation: it is about the truth and I am telling it.”
Jane said that Father Fleming’s denial of this sexual liaison had “hit me hard.” “I understand this pain is labelled revictimisation” she said.
Those elaborations are sufficient, in my view, to imply guilt of the criminal matters being investigated by the Paedophile Task Force.
In my view, the reference to the Paedophile Task Force Investigation is not sufficient for the ordinary reasonable reader to conclude that the article necessarily imputes that the plaintiff has committed a criminal offence involving penile/vaginal sexual intercourse, but would rather convey the more general imputation that the plaintiff engaged in criminal sexual behaviour. I consider that to the ordinary reasonable reader the words in the article meant and were understood to mean that the plaintiff engaged in criminal sexual behaviour while an Anglican priest.
Apart from the headline in which “Priest” is substituted for “Fleming” and the references to the previous week’s publication in the newspaper, the second web publication is a counterpart to the second publication discussed above. The comments and finding that I make with respect to the second publication apply to it.
The third publication and third web publication
The headline to this article is “Priest sex claim report next year”. The report refers to the internal investigation by the Catholic Church “into the handling of sexual misconduct allegations”. It also refers to the allegations “one of which is the subject of a Paedophile Task Force investigation” and that “they include allegations he was sexually involved with two girls – one underage – and that he had a homosexual affair before he was ordained as a Catholic priest”.
It seems to me that the plaintiff’s reliance on the expression “underage” as particularising “underage sex” or, as was put rhetorically, “underage for what?” does not assist to identify a specific offence in the mind of the ordinary reasonable reader such as to found in the mind of the ordinary reasonable reader the specific act of penile/vaginal intercourse that the plaintiff says is conveyed by the expression.
I note that the article further refers to the awareness of the allegations by the church authorities before the plaintiff was appointed to Campion College in 2005. The article then says:
The diocese was also aware of Father Fleming’s homosexual relationship prior to ordaining him in 1985, but proceeded.
What had previously been presented as an allegation of a homosexual relationship is asserted as a fact and in my view would consequently affect the ordinary reasonable reader’s appreciation of the allegations concerning the teenage girls.
I am unable to conclude that the ordinary reasonable reader would consider that the descriptions of “sex claim”, “sexual misconduct”, “sexually involved” and “one underaged” necessarily imply an offence involving penile/vaginal intercourse. As with the earlier articles, the article implies criminal offences of a sexual nature involving a young person who is unable in law to consent to that activity.

The plaintiff also says that the first publication was the necessary condition for the establishment of the Abbott inquiry. The first publication reported:[640]
On Friday, current Archbishop of Adelaide Phillip Wilson engaged prominent lawyer Michael Abbott QC to conduct an independent inquiry into the diocese’s handling of the allegations against Father Fleming.
No direct evidence was given to support this statement. In response to a request by the lawyers for the defendants as to the timing of the announcement of the inquiry conducted by Mr Abbott, the lawyers for the Catholic Church responded:[641]
Mr Abbott QC was formally retained in the week commencing 1 September 2008 though the decision to retain him for the purposes of the inquiry was publicised shortly earlier … Further there was no formal written announcement published in relation to the commencement of the inquiry.
[640] Exhibit P8.
[641] Exhibit D50.
The plaintiff says that a fair inference to be drawn is that if there had been no publication, the Church would not have gone ahead with the inquiry. That submission does not address the causation issue. The question that the plaintiff needs to address is not whether but for the publication there would not have been an inquiry, the question to be addressed is whether the defamatory imputation upon which the plaintiff sues caused the termination of the plaintiff’s employment. A cause of that termination may fairly be said to be the plaintiff’s decision to stand aside from his duties, but that decision I find was made on the basis of there being investigations on foot and not because of the publication of the defamatory imputation upon which he sues.
That conclusion does not preclude the plaintiff from damages for lost earning capacity by way of general damages in the event that the publication was found to be wrongful and had damaged his reputation and hence his employability.
In Chakravarti v Advertiser Newspapers,[642] the plaintiff had particularised his loss of employment with an employer and his inability to obtain regular employment as “economic loss”. In that regard, Gaudron and Gummow JJ observed:[643]
… lost earning capacity or, perhaps, more accurately, a finding which supports a finding to that effect. Lost earning capacity, if it is or may be productive of actual loss, is loss which is capable of assessment in money terms. And it may fairly be described as special damage for the purpose of defamation law. However, in other areas of the law, notably personal injury cases, the expression “special damage” is sometimes used to refer to out-of-pocket expenses and past loss of earnings. Even in personal injury cases, however, damages are awarded for loss of earning capacity, not past loss of earnings. Where a figure is included for past loss of earnings, it is simply the measure of a component part of the damages for lost earning capacity.
(Footnotes omitted)
On this subject, Kirby J expressed this view:[644]
My own view is that, contrary to the observations of the primary judge, this allowance should be regarded not as special damages but as general damages resulting from the kind of injury which the appellant sustained. If the question is whether particular earnings are lost as a result of the publication of a defamation, I see no reason why, if properly pleaded, particularised and proved, such earnings could not be recovered as special damages in the sense of quantifiable economic loss. However, in this case, the real gravamen of the appellant's complaint was one of general damage to his reputation and hence to his employability as a senior finance executive. In this sense, the damage was to his economic capacity. It therefore sounded in general damages.
(Footnotes omitted)
[642] (1998) 193 CLR 519.
[643] Ibid 559, [99].
[644] Ibid 600, [179].
The plaintiff gave general evidence of being asked to apply for similar roles in other similar institutes around the world similar to the one that he was employed in, but said that once the publications occurred it was impossible to make any application.[645] No evidence was given of attempts to obtain employment and there is only the plaintiff’s evidence of how he viewed his employment prospects following the publication.
[645] T194/23-32.
Ms Fiona Stevens’ psychological report of 13 June 2013[646] provides her opinion that the plaintiff’s capacity to work has been severely curtailed, and that he has not been able to work as he did before the publication. She comments that the plaintiff has been careful to choose work where he knows that the publicity that he has received will not affect those seeking his advice and that this has reduced his consultancy worth. I would have considerable difficulty in making an assessment of the plaintiff’s loss of earning capacity on the material to which I was referred.
[646] Exhibit P1, tab 27.
Aggravated damages
The plaintiff also sought aggravated damages. These are compensatory damages for aggravation to the plaintiff’s feelings resulting from the conduct of a defendant which increases the harm to a plaintiff.[647] It is the conduct of a defendant both at the time of, and subsequent to, the publication complained of that may increase or aggravate the harm that would otherwise be caused by the publication.[648] In order to justify an award of aggravated damages, there must be a lack of bona fides in the defendant’s conduct or it be improper or unjustifiable.[649]
[647] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71.
[648] Praed v Graham (1889) 24 QBD 53 at 55; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71.
[649] Triggell v Pheeney (1951) 82 CLR 497 at 514.
The plaintiff’s general complaint about the conduct of the defendants in this case is grounded in the plaintiff’s view that the imputations upon which he sues are not true. That is not my finding. The statement of claim alleges that the defendants published unjustified imputations and presented the plaintiff as guilty of the allegations made in the publication. If this is a claim based on recklessness in the publication, then I do not consider that the plaintiff has made it out. The publication was founded on information concerning a police investigation. The defendants’ journalist conducted interviews with each of the persons making the allegations and a response sought from the plaintiff before the first publication took place.
There are other matters concerning the conduct of the defendants of which the plaintiff complains. My view of those matters is affected by my findings as to the truth of the imputation which I have found conveyed. I will, however, comment on whether the defendants’ conduct of the trial and the subsequent publications by the defendants in reporting upon the trial would provide a justification for the award of aggravated damages.
As far as the conduct of the trial itself was concerned, I have considered the plaintiff’s complaint of what was said to be unjustifiable cross-examination of the plaintiff. I do not regard that cross‑examination and the instances given as anything other than proper for the purposes of pursuing the defendants’ defence. I consider that the instances given by the plaintiff were all justified in the conduct of a legitimate defence that was open on the facts.[650]
[650] Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379.
The plaintiff was highly critical of what he says was the failure of the defendants to call their journalist, Nigel Hunt. There was, of course, no obligation on the defendants to do so. The matters concerning Mr Hunt’s conduct that the plaintiff might wish to put in issue on the question of aggravated damages do not require that he be called by the defendants, in my view, and should not attract consequences for not doing so. No doubt there were a number of matters that the plaintiff’s counsel would have wished to put to Mr Hunt, but I cannot regard the fact that he was not called by the defendants as conduct that might sound in aggravated damages.
The plaintiff also complains about the publications of the defendants reporting upon the course of the trial. Those publications have been tendered in evidence.[651]
[651] Exhibits P79, P79A, and P79B.
In my view, where a publication reporting upon the trial is supported by the transcript of what took place in the trial then, unless the plaintiff can show that the only conclusion that can be drawn is positive conduct on the part of the defendants to create the misleading impression for which the plaintiff contends, the plaintiff will not have shown that the conduct of the defendants in publishing these reports is improper or unjustifiable.
Similarly, where some inaccuracy is shown, it seems to me, that the plaintiff needs to establish in what way it can be said that the inaccuracy is sufficiently misleading or unfair so as to establish it as unjustifiable conduct on the defendants’ part.[652]
[652] Cf The Herald & Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1 at 86, [439].
A close analysis of the plaintiff’s submissions concerning the unfairness and inaccuracy of the reports of the course of the trial show that they are concerned generally with what the plaintiff describes as the “impression” left on the reader by aspects of the report. In my view, taken individually and collectively, those criticisms do not show that the publication of the reports of the trial were improper or unjustifiable.
Similarly, the plaintiff’s complaint that the “impression” that he says was conveyed by the publications not being dispelled in later publications does not, in my view, make the report under consideration unfair or inaccurate or that the latter publication, in not doing so, is itself unfair or inaccurate.
There are also criticisms of selective reporting and failure to report the cross-examination of witnesses. The question of whether this can be said to be unfair is necessarily subjective, but overall I am not satisfied that the plaintiff makes out his complaints such that the defendants’ reports constitute misconduct on the part of the defendants that should sound in aggravated damages.
I can understand why the plaintiff is unhappy about the reporting, but an analysis of his criticisms falls short of establishing that the conduct of the defendants in publishing these reports lacked bona fides or is improper or unjustifiable.
There is, however, one criticism that I do find made out. I have already commented upon the maintenance of the allegation that the plaintiff was guilty of criminal conduct in respect of Ms Lynch.[653] There was no allegation in the first publication that Ms Lynch was under the age of 17 years at the time of any incident or that any incident involving her involved criminal conduct on the plaintiff’s part.
[653] See paragraph [174].
It was not until the defendants filed a fifth defence on 11 May 2011 that it was implied in the particulars supporting the contextual imputation pleaded that Ms Lynch was under 17 years of age and the incident which he alleged concerning the plaintiff constituted criminal conduct. That particular was struck out by Judge Lunn on 31 May 2011 because of its uncertainty.[654] On 21 August 2012, the defendants filed a sixth defence which alleged the criminal offence of gross indecency if the occasion was prior to Ms Lynch’s 16^th birthday and indecent interference if the occasion was between Ms Lynch’s 16^th and 17^th birthdays.[655] In each case it was alleged that it was on an occasion “which cannot now be recalled precisely”.
[654] Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor (Unreported, Supreme Court of South Australia, Judge Lunn, 31 May 2011) at [34].
[655] Sixth defence at paragraphs 10.7.10, 24.5.10, and 39.5.11.
In my view, there was no basis from the evidence given by Ms Lynch which could justify this pleading. When the matter was raised by the plaintiff at the commencement of the trial of this matter, the defendants’ counsel subsequently said that he would lead evidence of “some surrounding indications” to suggest that Ms Lynch was under 16 at the time of the incident.[656] But no surrounding indications were led. I can see no proper basis for the maintenance of this allegation of criminality against the plaintiff. It clearly had an effect on the plaintiff.[657] I consider that the pleading of this allegation can properly be characterised as unjustifiable and that if the plaintiff were entitled to damages, it should sound in aggravated damages.
[656] T719/4-5.
[657] Cf T2259/3-5.
Conclusion
For the foregoing reasons that I have given, the defendants have established their defence that the defamatory imputation which I have found is conveyed by each of the publications is substantially true. I dismiss the plaintiff’s claim and there will be judgment for the defendants.
Appendix A
Father John Fleming involved in sexual misconduct claims
EXCLUSIVE: ONE of SA’s best-known priests was appointed to a prestigious Catholic teaching position despite the church being aware of serious allegations of sexual misconduct against him.
Father John Fleming is being investigated by the police Paedophile Task Force over allegations he was sexually involved with a teenage girl in the 1970’s.
Detectives have also taken statements from another woman and a man who were allegedly sexually involved with father Fleming after seeking counselling from him.
A five-week Sunday Mail investigation has revealed Australia’s highest-ranking Catholic, Cardinal George Pell, was aware of the allegations concerning at least one victim prior to Father Fleming being appointed to head Sydney’s Campion College, a Catholic liberal arts facility, in 2005.
The Sunday Mail investigation has also revealed that former Catholic Archbishop of Adelaide Leonard Faulkner and one of his officials knew Father Fleming was the subject of serious misconduct allegations prior to ordaining him a Catholic priest in 1995.
On Friday, current Archbishop of Adelaide Philip Wilson engaged prominent lawyer Michael Abbott, QC, to conduct an independent inquiry into the diocese’s handling of the allegations against Father Fleming.
Archbishop Wilson has also “requested that the priest return to the archdiocese to assist” with the investigation.
“Mr Abbott has been retained to conduct an inquiry into the process and procedures regarding this matter,” Archbishop Wilson said yesterday.
“We will place no limits on the extent of the inquiry or where Mr Abbott wants to go with this to address this issue. In the interests of due process, the Archdiocese of Adelaide cannot comment further.”
The move came after the Sunday Mail posed questions to Archbishop Wilson’s office on Wednesday over the diocese’s handing of the allegations surrounding Father Fleming and also informed it of the police investigation.
The misconduct involving the two girls – one underaged – occurred in the 1970’s, while his sexual relationship with the man spanned a six-year period ending in 1981.
Police yesterday declined to comment, but it is known the file will be sent to the Director of Public Prosecutions, Stephen Pallara’s, QC, when completed.
Only the allegations involving the underage girl are being investigated by police. The other two cases are being examined as part of that inquiry.
The Sunday Mail has obtained the police statements of the three people and has also interviewed them at length.
The disturbing revelations come six weeks after Pope Benedict XVI apologised to Australian victims of sexual abuse and promised that the church would treat them with care and compassion.
The Sunday Mail investigation has revealed the Anglican and Catholic churches have been aware of allegations surrounding Father Fleming for many years.
In the case of the male, the Catholic Church was made aware in 1995. It was also made aware of the alleged misconduct with one of the females in late 1994 and the second female in 2000. After a distinguished career as an Anglican priest, Father Fleming controversially left in 1987 to join the Catholic Church, which ordained him in 1995.
He left Adelaide in 2005 after being appointed president of Campion College, Australia’s first Catholic liberal arts teaching facility, in Sydney.
In 2003, he was appointed by then Prime Minister John Howard to the board of the Australian museum.
In an April 2004 letter obtained by the Sunday Mail, Cardinal George Pell acknowledges the complaint against Father John Fleming from one female victim. Cardinal Pell wrote back the next day and advised the victim to contact police herself.
“The allegations you make against Fr Fleming are of a very serious nature. They should be investigated by the police and I would encourage you strongly to pursue your complaint with them,” Cardinal Pell wrote in his response.
Despite Cardinal Pell and the Adelaide Diocese being aware of allegations, Father Fleming’s Campion College appointment went ahead.
His three victims all want his position reviewed and a thorough internal investigation into his conduct. One of his victims, Jenny, told the Sunday Mail.
“I was so angry that this man who had abused his power over me and had such a huge impact on my life, an immediate impact, had been put in a position of power again over young people.
“I cannot imagine how a person who has questions about their integrity can be put into such a position.”
The Sunday Mail investigation has also revealed the Catholic Church proceeded with Father Fleming’s 1995 ordination despite then Archbishop Leonard Faulkner being told about, and meeting with the man who had a sexual relationship with Fleming.
The man was aged 20 when he sought counselling from Father Fleming over his sexuality. Archbishop Faulkner had several meetings with the man in 1995, during which he was told of the relationship spanning six years.
The man’s police statement reveals Father Fleming had contacted him in an agitated state after he was first spoken to by church officials.
“I believe the Catholic Church must have been in contact with him because he rang me distressed about it and asked me to tell the archbishop that there was no penetration,” he told police.
“It appeared really important to John that I advised the archbishop that we did not have intercourse. I did tell the archbishop the exact relationship I had with John, which involved no penetration, but I didn’t think it mitigated anything. I recall the archbishop asking me whether he should ordain John. I told him that it wasn’t up to me to make that decision.”
The man, who asked to be known only as Richard, said he was surprised Father Fleming was ordained months later. The Sunday Mail sought a response from Father Fleming at his Sydney home on Thursday.
He provided a written statement via his wife, Alison. “The proper course is for these allegations to be investigated by the police or the church in the ordinary way,” he said.
When the Sunday Mail contacted his lawyer, Michael Sykes, on Friday and asked if Father Fleming was denying the allegations, he would not directly respond.
“This is not the appropriate forum for him to come out with any response to the allegations,” Mr Sykes said. “The appropriate forum is the courts or the ecclesiastical disciplinary tribunal mechanism.”
Late on Friday, Cardinal Pell’s office provided the Sunday Mail with a written response to questions posed to it on Thursday. “As Archbishop of Sydney, Cardinal Pell has no jurisdiction over other dioceses or priests belonging to them,” it said.
“When allegations are received about priests in other dioceses, complainants are encouraged to go to the police or the Professional Standards Office in the relevant state.
“A copy of the complaint is also provided to the appropriate Professional Standards Office to follow up. Responsibility for the selection and appointment of staff at Campion College is a matter for the college, which is a private institution, not an official church agency, and outside the Sydney archdiocese.”
Campion College chairman Mr John de Bruyn refused to comment on Friday. It is not known if the college was aware of any of the allegations surrounding Father Fleming at the time of his appointment.
While Father Fleming is president, he answers to a board of trustees, headed by Mr de Bruyn. One trustee is Cardinal Pell’s private secretary, Dr Michael Casey.
·Victim’s statement: Jane’s story/Cardinal Pell’s reply
·Victim’s statement: Jenny’s story/Cardinal Pell’s reply
·Victim’s statement: Read Richard’s story
Read Jane’s story
JANE kept her secret for more than 25 years. A sexual liaison with Father John Fleming irreversibly affected not just her formative adolescent years, but also her adulthood.
When she finally took the step in 2000 to tell the Anglican Church what had happened, she had no idea what lay ahead.
Although she said it affirmed what had occurred was illegal, she was advised to contact the Catholic Church because Father Fleming was no longer employed by them.
Her interview with the Catholic Church was a body blow.
“Wasn’t he just being inappropriate?” she was asked by a church official.
“When I got this reaction, I thought: ‘How could they say that? They heard what happened’,” she told the Sunday Mail.
Later, in June 2002, she wrote about her complaint in detail and sent a letter to the Anglican Professional Standards Office, asking for consideration in the way her complaint was handled.
She was told that her complaint needed to be official – although what this meant was never explained.
Those initial responses shattered her self-confidence and led her to both question and continue to blame herself for what had occurred – a reaction common to many abuse victims.
But believing she was the only victim, she relapsed into silence, until, unexpectedly and devastatingly, John Whitham from the 2003 Anglican Board of Inquiry told her about other possible victims.
This moved her to try again with the Catholic Church, and she wrote to Australia’s highest-ranking Catholic, Cardinal George Pell, in March 2003, advising him of an illegal sexual liaison with a Catholic priest.
She knew Cardinal Pell could get access to a statement prepared after the initial interview in 2000 and her unsigned written complaint in 2002.
Again, there were demands made to report her complaint in a particular way by the Adelaide office, when this was impossible for her.
Jane’s dismay at the Catholic Church’s apparent ambivalence towards her complaints turned to anger and concern when Father Fleming was appointed president of Campion College in Sydney in 2005 – 18 months after she advised Cardinal Pell of the allegations and over four years after she first advised the Adelaide Diocese of the situation.
“As far as I am aware, they did nothing about following up what I had told them. Presumably that would have been an important thing to do,” Jane said.
“I would still be on their books. They have never followed me up. They just don’t want to know about it, even though they know there is a very dark cloud over one of their highest profile figures.
“He is in charge of a college where there are vulnerable people. They will not be underage, but they are vulnerable.”
Jane said that although she remembers the first occasion vividly, she does not have an accurate memory of exactly how many sexual encounters she had with Father Fleming.
Although dates and locations are detailed in her police statement, Jane has asked the Sunday Mail not to reveal them because she fears this will identify her.
Jane said that once she knew she was not the only person who had made a complaint about Father Fleming, she believed it was her moral responsibility to speak out.
She has completed and signed her formal statement after being interviewed by the Paedophile Task Force several times since last October.
“I don’t want revenge here, what I want is for people to be living cleanly and to take responsibility for their actions,” she said.
“I don’t want to have to hide any more, I don’t want to have to protect people anymore.”
Read Jenny’s story
JENNY had just one sexual encounter with Father John Fleming, but it has had a profound effect on her life.
When she was aged 17, she went to Father Fleming’s Anglican Church-supplied house at North Adelaide seeking counselling after a family argument.
A rebellious teenager who often clashed with her mother, she had on many occasions sought his advice, counsel and reassurance after meeting him at an Anglican youth group in the early 1970s.
But on that day in 1974, what started out as a questionable shoulder massage at Father Fleming’s request, ended in a sexual experience.
The act, which is detailed in her police statement, left her feeling stunned. In later years this would turn to anger as the effects of the encounter continued to impact on her life.
Although Jenny has given a statement to the Paedophile Task Force, she realises no action can be taken because she was not underage.
“I understand that, I understand their predicament, but I am furious that this guy is going to get away with it,” she said.
“You want to move on from it, but you can’t move on because nothing ever gets settled. There is always this feeling of doubt.”
Jenny said she first alerted the Catholic Church to the incident in late 1994 or early 1995, speaking to a senior Catholic priest, who then failed to pass the information to then Archbishop Leonard Faulkner.
In 1995 – after Father Fleming had been ordained following his defection from the Anglican Church, she sought out Archbishop Faulkner at his West Terrace residence “about four or five times”, left detailed messages and asked for someone to call her.
Jenny had already contacted the Anglican Church and was involved in discussions with its hierarchy over the incident, but she felt the Catholic Church needed to be aware of what had occurred.
After finally receiving a response, Jenny ended up having discussions with David Cappo, then an adviser on professional standards to the archbishop. (It is not suggested that Monsignor Cappo was aware of these allegations prior to Father Fleming’s ordination as a Catholic priest.)
A meeting was subsequently arranged between her, Father Fleming and other church officials at the Archbishop’s House on West Terrace.
“Fleming walked in and the first thing he did was come up to me where I was sitting in a chair and try and shake my hand,” she said.
“I felt totally intimidated. It was beyond belief, I don’t know how to describe it.
“He didn’t admit it or anything like that. He just sort of wiped it off. It was like I was the problem, it was all my fault.
“I just left this meeting feeling so totally dissatisfied. I just felt I wasn’t believed, it felt like the abuse all over again.”
Jenny said when she heard in 2004 that Father Fleming was to be appointed to head Campion College, she was outraged and wrote to Cardinal George Pell to express her feelings.
She believes there is “no way” he should have been appointed when the church already knew of the allegations she made.
“I am furious this guy is in a position of power still, where he has power over young people,” she said.
“I was so angry, so livid, that this man who had abused his power over me and had such a huge impact on my life, an immediate impact, had been put in a position of power again over young people.
“There should have been bells ringing everywhere. I cannot imagine how a person who has questions about their integrity can be put into a position in a church which has integrity as one of its core foundation beliefs.
“I cannot understand it, it is so hypocritical.”
SHE said contacting Cardinal Pell’s office was in itself stressful, reigniting thoughts of the incident.
“One gets up the courage hoping that things will change, only nothing does, so one gets traumatised again,” she said.
“My motivation is to get someone to show some responsibility for this, to stop hiding behind processes and behind ignorance and stand up and say we are taking responsibility, we are going to take action and not just sit back and let it ride.”
Read Richard’s story
VULNERABLE and confused about his sexuality, Richard confided in Father John Fleming.
He expected guidance from a man he held “in awe”, but instead ended up in a sexual relationship with the popular priest.
The relationship, which included encounters in Father Fleming’s St Mark’s College flat, on Anglican camps and later in the carpark of Father Fleming’s then parish at Plympton, spanned six years.
While it started in 1975 prior to Father Fleming’s marriage and continued after it, the relationship ceased while Father Fleming went overseas for several years in the late 1970s.
After Richard and his wife were married by Father Fleming in 1980, his relationship with him resumed – ending when Richard confided in another Anglican priest.
In 1994, Richard and his wife separated after he came out.
His wife then sought annulment of their marriage, citing his sexuality and relationship with Father Fleming.
At the time, both were switching from the Anglican to the Catholic Church – at the same time Father Fleming was also switching denominations.
During a marriage tribunal meeting, Richard’s relationship with Father Fleming was revealed – a confidence that was broken when then Catholic Archbishop Leonard Faulkner was advised.
Richard told the Sunday Mail Father Fleming had rung him shortly afterwards in a distressed state.
It was because of the disclosure of confidential information that Richard sought, and held, at least three meetings with Archbishop Faulkner.
While Richard was primarily concerned at the breach of confidence by the tribunal, he also told Archbishop Faulkner of his relationship with Father Fleming.
He remembers one meeting in Archbishop Faulkner’s Wakefield St office and another at his home in the western suburbs.
“I asked for the meetings because I wanted to make it clear what had happened to me with John and the details of that,” Richard said.
“He particularly asked me did I think that he should ordain John and I said that was not a decision I was comfortable making.
“I wanted him to know what had happened and that decision was up to him.”
Richard said the meetings were also about how he felt, his own involvement with the church and his role in what had occurred.
“We talked about homosexuality in the church a bit and I talked about the effect of what had happened on me,” he said.
Richard said that during his discussions with Archbishop Faulkner he “got the impression” that Father Fleming’s ordination may have been in question.
He was “surprised” when Father Fleming was then ordained by Archbishop Faulkner.
“I thought it was surprising, but I didn’t do anything about it,” he said.
“I thought I had taken on the church as much as I could.”
Richard said he believed there was “a question mark” over Father Fleming’s ordination and his suitability to hold such a position of trust.
“MY view is that he was my priest, I went to him for help and he had a duty of care to me,” he said.
“The sense in which I think there is a question mark over his suitability is that I was a vulnerable young man who was confused.
“He took advantage of that.
“I think there is a question mark over whether a person like that, who is in a counselling role and position of power over people, whether it is suitable for them to be in that role.”
Richard said that in 2005, when he heard Father Fleming had been appointed to head Campion College, he was again surprised at the actions of the Catholic Church.
Richard said he was contacted by the Paedophile Task Force three months ago as part of their investigation into Father Fleming.
“I have been trying to get on with my life,” he said.
“But here it is, it has come up again, so I have to deal with it.
“It is stressful.”
Appendix B
Priest ‘told me to deny affair’
THE former wife of the man who had an affair with Father John Fleming was pressured by the high-profile priest to deny knowledge of the relationship, it has been revealed.
The woman has told the Sunday Mail of a meeting she had with Father Fleming and his wife Alison, in which she was urged to “deny it” and asked who else she had told.
The revelation follows Father Fleming’s denial of the homosexual affair and two other sexual encounters with teenage girls in the 1970s – one of which is the focus of a Paedophile Task Force investigation. The inquiry and the improper conduct by Father Fleming involving a teenager, “Jenny”, and a young man, “Richard”, were revealed in last week’s Sunday Mail.
The teenage girls and the young man were not known to each other.
The Sunday Mail also revealed Catholic Church authorities – including, in one instance, Cardinal George Pell – were aware Father Fleming was the subject of allegations of sexual misconduct prior to him being appointed to head Campion College, a Catholic arts facility, in Sydney in 2005.
After being advised by the Sunday Mail of the police investigation and the apparent mishandling of the allegations, Catholic Archbishop Philip Wilson announced an independent inquiry by lawyer Michael Abbott, QC.
Following the Sunday Mail report, Father Fleming – who was ordained a Catholic priest in 1995 after defecting from the Anglican church – stood down from duties as a priest and Campion College until the two inquiries are completed. He released a statement denying he had “ever engaged in sexual or inappropriate behaviour with a minor” and rejected the allegations he had been sexually involved with either Jenny or Richard.
However, Richard’s former wife Wendy said yesterday she was invited to Father Fleming’s house after she had disclosed the affair to a case worker during marriage annulment proceedings.
She said it occurred in late 1994, shortly after the marriage tribunal chairperson had told then Catholic Archbishop Leonard Faulkner of the homosexual affair.
“John was wanting to clarify with me my motivations for disclosing to the marriage tribunal,” Wendy said this week.
“I think they (John and Alison) were also trying to do a risk assessment because, basically, what they asked me to do was detail anybody I had spoken to and exactly what I had told them”.
“They said if it got out to the media was I prepared to deny it”.
“My response to that was I am happy to say I am not aware of it. John said, ‘No, that is not good enough, are you prepared to say no it didn’t happen, you need to be prepared to say it didn’t happen’”.
“He said if I wasn’t prepared to do that then he and Alison would move to England. I guess I felt a lot of pressure to make that commitment and I did make that commitment”.
Wendy said she had decided to speak out following Father Fleming’s denial of the affair.
“Basically, he was calling us liars and I guess that’s what made me angry,” she said. “My feeling before was if he took this on the chin or just said it was not appropriate to comment, then I didn’t need to add fuel to the fire. But the statement was a personal attack on Richard for something John did and he is not prepared to apologise and say, ‘I did the wrong thing’.”
Wendy said the 1994 meeting was the second time she had discussed her husband’s affair with Father Fleming – the first was in 1986 when Richard told her about it.
She said in the 1986 meeting “John became quiet and apologised and was visibly shaken”.
The woman at the centre of the PTF investigation, Jane, said Father Fleming’s denial “was no surprise”. “I didn’t think he’d have the courage to confess,” she said.
“Instead, he exhorts me to go to the police, even though it was made clear that I had made a police statement. I read this as code for ‘it will be your word against mine’.
“He must believe that his reputation will be proven superior to mine. But this isn’t about reputation; it is about the truth and I am telling it.”
Jane said Father Fleming’s denial of their sexual liaison had “hit me hard”. “I understand this pain is labelled re-victimisation,” she said. “He has stirred up in me again those feelings of worthlessness and desperation. I could have coped with silence, but his denial feels like a threat.”
Jenny said yesterday she was also upset at Father Fleming’s response, particularly that her allegations were “unsubstantiated”.
“The Catholic Church never investigated them, so how could he say they were unsubstantiated?” she said.
Father Fleming declined to comment when contacted through his lawyer Michael Sykes on Friday.
Appendix C
Father John Fleming sex claim report next year
AN internal investigation into the handling of sexual misconduct allegations against a senior priest by the Adelaide diocese of the Catholic Church will not be completed until next year.
The inquiry, being conducted by prominent lawyer Michael Abbott, QC, was launched in August, after the Sunday Mail revealed that the diocese was aware of the allegations surrounding Father John Fleming, but that it had not taken any action.
The allegations, one of which is the subject of a Paedophile Task Force investigation, involve activity which occurred when Father Fleming was an Anglican priest. They include allegations he was sexually involved with two girls – one underage – and that he had a homosexual affair before he was ordained as a Catholic priest.
The Sunday Mail revealed that church authorities – including, in one instance Sydney Cardinal George Pell – were also aware that Father Fleming was the subject of allegations of sexual misconduct before he was appointed to head Campion College, a Catholic arts facility in Sydney, in 2005.
The diocese was also aware of Father Fleming’s homosexual relationship prior to ordaining him in 1995, but proceeded.
When he announced the inquiry on August 29, Archbishop Philip Wilson said the diocese would “place no limits on the extent” of Mr Abbott’s investigations.
Mr Abbott said the inquiry was “progressing well” with all necessary documentation now obtained from the diocese.
“It will be a thorough and wide-ranging inquiry and I am now in the process of interviewing the relevant witnesses,” he said.
“Some have been approached and others are being notified regarding their interview.”
Mr Abbott said the scope of the inquiry would result in it being concluded early next year.
Appendix D
Church investigates Father John Fleming over homosexual claim
THE Anglican Church has launched an investigation into high-profile priest Father John Fleming’s alleged homosexual relationship with a former parishioner.
The inquiry, by the Professional Standards Office of the Anglican Diocese of Adelaide, was launched last month after a former parishioner agreed to co-operate with investigators.
The new investigation will run parallel with an inquiry already under way into Father Fleming’s conduct with an under-age girl and another woman while he was an Anglican priest in the 1970s.
The Anglican inquiries are not connected to the inquiry launched in August by the Catholic Church, after the Sunday Mail revealed police were investigating Father Fleming’s conduct with the under-age girl.
The Catholic Church inquiry, being conducted by prominent criminal lawyer Michael Abbott QC, is examining the Church’s handling of the same allegations against Father Fleming after it was notified of them. Mr Abbott has already interviewed the male parishioner, “Richard”, at length and will interview the two females “Jane” and “Jenny” soon.
Anglican Professional Standards Director Peter Caporaso yesterday confirmed the new investigation, but declined to comment further.
The Sunday Mail revealed last August that “Richard” had advised former Catholic Archbishop Leonard Faulkner that he had a homosexual affair with Father Fleming – prior to Father Fleming being ordained a Catholic priest in 1995.
While the Anglican Church does not have the power to take any action against Father Fleming because he is no longer an Anglican priest, it is likely the findings of its inquiries will be provided to the Catholic Church.
“Richard” yesterday told the Sunday Mail he welcomed the Anglican inquiry because he believed the matter needed to be investigated “fully and properly”.
“While the Abbott inquiry is examining the Catholic Church’s handling of the allegations after it was advised, the Anglican inquiry will examine what took place between John Fleming and myself,” he said.
A spokesman for Catholic Archbishop Philip Wilson yesterday said he had been formally advised by the Anglican Church of its inquiry into “Richard’s” complaint. The spokesman said the Church had not been advised of a finish date for Mr Abbott’s inquiry and there were still “no limits” on its extent.
The Sunday Mail revealed last August that Father Fleming was the subject of a Paedophile Task Force investigation into his conduct with an under-age girl.
“Jane” told the Sunday Mail she had a sexual relationship with Father Fleming when she was a teenager and detailed her attempts to have both the Catholic and Anglican churches take action for the past eight years.
Father Fleming was formally interviewed by detectives in December last year, but at this stage the police have chosen to keep an open file rather than lay criminal charges because of the evidentiary difficulties involving the investigation of historical sex offences.
“Jane” said yesterday although she was “intensely disappointed Father Fleming would not be held accountable in a court of law”, she still wanted him “to take responsibility for his actions”.
“I know what happened and he knows what happened,” she said.
“His continual denial is simply re-victimisation of me, which is making this process even more of an ordeal.”
As part of the police inquiry detectives took statements from “Richard” detailing his relationship with Father Fleming and from another woman, “Jenny” who was also allegedly sexually involved with him when she was 17.
Father Fleming was suspended from his position Campion College, Sydney, last August pending the results of the police and Catholic Church inquiry.
Appendix E
Priest sacked from college - Sexual misconduct investigation
HIGH-PROFILE priest Father John Fleming has been sacked from his prestigious teaching position as a top-level investigation into the Catholic Church’s handling of sexual misconduct allegations against him is finalised.
Sources have revealed Father Fleming’s contract as president of Campion College, a Catholic liberal arts tertiary school in Sydney, was terminated last month following a board meeting of the foundation that oversees the operations of the college.
The move, which is understood to have sparked a legal fight between Father Fleming and the college, comes almost a year after he was suspended when the Sunday Mail revealed he was the subject of allegations of sexual misconduct by three people and the target in a police investigation.
It comes just weeks before an independent inquiry report by prominent lawyer Michael Abbott, QC, is handed to the Catholic Archbishop of Adelaide Philip Wilson.
Archbishop Wilson commissioned the inquiry, which is examining the church’s handling of the allegations, on August 29 last year, after the Sunday Mail revealed the church was aware of some of the sexual misconduct allegations when Father Fleming was ordained as a catholic priest in 1995.
The Sunday Mail also revealed Father Fleming was the subject of a Paedophile Task Force investigation over alleged sexual misconduct with an underaged girl.
The police inquiry did not result in any charges because of insufficient evidence, but the file has been kept open.
The Sunday Mail understands Mr Abbott has just completed the final witness interview in his inquiry and he is now in the final stages of writing his report.
The chairman of the Campion foundation, union leader Joe De Bruyn, refused to comment on the move when contacted on Friday.
Archbishop Wilson’s office also declined to comment when asked if moves were now being made to have Father Fleming return to Adelaide. His licence is held by the Adelaide Diocese.
In a series of interviews last August, the three victims, Jane, Jenny and Richard, detailed their sexual involvement with Father Fleming while he was an Anglican priest.
Jane, who was underaged at the time of her involvement with Father Fleming, yesterday told the Sunday Mail she was “relieved” that he was no longer working at Campion.
“I’m also very angry. High ranking church officials knew of the allegations of illegal, immoral, and unprofessional behaviour, yet Fleming was appointed to an elevated position of trust,” she said.
“It seems like … the Catholic Church is more concerned about adverse publicity than about victims of abuse. His sacking gives me no joy, knowing that his wife and children will be suffering.”
The Anglican Church earlier this year launched its own inquiry into Father Fleming’s conduct with Richard, which is examining what took place between the pair while Father Fleming was an Anglican priest. While the Anglican Church cannot take any action, it is likely its findings will be provided to the Catholic Church.
Richard, who had a relationship with Father Fleming in the late 1970s, said he took “no joy at all” from Father Fleming’s situation.
“It is very sad that is has come to this and if these issues had been dealt with properly when they first arose, we may not all have found ourselves in this mess. I am not looking for retribution in this matter,” he said.
“Since this matter re-entered my life about 18 months ago I have received no offer of any support at all from the Catholic Church.
“I hope the report of the Abbott inquiry is available soon and that something creative and positive comes from it for all the relevant parties and it is not left to gather dust on the collective bookshelves of archbishops and monsignors.”
Father Fleming could not be contacted for comment yesterday.