Hanna v Matthew No. DCCIV-00-1226

HANNA v MATTHEW
[2002] SADC 64
Judge Rice
Civil
Introduction

This is an action by Kris Hanna (“the plaintiff”) against Wayne Matthew (“the defendant”) claiming damages for defamation. There are a number of publications involved, although the substance at the centre of the complaints remains effectively the same.
The publications that form the basis for the claim are as follows:-
1.A media release (“Media Release B”) which was said to have been published at the defendant’s instruction to a number of media outlets on or about 24th May, 2000, particularly Messenger Newspapers Pty. Ltd..
2.The central part of Media Release B (which is at the core of this claim) was republished by Messenger Newspapers Pty. Ltd. in an article in the Southern Times Messenger on the 7th June, 2000 under the heading “WOODEND DISPUTE - MPs swap insults over tavern plan”.
3.A corrected version of Media Release B (“Media Release A”) was said to have been published by the defendant at his website, (Media Release A corrects Media Release B in that it corrects the name of the school from Seaview High School to Hamilton Secondary College, but is not otherwise relevantly different).
4.The publication of a letter to the Southern Times Messenger on the 15th June, 2000 in which the correction referred to in paragraph 3 above was made and in which the defendant was critical of the plaintiff’s resignation from the College Council.
5.The republication of the letter referred to in paragraph 4 above in both the Southern Times Messenger and the Guardian Messenger on the 28th June, 2000 under the heading “School correction”.
6.The publication of Media Release A by the defendant on the Government website.
As can be seen, these suggested publications have a particular media release at the centre of the claim. The full text of that release is referred to later (Media Release B), but I now quote the core sentences:-
“Earlier this year, we saw the Member for Mitchell walk away from the school council of the Seaview High School, and here we have him disparaging the efforts of the Woodend Community. His actions are a disgrace.”
As mentioned, Media Release A was in the same terms as Media Release B, but the former substitutes Hamilton Secondary School for Seaview High School. No point was taken about the correction. The plaintiff was, and remained, a member of the Council of Seaview High School but he resigned from the Council of Hamilton Secondary College. I will have more to say about that later.
As to the acts of publication and the words of the media releases, the following is common ground. The defendant accepts responsibility (where relevant via Government employees acting at his direction) for the words and the publication in paragraph 1 above, the relevant words used in the republication referred to in paragraph 2, the publication on his website in paragraph 3, the publication of the letter in paragraph 4, the republication of the letter in paragraph 5 and the publication on the Government website in paragraph 6.
As to the republications in exhibits P1 and P5, the defendant is responsible for them because they were published at his request. In exhibit P5, although there was an alteration to the text to effect the correction from Seaview High School to the Hamilton Secondary College, the defamatory substance remained the same. Those republications may properly found further claims for damages.
Pleadings
Very little of the pleadings needs to be reproduced here. It is convenient for present purposes to reproduce paragraphs 27, 28 and 29 of the Amended Statement of Claim concerning Media Release A (being the amended release):-
“27.The following words contained in media release A are defamatory of the plaintiff:
Earlier this year, we saw the Member for Mitchell walk away from the school council of the Hamilton Secondary College, and here we have him disparaging the efforts of the Woodend Community. His actions are a disgrace.
28.In its natural and ordinary meaning media release A carries the imputations that the plaintiff:
28.1Had abandoned or neglected his duties as a member of the Hamilton Secondary College School Council;
28.2Was not prepared to support the Hamilton Secondary College;
28.3Had not properly or diligently performed the functions of a Member of Parliament;
28.4Was not fit to sit as a Member of Parliament;
28.5Had undermined, denigrated or demeaned the efforts of the Woodend residents to oppose the tavern application;
28.6Had undermined, denigrated or demeaned the residents of Woodend;
28.7Was disloyal to the Woodend residents;
28.8Was contemptuous of the Woodend residents and of their efforts to oppose the tavern application;
28.9Did not truly support the Woodend residents’ campaign against the tavern application and was therefore hypocritical, dishonest or deceitful in his support of the campaign;
28.10Had acted in a disgraceful, odious, hypocritical and/or scandalous manner.
29.In the alternative, media release A carries the said imputations by innuendo to those readers of it who knew of some or all of the matters referred to in paragraphs 11, 12, 13 and 14.”
Identical imputations and imputations by innuendo were alleged concerning Media Release B and the article referred to in paragraph 2 above.
Virtually identical imputations and imputations by innuendo were alleged concerning the letter referred to in paragraphs 4 and 5 above. The additional imputation was that:-
“34.3Was not prepared to support the schools in his electorate.”
No separate imputation was alleged concerning paragraph 3 above as to Media Release A at the defendant’s website or the Government website.
General arguments of the parties
The initial question is whether the words of the publications (the words being effectively the same) convey imputations in their natural and ordinary meaning. The plaintiff suggests the defamatory meanings set out in the pleadings can be reduced to these essential claims, namely that:-
1.The plaintiff had deliberately abandoned his legal and/or moral responsibilities to serve as a member of the Hamilton Secondary College School Council; and
2.He had dishonourably and disloyally denigrated the residents of Woodend and their efforts.
The defendant denies that the words of the publications are capable of conveying any of the defamatory imputations alleged. Rather, so the defendant contends, the ordinary reader would regard them as part of the daily diet of politicians trading insults. In the event that the various publications do convey defamatory imputations, then a number of substantive defences require consideration. Those defences, broadly stated, are those of political discussion, reply to attack and fair comment. A consideration of those defences also requires a consideration of whether malice has been shown on the part of the defendant. Such matters would require additional factual findings by me.
As mentioned earlier, part of the Amended Statement of Claim alleges that some of the publications were defamatory in that they involved imputations by innuendo arising from knowledge of certain historical facts. However, the case as presented did not pursue this avenue. Further, no witness was called on behalf of the plaintiff claiming any special knowledge whereby a relevant connection could be drawn between those facts and the publications. For these reasons I do not address the matter further.
I find the following facts.
Background facts - general
Something needs to be said about the general background circumstances to put the relevant publications in context.
At all relevant times, the plaintiff was elected member for the South Australian House of Assembly seat of Mitchell. He is sometimes referred to as the Member for Mitchell.
The defendant has been the Member for Bright in the South Australian House of Assembly since 1989.
The suburb of Sheidow Park and a substantial portion of the suburb of Trott Park are presently within the boundaries of the seat of Bright. By an order of the Electoral Boundaries Commission made in 1998, the electoral boundaries of the seat of Mitchell were to incorporate the whole of the suburbs of Trott Park and Sheidow Park as at the time of the issuing of writs for the next State election. (Such an election has taken place between the trial of this matter and these reasons.)
Since October, 1997, the plaintiff served as an ex officio member of the Seaview High School Council. He attended Council meetings and special occasions concerning the school.
With a couple of exceptions, the plaintiff has served as an ex officio member of the Hamilton Secondary College Council since November, 1995. One of those exceptions was between November, 1999 and June, 2000. As the exhibits reveal (exhibit P3 especially), the plaintiff attended Council meetings and special occasions concerning the school.
The proposal for a tavern
A portion of the suburb of Sheidow Park is known as “Woodend”. Within that area there is the Woodend Kindergarten and Woodend Primary School. Adjacent to those educational facilities was a partially vacant shopping centre known as the Woodend Shopping Centre. The shopping centre is owned by one of the Hickinbotham group of companies. In 1999, an application for the development of a tavern at the Woodend Shopping Centre was lodged with the Marion Council. Having regard to the evidence, particularly that of the plaintiff and the documents in exhibit P2, the majority of the Woodend residents opposed the tavern application.
There was a strong community backlash against the proposed development. There were protests, a petition, and local residents lobbied the Marion Council to defeat the proposal.
Further, on all the evidence before me, it is clear that the plaintiff was a very strong opponent of the development (for example, see exhibit D28, Hansard, House of Assembly, Grievance Debate, p.130). Equally, it must be said, the defendant and the Government also opposed the development (also see D28).
Private Member’s Bill
The plaintiff acted quickly by introducing a Private Member’s Bill which was designed to prevent hotels being adjacent to school premises. The Bill (exhibit D29) was to be cited as the Liquor Licensing (Hotels Near Schools) Amendment Act, 1999. It was introduced on the 21st October, 1999 and read for a first and second time on that day: (see D28 for 21st October, 1999).
The defendant also spoke strongly in support of “....the intent and the endeavour behind the introduction of the Bill”, but opposed the Bill because unforeseen consequences would be brought about by virtue of the narrow focus of its provisions. (D28 for 28th October, 1999.) Adjournment of further debate was secured by Mr Meier, the Government Whip in the Lower House.
The plaintiff was anxious for the Bill to proceed quickly through the Lower House and to commence as at the time of its introduction. The Bill provided for a commencement date of the amendment of 21st October, 1999, irrespective of the time it took to proceed through both Houses and receive Royal Assent.
The plaintiff again spoke of the Bill in the Lower House on 18th November, 1999 (D28). The Parliament was about to adjourn for the summer break for a period of four months. He lamented the fact that the Government would not support the Bill even though it had given it “in principle” support.
The plaintiff did not allow the matter to rest there. He issued a press release to the Southern Times Manager on 19th November, 1999 (see exhibit P2 at p.11) expressing disappointment that Parliament had delayed voting on his Bill. On the 2nd February, 2000, the plaintiff sent a letter to the “Letters to the Editor” section of the Southern Times Messenger (exhibit P2 at p.20) voicing that same disappointment in the context of the tavern saga going to the Environment, Resources and Development Court. That letter was published in the Guardian on 16th February, 2000 (exhibit P2 at p.21). The defendant responded by a letter to the Guardian, which was published on 1st March, 2000 (exhibit P2 at pp.22-23), defending the Government’s position. The plaintiff replied with another letter to the Guardian, which was published on the 5th April, 2000 (exhibit P2 at pp.24, 27 and 34), again critical of the Government when all parties agreed that hotels next to schools was a bad idea.
The Bill was eventually defeated on 1st June, 2000 when two independents combined to defeat it (exhibit P2 at p.44).
Lease or purchase of the shopping centre by the Education Department
Apart from the Private Member’s Bill to prevent the tavern development, an alternative solution was emerging. The Education Department was reported as having a potential interest in the site on 17th November, 1999 (exhibit P2 at p.10 - Southern Times Messenger).
On the 5th January, 2000, the plaintiff wrote to the Minister for Education, Children’s Services and Training, Mr Buckby, seeking a progress report on the proposal that the Department of Education, Training and Employment expand the Woodend Primary School into the Woodend Shopping Centre. This solution was mentioned by the defendant in his letter to the Guardian Messenger and published in the Guardian on 1st March, 2000 (exhibit P2 at p.23).
The plaintiff, on 24th March, 2000, made a request to the Department of Education, Training and Employment for documents on this topic pursuant to section 13 of the Freedom of Information Act.
This alternative solution came to fruition in May, 2000. Two media releases were prepared announcing that the State Government would purchase the Woodend Shopping Centre “....and use the additional space to expand the local primary school.” The releases are dated the 12th and 14th May, 2000 respectively (exhibit P2 at p.36 and exhibit D12) and show that they were prepared in the Premier’s office. They are in substantially the same terms. The differences are in respect of whom the media might contact for further material, and one announces that the defendant will be available for comment at the Woodend School at 11.00 a.m. on Sunday, 14th May, 2000.
I will return to this purchase later in these reasons when considering the events on and about the 24th May, 2000 and the alleged defamations.
Hamilton Secondary College Council - Partnerships 21
While the matters referred to above were occurring, other relevant events were unfolding on a separate front.
Mention has already been made of the plaintiff’s involvement as a member of the Hamilton Secondary College Council. During the course of 1999, the Hamilton Secondary College, as well as other public schools in the State, was giving consideration to its involvement in what was termed “Partnerships 21”. Without descending into great detail, Partnerships 21 involved a different approach to school governance and funding. Schools that agreed to be part of Partnerships 21 were to have greater autonomy and control over budget expenditure. An agreement by the school to be part of the scheme potentially involved better funding for the school.
The minutes of the Council meetings of the Hamilton Secondary College for 1999 contained within exhibit P3 show Partnerships 21 to have been an item of business on many occasions. Various minutes reflect a general support for involvement in Partnerships 21. Time and other commitments permitting, the plaintiff attended some of these Council meetings. The minutes for 20th October, 1999 reveal that an Extraordinary Meeting was proposed for 3rd November, 1999. The meeting was to consider a motion:-
“That Hamilton Secondary College Council Inc. endorse that Hamilton Secondary College take up Partnerships 21 from January 1, 2000.”
That Extraordinary Meeting did not take place and the vote was taken via a postal ballot (transcript p.154).
The minutes for 17th November, 1999 showed that the staff of the College voted 87/22 in favour of the motion, and the Council voted 18/0 also in favour of the motion. The Council also decided that the Governing Council would be reduced to 15 (from 18). On the basis of the model accepted by the Council, there was no provision for the local Member of Parliament or local council member for the area to be a member of School Council. The plaintiff became a “patron” of the School Council whereby he was only to receive minutes of the meetings (exhibit P3 at pp.119 and 125).
The position with the Seaview High School Council concerning Partnerships 21 was very marginal (see release by the plaintiff to the Guardian Messenger on 14/12/99 - exhibit D27), but it eventually voted in favour of it. The plaintiff observed how deeply divisive the whole Partnerships 21 process had been for school communities.
The composition of the Hamilton Secondary College Council was contrary to the Regulations. Regulation 87 of the Regulations under the Education Act, 1972 stipulated that the composition of a school council established in relation to a secondary school was to include the local member of the House of Assembly or his nominee. The plaintiff made no nomination. The plaintiff was aware of those Regulations as is evidenced by exhibit D26 dated 10th September, 1997, which makes specific reference to them. However, I accept the effect of the evidence of the plaintiff (transcript p.63) that he was not conscious of the Regulations at this time and assumed new Regulations would reflect and accommodate Partnerships 21 changes. The Regulations were also raised in correspondence in May, 2000 when the Department of Education, Training and Employment wrote to the Principal of the College as to the composition of the College Governing Council (exhibit P3 at p.142).
In accordance with the arrangements for the year 2000, the plaintiff continued to receive and read the minutes of the Council meetings. He noticed in the minutes for May, 2000 that “thank you” letters had been sent to previous members of Council. He had not received such a letter. He did not want such a letter, but wondered whether he had offended someone. He made an appointment to see the new school Principal, Mr Leahy. At that meeting, the plaintiff was asked to come back to the Council. At about that time, the College probably received the letter dated 11th May from the District Superintendent concerning the ongoing application of Regulation 87.
The minutes of the Council meeting for 7th June show that the Council adhered to its current structure with the addition of such members as to meet the requirements of Regulation 87. Thereafter, the plaintiff continued to receive the agendas and minutes of the Council meetings, and attended some meetings.
At some time prior to his reinstatement on the College Council, the plaintiff issued a newsletter that went under the usual heading of “The Mitchell Bulletin”. The plaintiff believes that it was published about March, 2000. It does not bear a date. In that bulletin, the plaintiff said this:-
“Partnerships 21 changes at Hamilton Secondary College mean I’m leaving the School Council after four years of service there. My active interest in education issues continues as a member of the Seaview High School Council.”
That bulletin was referred to in the House of Assembly by the Minister for Education and Children’s Services on Wednesday, 5th April, 2000. It was both sarcastic and humorous, or as the defendant put it (transcript p.250), the Minister was having a “swipe” at the plaintiff:-
“It was somewhat surprising to read the member for Mitchell’s latest newsletter to his constituents in which he advises them that he has left the Hamilton Secondary College school council because of Partnerships 21 changes. I am just wondering if this is but one of the unexpected benefits of Partnerships 21.” (Exhibit D23)
It is important to note that the plaintiff has been steadfast in his commitment to the Hamilton Secondary College. As the local member, he had a keen and active involvement with the College. He attended Council meetings when able to do so. His belief that he was no longer able to be part of the Governing Council was brought about by Partnerships 21 and the model of school governance adopted by the Hamilton Secondary College. He did not choose or decide to relinquish his position on the Council. He believed that Partnerships 21 changes had put him in that position. Even in that altered situation, he still received and read Council minutes. His interest in the College was undiminished even though he did not attend meetings. He resumed as a member of the Council after the meeting in June, 2000.

I reiterate that his involvement and dedication to the Seaview High School was uninterrupted throughout this period.
The plaintiff opposed Partnerships 21 because it had the effect of dividing school communities.
Purchase of the Woodend Shopping Centre
I return to the crucial topic of the purchase of the Woodend Shopping Centre, particularly the process undertaken and the price paid.
The publications that provide the foundation of this action state that the property owners, Hickinbothams, were asking $3.95 million for the property but that the Government negotiated a price of $3.8 million to secure the property. Hickinbothams asking price was to include refurbishment to bring the buildings up to Government school standards (see publications below and exhibit P14 dated 12th January, 2000).
It is also clear that the negotiations over price were protracted and without result. The defendant spoke to the Minister for Education on 26th March, 2000 about the status of the negotiations. His note of that conversation is contained within exhibit P40. It is reproduced in its entirety:-
“Woodend School  26/3/2000
Spoke to Education Minister Malcolm Buckby re status of negotiations.
He advised that:
·       Valuer General placed a $2.9 million value on shopping centre fitted out for classrooms.
·       Govt has offered $3.1 million.
·       Hickinbothams want $3.9 million.
Negotiations are deadlocked at this time. Michael Hickinbotham is being unreasonable. I advised Malcolm that I will talk to each of Michael Hickinbotham and Greg Crafter to help resolve the situation.
I advised Malcolm that I can in my position say to them what he can’t, i.e. Premier and Education Minister have been involved, this is not usual, the offer is a good one, it is against earlier views of Dept, that if he doesn’t accept this Mr Chris Hanna’s Bill will pass and they lose the lot.
(Signed)   W. Matthew”
This is an exhibit to which I will need to return. However, it is plain from the evidence that the defendant was intimately involved in the negotiations about price. He knew the Government paid more than the property was valued, possibly by as much as $900,000 or even much more. That is not to say, however, that the Government should not have paid what it eventually agreed to pay; sometimes Governments are at the mercy of vendors/developers in this type of situation and a higher negotiated price may be the quickest and cheapest solution.
I accept the plaintiff’s evidence that he had an ongoing interest in the possible purchase of the Woodend Shopping Centre and, once it was announced, the purchase price. Various exhibits referred to earlier confirm the plaintiff’s evidence (transcript pp.78 ff.) that he wanted to keep the issue alive and that either passing his Bill or the purchase of the property by the Government would solve the problem of the tavern proposal. That interest is reflected in the Freedom of Information Act request of 24th March, 2000 to the Department of Education, Training and Employment (exhibit P2, pp.28-29). The plaintiff also issued a press release headed “GOVERNMENT MUST ACT ON WOODEND SITE” dealing with this same topic (exhibit P2, p.35 - although undated the text suggests it is early May).
I now turn to the proceedings in the House of Assembly on 24th May, 2000. The plaintiff first raised the topic of the cost of the purchase during Question Time (D28). The plaintiff also spoke during the Grievance Debate on that day. The full text of what he said is reproduced because of its importance in these proceedings:-
“GRIEVANCE DEBATE
Mr HANNA (Mitchell):    Today I will speak about the government’s purchase of the Woodend shopping centre. It is a scandal; it is the story of a hand-out to one of the government’s mates. When I first heard the news that the Woodend Primary School could be expanded --
The Hon. G.A. Ingerson interjecting:
Mr HANNA: I cannot quite hear the interjection from the cabinet secretary.
Members interjecting:
The SPEAKER:         Order! The House has given the member for Mitchell the call. I ask you to respect it.
Mr HANNA:     When I first heard the news that the Woodend Primary School could be expanded by incorporating --
The Hon. M.K. BRINDAL:        I rise on a point of order, sir. I ask that you obtain an assurance from the member for Mitchell that the subject matter he is now canvassing is not the same subject matter that he will canvass in the motion that he has put on notice for tomorrow.
The SPEAKER:         The chair is of the opinion that we are in a grievance debate. I do not uphold the point of order.
Mr HANNA:     I can understand them trying to shut me up today, because this is a case of a $1 million to $2 million hand-out to one of their mates. I was as glad as any of the residents when I heard that the Woodend Primary School could be expanded to incorporate the Woodend shopping centre site. That is great news for the community, because the school is busting and it needs the space. But, look at the history of the matter. The shopping centre there has been disused for years, and the developer, Hickinbotham, relied on a pokies tavern being built on the site to get any money out of the property. It was in a weak bargaining position.
When I introduced my private member’s bill in October last year which provided that there should not be any pubs next to schools and that placing a pub, with the associated problems that we see from time to time, immediately adjacent to a primary school is an inappropriate use of land, the government responded by saying, ‘We must do anything but pass the member for Mitchell’s bill.’ The government responded by saying, ‘How can we get around this? How can we satisfy the community, which dearly wants that site preserved for its local school or some other constructive purpose - to have it used for anything but a pokies tavern?’
The government said, ‘The way we can do this is to hand over a fist full of money to Hickinbothams.’ Who are Hickinbothams? Apart from anything else, apart from building homes as they do, Hickinbothams are one of the government’s mates. Make no mistake about that! They are significant and major donors to the Liberal Party. Come election time, Hickinbothams will be reaching into their pocket to give money to this crew on the other side. What are they now doing for a building that is valued by an independent valuer at $1.3 million and, allowing for the fact that Hickinbothams say that they will renovate it at $1.5 million, which is way over the odds, the government says that it will pay $3.8 million for the site? It is a rip off. Who is being ripped off? The taxpayers.
To give the House an idea of just how much money that is, the amount that the government is handing to Hickinbothams over and above the commercial value of that building is equivalent to the emergency services tax on every house in my electorate. I know what my people would rather have. They would rather not have the emergency services tax than see the government hand over $2 million to a prosperous development group. I have no problem with Hickinbothams’ activities, but the fact that they are a close mate of this government needs to be pointed out. We should ask the question, ‘Why did the government pay over the odds?’ It had internal Department of Education memos which said, ‘Don’t do it; it’s not worth that amount of money.’ Even allowing for a 20 per cent premium, allowing for the fact that they might be able to rent the property again, allowing for the fact that Hickinbothams’ site might be able to be used for a pokies tavern, even though development approval had been refused by the Marion council, allowing for all those factors, the department said, ‘You can offer $3.3 million. That would be more than a fair amount.’ Even if you take the evaluations at their highest, the government has reached into its pocket for taxpayers’ money to give a big hand-out to these people. The question is why? Let me say something else about the situation: the school itself is leased. For the first time, a school has been leased and it has been proven to be the least cost effective way of doing it.
Time expired.”  (D28)
The plaintiff’s main theme was that the Government had paid an excessive price for the Woodend site and had thereby handed out taxpayers’ money “....to one of the government’s mates”, namely the Hickinbothams, claiming they were major donors to the Liberal Party. It is to be noted that the plaintiff said the expansion of the Woodend Primary School into the Woodend Shopping Centre was “great news for the community, because the school is busting and it needs the space”. He said he “was as glad as any of the residents” that this expansion was taking place. Certainly there is nothing derogatory of the community or their efforts. The plaintiff was joining with the positive community feeling about the news.
It should also be noted that the plaintiff said nothing about the Seaview High School or Hamilton Secondary College.
The defendant then issued a Media Release, also on Wednesday, 24th May, 2000. Because the text of this release provides the basis for the plaintiff’s present action, it also is reproduced in its entirety (exhibit P2, p.39):-

MEDIA RELEASE

  “
Hon Wayne Matthew MP
Minister for Minerals & Energy  ............................
Minister Assisting the Deputy Premier
_________________________________________________________________
Wednesday, 24 May 2000
WOODEND PRIMARY -
WHAT PRICE OUR CHILDREN’S FUTURE?
The proposed expansion of the Woodend Primary School, to cater for increasing student numbers, came under fire in Parliament today from the Labor Party.
‘The expansion of the Woodend Primary School, to give extra classroom space and prevent the onset of a tavern on adjoining premises, can only be seen in any rational analysis as a win for the local community,’ says Local Member for Bright, Wayne Matthew.
‘The school was built to cater for 300 students, yet current enrolments are already at 370, and the estimates are that by 2007, there will be around 650 students in the area.
‘The Government is committed to providing those students with first rate education facilities, so we needed to either look at building a completely new school in the area, or significantly expanding the existing facility. Through the purchase of the vacant shopping centre, we have provided that much needed extra classroom space, and prevented the establishment of a tavern in what was clearly an inappropriate venue.
‘Why are the Labor Party, and the Member for Mitchell in particular, so opposed to improving the prospects for our children’s education?
‘Earlier this year, we saw the Member for Mitchell walk away from the school council of the Seaview High School, and here we have him disparaging the efforts of the Woodend Community. His actions are a disgrace.’
The Member for Mitchell today suggested that the Government paid over market value for the purchase of the Woodend Shopping Centre.
-Property owners, Hickinbothams were asking $3.95 million for the property (including refurbishment to bring the building up to Government school standards);
-Following negotiation, $3.8 million was paid in order to secure the property.
‘The Government makes no apology in coming to a negotiated agreement on the price of the property required for the Woodend Primary School expansion,’ says Mr Matthew. ‘We were determined to expand the existing primary school to meet demand, rather than establishing a completely new facility in the area, which would have been far more expensive.
‘The expansion of the Woodend Primary School is a good decision for Woodend and Sheidow Park residents, and I am very disappointed to find that all members of Parliament do not support such a significant investment at our local school.’

Media Contact:   Kate McShane    ..................    ...................

   ”
The crucial sentences are as follows but substituting Hamilton Secondary College for Seaview High School as referred to in paragraph 27 of the Amended Statement of Claim:-
“Earlier this year, we saw the Member for Mitchell walk away from the school council of the Hamilton Secondary College, and here we have him disparaging the efforts of the Woodend Community. His actions are a disgrace.”
What imputations, if any, arise from those words in the various publications?
The first issue for me is whether the imputations alleged arise on the natural and ordinary meaning of the words in the press release just quoted. Is the publication capable of giving rise to those imputations and, if so, do they arise in fact.
The test for determination of meaning has been variously formulated. For my part, I adopt the test used by Doyle CJ in Chakravarti v Advertiser Newspapers Ltd (1996) 65 SASR 527 at 540:-
“That question is to be answered by applying the standard of ‘ordinary men and women’ who are neither unusually suspicious nor unusually naïve: Lewis v Daily Telegraph (at 259) per Lord Reid; at 286 per Lord Devlin. The same approach has been taken in Australia, where the point of reference has been described as ‘the ordinary reasonable reader’: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 per Mason J; at 304 per Brennan J.
In applying this standard it is important to distinguish between the reader’s understanding of what the writer of the article is saying or conveying, and further conclusions drawn by the reader based on his own experiences, beliefs and prejudices. In short, one must distinguish between what the writer has said and what the reader infers from that. This is how it was put by Mason J in Mirror Newspapers Ltd v Harrison (at 301):
‘A distinction needs to be drawn between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.’
The courts have not been slow to scrutinise the mind and personality of this ordinary reasonable reader. Dicta abound as to that reader’s qualities. I think that what Hunt J said in Farquhar v Bottom (at 386) sums up adequately the reader’s characteristics:
‘The ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs. He is a layman, not a lawyer, and his capacity for implication is much greater than that of a lawyer. Especially in newspaper cases, he is understandably prone to engage in a certain amount of loose thinking. On the other hand, the reader of a book would read it with more care than he would a newspaper. But in both cases, there is also a very wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words are imprecise, ambiguous, loose, fanciful or unusual.’ ”
Although the appeal to the High Court was allowed on another point, I do not understand there to have been any dissent from that portion of the judgment of Doyle CJ to which I have referred. Indeed, that quotation was referred to with approval by Kirby J on the appeal: (1998) 193 CLR 519 at 572-573. Kirby J himself formulated the matter in this fashion at 573:-
“The point of these attempts to describe the notional recipient is to conjure up an idea of the kind of person who will receive the communication in question and in whose opinion the reputation of the person affected is said to be lowered. Special knowledge is excluded. So are extremes of suspicion and cynicism (on the one hand) or naivety and disbelief (on the other). The basic question which is posed is whether the matter complained of, understood in its natural and ordinary meaning, would tend to lower the subject in the estimate of such an evocation of the ordinary, reasonable, member of society.”
(Also see the discussion by Lander J in Chapman and Chapman v Australian Broadcasting Corporation [2000] SASC 146 at paras.57-63.)
The pleadings referred to above recite the imputations alleged by the plaintiff. The defendant contends as follows:-
“The defendant contends that the ordinary reader would not in fact understand the matters complained of in any sense defamatory of the plaintiff. Rather, the ordinary reasonable reader would view them in the way that the Southern Times Messenger viewed them - as Members of Parliament exchanging insults with one another. Any casual observer of Question Time (including the ordinary reasonable reader) would ingest a daily diet of barbs and brickbats being exchanged by opposing politicians. It is the expectation of the ordinary reader that they do so in order to score political points. One makes an allegation of scandal and another responds with assertions of disgraceful conduct.”
Further, the defendant submitted that the whole case should be viewed in line with the sentiments of the dissenting judgment of Cox J in Peterson v Advertiser Newspapers Limited (1995) 64 SASR 152 at 160.
I have no doubt that the crucial sentences are objectively capable of giving rise to defamatory imputations and that they arise as a matter of fact. However, in my view, the words are not capable of giving rise to all the defamatory imputations alleged. In my view, the words, in their natural and ordinary meaning, meant and were understood to mean and carried the imputations referred to in paragraphs 28.1, 28.2 and 28.5-28.7.
The letter referred to in paragraphs 4 and 5 above (the letter to the Southern Messenger of 15th June and its republication on 28th June, 2000 in that newspaper) is capable of and does in fact give rise to the additional imputation referred to in paragraph 34.3.
As I have reproduced earlier, these imputations were distilled to two essential claims:-
1.The plaintiff had deliberately abandoned his legal and/or moral responsibilities to serve as a member of the Hamilton Secondary College School Council; and
2.He had dishonourably and disloyally denigrated the residents of Woodend and their efforts.
I accept that the words convey these general imputations. As I have endeavoured to make clear, the plaintiff was very conscientious about his commitment and involvement with the Hamilton Secondary College.
The words do convey the imputation that the plaintiff deliberately abandoned his legal and moral responsibilities in that regard. The plaintiff believed, quite reasonably in my view, that Partnerships 21 changes, including changes to the Regulations that he also believed would follow, deprived him of a position on the Council. That was not a matter of his choice or decision.
Further, there can be no doubt that the words convey the imputation that the plaintiff denigrated or put down the efforts of the Woodend community. The defendant well knew that the plaintiff (and the defendant for that matter) was very supportive of the Woodend community in its efforts to oppose the tavern proposal and secure an expansion of the primary school. The words of the plaintiff in the Grievance Debate said little of the Woodend community; to the extent the community was alluded to, the expansion was viewed in a pleasing, positive and beneficial light.

To my mind the defendant’s attack upon the plaintiff was a diversion to take the sting out of the plaintiff’s attack upon the Government in the House of Assembly that day. By choosing and sanctioning the words that he did, the defendant denigrated the plaintiff in the eyes of the electorate, and Mitchell in particular, in an endeavour to diffuse the allegation of political patronage. The defendant was responding on behalf of the Government as well as himself. The defendant was, as is acknowledged, closely associated with the solution to the Woodend problem and the allegation of scandal and corruption hit him (transcript pp.268.17; 273.38; 421; also exhibit P40 quoted earlier).
I do not accept the defendant’s explanation for the use of those words. The defendant emphasizes the opening words (transcript p.277) of the Grievance Debate, namely:-
“Today I will speak about the government’s purchase of the Woodend shopping centre. It is a scandal; ......”
The first point to mention is that that does not represent the syntax used by the plaintiff. As exhibit D28 shows, there is a full stop after the word “centre”. I reproduce that portion of the debate:-
“Mr HANNA (Mitchell): Today I will speak about the government’s purchase of the Woodend shopping centre. It is a scandal; it is the story of a hand-out to one of the government’s mates. ..........”
The scandal relates to the hand-out of taxpayers’ money, not the Government purchase. Exhibit D15, the unedited version from Hansard, is the same.
Secondly, looking at the whole debate, the thrust of the plaintiff’s comments deal with the alleged excessive price paid for the site. Little was said about the community and nothing disparaging of its efforts.
Substantive defences
Qualified privilege - Political discussion
This common law defence was explained in the High Court decision of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571-2:-
“Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.
Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.”
The plaintiff accepts that the subject matter of the Woodend purchase and the plaintiff’s attendance at school councils as a member of Parliament were proper matters for public comment.
This defence is not absolute. Its availability is substantially qualified, particularly where there has been, as here, a publication or communication to a large audience. In Lange’s case, the High Court made it plain that in this type of situation it was necessary for the defendant to prove that his conduct in publishing the material was reasonable. The Court said this at p.573:-
“The defendant must establish that its conduct in making the publication was reasonable in all the circumstances of the case. In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication.”
And again at p.574:-
“Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond (Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211).”
This defence will also be defeated if the publisher was “actuated by malice”, that is, “....a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose” (Lange also at p.574). The Court emphasized the need for the plaintiff to prove that the defendant was actuated by malice. The Court went on (at p.574):-
“Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff’s onus of proof of this issue.”
Applying those principles, I turn to the reasonableness of the defendant’s actions. The onus in this regard rests on the defendant.
In my view, the defendant has not shown that he acted reasonably. It was not reasonable for the defendant not to approach the plaintiff prior to the publication. No doubt, as a matter of political expediency, the defendant needed to act quickly in formulating a response, but that does not excuse failing to approach the plaintiff. The plaintiff had not walked away from the Hamilton Secondary College, let alone the Seaview High School. The defendant must have been aware of its falsity in respect of the Seaview High School. There was no stated link between the plaintiff’s actions in respect of the school or college and Partnerships 21. Even a quick check of the unrevised Hansard for Question Time or the Grievance Debate for the 24th May would have revealed that the plaintiff had not disparaged or denigrated or put-down the efforts of the Woodend community. The defendant acted quite recklessly as to the publication of Media Release B and more so in respect of the other publications.
In my view, this defence fails.
Qualified privilege - Reply to attack
There cannot be any doubt that the attack by the plaintiff in the House of Assembly was an attack both on the Government and the defendant, even though he was not a member of Cabinet. The defendant was the Minister for Minerals and Energy at the time. The response by the defendant was on behalf of the Government at the direction of the Premier (transcript p.268.17).
The attack by the plaintiff made serious allegations. He suggested the situation of an excessive payment to Hickinbothams, alleged supporters of the Liberal Party, was corrupt. Although replies to attacks must be reasonably commensurate with the attack, I accept that “no nice scales should be used” (Adam v Ward (1917) AC 309 at 330).
It was submitted on behalf of the defendant that he saw a connection between the “walking away” and the attack in Parliament. It was said that, in the defendant’s mind, both were responses by the plaintiff to things not going as he wanted them, that is, Partnerships 21 and his Private Member’s Bill; they were both playing political games. However, in my view, as I have already made plain, the reply had little to do with the attack. The attack was about the allegation of potential corruption and political patronage. The reply really attacked the maker of the allegations. By attacking the attacker, it was hoped that readers would pay less regard to the allegations. It was a means of deflecting the criticism. In as much as Media Release B dealt with the price paid, it was quite misleading in that it failed to give the complete picture and thereby avoided dealing with the gravamen of the plaintiff’s attack. In my view, the response went far beyond what was appropriate and was not reasonably commensurate with the attack.
Common law defence of fair comment
At common law, it is a defence to an action for defamation that the words concerned are fair comment on a matter of public interest. It must be shown by the defendant that the words are comment and not a statement of fact; secondly, the comment must be such that a fair-minded person could hold that view; and, thirdly, that the comment is on a matter of public interest. If the plaintiff can show that the comment was actuated by malice, the defence will not have been made out.
There are a number of limits on the success of this defence. The statement itself must identify the fact upon which the comment is based, and the comment itself (Kemsley v Foot (1952) AC 345 at 356-357).
The defence of fair comment requires the facts upon which the comment is made must be truthful (see Peter Walker & Son v Hodgson [1909] 1 KB 239 at 256-257). Further, whether a statement is a statement of fact or comment must be judged from the defamatory publication itself and not by reference to any other article or factual matter upon which it comments (Telnikoff v Matusevitch [1992] 2 AC 343. The House of Lords also said this at p.354:-
“The subject matter may, of course, be looked at for the purpose of ascertaining that the statement of fact is untrue.”
The defendant pleads that the statement “Earlier this year, we saw the Member for Mitchell walk away from the school council of the Hamilton Secondary College”, is a statement of fact upon which comment is based. However, it has not been shown as a matter of fact that the plaintiff walked away from the School Council of the Hamilton Secondary College. The words “walk away” used in the publication must be viewed as I have found them to be, that is, the plaintiff abandoning his legal/moral responsibilities. In any event, there is no pleaded comment with respect to this alleged statement of fact and so the suggestion of fair comment must fail. For these reasons alone, this defence must fail.
The defendant pleads that the words “....and here we have him disparaging the efforts of the Woodend Community. His actions are a disgrace” were comment. There are no relevant statements of fact pleaded in respect of which those words are comment.
Notwithstanding my views above, I consider whether the comment (assuming the factual basis was stated) is objectively fair. The test as to fairness is objective (Rocca v Manhire and Another (1992) 57 SASR 224 at 230. At p.229 the test was expressed in this way:-
“The general test with respect to fairness of comment is: ‘Could any fair-minded person honestly express that opinion on the proved facts?’ ”
I would answer that question in the negative. No fair-minded person could honestly express that opinion on the proved facts. Further, a comment must not mis-state the facts. A comment cannot be fair which is built upon facts which are not truly stated: Peter Walker & Son v Hodgson (supra) at p.257.
For these reasons also this defence fails.
Malice - Dominant Motive
Although I have found that all pleaded defences fail, I give separate consideration as to whether malice has been proved. Malice would defeat the occasions of qualified privilege pleaded. It also has a bearing on damages.
The first question is as to the test for, or meaning of, malice. I have quoted earlier from Lange’s case from p.574. Malice means spite or ill-will or other improper motive. It is not sufficient for the plaintiff to show that the defendant bore spite, ill-will or other improper motive; it must be shown that one of those matters actuated the publication or comment.
Malice also embraces the concept of “recklessness” that goes further than it does in the criminal law. Recklessness was explained by Lord Diplock in the oft-quoted case of Horrocks v Lowe [1975] AC 135 at 149-151:-
“So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.
The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.
Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, ‘honest belief’. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.”
Also at p.150:-
“Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled.”
I have had regard to all said by Lord Diplock on pp.149-153. These words have been approved and applied many times (e.g. see Roberts and Case v Bass (2000) 78 SASR 302 at 313-317).
This is a matter upon which my mind has fluctuated. In the end, I have taken the view that the plaintiff has not proved malice. The plaintiff relies not only upon the historical facts and contents of the publications themselves, but also the answers by the defendant in cross-examination. Notwithstanding my previous findings and comments as part of my consideration of the various defences, I am unable to find that the defendant did not believe his statements to be true. For this purpose, the fact that the statements are incorrect is irrelevant. The plaintiff in this regard has not discharged the substantial onus that rests upon him.
The plaintiff relied upon attempts by the defendant to distance himself from negotiations for the purchase of the tavern, as some evidence of malice. I accept that the defendant’s evidence in this regard was unsatisfactory but not sufficiently so for me to take the step to say he was actuated by malice. I cannot say that he had not forgotten about P40.
The plaintiff also relied upon the defendant’s evidence concerning the delay in the progress of the plaintiff’s Private Member’s Bill, on the question of malice. On the evidence, and upon a consideration of that Bill (D29), it did have the potential to result in unforeseen consequences.
Further, even if the defendant and the Government of which he was part deliberately used Parliamentary procedures to stall the Bill for their own political purposes, I am reluctant, on the evidence, to use that as evidence of malice. The Government was, as the evidence shows, endeavouring to find another solution.
Yet further, the plaintiff relies upon alterations of the draft of Media Release B made by the defendant concerning the valuations, leaving the school and disparaging the efforts of the Woodend residents as evidence of malice. I have already accepted that the words of the publications were an attack on the attacker, but again I am unable to say that the defendant was actuated by malice.
Still further, the letter (P5 - “School Correction” Southern Times, June 28, 2000) is put forward as evidencing malice. To my mind that letter is more about self-aggrandisement than malice. That letter is considered below.
Damages - principles and findings
By virtue of paragraph 36 of the Amended Statement of Claim, the plaintiff claims he has been deeply offended. Further, he claims he has been injured in his character, credit and reputation, and his prospects for re-election as a Member of Parliament have been harmed.
The plaintiff claims compensatory damages. Further, the plaintiff claims aggravated and exemplary damages by virtue of matters pleaded in paragraphs 21-26D (inclusive) of the Amended Statement of Claim relating to the circumstances surrounding the republication letter (exhibit P5) and the on-going availability of Media Release A on the defendant’s website and the Government website.
Compensatory damages - principles and findings
The principles in this area were discussed in the matter of Chakravarti upon it being remitted by the High Court. In Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 at 375, Doyle CJ and Perry J (with whom Williams J concurred) said this on the question of the purpose of damages:-
“In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 the High Court upheld a decision of the Court of Appeal of New South Wales setting aside as excessive damages awarded by a jury. In the course of considering whether the verdict was excessive, Mason CJ and Deane, Dawson and Gaudron JJ referred to the purposes to be served by damages awarded for defamation in a case in which no claim is made for particular economic loss. We treat what they say as applicable to the aspect of damages now under consideration. They said (at 60-61):
‘Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations”. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of damages necessary to vindicate the appellant.’ ” (Footnotes omitted.)

Also in Carson’s case, Brennan J (as he then was) put it in this way (at p.71):-
“Damages are awarded also for the plaintiff’s injured feelings (Dingle v Associated Newspapers Ltd [1964] AC at p.398), including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.”
Bearing in mind the three purposes referred to in Carson’s case, as applied in Chakravarti (upon it being remitted by the High Court), I make the following findings.
The defamatory portions of Media Release B were published in the Southern Times Messenger on June 7th, 2000 (exhibit P1). Media Release A (with the correct school) had already been published on the defendant’s website and the Government’s website.
The plaintiff read the Southern Times Messenger for June 7th shortly after its publication and delivery to his electorate office. The plaintiff gave evidence that he was shocked at what he called the offensive paragraphs in the article (exhibit P2 at p.45). The plaintiff said this in examination-in-chief (transcript pp.86-87):-
“A........ To say that the accusations were a disgrace started to get me going, and then to read that ‘We saw the member for Mitchell walk away from the school council of the Seaview High School, and here we have him disparaging the efforts of the Woodend community’. That I was shocked about, and when the shock wore off - I mean I was angry about it, specifically because of the unfairness of it. The fact that I had pursued this issue of accountability by every means available, and sincerely, and as a response to have a personal attack, to have something completely beside the point thrown back, I felt was very unfair.”
The plaintiff was rightly concerned about the electoral implications of the article and faxed a copy of it to his solicitors on June 7th instructing that a letter be sent seeking an apology. The plaintiff also said that, a few minutes after reading the article, he came to realise that the defendant had made an error as to the school.
The plaintiff said that there was no enquiry of him by any Government or Liberal Member of Parliament or their staff between the time of the issue of the Mitchell Bulletin (exhibit P2, pp.25-26) and 7th June.
Finally, the plaintiff was asked these questions in relation to exhibit P5 (transcript pp.89-90):-
“Q......did you yourself come to read a letter that Mr Matthew had written into the Messenger and indeed the Guardian about the previous article and the reference to Seaview High School.
A.Yes I read an original version of the Guardian Messenger that day and I remember reading this - what can I say, an attempt at an apology, it wasn’t even that, but knowing that I actually expected something to be there so I was looking for something and I knew that the request had gone out from my solicitors, I was looking for an apology or at least a clarification and again I just couldn’t believe it when I read that response because apart from the replacement of Hamilton for Seaview, he is having another go at me and it was oil on the fire as far as I was concerned and I am pretty sure I got on the phone to my solicitor very quickly after that.
Q.Again, between the publication of the first article and the appearance of this letter, had Mr Matthew or any of his staff spoken to you asking you at all anything about why you weren’t serving on the Hamilton Secondary College Council and what that had to do with Partnership 21 changes.
A.No, definitely not.”
The plaintiff gave no evidence relevant to the quantum of damages under this heading concerning the media releases and the website.
During the course of the cross-examination of the plaintiff by Mr Harris QC, counsel for the defendant, there was a challenge to the genuineness of the plaintiff’s hurt (transcript pp.132-136) or, at the very least, the degree of hurt. The plaintiff was asked about a question by Mr Lewis (Hammond) in the House of Assembly on 28th November, 2001 concerning the cost of the purchase for the Woodend Primary School and the contract process: (see exhibit D16). The questions asked of the plaintiff in evidence were linked with documents concerning the valuations, which documents were not initially discovered by the plaintiff. The suggestion was that the political controversy concerning the purchase was on-going, that the plaintiff was keeping documents back to fuel a further attack on the Government and that the degree of hurt was not as great as that alleged.
Although it seems plain that there is an on-going political controversy involving Woodend, I do not find that the plaintiff’s hurt was diminished from that expressed in examination-in-chief. Further, although the plaintiff took the opportunity to avail himself of the presence of the media during this trial, I do not accept that these proceedings were undertaken or pursued for that purpose.
The plaintiff acknowledged in cross-examination that politicians are sometimes subject to harsh criticism and stinging words, but he said the defamations here “....are totally beyond the pale” (transcript pp.176-177).
In re-examination (transcript pp.194-196), the plaintiff adhered to his reaction to the article in The Messenger Press of 7th June, 2000 (exhibit P1).
Compensatory damages - quantum
I turn to the question of the quantum of the awards. I have had general regard to what Kirby J said on this topic in Chakravarti v Advertiser Newspapers Ltd. (1998) 193 CLR 591 at 603 (particularly that the original awards of the Full Court were “parsimonious”) and what the Full Court said in the same case (upon remittal) at pp.376-378. I have also had regard to the decision of the Full Court in Bass v Roberts & Case (2000) 78 SASR 302; Williams J in Chapman & Ors v Conservation Council of SA & Ors [2002] SASC 4; Judge Robertson in Redford v Nationwide News Pty Ltd & Abraham [2000] SADC 155 (on appeal [2001] SASC 198; and Judge Anderson in Xenophou v ARN Adelaide Pty Ltd & Cordeaux [2001] SADC 70.
It is common ground (see Amended Defence) that “At all material times Messenger Newspapers Pty Limited published and distributed two local newspapers in suburbs within the electorate of Mitchell, these being the Southern Times Messenger and the Guardian Messenger.” Further, “In June 2000 the Southern Times Messenger was distributed in the suburbs of Trott Park and Sheidow Park and the Guardian Messenger was distributed in the suburbs to the north of those suburbs.”
The circulation of each of those newspapers was the subject of agreement in exhibit P4. It was agreed that, in June and July, 2000, the circulation of the Southern Times Messenger was 61,282 and for the Guardian Messenger for the same period it was 59,040. I note that the plaintiff was elected as the Member for Mitchell on 11th October, 1997, winning by the narrow margin of 320 votes out of over 20,000 voters (transcript pp.57-58). I also note from the plaintiff’s evidence that he considered that his chances of re-election were damaged by these defamations. By virtue of the electoral re-distributions to which I have already made reference (portion of the defendant’s electorate being transferred to the plaintiff’s), the plaintiff, as at the time of giving evidence, calculated that he held the seat by about 160 odd votes (transcript p.58).
Under this head of damage I cannot ignore what is a matter of public record, namely, that the plaintiff was re-elected after he gave evidence but before judgment in this matter. However, electors have long memories and these defamations may have an impact on future voting intentions.
As I observed earlier, the plaintiff gave no evidence relevant to the quantum of damages under this heading concerning the media releases and the websites. So far as the media releases are concerned, that is not altogether surprising because they were to a comparatively small group who are not unused to receiving defamatory material. However, in any event, the important publications are those in the Southern Times Messenger on the 7th June, 2000, and the school correction letter in the Southern Times Messenger and the Guardian Messenger on the 28th June, 2000 (exhibit P5 - “School correction”).
Although the plaintiff gave no evidence relevant to quantum concerning some of the publications, I am prepared to infer from the general tenor of the evidence referred to above that there was some injury to his feelings, particularly on the Government’s website which had the defamatory material available for some time.
There are also claims for aggravated and exemplary damages. I give separate consideration to those matters below.
I award the following amounts for each of the defamatory publications, using the same paragraph numbers as at the beginning of this judgment:-
1.Media Release B published on or about
24th May, 2000 to a number of media outlets $3,000.00
2.Media Release B was republished as an article
in the Southern Times Messenger on the 7th
June, 2000$15,000.00
3.Media Release A published at the defendant’s
website$5,000.00
4.Publication of a letter to the Southern Times
on or about the 15th June (making the correction
as to the school name) $2,000.00
5.Republication of the letter referred to in
paragraph 4 above, in both the Southern Times
Messenger and the Guardian Messenger on
28th June, 2000 $20,000.00
6.Publication of Media Release A by the
defendant on the Government website $10,000.00
Aggravated damages - principles, findings and quantum
Aggravated damages are awarded where the conduct of the defendant, either at the time of the publication or subsequently, may increase or aggravate the harm occasioned to the plaintiff (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71). If there is an increase in the harm, that will be reflected in an increased measure of damages.
Of the defamations in this case, the republications in both the Southern Times Messenger and the Guardian Messenger on 28th June, 2000, under the heading “School correction” should attract an award of aggravated damages.
A little needs to be said about the history of the matter. Following the article in the Southern Times Messenger of 7th June, 2000, the plaintiff, by his then solicitors, wrote to the defendant drawing to his attention the two aspects that I have found to be defamatory, namely the “walk away” and “disparagement of the efforts” of the Woodend community. That prompted the defendant to write to the Editor, Southern Times Messenger, by letter dated 15th June, 2000. Although the name of the school was corrected, the earlier defamations were repeated. To use the colloquial expression, the defendant “rubbed it in”. In my view, the defendant, by means of the “School correction” letter, exacerbated the earlier defamation. As the plaintiff put it (pp.89-90 quoted above), “....he is having another go at me and it was oil on the fire as far as I was concerned....” I accept that evidence and find that not only was there increased damage to the plaintiff’s feelings, but also to his reputation and standing as a Member of Parliament.
I award aggravated damages in respect of that publication in the amount of $10,000.00, being additional to the amount awarded as compensatory damages for it.
In my view there is no other defamation that attracts an award of aggravated damages.
Exemplary damages - principles and findings
The principles applicable to this head of damage have recently been referred to in Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd [2001] 79 SASR 451 per Lander J (at paragraphs 83-85) and Gray J (at paragraphs 177-186). As Lander J said (at paragraphs 83-85):-
“Exemplary damages are available to a plaintiff in defamation proceedings: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118. They are available where it would be appropriate to punish the defendant for its contumelious disregard of the plaintiff’s rights or for its reprehensible conduct: Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71.
In libel cases exemplary or punitive damages may be awarded against publishers of newspapers.
Usually such an award would be imposed where the plaintiff had proved that the defendant was actuated by malice, ill will or was so reckless that the defendant’s conduct could be described as contumacious, and thereby deserving of censure by the imposition of ‘punitive’, ‘vindictive’ or exemplary damages.”
As he later put it (at paragraph 87), exemplary damages are awarded to punish and deter.
Earlier I have referred to the topic of malice and decided that the plaintiff had not proved that the defendant was actuated by malice. In my view, the defendant has not acted in a reprehensible and contumelious manner (see Gray J at paragraph 186).
No defamation in this case attracts an award of exemplary damages.
I award and enter judgment for the plaintiff in the amount of $65,000.00. I will hear the parties on the questions of interest and costs.

[2002] SADC 64

24 May 2002