John Fairfax & Sons Ltd v Hook

[1983] FCA 82

Re: JOHN FAIRFAX & SONS LIMITED
And: GRAEME HOWARD HOOK and HELEN JANE HOOK (1983) 72 FLR 190
No. ACT G25 of 1982
Defamation - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Davies(2) and Morling(1) JJ.

CATCHWORDS

Defamation - publication in newspaper - whether words capable of conveying defamatory meaning - report of decision of Liquor Licensing Board - Qualified Privilege and Statutory Defence.

Defamation (Amendment) Act 1909 (N.S.W.) s. 5(1)(g)

Defamation - Newspaper article - Whether words complained of defamatory - Reliance on natural and ordinary meaning of the words - Whether evidence admissible as to the sense in which the words were understood - Principles - Qualified privilege - Whether defence of qualified privilege available - Whether article a fair and accurate report - Whether article protected by statute - Defamation (Amendment) Act 1909 (N.S.W.) in its application to the Australian Capital Territory, s. 5(1)(g) - Defamation Act 1912 (N.S.W.), s. 29(1)(g) - Liquor Ordinance 1975 (A.C.T.), ss 18, 44, 45, 46(1)(d), 80(1), 81, 83.

Evidence - Defamation - Newspaper article - Reliance on natural and ordinary meaning of the words - Whether evidence admissible as to the sense in which the words were understood.

HEADNOTE

The appellant published in the newspaper The Canberra Times the following words:

"Tavern Penalised. Tavern Adelaide House was suspended yesterday from trading for one week for failing to comply with the requirements of the Liquor Ordinance 1975 (A.C.T.) concerning under-age drinking. The suspension was announced yesterday by the Liquor Licensing Board of the A.C.T.

The Board also advised that a direction had been issued to the licensee of the Rose and Crown to ensure that the under-age provisions were complied with."

The respondent owners of the "Rose and Crown" succeeded in an action for defamation against the appellant in the Supreme Court of the Australian Capital Territory. The appellants appealed against that decision to the Full Court of the Federal Court of Australia chiefly on the grounds that the words used were incapable of conveying any defamatory meaning, that the article was published on an occasion of qualified privilege and that the appellant was entitled to judgment pursuant to s. 5(1)(g) of the Defamation (Amendment) Act 1909 (N.S.W.) in its application to the Australian Capital Territory (the Defamation Act) which provides:

"s. 5(1)(g) - any notice or report issued by any Government office . . . for the information of the public, published with the consent of such office . . ." shall be protected if published in good faith.

Held, by the whole court that the appeal should be dismissed because:

(1) The trial judge was correct in finding that the words complained of were defamatory of the respondents.

Lewis v. Daily Telegraph Ltd (1964) AC 234; Jones v. Skelton (1963) 1 WLR 1362; Mirror Newspaper Ltd v. Harrison (1982) 56 ALJR 808, applied.

(2) The article complained of was not a fair and accurate report either of the resolution of the Board or of the direction given by it to the respondents; therefore the defence of qualified privilege must fail.

Morosi v. Mirror Newspaper Ltd (1977) 2 NSWLR 749; Howe v. Lees (1910) 11 CLR 361, applied.

Eyre v. New Zealand Press Association Ltd (1968) NZLR 736; Reis v. Perry (1895) 64 LJQB 566; considered.

Perera v. Peiris (1949) AC 1; Truth (N.Z.) Ltd v. Holloway (1960) NZLR 69; London Artists Ltd v. Littler (1968) 1 WLR 607, referred to.

(3) The defence based upon s. 5(1)(g) of the Defamation Act is not available to the appellant because of the substantial differences between the contents of the press statement and the newspaper item complained of.

Campbell v. Associated Newspapers Ltd (1948) 48 SR (NSW) 301, followed.

HEARING

Canberra, 1982, September 14, 15; 1983, May 5. #DATE 5:5:1983

APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory.

T. E. F. Hughes Q.C. and I. A. Curlewis, for the appellant.

B. M. J. Toomey Q.C. and K. T. Tobin, for the respondents.

Cur. adv. vult.

Solicitors for the appellant: Stephen Jaques Stone James.

Solicitors for the respondents: Higgins.

E.F.F.

ORDER

(1) Appeal dismissed.

(2) Order that the appellant pay the respondents' costs.

Orders accordingly.

JUDGE1

This is an appeal from a decision of the Supreme Court of the Australian Capital Territory in an action for defamation arising out of the publication by the appellant in "The Canberra Times" newspaper of the following words:

"Tavern Penalised

Tavern Adelaide House was suspended yesterday from trading for one week for failing to comply with the requirements of the Liquor Ordinance concerning under-age drinking.

The suspension was announced yesterday by the Liquor Licensing Board of the A.C.T.

The Board also advised that a direction had been issued to the licensee of the Rose and Crown to ensure that the under-age provisions were complied with."

The action was heard on 8 June 1982. On 23 June 1982 judgment was entered for the plaintiffs (the present respondents) in the sum of $7,500. On the hearing of the appeal the appellant applied to amend the Notice of Appeal so as to add a further defence, not raised on the pleadings, framed in terms of section 5(1)(g) of the Defamation (Amendment) Act 1909 (N.S.W.) ("the Defamation Act") in its application to the Australian Capital Territory. The application was opposed by the respondents. After hearing argument we gave leave to the appellant to amend the Notice of Appeal so as to add the above ground.

At the hearing of the action the respondents relied upon the natural ordinary meaning of the words used and pleaded that they were defamatory of them and each of them in a number of respects. It was alleged that the words in their natural and ordinary meaning meant that the respondents had committed offences against the liquor laws of the Australian Capital Territory and were not fit and proper persons to be licensees of licensed premises. The learned trial judge held that the words were capable of having a defamatory meaning and that they did in fact mean that a breach or breaches of the licensing laws had occurred at the Rose and Crown. The appellant contended that the words used were not capable of conveying a defamatory meaning and that they did not in fact convey the meaning found by the trial judge.

The appellant argued five grounds of appeal. First, that the words used were not capable of conveying any defamatory meaning; secondly, that if they were capable of conveying a defamatory meaning it was not the defamatory meaning found by the trial judge; thirdly, that if the words used were capable of conveying the defamatory meaning found by the trial judge, he was wrong in finding that they did convey that meaning; fourthly, that the article was published on an occasion of qualified privilege; and finally that the appellant was entitled to judgment pursuant to the defence provided by s. 5(1)(g) of the Defamation Act in its application to the Australian Capital Territory.

In support of the first ground of appeal senior counsel for the appellant urged that the article in the newspaper would be understood by a reasonable reader as falling into two parts, the first part consisting of the headline and the first two paragraphs, and the second part consisting of the third paragraph. He stressed that the headline used the word "tavern" in the singular and this conveyed, so it was argued, that only one tavern had been penalised. The argument proceeded that the first two paragraphs made clear that it was the Adelaide House tavern, and not the Rose and Crown, that had been penalised. It was then contended that the words used of the Rose and Crown in the second part of the article did not convey that the licensees of it had been penalised and that the words were not otherwise capable of having a defamatory meaning. In support of this argument counsel called in aid a subsidiary argument that in deciding whether the words were capable of bearing a defamatory meaning the learned trial judge erred in law in having regard to the evidence of witnesses who deposed as to their understanding of the meaning of the words used in the article.

It is convenient to deal first with the subsidiary argument. The learned trial judge's reasons do give rise to some doubt whether he relied on the evidence of witnesses in this respect. The following passage appears in his Honour's reasons:

"It is trite that the matter complained of must be looked at through the eyes of what the Court conceives to be the average, not very attentive, reader. In my opinion the combination of the words referring to the Rose and Crown with the words which go before it, and the heading to the whole article, would tend naturally in the eyes of the average reader to induce the belief that a breach or breaches of the licensing laws had occurred at the Rose and Crown. There is ample evidence that in fact a number of readers did take the words to mean that. I hold, therefore, that the words are capable of bearing the meaning alleged and I find that they did so in fact."

The evidence to which his Honour refers is that of the respondents and of Messrs Matthews and Terry. Mrs Hook said in evidence that following publication of the article regular customers of the tavern had said to her words to the effect that she had been to court and charged with serving under-age drinkers. Mr Hook gave evidence that a passenger in his taxi had said to him, in effect, that he (Mr Hook) had been charged in court and that other people had said that he was a criminal and that he should hang his head in shame. Mr Matthews gave evidence that he had read the article and had observed to Mr Hook that "the Rose and Crown had been charged with under-age drinkers". Mr Terry gave similar evidence.

We think it is plain that the trial judge would have been in error if he had relied on evidence of this kind as a relevant guide to what the words complained of were capable of meaning and as to what they did in fact mean. Where a plaintiff relies on the natural and ordinary meaning of the words complained of, no evidence is admissible of their meaning or the sense in which they were understood or of any facts giving rise to any inferences to be drawn from the words used, for it is for the jury to determine the sense in which the words would reasonably have been understood by an ordinary man in the light of generally known facts and meanings of words, Gatley on Libel and Slander, 8th ed., para. 1311; see also Slim v Daily Telegraph Ltd (1968) 2 Q.B. 157 per Diplock L.J. (as he then was) at 172-173 where his Lordship said:

". . . save in exceptional case where a 'legal' innuendo is relied on, it is not even permitted to ask a witness to whom the words were published: 'What did you understand them to mean?' What he did actualy understand them to mean does not matter."

The evidence was admissible as evidence of the extent of the hurt done to the feelings of the plaintiffs. But in our opinion it would have been erroneous for his Honour to have relied on the evidence in arriving at his decision that the words used in the article were capable of bearing the meaning alleged by the respondents. However it does not clearly appear to us that he took this course. His reason for holding the words were capable of the meaning alleged was that "the combination of the words referring to the Rose and Crown with the words which go before it, and the heading to the whole article, would tend naturally in the eyes of the average reader to induce the belief that a breach or breaches of the licensing laws had occurred at the Rose and Crown". His Honour's use of the word "therefore" after his reference to the evidence of the readers of the article is perhaps unfortunate, but we do not think that it vitiates the reasoning otherwise expressed in his decision. Even if we were of the contrary view, it would still be a matter for this court to determine whether the words complained of are capable of the meaning placed upon them by the respondent. If they are, the appellant's first point must fail whether or not the learned trial judge erred in having regard to the evidence of the readers of the article.

We turn now to consider the question whether the words complained of are capable of conveying the defamatory meaning found by the learned trial judge. A matter is defamatory if it tends "to lower the plaintiff in the estimation of right-thinking members of society generally" (Gatley, op. cit., para. 41) or "if it is likely to cause ordinary decent folk in the community, taken in general, to think less of him" (per Jordan C.J. in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171, at 172). The question is not what the defendant meant or how the words were understood by the plaintiff. The meaning to be given to the words used is the meaning they would convey to the ordinary reasonable man. They are to be construed in their natural and ordinary meaning, i.e. in the meaning in which reasonable men of ordinary intelligence, with the ordinary man's general knowledge and experience of wordly affairs, would be likely to understand them (Gatley op. cit. para 93). In Lewis v Daily Telegraph Ltd (1946) AC 234, at 258 Lord Reid said:

"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of wordly affairs."

Lord Devlin said in the same case ((1964) A.C., at 280):

"There must be added to the implications which a court is prepared to make as a matter of construction all such insinuations and innuendoes as could reasonably be read into them by the ordinary man."

In Jones v Skelton (1963) 3 All E.R. 952 at 958 Lord Morris speaking for the Privy Council said:

"In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v Henty ((1882), 7 App. Cas. 741) Lord Selborne said ((1882), 7 App. Cas. at p. 745):

'The test according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men to whom the publication was made, would be likely to understand it in a libellous sense.'

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words (see Lewis v Daily Telegraph, Ltd. ((1963) 2 All E.R. 151)). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction, would draw from the words."

In Mirror Newspapers Limited v Harrison, (1982) 56 A.L.J.R. 808, Mason J., with whom the other members of the Court agreed, said at p. 12 of the judgment:

"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 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."

Were it not for the context in which they appear, we do not think that the words complained of would be capable of bearing the meaning that the respondents had committed offences against the liquor laws of the Australian Capital Territory or that they were not fit and proper persons to be licensees of licensed premises. But the words must be understood in their context. The reader of the last paragraph of the article would necessarily read the words of that paragraph in the light of the words which precede it. Thus he would read the words "the under-age provisions" in the last paragraph as referring to "the requirements of the Liquor Ordinance concerning under-age drinking" referred to in the first paragraph. He would read the article as conveying that a direction had been issued to the licensee of the Rose and Crown to ensure that the under-age drinking provisions of the Liquor Ordinance were complied with. He would understand the article as conveying that the licensees of Tavern Adelaide House and of the Rose and Crown had failed to comply with the requirements of the Liquor Ordinance concerning under-age drinking, that Tavern Adelaide House's license had been suspended for one week and that a caution had been given to the licensee of the Rose and Crown. The ordinary reasonable reader would understand that such a caution would not have been given unless the provisions of the Liquor Ordinance had been infringed. We are therefore of the opinion that the learned trial judge was correct in finding, as he did, that "the combination of the words referring to the Rose and Crown with the words which go before it, and the heading to the whole article, would tend naturally in the eyes of the average reader to induce the belief that a breach or breaches of the licensing laws had occurred at the Rose and Crown." It was upon the basis of this finding that his Honour held that the words were defamatory of the respondents and we respectfully agree with his decision in that regard.

We now turn to consider the defence of qualified privilege. To understand this defence it is necessary to trace the events which preceded the publication of the article. A meeting of the Liquor Licensing Board of the Australian Capital Territory was held on 28 August 1980. Amongst the items of business dealt with at the meeting was an item relating to the Tavern Adelaide House. Paragraph 2(i) of the minutes of the meeting reads, in part, as follows:

"After a brief discussion the Board directed the Registrar to suspend Licence No. ON/169 for seven days pursuant to Section 46(1)(d) for failing to comply with Chapter 11 reference 11.03(3) of the Manual, and to issue a direction to the licensee to comply with the Manual ref. 11.03(3) after the licence suspension is lifted.

The Board also directed the Registrar to issue a Press Statement on the suspension and the link with underage drinking in the A.C.T."

The reference in the minutes to the Manual is to the Licensing Standards Manual referred to in s. 18 of the Liquor Ordinance. That section requires the Board to cause the Licensing Standards Manual to be prepared and to set out in the Manual the general standards that the Board recommends should be met in relation to the construction of premises in respect of which licences are sought. The Manual provided, inter alia:

"11.03 Where a licence is sought and granted the Board expects the licensee to accept a social responsibility to:

. . .

(3) exclude minors from bar-rooms and public lounges unless in the care of a responsible adult and, importantly, to prevent the service or supply of liquor to, or its consumption by, persons under the age of eighteen years whilst on licensed premises;"

Paragraph 5(i) of the minutes of the Board's meeting of 28 August 1980 reads as follows:

"(i) Underage drinking - Rose and Crown, Holder.

The Board directed the Registrar to issue a direction under Section 46(2) of the Ordinance, to the licensee directing him to comply with the Manual ref. 11.03(3). In addition the Board agreed that these premises should be mentioned in the press statement to be issued under item 2(i) above."

On 29 August 1980 the Registrar of the Board prepared a press release and sent it to the Department of the Australian Capital Territory. Although the evidence is not completely clear on the point, it appears that on 29 August 1980 the Public Relations Section of the Department of the Capital Territory issued a press release on letterhead supplied to it by the Board. The press release was in the following terms:

"LIQUOR LICENSING BOARD OF THE A.C.T.

The Liquor Licensing Board of the A.C.T. advised to-day that the liquor license issued to premises trading as Tavern Adelaide House was suspended yesterday, for a period of one week.

The suspension of the licence resulted from the licensee not complying fully with the requirements of the Liquor Ordinance concerning underage persons.

In addition, the Board advised that a direction was issued to the licensee of premises trading as the Rose and Crown to ensure the underage provisions of the Ordinance were complied with.

29 August 1980"

This press release came to the attention of a newspaper reporter employed by the appellant and on 30 August 1980 the article already referred to appeared in "The Canberra Times". It will be noted that the article does not accord with the precise terms of the press release.

In the meantime the Liquor Licensing Board issued and served upon the present respondents a direction pursuant to s. 46(1)(d) of the Liquor Ordinance that they had "failed reasonably to comply with any of the general standards recommended in the Manual". The direction was in the following terms:

"LIQUOR ORDINANCE 1975

DIRECTION PURSUANT TO SUB-SECTION 46(1)

TO: Graeme Howard Hook and
Helen Jane Hook
33 Williamson Street
HOLDER ACT 2611

WHEREAS you, Graeme Howard Hook and Helen Jane Hook the holders of Licence No. ON/179 in respect of those premises situated at Block 2 Section 63 Division of Weston in the Australian Capital Territory trading as Rose and Crown have pursuant to Section 46, sub-section 1(d) 'failed reasonably to comply with any of the general standards recommended in the Manual which he has agreed will apply to the premises designated in the license' in particular Chapter 11 reference 11.03(3) of the Manual which states 'exclude minors from bar-rooms and public lounges unless in the care of a responsible adult and, importantly, to prevent the service or supply of liquor to, or its consumption by, persons under the age of eighteen years whilst on licensed premises.'

TAKE NOTICE that the Liquor Licensing Board of the A.C.T. pursuant to Sub-section 46(1) of the Ordinance hereby directs you commencing immediately and ending when you cease to hold licence No. ON/179 to:

(1) take such steps as are required to ensure that persons under the age of eighteen years are not admitted to bar-rooms and public lounges unless in the care of a responsible adult; and

(2) take such steps as are required to ensure that persons under the age of eighteen years are not sold any liquor on the premises.

AND FURTHER TAKE NOTICE that if you fail to comply with these directions licence No. ON/179 may be cancelled pursuant to sub-section 51(1)(d) of the Liquor Ordinance 1975.

Dated the Twenty Eighth day of August 1980.

(N. Anderson)
N.G. Anderson
Registrar of Liquor Licences".

The respondents appealed under s. 76 of the Liquor Ordinance to the Supreme Court of the Australian Capital Territory against the direction given to them by the Board. The appeal was heard by Connor J. who set aside the direction on the ground that the appellants had been denied natural justice in that the Board had not given them an opportunity to be heard before giving the direction, and upon the further ground that it was beyond the power of the Board to include in the Manual any provisions relating to the exclusion of minors from bar-rooms and public lounges.

The defence of common law qualified privilege was rejected by the trial judge. After stating that the list of cases which give rise to qualified privilege is not closed and that the categories of cases are not sharply defined he held that the instant case did not come within any of the categories. He then said:

"The giving of a direction by the Board was not a judicial or even a quasi-judicial proceeding. I would have said that the direction was not a public document at all, but merely a private communication from the Board to the plaintiffs, were it not for the fact that the Board chose to make it public by informing the press that it had been made. But I think that is beside the point. In my opinion there is a strong reason why this publication by the defendant was not on a privileged occasion, namely that the giving of the direction was unlawful. The Board had authority to give directions to a licensee only under s. 46 of the Ordinance, and that section does not expressly or by implication refer to any provisions relating to the age of persons who consume liquor on licensed premises. I entirely and respectfully agree with the decision of Connor J. in Hook v Anderson (unreported, 18 December 1980) on the validity of the direction which was given. It is impossible to hold that the publication by the defendant of a report that the Board had given a direction, when the Board had no power to give the direction which it gave, was a publication on an occasion of qualified privilege."

It was submitted on behalf of the appellant that it was entitled to assume the direction referred to in the notice issued by the Information and Public Relations Section of the Department of the Capital Territory was within the jurisdiction of the Liquor Licensing Board and was lawful; that the public interest would be served by publishing to readers of its newspaper information as to the performance by the Liquor Licensing Board of its public functions; that the Canberra community had an interest in the administration of the Liquor Ordinance; and that the public interest in obedience to the law by licensees and young persons would be promoted by publication of the fact that the Liquor Licensing Board had issued a direction to a licensee to ensure compliance with the law. The appellant had therefore, so it was submitted, a duty, of imperfect obligation, to publish the article.

The circumstances in which a defendant may rely upon a defence of qualified privilege were considered by the New South Wales Court of Appeal in Morosi v Mirror Newspapers Ltd. (1977) 2 NSWLR 749. In an exhaustive examination of the case law the court referred to the classical statement of principle by Parke B. in Toogood v. Spyring ((1834) 1 Cr. M. & R. 181, at p. 193; 149 E.R. 1044, at pp. 1049, 1050):

"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."

In Adam v Ward (1917) A.C. 309 Lord Atkinson stated the principle thus:

". . . a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

((1917) A.C. 309 at p. 334)

The authorities show that in some cases accurate accounts of official reports made pursuant to statutory authority will be privileged. In such cases it is not sufficient that the report be made by a body with the requisite authority to make it. It must be in the public interest that the particular report be published. See Perera v Peiris (1949) A.C. 1 at p. 21. Nor is it sufficient that the defamatory statement is made by a newspaper in the course of dealing with a matter of general public interest. No special privilege is enjoyed by newspapers in this area of the law. See "Truth" N.Z. Limited v Holloway (1960) N.Z.L.R. 69 at p. 83.

In London Artists Limited v Littler (1968) 1 W.L.R. 607; (1968) 1 All E.R. 1075, Cantley J. after reviewing the authorities said:

"The cases to which I have referred show a uniformity of approach. In my view the privilege for publication in the press of information of general public interest is confined to cases where the defendant has a legal, social or moral duty to communicate it to the general public, or does so in reasonable self-defence to a public charge, or in the special circumstances exemplified by Adam v Ward ((1917) A.C. 309).

"A duty will thus arise where it is in the interests of the public that the publication should be made and will not arise simply because the information appears to be of legitimate public interest."

There can be no doubt that the manner in which licensed premises in the Australian Capital Territory are conducted and the administration of the Liquor Ordinance by the Board are matters of considerable importance to those members of the public living in the Territory. The Board is empowered by s. 46(1) of the Ordinance to give directions to licensees on many matters of which the public is entitled to be informed. The section provides, in part, as follows:

"46. (1) Where -

(a) a licensee has failed to perform any of the obligations imposed upon him by Prt VII;

(b) a licensee has permitted his licensed premises to be so used as to cause undue disturbance or inconvenience to persons lawfully upon the premises;

(c) a licensee has permitted his licensed premises to be so used as to cause undue disturbance or inconvenience to persons residing in the neighbourhood of the premises;

(d) a licensee has failed reasonably to comply with any of the general standards recommended in the Manual which he has agreed will apply to the premises designated in the licence; or

(e) a licensee has, in his licensed premises, created a hazard by fire to life or property or permitted such a hazard to develop,

the Board may, by order, give to the licensee such directions as it thinks necessary.

(2) Where the Board gives directions to a licensee under sub-section (1), the Board may, if it is necessary to do so for the protection of members of the public, by order, suspend the licence of the licensee.

(3) Where the Board gives directions to a licensee under sub-section (1), the Board may, if it is necessary to do so for the protection of members of the public, by order, suspend the licence of the licensee."

In the present case the direction given by the Board was set aside in subsequent litigation. But in our view that circumstance cannot affect the determination of the question whether the appellant had a duty of the relevant kind to publish the information contained in the Board's minute and the press release issued at its request. The appellant's duty to publish, if it were such, arose from the fact that the Board's direction was apparently within its powers under s. 46(1) and dealt with a matter of which the public was entitled to be informed.

That the defence of qualified privilege may be available to a defendant notwithstanding the inaccuracy of the statement made by him appears from Howe & McColough v Lees (1910) 11 C.L.R. 361. In that case the defendants, a firm of stock salesmen, were members of an association of stock salesmen. By the rules of the association it was provided that stock sold by members at sale-yards were to be paid for within four days after the sale and that if a purchaser did not pay within that time, the member effecting the sale should report that fact to the secretary of the association, who should report the names of all purchasers in default to the other members. The plaintiff, a stock dealer, bought cattle from the defendants and paid cash for them, but the defendants reported him to the secretary as being in default, and the secretary informed the other members accordingly. It was a failure in bookkeeping that led to the defendant's error in informing the association that the plaintiff had failed to pay for the cattle sold to him. It was held in an action by the plaintiff against the defendants for defamation that the occasion was privileged. At p. 378 O'Connor J. said:

"The learned Judge in the Court below seems to have held that such a privilege, if it existed, could only protect statements that were true in fact. But such a limitation would render the privilege useless. If an agent is to be protected only in the making of statements which he can guarantee to be true, the practical advantage of the association's system would be at an end. Obviously its effectiveness can be secured only by making the occasion of the communication a privileged occasion, which will protect from action or prosecution all statements relating to a business default made by agents to the secretary, provided that they are so made in the honest belief that they are true and relevant, and that they are being made in fulfilment of the obligation which the terms of the association impose on each agent."

Thus the mere fact that a statement is untrue in fact will not deprive the maker of it of a defence of qualified privilege if it is otherwise open. We think an analogy can be drawn between publication of a statement which is erroneous because it is incorrect in fact and publication of a statutory tribunal's decision which is erroneous because it is made without statutory warrant. No doubt proof that the defendant knew that the statement was false or was made without statutory warrant would establish malice and the defence would then be unavailable. But there is no suggestion in the present case that the appellant knew that the Board's direction was not valid in law. It was argued that the appellant had been actuated by a malice in the present case because it had failed to check adequately the accuracy of the press release, but we do not think that argument has any substance. We therefore think that the answer to the question whether qualified privilege is an available defence to the appellant in the present case does not depend upon the validity of the Board's direction but must be determined by reference to the Board's statutory functions, its powers to give directions to licensees, the nature of the direction given to the respondents and the extent to which the general public had a right to be kept informed of the Board's decisions.

But at the threshold of the question whether the defence of qualified privilege was available in this case is the preliminary question whether the report in "The Canberra Times" was a fair and accurate report of the proceedings of the Board or of the direction given to the respondents. Reports of the proceedings of legislative bodies and public and private tribunals are privileged if they are fair and accurate but not otherwise. In such cases fairness and accuracy are pre-requisites to privilege (Morosi v. Mirror Newspapers Limited (supra) at p. 782).

We have already drawn attention to the fact that the newspaper article did not accord with the precise terms of the press release. Further, it did not refer with complete accuracy to the relevant minute of the Board's meeting of 28 August 1980 or to the direction subsequently given to the appellants. The paragraph of the article referring to the Rose and Crown referred to a direction to "ensure that the under-age provisions were complied with". Standing on its own, the reference to "under-age provisions" would be ambiguous in that it might refer to the relevant provisions of the Liquor Ordinance or of the Manual. But the ambiguity is resolved if reference is made to the first paragraph of the article. Reading the article as a whole we think that the direction in paragraph 3 to ensure compliance with "the under-age provisions" must be taken as a reference to the provisions of the Liquor Ordinance concerning under-age drinking. In this regard we have already expressed our concurrence with the view expressed by the trial Judge that a reader of the article would believe that a breach or breaches of the licensing laws had occurred at the Rose and Crown.

However, the Board's minute and the direction issued pursuant to it refer to compliance with clause 11.03(3) of the Manual. It is true that both the minute and the direction also refer to the Ordinance but we think that although there are references in them to the Ordinance, what is directed is compliance with the Manual rather than compliance with the Ordinance. The Board's minute makes reference to the Registrar being directed to issue a direction to the licensee of the Rose and Crown "directing him to comply with the Manual ref. 11.03(3)". And the reference in paragraph 1 of the Registrar's direction to "public lounges" is plainly a reference to the public lounges referred to in para. 11.03(3) of the Manual. The relevant provisions of the Ordinance do not refer to public lounges as such. Moreover the preamble to the actual direction refers in terms to the allegation that the respondents had failed to comply with the general standards recommended in the Manual. A reader of the newspaper article would therefore understand that the direction given to the respondents was a direction to comply with under-age drinking provisions of a wider class than the directions actually given to them. This being so, we do not think it can be said that the article was a fair and accurate report of the proceedings of the Board or of the direction given to the respondents. In these circumstances, the defence of qualified privilege fails in limine.

It is true that the requirements of the Ordinance are very similar to the standards laid down in the Manual. But they do not exactly correspond. For example, s. 80(1) of the Ordinance prohibits the sale of liquor to a person under the age of 18 years, whether or not that person is on the licensed premises at the time of the sale, but Clause 11.03(3) of the Manual would seem not to extend to the sale or supply of liquor to a minor if he is not on the licensed premises at the time of sale.

It is unfortunate from the appellant's point of view that it relied upon the accuracy of the statements made in the press release. It might be said to have acted reasonably in accepting, without checking, the complete accuracy of the press statement. However, it is clear that no privilege attaches to the publication of an inaccurate extract from a public register even though such extract was officially supplied and thought by the publisher to be a correct copy. Thus in Reis v. Perry (1895) 64 L.J.Q.B. 566, a trader brought an action for libel for the publication by the defendants in a trade gazette of what purported to be an extract of a deed of inspectorship registered by him under the provisions of the Deeds of Arrangement Act 1887, which extract, though officially supplied to the defendants was in fact inaccurate. The defendants pleaded that the publication was privileged. The plea was rejected by the Divisional Court. Day J. said:

"It is perfectly clear that if a person publishes an extract from a public document he is responsible if he had not correctly extracted it, or if it has not been correctly copied. It is no answer that he has been misled by a public official. The official may be to blame, if any one is, but my impression is that the person who publishes the statement for his own profit must take the risk of its being incorrect. A person may see and take an extract, and if led to rely upon it through a public official or any authorised person, whether paid for such extract or not, he takes the responsibility for it, though the above fact may go to diminish the damages; but it is no answer to an action for defamatory publication. He takes the risk. If he cannot shew the accuracy of the extract he is responsible . . .".

See also Eyre v New Zealand Press Association Limited (1968) N.Z.L.R. 736 where it was held that the publication by a press association of an inaccurate report of a speech made by a politician at a public election meeting was not protected by qualified privilege, notwithstanding that the association had been furnished with the report by one of its members and had no reason to doubt its accuracy.

In the present case the press release purported, in effect, to extract the relevant portions of the Board's minute and direction but, as we have shown, failed to do this accurately. The appellant took the risk of the press release being accurate. It was not, and the defence of qualified privilege is not available to the appellant.

As to the defence based upon s. 5(1)(g) of the Defamation Act we are of the view that because of the differences between the text of the article which appeared in the newspaper and the press statement the defence is not available to the appellant. In Campbell v Associated Newspapers Limited (1948) S.R. (N.S.W.) 301, Jordan C.J. and Street J. (as he then was) refer to what a defendant must prove in order to succeed on a plea based upon s. 29(1)(g) of the Defamation Act 1912 (NSW) which was the successor to s. 5(1)(g). Their Honours make clear that there must be a close correlation between what is published and the notice or report issued by the Government office or department. As Street J. said:

"What is protected is the text of the notice or report itself, and not some paraphrase composed for publication in what is regarded as a more attractive form."

The newspaper article did not purport to be, nor was it, the mere publication of the text of a notice or report issued by the Board. It is true that no change was made to that part of the press statement which referred to the Rose and Crown. But changes were made to the remainder of the press statement. In our opinion it is necessary for the whole of the press statement to be considered in determining whether it is a notice or report for the purposes of s. 5(1)(g). We are of the opinion that the changes made by the appellant to the text of the press statement disentitle it to succeed on its defence under s. 5(1)(g) of the Defamation Act.

The appeal should be dismissed with costs.

JUDGE2

Section 18 of the Liquor Ordinance 1975 empowers the Liquor Licensing Board of the Australian Capital Territory to prepare and issue a Licensing Standards Manual. The Licensing Standards Manual issued by the Board provided, inter alia,

"11.03 Where a licence is sought and granted the Board expects the licensee to accept a social responsibility to :

. . . . .

(3) exclude minors from bar-rooms and public lounges unless in the care of a responsible adult and, importantly, to prevent the service or supply of liquor to, or its consumption by, persons under the age of eighteen years whilst on licensed premises;".

This standard was no doubt drawn having in mind the following provisions of the Liquor Ordinance :

"80.(1) The holder of a licence or a permit shall not sell or supply liquor to a person under the age of 18 years.

. . . . .

1. A person under the age of 18 years shall not -

(a) purchase or consume liquor on licensed premises; or

(b) purchase liquor from the holder of a permit.

. . . . .

1. A person who has not attained the age of 18 years shall not enter a bar-room on licensed premises except in the care of a responsible adult."

Nevertheless, paragraph 11.03(3) was not an effective provision of the Licensing Standards Manual for it did not deal with any of the matters which, pursuant to s. 18 of the Liquor Ordinance, could be the subject of a standard.

Section 46(1)(d) of the Liquor Ordinance provides :

"46.(1) Where -

. . . . .

(d) a licensee has failed reasonably to comply with any of the general standards recommended in the Manual which he has agreed will apply to the premises designated in the licence;

. . . . .

the Board may, by order, give to the licensee such directions as it thinks necessary."

On 28 August 1980, the Liquor Licensing Board resolved, in relation to another Tavern with which this appeal is not directly concerned, that :

"(i) Underage drinking - Tavern Adelaide House. (Previously item 5(ix) Meeting No. 134).

. . . . .

After a brief discussion the Board directed the Registrar to suspend Licence No. ON/169 for seven days pursuant to Section 46(1)(d) for failing to comply with Chapter 11 reference 11.03(3) of the Manual, and to issue a direction to the licensee to comply with the Manual ref. 11.03(3) after the licence suspension is lifted.

The Board also directed the Registrar to issue a Press Statement on the suspension and the link with underage drinking in the A.C.T.".

On the same day, the Liquor Licensing Board, without calling upon the respondents, who were the holders of the licence at the Rose and Crown Tavern, to show cause or otherwise giving them notice of the proceedings, resolved :

"(i) Underage drinking - Rose and Crown, Holder. The Board directed the Registrar to issue a direction under Section 46(2) (sic) of the Ordinance, to the licensee directing him to comply with the Manual ref. 11.03(3). In addition the Board agreed that these premises should be mentioned in the press statement to be issued under item 2(i) above."

The direction subsequently served upon the respondents pursuant to that resolution read as follows :

"LIQUOR ORDINANCE 1975

DIRECTION PURSUANT TO SUB-SECTION 46(1)

TO: Graeme Howard Hook and
Helen Jane Hook
33 Williamson Street
HOLDER ACT 2611

WHEREAS you, Graeme Howard Hook and Helen Jane Hook the holders of Licence No. ON/179 in respect of those premises situated at Block 2 Section 63 Division of Weston in the Australian Capital Territory trading as Rose and Crown have pursuant to Section 46, sub-section 1(d) 'failed reasonably to comply with any of the general standards recommended in the Manual which he has agreed will apply to the premises designated in the license' in particular Chapter 11 reference 11.03(3) of the Manual which states 'exclude minors from bar-rooms and public lounges unless in the care of a responsible adult and, importantly, to prevent the service or supply of liquor to, or its consumption by, persons under the age of eighteen years whilst on licensed premises.'

TAKE NOTICE that the Liquor Licensing Board of the A.C.T. pursuant to Sub-section 46(1) of the Ordinance hereby directs you commencing immediately and ending when you cease to hold licence No. ON/179 to :

(1) take such steps as are required to ensure that persons under the age of eighteen years are not admitted to bar-rooms and public lounges unless in the care of a responsible adult; and

(2) take such steps as are required to ensure that persons under the age of eighteen years are not sold any liquor on the premises.

AND TAKE FURTHER NOTICE that if you fail to comply with these directions licence No. ON/179 may be cancelled pursuant to sub-section 51(1)(d) of the Liquor Ordinance 1975.

Dated the Twenty Eighth day of August 1980.

(N. Anderson)
N.G. Anderson
Registrar of Liquor Licences".

It may be noted that both the resolution of the Board and the direction given were subsequently held by Connor J in the Supreme Court of the Australian Capital Territory in proceeding No. 1749 of 1980 to be invalid, firstly, because paragraph 11.03(3) of the Licensing Standards Manual was not authorised by s. 18 of the Liquor Ordinance and, secondly, because the respondents were not given an opportunity to appear and put their case before the direction was given. Subsequent to the meeting of the Liquor Licensing Board on 20 August 1980, the following press statement was prepared by the Registrar of Liquor Licences and was cleared by the Chairman of the Board:

"PRESS STATEMENT

The Liquor Licensing Board of the A.C.T. advised to-day that the liquor licence issued in respect of premises trading as Tavern Adelaide House was suspended yesterday for a period of a week. The suspension of the licence resulted from the licensee not complying fully with the requirements of the Liquor Ordinance concerning underage persons.

In addition the Board advised that a direction was issued to the licensee of premises trading as the Rose and Crown to ensure the underage provisions of the Ordinance are complied with."

It may be noted that, apart from the fact that the decision of the Liquor Licensing Board was invalid, this release was unfair to the respondents since the direction given to the respondents was not a direction to ensure that the under age provisions of the Ordinance were complied with but a direction to ensure that a standard contained in the Licensing Standards Manual was complied with. It is true that the relevant standard was based upon ss. 80, 81 and 83 of the Liquor Ordinance. Nevertheless, the direction was a direction to comply with paragraph 11.03(3) of the Licensing Standards Manual, not a direction to comply with a provision of the Ordinance. In my view, the press release significantly mis-stated the effect of the proceedings of the Board and of the directions given.

Mr T.E.F. Hughes, QC, senior counsel for the appellant, submitted that the Board was inferentially authorised by ss. 44 and 45 of the Liquor Ordinance to give directions to the respondents in relation to a matter such as under age drinking. He submitted that the direction given was in substance such a direction rather than a direction under s. 46(1)(d) with respect to a failure to comply ". . . with any of the general standards recommended in the Manual . . .". However, I do not draw from ss. 44 and 45 the inference which Mr Hughes sought to draw from them. In my opinion, the Board's power to give directions to the respondents with respect to the matters which were considered at its meeting on 28 August 1980, was the power to be found in s. 46(1) of the Liquor Ordinance and the Board properly proceeded upon the footing that it was giving a direction with respect to a matter specified in paragraph (d) of s. 46(1).

The press release subsequently reached the hands of a reporter for "The Canberra Times" and the following item appeared in "The Canberra Times" of 30 August 1980:

"Tavern Penalised

Tavern Adelaide House was suspended yesterday from trading for one week for failing to comply with the requirements of the Liquor Ordinance concerning under-age drinking.

The suspension was announced yesterday by the Liquor Licensing Board of the A.C.T.

The Board also advised that a direction had been issued to the licensee of the Rose and Crown to ensure that the under-age provisions were complied with."

This item gave a more serious aspect to the matter for, in the first paragraph, the reference to ". . . not complying fully with the requirements of the Liquor Ordinance concerning underage persons" was replaced by ". . . failing to comply with the requirements of the Liquor Ordinance concerning under-age drinking" and, in the third paragraph, the change in tense tended to direct the reader's mind to events of the past, not to the future.

The learned trial Judge held that the item was, in so far as it referred to the respondents, defamatory in fact. His Honour said,

"In my opinion the combination of the words referring to the Rose and Crown with the words which go before it, and the heading to the whole article, would tend naturally in the eyes of the average reader to induce the belief that a breach or breaches of the licensing laws had occurred at the Rose and Crown."

In my opinion, the words complained of were capable of conveying the meaning which his Honour attributed to them and would in fact have conveyed that meaning to a reasonable reader in the context in which they appeared. The words were associated with information as to the suspension of a tavern licence, appeared under the heading "Tavern Penalised" and appeared on the page dealing with reports of court proceedings. I think that a reader would have understood that the respondents, the licensees of the Rose and Crown, had, after a hearing, been found to have breached the Liquor Ordinance and that a direction had been given to them by way of penalty, similar to a warning or reprimand.

Members of the public would not be aware of the detailed provisions of the Liquor Ordinance, but, in the context in which the paragraphs appeared in "The Canberra Times", I think that members of the public reasonably would have assumed that there had been a hearing, that the respondents had had a chance of showing cause why the direction should not issue and that the direction had been given by way of penalty.

I agree with the learned trial Judge that the words complained of were defamatory of the respondents and I agree with the meaning attributed to the words by his Honour. The correlation between the words "suspended" and "failing to comply" on the one hand and "direction" and "complied" on the other was close and the tense used was the past tense. The impression was given that the respondents had been dealt with for a breach of the Ordinance.

The appellant relied at the trial upon the defence of qualified privilege and submitted that the article in "The Canberra Times" was a fair and accurate report of the proceedings of the Liquor Control Board. I do not propose to enter into an examination of the question whether the proceedings of the Board were proceedings the report of which could give rise to a claim of privilege. This issue is complicated by the fact that the particular proceedings of the Board, which were the subject of the newspaper article, were misguided. It is sufficient for the purposes of this appeal to state my view that the newspaper article was not a fair and accurate report either of the resolution of the Board or of the direction given. The resolution of the Board directed the Registrar to issue a direction under s. 46(2) of the Liquor Ordinance, presumably an error for s. 46(1), and the direction given purported to be a direction pursuant to sub-section 46(1) of the Ordinance. That direction was based not upon a failure to comply with the Liquor Ordinance but upon a failure ". . . reasonably to comply with any of the general standards recommended in the Manual . . .". The direction given was a direction to comply with a standard recommended in the Licensing Standards Manual. No mention of this was made in the newspaper article. Indeed, the words complained of referred to ". . . a direction . . . to ensure that the under-age provisions were complied with" and the reference to the "under-age provisions" took a reader back to the first paragraph which referred to ". . . the requirements of the Liquor Ordinance concerning under-age drinking". Accordingly, the newspaper article gave the impression that the respondents had been penalised for breaching the provisions of the Liquor Ordinance, whereas the direction given was simply to comply with a standard set out in the Licensing Standards Manual. The distinction is one of substance. Moreover, the article gave the impression that the respondents had been found to be guilty of a breach or breaches of the Liquor Ordinance after a hearing of which they had notice. The newspaper report was therefore not a fair and accurate report of the proceedings of the Liquor Licensing Board. Neither was the press release prepared by the Registrar and cleared by the Chairman of the Board, but that fact does not assist the appellant on this issue. Next, the appellant relies upon the defence arising under s. 5(1)(g) of the Defamation (Amendment) Act 1909 of New South Wales, which protects the printing or publishing in good faith of

"(g) any notice or report issued by any Government office or department, officer of State or officer of police, for the information of the public, published with the consent of such office, department, or officer;".

The newspaper article did not, however, print or publish the direction given to the respondents. For the reasons I have already mentioned, the newspaper article was not a fair and accurate report of that document. Nor, in my opinion, did the newspaper article print or publish the press release. I would not describe the press release as a notice but no doubt it may be described as a report, if that word be used in s. 5(1)(g) in a wide sense. But if it were a report in the meaning of the section, the newspaper item did not print or publish that report.

In preparing the item for publication, the newspaper reporter drew upon the information contained in the press release and upon information which had been given to him orally. Although the press release was used as a basis for the newspaper item, the appellant did not print or publish the press release. The press release was used simply as a source of information. Whereas the press statement commenced with the words, "The Liquor Licensing Board of the A.C.T. advised to-day . . .", the newspaper item read not as a report of the advice conveyed by the Liquor Licensing Board but as a report of the proceedings of the Board. There were such substantial differences between the contents of the press statement and the contents of the newspaper article that it cannot be said that, by its newspaper item, the appellant printed or published an official report, being the press statement which was issued to the appellant's reporter.

For these reasons, I would dismiss the appeal with costs.