John Fairfax v Punch

[1980] FCA 123

Re: JOHN FAIRFAX & SONS LIMITED and AUSTRALIAN ASSOCIATED PRESS PTY. LIMITED
And: LEON ASHTON PUNCH (1980) 47 FLR 458
No. F.C.39 of 1979
Defamation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

CANBERRA REGISTRY
GENERAL DIVISION
Blackburn(1), Northrop(2) and Brennan(3) JJ.

CATCHWORDS

Defamation - words indicating loss of confidence of members of political party in leader of party - whether defamatory of leader.

Defamation - Words indicating loss of confidence of members of political party in leader - Whether words capable of defaming leader - Imputations conveyed by words - Circumstances when words published - Whether words defamatory.

HEADNOTE

The respondent, the then Deputy Premier of New South Wales and the Parliamentary leader of the Country Party in that State recovered damages for defamation in an action against the appellants in the Supreme Court of the Australian Capital Territory. The respondent relied upon the publication of four articles, the terms of which appear from the judgment of Blackburn and Northrop JJ., which stated in summary that a substantial number of members of the State Country Party themselves resolved to resign from that party but to maintain their support for the party in the federal sphere and to call for the resignation from his position of the leader of their party, he also being Deputy Premier of the State. The defence of qualified privilege was unavailable to the appellants.

On appeal,

Held: (1) The words complained of were capable in law of being defamatory as, per Blackburn and Northrop JJ., to say of a politician who is a leader of his political party that he has lost the confidence of a significant number of members of his party, which was the imputation the words bore, attributed incompetence to that leader.

Per Brennan J. - The words complained of disparaged the respondent's reputation as a leader and tended to affect his ability to retain that office. Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd. (1934), 50 TLR 581; Pratten v. Labour Daily Mail Ltd., (1926) VLR 115; Potts v. Moran (1976), 16 SASR 284, applied.

(2) The trial judge had correctly concluded that the words bore imputations that the respondent lacked the confidence of a substantial number of members of the party and thus were attacks on the respondent's competence as a politician.

(3) The words were defamatory.

HEARING

Canberra, 1980, April 9, 10; August 29. #DATE 29:8:1980

APPEAL.

The appellants appealed from a judgment of McGregor J. of the Supreme Court of the Australian Capital Territory.

A. B. Shand Q.C. and I. A. Curlewis, for the appellants.

T. E. F. Hughes Q.C. and J. P. Hamilton, for the respondent.

Cur. adv. vult.

Solicitors for the appellants: Davies, Bailey & Cater.

Solicitors for the respondent: Macphillamy, Cummins and Gibson.

T. J. GINNANE

ORDER

1. the appeal be dismissed with costs.

Appeal dismissed with costs.

JUDGE1

The main question for determination in this appeal is whether certain published material was capable in law of being defamatory of the respondent. The trial judge's finding that the material was in fact defamatory was also challenged; but this argument was subsidiary.

The respondent sued the appellants in the Supreme Court of the Australian Capital Territory for damages for defamation. At that hearing the appellants relied upon a number of other defences which were rejected. The Court awarded damages against the appellants. On appeal, the appellants did not challenge the reasons of the learned trial Judge insofar as they related to those unsuccessful defences, nor did they challenge the quantum of damages awarded to the respondent. As a result, the issues raised on the appeal were limited to the two issues already mentioned. To prevent the possibility of misunderstanding, it must be made clear that the question of qualified privilege did not, and on the facts could not, arise.

In April 1976 the respondent sued the appellants in the Supreme Court of the Australian Capital Territory for damages for defamation. The respondent was a member of the Legislative Assembly of the Parliament of New South Wales, and Leader of the Australian Country Party (N.S.W.) in that Parliament. He was at the material time the Deputy Premier of New South Wales. The first named appellant (Fairfax) published The Sydney Morning Herald, The Canberra Times, Newcastle Morning Herald, and Northern Star newspapers. The second named appellant (A.A.P.) operates a news and information service to persons including the publishers of newspapers.

In order to understand the material alleged to be defamatory, it is necessary to make a brief reference to the statutory system for the distribution and sale of milk for human consumption which has been in force for some time in the State of New South Wales. Only those dairy farmers whose farms are in certain parts of the State get the benefit of having their milk sold in the major cities, namely Sydney, Newcastle and Wollongong. Dairy farmers whose farms are in the north coast area, the south coast area, and the Riverina area, do not enjoy this lucrative benefit. This has been a long-standing source of dissatisfaction to dairy farmers in these areas. Many of these farmers are members and supporters of the Country Party, and have for a long time maintained a substantial campaign to persuade the Country Party and indeed the Government of New South Wales to alter the system so as to allow milk produced by them to be sold in the major cities. This campaign has been resisted by those dairy farmers whose farms are in the areas from which, under the existing system, milk is produced and sold in the major cities. The system so described is referred to as the "milk quota system" and the dispute as the "milk quota dispute".

The first of the articles alleged to be defamatory was in the following terms and was published by the first named appellant to the second named appellant on 29 April 1976:
"About 250 dairymen and members of the New South Wales Country Party resigned from the State Party at a meeting in Bega on the South Coast tonight over the milk quota dispute.

The group who resigned also called for the resignation of the New South Wales Minister for Agriculture Mr. Cowan and the Deputy Premier and Leader of the Country Party, Mr. Punch over the dispute.

While they decided to resign from the State Party they voted to place their party membership fees in a Trust Account for the Federal Country Party and maintain affiliation with this Body.

The South Coast dairymen, along with other farmers from the North Coast and Riverina areas, have been campaigning for a redistribution of the existing milk quota system that allows about 2700 dairy farmers to supply the lucrative milk markets in Sydney, Wollongong, Newcastle and major country towns. About 1200 dairymen have been excluded from the quota system.

The campaign for a redistribution of the quotas has been led by a North Coast dairyman, Mr. Alex Armstrong, Chairman of the Dairy Action Group and who is also Deputy Chairman of the Norco Co-Operative Dairy at Lismore.

The Chairman of the pro-quota group, the Dairymen of The County of Cumberland, Mr. D. Crosby claimed today that Norco stood to increase its turnover gross profit by $1.3 million a year if the quotas were redistributed.

There are 212 members of the Cumberland group."

The second of the articles was in the following terms and was published in the "Canberra Times" on 30 April 1976:

"N.S.W. Election
Dairymen quit State C.P. over milk quotas.

BEGA, Thursday - About 250 dairymen resigned from the New South Wales Country Party tonight over the milk quota dispute.

The group also called for the resignation of the New South Wales Minister for Agriculture, Mr. Cowan and the Deputy Premier and Leader of the Country Party, Mr Punch.

They voted to place their party membership fees in a Trust Account for the Federal Country Party and maintain affiliation with this Body.

The resignations occurred at a special meeting in Bega of dairy farmers to discuss the dispute.

The move seriously embarrasses the Country Party on the eve of Saturday's State election.

The South Coast dairymen along with other farmers from the North Coast and Riverina areas have been campaigning for a redistribution of the existing milk quota system that allows about 2700 dairy farmers to supply the lucrative fresh milk markets in Sydney, Wollongong, Newcastle and major country towns."

The third of the articles was in the following terms and was published in the "Newcastle Morning Herald" on 30 April 1976:

"Dairymen quit C.P. in protest -

SYDNEY, Thursday - About 250 dairymen and members of the New South Wales Country Party resigned from the State Party at a meeting in Bega tonight over the milk quota dispute.

The dairymen called for the resignation of the N.S.W. Minister for Agriculture, Mr Cowan, and the Deputy Premier and Leader of the Country Party, Mr Punch.

They voted to place their party membership fees in a trust account for the Federal National Country Party and maintain affiliation with that Body.

The South Coast dairymen along with farmers from the North Coast and Riverina areas, have been campaigning for a redistribution of the milk quota system.

The system allows about 2700 dairy farmers to supply the lucrative milk markets in Sydney, Wollongong, Newcastle and major country towns. About 1200 dairymen have been excluded from the quota system.

The campaign for a redistribution of the quotas has been led by Mr A. Armstrong, a North Coast dairyman, who is Chairman of the Dairy Farmers Action Group and Deputy Chairman of the Norco Co-Operative Dairy at Lismore.

Mr D. Crosby, Chairman of the Dairymen of The County of Cumberland, a pro-quota group, said today that Norco would increase its turnover gross profit by $1.3 million a year if the quotas were redistributed."

The fourth of the articles was in the following terms and was published in the "Northern Star" on 30 April 1976:

"250 S. Coast dairymen quit State C.P.

SYDNEY - About 250 dairymen and members of the N.S.W. Country Party resigned from the State Party at a meeting in Bega on the South Coast last night over the milk quota dispute.

The group who resigned also called for the resignation of the N.S.W. Minister for Agriculture, Mr. Cowan and the Deputy Premier and Leader of the Country Party, Mr. Punch over the dispute.

While they decided to resign from the State Party, they voted to place their party membership fees in a trust account for the Federal Country Party and maintain affiliation with this Body.

The South Coast dairymen along with the other farmers from the North Coast and Riverina areas have been campaigning for a redistribution of the existing milk quota system that allows about 2700 dairy farmers to supply the lucrative milk markets in Sydney, Wollongong, Newcastle and major country towns. About 1200 dairymen have been excluded from the quota system.

The campaign for a redistribution of the quotas has been led by a North Coast dairyman, Mr Alex Armstrong, Chairman of the Dairy Action Group, who is also Deputy Chairman of the Norco Co-Operative Dairy Company at Lismore.

The Chairman of the Pro-quota group, of the Dairymen of The County of Cumberland Mr. D. Crosby claimed yesterday that Norco stood to increase its turnover gross profit by $1.3 million a year if the quotas were redistributed. There are 212 members of the Cumberland group."

There was to be an election for the State Parliament on 1 May 1976. The publication of the articles occurred therefore at the very climax of the election campaign in which the respondent, as Leader of a major party in the Parliament, and as Deputy Premier of the State, was taking an active part.

The learned trial judge held that the four articles were capable of being defamatory of the respondent. In respect of the first of the four, he expressed his reasons for his decision as follows. He later said that his reasons for the same decision in respect of each of the other three articles were the same.
"Thus instructed, I proceed to the article itself (and later to others). As I read it, it refers to a group of persons, significant in number. They, at a meeting, nor merely resigned from the New South Wales Country Party which, presumably, hitherto they had supported, but at the same time they called for the resignation of its leader (plaintiff). That this move was made on the eve of an election, underlines their degree of disapproval of him; they had decided at that stage, unequivocally, that they would have nothing to do further with the New South Wales Country Party of which he was the leader and that that Party would be served if he resigned. Although the censure was in terms 'over the (milk) dispute', the inference is that he had so failed to carry out the task of leader, that he had lost their confidence and their respect to him. The pointed nature of their action is further emphasized when it is noticed by reference to the third paragraph of the article, that they had decided to adhere to the Federal Country Party, maintaining affiliation with it, but so to act in relation to membership fees as to ensure that no funds of theirs would support thereafter the Party of which the plaintiff was the leader. The article leaves no room for a consideration of whether the proposed resignations were a matter of mere discussion or that the call for the plaintiff's resignation was not a decision firmly taken; nor does it leave any basis for discounting the number 250 dairymen to whom reference is made. There is conveyed not only a condemnation by that number of persons, but the sincerity of their views, in that they are also members of the party of which he is leader. To the ordinary reader it would appear they have taken this step even at the risk, possibly, he might think, of prejudicing the chances of the party's survival at least in that area in the forthcoming election. The plaintiff is presented thus as a leader who has in their eyes as members of his Party, exhibited such an incapacity because perhaps of his part in adhering to or maintaining an unfairly regulated system that he is no longer fit to be leader. It is not merely that he is unfit to be their leader in the milk quota dispute, though it may be that it was in this area that he demonstrated his incapacity.

In my view, as a matter of law, the article could convey a meaning which is defamatory of the plaintiff."

For the appellant it was said in the first place that the articles all clearly confine the allegation of dissatisfaction with the respondent to the area of the milk quota dispute; it is not suggested that the persons present at the meeting had any other topic upon which their dissatisfaction was expressed. It was argued that the sense of the articles was that the only reason why the persons present at the meeting ("the members") did not want the respondent as leader of the party was that he had taken the side in the milk quota dispute opposite to that which they themselves took, and that they felt so strongly about this that they wanted some other person to be leader. It was contended that, so read, the articles contained nothing defamatory of the respondent; that the articles amounted to no more than a statement that the members' disapproval of the respondent's attitude on the milk quota dispute was so strong that they demanded his resignation. The articles, counsel said, merely said the members expressed their disapproval of a particular policy very strongly - so strongly that they called for the respondent's resignation as a means of demonstrating the strength of their opposition.

The argument was put in the alternative: either that to say of the leader of a political party that some members of the party want him to resign is not in itself capable in law of being defamatory at all, or that to say that of him is not defamatory when the reason for wanting him to resign is clearly demonstrated to be matter which does not go to his credit.

What, in this case, the articles say is that a substantial number of members of a State political party, on the eve of an election which was being contested by that party, themselves resolved to resign from that party but maintain their support for the party in the Federal sphere, and to call for the resignation from his position of the leader of their party, he also being Deputy Premier of the State. In our opinion it is capable in law of being defamatory to say of a politician who is a leader of his political party that he has lost the confidence of a significant number of members of his party, because that necessarily attributes incompetence to him. It is an essential part of the competence of the leader of a political party to hold the confidence of the members of his party. The imputation that the respondent had lost the confidence of some members of his party arises inescapably from the fact that those members have called for his resignation as leader and that on the eve of an election.

It was put to counsel for the appellants, during the argument that the articles might not be defamatory if they implied that the members' vote was essentially insincere, i.e. though not wanting the respondent's resignation, they called for it as a tactical device to force him to take some step in connection with the milk quota dispute knowing full well that rather than resign he would take that step. Counsel expressly disclaimed any reliance on this suggestion, which he said could not be supported as an interpretation of the articles. He maintained his fundamental argument that the call for the respondent's resignation was no more than an expression of the depth of the members' disapproval of the milk quota system. But there is no rational explanation of a demand, made on the eve of an election, for the resignation of the leader of a party who is also Deputy Premier, which does not imply a want of confidence in him; at the very least, the implication must be that he is expendable. Implied in counsel's argument must be the irrational notion that a gesture of protest can be understood only as such and not as anything more, whatever form it takes and whatever the protesters in fact say.

In the alternative, as we have noted, counsel contended that the articles mean that the members wanted to end or change the milk quota system and that the respondent supported and wanted to retain it; that being so, the call for the respondent's resignation was explained as a difference of opinion on policy which reflected no discredit on the respondent. Counsel for the respondent contended that this was not the natural sense of the articles, in all of which (despite some differences of wording) the milk quota dispute is mentioned merely as the topic in connection with which the issue between the members and the respondent arose. We are disposed to agree with this latter contention, but in our opinion the question is unimportant. The inescapable fact is that the members are said to have called for the respondent's resignation on the eve of an election. If the articles had said that and nothing more, they would have implied a want of confidence in him and thus have reflected on his competence as a politician and leader of the party. To contend that there is some explanation of that statement which would not reflect upon the respondent's character or competence is to attribute to the "ordinary sensible reader" the imagination of a novelist, the verbal precision of a conveyancer, and the capacity a judge for suspended decision. If (as counsel for the respondent contended and we think) the articles mentioned the milk quota display only as the topic in connection with which the issue arose, the result would be exactly the same. If (as counsel for the appellants contended) the articles imply, as the reason for the members' call for the respondent's resignation, the respondent's support for the milk quota system, as against the opposite view taken by the members, the implication is none the less that the respondent lacked the confidence of those members. Members' opposition to a policy supported by a party leader may be a ground for resigning from the party, but not for demanding the resignation of the leader, unless either the members believe that some other person would be a better leader to get the policy changed - which implies a lack of confidence in the present leader - or the policy in question is not the policy of the party, i.e. the leader is publicly opposing the party's policy. The learned trial judge rejected this latter possibility as a possible imputation arising from the articles.

Counsel for the appellants was at some pains to attack the learned trial judge's treatment of the imputations which were alleged to arise from the articles in question. There were five such imputations, as follows:
"(i) That the plaintiff was a person unfit and incompetent to hold office as the Deputy Premier for the State of New South Wales and as a Leader of the New South Wales Country Party;

(ii) That the plaintiff as Leader of the New South Wales Country Party lacked the confidence and support of the majority of members of the New South Wales Country Party;

(iii) That the plaintiff in the course of his campaign for re-election to the Legislative Assembly of the State of New South Wales at the Elections in May 1976, supported policies inconsistent with those of the New South Wales Country Party and contrary to the best interests of its members.

(iv) That the plaintiff so lacked the confidence of substantial numbers of members of the New South Wales Country Party that they were prepared on the eve of a State election in which that party was fielding candidates for Parliamentary office to embarrass the said Party (a) by calling upon the plaintiff to resign as Leader of the said Party and (b) by themselves resigning from the said Party.

(v) That the plaintiff had lost the confidence of substantial numbers of dairymen and members of the New South Wales Country Party who lived and carried on business in New South Wales in relation to the issue of the milk quota system."
The learned trial judge adverted to these imputations in the course of considering whether the articles were defamatory in fact. It is not clear why he did so in this context when he had already decided, without referring to these imputations, that the articles were capable in law of being defamatory. This does not, however, affect the correctness of his judgment. What his Honour said was this:
"First, I should say that I do not agree that the article is capable of conveying imputations numbered (i), (ii), (iii) which are referred to in Particulars supplied by the plaintiff to the defendants' solicitors and to which considerable reference had been made in argument. In my view, however, the well-instructed jurymen would find that by a continued adherence to a policy, the Leader of the New South Wales Country Party and the Party itself, whose activities would have been largely influenced by its leadership (including that of the plaintiff) had both progressively lost the confidence and membership of a noticeable number of its former members; that this had occurred because of his association with a system which excluded some dairymen from a 'lucrative' milk market in cities named and major country towns. In the result he no longer retained such capacity or their confidence in him as to retain that position. The milk quota issue might be expressed to be the area wherein he displayed ineptitude. But finally, it is his quality for leadership which the dissidents reject. So the difference between the two imputations (iv) and (v) is that one spells out where he failed, the other goes directly to the degree of incapacity. It is unlikely, perhaps, that one's expression of an imputation he takes from an article could be precisely matched or captured by a pleader who necessarily sought to express by his own interpretation the impression the reader might receive. Though not adhering exactly to the terms of imputation (iv) or (v) as being what I would choose, I find that in substance they have been made out."
Counsel's attack was twofold. In the first place he said that his Honour's acceptance of the imputations numbered (iv) and (v) was inconsistent with his rejection of those numbered (i), (ii) and (iii), particularly (i). In our opinion, however, the difference is patent. Imputation (i) is a judgment upon the plaintiff's fitness for office, made as it were by the objective observer without regard to party. Imputation (ii) speaks of the majority of members of the party. Imputation (iii) attributes to the plaintiff support for a policy inconsistent with that of the party. In our opinion it is easy to see that none of these imputations is supported by the articles. Imputations (iv) and (v) are statements that the plaintiff lacked the confidence of a substantial number of members of the party and are thus attacks on the plaintiff's competence as a politician and party leader. We agree with his Honour's decision on these imputations.

In the second place, counsel criticized in particular his Honour's interpretation of imputations (iv) and (v), in particular his use of the phrases "his quality for leadership" and "one spell out where he failed, the other goes directly to the degree of incapacity". It may be that some readers would have difficulty in agreeing with his Honour's choice of words in expressing the sense of the articles. That is beside the point: his Honour's decision namely that the articles bear imputations (iv) and (v), is what matters, and not the particular words he chose for explaining that decision.

In the result, we agree with his Honour that the words complained of are capable in law of being defamatory of the plaintiff, and see no reason to differ from his finding that they were so in fact.

The appeal should be dismissed with costs.

JUDGE2

Damages for defamation were awarded to the plaintiff respondent in respect of the publication of articles the texts of which are set out in the judgment of Blackburn and Northrop JJ.

The first article was disseminated two days before a general election for the Parliament of New South Wales, and the other articles were published on the eve of the election. The respondent was, at the time of publication, the Deputy Premier of New South Wales and the Parliamentary Leader of the Country Party. He had led his party during the election campaign.

Counsel for the appellants submitted that the articles went no further than saying that certain members of the Country Party had expressed their desire that the respondent should be no longer Leader of that Party. It was submitted that the articles did not disparage the respondent merely by saying that 250 dairymen who were members of the Country Party no longer had confidence in him. It was submitted that such a statement is not defamatory, for it does not lower the respondent in the estimation of right thinking people: it does not impute to him any discreditable conduct or quality.

The submission is not well founded. A person may be defamed by an imputation of a disability affecting the performance of the functions of his office, although the imputation does not expose him to hatred, contempt or ridicule. No doubt that proposition appears at odds with what Parke B. said in Parmiter v. Coupland (1840) 6 M & W 105 at p.108; 151 E.R.340 at p.342, in a passage which Gatley (Libel and Slander, 7th Edn., p.4) describes as a "classic definition":
"A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel."
But it has long been held that that passage is too narrowly stated. Scrutton L.J. in Youssoupoff v. Metro-Goldwyn Mayer (1934) 50 TLR 581 at p.584, said that a defamatory statement is a "false statement about a man to his discredit". And in Pratten v. The Labour Daily Mail Ltd. (1926) V.L.R.115, a new trial was granted on the application of a plaintiff Minister of the Crown where the trial judge had declined to direct the jury that they might find for him if the article attributed to him want of capacity as a Minister (see the report p.118). Cussen J. (as he then was) said (at p.123):
"In Clerk and Lindsell on Torts (7th ed.), pp.549, 551,552, it is stated that a man may be libelled in respect of his personal character or of his office, etc., and that 'if a libel is directed against a man with special reference to his calling or office, the words used need not be provocative of hatred, ridicule, or contempt; it is sufficient if their tendency is to injure.' See also Spencer Bower on Actionable Defamation (2nd ed.), p.3.

In Capital and Counties Bank Ltd. v. Henty ((1882) 7 A.C.741, at p.771), Lord Blackburn says: - 'A libel for which an action will lie is defined to be a written statement published without lawful justification or excuse, calculated to convey to those to whom it is published an imputation on the plaintiffs, injurious to them in their trade, or holding them up to hatred, contempt, or ridicule'; and at p.762 Lord Penzance says, after quoting Parke, B. in Parmiter v. Coupland ((1840) 6 M & W 105) - 'The learned Judge is here only speaking of libels which affect reputation and character; but I am not aware that those which affect a man's credit in his trade stand upon any different footing.' The fact that Lord Penzance dissented in the case mentioned does not, we conceive, affect the authority of this particular statement. The two learned Lords speak of 'trade' only, but this has, we think, been always taken as illustrative of trade, business, calling, profession, or office. It is clear from many cases that the word 'injurious' in Lord Blackburn's statement means 'having a tendency to harm.'"
Bray C.J., with whom Wells and Sangster JJ. agreed, reached the same conclusion in Potts v. Moran (1976) 16 SASR 284 at p.302:
"It is clear that it is defamatory to impute to a man inefficiency or incapacity in his occupation unless that occupation is unlawful. To do so defames him, not only in the eyes of those of the same occupation or those connected with him in his occupation, but in the eyes of the community generally, or the reasonable members of it. In Alexander v. Jenkins ((1892) 1 Q.B.797, at p.800) Lord Herschell said (in an action for slander but the difference between libel and slander is not material for the present purpose):

'It is quite clear that as regards a man's business, or profession, or office, if it be an office of profit, the mere imputation of want of ability to discharge the duties of that office is sufficient to support an action. It is not necessary that there should be imputation of immoral or disgraceful conduct.'"

And in Queensland, where s.366 of the Criminal Code distinguishes between an imputation by which a person "is likely to be injured in his profession and trade" and an imputation "by which other persons are likely to be induced to shun or avoid or ridicule or despise him", Henchman J. in Queensland Newspapers Pty. Ltd. and Hardy v. Baker 1937 St.R.Qd.153 at p.179, showed how an aspirant for public office may be injured by an imputation which affects his support:
"And when the facts, as here, show that the person defamed depends for his livelihood on the continued support, in his candidature for public office, of friends, co-workers, co-partisans, and constituents, to publish concerning him matter likely to cause that support to be withdrawn is surely to do that which is capable of injuring him in his 'profession or trade' within the meaning borne by those words in s.366 of the Code. In my view, those words, having regard to the object of the clauses of the Code dealing with defamation, which is a criminal offence as well as a civil wrong, and to the history of the law of libel and slander, should receive the widest possible meaning, a meaning embracing all occupations by which a man earns his daily bread, provided only that they be not illegal."

The Code is not to be equated with the common law (West Australian Newspapers v. Bridge and Tozer 53 A.L.J.R.465; Murphy v. Australian Consolidated Press (1968) 3 N.S.W.R.200 at pp.205,206), and injury to a plaintiff's profession or trade without disparagement of reputation does not suffice to make an imputation defamatory. But it disparages the Parliamentary leader of a party to say of him that he has lost the confidence of a significant number of his party followers. The retention of confidence is a badge of successful leadership; the loss of confidence of a significant number of party followers carries a contagion of electoral failure, and puts in question the leader's ability to unite his party and lead it to electoral success. An imputation that a Parliamentary party leader has lost the confidence or support of a significant number of party followers thus disparages his reputation as a leader and tends to affect his ability to retain that office.

Of course, it is one thing to hold that such an imputation is defamatory; it is another thing to find that the publication of such an imputation is actionable. The legitimate public interest in a matter of that kind, and the public good which is served by the publication of information relating to shifts in political allegiance, would ordinarily ensure that the occasion of publication is one of qualified privilege (cf. Calwell v. Ipec Australia Ltd. (1975) 135 C.L.R. 321 per Jacobs J. at pp.335,336).

But in the present case, no defence of qualified privilege was available. The report of the meeting was false, the reporter's copy having been written before the meeting took place; and when it did take place, neither the attendance at nor the proceedings of the meeting lived up to the reporter's forecast. At the time of publication, there was no honest belief in the truth of the matter published.

Although the imputation of lost confidence was itself defamatory, the respondent pleaded five specific imputations and they are set out in my brothers' judgment. The learned trial judge (McGregor J.) found that none of the articles was capable of bearing the meanings assigned by the first three pleaded imputations. His Honour found:
"In my view, however, the well-instructed juryman would find that by a continued adherence to a policy, the Leader of the New South Wales Country Party and the Party itself, whose activities would have been largely influenced by its leadership (including that of the plaintiff) had both progressively lost the confidence and membership of a noticeable number of its former members; that this had occurred because of his association with a system which excluded some dairymen from a "lucrative" milk market in cities named and major country towns. In the result he no longer retained such capacity or their confidence in him as to retain that position. The milk quota issue might be expressed to be the area wherein he displayed ineptitude. But finally, it is his quality for leadership which the dissidents reject. So the difference between the two imputations (iv) and (v) is that one spells out where he failed, the other goes directly to the degree of incapacity. It is unlikely, perhaps, that one's expression of an imputation he takes from an article could be precisely matched or captured by a pleader who necessarily sought to express by his own interpretation the impression the reader might receive. Though not adhering exactly to the terms of imputation (iv) or (v) as being what I would choose, I find that in substance they have been made out."

His Honour's finding fixed the meaning of the articles in respect of which the award of damages was made (see Slim v. Daily Telegraph Ltd. (1968) 2 Q.B.157 at pp.176, 177,185). In this Court, the appellant submitted that his Honour was in error in finding that the articles (or any of them) conveyed in substance the imputations alleged in paras. (iv) and (v), and in finding that there was an imputation disparaging the respondent's quality for leadership. In particular, it was argued that his Honour had found, and had found erroneously, that the articles made an imputation of personal ineptitude, incapacity or unfitness. In the context from which the cited passage from his Honour's judgment is taken, it does appear that his Honour found that an imputation of personal ineptitude in, and incapacity and unfitness for office had been made - an imputation that went beyond a mere loss of confidence in the respondent, and attributed to the respondent a defect in his qualities for leadership.

The meaning to be attributed to each of the articles depends upon its terms, understood in the light of the circumstances generally known when the publications were made (Ryan v. Ross (1916) 22 C.L.R.1 at p.29; Jones v. Skelton (1963) S.R.(N.S.W.) 644 at p.650). The article published to AAP on 29 April and the article published in the 'Northern Star' on 30 April each state that the respondent's resignation from the office of Deputy Premier and from his position as Leader of the Country Party was called for "over the dispute", that is, the milk quota dispute. The articles published in 'The Canberra Times' and in the 'Newcastle Morning Herald' on 30 April 1976 each stated that the resignation was called for but neither added the phrase "over the dispute". Clearly enough, all four articles linked the call for the respondent's resignation with the milk quota dispute, and it was submitted that the articles went no further than stating that the respondent's resignation was called for merely as a means of pressing the interests and viewpoint of some of the disputants. But the election in which the respondent was leading his party was to take place a day or two after the articles were published, that is, on 1 May 1976. That was a fact of common knowledge at the time when the articles were published, and it places the reported demand for the respondent's resignation in a significant context.

A demand for the resignation of the respondent as Leader of the Country Party, made immediately before election day by a meeting of 250 members of his party, suggests that those members found his leadership gravely defective. If there were no dissatisfaction with his leadership qualities, what could account for the meeting of 250 members of the party taking a course fraught with electoral danger for the party as a whole? If those members had protested against the party's milk quota policy but had not taken exception to the leadership qualities of the respondent, it might have been expected that they would resign from the State branch of the party. But when a call for the leader's resignation is reported on the eve of an election, a reasonable reader not avid for scandal would readily infer that the respondent's personal qualities for leadership were defective. Whether the defect be called ineptitude, or incapacity, or unfitness, the defamatory sting is to be found in the inference that the meeting of 250 members of the respondent's party rejected his "quality of leadership".

The learned trial judge's finding as to the imputation conveyed by the articles is supported by the terms of the articles understood in the light of the known circumstances. That finding was, in my view, fairly within the ambit of the pleading of imputations (iv) and (v).

The appeal must be dismissed with costs.