Kym Mayes (Respondent) v Michael Hudson (Appellant) No. 4184 Judgment No. SCGRG 92/1877 Number of Pages 5 Defamation

[1993] SASC 4184

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), MOHR(1) AND BOLLEN(3) JJ

CWDS
Defamation - Action for libel - appeal against judgment of Supreme Court Judge allowing an appeal from a magistrate - respondent member of parliament, wrote letter to local residents in answer to letter from appellant local councillor - appellant claimed that respondent's letter was libellous - respondent's letter written on an occasion of qualified privilege - malice not proven - letter found not to be libellous.

HRNG ADELAIDE, 9 August 1993 #DATE 17:9:1993
Counsel for appellant:     Mr A R Harris
Solicitors for appellant:    Baker O'Loughlin
Counsel for respondent:     Mr T M McRae
Solicitors for respondent: Reilly Basheer Downs
   and Humphries

ORDER
Appeal dismissed.

JUDGE1 MOHR J The appellant sued the respondent in the Magistrates Court alleging that he had been the subject of a libel publication by the respondent. In that Court he succeeded and was awarded damages. 2. The respondent appealed to a single Judge of this Court and the judgment in favour of the appellant was set aside and judgment dismissing the appellant's claim entered for the respondent. 3. The appellant now appeals to this Court against the finding of the Judge in the Court below. 4. The learned Special Magistrate who heard the original action found that the occasion of the publication complained of by the appellant was one of qualified privilege but that malice had been found to be proved thus depriving the appellant of the defence of qualified privilege. 5. The learned Judge in the Court below disagreed on the question of malice and found that none had been proved and consequently allowed the appeal and made the order referred to above. 6. I might add that originally the present respondent had counterclaimed alleging libel against the appellant. That claim had been dismissed in the Magistrates Court and on the appeal in the Court below. 7. Before turning to consider the alleged libel it is necessary to set out certain matters of background. The respondent is and at all material times was the State Member of Parliament for the electoral district of Unley. He was a member of the Australian Labor Party and had been elected as such. The respondent is and was at all material times a councillor on the Unley City Council representing Goodwood South Ward. He had no overt political loyalties. 8. For some time before the correspondence which gave rise to this matter there had been occasions when the appellant had criticised the respondent and I should add vice versa. The respondent saw the criticism of him as being of a political nature not necessarily of a party political nature but certainly attacking his suitability to remain as the local member. 9. The events giving rise to the correspondence the subject of this action were correctly summarized in the judgment of the Magistrate thus:-
    "A resident ('Viennakos') of Dunrobin Street, Black Forest
    had for some time in 1990 been parking his truck in Aroha
    Terrace, Black Forest. That street is located both in the
    Goodwood South Ward (in respect of which Hudson is the elected
    representative) and Mayes' electorate. The parking of the truck
    caused annoyance to some nearby residents who complained to
    Hudson. Apparently, the parking of other commercial vehicles
    (not owned by Viennakos) had also resulted in complaints and,
    finally, Council action. They were removed or, at least, their
    owners were forbidden to continue to park in the street. It
    should be noted that Aroha Terrace is zoned residential.
    Regulation 11 of the Parking Regulations 1981 ... regulates the
    parking of vehicles exceeding 6 metres in length. It is not
    denied that Viennakos' truck fulfilled that description.
    Viennakos eventually went to see Mayes to see if something could
    be done to ameliorate his position. He was very concerned and
    disturbed about the possible impact it could have on his
    business. On 16 October 1990 Mayes rang Hudson who by the, had
    approached Viennakos and reminded him that he was parking in
    breach of the Regulations. According to Hudson, Mayes asked for
    some 'give and take' in the matter. Mayes denies that he said
    such a thing. Mayes says that he never used that expression:
    what he said was 'Is there some way around this - is there a
    solution?' (or words to that effect) in respect of the
    difficulties Viennakos was experiencing. At the time Mayes was,
    in general terms, aware of the relevant parking regulations. On
    22 October 1990 Hudson wrote to both Mayes ... and 15 or so
    residents of Aroha Terrace who were directly affected by or
    concerned with Viennakos' truck parking. It is the latter
    circular of which Mayes complains." 10. On the 22nd October 1990 the appellant wrote a circular letter which he distributed or caused to be distributed to 15 residents of Aroha Terrace. I take that to mean to 15 householders although nothing turns on this. The letter read:-
    "In recent times, at the request of some residents, I have
    asked Unley Council's traffic section to deal with the parking
    of commercial vehicles on the northern side of Aroha Terrace.
    This has resulted in the removal of an unsightly backhoe and,
    more recently, in the disappearance of a huge semi-trailer from
    alongside the transformer station. Unfortunately, local Member
    of Parliament Mr Kym Mayes has made overtures to me to sanction
    the continued use of this area for the parking of a commercial
    vehicle owned by a resident of nearby Dunrobin Street. In doing
    so, he has implied that the presence of the tram-line somehow
    makes the intrusion of commercial vehicles into a residential
    area more acceptable. I find it hard to understand how, as a
    Council legally responsible for the policing of planning
    regulations, we can differentiate between such intrusions, and I
    will therefore continue to press for the removal of
    inappropriate vehicles. Mr Mayes has been quoted in the local
    press in recent weeks as protecting Forestville residents
    against the noise from the local bakery. Many of those
    residents came to the area long after the bakery was
    established, and should have anticipated the disadvantages. Yet
    Mr Mayes apparently doesn't appreciate that those who chose to
    live in an entirely residential area should have a guarantee of
    residential amenity without the presence and movement at
    inconsiderate times of large commercial vehicles. Yours
    sincerely Mike Hudson Councillor, (signed) Goodwood South Ward,
    9, Hartland Avenue, Black Forest. Tel [phone] " 11. On becoming aware of this letter the respondent wrote a circular letter which he distributed or caused to be distributed to about 150 residents of Aroha Terrace. The letter was in these lines:-
    "I am writing to you to correct the misleading and
    disgraceful insinuations made against me by Mr Hudson in his
    letter to you of 22 October 1990. Mr Hudson has totally
    misrepresented the content of my telephone call to him last
    week. He has clearly implied to you that I abused my position
    by seeking his approval for a local resident to park his truck
    in Aroha Terrace. This is a blatant distortion of my approach
    to Mr Hudson. The truth of the matter is that I was simply
    making an enquiry on behalf of one of my constituents who
    believed he was the victim of local bureaucracy. Such enquiries
    are part of my everyday responsibilities as your local Member.
    I am sure you would agree with me that I would be failing in my
    duty if I did not investigate the problems of constituents who
    approached me. In the course of such duties I am often required
    to speak to local councillors, all of whom have previously been
    more than happy to discuss issues related to local council. It
    appears that I cannot have normal professional communications
    with Mr Hudson without Mr Hudson attempting to use the
    discussion for some political purpose. I regret to say that on
    occasions Mr Hudson has a political agenda. Why was he silent
    about the Liberal Party's proposal to build an O'Bahn through
    residential properties along the tramline? Whereas, I spoke out
    against the proposal and with residents' support won the support
    of the Government to reject the tramline's O'Bahn. In respect
    of the constituent issue I also contacted the Council's Planning
    Officer to determine what Council's regulations are. In the
    conduct of this investigation on behalf of my constituent I can
    assure you that I observed all due respect for the rights of
    Council, and the position of both Mr Hudson and the office of
    Council. Mr Hudson's letter is an outrage, and I believe it to
    be defamatory of me. I have demanded that Mr Hudson apologise
    to me publicly and acknowledge that I was carrying out my duties
    in a responsible and proper manner. Please be assured that I
    will continue to represent your interests with the utmost
    diligence. I believe that my record in protecting the
    residential character of our suburb speaks for itself. I trust
    that you will judge me on that record, not on the
    unsubstantiated accusations made against me by Mr Hudson. I
    look forward to continuing to represent and serve you. With
    kind regards (signed) KYM MAYES, M.P. MEMBER FOR UNLEY " 12. The appellant claimed that latter letter was libellous. Neither party disputes the finding that the respondent's letter was written on an occasion of qualified privilege and that fair comment on a matter of public interest provided a defence. The Magistrate put it thus:-
    "At the heart of the discussion was the proper role of the
    Aroha Terrace residents' elected representatives in resolving a
    dispute. Those electors, and their representatives, had a
    common, reciprocal, legitimate social or legal interest in the
    despatch and receipt of information relevant to the heart of
    that discussion." 13. I agree with that passage. The Magistrate as remarked earlier found that malice had been proved in relation to the publication of the respondent's circular letter. He also found that the defence of fair comment on a matter of public interest had not been made out because on the facts alleged is the basis of the comment had not been made out. Nothing turns on that in this appeal. On the question of malice I find myself in agreement with the learned Judge in the Court below when he said:-
    "But it must be born in mind that most of the material
    before the Court from which the inference of malice was drawn
    took the form of exchanges of one kind or another, or public
    statements, by two politicians, who were dealing with matters of
    public concern. Courts should be astute not to inhibit any more
    than is absolutely necessary the vigorous public exchange of
    views on political or social issues which is an essential part
    of the democratic process. Courts should hesitate long before
    construing the common law so that it might be perceived to
    effect an overly legalistic curb on the robust exchange of
    opinion on maters of public interest. While it is true that the
    law of defamation has its place in protecting politicians no
    less than any other individuals from unwarranted personal
    attacks, politicians who engage in public disputation upon a
    matter of concern to the community cannot expect to succeed in a
    cry of 'foul' when all that has occurred is an energetic retort
    in the course of a vigorous airing of views. It is true that a
    finding that a statement has been activated by malice, if
    properly based in the evidence, will remove the shield provided
    by the defences of either fair comment on a matter of public
    interest or qualified privilege. But a finding of malice should
    not be lightly reached, as otherwise the shield will become too
    fragile and public debate unreasonably fettered. Particular
    care must be taken in a case such as this, where the two
    participants in the debate have been involved in what can only
    be described as a long-running public slanging match for a
    considerable time. In such a case, where there is a ready
    resort by both sides to invective and abuse, and the imputing of
    improper motives against the other, allowance must be made for
    the fact that these days, language to that effect is common
    place. One need only have regard to the utterances of
    politicians made during the course of contemporary parliamentary
    debate to be well aware of that fact. While parliamentary
    debate which takes place in the Houses of Parliament is, of
    course, protected by the blanket of absolute privilege, the
    constant barrage of insults traded in such quarters must
    eventually have an effect upon what legitimately may be
    tolerated outside of Parliament. I can see nothing in the
    long-running course of correspondence and public statements by
    each of the two protagonists to suggest that they were indulging
    in anything other than accusations and counter-accusations
    couched in the language of contemporary political rhetoric.
    More particularly, in reviewing the whole of the evidence in the
    case, in my opinion, the only proper construction to be placed
    upon the action of Mr Mayes in writing the letter in question
    was that in doing so he was embarking on a vigorous defence of
    what he perceived to be disgraceful allegations which had been
    made against him by Mr Hudson. The judgments by which he
    characterises Mr Hudson's conduct, namely, 'misleading and
    disgraceful insinuations', 'total misrepresentation', 'blatant
    distortion', 'outrage' and 'unsubstantiated accusations', and
    the suggestion that Mr Hudson was acting according to an
    undisclosed political agenda, are expressions which, despite
    their vehemence, and even considered in the context of the
    long-running series of exchanges between them, and the other
    evidence in the case, cannot be regarded as expressions of
    malice in the sense necessary to destroy the defence of
    qualified privilege." 14. It was also contended originally and on appeal and upon this Court that the publication by the respondent to 150 residents of Aroha Terrace was an excessive response to the appellant's publication of his letter to 15 residents. I cannot agree with the submission. The respondent did not know and could not know to what extent the appellant had written, and had disseminated to the residents other than the actual recipients when by word of mouth or the handing in of the letter. 15. Some other minor matters were canvassed but in my opinion make no difference to the central finding in the Court below and that was that malice had not been proved. With that I agree. 16. I would dismiss the appeal.

JUDGE2 KING CJ In my opinion this appeal should be dismissed for the reasons given by Mohr J.

JUDGE3 BOLLEN J I agree with the order proposed by Mohr J and with his reasons.