Kym Mayes v Michael Hudson No. SCGRG 92/2395 Judgment No. 3744 Number of Pages 11 Defamation Action for Libel

[1993] SASC 3744

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J.

CWDS
Defamation - Action for libel - Appeal against allowance of claim for libel based on contents of circular letter distributed to residents of a suburban street by local Member of State Parliament in answer to letter distributed by local councillor, both letters dealing with the issue of parking of commercial vehicles in the street, which was zoned residential - consideration of defences of fair comment on a matter of public interest and qualified privilege - held that Magistrate correct in dismissing defence of fair comment as one of the facts commented on was untrue - held that Magistrate erred in disallowing the defence of qualified privilege by reason of malice - held that there was "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" - observations to the effect that the Court should be slow to find malice - there should be no "overly legalistic curb on the robust exchange of opinion on matters of public interest" - finding that letter libellous overturned - appeal against dismissal of counterclaim for libel based on the first circular letter dismissed.

HRNG ADELAIDE, 3 December 1992 #DATE 4:2:1993
Counsel for Appellant:         Mr R A Mcrae
Solicitors for Appellant:     Reilly, Basheer, Downs and
   Humphries
Counsel for Respondent:        Mr A D Short
Solicitors for Respondent:     Baker O'Loughlin

ORDER
Appeal allowed.

JUDGE1
PERRY J. The appellant appeals against a judgment in the sum of $5,000 pronounced against him in favour of the respondent by way of damages for libel following a trial before a Magistrate in the limited jurisdiction of the Local Court of Adelaide. The appellant also complains of the dismissal by the learned Magistrate of the appellant's own action for damages for libel pursued by way of a counter claim in the same proceedings. 2. The appellant, Mr Mayes, has been a member of State Parliament, namely, the member for the seat of Unley in the Legislative Assembly, since 1982. At the time of the trial, he was the Minister for Housing and Construction, Public Works and Recreation and Sport. 3. The respondent, Mr Hudson, has since 1985 been the councillor representing the Goodwood South Ward on the Corporation of the City of Unley. 4. The background circumstances are conveniently summarised in the reasons for judgment of the learned Magistrate as follows:
    "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. 5. 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 then, 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 uses 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." 6. On 23 October 1990 Mr Mayes replied to the circular letter written by Mr Hudson, in a letter sent to approximately 150 residents of Aroha Terace. 7. The full text of each of the letters is as follows:
    The Hudson circular letter of 22 October 1990
    "Dear Resident 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] " 8. The Mayes circular letter of 26 October 1990
    "Dear Resident , 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 " 9. Although Mr Mayes' letter is second in point of time, it was Mr Hudson who commenced the proceedings. In the proceedings, he alleged that Mr Mayes' letter was defamatory in that it implied that Mr Hudson had made misleading and disgraceful insinuations against Mr Mayes, that he had done so for political purposes, and that he had totally misrepresented the content of Mr Mayes' approach to him by telephone call of the week before. He further asserted that Mr Mayes' letter conveyed that he, Mr Hudson, had implied that Mr Mayes had abused his position by seeking Mr Hudson's approval for a local resident to park his truck in Aroha Terrace. He asserted that Mr Mayes' letter inferred that Mr Hudson put political interests above the interests of residents, and that Mr Mayes could not have normal professional communications with Mr Hudson without the latter "attempting to use the discussion for some political purpose", that Mr Hudson had abused his position as a councillor by acting for party political purposes, and that Mr Hudons's alleged silence about the Liberal Party's proposals to build an O'Bahn through residential properties was politically motivated. 10. In his counterclaim, Mr Mayes asserted that Mr Hudson's letter would have been understood by its addressees to mean that Mr Mayes had "asked him to acquiesce in the continued use of Aroha Terrace for the parking of a commercial vehicle by a nearby resident represented by the defendant despite the fact that such use was contrary to Unley Council parking regulations". 11. Mr Mayes alleged that Mr Hudson's letter carried with it a number of other meanings by way of innuendo. They were that Mr Mayes had "abused his position as Member of Parliament for the seat of Unley by approaching the plaintiff and asking him to assent to the continued use of Aroha Terrace for the parking of a commercial vehicle in the knowledge that such use of Aroha Terrace was contrary to Unley Council parking regulations", had put the interests of one resident above those of others of his constituency, had put his political interests above the interests of Aroha Terrace residents, and had wrongfully sought a favour or indulgence from Mr Hudson. Mr Mayes and Mr Hudson in their respective defences to the claim and to the counterclaim both assert that their letters were fair comment on matters of public interest, or alternatively, were published on an occasion of qualified privilege. 12. The learned trial Magistrate found that the circumstances were such that each party was entitled to invoke the defences of qualified privilege and fair comment on a matter of public interest. In my opinion, that conclusion, which was not challenged on appeal, was correct, as was his comment: "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. In the case of Mr Hudson's claim, the learned Magistrate held that for reasons which I will come to, the publication was defamatory, and the defences of fair comment and qualified privilege failed. In the case of Mr Mayes' claim, the learned magistrate held that the words complained of were not defamatory. It is convenient first to deal with the appeal against the dismissal of Mr Mayes' claim. Appeal against dismissal of Mr Mayes' Counterclaim The defamatory meaning of the words in Mr Hudson's letter, that is, the natural and ordinary meaning which was asserted to be defamatory, was stated in the pleadings to be:
    "10.1 the parking of commercial vehicles in Aroha Terrace was
    contrary to Council regulations;
    10.2 the plaintiff had taken action through Unley Council
    traffic section to terminate the parking of commercial vehicles
    in Aroha Terrace aforesaid; 10.3 the defendant had approached
    the plaintiff and had asked him to acquiesce in the continued
    use of Aroha Terrace for the parking of a commercial vehicle by
    a nearby resident represented by the defendant despite the fact
    that such use was contrary to Unley Council parking
regulations." 14. In my opinion, while those meanings were correctly attributed to Mr Hudson's letter, the Magistrate correctly concluded that they were not defamatory. Paragraphs 10.1 and 10.2 were really only preliminary allegations of undisputed fact, and did not impinge upon Mr Mayes at all. As to 10.3, the conduct asserted against Mr Mayes in that paragraph was not conduct which would ordinarily be regarded as improper, such as to warrant a finding that to assert that it had taken place, would warrant a finding that the assertion was defamatory. There was nothing in the words to imply that the acquiescence to the parking of a commercial vehicle would, if acceded to, be contrary to law, as opposed to the exercise of a proper administrative discretion or exemption. It was not defamatory for Mr Hudson to assert that Mr Mayes had sought permission for a ratepayer's commercial vehicle to be parked in a residential area. 15. It is true that in dealing with the allegations in paragraph 10.3 the learned Magistrate had regard to a body of evidence which threw light on Mr Mayes' actions and intentions, whereas strictly the question whether the meanings asserted with respect to 10.3 were defamatory was to be considered on the basis of the words themselves, considered in the context in which they were expressed. However, for the reasons which I have given, the learned Magistrate's conclusion was correct. Mr Mayes relied as well on meanings which were said to arise by way of innuendo. The argument proceeded before me on the basis that those innuendoes which are set out in paragraphs 11.1-11.4 (inclusive) of the defence and counterclaim, depended upon knowledge of extrinsic facts or circumstances. Put shortly, the innuendo meanings asserted by Mr Mayes in those paragraphs were that, properly understood, the allegedly defamatory letter inferred that Mr Mayes had "abused his position as member of Parliament for the seat of Unley" by approaching Mr Hudson in the circumstances in which he did and in asking for special treatment for Mr Viennakos' vehicle, that he had put the interest of one resident above those of others within his constituency, that he had put his political interests above the interests of Aroha Terrace residents, and that he had wrongfully sought a favour or indulgence from Mr Hudson with respect to the parking of Mr Viennakos' vehicle. 16. I am not at all sure in the circumstances that the innuendoes pleaded were truly legal innuendoes which depended upon proof of extrinsic facts or circumstances. It seems to me that given that the residents might be presumed to know the public offices held by each of the parties, the suggested true innuendo meanings could well have been pleaded as popular or false innuendoes. However, even if they were to be regarded as such, I doubt whether that part of the pleaded innuendoes as might be regarded as defamatory, were meanings which could fairly be regarded as arising by way of innuendo from the impugned letter. 17. Be that as it may, on the hearing of the appeal, I refused an amendment to the Notice of Appeal which would have permitted the appellant, Mr Mayes, to argue that the meanings pleaded as innuendo meanings were in fact ordinary and natural meanings. It seems to me that the case was argued before the learned Magistrate on the basis which finds expression in the learned special Magistrate's treatment of this aspect of the matter in his reasons for judgment, namely that the allegations in paragraph 11 of the defence identified legal innuendoes. The application by counsel for Mr Mayes represented an attempt to change the basis upon which that aspect of the matter was argued at first instance, and in my opinion, it would not have been proper to permit that course. 18. In those circumstances, the learned Magistrate correctly dismissed that part of Mr Mayes' case as relied upon the alleged innuendo meanings, by reason of the failure by Mr Mayes at any stage to adduce evidence as to the alleged knowledge of the recipients of the letters of the special facts alleged in that regard. In the result, it was not necessary for the learned Magistrate to consider the defences of fair comment and qualified privilege raised by Mr Hudson. 19. The dismissal by the learned Magistrate of Mr Mayes' counterclaim was, therefore, correct, and the appeal against that dismissal must in turn be dismissed. Mr Hudson's Claim In reaching his conclusion that Mr Hudson had been defamed by Mr Mayes' letter, the learned Magistrate correctly held that Mr Mayes failed in his defence of fair comment on a matter of public interest. He did so on the footing that that defence was not made out because one of the facts which was the basis of the alleged comment, was conceded by Mr Mayes to be untrue. That was the assertion of fact which appears in Mr Mayes letter when he stated: "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?" 20. In truth, Mr Hudson had not been silent about that proposal. In a public circular "The O'Bahn and You", as the learned Magistrate points out, Mr Hudson had been critical of both major political parties on the issue. One of the facts upon which the comment was based being untrue, the defence of fair comment on a matter of public interest failed. There was no appeal against the learned Magistrate's decision in that respect. 21. The learned Magistrate then considered the defence of qualified privilege. He found that that defence failed as well, holding that the defence was destroyed by evidence of malice on the part of Mr Mayes. 22. It was the finding of malice with the consequent dismissal of the defence of qualified privilege which was the main focus of the appeal before this Court. 23. In my opinion, the learned Magistrate erred in finding malice and should have upheld the defence of qualified privilege. 24. His finding that the occasion was one of qualified privilege was not challenged on appeal and it is unnecessary further to refer to the reasoning which lay behind that conclusion. For the reasons which I have already given, his conclusion in that respect was sound. At the outset of his consideration of the defence of qualified privilege with respect to Mr Hudson's claim, the learned Magistrate made the following observation: "This defence is defeated if there is evidence before me that Mayes took the opportunity to attack or vilify Hudson's reputation as opposed to defending his own. I bear in mind the law's admonition that a court ought to be slow, if not reluctant, so to find (e.g. see Horrocks v Lowe (1975) AC 135 at 150)." 25. The learned Magistrate then proceeded to examine a number of items of evidence which in his view had a bearing upon "Mayes' conduct and state of mind in relation to Hudson". 26. In doing so, he set out some twelve items of evidence which, in the main, were letters which Mr Mayes had written either to the local paper, known as the Courier Messenger, or to the Advertiser, dating from 1985. As well, he took into account evidence from Mr Mayes' personal assistant, Ms Davies, that Mr Mayes "bears an antagonism, a strong and active dislike towards Hudson". The learned Magistrate also referred to drafts of some of the correspondence emanating from Mr Mayes, being drafts upon which he had apparently consulted his lawyers, and drew adverse conclusions from the manner in which some of the drafts had first been expressed. 27. After a long consideration of those items of correspondence and other items of evidence, the learned Magistrate came to the following conclusion:

    "No one factor upon which I have made observations carries the
    day. However, in my view, their collective, accumulated effect
    is compelling. I am bound to conclude and find that the legal
    principles regarding the application of the defence of qualified
    privilege do not apply in this case. The nature and extent of Mayes'
    publication were out of all reasonable proportion to the apparent
    initiating attack by Hudson. Moreover, Mayes' position was
    aggravated by his recklessness in not giving full detailed
    instructions to his lawyers and in not seeking, or causing to be
    obtained, timely information relevant to his intended publication. I
    conclude that Mayes' defence of qualified privilege is also
    defeated. Therefore, there will be judgment for the plaintiff on his
    claim." 28. Although he does not say so expressly, counsel on both sides argued the appeal on the footing that underlying his rejection of the defence of qualified privilege, the learned Magistrate found that Mr Mayes had, in publishing his letter, been activated by malice. 29. On the hearing of the appeal, Mr McRae of counsel for Mr Mayes made submissions with respect to each of the items of evidence to which the learned Magistrate had regard before reaching the conclusion expressed in the passage to which I have just referred. In my opinion, Mr McRae is correct in his submission that none of those items of evidence, considered either alone or together, and when considered in the light of the evidence as a whole, were sufficient to justify a finding of malice. 30. It must be observed that antagonism and dislike are not necessarily evidence of malice in the technical sense as the word is used in the law of defamation. Furthermore, in my opinion, the plethora of correspondence, mostly public, in which Mr Mayes had indulged over the years concerning Mr Hudson or matters which they were debating, did not provide a proper basis for a conclusion that when he wrote the letter in question he was activated by malice. It is true that he had from time to time asserted that Mr Hudson had resorted to personal attacks upon him and that Mr Hudson, despite his claim to an apolitical stance, had political leanings which affected his conduct. It is true also that he asserted from time to time that Mr Hudson had made dishonest accusations about him which were unsubstantiated, and that Mr Hudson had failed properly to represent his constituency effectively and in an unbiased fashion. 31. But it must be borne 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. 32. 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 matters of public interest. 33. 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. 34. 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. 35. 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. 36. It is necessary to deal with one other aspect of the matter. It was contended by Mr Hudson, both at the trial and on the hearing of the appeal, that Mr Mayes' response to the letter circulated by Mr Hudson was excessive. If a response is properly to be regarded as excessive, it may be either evidence of malice, or, even considered apart from the question of malice, it may operate to destroy a defence of qualified privilege which might otherwise have been open. (See Tobin and Sexton, Australian Defamation Law and Practice, (Butterworths) p.9067, para 14,040, and p.11054, para 18,030 and the cases there cited.) Insofar as that suggestion is based on the contents of Mr Mayes' letter, for the reasons which I have given, the criticism is not made out. It is true that Mr Mayes' letter was distributed to 150 residents of Aloha Terrace, whereas Mr Hudson's letter went to only 15 of them. But there are two answers to that. One is that Mr Mayes' evidence was that he had evidence that the circular had been received by several residents of Aloha Terrace, who were not adjoining residents. He recognised the letter as a "general circular". The inference from that evidence is that he did not know just how many of the householders in the street received the letter. That evidence was not challenged on appeal. In my opinion, Mr Mayes was not put on inquiry to ascertain precisely how many residents of the street had received the letter, and was entitled to distribute his letter in reply to the occupants of the street as a whole. The other answer is that even if he should have ascertained that Mr Hudson's letter had only gone to 15 householders, he was entitled to assume that knowledge of the publication might well have spread throughout the street during the course of time. 37. In the course of his judgment, the learned Magistrate observed:
    "Mayes did not give his lawyers a full and complete background
    briefing. He was seeking and getting advice 'on the run'. He
    wanted to get his riposte out as soon as possible. He did not
    make, or cause to make, enquiries about how many people it was
    to whom Hudson had written. He chose to circularise all
    residents of Aroha Terrace, not merely the 15 or so to whom
    Hudson had written. He threw caution to the wind. He was
    reckless in his desire to clear the record." 38. I have already dealt with the question of the extent of circulation. I do not think that, taken in context, Mr Mayes' anxiety to reply to Mr Hudson's letter was an item of evidence going towards proof of malice. Neither do I think that any incompleteness in his instructions to his lawyers counted against him in that respect. Regrettably, it is a commonplace experience that clients do not give full instructions to their legal advisers. 39. After carefully considering the whole of the evidence, and even after giving due weight to the advantage held by the learned trial Magistrate in seeing and hearing the witnesses, I have reached the view that the evidence did not support the finding of malice. In my opinion, Mr Mayes made out the defence of qualified privilege, and Mr Hudson's action against him should have been dismissed on that account. 40. It follows that the appeal should be allowed and the judgment in favour of Mr Hudson quashed. There should be substituted for that judgment an order dismissing Mr Hudson's action. The appeal against the dismissal of Mr Mayes' claim should in turn be dismissed. 41. I so order. I will hear the parties as to costs.