LEWINCAMP v ACP MAGAZINES LIMITED [2008] ACTSC 69 (23 JULY 2008)
DEFAMATION – plaintiff former Director of Defence Intelligence Organisation (DIO) – publications in prominent current affairs periodical, The Bulletin – publications related to events arising out of Australian Defence Force involvement in InterFET – quality of intelligence estimates provided by DIO – loss of access in East Timor to one intelligence database for short period of time – redress of grievance lodged by military intelligence officer – investigation into and report upon redress of grievance – imputations in publication that plaintiff failed in duties and abused position in several respects – imputations untrue and defamatory
DEFAMATION – DEFENCES – Qualified privilege – traditional category – publication to wide audience – reciprocal duty or interest – whether special knowledge of official exercise of public powers conferred requisite duty or interest – whether publication of a complete government report privileged – extended category – government and political matters – s 22 Defamation Act 1974 (NSW) – whether defendant’s conduct reasonable – whether defendant actuated by malice
Held: Duty or interest capable of founding traditional category of defence not conferred by special knowledge of official exercise of public powers – fair and accurate report a distinct and more specific defence – fair and accurate report not pleaded or made out on facts – traditional category not made out – defendant’s conduct not reasonable – actuated by improper motive amounting to malice – extended category of defence not made out – s 22 Defamation Act 1974 (NSW) not made out
DEFAMATION – DEFENCES – Qualified protection – ss 16(1)(c), 16(1)(e), 16(1)(h), 16(2) and 17 Defamation Act 1889 (Qld) – ss 16(1)(c), 16(1)(e), 16(1)(h), 16(2) and 19 Defamation Act 1957 (Tas) – publications not for protection of interests of some other person – publications not for public good – publications not for purpose of giving information – defendant’s conduct not reasonable – publications not made in good faith – manner of publication – actuated by improper motive amounting to absence of good faith – wilful blindness amounting to knowledge of falsity
Held: Statutory defences of qualified protection not made out
DEFAMATION – DEFENCES – Fair comment – common law defence of fair comment on a matter of public interest – ss 30, 31, 33, 34 and 35 Defamation Act 1974 (NSW) – s 14 Defamation Act 1889 (Qld) – s 14 Defamation Act 1957 (Tas) – defamatory words statements of fact not comment – in any event facts upon which alleged comment based not established – ss 13(1)(d) and 14 Defamation Act 1889 (Qld) – ss 13(1)(d) and 14 Defamation Act 1957 (Tas) – publications not made in good faith for information of public – defamatory words not fair comment
Held: Defence of fair comment on a matter of public interest not made out – statutory defences of fair comment not made out.
DEFAMATION – DEFENCES – Statutory defence of no negligence – s 134 Civil Law (Wrongs) Act 2002 (ACT) – no reasonable…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Lewincamp v ACP Magazines Ltd [2008] ACTSC 69
Case
[2008] ACTSC 69
Decision Date
CaseChat Overview and Summary
Lewincamp, a former Director of the Defence Intelligence Organisation (DIO), sued ACP Magazines Ltd for defamation over articles published in *The Bulletin*, which related to the Australian Defence Force's involvement in InterFET. The articles contained imputations that Lewincamp failed in his duties and abused his position, which he claimed were false and defamatory. The case came before the court to decide various legal issues, including whether the defences of qualified privilege, qualified protection, fair comment, and no negligence applied, as well as the assessment of damages.
The court examined whether the defendant's publications were protected under the traditional category of qualified privilege, considering if there was a reciprocal duty or interest. The court found that special knowledge of public powers did not confer a requisite duty or interest. The court also considered if the extended category of qualified privilege, specifically government and political matters under s 22 of the Defamation Act 1974 (NSW), applied. The court determined the defendant's conduct was not reasonable and was actuated by malice, so the extended category was not made out. Furthermore, the statutory defences of qualified protection under various acts were not established as the publications were not made in good faith. The defence of fair comment on a matter of public interest was also dismissed as the defamatory words were not comments but factual statements, and the publications were not made in good faith for the public's information. Additionally, the statutory defence of no negligence was not established due to the absence of reasonable steps to ensure accuracy and failure to provide an opportunity to comment.
The court assessed the damages, taking into account the plaintiff's other recoveries and actions in relation to similar publications, as per the relevant provisions in each jurisdiction. The court awarded $375,000 in compensatory damages, considering factors such as the defendant's wilful blindness and failure to make inquiries. Aggravated damages were granted due to the defendant's conduct, but exemplary damages were not awarded as the circumstances did not warrant it.
The court also addressed the admissibility of a letter from a solicitor for a third party, ruling it inadmissible due to the hearsay rule, despite potential exceptions under s 69 of the Evidence Act 1995 (Cth). Finally, the court ordered judgment for the plaintiff in the sum of $375,000 and allowed submissions on other orders including interest, vindication of reputation, and costs.
Orders
Orders of the court
1. There be judgment for the plaintiff against the defendant in the sum of $375,000.
2. The parties have leave to make submissions as to other orders including orders as to interest, vindication of the plaintiff?s reputation and costs.