Macfarlane v Turner No. Scgrg-97-1273 Judgment No. S6724
[1998] SASC 6724
•17 June 1998
MACFARLANE V TURNER
Full Court
Coram: Prior, Olsson and Williams JJ
Williams J:
This is an appeal from a decision of a single Judge of this Court whereby he dismissed an appeal against a Magistrate’s decision upon a claim in defamation.
The facts giving rise to the action
The defendant is the editor of the South Australian Institute of Teachers Journal. Under the pseudonym "WhipLasch" he wrote an article entitled "Anonymous Heroes" which was published in the Journal of October 1994. In the last paragraph of the article WhipLasch identified himself by name as being the defendant. The article is a commentary upon the anonymous writings of a contributor writing as "Susan Lasch" to the Adelaide Review. The defendant invites comparison (unfavourable to Susan Lasch) between the defendant - who discloses his identity - and Susan Lasch who chooses to hide behind an assumed name.
The plaintiff at the relevant time was a High School Principal and he had participated in the affairs of the Institute as a member. The plaintiff claims that the defendant’s article (in an indirect reference to the plaintiff) comments adversely upon the plaintiff’s supposed activities as the anonymous contributor to the Adelaide Review (a monthly publication circulating in Adelaide). The plaintiff, alleging that he was defamed by the defendant’s article, instituted these proceedings for damages in the civil jurisdiction of the Magistrates Court. It is the plaintiff’s case that having regard to the topics upon which Susan Lasch writes, the defendant’s article reflects upon Mr Turner by calling in question the ethics of the person writing as Susan Lasch; these writings of Susan Lasch, broadly, could be described as being by way of commentary upon matters associated with the politics of the South Australian education system. "Anonymous Heroes" contains a number of clues or hints as to the true identity of Susan Lasch; upon the plaintiff’s case the matters so mentioned are pointers towards Mr Turner being identified as Susan Lasch.
The plaintiff denies that he adopted the name Susan Lasch and denies any responsibility for the writings attributed to Susan Lasch; the defendant has not contended to the contrary in the proceedings.
The proceedings leading to the present appeal and the grounds of appeal
The Magistrate found that the article identified the plaintiff and was defamatory of him in that the essence of the article was that the anonymous writer (identifiable as the plaintiff) was "deceitful dishonest and cowardly" in concealing his authorship.
The Magistrate found in favour of the plaintiff and awarded $10,000 damages - having reduced the damages by reason of the plaintiff’s delay in bringing the action.
Upon appeal by the defendant a judge of this Court upheld the decision of the Magistrate at trial and (having regard to the nature of an appeal under s40 of the Magistrates Court Act 1991) gave his own reasons upon the rehearing. The defendant has now appealed to the Full Court.
In my view although the Supreme Court Act 1935 entitles the defendant to pursue this second appeal, this Court should be slow to interfere unless there is some point of general principle which requires determination or unless some clear error has been demonstrated. However by reason of the view which I take in confirming the judgment under appeal the applicability of that policy need not be pursued.
Effectively grounds of the defendant’s appeal as argued before this Full Court are:
That the article "Anonymous Heroes" did not identify the plaintiff and did not refer to him.
That the article was not defamatory in the manner pleaded.
That defences of fair comment and qualified privilege respectively should be sustained.
That a finding that the defendant was activated by actual malice so as to destroy the defence of qualified privilege should not have been made.
The defendant also contends that the damages awarded were excessive.
The Impugned Publication
The article published by the defendant was in the following terms:
"Anonymous heroes WhipLasch
‘There has long been a critical view that editorials should not be cloaked in anonymity but like other opinion pieces in modern newspapers should be signed by the author.’
David Bowman
The Adelaide Review, September 1994.
David Bowman is a highly respected commentator on the media. It is therefore ironic that the above was published in a newspaper that shrouds many of its opinion pieces in anonymity. The Lasch family seems to grow with every issue although the progenitor Brendan (who at least had a lively style) must be disappointed with the dullness of his offspring.
Let me make it clear that I am not totally opposed to anonymity. Daniel Defoe, way back in 1702, learnt the benefits of anonymity after his third written work led to him being fined, imprisoned and pilloried. There are times when a source or writer needs to remain anonymous for their own or others’ protection. Adelaide in the eighties and nineties, however, is a long way from eighteenth century England or even twentieth century Russia where remarkably, despite the punishments that would rain down on them, there were numerous writers who dissented openly. Or maybe we do have a secret police force that’s so secret that nobody knows about it, except for writers who are woken by the sound of sledgehammers at the door. So that’s what happened to Brendan, they discover his real name.
My point is that the need for anonymity should be balanced by the importance of the story. For all the protection provided to Adelaide Review writers there have been remarkably few startling revelations to emerge from under their disguises. Yet the current crop of Lasches treat material readily available to any writer as if they were dark secrets stolen from a government minister’s filing cabinet.
What the Lasch stable does do, sometimes interestingly, sometimes tediously, is make criticisms of our parochial State. Surely we have enough writers and would be writers in Adelaide to put their names to such criticisms? Because there is a down side to anonymity.
Despite what post-modernists say, the text isn’t everything. (How erudite is that?!-Ed.) Who a writer is and where he/she comes from is important when they are handing out bouquets and brickbats. The reader needs to know where the arrows are coming from. Criticism of a government minister from a colleague is seen in a different light to criticism from the opposition.
Which brings me to Susan Lasch. She is obviously male and a principal (which explains why she would think a lengthy dissertation on the staffing formula would be worth publishing). But what if she is also an ex-SAIT member and failed Presidential candidate? Her constant criticism of SAIT would take on a different complexion.
But my purpose is not to unmask Susan but to question the ethics of her sniping. Let’s look at some of the sweeping statements she makes.
"The last thing the majority of principals want is any sort of political alignment with SAIT" - are we seriously going to reach the point where the principals have an anonymous spokesperson rather than the elected spokespeople of their representative bodies that are affiliated with SAIT?
"Specifically, as a matter of urgency the Minister needs to provide principals with increased powers in the areas of staffing, personnel management and student discipline." - this statement could come straight from a Liberal Party policy speech. What if Susan Lasch is a Liberal Party member - would this statement be taken seriously if this was known?
"(The teaching profession) on the one hand feels itself the victim of government neglect and attack and on the other the puppet of a union that persists in doomed industrial tactics." - will all you puppets please stand up and march to Minister Lucas’ office now! This statement is obviously tarnished if it comes from an employer background.
Take off the veil, Susan. We’ll still let you criticise us. We’re human. We make mistakes. But if you come out at least we’ll be able to throw a few unsupported criticisms your way.
I can’t go on. I’ve tried to meander along making leisurely point after casual divergence in the best Adelaide Review style but it doesn’t work for me. Maybe it’s because I don’t happen to think that the sacking of the Writers Week board is the biggest tragedy to hit Adelaide this year. Or could it be because I don’t spend enough time at Café Laxette on Rundle Street juggling glasses of hot coffee and talking about aromatherapy and the death of the left? I can say that because I’m anonymous. I (and other anonymous writers) should be used sparingly and with good reason.
Editor’s Note: I feel it is my duty to inform you that WhipLasch is really Andrew Macfarlane and he does have an axe to grind. No-one has ever considered him yuppy, trendy or even slightly with-it. This has had a severe psychological effect on him which he takes out on pretentious publications."
The Extrinsic Facts
The plaintiff relies on the following extrinsic facts which were proved at trial:
(a) Between August 1993 and October 1994 a series of articles attributed to Susan Lasch appeared in the Adelaide Review. The general topic of South Australian Education was a subject dealt with in this series and included criticism of South Australian Institute of Teachers. The true identity of Susan Lasch is not known. The articles were preceded by another series written under the name of Brendan Lasch. The judgment under appeal suggests that these articles were probably written by the same person.
(b) 1. David Bowman published the first sentence of the article in the Adelaide Review of September 1994
David Bowman is a highly respected commentator on the media.
A person or persons write anonymously in the Adelaide Review under the pseudonym of "Lasch".
Such person or persons, so writing, makes criticisms of South Australia.
4A. Such person or persons so writing, makes constant criticism of SAIT.
Such person or person(sic) has written in the Adelaide review(sic) and expressed the following:
"The last thing the majority of principals want is any sort of political alignment with SAIT".
"Specifically, as a matter of urgency the Minister needs to provide principals with increased powers in the areas of staffing, personnel management and student discipline."
"(The teaching profession) on the one hand feels itself the victim of government neglect and attack and on the other the puppet of a union that persists in doomed industrial tactics."
The author of the article is the editor of the Journal, Andrew Macfarlane i.e. the defendant."
(These numbered facts were asserted in par9 of the defence and proved).
(c) The plaintiff is male, he is a School Principal and he was a failed candidate in 1991 for the Presidency of SAIT. He was a member of SAIT but he did not continue to pay his membership fees after a change in Government policy in 1994 which abolished the practice of deducting membership fees from salary. He remained a member until 1995 but his name ceased to appear on the Institute’s membership list.
Identification of the plaintiff
A series of clues provided by the article are relied upon by the plaintiff as being sufficient to identify Mr Turner having regard particularly to the fact that there were only about three people who could meet the description as a failed presidential candidate.
Upon appeal to the Single Judge, His Honour identified the relevant test to be applied in defamation cases (as to the identification of the plaintiff) by reference to the judgment of Isaacs J in Syme v Canavan (1918) 25 CLR 234 at 238 -
"The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him."
His Honour then applied this test to the facts and came to the conclusion that persons with a knowledge of the extrinsic facts which I have mentioned would have identified the plaintiff. Some discrepancy in description does not preclude identification - see Morgan v Oldham’s Press (1971) 2 All ER 1156. The plaintiff was most recently the person who could be described as a failed presidential candidate and he was a male School Principal. No error has been demonstrated in the approach taken to the identification of the plaintiff in the judgment under appeal. There was material upon which the Learned Special Magistrate and the Judge upon appeal were entitled to reach the conclusion that the plaintiff was sufficiently identified by description.
Defamatory Imputation
The defendant as appellant asserts that the meaning ascribed to the article by the Learned Special Magistrate and by the Appeal Judge was strained. The appellant contended that the article meant:
(a) that readers of the SAIT Journal when considering the writings of Susan Lasch should have regard to the fact that the opinions of Susan Lasch came from an anonymous source with an undisclosed particular interest and
(b) the author of the Susan Lasch articles was being overly protective of the writer’s privacy.
In my view the defendant’s argument does not have sufficient regard to the fact that WhipLasch is questioning "the ethics of her sniping" particularly having regard to the author’s hinted status.
There was material upon which a Judge could reach the conclusion that the writer of the Susan Lasch articles was deceitful, dishonest and cowardly; a Judge was entitled to reach the conclusion that "Anonymous Heroes" held up to ridicule and contempt the person who had adopted the name Susan Lasch.
In my view the Special Magistrate and the Appeal Judge were entitled upon the face of the article to treat the defendant’s publication as defamatory.
Fair comment
The defendant sought to rely upon a defence of Fair Comment. The matters relied upon by the defendant are set out in par9 of the defence and have been recited in par4(b) of my reasons.
In the present case there is no evidence that the plaintiff did anything which entitled the defendant to attack his conduct. Comment upon the activities of Susan Lasch may have been justified, but the reflection upon the plaintiff was undeserved. It was not suggested during the case that the plaintiff was Susan Lasch. The defendant did not state accurately what the plaintiff had done. The defendant ascribed to the plaintiff conduct which is not established and gave a totally false picture of him. Gatley on Libel and Slander (8th ed) par 701 says:
"...To state accurately what a man has done, and then to say that [in your opinion] such conduct is dishonourable or disgraceful, is comment which may do no harm, as everyone can judge for himself whether the opinion expressed is well founded or not. Misdescription of conduct, on the other hand, only leads to the one conclusion detrimental to the person whose conduct is misdescribed, and leaves the reader no opportunity for judging for himself of the character of the conduct condemned, nothing but a false picture being presented for judgment."
(quoting Windeyer J in Christie v Robertson (1889) 19 NSWLR at 161).
In the present case the conduct attributed to the plaintiff is not even misdescribed - the conduct attributed to the plaintiff did not happen. There is no room for a plea of fair comment.
Qualified Privilege
The defendant relied upon a defence of qualified privilege upon the footing of an interest in communicating on behalf of SAIT an answer to the attacks of Susan Lasch made in the Adelaide Review. The difficulty with this defence is that the plaintiff had no connection with the Susan Lasch articles. The principle of Rogers v Allen (1989) 154 LSJS 95 was relied upon by the Appeal Judge in the present case to support his rejection of the defence. Defences designed to protect defamatory statements made in the course of public debate do not extend so as to deny redress to innocent third parties who are mistakenly identified. In the present case there is no nexus between the defamatory statement and any relevant conduct on the part of the plaintiff. In Rogers Matheson J cited Lord Esher MR in Nevill v Fine Arts and General Insurance Company (1895) 2 QB 156 at 170:
"There may be an excess of the privilege in the sense that something has been published which is not within the privileged occasion at all, because it can have no reference to it. Instances have been put during the argument of cases where a defendant on an occasion which is privileged as between himself and some other person makes some defamatory statement affecting a third person which has nothing to do with the privileged occasion, in which case, of course, that third person would have a right of action against the defendant, and, as between him and the defendant, there would be no privileged occasion."
In my opinion the defence of qualified privilege failed.
Malice
The Appeal Judge considered that the defence of fair comment and qualified privilege would not have been available in the present case in any event by reason of the malice which has been demonstrated in the recklessness of the defendant. There was material upon which the Learned Special Magistrate and the Appeal Judge were entitled to conclude that recklessness (as opposed to negligence) on the part of the defendant had been proved. As the defences abovementioned fail in any event it is unnecessary to pursue this topic but in my view no error has been demonstrated in the judgment under appeal as regards the finding of malice.
Damages
The defendant complains that the amount of damages ($10,000) was so disproportionate to the nature and consequence of the injuries received as to go beyond the range of the exercise of a sound discretion in the awarding of damages. (See Wilson v Peisley (1975) 50 ALJR 207 at 209). The defendant points to the plaintiff’s delay and his manner of conduct of the action. These matters were argued before the Appeal Judge who reached the conclusion that the assessment was a modest one. There is no basis for interfering upon this second appeal.
In my opinion this appeal should be dismissed.
Prior J:
I agree that the appeal should be dismissed for the reasons published by Williams J.
Olsson J:
I agree.
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