Machado & Anor v Underwood & Anor - [2016] SASCFC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MACHADO & ANOR v UNDERWOOD & ANOR
[2016] SASCFC 65
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Nicholson)
3 June 2016
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - ON MATTERS OF PUBLIC INTEREST - WHAT CONSTITUTES PRIVILEGED OCCASION, COMMUNICATION OR CONDUCT
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - REASONABLENESS OF PUBLICATION
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL
This is an appeal against the decision of a Magistrate allowing a claim for damages for defamation. The first respondent, Mr Underwood, is a project officer with the Department of Environment and Natural Resources and is involved with the Department’s Investigation and Compliance Unit. The first appellant, Mr Machado, is the President of the second appellant, the Australian Marine Wildlife Research and Rescue Organisation (AMWRRO).
Mr Underwood sued Mr Machado and AMWRRO in the Magistrates Court in relation to an email sent to the Minister for Sustainability, Environment and Conservation on 21 December 2011. The email raised Mr Machado’s concerns that an allegedly sick koala was in the care of persons who did not hold the relevant permit required pursuant to the National Parks and Wildlife Act 1972 (SA). Mr Underwood claimed that the email gave rise to imputations that:
- Mr Underwood was dishonest and a liar in his communications with Mr Machado about a koala referred to in the email;
- Mr Underwood concealed his dishonest activities from the Department and was involved in a cover up over the dealings with the koala;
- Mr Underwood had no proper regard for the health or welfare of the koala;
- By reasons of his handling of the care of the koala, he was incompetent in his job and unfit to hold his position as a project officer;
- Mr Underwood had acted so as to undermine the work and objectives of the Department; and
- Mr Underwood had acted in an unreasonably aggressive and intimidating manner in the performance of his role as a project officer when dealing with Mr Machado.
The Magistrate found that the email gave rise to the imputations and were defamatory, that Mr Machado and AMWRRO had acted unreasonably and, therefore, the statutory defence of qualified privilege had no application, that Mr Machado and AMWRRO’s conduct was actuated by malice and, therefore, the common law defence of qualified privilege had no application, that the defence of honest option had no application, and that the Mr Machado and AMWRRO had not made an “appropriate disclosure” in order to be protected by the Whistleblowers Protection Act 1993 (SA).
Mr Machado and AMWRRO have appealed against the decision of the Magistrate on a number of grounds, including that the Magistrate erred in finding that the their conduct was not reasonable in the circumstances, that the Magistrate erred in the finding of malice, and that the Magistrate erred in finding that the email was not protected by the Whistleblowers Protection Act 1993 (SA).
Held per Kourakis CJ and Nicholson J, dismissing the appeal as to liability but allowing the appeal as to quantum:
1. The email of 21 December 2011 gave rise to the imputations as found by the Magistrate.
2. The Magistrate was correct in finding that the appellants’ publication of the defamatory statements was unreasonable.
3. The Magistrate was correct in finding that the first appellant’s defamatory statements were actuated by malice and in dismissing the appellants’ defences of both statutory and common law qualified privilege.
4. The email published by the appellants did not amount to an “appropriate disclosure” pursuant to section 5 of the Whistleblowers Protection Act 1993 (SA).
5. The Magistrates award of damages was excessive and is set aside. In lieu thereof, the first respondent is awarded damages in the sum of $22,500, comprising general damages of $15,000 and aggravated damages of $7,500.
Held per Gray J (allowing the appeal):
1. The Magistrate proceeded under a serious misapprehension of fact. This misapprehension played an important part in the Magistrate’s consideration of her conclusion that qualified privilege was defeated by malice as well her conclusion that Mr Machado could not rely on the statutory defence of qualified privilege.
2. A finding of malice was not open on the evidence. The finding of malice was the only basis on which the Magistrate dismissed Mr Machado’s common law defence of qualified privilege. Mr Machado’s common law defence of qualified privilege should succeed.
3. This matter falls in the lower range of seriousness. If Mr Machado was found to be liable for defamation, I would award damages in the amount of $5,000.00.
National Parks and Wildlife Act 1972 (SA) s 58; Whistleblowers Protection Act 1993 (SA) s 4, s 5, s 7; Defamation Act 2005 (SA) s 28, s 29, s 31, s 32, s 34; Magistrates Court Act 1991 (SA) s 40, referred to.
Roberts v Bass [2002] HCA 57, (2002) 212 CLR 1; Horrocks v Lowe [1975] AC 135, discussed.
Jones v Dunkel [1959] HCA 8, (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916; Payne v Parker [1976] 1 NSWLR 191; Spence v Damasi (1988) 48 SASR 536; Frederick v State of South Australia [2006] SASC 165, (2006) 94 SASR 545; Morgan v WorkCover Corporation [2013] SASCFC 139, (2013) 118 SASR 297; Ley v Hamilton (1935) 153 LT 384; Jones v Skelton [1963] 3 All ER 952; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Barbaro v Amalgamated Television Services Pty Ltd [1985] 1 NSWLR 30; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Roberts v Bass (2002) 212 CLR 1; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Coyne v Citizen Finance Ltd (1991) 172 CLR 211, considered.

MACHADO & ANOR v UNDERWOOD & ANOR
[2016] SASCFC 65
Full Court: Kourakis CJ, Gray and Nicholson JJ

KOURAKIS CJ AND NICHOLSON J: The appellants, Mr Machado, and the Australian Marine Wildlife Research and Rescue Organisation (AMWRRO) appeal against the judgment of the Magistrates Court, given in a defamation action, by which they were ordered to pay damages and interest in the sum of $59,245, including a sum for aggravated damages, to the first respondent, Mr Underwood.[1] The second respondent to the appeal, the State of South Australia, had been joined as third party to the proceedings. For reasons to be explained, the second respondent played only a limited and confined role in the appeal.
[1] Underwood v Machado & Anor, Reasons for Judgment, 22 January 2015 (AMCCI-13-4463) (Magistrate’s Reasons).
Mr Underwood is a project officer with the Department of Environmental and Natural Resources (the Department). He is the project officer of the Department’s Investigation and Compliance Unit (the Compliance Unit) which investigates and prosecutes breaches of environmental protection laws. Relevantly to this appeal he was responsible for the investigation of possible breaches of section 58(1) of the National Parks and Wildlife Act 1972 (the Act) which prohibits the keeping of protected animals unless authorised to do so by a permit granted by the Minister pursuant to section 53 of the Act. Koalas are protected animals.
The subject matter of Mr Underwood’s action was an email sent by Mr Machado to the Minister for Sustainability, Environment and Conservation, the Honourable Paul Caica (the Minister), on 21 December 2011. The email is set out below at [32]. In summary, Mr Machado informed the Minister that he had passed on information that a koala, in the care of an unauthorised person, was in poor health to Mr Underwood who had improperly failed to enquire into his complaint. The imputations pleaded, and found to be made out by the Magistrate, concerned Mr Underwood’s integrity and competence in undertaking his duties and in administering the law and departmental policies on the keeping of koalas. At that time the Department had recently changed its policy on the keeping of koalas by members of the public and was extending some prosecutorial leniency to unauthorised persons who had koalas in their care. The change in policy was brought about by the Department’s limited resources and a large increase in koala numbers.
In summary, Mr Machado’s defence was that the koala’s carer had informed him of its poor health and that his communication was made on an occasion of qualified privilege. Mr Machado contended that he acted reasonably in alleging that Mr Underwood had improperly failed to investigate the matter.
He also relied on certain provisions of the Whistleblowers Protection Act 1993 (the WPA). The Magistrate found that the koala was in good health at all material times and that its carer had not told Mr Machado that it was in poor health.[2] It followed that Mr Machado’s complaint was based on a false premise and that he had been untruthful in his complaint and his evidence. Mr Machado’s pleaded defences were rejected and judgment was entered for Mr Underwood.
[2] Magistrate’s Reasons at [147].
The appellant’s grounds of appeal against the judgment ordered in favour of the first respondent may be summarised and grouped as follows:
·The Magistrate erred in determining only whether the email was “capable” of bearing the defamatory meaning and not whether it did convey that meaning and erred in finding that the email had the pleaded defamatory meaning having regard to the special knowledge (of the policy of non-enforcement of the permit system) of the persons to whom it was sent (Grounds 1 and 2);
·The Magistrate erred in admitting evidence that was relevant only to a non-existent plea of justification and misusing that evidence and findings made thereon, on the issues of malice, reasonableness and appropriateness (Grounds 3 and 4);
·The Magistrate took into account irrelevant considerations on the question of reasonableness in the context of the statutory defence of qualified privilege, namely that Mr Underwood had no concerns with the Department’s interim koala management policy and that Mr Machado had failed to investigate his claims; and failed to take into account, as a relevant consideration, that Mr Machado had investigated the accuracy of his email by relying upon information provided by Anne Bigham and had asked a departmental officer, Sonya Nicholls, to vet his email and the limited publication and call for an investigation (Ground 5);
·The Magistrate reversed the onus of proof on the question of malice and erred in a number of other respects relevant to the finding of malice (Ground 6);
·The Magistrate erred in the application of section 5 of the WPA (Ground 7);
·The Magistrate erred in fact and in law in finding that the email did not constitute an appropriate disclosure of public interest information within the meaning of section 5 of the WPA (Grounds 8 and 9);
·The Magistrate erred in finding that before a person can have the benefit of the WPA he or she must conduct an investigation (Ground 10);
·The Magistrate erred in law in assessing the extent of publication by failing to take account of the restrictions on publication required in the email (Ground 11); and
·The Magistrate’s award of compensation was excessive, wrongly included an amount for aggravated damages and wrongly compensated for injury to reputation caused by the publication beyond the natural and probable consequence of the original publication to the Minister (Grounds 12-14).
We would dismiss the appeal on the issue of liability. The email bore the imputations found by the Magistrate. The findings made against Mr Machado on the issues of reasonableness and qualified privilege necessarily followed from the finding of fact that he had fabricated the conversation with the koala’s carer about its poor health. The Magistrate did not err in fact or law on those issues and their interrelationship with the WPA.
However, we would allow the appeal against the quantum of damages. The damages were manifestly excessive. We would set aside the Magistrate’s award and order instead that the appellant pay the first respondent the sum of $22,500 in damages.
These reasons are arranged as follows:
·    The evidence – a koala is rescued ([10]-[14])
·    Mr Machado is told about Banjo ([15]-[18])
·    Mr Machado complains to the Department ([19]-[22])
·    A veterinary examination of Banjo ([23]-[29])
·    Mr Underwood reports back to Mr Machado ([30]-[31])
·    The email ([32])
·    The Magistrate’s findings of fact ([33]-[36])
·    The Magistrate’s Reasons ([37]-[42])
·    Appellate review of factual findings ([43]-[48])
·    Duelling Banjos ([49]-[64])
·    The Bighams’ permit status ([65]-[76])
·    Absence of evidence from Anne Bigham’s mother and Don Bigham ([77]-[78])
·    Anne Bigham’s notes ([79]-[80])
·    Change in departmental policy ([81]-[88])
·    The pleaded imputations (Grounds 1-2) ([89]-[96])
·    Defences ([97]-[104])
·    Appeal grounds 3, 4 and 5 – statutory qualified privilege and reasonableness ([105]-[129])
·    Appeal grounds 3, 4 and 6 – qualified privilege and malice ([130]-[145])
·    Appeal grounds 7-10 – the protection conferred by s 5 of the WPA ([146]-[161])
·    The position of the second respondent ([162]-[164])
·    The extent of publication ([165]-[171])
·    Damages (appeal grounds 12-14) ([172]-[177])
·    Conclusion ([178]-[179])
The evidence – a koala is rescued
At all relevant times, Rae Campbell was the coordinator of Fauna Rescue, an organisation designed to rescue, rehabilitate and release South Australian wildlife, including koalas. She was authorised, pursuant to the Act, to care for koalas. In late 2011, Rae Campbell rescued a koala, whom she named Banjo, from a suburban backyard where he was being menaced by dogs. She took Banjo to a vet for a health check.
After three weeks, she passed him on to Don and Anne Bigham, a couple who were volunteers with Fauna Rescue and whom she mentored for about twelve months. Before doing so, Rae Campbell notified Sonya Nicholls, the Manager of the Fauna Permit Unit of the Department, of her intention to place Banjo in the Bighams’ care because she was about to be hospitalised for shoulder surgery. She was hoping to take Banjo back after her shoulder surgery but it did not go as well as expected. Rae Campbell had taught the Bighams the correct gum leaf to feed koalas and had instructed them in the handling of koalas. After the Bighams took on the care of Banjo, they returned from time to time to show Rae Campbell how he was progressing.
Rae Campbell testified that some time after handing Banjo over to the Bighams, she received a telephone call from Mr Underwood who enquired about Banjo’s health at the time of the handover to the Bighams. Rae Campbell informed Mr Underwood that Banjo had been eating and drinking well and had no health problems whilst in her care.
Following Mr Underwood’s call, Rae Campbell rang the Bighams and suggested they have Banjo examined by the vet, Dr Tristram Bennett. Rae Campbell testified that the Bighams reported back to her that Dr Bennett had found that Banjo had an undescended testicle but otherwise had given him a clean bill of health. Rae Campbell, in turn, reported that information to Mr Underwood. Mr Underwood’s testimony, set out below, was consistent with Rae Campbell’s evidence about their conversations.
Anne Bigham testified that in 2011 she was in the process of applying for a permit to care for koalas. She had joined Fauna Rescue in 1995 and had been a member for 19 years. Anne Bigham gave evidence that, on the basis of the information she was given at a public meeting held by the Department, she believed that there was an interim transitional period in 2011 during which people could have koalas in their care whilst at the same time applying for a permit. Anne Bigham confirmed that Rae Campbell was training her in the care of koalas. Anne Bigham testified that in the preceding two years she and her husband had cared for between 15 and 18 koalas. She testified that Banjo was in good health when she received him from Rae Campbell.
Mr Machado is told about Banjo
Anne Bigham testified that, about three weeks after she took on the care of Banjo, she took a pelican to the Torrens Island facility of AMWRRO. According to Anne Bigham, at that time Banjo was continuing to enjoy good health and was active, bright and alert. He was eating well and his faeces were “good”. Anne Bigham testified that, when she took the pelican to Mr Machado’s facility, she had a casual conversation with him whilst he examined the bird. They spoke about his facilities and Mr Machado informed her that he could perform blood tests there. Anne Bigham was impressed by AMWRRO’s facilities and Mr Machado’s work. In the course of their conversation, Mr Machado complained that Fauna Rescue would not give him an honorary membership. Anne Bigham testified that she told Mr Machado that she was caring for Banjo but in her evidence-in-chief said that she could not recall any discussion of Banjo’s health.
In cross-examination, Anne Bigham denied that she told Mr Machado that Banjo was in poor condition, that he was not eating or drinking and that he was not able to hold up his head. She denied telling Mr Machado that she was concerned about Banjo’s urine. The cross-examination then continued:
QHe asked if you’d been, or taken the koala to a vet to be checked.
AWe hadn’t, no.
QNo, no.
ANo, he asked, he did ask the question.
QHe asked that.
AYes.
QAnd you told him that no, you hadn’t.
AThat’s true.
QAnd he asked you why you hadn’t, that’s right isn’t it.
AI am not sure, but quite possibly.
QAnd you told him that the koala would need to get better or stronger before it could go to the vet.
AI’m sorry, but that conversation did not take place. That just makes no sense to me.
QIt was then that Mr Machado offered you free blood tests through his organisation.
ANo, he did not.
Mr Machado testified that, on the occasion of that conversation about a koala in her care, Anne Bigham had brought a cormorant, not a pelican, to him because it was underweight. Anne Bigham conceded in cross-examination that the bird she took to AMWRRO on that occasion may have been a cormorant, explaining that she had taken many birds there. Mr Machado testified, relying on login and logout records kept by security guards at the facility, that Anne Bigham brought the cormorant to him on 27 November 2011 at 12.25pm. Mr Machado testified that he was shocked when Anne Bigham told him that she had a koala in her care because he knew that she was not licensed to care for koalas. He explained that he held the view that the Bighams’ facilities were not adequate to care for koalas. Mr Machado testified that he then had a conversation about that koala’s health. According to Mr Machado, Anne Bigham said:
Oh, it’s in terrible condition. It’s unable to hold itself up, it’s not eating properly, it’s not drinking properly.
Mr Machado testified that he then asked if the koala had been seen by a vet to which Anne Bigham responded:
No, the animal will have to get better first before it went to a vet.

Mr Machado testified that, from the description given by Anne Bigham, he believed that the koala was “on death’s door” and that it was going to die as a consequence of not receiving any veterinary care. According to Mr Machado, he then asked Anne Bigham if any “bug work” or “urinalysis” had been done and pointed to equipment in his boardroom which was capable of performing those tests. He told Anne Bigham that he had the facilities to do those tests if she could not afford a vet. He offered to conduct the test free of charge but Anne Bigham responded that “wasn’t going to happen” and that the koala “would need to get better first”. According to Mr Machado, he also complained to Anne Bigham that he had offered to perform those tests for all Fauna Rescue personnel. Mr Machado then went on to describe, in some detail, a conversation with Anne Bigham in which he explained to her that his offers to the RSPCA and Fauna Rescue to use his testing facilities had been refused. Mr Machado testified that the conversation ended with him saying: “well if you change your mind, you know where I am”.
Mr Machado complains to the Department
Mr Machado said that after his conversation with Anne Bigham, he contacted Ms Hannah Dridan, whom he understood to be the manager of the Compliance Unit, on her mobile. He informed Hannah Dridan that Anne Bigham was keeping a koala unlawfully because she was not licensed. Ms Dridan informed him that she could not say whether or not the Bighams were licensed. Ms Dridan recommended that he contact Sonya Nicholls, the manager of the Fauna Permit Unit of the Department. Mr Machado testified that he telephoned Sonya Nicholls the next morning and she confirmed that the Bighams were not authorised to care for koalas. She also told Mr Machado that she had not received an application for a permit from them. Mr Machado testified that Sonya Nicholls told him to contact the Compliance Unit because it was not the function of the Fauna Permit Unit to investigate a breach.
Mr Machado then contacted Mr Underwood. According to Mr Machado, he told Mr Underwood that the Bighams had the care of a koala without a licence. According to Mr Machado, Mr Underwood acknowledged that he knew of other unauthorised carers but that he was not concerned because he was working with them to obtain permits through the Fauna Permit Unit. When giving evidence, Mr Machado admitted that he was annoyed by that answer and that he could not understand how the Compliance Unit could allow unauthorised persons to care for koalas. He voiced his concerns and told Mr Underwood that his position was unacceptable. Only then did Mr Machado inform Mr Underwood that it was the Bighams to whom he was referring. He told Mr Underwood that the koala was reportedly in “very bad health”. He went on to tell Mr Underwood that the koala was not eating or drinking adequately and was unable to hold itself up. He also complained to Mr Underwood that Anne Bigham had said that the koala would have to get better first before it received any veterinary treatment. According to Mr Machado, Mr Underwood again responded that he was not concerned and Mr Machado became more agitated.
Mr Underwood gave evidence that, on 28 November 2011, he received a cryptic message from Hannah Dridan about her conversation with Mr Machado. Mr Underwood confirmed that he spoke to Mr Machado on 28November 2011 and that the conversation was initially about a carer not having a licence for a koala. Mr Underwood acknowledged that he had told Mr Machado that he knew that a number of unauthorised people were in the process of applying for a permit and gathering the information required for their applications and that the Department had recently adopted a policy not to prosecute them.
According to Mr Underwood, Mr Machado was not satisfied with his explanation. Mr Machado complained that it was not good enough because Mr Machado’s partner needed to jump through hoops to obtain a permit. He argued that others should have to do exactly the same. Mr Underwood assured Mr Machado that all applicants would be put through the same process. There was then some discussion about the requirements on which the Fauna Permit Unit were insisting. Mr Machado accused Mr Underwood of turning a “blind eye”, an accusation which he denied. Mr Underwood described Mr Machado’s tone as fairly blunt, insistent and agitated. Mr Underwood denied that he raised his voice. According to Mr Underwood, Mr Machado then moved to the conversation that he had with the koala’s carer about its health. He told Mr Underwood that the koala was not eating, was dehydrated and suffering renal failure. Mr Underwood testified that he then became concerned, asked for the name of the carer, and was told that it was the Bighams.
A veterinary examination of Banjo
After his conversation with Mr Machado, Mr Underwood telephoned Rae Campbell whom he knew to be the koala coordinator for Fauna Rescue. He enquired of her whether the Bighams had the care of a koala and asked about its health. She informed him that she was not aware of any concerns and that the koala had been in good health for several weeks. Mr Underwood explained to Rae Campbell that there had been a complaint about the health of the koala. He impressed on Rae Campbell the need to have the koala examined by a vet.
Anne Bigham testified that she did receive a phone call from Rae Campbell informing her that some concerns had been raised about Banjo’s health. As a result of that conversation she took Banjo to the vet, Dr Bennett, at Southern Animal Hospital. Dr Bennett checked Banjo and the only health issue he raised was that Banjo had an undescended testicle. Anne Bigham reported the results of the examination back to Rae Campbell.
Photographs of Banjo taken by Anne Bigham were received into evidence. Anne Bigham explained that she recorded, on the hard copy of each photograph, the date it was taken and Banjo’s weight at the time. Three of the photographs in evidence, show an apparently small koala with “November 2011” and “1.9 kilograms” noted; a koala with “March 2012” and “2.9 kilograms” noted; and a koala that plainly was a mature animal. Recorded on that latter photograph is “Banjo at release, 28 October 2012, 5.0 kg”. The photographs are consistent with Anne Bigham having been in possession of a joey in November 2011 which ate gum leaves and, in so doing, put on weight so as to become a more mature animal of five kilograms at the time of release, some 11 or so months later.
Anne Bigham testified that she took Banjo to Dr Bennett again just before his release and he then weighed 4.95 kilograms. In cross-examination, she denied that Banjo weighed 4.95 kilograms when he was first seen by Dr Bennett. It was put to Anne Bigham that the photographs were incorrectly marked and that the photograph of the koala, recorded as weighing 1.9 kilograms, was taken well before November 2011. Anne Bigham denied that allegation, responding that she did not have the care of Banjo before November 2011.
The notes of Dr Bennett, who examined Banjo at Anne Bigham’s request, were received into evidence. Dr Bennett also testified (by telephone) that he recalled seeing Banjo on 28 November 2011. Dr Bennett testified that the notes of the consultation correctly reflected his observations at the time. The notes record that Banjo was eating well and drinking normally. They record that his faeces were normal and his urine was clear. The notes reveal no reason for concern as to Banjo’s health. Dr Bennett testified that he advised Anne Bigham that Banjo appeared to be in good health other than having an undescended testicle. Dr Bennett did not find any physical abnormality or have any concern for Banjo’s welfare. In his view, Banjo was in good health with adequate body condition, well hydrated, bright, normal heart rate, temperature and respiration. The only treatment provided was to clip his nails.
Dr Bennett’s notes include the record that: “Owner worried about dilute urine – advised bringing in urine sample”. Dr Bennett testified that Anne Bigham had enquired about the significance of “clear urine”. Dr Bennett explained that dilute urine was only a health concern if that condition was confirmed by a refractometer and, for that reason, suggested that Anne Bigham bring in a urine sample. Dr Bennett testified that if a koala is drinking normally, he would expect the urine production to correlate with that. He could not recall whether Anne Bigham brought in a urine sample.
Dr Bennett’s notes record the weight of the koala as 4.95 kilograms. That weight is of course inconsistent with Rae Campbell’s recollection that she was told that Dr Bennett had weighed Banjo at two kilograms at the time of the consultation on 28 November 2011 and, as we have earlier recorded, Anne Bigham’s testimony that Banjo weighed 4.95 kilograms on release and not at the time of the consultation.
Mr Underwood reports back to Mr Machado
Mr Underwood testified that, on Tuesday 29 November 2011, he told his supervisor, Hannah Dridan, that Banjo was in good health and then telephoned Mr Machado. Mr Underwood testified that when he relayed the information that he had received from Anne Bigham to Mr Machado he responded “that can’t be right”. According to Mr Underwood, there followed some discussion about the Bighams’ application for a permit, in the course of which Mr Machado raised his voice and dominated the conversation. Mr Underwood testified that he tried to reason with Mr Machado, speaking in a normal tone, but that Mr Machado repeatedly asserted that the koala was “on death’s door”. Mr Machado told Mr Underwood that he would be taking the matter further and then hung up.
Mr Machado agreed that Mr Underwood called him and informed him that he had spoken to the Bighams and that the koala had been taken to the vet and given a clean bill of health. Mr Machado also agreed that he disputed that claim, asserting that there could not possibly have been such a rapid turnaround. Mr Machado testified that Mr Underwood then assured him that the Bighams would soon submit a permit application and that the Bighams were good, well‑intentioned people. Mr Machado testified that he could not believe Mr Underwood and told him that he did not “appreciate his lies” and the way Mr Underwood was “disregarding” his concerns. Mr Machado agreed that he was upset and agitated but insisted that it was Mr Underwood who was argumentative and intimidating in what was a heated conversation. Mr Machado testified that he accused Mr Underwood of incompetence because he was turning a “blind eye” by not enforcing the permit laws. According to Mr Machado, it was Mr Underwood, and not he, who hung up.
The email
Mr Machado testified that after the telephone call with Mr Underwood, he spoke to Sonya Nicholls and before, on 19 December 2011, sending Sonya Nicholls a draft of the email which he proposed to send to the Minister. According to Mr Machado, Sonya Nicholls responded that the email was “perfect”. On 21 December 2011, Mr Machado sent the following email to the Minister.
From:       Aaron Machado [mailto:[email protected]]
Sent:        Wednesday, 21 December 2011 12:58 PM
To:          DENR:MinisterCaica
Subject:    Concerning issues with DENR
Dear Minister Caica
I recently spoke with one of your staff who recommended I contact you via email with regards to some concerning issues that have recently been brought to my attention concerning DENR and in particular one of your staff in the Investigation Compliance Unit; Geoff Underwood.
Recently DENR opened up the permitting system for a select few people to become licensed for koalas due to Cleland National Park being restricted on how these animals will be dealt with due to the last budget cuts etc. Fauna Rescue and DENR arranged for Gail Gipp C/- Australia Zoo to visit Adelaide and hold a two day koala workshop of which Kerry Braun and I C/- AMWRRO attended. The workshop was extremely well set out and was very specific as to how these animals need to be handled and treated whilst undergoing rehabilitation. Several Fauna Rescue and Native Animal Network personnel also attended.
Geoff Underwood C/- DENR Investigations and Compliance Unit and Sonya Nicholls C/- DENR Fauna Permit Unit also attended the workshop to supervise and get a better understanding as to what was expected from carers and what to implement before licensing individuals for koalas etc. It was made very clear to everyone that attended the workshop they would be required to comply with DENR rules and regulations before being allowed to care for these animals and that if anyone was found to have these animals in their possession; they would be removed and provided to an appropriate carer.
Recently I have been informed that several members of Fauna Rescue have been keeping koalas for several weeks without being permitted to do so and when questioned they happily reply that they are a member of Fauna Rescue hence do not need to comply with DENR rules and regulations. One animal in particular was kept for 5 weeks with no vet check and was reported to me by the individual caring for it at the time that; it was not eating, it was very dehydrated and had extremely concentrated urine, it was unable to hold itself upright and had not had blood work done to ascertain the level of sickness; when questioned if bloods would be taken for testing I was told “no – the animal would need to improve by itself beforehand”.
I contacted Fauna Rescue management (who I know well) and had a quiet word about the health of this animal and questioned if the carers were licensed (it was confirmed that they were not). I was told that many Fauna Rescue carers had koalas and that Geoff Underwood knew of this and that it was fine for them to hold these animals as their permits were pending approval the DENR Fauna Permit Unit. I contacted the Fauna Permit Unit and notified Sonya Nicholls of this who knew nothing of it – nor was Sonya aware of any koala permits that were pending for these individuals or anyone else within Fauna Rescue.
I informed DENR Investigation and Compliance Unit (Geoff Underwood) of this and I was told that he knew of many people that had koalas in their care and that they too were not licensed and did a good job so there was no need to intervene. Geoff said that he would follow this up and get back to me.
The following day Geoff contacted me and confirmed that the people had the koala for approximately 5 weeks and that it had since been taken to the vets for a check-up overnight and that it was doing well. I questioned this due to the individual who has the animal in care, told me to my face that; the animal was not doing well at all, it was not eating, it was extremely dehydrated and had not yet been seen by a vet for blood work etc. I mentioned how ironic it was that I brought this to DENR’s attention only hours earlier and Geoff had said “there was no big deal” yet, all of a sudden this animal has been rushed to a vet and has been given the all clear. This is clearly a cover up on Geoffs’ behalf and a blatant lie of which I do not appreciate.
I questioned Geoff with regards to the regulations that were put in place by DENR to supposedly stop this from happening; Geoff soon became extremely angry and started raising his voice and was attempting to intimidate me by way of forcefulness and argumentative suggestions such as; I was causing trouble for no reason as the people that he knew of who had koalas in their possession were “good people who are trying their best”. I again informed Geoff that several people within Fauna Rescue were informing me that they have koalas in their care and that he had approved them to do so because the licensing system was too difficult and that several Fauna Rescue members couldn’t afford to do the training and or modify their enclosures accordingly for koalas, and/or not meet the necessary guidelines and/or food quotas for koalas; hence would not be eligible for KRA licence which is required in order to hold and care for koalas.
I have personally witnessed Geoff Underwood undermine and completely disregard the DENR Fauna Permit Unit for doing their job and who has publically slandered them for only issues licenses to those who comply with these rules for the benefit of the animal and not the carer (of which I agree with 100%). I explained that my concerns are for the animals and not the individuals caring for them and that these rules and regulations were not being followed or enforced by the Investigation and Compliance Unit. I explained to Geoff how disappointing it is when other people are being allowed to care for these animals (and doing so wrongly) whilst others put in the time, effort, money and training in facility management and getting the right experience (including interstate travel for several days) in order to be licensed and comply with DENR regulations; whilst others are not complying and are being allowed to get away with it whilst the Investigation and Compliance Unit (Geoff) turns a blind eye and refuses to act on this information for the sake of the carer as oppose to acting for the animal. Geoff again became irate, extremely aggressive and was yelling before eventually hanging up the phone whilst I was mid-sentence.
I contacted Sonya Nicholls C/- DENR Fauna Permits Unit and questioned the process of pending permits and also questioned how many people were licensed in SA for koalas. As it stands there are 5 individuals that are able to hold and care for these animals (that comply with DENR regulations). I informed Sonya that I knew of several Fauna Rescue personnel that have koalas in care and that these animals were not receiving the appropriate care and/or treatment; unfortunately Sonya could not do anything else but notify the Investigations and Compliance Unit and request the animals to be re-homed to someone who is licensed.
As I understand it, the Investigation and Compliance Unit have not removed the said animals from these people and do not do so due to Geoff Underwood’s interference and ability to turn a blind eye and/or influence others within that department to do the same. I have since been told by many people from within Fauna Rescue that they rely heavily on Geoff’s leniency and ability to keep the Fauna Permit Unit off their backs and hence maintain these animals when not licensed and/or properly equip and/or able to care for them (I suspect this is due to his affiliation with Cleland Nation Park and his history with these animals (which is also questionable)).
This is not an isolated event that will go away whilst people with such incompetence hold the positions they do with DENR e.g. several weeks ago I informed DENR that a Fauna Rescue members was caught carrying and caring for a koala for many weeks (this one person in particular was caught walking through the Burnside Shopping Centre with the animal on her back showing the other shoppers!) furthermore, this person was not permitted to have possession of this animal nor had submitted the applications forms with NERN Fauna Permit Unit yet was not spoken to by the Investigation and Compliance Unit and may still have possession of the animal.
Considering this is a very touchy issue at present and is in the “public eye” and considering the level of rudeness I witnessed by one of your staff (namely Geoff Underwood) I would appreciate your office requesting the necessary investigation into these issues I have raised above and furthermore; I do not appreciated being spoken to in this way by a member of your staff considering we are working for your office free of charge; caring for wildlife that your office is responsible for and are doing a much more efficient job verses that of employees such as Geoff Underwood when it comes to abiding by regulations and informing the appropriate people within DENR when something is brought to our attention and that requires an intervention by DENR.
I trust these issues will receive the appropriate level of investigation by your office and that I will receive the necessary correspondence within a reasonable time.
Should any additional information be required regarding the above, please feel free to contact me via the details listed below.
Wishing you and your staff a very Merry Christmas and a safe and wonderful New Year.
Cheers
Yours Truly,
Aaron Machado
President
AMWRRO;
Australian Marine Wildlife
Research & Rescue Organisation Inc.
Torrens Island via, Grant Trunk Way
Gillman, South Australia 5960
PO Box 2390, Port Adelaide
South Australia 5015
P/ +61 8 8262 5452
M/ +61 0 411 057 551
E/ [email protected]
W/ Magistrate’s findings of fact

Each of the defences relied upon by the appellants at trial and pressed on appeal was, in large part, dependent on the court making findings of fact favourable to the appellants, concerning the true state of affairs underpinning each of the alleged defamatory statements and concerning Mr Machado’s state of knowledge with respect to the state of affairs underpinning each of those defamatory statements at the time he published them.
However, the Magistrate’s findings were unfavourable to Mr Machado and to the appellants’ case in relevant respects. Unless the Magistrate has erred in her findings, in a material manner, such that critical findings of fact should be set aside, the various defences still relied upon will fail.
The Magistrate made the following findings of fact on the balance of probabilities:[3]
[3] Magistrate’s Reasons at [147].
1.A koala, subsequently named Banjo by Rae Campbell, came into her care in October 2011 after he was rescued from a tree in a suburban home having been threatened by two ferocious dogs.
2.Rae Campbell was, at the time, the Coordinator of Fauna Rescue, an organisation involved in the rescue, rehabilitation and subsequent release of Australian wildlife. Rae Campbell was, at all material times, the holder of a permit to care for koalas issued pursuant to s 58 of the National Parks and Wildlife Act 1972.
3.When Banjo first came into the care of Rae Campbell, she had taken him to a vet who had found him to be in good health, albeit scared.
4.Ms Campbell cared for Banjo for approximately three weeks and during this time he was eating and drinking well, his excrement was normal and he had no health concerns.
5.As she was shortly to undergo surgery to her shoulder, on 7 November 2011 she transferred the care of Banjo to Don and Anne Bigham, a couple also heavily involved in Fauna Rescue, and whom she had been mentoring for approximately 12 months in the handling and care of koalas. Rae Campbell telephoned Sonya Nicholls of the Fauna Permits Unit advising of the proposed plan to transfer the care of Banjo to Don and Anne Bigham and no objection was raised by her to this course of action.
6.When Banjo came into their care, Don and Anne Bigham were in the process of gathering together the required information to support an application for a permit.
7.Banjo continued to have no health concerns. He was seating [sic] and drinking normally, his excrement was normal and he was bright and active.
8.On 27 November 2011, Anne Bigham attended at the Torrens Island facility operated by [AMWRRO] for the purposes of delivering a cormorant. In the course of this visit she informed [Mr Machado] that she and her husband had had a koala in their care for approximately three weeks. She also informed [Mr Machado] that she did not hold a permit and that the koala in her care had not been taken to the vet nor had his bloods been taken.
9.No discussion took place concerning the health of the koala, in particular, Anne Bigham did not state the koala was in poor health, had not been eating and drinking and could not hold himself upright. No reference was made to Banjo’s urine. At no stage did she inform the [Mr Machado] that the koala would need to get ‘stronger and better’ before she would take him to the vet.
10.Following her conversation with [Mr Machado], [Mr Machado] telephoned Hannah Dridan, the Manager of the Investigation and Compliance Unit who suggested he telephone [Mr Underwood] ...
11.Hannah Dridan sent a text message to [Mr Underwood] advising that [Mr Machado] had contacted her requesting [Mr Underwood] to contact him.
12.[Mr Underwood] then telephoned [Mr Machado] on 28 November 2011. [Mr Machado] informed him that he was aware of a person caring for a koala without a permit. [Mr Underwood] informed him that this was not a matter of concern and outlined the Department’s interim position adopted following the implementation of the new policy, namely that the Department would not pursue a carer who had a koala in their care and did not hold a permit if they were in the process of obtaining the necessary information to support an application for the permit. [Mr Machado] was unimpressed and informed [Mr Underwood] that his partner had gone through a lengthy process to obtain a permit while others were not required to do so. [Mr Machado] accused [Mr Underwood] on two occasions of turning a ‘blind-eye’ to those people caring for koalas without permits. He then informed [Mr Underwood] that the carer informed him that the koala was not eating or drinking, was dehydrated, had renal failure, problems with his urine, could not hold his head up and was drinking excessively. He did not initially inform him of the name of the carer but then advised [Mr Underwood] that the carer was Anne Bigham. [Mr Underwood] informed [Mr Machado] he would look into the matter and get back to him. [Mr Machado] had spoken in an agitated manner during the conversation.
13.The plaintiff [Mr Underwood] then telephoned Rae Campbell who confirmed to him that the Bighams had the care of Banjo and, at the time they assumed his care, Banjo had been in excellent health. [Mr Underwood] requested that Rae Campbell telephone the Bighams and request that they take Banjo to the vet for a health check as soon as possible. She informed [Mr Underwood] that she was mentoring the Bighams and they were in the process of gathering the information necessary to apply for permits.
14.Rae Campbell then telephoned Anne Bigham. Anne Bigham took Banjo the same day to the Southern Animal Hospital where he was checked by a vet, Dr Tristram Bennett. He examined Banjo and gave him a clean bill of health other than the fact that he had an undescended testicle. This gave no cause for concern. Anne Bigham called in to see Rae Campbell with Banjo on the way home from the vet.
15.Rae Campbell telephoned [Mr Underwood] to inform him of the outcome of the vet check and that she had sighted Banjo and found him to be fit and healthy.
16.On 28 November 2011 at 5.54 pm [Mr Machado] sent an email to Sonya Nicholls of the Fauna Permits Unit of the Department in the following terms ...
Don Bigham and his wife have had a koala for 5 weeks now and are members of Fauna Rescue. So fat (sic) the animal has had no bloods taken, no weights and is now not eating properly.
Liz has been informed, Hannah and Geoff.
Cheers mate
Aaron Machado
17.On Tuesday 29 November 2011, [Mr Underwood] telephoned [Mr Machado] and informed him that Banjo had been checked by a vet and he was found to be in good condition with no health concerns. [Mr Machado] would not accept that this was true. [Mr Underwood] informed [Mr Machado] that the Bighams were in the process of gathering the necessary information to support their applications for permits. [Mr Machado] was belligerent and raised his voice. [Mr Underwood] attempted to reason with him, to no avail, and [Mr Machado] continued to maintain that the koala was ‘on death’s door’ and that the carers did not have a permit. He indicated he would be taking the matter further and the conversation ended.
18.On 19 December 2011 at 6.37 pm [Mr Machado] sent a draft of an email addressed to the Minister to Sonya Nicholls ... In this email he stated:
Hi Sonya,
Have a ready [sic] and tell me (edit in red) if I’m missing anything.
Cheers – see ya soon.
Aaron
No written response was received to this email.
19.On 21 December 2011 [Mr Machado], on behalf of [AMWRRO], sent the email to the Minister ... The Minister’s office acknowledged receipt of this email by letter dated 23 December 2011 and on 31 January 2012 the Minister formally responded to the email ...
20. [Mr Underwood] had attended a workshop organised by Fauna Rescue on 2 and 3 July 2011. He addressed the attendees of the workshop and informed them of the change in departmental policy concerning the care of injured, sick and displaced koalas. He informed the attendees of the interim position adopted by the Department following the implementation of this new policy, namely a person caring for a koala without a permit would not be prosecuted if the person was in the process of gathering the necessary information to apply for a permit. He did not say the Fauna Permits Unit was heavy handed nor did he slander the Unit. He offered to provide assistance to anyone intending to apply for a permit and he informed the attendees that the Unit would be relying heavily on the policy documents as no-one in the Unit had direct knowledge of caring for koalas.
21.[Mr Underwood] had no involvement in monitoring the permit system or in determining whether a prosecution was pursued.
In addition, her Honour arrived at a number of other important findings or inferences of fact based on her primary findings and relevant to each of the defences relied on by the appellants. These are identified and considered later in these reasons.
The Magistrate’s Reasons
Apart from that relating to some relatively minor matters, the evidence given by the witnesses called by Mr Underwood, being himself, Anne Bigham, Dr Bennett, and Rae Campbell, conveyed a consistent story. It was a story quite inconsistent, in significant respects, with that given in evidence by Mr Machado, particularly as to the content of the conversation concerning Banjo’s health between Anne Bigham and Mr Machado and the content of the telephone conversations between Mr Machado and Mr Underwood on 28 and 29 November 2011.
The Magistrate in her reasons summarised, in quite some detail, the evidence of these witnesses. We have reviewed all of the evidence adduced at the trial and are satisfied that her Honour has accurately summarised the material aspects of their evidence. Her Honour declared herself to have no hesitation in accepting, as truthful and reliable, the evidence of Rae Campbell and Anne Bigham. Her Honour found the version of events given by Anne Bigham to be entirely consistent with that of Rae Campbell and Dr Bennett, all of which was to the effect that, at no material time, were there any health concerns with respect to Banjo.
The Magistrate also declared herself to have no hesitation in accepting the evidence of Dr Bennett, although noting that, because he gave his evidence by telephone, she did not have the opportunity to observe his demeanour. The Magistrate also found Mr Underwood to be an honest witness and, again, declared that she had no hesitation in accepting his evidence. The Magistrate also accepted the evidence of Mr John Schutz (called by the second respondent, the State of South Australia) as being truthful and reliable.
Her Honour was impressed with the content of the evidence of these witnesses and with the manner by which they gave their evidence. In this latter respect, we are satisfied that each account was internally consistent and consistent with each other account in material respects. Her Honour’s findings, set out above, and her Honour’s additional findings, discussed below, all find appropriate support in the evidence of these witnesses.
By way of contrast, the Magistrate found Mr Machado to be an unimpressive witness. The Magistrate’s criticisms included:[4] that there were numerous inconsistencies in his evidence suggesting an element of reconstruction; a lack of recall during cross-examination of evidence given during examination in chief; evasiveness; poor recollection and the adoption of a “strangely casual and cavalier attitude to giving evidence”. Her Honour described aspects of his evidence on certain topics as “extraordinary” and ultimately found his evidence to be quite unsatisfactory.
[4] Magistrate’s Reasons at [138]-[143].
Following her review of the witnesses and their evidence, the Magistrate concluded:[5]
For the reasons I have outlined, I have determined to prefer the evidence of [Mr Underwood], Rae Campbell, Anne Bigham, Tristram Bennett and John Schutz to the evidence of the [Mr Machado] where their evidence should conflict.
[5] Magistrate’s Reasons at [145].
Appellate review of factual findings
To the extent that the issues raised on appeal by the appellants involve issues of law or inferences to be drawn from uncontested or established facts, this Court is in as good a position as was the Magistrate to determine such issues. However, fundamental to the appeal concerning the defences is a challenge to the Magistrate’s findings of primary fact.
The principles applicable to the approach to be taken by an appellate court by way of rehearing, such as in the present case, when reviewing findings of fact are settled. In Fox v Percy,[6] Gleeson CJ, Gummow and Kirby JJ explained the position as follows.
[6] [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29] (citations omitted).
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
. . . .
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in … operation”.
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
In this case, the Magistrate heard all of the evidence over three days, 17 November 2014 to 19 November 2014, and delivered judgment approximately two months later, on 22 January 2015. The Magistrate heard and observed each of the witnesses give their evidence.[7] Her Honour had distinct and obvious advantages, as compared with this Court, when forming a view about the truthfulness and reliability of their respective accounts. Her Honour delivered judgment at a time when the impressions made by the various witnesses still must have been clearly in her mind.
[7] Apart from Dr Bennett who gave his evidence by telephone.
It is not possible to understand or construe Mr Machado’s evidence, on the critical issues of the state of health of Banjo and the terms of the relevant conversations, as being consistent in some way with that of Anne Bigham or as being consistent in some way with that of Mr Underwood. The contrasts were stark. The Magistrate had to make a choice and she categorically rejected the evidence of Mr Machado on all critical issues.
Our review of the evidence as a whole and, in particular, those aspects to which the appellants have drawn attention, has not disclosed any basis upon which we would find any of her Honour’s findings to be contrary to incontrovertible facts or uncontested testimony, to be glaringly improbable or to be contrary to compelling inferences available from other evidence in the case.

Indeed, to the contrary, the facts found by the Magistrate are supported by the testimony of the witnesses she preferred. They are also strongly supported by the objective evidence. We now turn to particular factual findings of the Magistrate which were impugned in the course of the appeal.
Duelling Banjos
On the appeal, substantial time was devoted to a challenge of the Magistrate’s findings of fact on Banjo’s health and a submission that there might have been two Banjos; a small sick one in the care of the Bighams and a big healthy one taken by the Bighams to Dr Bennett for the vet check requested by Mr Underwood (through Rae Campbell). The issue started out as a grace note, initiated on appeal by way of the quizzical, almost throw-away, footnote 10 in the appellants’ outline of submissions. However, during oral argument, it developed into a full instrumental.
Of course, if the koala that was assessed by the vet, on 28 November 2011, as healthy was not the Banjo placed in the care of the Bighams by Rae Campbell, the evidence available to support a finding that Banjo was in good health rather than, as asserted by Mr Machado, poor health would be undermined and the credibility and reliability of Anne Bigham would be seriously undermined.
An allegation that the Bighams had two koalas, one sick and one healthy, is not supported by the evidence. The notion was not put to Anne Bigham in cross‑examination. Such an allegation and its implications are extremely serious. Counsel for Mr Machado at trial alluded to the possibility but it was a situation very much of being prepared to wound but not to strike. No submission along these lines was put to the Magistrate.
The issue arose, and was developed on appeal, solely as a consequence of an inconsistency in Dr Bennett’s computerised attendance record for “Don Bigham”[8] and “Banjo”.
[8] The vet records were in the name of Don Bigham and not Anne Bigham, although the evidence of Anne Bigham and Dr Bennett was that it was she who took the koala to the vet. Indeed, all of the relevant interpersonal interactions concerning the koala were between Anne Bigham, not Don Bigham, and other persons. Nevertheless, it is clear that the two of them work together in their volunteer fauna rescue work. At one point, something was sought to be made of the fact that the vet record was in the name of “Don Bigham” and that, perhaps, he brought a second koala to the vet to be examined. There is nothing in this. The simple and obvious explanation is that the vet records were held in the name of Don Bigham, whichever animal was brought in and whoever, out of Don or Anne Bigham, brought the animal in.
As we have seen, the Magistrate had before her the evidence of Rae Campbell to the effect that the animal named Banjo was a perfectly healthy, although “scared”, juvenile koala or joey whilst under her care. The joey was approximately two kilograms at the time Rae Campbell delivered it to Anne Bigham and when Anne Bigham took him to Dr Bennett.
The Magistrate accepted that Anne Bigham, Rae Campbell and Dr Bennett were telling the truth. The problem has arisen because Dr Bennett’s computerised record shows “4.95” as the “current weight” for “Banjo the koala presented by the Bighams for check up” on 28 November 2011.
According to Dr Bennett, the weight of an animal was usually taken by the nursing staff prior to any consultation by the vet. He said that the numerals 4.95 “would almost certainly be in kilograms” rather than pounds, but he could not say for certain. He was not sure how the weight of 4.95 came to be recorded. However, he gave this answer.
I’m not a hundred percent certain. It may well be a factor of the computer program in that it is the current weight that is currently recorded as the most recent weight on the computer system but I’m not sure.
Dr Bennett had earlier given evidence on the question of whether he recalled seeing Banjo subsequent to the visit on 28 November 2011. He gave this answer.
Not accurately but I do know that there was definite either discussion or seeing the koala, whether it was myself or a colleague, that we did discuss whether he was suitable for release and agreed that he was.
Anne Bigham’s evidence was clear to the effect that she took Banjo to Dr Bennett about a week before his release in October 2012 and, according to her, that was when a weight of 4.95 kilograms would have been recorded.
It makes perfect sense that Banjo would have been reviewed by a vet prior to release and close to the release time. It is to be expected that he would have been weighed and the weight recorded. Dr Bennett’s postulation that the computerised record has, in effect, been overridden by an updated or most recent weight record is the most likely explanation for the inconsistency in the record.
There is no support for the possibility that Anne Bigham took a healthy koala to Dr Bennett as a substitute for the very sick koala which she had described to Mr Machado. There was no evidence that Anne Bigham had access to any other koala. It is improbable that a person like Anne Bigham, who volunteers her time to care for animals, would cruelly deny a sick animal veterinary attention. Nor is there any sensible reason for Anne Bigham to engage in a subterfuge of that kind.
If it was Banjo that was examined by Dr Bennett, there is no reason not to accept his evidence and his contemporaneous notes that the koala presented to him was in good health.
This anomaly with respect to the recorded weight of Banjo is not, to our mind, remotely sufficient to cause us to overturn the Magistrate’s findings that, at all material times, the Bighams had possession of only one koala called Banjo, that Banjo was in good health and that none of the defects or concerns asserted by Mr Machado was true. When regard is had to all of the evidence concerning Banjo, the inconsistency concerning weight, as noted on the hard copy printout of the electronic veterinary record for 28 November 2011, on the balance of probabilities, simply reflects the updated weight from the time of Banjo’s release.
Once it is accepted that Banjo was in good health on 28 November 2011, there is simply no reason for Anne Bigham to have fabricated a story about Banjo being in bad health to Mr Machado on the preceding day. Indeed, if Banjo had been in bad health on that day, there was even less reason for Anne Bigham to disclose that to Mr Machado. Moreover, Mr Machado’s allegation that Anne Bigham had commented that the koala she was caring for would need to get better before it was taken to a vet is not credible. There is, obviously enough, not much point taking an animal which is recovering its health to a vet. The only possible explanation for Anne Bigham wanting to delay taking an ill Banjo to a vet is to avoid criticism of her care for him. That, on its face improbable, explanation was not put to Anne Bigham. It is improbable that a volunteer committed to the care of wildlife would take such a risk, and even more unlikely that, even if Anne Bigham was so minded, she would make such an admission to Mr Machado.
Mr Machado’s own actions, and more importantly inaction, tell against the truth of his account. His testimony about the casual way in which he described the conversation with Anne Bigham suggests that there had been no dramatic disclosure that Banjo was near death. Mr Machado, on his own evidence, merely offered to conduct free blood tests. That offer accords with Anne Bigham’s evidence and is equally consistent with Banjo being in good health. Mr Machado did not claim to have remonstrated with Anne Bigham against her decision to deny Banjo veterinary care. Mr Machado made no mention of the most worrying aspects of Anne Bigham’s disclosures to him when he sent his email of 28 November 2011 to Sonya Nicholls. The email did not refer to concentrated urine or the koala’s listlessness. The email did not claim, as Mr Machado later did to Mr Underwood, that the koala was near death.
The plainly correct finding that Anne Bigham did not tell Mr Machado that Banjo was in very bad health ineluctably leads to the conclusion that Mr Machado did not believe the truth of the claims he made in the email. The very short time between his conversation with Anne Bigham, his subsequent conversation with Mr Underwood, and the sending of the email to the Minister, leads to the conclusion that Mr Machado at all times knew that his account of the conversation with Anne Bigham was false.
The Bighams’ permit status
The Magistrate found that “[w]hen Banjo came into their care, Don and Anne Bigham were in the process of gathering together the required information to support an application for a permit” (first finding).[9] This first finding is referred to elsewhere in the reasons in broadly similar terms.[10] The Magistrate also found that Mr Machado had been made aware of this by Mr Underwood during their telephone conversations (second finding).[11]
[9] Magistrate’s Reasons at [147] paragraph 6.
[10] For example, Magistrate’s Reasons at [147] paragraphs 13 and 17, [160] and [169].
[11] Magistrate’s Reasons at [147] paragraph 17, [160] and [169].
Gray J has concluded that, in making the first finding, the Magistrate proceeded “under a serious misapprehension of fact in regard to the Bighams’ permit status”. His Honour has found that this error permeated a number of aspects of the Magistrate’s reasoning and critically undermines her findings in various respects, including her Honour’s assessment of the independence of both Anne Bigham and Rae Campbell. With respect, we do not agree with his Honour’s challenge to the Magistrate’s findings in this respect nor with his Honour’s subsequent analysis.
It would appear that the appellants do not press this approach. It was not initiated in either the appellants’ written outline of submissions or in their oral submissions. During the appeal, the following exchange occurred.[12]
GRAY J:Mr Heywood-Smith, are these findings challenged at 6, 7 and 8?
MR HEYWOOD-SMITH:   7.
GRAY J:Is directly challenged?
MR HEYWOOD-SMITH:   Yes, in the sense, I think I have already made clear, we simply say the evidence ought not to result in a finding of malicious.
KOURAKIS CJ:             That was not what you were asked. This finding at 7 is based on an acceptance of Anne Bigham as being a reliable and honest witness. Are you saying that we should overturn that finding?
MR HEYWOOD-SMITH:   I am not sure which particular ground it would come under, but, yes, we have specifically raised the issue of the accuracy of the findings in respect of the health of the animal.
[12] Appeal transcript T52.
By implication, at least, the finding at [147] paragraph 6 of the Magistrate’s reasons (the first finding) was not being challenged by the appellants.
It is true, that by paragraph 20.2 of the appellants’ outline of submissions, they appear to challenge the second finding set out above. However, the trial transcript reference, relied on in this respect,[13] relates to Mr Machado’s evidence in chief concerning the first telephone conversation he had with Mr Underwood on 28 November 2011. However, it was during the second telephone conversation, on 29 November 2011, that Mr Underwood told Mr Machado that Anne Bigham was in the process of gathering the required information. Mr Machado acknowledged that this was so later in his evidence in chief (see further below).[14]
[13] Transcript of Proceedings, Underwood v Machado & Anor (Magistrates Court of South Australia, AMCCI-13-4463, 17-19 November 2014) (Trial transcript) 97.1 to 97.7.
[14] Trial transcript 169.
In support of the challenge to the Magistrate’s first finding, Gray J has relied on a portion of evidence given by Anne Bigham in cross‑examination.[15]
QWhen did you first consider getting a permit, you or your husband.
AIt would have been after Banjo came into our care.
QI see. Until then you weren’t concerned to have a permit at all.
ANo. Because any koalas that had come via us were ones that were overnight stays and a permit was not required. So, it wasn’t until we had this juvenile koala in care that we needed to gather all the paperwork that is necessary to apply for a permit.
[15] Trial transcript 37.
This evidence, with the use of the phrase “after Banjo came into our care”, is, at worst, ambiguous as to when the Bighams started to gather the required information to support an application for a permit. However, there was other evidence available to round out the picture.
There is ample evidence in support of the Magistrate’s finding that when Banjo came into the care of the Bighams they then commenced the process of gathering the required information.[16] Bearing in mind that Mr Machado spoke to Anne Bigham about Banjo (during the cormorant incident) some three weeks after Banjo had come into her care,[17] the Magistrate’s possible overstatement of the finding[18] is of no consequence.
[16] Trial transcript 17 (Anne Bigham XN), 37-40, particularly, 38-39 (Anne Bigham XXN).
[17] On the appellants’ case, five weeks thereafter.
[18] “When Banjo came into their care [they] were in the process...” (emphasis added).
There is also ample evidence that Mr Underwood, after his first telephone conversation with Mr Machado on 28 November 2011 and before the second telephone conversation the next day, was made aware that the Bighams had commenced gathering the required information.[19]
[19] Trial transcript 56 (Mr Underwood XN, his conversation with Rae Campbell on 28 November 2011).
There is also ample evidence that, during this second telephone conversation on 29 November 2011, Mr Underwood told Mr Machado that the Bighams were in the process of gathering the information to apply and, therefore, at least by implication, fell within the interim policy.[20] Indeed, Mr Machado confirmed in his examination in chief that during their second telephone conversation, Mr Underwood explained that the Bighams were in the process of obtaining the appropriate information in order to apply for a permit.[21]
[20] Trial transcript 58 (Mr Underwood XN), 105-106 (Mr Underwood XXN) and 169 (Mr Machado XN).
[21] Trial transcript 169.
The evidence identified above is to be assessed against the following background. The Bighams had not kept and hosted any koalas on an ongoing basis before Banjo, although they had experience in rescuing and keeping koalas for 24 hours or so until they could be passed to a permit holder. It was only when Rae Campbell became indisposed and handed Banjo over to the Bighams that the need for a permit crystallised. The Bighams, Rae Campbell and Mr Machado were all aware of the interim policy. The critical events, Mr Machado’s conversations with Anne Bigham and Mr Underwood, occurred at least three weeks after Banjo came under the care of the Bighams.
A fair and practical reading of the evidence leads strongly to the conclusion that as soon as Banjo turned up, the Bighams realised they needed a permit and decided to apply for a permit. They commenced the process of gathering the necessary information. It is quite unlikely that Rae Campbell, experienced and responsible as she was, would have handed over Banjo unless the Bighams were prepared to do so. The evidence supports a conclusion that, by the time Mr Machado came on the scene some three weeks later, the Bighams were well underway with this process. The Magistrate’s findings on this topic were justified. Further, the Bighams fell within the Department’s interim policy and were entitled to keep and care for Banjo at the time of Mr Machado’s involvement.
Absence of evidence from Anne Bigham’s mother and Don Bigham
Gray J has criticised the Magistrate for accepting the evidence of Rae Campbell and Anne Bigham without taking into account a number of matters, including that Anne Bigham’s mother did not give evidence. The only references to Anne Bigham’s mother in the evidence are those by Anne Bigham who said, simply, that “I went down [to the AMWRRO facility] with my mother”[22] and by Mr Machado who volunteered that Anne Bigham’s mother “was sitting in the car”.[23] There is nothing to suggest that Anne Bigham’s mother was privy in any way whatsoever to her conversation with Mr Machado, which did not take place in the car.
[22] Trial transcript 21.
[23] Trial transcript 196.
Gray J has also noted that the Magistrate did not take into account that Don Bigham did not give evidence as to the state of Banjo’s health. However, the evidence on this topic from Rae Campbell, Anne Bigham, and Dr Bennett was consistent and accepted as truthful and reliable by the Magistrate. It was not necessary for Don Bigham to also give evidence on a topic where all of the admissible evidence was one way. The appellants had no capacity to challenge the evidence as to Banjo’s state of health, in fact. The decision not to call Don Bigham (who would not have been able to give evidence concerning the contested conversation between Anne Bigham and Mr Machado) was quite reasonable and understandable. There was no basis, on the evidence before the Magistrate, for a Jones v Dunkel type submission[24] with respect to the lack of evidence from either the mother or Don Bigham and no such submission was put during the appeal.
[24] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. For further discussions of the principle and illustrations of its application in civil trials, see, for example, O’Donnell v Reichard [1975] VR 916, Payne v Parker [1976] 1 NSWLR 191 (particularly at 200-202 per Glass JA), Spence v Demasi (1988) 48 SASR 536 at 547-549 and Frederick v State of South Australia [2006] SASC 165; (2006) 94 SASR 545 at 555-557 [36]-[42] (White J).
Anne Bigham’s notes
Gray J has also criticised the Magistrate for not considering the content of Anne Bigham’s notes of her conversation with Mr Machado made by her after Rae Campbell had alerted her to concerns being raised by Mr Machado. The notes were not admissible in the examination in chief of Anne Bigham. Whilst Anne Bigham was cross-examined as to why and when (proximity to the conversation) she made the notes, she was not cross-examined on their content and the notes were not tendered. The Magistrate was unaware of the content of the notes. If any inference were to be available, it would be to the effect that the content of the notes did not support Mr Machado’s version of the conversation.
Gray J has also posed a number of other criticisms of the Magistrate’s approach to her assessment of the evidence. The fact that we have not addressed them all is not to suggest that we share his Honour’s concerns.
Change in departmental policy
Next it is necessary to explain something of the departmental policy concerning the management of koalas. The policies of the Department provide the context in which the email was sent and against which it must be read. However, the imputations found by the Magistrate concern Mr Underwood’s character and travel beyond a commentary on the Department’s policy.
In 2010, the Department changed its policy in relation to the rescue and rehabilitation of injured, sick or displaced koalas. Before 2010, they were taken by members of the public and the Department’s officers to Cleland Wildlife Park at Crafers. At the time, the Department adopted a conservative position to the granting of permits to keep koalas in captivity. In the late 1990s and from early 2000, there was an exponential growth in koala numbers. From that time too, the Department’s budget was significantly reduced. In about 2009, it became apparent that the Department did not have the capacity to care for injured, sick or displaced koalas. In response, the Department made a deliberate decision to build the community’s capacity to deal with koalas. Mr Underwood was involved in the development of the Department’s new policy called the “Koala Intervention Policy”. The policy was approved in October 2010 and, in June 2011, the Department’s regional staff withdrew their services for the rescue of injured, sick or displaced koalas.

On the appeal, counsel for Mr Machado submitted that the Magistrate erred in finding that Mr Machado could not rely on the statutory and common law defence of qualified privilege and section 5(1) of the Whistleblowers Protection Act. It was further submitted that the Magistrate erred by dismissing the third party claim. There was no appeal against the Magistrate’s conclusion that Mr Machado could not rely on the defence of honest opinion.
Qualified Privilege
Section 28 of the Defamation Act 2005 (SA) relevantly provides:
Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a)     the recipient has an interest or apparent interest in having information on some subject; and
(b)     the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)     the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a)     the extent to which the matter published is of public interest; and
(b)     the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c)     the seriousness of any defamatory imputation carried by the matter published; and
(d)     the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e)     whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)      the nature of the business environment in which the defendant operates; and
(g)     the sources of the information in the matter published and the integrity of those sources; and
(h)     whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i)      any other steps taken to verify the information in the matter published; and
(j)      any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
In Roberts v Bass, Gaudron, McHugh and Gummow JJ considered the common law defence of qualified privilege and said:[77]
The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified - hence the name qualified privilege - by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.
[Footnotes omitted.]
[77] Roberts v Bass (2002) 212 CLR 1, [62].
In Bellino v Australian Broadcasting Corporation, Dawson, McHugh and Gummow JJ considered the scope of the defence of qualified privilege and said:[78]
It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters not relevant, qualified privilege only attaches to that part which is relevant to the occasion. Moreover, the inclusion of the irrelevant part in the communication affords evidence of malice and can destroy the privilege attaching to the relevant part...
[78] Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, 228.
The Magistrate found that the email was sent on an occasion of qualified privilege:
In my view, the email was published on an occasion of qualified privilege. The email clearly related to a matter of public interest, namely the failure of an officer to enforce the statutory requirement that a person caring for a koala must first be granted a permit before assuming its care. It was a matter of considerable concern to the first defendant. It was appropriate that the email be addressed to the Minister. Reciprocity of interest is present. The alleged breaches were of s 53(1)(d) and s 58 of the National Parks and Wildlife Act (supra) and the administration of this Act was the Minister’s responsibility. The defendants are therefore entitled to rely on the common law defence of qualified privilege.
The Magistrate concluded that Mr Machado’s conduct was not reasonable in the circumstances and, as a consequence, he could not rely on the statutory defence of qualified privilege:
In my view, the defendants are not entitled to rely on the statutory defence as I do not consider the conduct of the first defendant could be considered to be ‘reasonable in the circumstances’. At the time of publication of the email he had been informed by the plaintiff that Banjo had been checked by a vet and was found to be in good health and that Rae Campbell had also sighted Banjo and confirmed that view. He was also aware of the interim position adopted by the Department following the introduction of the Koala Intervention Policy, namely that no action would be taken against persons caring for koalas without a permit, if they were in the process of gathering the necessary information to make application for a permit. The defendant had informed him of this interim position in the course of their telephone conversations, and, following my factual findings, he was in fact already aware of this from his attendance at the July workshop. The plaintiff had informed him that he had no concerns with Anne Bigham caring for Banjo. The first defendant was aware she had significant experience in dealing with koalas and she clearly met the requirements of the Department’s interim position, as she was in the process of gathering the necessary information to apply for a permit.
Furthermore, the first defendant made no effort to verify the information provided to him by the plaintiff by contacting Anne Bigham or anyone else. It was not open to the first defendant to rely on the fact that he had forwarded a draft of his email to Sonya Nicholls on 19 December 2011 (Exhibit D1) as she had no involvement in the discussions between him, the plaintiff, and Anne Bigham and could not possibly check the accuracy of the information contained in the email. The only information she had was provided by the first defendant. There was no evidence to suggest she had any independent knowledge concerning Banjo’s health. The only information she provided to the first defendant was the fact that Anne Bigham did not hold a permit and he was already aware of this fact from his conversation with her at Torrens Island.
Accordingly, I find that it is not open to the defendants to rely on the statutory defence of qualified privilege.
The Magistrate made a finding that Mr Machado was actuated by malice and, as a consequence, could not rely on the common law defence of qualified privilege:
I agree with the submission of counsel for the plaintiff that the first defendant had no basis in fact for making any of the defamatory statements and conveying the defamatory imputations complained of.
He had been informed by the plaintiff that there were no concerns with respect to the health of Banjo and of the fact that he had undergone a vet check and had been sighted by Rae Campbell. He was also aware of the interim position adopted by the Department following the implementation of the Koala Intervention Policy, both from his conversation with the plaintiff and from his attendance at the workshop in July 2011. He was also aware that Anne Bigham clearly satisfied the requirements of the Department’s interim position, as the plaintiff had informed him that she was in the process of gathering the necessary information to make application for a permit.
Having been informed of these matters by the plaintiff, the first defendant took no steps in the period between his conversations with Anne Bigham and the plaintiff on 27, 28 and 29 November 2011 and sending the email on 21 December 2011, to verify any of the facts he was relying on. Had he contacted Anne Bigham she would have informed him that the information contained in the email concerning Banjo’s health was false.
As I have previously stated, the first defendant cannot maintain that he was seeking verification from Sonya Nicholls by forwarding his proposed email in draft to her on 19 December 2011 (Exhibit D1)’. I agree with the submission of counsel for the plaintiff that the first defendant’s evidence that her subsequent statement on the telephone to him that it was ‘perfect’ could only have been understood to mean that she did not think anything needed to be added. As already stated, in any event, she had no knowledge of his conversations with Ms Bigham or the plaintiff, and she did not give any indication that she had any independent knowledge of the health and circumstances of Banjo. There is no evidence that she had any knowledge of the situation other than that provided to her by the first defendant. The only information she passed to the first defendant was that Anne Bigham did not hold a permit, a fact he was already aware of.
...
It could not be said that the first defendant had an honest belief in the truth of the matters published. In fact, on the basis of my factual findings he was aware of the falsity of the material published. I find that the plaintiff has proved that the first defendant was motivated by malice, and, accordingly, it is not open to the defendants to rely on the common law defence of qualified privilege.
The Magistrate then noted that her finding of malice provided an alternative basis for her conclusion that Mr Machado could not rely on the statutory defence of qualified privilege.
On the appeal, counsel for Mr Machado submitted that the dominant motive for sending the email was Mr Machado’s concern that the National Parks and Wildlife Act was not being enforced. It was argued that the references to Banjo were simply one of a number of examples included in the email to illustrate the failure to enforce the Act. It was pointed out that reference to Banjo only appeared in two of the 15 paragraphs. It was further submitted that the Magistrate had regard to irrelevant matters when assessing reasonableness. Counsel for Mr Underwood submitted that the Magistrate’s findings supported her conclusion that Mr Machado knowingly made a false statement.
It is to be recalled that, in finding that Mr Machado’s conduct could not be considered reasonable in all the circumstances and that Mr Machado was actuated by malice, the Magistrate proceeded on the earlier referred to incorrect understanding of fact and an erroneous assessment of critically important evidence.
In my view, the Magistrate erred in finding that Mr Machado’s conduct was not reasonable in all the circumstances. Mr Machado had a long-standing interest in animal welfare and had devoted much of his life to the care and protection of animals. He reported his concerns about Banjo’s welfare and that koalas were being cared for by individuals who did not hold a permit to the Department. Following his initial enquiry, the Department neither changed its policy nor independently verified that Banjo was in good health. By failing to contact the Bighams and inspect their facilities, the Department had failed to enforce its own interim policy. There was no suggestion that, but for Mr Machado’s complaint, the Department would ever have contacted the Bighams about Banjo, notwithstanding that – weeks before Mr Machado became involved – it had been informed by Ms Campbell that Banjo was being cared for by the Bighams, who did not hold a permit and, as discussed earlier by Mrs Bigham’s own admission, only commenced gathering information to prepare an application after Banjo came into their care. This was a matter of public interest which directly concerned the performance of a public servant and the Department more generally.
The Department’s undocumented policy change to refrain from enforcing the Act in certain circumstances was a policy which conflicted with the express terms of the Act and the express terms of the Department’s own written policy. The fact Mr Machado had been told that individuals within the Department considered it to be a beneficial or justifiable policy does not make it unreasonable for him to criticise that policy – people may be expected to have differing views on appropriate policy responses to animal welfare issues. It was not unreasonable for Mr Machado to doubt the veracity of information given to him by Mr Underwood concerning Banjo’s welfare when the source of that information was not independent. To the contrary, the information was third hand, with two individuals in the chain of communication to the Department being individuals who were in breach of the National Parks and Wildlife Act and who would have been prejudiced by a finding that they had failed to take proper care of Banjo. Against this background, when Mr Machado correctly understood Mr Underwood to be complicit in breaches of the Act, it was entirely reasonable for him to request that his concerns about the Department’s attitude to enforcing the Act be formally investigated by the Department. It was not for Mr Machado to conduct his own investigation. The enforcement of the Act, the safeguarding of the welfare of koalas and the behaviour of Departmental staff were matters for the Department.
Mr Machado in his email expressly requested that the Minister investigate these matters. The Minister was an appropriate recipient of this request as he was ultimately responsible for the policy and conduct of the Department and could be expected to arrange for the matter to be investigated in an appropriate manner. This was not a public broadcast; this was a discrete, confidential request to the appropriate Minister to investigate matters of concern. It would be expected that the Minister and his delegate would approach the investigation with an open mind and be sensitive in their handling of the matter.
The foregoing analysis is sufficient to determine that the Magistrate erred in her reasoning with respect to the statutory defence of qualified privilege, however, having regard to the earlier discussed errors in the Magistrate’s findings of fact, I am unable to determine whether Mr Machado was told anything about Banjo’s health by Mrs Bigham and, as a consequence, unable to make a positive finding that his conduct was reasonable in all the circumstances. Accordingly, a rehearing would be required to determine this issue.
In Roberts v Bass, Gaudron, McHugh and Gummow JJ summarised the principles concerning malice in the following terms:[79]
Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication.
...
In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is ‘‘almost conclusive evidence’’ of improper motive, except where the defendant is under a legal duty to publish the defamation.
[Footnotes omitted.]
[79] Roberts v Bass (2002) 212 CLR 1, [76], [83].
The matters considered above in relation to reasonableness were also considered relevant by the Magistrate to a finding of malice and, for the reasons expressed above, do not support a finding of malice. The Magistrate when making a finding of malice also had regard to her findings that the defendant did not have an honest belief of the truth of the matters contained in his email and, further, knew that they were false. The Magistrate did not identify an improper motive or purpose for making the statements. As a consequence, the Magistrate’s finding of malice could only be maintained on the basis that the plaintiff knew his statements to be false.[80]
[80] Roberts v Bass (2002) 212 CLR 1, [87].
In Roberts v Bass, Gaudron, McHugh and Gummow JJ considered the evidentiary burden on a plaintiff to establish dishonesty on the part of a defendant and said:[81]
Because honesty is presumed, the plaintiff has the onus of acted dishonestly by not using the occasion for its proper purpose. Unless that is kept in mind, there is a danger that reference to the honesty of a defendant will reverse the onus of proof. If the tribunal of fact rejects the defendant’s evidence that he or she positively believed in the truth of what he or she published, it does not logically follow that the plaintiff has proved that the defendant did not believe in the truth of the publication or had an improper motive. Rejection of the defendant’s evidence, combined with other evidence, may lead to the conclusion that the defendant had no belief in the truth of the publication or knew that it was false. But mere rejection of the defendant’s evidence does not logically and automatically lead to any conclusion as to what his or her state of mind was. “[B]y destroying that evidence you do not prove its opposite”.
When the plaintiff proves that the defendant knew the defamatory matter was false or was reckless to the point of wilful blindness, it will constitute almost conclusive proof that the publication was actuated by malice. A deliberate defamatory falsehood ‘‘could not have been for a purpose warranted by any privilege; and hence it is unnecessary to determine what the exact purpose was in order to ascertain whether the privilege has been lost for the particular defamatory statement which has been proved to be wilfully false’’. When the plaintiff can only prove that the defendant lacked a belief in the truth of the defamatory material, however, it will be no more than evidence that may give rise with other evidence to an inference that the publication was actuated by malice.
In some cases, proof of lack of belief will not even be evidence from which an inference of malice can be drawn. Thus, the circumstances of the case may be such that the defendant is entitled to communicate defamatory matter even though he or she has no belief in its truth. In Clark, Bramwell LJ said “a person may honestly make on a particular occasion a defamatory statement without believing it to be true; because the statement may be of such a character that on that occasion it may be proper to communicate it to a particular person who ought to be informed of it”. This passage was approved by Lindley LJ in Stuart v Bell where the Court of Appeal held that the defendant had a social or moral, but not legal, duty to report to the plaintiff’s employer that the plaintiff was suspected of stealing.
[Emphasis added.]
[81] Roberts v Bass (2002) 212 CLR 1, [97]-[99].

The Magistrate’s reasons disclose that she fell into error by treating her factual findings made on the balance of probabilities and her rejection of Mr Machado’s evidence as sufficient to found a conclusion that he knew his statements were false. It is to be recalled that the defamatory statements about Mr Underwood were made to illustrate what Mr Machado described as broader problems with the Department and its policy concerning the enforcement of the National Parks and Wildlife Act. Mr Machado had previously raised his criticisms of Banjo’s treatment with Mr Underwood and the Department. The Department’s response consisted of asking Mrs Bigham via Ms Campbell – who had given Banjo to Mrs Bigham in contravention of the Act – whether Banjo was healthy. No independent investigation of Mr Machado’s concerns was undertaken. No steps to enforce the Act or the Department’s written policy were taken. The Department, when contacted by Mr Machado, was not implementing its interim policy in relation to the Bighams. No review of the Department’s policy was undertaken until after Mr Machado sent the email.
It is to be recalled that a number of factual propositions either contained in, or providing a basis for, Mr Machado’s email were accepted by the Magistrate and counsel for Mr Underwood as being true: Mrs Bigham had admitted to Mr Machado that she had not taken Banjo to the vet or had blood tests taken; Banjo was only taken to a vet after concerns about his health had been raised by Mr Machado; the Department had a policy of not enforcing section 58 of the National Parks and Wildlife Act and, as a consequence, individuals who did not hold a permit were caring for koalas; concerns had previously been raised with the Department in relation to the care of koalas; the basis for the Department’s policy was budget cuts and a lack of alternative options; the Department’s preferred position was that all carers would hold permits – a view shared by Mr Machado; and Mr Underwood was implementing, and supported, the Department’s policy.
Against this background, the Magistrate’s findings on the evidence and Mr Machado’s demeanour, even if arrived at following a correct assessment of the evidence and witnesses, do not without more support a conclusion that Mr Machado knew what he wrote in the email to be false or that he had an absence of a genuine belief in the truth of the defamatory statement. A finding of malice was not open on the evidence. The finding of malice was the only basis on which the Magistrate dismissed Mr Machado’s common law defence of qualified privilege. As a consequence, having set aside the Magistrate’s finding of malice, Mr Machado’s common law defence of qualified privilege should succeed.
The Whistleblowers Protection Act 1993 (SA)
Section 5 of the Whistleblowers Protection Act addresses immunity from civil liability arising out of a disclosure of information and provides:
Immunity for appropriate disclosures of public interest information
(1) A person who makes an appropriate disclosure of public interest information incurs no civil or criminal liability by doing so.
(2) A person makes an appropriate disclosure of public interest information for the purposes of this Act if, and only if—
(a)     the person—
(i)     believes on reasonable grounds that the information is true; or
(ii) is not in a position to form a belief on reasonable grounds about the truth of the information but believes on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated; and
(b)     the disclosure is made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure.
(3) A disclosure is taken to have been made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure if it is made to an appropriate authority (but this is not intended to suggest that an appropriate authority is the only person to whom a disclosure of public interest information may be reasonably and appropriately made).
(4) For the purposes of subsection (3), a disclosure of public interest information is made to an appropriate authority if it is made to a Minister of the Crown ...
Public interest information is defined in section 4(1):
public interest information means information that tends to show—
(a) that an adult person (whether or not a public officer), body corporate or government agency is or has been involved (either before or after the commencement of this Act)—
(i)      in an illegal activity; or
(ii)      in an irregular and unauthorised use of public money; or
(iii)     in substantial mismanagement of public resources; or
(iv)    in conduct that causes a substantial risk to public health or safety, or to the environment; or
(b) that a public officer is guilty of maladministration in or in relation to the performance (either before or after the commencement of this Act) of official functions;
Section 7 of the Whistleblowers Protection Act addresses confidentiality and provides:
Identity of informant to be kept confidential
(1) A person to whom another makes an appropriate disclosure of public interest information must not, without the consent of that person, divulge the identity of that other person except so far as may be necessary to ensure that the matters to which the information relates are properly investigated.
(2) The obligation to maintain confidentiality imposed by this section applies despite any other statutory provision, or a common law rule, to the contrary.
In Morgan v WorkCover Corporation,[82] Blue J, writing for the Court, set out three matters which a court must determine when considering whether a communication satisfies section 5(2): what matters capable of comprising public interest information were conveyed by the letter; whether each matter capable of conveying public interest information falls within the definition of public interest information in section 4(1) of the Act; and whether the disclosure was appropriate. Blue J went on to explain that each individual matter capable of comprising public interest information was to be considered separately.[83]
[82] Morgan v WorkCover Corporation (2013) 118 SASR 297, [71].
[83] Morgan v WorkCover Corporation (2013) 118 SASR 297, 315.
It is unnecessary to consider Mr Machado’s defence or third party claim under the Whistleblowers Protection Act as I have concluded that he may rely on the defence of qualified privilege. It is to be noted that the onus in section 5(2)(a) of the Act is on Mr Machado. To determine whether Mr Machado has discharged this onus, correct findings concerning what Mr Machado was told by Mrs Bigham and a resolution of the inconsistencies in the evidence concerning Banjo’s health would be required. Were it necessary to determine this issue, the matter would need to be remitted for rehearing.
Damages
If I am wrong on the question of liability, it falls to consider the appeal against the award of damages. The Magistrate made an award of damages in favour of the plaintiff of $55,000.00, including aggravated damages. The Magistrate in making this award considered that the imputations were “devastating ... to a person with an established reputation as a respected senior wildlife officer in the Department with extensive experience in the field of koala husbandry.” The Magistrate accepted that the email was only published to the Minister and was circulated in accordance with the “usual practice in the Minister’s office”, presumably to the nine individuals who received the email according to records maintained by the Department. The Magistrate also accepted a submission from counsel for Mr Underwood that the information would have been passed “up and down the chain of command and, in all likelihood, it has been seen by a number of people in the Minister’s office, the Chief Executive Officer’s office and the office of Mr Shutz.”
Mr Underwood could not establish any pecuniary loss or damage to his reputation. The Magistrate relied on the presumption that damage to reputation is presumed to flow from publication of defamatory material.[84]
[84] See Readers Digest Services v Lamb (1982) 150 CLR 500.
The Magistrate accepted Mr Underwood’s evidence that he was “very hurt, devastated and appalled” by the email, considered his reputation would be “completely destroyed”, felt that his position and integrity were “under a cloud” and that each accusation had a “huge impact on his standing in the Department”, including up to the time of trial. His hurt was apparently compounded by Mr Machado’s refusal to apologise.
The Magistrate was critical of Mr Machado’s refusal to apologise, his evidence that he laughed when received a letter from Mr Underwood seeking an apology and his maintaining of the view that his email was true and accurate despite the “complete absence of any objective evidence” to support his position. The Magistrate considered that these matters, combined with a finding of express malice, were sufficient to warrant an award of aggravated damages.
In arriving at the figure of $55,000.00, the Magistrate said:
Having considered the serious nature of the defamatory imputations, the extent of the publication of the email, the fact that it was sent to the Minister and a number of people in his office, to the Chief Executive of the Department and a number of other people occupying executive or management positions in the Department and the fact that an investigation was subsequently conducted into the conduct of the plaintiff, I have determined to assess damages, including aggravated damages, in the sum of $55,000.
On the appeal, counsel for Mr Machado submitted that the award of $55,000.00 damages was excessive and manifestly so. It was submitted that the Magistrate erred in finding that the natural and probable consequence of sending the email was that it would be published “up and down the chain of command”. It was submitted that when regard is had to the natural and probable publishees it was unlikely that they would have thought worse of Mr Underwood upon reading the email. Counsel for Mr Underwood submitted that the award was appropriate having regard to the findings of the Magistrate, the seriousness of the imputations, the breadth of publication, the nature of the audience and Mr Underwood’s evidence concerning his hurt and the impact on his reputation and employment.
Section 32 of the Defamation Act provides:
Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Section 34 provides:
State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
In Uren v John Fairfax & Sons Pty Ltd, Windeyer J expressed the function of compensatory damages in defamation as follows: [85]
... A man’s reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. ...
These remarks were adopted by Toohey J, writing for the majority in Coyne v Citizen Finance Ltd.[86] In the same case, Mason CJ and Deane J summarised the law concerning an award of damages in defamation proceedings in the following terms:[87]
In a case where there is no question of punitive or exemplary damages or of the inflation of damages to the minimum amount necessary for purposes of vindication, defamation damages are confined to what can fairly be regarded as compensation for injury sustained. As Diplock L.J. pointed out in McCarey v Associated Newspapers Ltd. [No. 2], the injury sustained by the defamed person may be “classified under two heads: (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself”. The injury sustained by the plaintiff may, in some circumstances, be aggravated by subsequent conduct: see Triggell. Such aggravation does not, however, alter the compensatory character of the damages which may properly be awarded in such a case. Some injury to reputation — as distinct from specific pecuniary loss — is presumed to flow from the publication of the defamatory material. The extent of that presumed injury to reputation, if it is not rebutted, will depend on the circumstances of the case. If specific pecuniary loss (or other special damage) is alleged, it should be specifically claimed. Any such specific pecuniary loss must be affirmatively proved by a plaintiff in the ordinary way, that is to say, on the balance of probabilities.
[Footnotes omitted.]
[85] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 150.
[86] Coyne v Citizen Finance Ltd (1991) 172 CLR 211.
[87] Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 216.
In my view, the Magistrate erred in her assessment of damages. When considered in its entirety, Mr Machado’s email and subsequent conduct does not warrant an award of aggravated damages. As discussed earlier in these reasons, the Magistrate erred in making a finding of malice on the part of Mr Machado and finding that his conduct was in all the circumstances unreasonable. Having set aside those findings, Mr Machado’s subsequent conduct in maintaining his position may be seen in a new light – it was not so unreasonable so as to warrant aggravated damages. The primary concern of the email was that the Department was not enforcing the National Parks and Wildlife Act. The email makes it plain that Mr Machado was concerned that a statutory scheme which had been established to protect koalas by ensuring that only those who had been deemed suitable to hold a permit were allowed to care for koalas was not being adhered to. He was concerned that the Department was not taking any steps to address the situation and had in fact adopted a policy which facilitated breaches of the Act. He was further concerned that when breaches which were putting koalas at risk were brought to the Department’s attention, the Department – and Mr Underwood – were not undertaking thorough investigations. As discussed earlier in these reasons, Mr Machado’s concerns were well-founded. It is to be recalled that most of what was contained in the email was factually accurate and that the defamatory comments concerning Mr Underwood and his conduct were a minor aspect of the email and used to illustrate the Department’s poor management of koala husbandry. The Magistrate’s erroneous factual findings provided the basis for her being highly critical of the position taken by Mr Machado at trial, in particular when giving evidence. The Magistrate’s rejection of the evidence of Mr Machado and her preference of other evidence does not, without more, establish a lack of bona fides or improper conduct.
Publication was to a single person. The Minister could be expected to handle the matter appropriately. It may be understood that others within the Department may see the email, however, it would be expected that the email would only be disclosed to those who were required to see it for the purpose of their investigation. Those individuals would be expected to approach the investigation with an open mind and in a mature and sensible fashion. It is to be noted that internal departmental email correspondence before the Court expressed the need to address Mr Machado’s complaint in accordance with the usual procedure and to give Mr Underwood an opportunity to respond. Mr Underwood, as part of the investigation, was provided with the opportunity to submit a full written response to Mr Machado’s complaint. The individuals with the responsibility of responding to the complaint would not be expected to gossip or unnecessarily disseminate the email. The email did not request, nor require, widespread dissemination, which in any event was not proven to have occurred. Widespread publication and discussion of the email was not a natural and probable consequence of it having been sent to the Minister.
In the circumstances, there was no evidence that Mr Underwood’s reputation was impacted or his employment prospects diminished by the email. The criticisms of Mr Underwood were purely based on his conduct and those matters were resolved in Mr Underwood’s favour by the Department’s investigation. Mr Underwood’s assumption and fear that his standing would be diminished did not take his claim any further than the common law presumption that a person’s reputation will be diminished by the publication of defamatory material, except insofar as it may have increased his injured feelings. In the present case, the presumption of reputational damage was in part rebutted by the evidence. The criticisms of Mr Underwood concerning the enforcement of the National Parks and Wildlife Act would not have caused any harm to Mr Underwood as readers of the email would be expected to understand the Department’s policy. The criticisms of the way Mr Underwood engaged with Mr Machado related to an isolated incident. Mr Machado was known to the Department to be a vocal and strident critic of a number of its policies. It is telling that the investigation of Mr Underwood related only to his handling of Mr Machado in what was an isolated incident and was quickly dismissed. It may be accepted that an individual would be concerned at being subjected to investigation and hurt by having their performance questioned. However, in the present proceeding, any potential reputational damage was quickly neutralised and no adverse consequences have flowed – Mr Underwood did not have to endure a lengthy period of uncertainty surrounding his standing within the Department. If Mr Machado is liable for defamation, Mr Underwood would be entitled to an award of damages which reflects vindication.
In my view, this matter falls in the lower range of seriousness. If Mr Machado was found to be liable for defamation, I would award damages in the amount of $5,000.00.
Conclusion
I would allow the appeal, set aside the orders made by the Magistrate and enter judgment for the defendant against the plaintiff. In this circumstance I would order that the third party claim be dismissed. I would hear the parties as to costs.