McFarlane v Turner No. Scgrg-97-1273 Judgment No. S6412

[1997] SASC 6412

MACFARLANE v TURNER

Magistrates Appeal

Millhouse J

The appellant is the editor of the South Australian Institute of Teachers Journal.  The respondent sued him for defamation over an article which appeared in the Journal in October 1994.  The respondent won: the appellant was ordered to pay $10,000 damages.

The respondent is and has been for several years the Principal of the Salisbury High School.  He had been active in the affairs of the Institute of Teachers, culminating in his standing, in 1991, for election as President.  He was not successful and thereafter withdrew from Institute affairs.  He remained a member until some time in 1995.  When in 1994 the Government stopped deducting membership dues from salaries, he made no alternative arrangements to pay his dues.  The Institute kept him on the books as a member but eventually his name ceased to be on the membership list.

The Adelaide Review is a well known monthly, I think, publication in this City.  Its distribution is free.  I see most editions and am familiar with the kind of articles which appear.  Most are on serious topics.  The paper has interesting advertisements.  I must admit that I find the articles rather long and sententious.  My attention wanders - I have a short attention span.  I seldom manage to read any article through to the end.  The description "high-brow" has been used of The Adelaide Review in these proceedings and I could not disagree with it.

Although many of the articles are signed, others are written under a pseudonym - and that is the genesis of this action.

Between 1992 and 1994 articles appeared in the Review under the pseudonym of "Lasch".  "Brendon Lasch" was the first name but the series relevant for us was purported to be written by "Susan Lasch".   It has been assumed that a number of people wrote using the pseudonym of "Lasch" but the series to which I have referred, between August 1993 and October 1994, were probably written by the same person.  The general subject of the articles by "Susan Lasch" was South Australian education.  The writer, amongst other things, expressed from time to time criticism of the South Australian Institute of Teachers: he or she was critical of other things as well.  The identity of "Susan Lasch" has remained a secret.

The appellant, a teacher until the editor's position, wrote in the SAIT Journal quite critically of "Susan Lasch".  He used the name "Whiplasch" but at the end of the piece disclosed his identity.  I venture to set out the impugned article:-

"ANONYMOUS HEROES  Whiplasch

`There has long been a critical view that editorials should not be cloaked in anonymity but like other opinion pieces in modern newspapers should be signed by the author.'  

David Bowman
The Adelaide Review, September 1994

David Bowman is a highly respected commentator on the media.  It is therefore ironic that the above was published in a newspaper that shrouds many of its opinion pieces in anonymity.  The Lasch family seems to grow with every issue although the progenitor Brendan (who at least had a lively style) must be disappointed with the dullness of his offspring.

Let me make it clear that I am not totally opposed to anonymity.  Daniel Defoe, way back in 1702, learnt the benefits of anonymity after his third written work led to him being fined, imprisoned and pilloried.  There are times when a source or writer needs to remain anonymous for their own or others' protection.  Adelaide in the eighties and nineties, however, is a long way from eighteenth century England or even twentieth century Russia where remarkably, despite the punishments that would rain down on them, there were numerous writers who dissented openly.  Or maybe we do have a secret police force that's so secret that nobody knows about it, except for writers who are woken by the sound of sledgehammers at the door.  So that's what happened to Brendan, they discovered his real name.

My point is that the need for anonymity should be balanced by the importance of the story.  For all the protection provided to Adelaide Review writers there have been remarkably few startling revelations to emerge from under their disguises.    Yet the current crop of Lasches treat material readily available to any writer as if they were dark secrets stolen from a government minister's filing cabinet.

What the Lasch stable does do, sometimes interestingly, sometimes tediously, is make criticisms of our parochial State.  Surely we have enough writers and would be writers in Adelaide to put their names to such criticisms?   Because there is a down side to anonymity.

Despite what post-modernists say, the text isn't everything.  (How erudite is that?! - Ed.)  Who a writer is and where he/she comes from is important when they are handing out bouquets and brickbats.   The reader needs to know where the arrows are coming from.  Criticism of a government minister from a colleague is seen in a different light to criticism from the opposition.

Which brings me to Susan Lasch.  She is obviously male and a principal (which explains why she would think a lengthy dissertation on the staffing formula would be worth publishing).  But what if she is also an ex-SAIT member and failed Presidential candidate?   Her constant criticism of SAIT would take on a different complexion.

But my purpose is not to unmask Susan but to question the ethics of her sniping.  Let's look at some of the sweeping statements she makes.

`The last thing the majority of principals want is any sort of political alignment with SAIT' - are we seriously going to reach the point where the principals have an anonymous spokesperson rather than the elected spokespeople of their representative bodies that are affiliated with SAIT?

`Specifically, as a matter of urgency the Minister needs to provide principals with increased powers in the areas of staffing, personnel management and student discipline.' - this statement could come straight from a Liberal Party policy speech.  What if Susan Lasch is a Liberal Party member - would this statement be taken seriously if this was known?

`(The teaching profession) on the one hand feels itself the victim of government neglect and attack and on the other the puppet of a union that persists in doomed industrial tactics.' - will all you puppets please stand up and march to Minister Lucas' office now!  This statement is obviously tarnished if it comes from an employer background.

Take off the veil, Susan.  We'll still let you criticise us. We're human.  We make mistakes.  But if you come out at least we'll be able to throw a few unsupported criticisms your way.

I can't go on.  I've tried to meander along making leisurely point after casual divergence in the best Adelaide Review style but it doesn't work for me.  Maybe it's because I don't happen to think that the sacking of the Writers Week board is the biggest tragedy to hit Adelaide this year.  Or could it be because I don't spend enough time at Café Laxette on Rundle Street juggling glasses of hot coffee and talking about aromatherapy and the death of the left?   I can say that because I'm anonymous.  I (and other anonymous writers) should be used sparingly and with good reason.

Editor's Note:  I feel it is my duty to inform you that WhipLasch is really Andrew Macfarlane and he does have an axe to grind.  No-one has ever considered him yuppy, trendy or even slightly with-it.  This has had severe psychological effect on him which he takes out on pretentious publications."

The respondent complained that the article identified him as being "Susan Lasch". He denied that he had written under the name "Susan Lasch".  The appellant has not asserted otherwise.  The respondent complained that he had been defamed by the article.  Tardily he took proceedings.

The appellant denied that the article was defamatory of anyone or that the respondent was identified as "Susan Lasch".   He also pleaded in defence fair comment and qualified privilege.  In his Amended Defence he gave particulars of the facts on which his comment was based:-

"9.1   David Bowman published the first sentence of the article in the Adelaide Review of September 1994

9.2     David Bowman is a highly respected commentator on the media.

9.3     A person or persons write anonymously in the Adelaide Review under the pseudonym of "Lasch".

9.4     Such person or persons, so writing, makes criticisms of South Australia.

9.4A  Such person or persons so writing, makes constant criticism of SAIT.

9.5     Such person or person (sic) has written in the Adelaide review (sic) and expressed the following:

9.5.1          "The last thing the majority of principals want
 is any sort of political alignment with SAIT".

9.5.2          "Specifically, as a matter of urgency the
Minister needs to provide principals with increased powers in the areas of staffing, personnel management and student discipline."

9.5.3  "(The teaching profession) on the one hand feels itself the victim of government neglect and attack and on the other the puppet of a union that persists in doomed industrial tactics."

9.6             The author of the article is the editor of the Journal,
Andrew Macfarlane i.e. the defendant."

Those facts were proved.

The learned special magistrate found that the article was defamatory, that the respondent was identified in it, that the defences of fair comment and qualified privilege failed and that in any case the appellant had acted so recklessly that it amounted to malice and this malice would have defeated the pleas of fair comment and qualified privilege if otherwise sustained.  He assessed damages at $15,000 but reduced them to $10,000 because of the tardiness of the respondent and his failure to take up the appellant's offer to publish an apology.

The respondent has cross-appealed on the question of damages and also on the award of some costs against him over the appellant's  attempt to have issued a subpoena to Mr Christopher Pearson, the editor of the Adelaide Review, relating to the identify of "Susan Lasch".  The learned magistrate refused the issue of the subpoena but because the attempt to have it issued arose out of the attitude of the respondent's then counsel, he ordered that the respondent pay half the costs of the attempt.

This is a chronology of events:

26 October 1994  Article "Anonymous Heroes" published in the
  SAIT Journal.

8 December 1994 Letter giving notice that action was to be taken
from respondent's then solicitors to the appellant.

13 December 1994       reply from the defendant.

14 August 1995            Letter from the respondent's solicitors seeking   an apology in retraction and damages.

18 August 1995            Reply offering to publish apology in terms
  enclosed.

22 August 1995            Respondent's solicitors acknowledging receipt
  of the letter.

28 August 1995            Further letter from appellant's solicitors
  confirming a conversation to the effect that the   respondent did not want an apology in the
  terms suggested.

29 March 1996             Summons issued for  $31,291.00.

As I understand it, I should accept the magistrate's findings of fact unless impugned (which they are not) but myself draw inferences and come to my own conclusion on the issues.

I  consider then first, whether the article be defamatory.  This is a matter of impression: the test is objective but what impression does the article give?   In my opinion it certainly is defamatory.  It is an attack on the author of the "Susan Lasch" articles for making criticisms, inter alia, of SAIT and doing so anonymously.  It paints the author as "deceitful dishonest and cowardly" (I adopt the learned magistrates' words ).  "Susan Lasch" whoever she was thereby has been held up to hatred ridicule or contempt.

Next, I consider whether the respondent was likely to be identified as "Susan Lasch" by people with whom he was acquainted. The appellant did not know who "Susan Lasch" was: he denied that when he wrote he meant to identify anybody, let alone the respondent. [Of course his intention is not relevant. That was settled by the House of Lords in E. Hulton & Co v Jones ([1910] AC 20).] Yet the appellant included six clues, three of which strongly and another of which less strongly pointed to the respondent. The clues were that "Susan Lasch" was:

male
                  a school principal
                  an ex SAIT member
                  a failed candidate for the presidency
                 a member of the Liberal Party  and
                  from an employer background (whatever that may mean).

Of those clues the three which applied without doubt to the respondent were that he is male, a school principal and a failed candidate for the presidency.  The most significant of these clues is failed candidate: that could fit only three or four people at the most.  As for his SAIT membership, he was in what I may call a twilight zone - at the time the article appeared - he was inactive in the organisation and allowing his membership to lapse by not paying his subscription.

The respondent has never been a member of the Liberal Party.  His political sympathies were not generally known apart from a suggestion from someone who gave evidence that he may have been a Labor Party supporter.  The phrase "from an employer background" is so vague as to be meaningless.

Isaacs J in Syme & Co v Canavan (1918) 25 CLR 234 @238 expressed the test of identification in this way:-

"The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?   That does not assume that those persons who read the words know all the circumstances or all the relevant facts.  But although the plaintiff is not named in words, he may, nevertheless be described so as to be recognised; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him."

Applying that test I have no doubt about it.  The clincher is the reference to "Susan Lasch" being a failed candidate for the presidency.  It is not to the point that the respondent does not fit every clue.  He fits quite enough of them to be identified.

I should mention that it is not necessary to prove actual identification by anyone.  The test is that there were people with sufficient knowledge who would reasonably identify him.   That some witnesses denied identifying the respondent as "Susan Lasch" does not matter.

Prima facie the respondent was defamed.
         What about the defences of fair comment and qualified privilege?  On each of these I think the appellant has a real problem, insuperable actually.  He denies that he had the respondent in mind when he scattered the clues about.  In fact the respondent was not "Susan Lasch".  None of the facts proved upon which the appellant was commenting has anything to do at all with the respondent, let alone could they lead to the conclusion that he was deceitful, dishonest or cowardly.  Fair comment is a defence to the making of the defamatory statement but first that statement must be proven to be accurate.  The defamatory statement was not proven to be accurate; to the contrary.  Therefore the defence must fail.

The appellant himself, according to the magistrate, asserted this in his evidence:-

"     `The reason was, that I, and other people concerned, that our members were taking, would have been fairly severe criticisms of the union, by right from that review, namely Susan Lasch, would take them on face value and not think about some of the implications of the fact that they were written by a pseudonym person'."

The magistrate commented:-

"     That, indeed, is the theme of the defendant's defence to these proceedings.  It is said that the article Anonymous Heroes was an article written by the defendant not knowing who Susan Lasch was and, for that matter, not caring.  The defendant denies that he wrote the article Anonymous Heroes with the plaintiff in mind.  In fact, he says he wrote the article not knowing who Susan Lasch was and not intending to suggest who she might be.  The theme of the article, the purpose of the writing of the article, was to draw attention to the fact that the author of the Adelaide review articles was writing under a pseudonym and that it was appropriate and important for those who read the Susan Lasch articles (in particular SAIT members) to take that into account and weigh it in their mind when assessing what weight, if any, they should give to the opinions which were being expressed in the Adelaide Review."

There can be fair comment only on facts proven.  All the facts on which comment was made were proved - except the crucial clues which point to the respondent and constitute the defamation of him.  To put it in another way, the   defamatory statement was not proved to be accurate.  There could be no fair comment because the facts on which the comment was made were not accurate.  The law regards the protection of the reputation of the citizen in these circumstances as being more important than freedom of speech.
As for qualified privilege I refer to the judgment of the Full Court in Rogers v Allen (154 LSJS 95) and especially to the reasons of Matheson J citing Lord Esher MR in Neville v Fine Arts and General Insurance Co Ltd ([1895] 2 QB 156 @ 170) and the judgments in Lee v Wilson and MacKinnon (51 CLR 276).

As with fair comment, so with qualified privilege.  Qualified privilege can apply only to facts proven, not to inaccuracies.  For the defence to have succeeded the appellant would have had to  shew a common interest in Journal readers knowing that the respondent was "Susan Lasch" and that he was "deceitful dishonest and cowardly".  The defendant could not shew that.

For the sake of completeness I consider malice.  Malice would have defeated the defences of  fair comment and qualified privilege, even if the appellant had been able to establish them.

A sufficiently high degree of recklessness will amount to malice.  The appellant asserted that he did not turn his mind to identifying anyone as "Susan Lasch".  [How he could say that I don't know when he wrote, "But my purpose is not to unmask Susan",  shewing that he had turned his mind to identification.]  He could have written just as effective an article I suggest by omitting the rest of the paragraph of which that sentence I have just quoted is the first.  [It is on page 3 of these Reasons.]  In that paragraph he gives the clues which identify the respondent as "Susan Lasch".  Accepting that the appellant did not mean to identify anyone, the clues he threw in in that paragraph were quite reckless.  So reckless as to be sufficiently malicious to defeat the defences even if I had thought them still open.

That is sufficient to dispose of the substance of the appeal.

I come to damages.  In a defamation action they are very much at large, in the discretion of the court.  For that reason I begin by being hesitant to interfere with the learned Magistrate's assessment.  I should say, though, that the respondent was entitled to more, much more, than the contemptuous damages which Mr Heywood-Smith for the appellant, submitted.

The respondent was most upset when he found out about the article.  I should think - apart from the imputations of deceitfulness, dishonesty and cowardice - his identification as a failed presidential candidate was something - I draw on my own experience - of which he does not like being reminded.  That justified a significant amount for damages.  In South Australia $15,000 is a significant amount.    I do not interfere with the assessment of $15,000.

On the other hand I think the learned Magistrate was quite justified in taking off $5,000 for the delay in proceedings and the refusal of the offer of apology, even to discuss alternative forms of apology.  A person who complains of defamation should get on with it.  The respondent did not get on with it.  A person defamed is out to protect his reputation and it should be done immediately: the sooner it is done the more effective the protection.  How much was the respondent's personal delay and how much was that of his solicitor's is not relevant.

As for an apology, the appellant offered quite promptly a form of apology.  That was proper but the respondent treated the offer cavalierly.

All this justified the magistrate in deducting the $5,000 from the damages assessed.

Finally I mention the order for payment of half Mr Christopher Pearson's costs.  He was the non-party whom the appellant tried to subpoena.  I have already said something of that.  Costs are very much in the Magistrate's discretion.  He decided on half and I do not propose to interfere.

The appeal and cross appeal are dismissed.