Moriarty & Wortley v Advertiser Newspapers Ltd No. DCCIV-96-865 Judgment No. D3843

[1998] SADC 3843

Daniel Moriarty and Russell Wortley v Advertiser Newspapers Ltd

Civil Jurisdiction

His Honour Judge Sulan

D3843

Introduction

The plaintiffs each seek damages for defamation.  The defendant is the publisher of a newspaper, the Adelaide Advertiser.  The action arose out of a publication by the defendant of an article in the Adelaide Advertiser on the 27th November 1995.  I shall refer to the defendant as the Advertiser Ltd and I shall refer to the Adelaide Advertiser newspaper as the Advertiser.  In order to understand the issues, it is necessary to relate events which commenced in the Legislative Council earlier in the year.

Background

On the 19th July 1995 the Honourable A.J. Redford, MLC, moved a motion in the Legislative Council in the following terms :

“1.That the Legislative Council calls on the Minister for Mines and Energy to enquire into and report on the affairs of SAGASCO Ltd and in particular :

(i)    the desirability and appropriateness of Daniel Joseph Moriarty remaining the Minister’s nominee as a Director on the Board of SAGASCO Ltd.

(ii)   any conflict of interest that Mr Moriarty may have had or has as a Director of SAGASCO Ltd and as the State Secretary of the Federated Gas Employees Industrial Union.

(iii) what effect any agreement between the Federated Gas Employees Industrial Union and SAGASCO Ltd (or any other related company) has on the supply of gas to consumers within South Australia and in particular -

(a) the arrangement whereby the Federated Gas Employees Industrial Union provides six backhoes and associated contractual services to SAGASCO Ltd at an annual cost of approximately $340,000. 

(b) the terms of the backhoe arrangement referred to above.

2. That the Legislative Council calls on Mr Moriarty to stand down as the Minister’s representative on the Board of SAGASCO Ltd pending any enquiry under section 9 of the Gas Act called for by the Minister.”

............. Mr Redford then launched into a stinging criticism of the first plaintiff, Daniel Moriarty (“Moriarty”) who was, at that time, Secretary of the Federated Gas Employees Industrial Union (“the Union”) and also a Director of the South Australian Gas Company.  I will refer to the Company as SAGASCO or the Gas Company.  He accused Moriarty of being involved in deeply disturbing practices involving the syphoning of funds from the Union and its members into the pockets of two union officials.  He said it was a story of a sad and sorry examination of the extraordinary perks and benefits that these two union officials receive as a consequence of their employment with that Union.  The two officials referred to were Moriarty and the second plaintiff Russell Wortley (“Wortley”). 

............. Mr Redford called upon the Minister for Mines and Energy pursuant to section 9 of the Gas Act to enquire into the serious questions.

............. Section 9(1) of the Gas Act provides :

“The Minister may appoint an investigator to enquire into, and report on -

(a)    the affairs of a licensed gas supplier; or

(b)    any matter affecting presently or prospectively -

(i) the supply of gas within the State; or

(ii) the price of gas to consumers within the State.”

................................ This has some importance because one of the issues that the plaintiffs raise is that the Advertiser report, the subject of this action, was not accurate, in that it referred to the Minister, Mr Dale Baker, announcing that “a full parliamentary enquiry would be held into the allegations”, when in fact, such an enquiry was never contemplated. 

................................ Mr Redford’s speech continued in alleging that the plaintiffs had acted in conflict of interest on every occasion when such conflict arose preferring their own interests to that of others.  He summarised the impropriety of Moriarty’s conduct and alleged that a contract between the Union and SAGASCO to supply six backhoes to SAGASCO for $340,000 per annum, evidenced Moriarty’s conflict as a Director of SAGASCO and State Secretary of the Union.  I pause to observe that the contract of which Mr Redford spoke was later defended by SAGASCO as being purely commercial.  Moriarty said in evidence that it was negotiated and entered into before he became the State Secretary and had been carried out and been good for the Union, and that it was no different from what other unions had done in the past.  In that respect, as with a number of other statements, Moriarty and Wortley considered the attack upon them was wrong and unjustified.  Moriarty said in evidence, that given the opportunity, he would have wished to correct those allegations. 

................................ Mr Redford spoke of a story of protection of self-interest and the union officials putting their own interests before that of their members.  He suggested that the contract of employment negotiated by Moriarty and Wortley with their union was extraordinary and would be the very envy of every union member.  He questioned the propriety of the relationship between the Gas Company and the Union and the extent to which the Gas Company was protecting the perks of the two union officials.  He particularised the salary package of Moriarty and estimated that, in June 1993, it was $93,000 per annum plus a further $11,000 per annum received in his role as a director of SAGASCO.  He quoted Wortley’s package as worth $74,000.  Mr Redford said that their packages were costing their members $310 each per annum.  He quoted from a memorandum which he said had been distributed to members and in which the two union officials were accused of rorts and corrupt practices in receiving excessively high salary packages. 

................................ Mr Redford analysed the balance sheet of the Union and concluded that it was insolvent.  He then posed the question :

“How does the Union manage to maintain these extraordinarily high salary and wage benefits to these fat cat union officials in the light of members union dues?”

He went on :

“The answer is simple.  It does so through the operation of a sweetheart deal between the Gas Company and the Union involving six backhoes.”

He quoted the backhoe operation as worth $341,171 in the year ended 30th June 1994 at a net profit of $121,709 to the Union.  He concluded the Union was making an annual return on its capital of nearly 400 per cent from the backhoe operation. 

The speech then gave details of a dispute between various unions and factions within the Union and suggested that a number of decisions of the Union were politically motivated and not in the best interests of the members.  Mr Redford concluded :

“I only mention this because it indicates the sort of things these union officials are prepared to do to enhance their rorts, their power and their perks.  They do so in the fact (sic) of any interest on the part of ordinary union members and, more importantly, they do so contrary to the interests of the Adelaide gas consuming public.” 

Mr Redford called for a proper and appropriate enquiry under the Gas Act to ensure that sweetheart arrangements of this nature are not contrary to the interests of South Australian gas consumers. He concluded :

“In the light of the fact that the Gas Company is a privately operated monopoly some very serious and important questions have been raised which must be investigated by the Minister.  I am sure that, if Mr Moriarty has a reasonable explanation, the Minister will avail him the opportunity to provide that explanation and assure the South Australian gas consuming public that they are not being ripped off by sweetheart agreements involving the Union and the Gas Company.

The Gas Company, on any commercial or moral basis, should not be involved in the rorts which Mr Moriarty, on the face of it, is receiving as a result of his involvement in this vital industry.  I commend the motion.”

I have attached the pages of Hansard, which contain the full text of Mr Redford’s speech, to this judgment.

The Advertiser Report of 20th July, 1995 and subsequent events

The following morning, on 20th July 1995 a report appeared in the Advertiser under the heading “Union Officials Accused of Deals”.  It was a report which commenced “Two union officials have been accused of enforcing ‘sweetheart deals’ with the Gas Company at public expense”.  It referred to Mr Redford’s speech and to his call for the Mines and Energy Minister, Mr Dale Baker, to hold a full enquiry into the allegations. 

The Advertiser report and Mr Redford’s speech were referred to in question time in the House of Assembly later that day.  The Minister, Mr Dale Baker, repeated Mr Redford’s references to the salary that Moriarty received and concluded :

“I will conduct an investigation and I hope to bring back some preliminary matters to do with that next week, before Parliament rises.  There is more and you will hear more about it next week.” 

Mr Baker’s decision to order an enquiry was reported in the Advertiser on the 21st July 1995.  It was reported that Mr Baker had said that he would conduct an investigation and he hoped to bring back some preliminary matters to do with that next week. 

Next week came and went, but nothing more was heard.  No representative of the Advertiser made contact with Moriarty or Wortley, other than an initial contact prior to the publication of the report on the 20th July when it was reported that Moriarty was unavailable for comment and Wortley described the allegations as a case of a Liberal politician abusing parliamentary privilege. 

David Matthew Penberthy (“Penberthy”) is a journalist employed by the Advertiser Limited as its chief political writer in Canberra.  From about June 1995 to July 1996 he was the industrial reporter based in Adelaide.  He read the report of the 20th July 1995.  That was the first occasion upon which he became aware of the Redford allegations.  He had heard some general allegations in his role as industrial reporter, but the details of Mr Redford’s allegations were not known to him prior to his reading the report and subsequently reading Hansard. 

November 1995

In the week commencing the 20th November 1995 Penberthy first spoke to Mr Redford at Parliament House.  It was Penberthy’s practice to keep a file of previous articles and to follow up on them from time to time.  He had noted in respect of the enquiry that nothing had occurred publicly since July 1995 so he had it in his mind to ask Mr Redford, at an opportune moment, what had happened to it.  He could not recall if he specifically sought Mr Redford out or whether they just happened to meet.  When he first spoke to Mr Redford Penberthy asked him what was the hold up with the enquiry  After speaking to Mr Redford Penberthy approached Mr Baker but when he attempted to speak to the Minister, Mr Baker just shrugged his shoulders.  He also spoke to the Minister’s office but did not receive a response.  Penberthy then again approached Mr Redford.  The effect of Mr Redford’s response was that there was a pending Cabinet reshuffle in which Mr Baker was a casualty, and that the whole thing had been taken out of Mr Baker’s hands and the enquiry was not going to go ahead.  Penberthy gave evidence that he thought the first conversation with Mr Redford took place on or about Thursday 23rd November 1995 and that the second conversation was the next day.  It was during the second conversation that he was informed that the enquiry was not going ahead.

Penberthy considered the information was significant because it had been suggested in Parliament by Mr Redford on 19th July 1995 that the alleged deal might have had some effect on the cost of gas to consumers.  Penberthy therefore considered that the public would have an interest in knowing the enquiry had been scrapped.  Furthermore, it was also of interest to Union members.  As I have indicated, the public had been informed in July 1995 that there was to be an enquiry by the Minister into serious allegations of misconduct and corrupt activity by the plaintiffs.  It follows, in my view, that the progress of any such enquiry was a matter of public interest, and more so, when it became known that there had been a Cabinet decision that the enquiry not proceed. 

Penberthy telephoned a Mr Petherick, the Media Liaison Officer for the Gas Company, who told him that the Company had written to the Government explaining that the backhoe arrangement was purely a commercial arrangement.  Penberthy did not attempt to contact Moriarty or Wortley on Friday 24th November 1995.  At that stage Penberthy did not consider it was urgent because there was no intention to publish the article in the Saturday edition of the newspaper. 

When Penberthy attended work on Sunday 26th November the Deputy Editor, Mr Jory, asked him if he could write the article for the Monday edition.  Penberthy indicated that he could do so and he therefore wrote the article on Sunday 26th November.  He gave evidence that he made several attempts to contact Wortley.  At this stage I regress for a moment.  Penberthy had Wortley’s mobile telephone number.  In his capacity as industrial reporter, Penberthy had got to know Wortley.  He had spoken to him in the past.  It also happened that Wortley’s wife was employed by the Advertiser Limited as a reporter and consequently Penberthy and Wortley had also had some social contact.

Returning to Sunday 26th November Penberthy gave evidence that he attempted to telephone Wortley on his mobile telephone on about seven or eight occasions, but the phone was not answered on each occasion.  He had been told that Wortley may be overseas, so he eventually gave up.  He did not try to telephone Wortley at his home, on his home telephone number.  His explanation as to why he did not attempt to telephone Wortley’s home number was that he had never in the past rung Wortley’s home and that in the past he had never had trouble in contacting Wortley on his mobile.  I do not find his explanation convincing.  I consider that Penberthy did not consider it of major importance to contact Wortley or Moriarty and his efforts to do so were minimal.

As to Moriarty, Penberthy gave evidence that he had never telephoned Moriarty before, but he looked in the telephone directory and found two relevant Moriarty entries.  He telephoned both but neither answered.  He was vague about his attempts to contact Moriarty. 

When asked why he did not try to contact either plaintiff on Thursday or Friday, before the weekend, he responded that he was still working on the story and as there was no intention to publish on the Saturday, there was no need to do so.  When he was initially asked by the Deputy Editor if the story could be written for the Monday edition, he thought he would be able to contact Wortley on his mobile phone, so he agreed.  When it transpired that he was unsuccessful in contacting either plaintiff, he said he did not think it was desirable to hold back the story until he had had an opportunity to seek and hear their response.  Penberthy said that he had spoken to a person from SAGASCO and he therefore had a response and it was unnecessary to speak to either or both plaintiffs.

Wortley gave evidence that he was at home with his wife on the Sunday.  He said his practice was to keep his mobile phone on for twenty four hours of the day because his members called him out of hours from time to time.  He had been in his office on Thursday and Friday 23rd and 24th November having just returned from overseas.  He spent the weekend at home.  On Sunday 26th November he said there were no calls on his mobile phone.  He gave evidence that he also had a telephone at his home and that it had not rung on that day. 

Moriarty gave evidence that he was based at the Adelaide office and that he could have been contacted there during the week.  He was at home on Sunday 26th November.  He is on the telephone and his number was in the telephone book.  He said that on the Sunday he was at home all day, and for the large part of the day he would have been within earshot of the telephone.  When asked whether it was possible that the telephone could have rung and that no-one had heard it, he conceded the possibility, but went on to say that three members of his family were at home that day, so there was a good chance that they would have heard the telephone ring. 

In the case of Moriarty, I find that Penberthy’s evidence was unsatisfactory.  I accept Moriarty’s evidence that he and others were home on that day.  In my view, it is unlikely that Penberthy telephoned Moriarty’s home on Sunday 26th November 1995.  If he did so, any attempt he made was inadequate.  I conclude that if Penberthy had given adequate thought to the matter, and followed up Moriarty diligently, he would have eventually located Moriarty on that Sunday. 

As to Penberthy’s attempts to contact Wortley, I conclude that Penberthy’s evidence was vague in respect of the attempts he made.  I accept Wortley’s evidence that he kept his mobile phone on for most of the time.  If Penberthy had telephoned on seven or eight occasions as he suggested, it is likely Wortley would have heard the telephone.  I accept that Penberthy may have made some effort to contact Wortley, but I do not consider that he made a sufficient effort to make contact.  In any event, when Penberthy was unsuccessful in raising Wortley on his mobile phone, I conclude if he had rung Wortley’s home telephone number, then it is likely someone at Wortley’s home would have answered.  I find that if Penberthy had persisted he would have eventually contacted Wortley and been able to obtain Wortley’s reaction to the proposed article.

I conclude that in the circumstances, and given the fact that there was no immediate urgency to publish the article, the failure to contact Moriarty and Wortley was unreasonable conduct by the Advertiser.  In my view, when it was known to Mr Jory, the Deputy Editor, and to Penberthy that Moriarty and Wortley could not be contacted on the Sunday, it would have been reasonable to have held the story to enable contact to be made during the following week.  In my view, after four months silence on the topic, fairness dictated that the plaintiffs should have been given an opportunity to comment before any article was published. 

The publication on 27th November 1995

On Monday 27th November the Advertiser published an article by Penberthy under the heading “Gas Company Intervenes” and then in bold print “Unionists Pay Probe Scrapped”.  This is the article which the plaintiffs allege is actionable.  I attach a copy of the complete text of the article to this judgment. 

The article commenced :

“The State Government has shelved plans for an enquiry into an alleged ‘sweetheart deal’ - involving tens of thousands of dollars - between the Gas Company and two union officials.” 

Reference was made to a decision of Cabinet to scrap the enquiry and the article then summarised part of Mr Redford’s speech which dealt with the salary packages.  It repeated the reference in the pamphlet quoted by Mr Redford and referred to the call to lift the lid on these corrupt practices at the expense of workers.  The article stated that Mr Baker had announced that a full parliamentary enquiry would be held into the allegations.  The writer related that the Gas Company had written to Mr Baker outlining the nature of the backhoe arrangement and that, despite Mr Baker being keen for the enquiry to go ahead, Cabinet had decided to scrap it.  The Gas Company spokesman was quoted as explaining that the backhoe arrangement was purely commercial.  The article concluded “neither Mr Moriarty nor Mr Wortley could be contacted”. 

Both plaintiffs gave evidence that they were extremely distressed when they read the article.  They immediately sought legal advice and their solicitors sought counsel’s opinion which was not available until January 1996. 

The 22nd January 1996 letter

On the 22nd January 1996 the plaintiffs wrote to the Editor of the Advertiser.  The letter referred to the article of the 27th November 1995.  The letter made the point that the plaintiffs’ salaries were not out of step with the salaries of others in comparable positions.  The plaintiffs denied ever having entered into any “sweetheart deals” and they denied having used their position for any improper personal gain or that they had been involved in any rorting or corruption.  They requested that the letter be published in as prominent a position as the article. 

On the 24th January 1996 Mr Rex Jory, the Acting Editor, responded :

“As you would be aware, almost all of the information contained in the article was taken from allegations made in Parliament.

However, I am prepared to accept that you have a right of reply and believe the best way to tackle this would be for David to write an article after speaking with you.”

The offer was rejected.  In evidence, Wortley said that he was not prepared to have yet another article over which he had no control written about the allegations. 

Some time after the letter of the 24th January 1996 there was an exchange of correspondence between solicitors and eventually proceedings were issued on the 9th July 1996. 

The Action

The Statement of Claim alleges that the words of the article of the 27th November 1995 meant and were understood to mean in the natural and ordinary meaning in the context of the said words that :

“6.1the plaintiffs are dishonest;

6.2   the plaintiffs have used their respective offices of Federal Secretary and organiser for personal gain beyond anything that is reasonable;

6.1   the plaintiffs have engaged in corruption and ‘rorting’;

6.2   the plaintiffs have acted with impropriety by allowing the union to conduct a business improperly.”

............. It was not contested by the defendant that the words in the article in their natural and ordinary meaning conveyed that the plaintiffs had used their respective offices for personal gain beyond anything reasonable and that they were engaged in corruption and rorting and had acted improperly.  The defendant denied that the meaning attributable to the words amounted to an allegation of dishonesty. 

............. The approach to be taken in determining whether words are defamatory is, having regard to the ordinary reasonable reader of fairly average intelligence whether the words tend to lower the plaintiffs in the estimation of right thinking members of the community.  (See Jones v Skelton [1963] 1 WLR 1362) 

............. There is no dispute that the article is defamatory.  The defendant disputes the imputation of dishonesty.  In the alternative, the defendant argued that if the meaning of dishonesty is conveyed by the article, it is also conveyed as a consequence of the speech of Mr Redford. 

............. I consider that the article of the 27th November 1995 would have conveyed to a reasonable reader of average intelligence, that a full parliamentary enquiry had been proposed into a sweetheart deal between two union officials, Moriarty and Wortley and the Gas Company, which involved tens of thousands of dollars, to prop up the exorbitant salary packages of those officials.  It further conveyed that Cabinet had determined to discontinue the enquiry despite the Minister, Mr Dale Baker, believing it should proceed.  The article reported the allegations of Mr Redford and quoted from a pamphlet distributed by disgruntled union members alleging corrupt practices and rorts. 

............. In my view, an ordinary and reasonable reader of the article would have concluded that Moriarty and Wortley were being accused of corrupt practices, that they had been involved in rorts and acted dishonestly and improperly, to the detriment of their members, and that they had been involved in a sweetheart deals with the Gas Company.

Fair and Accurate Report

The defendant has pleaded that the publication complained of occurred on an occasion of qualified privilege in that it formed part of a fair and accurate report of parliamentary proceedings.  The defendant has pleaded fair and accurate report pursuant to the Wrongs Act and pursuant to the common law.  It is further pleaded that the making of the report was in the public interest.  Section 7 of the Wrongs Act provides :

“7.     (1)    A fair and accurate report published by newspaper, radio or television of the proceedings of-

(a)    a public meeting; or

(ab)either House of Parliament; or

(b)    (except where neither the public nor any reporter is admitted) of any meeting of a municipal or district council, school board or advice, board of health, board or local authority formed of constituted under the provisions of any Act of Parliament, or of any committee appointed by any of the abovementioned bodies; or

(a)    a meeting of any royal commission, select committee of either House of Parliament; or

(b)    a meeting of shareholders in any bank (within the meaning of the Banking Act 1959 of the Commonwealth) or incorporated company,

and the publication by newspaper, radio or television at the request of any Government office or department, Minister of the Crown, or Commissioner of Police, of any notice or report issued by it or him for the information of the public, shall be privileged unless it is proved that the report or publication was published or made maliciously:

Provided that-

(a)    nothing in this section shall authorise the publication of any blasphemous or indecent matter:

(b)    the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it is proved that the defendant has been requested to publish by the same newspaper or radio or television station, as the case may be, a reasonable letter or statement by way of contradiction or explanation of such report or other publication and has refused or neglected to do so:

(c)    nothing in this section shall be deemed or construed to limit or abridge any privilege now by law existing, or to protect the publication of any matter not of public concern and the publication of which is not for the public benefit.

(2)   For the purposes of this section, “public meeting” means any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted.”

The plaintiffs responded, firstly, that the report was not fair and accurate.  Secondly, Mr Heywood-Smith submitted that the common law no longer applies.  Further, the plaintiffs allege that pursuant to the provisions of section 7 of the Wrongs Act, 1936, the defence of qualified privilege is not available because of the refusal of the defendant to publish the letter of the 22nd January 1996. 

Mr Heywood-Smith submitted that for the defence of fair and accurate report to apply, there must be a report.  He argued that in order for the publication to be a report, it must be contemporaneous.  If it dredges up old defamatory statements that had been made in Parliament and prints them, the article may be characterised as other than a report.

In Tsikata v Newspaper Publishing PLC (1997) 1 All ER 655 an article was published in 1992 about forthcoming elections in Ghana.  The article referred to an incident in June 1982 in which three High Court Judges were kidnapped and executed at an army shooting range.  One of the people said to have been involved was Captain Tsikata, who, in 1992, was running for public office.  It was argued on his behalf that the reference to Mr Tsikata was not a “report” and it was merely a commentary of past events which might have been published in a book and was not a report which the public was interested to receive as a piece of news.  Neill LJ with whom Ward and Ford LJJ agreed, concluded that the report did not cease to be a report because it was published nearly ten years after the event.  He held that a report of proceedings does not have to be a contemporary report or necessarily an item of recent news.  It must be measured by reference to that to which it purports to relate.

Section 7 of the Wrongs Act does not refer to a contemporaneous report.  Section 6, which deals with legal proceedings, talks of a fair and accurate report if published contemporaneously with such proceedings as being privileged.  Section 7, which deals, inter alia, with proceedings of either House of Parliament, makes no reference to contemporaneous publications. 

The subject article reports the decision of Cabinet not to pursue an enquiry which was publicly announced in Parliament some four months earlier.  In my view, in order to meaningfully inform the public it was necessary to refer to Mr Redford’s speech.  The article dealt with the scrapping of the enquiry.  I do not agree with Mr Heywood-Smith’s submission that the article merely dredged up old material.  A significant development had occurred, that is, the shelving of the enquiry, and it was entirely appropriate to report it in the context of what had been said in Parliament on the other occasions.  I conclude that the article is a report within the meaning of the Wrongs Act.

The plaintiffs’ case is that the report is not a fair and accurate report in that, firstly, it referred to facts and matters not the subject of comment in Parliament.  The Statement of Claim alleged :

“3.2.3........ (a)     the publication was in any event inaccurate in a material particular, namely that the Honourable A J Redford in his statement to the Legislative Council of South Australia on the 19th July 1995 did not allege that any deal or arrangement had been made between the Gas Company and the plaintiffs, but rather between the Gas Company and the Federated Gas Employees Industrial Union. 

(b)    that Minister Baker did not announce a ‘full parliamentary enquiry’.

(a)    that the parliamentary proceedings never contemplated a ‘unionists pay probe’.

(b)    that the first plaintiff had a salary package of ‘more than a hundred thousand dollars’.”

In Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294 Gaudron and Gummow JJ with whom Brennan CJ and McHugh J agreed, said (at page 308 paragraph 42) :

“It is well settled that, to be fair and accurate, a report need not be a complete report of the proceedings in question.  Nor need it be accurate in every respect.  It must, however, be substantially accurate.  And the question whether it is substantially accurate is a question of fact.”

Kirby J at page 346 paragraph 53 distilled a number of principles from the relevant authorities.  In summary they are as follows :

1.      The report must not only be fair but also accurate.  Commentary or misleading headlines can deprive the text of the quality of fairness essential to attract the privilege. 

2.      A report need not be verbatim, so long as it retains substantial accuracy in all material respects. 

3.      The question of whether a report is fair and accurate is a factual question by comparing the relevant record of the proceedings with the matter complained of.  The test is whether in the mind of a reasonable reader of the report it substantially alters the impression that the reasonable person would have gained had he or she been present during the parliamentary proceedings.

4.      The report must be judged in its entirety and must retain substantial accuracy in all material respects.  In determining fairness and accuracy all of the complaints must be considered together to decide whether the publication as a whole is fair and accurate.  In this respect headlines and graphics may assume special importance, because the reasonable reader does not always read and analyse each word carefully.

5.      The purpose of examining suggested mistakes and inaccuracies in a report is to determine whether a publisher is entitled to the fair report defence. 

The test was summarised by Hunt J in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at page 63 who was dealing with the question of a fair and accurate report of judicial proceedings.  His Honour observed :

“The issue will be whether the report of which the plaintiff complains substantially altered the impression which the reader would have received if he had been in court; if there is in the report a substantial misrepresentation of a material fact prejudicial to the plaintiff’s reputation, the matter complained of is not a fair protected report : Thom v Associated Newspapers Ltd (at 380; 393).  A fair report is a substantially accurate summary of the proceedings, neither more nor less.  The question is not whether it is fair or unfair to any particular person; the question is whether it substantially records what was said and done : ibid (at 383; 396). 

If the report is fair, in the sense of reporting with substantial accuracy what in fact was said and done in the proceedings, it matters not that statements made in the course of those proceedings and included in the report were themselves irrelevant to the issues being litigated in those proceedings : Hutchison v Robinson (at 145).  Nor does it matter if those statements so reported are themselves factually untrue : ibid (at 145).”

As was observed by Kirby J in Chakravarti’s case, because the protection of qualified privilege is extended to statements about individuals which may be untrue and highly damaging when republished by the media, the obligations of fairness and accuracy are substantial ones. 

Mr Heywood-Smith argued that the article was not fair and accurate primarily because it stated that the sweetheart deal involving tens of thousands of dollars had been made between the Gas Company and union officials.  He argued a reasonable listener who had attended Parliament on the 19th July, and listened to Mr Redford, would have understood that the allegation of deals was of a deal made between the Union and the Gas Company.  Mr Redford at no time alleged that the plaintiffs had entered into a sweetheart deal. 

The criticism is correct.  A person listening to Mr Redford would have understood that he was speaking of a deal between the Union and the Gas Company.  He accused the plaintiffs of benefiting from that arrangement by receiving large salary packages and by acting in their own interests to the detriment of their members.  The sting in Mr Redford’s speech was that there was an improper arrangement between the Union and the Gas Company and the plaintiffs were beneficiaries of that arrangement, that they acted in conflict of interest and against the interests of their members to maintain their favoured financial position at the expense of members of the Union, and members of the gas consuming public.  Mr Redford’s speech was directed to the conflict of interest, particularly of Moriarty and further that Moriarty and Wortley were protecting their own financially advantageous position to the detriment of their members and at the expense of the gas consumers in the community.  A reader of the article would have been left with the impression that the sweetheart deal had been entered into between the Gas Company and the plaintiffs.

In my view, there is a significant difference between the allegation that the plaintiffs were recipients of a sweetheart deal between the Union and the Gas Company and the allegation that they themselves were involved directly in a sweetheart deal with the Gas Company.  By not distinguishing between the Union as an organisation and the officials, it is my view that the reader of the article would have been left with a materially different impression about the plaintiffs.  A reader would have concluded that they had negotiated a corrupt deal with the Gas Company.  That, in my view, was more damaging to the plaintiffs than the damaging statements of Mr Redford. 

Wortley said in his evidence (at page 254), that the first thing that struck him when he read the article was that the very first paragraph suggested that he had personally had an arrangement, a sweetheart deal, with the Gas Company involving tens of thousands of dollars.  That was his understanding when he read that article.  I accept that Mr Wortley’s understanding is not relevant.  The relevant question is, what would a reasonable reader of the article understand.  However, I consider that Mr Wortley’s understanding as he expressed it, reflected what a reasonable person reading the article would have understood. 

When the first paragraph of the article is read with the headline, it highlights the misleading impression. A person reading the article would be left with the impression that the Minister had promised a full parliamentary enquiry to probe the salary packages of Moriarty and Wortley, who had corruptly entered into an arrangement with the Gas Company which employed their union members. A fair and accurate impression of Mr Redford’s speech is, in my opinion, that the Minister was being asked to conduct an investigation into a backhoe arrangement between the Gas Company and the Union pursuant to the Gas Act in order to determine whether gas consumers were paying more for gas as a result of the arrangement. He also called for the enquiry to report on any conflict of interest of Moriarty and the desirability of Moriarty remaining a director of the Gas Company.

A fair understanding of Mr Redford’s speech could not lead to the conclusion that the Minister was to enquire into the unionists’ pay.  It was never to be a “unionists’ pay probe”. 

I do not accept the submission of Mr Harris that from hearing Mr Redford in Parliament the ordinary and reasonable person would have been left with an impression of Moriarty and Wortley, which was similar to the impression left by the article.  The article concentrated on the pay probe, the level of salary and the sweetheart deal between the plaintiffs and the Gas Company as the focus of the enquiry which had been scrapped.  That would have left a reader with the impression that Moriarty and Wortley were involved with the employer of their union members, in a corrupt deal, in order to further their own personal positions.  That was not the enquiry to be undertaken.  The enquiry could only deal with the contractual arrangements between the Gas Company and the Union insofar as it might affect gas prices.  It was never an enquiry to probe the pay of the plaintiffs.  In my view, the misleading headline and first paragraph of the article deprived the text of the fairness essential to attract the privilege (see Kirby J in Chakravarti at paragraph 153.1).  In my view, the impression the recipient would have gained had they been present in Parliament, would have been substantially different to the impression that the article conveyed. 

My finding makes it unnecessary to deal with a number of other issues which were raised, however, I consider I should state my conclusions in respect of those matters.

Does the proviso in subsection (c) of section 7 preclude an alternative claim of common law privilege

The defendant was granted leave to amend its defence to plead both section 7 of the Wrongs Act and that the privilege also arose pursuant to the common law and was in the public interest. 

It was further submitted by Mr Heywood-Smith that if the report was a fair and accurate report of parliamentary proceedings, the defence failed in any event because the common law law no longer applies in South Australia and the requirements of section 7 of the Wrongs Act had not been complied with, in that the defendant had been requested to publish a reasonable letter of response and had refused or neglected to do so. 

This question of whether the common law no longer applies in South Australia was specifically dealt with by Gaudron and Gummow JJ in Chakravarti’s case at page 321 to 322, paragraph 87 to paragraph 90.  Their Honours concluded at paragraph 90 :

“It follows that the Advertiser was entitled to plead privilege under section 7 of the Act and also common law qualified privilege.  To plead common law qualified privilege, however, it is necessary to plead that the publication is a fair and accurate report of the body in question and that publication is in the public interest.”

Brennan CJ and McHugh J said at page 297 that subject to two matters with which they had dealt in their judgment they agreed with the orders and the reasons of Gaudron and Gummow JJ.  The two matters which they then discussed did not deal with the common law and statutory provision position.  It follows therefore, that four Justices of the High Court in Chakravarti’s case agreed that the common law defence coexists with the statutory defence.  Kirby J was of a different view (See page 345 paragraph 151).

It is beyond argument that when section 7 was first enacted in 1895 the common law had by then recognised that qualified privilege extended to fair and accurate reports of proceedings of Parliament (see Wason v Walter [1868] 4 LR QB 73 at 82, 83 and 93).  In my opinion the view expressed by the majority of the High Court is to be preferred and I conclude that the Wrongs Act does not exclude the common law.  Subsection (c) of the proviso further requires that the report be one of public concern or for the public benefit.  In my view reports of proceedings in parliament are matters of public interest and matters of public benefit.  In Wason v Walter Cockburn CJ said at page 89 :

“... it is of paramount public and national importance that proceedings of the Houses of Parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends.  Where would be our confidence in the Government of the country or in the legislature by which our laws are framed, and to whose charge the great interests of the country are committed, - where would be our attachment to the constitution under which we live, - if the proceedings of the great council of the realm were shrouded in secrecy and concealed from the knowledge of the nation?  How could the communications between the representatives of the people and their constituents, which are so essential to the working of the representative system, be usefully carried on, if the constituencies were kept in ignorance of what their representatives are doing?  What would become of the right of petitioning on all measures pending in Parliament, the undoubted right of the subject, if the people are to be kept in ignorance of what is passing either House?  Can any man bring himself to doubt that the publicity given in modern times to what passes in Parliament is essential to the maintenance of the relations subsisting between the Government, the legislature and the country at large?  It may, no doubt, be said that, while it may be necessary as a matter of national interest that the proceedings of Parliament should in general be made public, yet that debates in which the character of individuals is brought into question ought to be suppressed.  But to this, in addition to the difficulty in which parties publishing parliamentary reports would be placed, if this distinction were to be enforced and every debate had to be critically scanned to see whether it contained defamatory matter, it may be further answered that there is perhaps no subject in which the public have a deeper interest than in all that relates to the conduct of public servants of the State, - no subject of parliamentary discussion which more requires to be made known than an enquiry relating to it.”

In my opinion, the publication of a fair and accurate report of parliamentary proceedings must be to the public benefit, and overrides the inconvenience to individuals. 

If, therefore, contrary to my conclusions, the report was fair and accurate, then the common law would in my view provide a defence of qualified privilege in this case.

Was the letter of the 22nd January 1996 a reasonable letter

Although it is not central to my conclusions I should say something about the applicability of subsection (b) of the proviso to section 7 of the Wrongs Act.  The plaintiffs submitted that the letter (exhibit “P6”) to which I have referred, was a reasonable letter by way of contradiction and explanation and the failure of the defendant to publish it has the consequence that the privilege afforded by section 7 is defeated. 

In response the defendant adopted the position put by its solicitors in their letter of the 14th May 1996 in which they responded to the plaintiffs’ solicitors in the following terms :

“...  The defence provided by section 7 is only taken away if the defendant has been requested to publish ‘a reasonable letter or statement’.  In this context, the issue of reasonableness goes not only to content, but also to timing.  It is not reasonable to expect our client to publish a letter some three months after the initial story, at a time when there is no current public issue.  The second point is that section 7 goes on to provide that nothing in the section detracts from any other privilege which may be available.  Accordingly, our client can rely upon common law qualified privilege which is clearly available to a fair and accurate report of parliamentary proceedings.”

I agree with the proposition that timing is relevant to the question of whether the letter is a reasonable letter by way of contradiction or explanation.  As was pointed out by Kirby J in Chakravarti’s case (at page 351 paragraph 161.2) the request to publish a contradictory statement or explanation before the public must be reasonably contemporaneous.  The criterion of the public interest must be kept in mind.  It must also be borne in mind the purpose of the proviso is to give those who are the subject of an attack upon their character an opportunity to redress the balance and to communicate to the same audience their response to what they consider to be defamatory material.  Given the purpose of the proviso, it is desirable that some degree of latitude be given in respect of a timely response in order to give those wishing to respond an opportunity to seek and obtain legal advice.  I have given consideration to the subject matter and the time that had elapsed between Mr Redford’s speech in the Legislative Council and the report and I do not consider two months to be an unreasonable delay in this case particularly when one takes into account the Christmas period.  In my view, the request of the 22nd January 1996 satisfied the requirements of the proviso and the refusal of the defendant to publish the response therefore denied the defendant the protection of section 7. 

Malice

The plaintiffs have alleged actual malice.  Paragraph 7 of the amended Reply pleads :

“Any defence of qualified privilege as asserted in paragraph 4 of the further amended defence is in any event unavailable to the defendant because of the defendant’s actual malice.”

In order for the plaintiffs to establish actual malice they must establish that the defendant was actuated by an improper motive.  Differing conduct such as absence of belief in the truth of the allegation, recklessness as to whether the matter complained of was true, failure to make a due enquiry, and conduct of the litigation are just some of the matters the plaintiffs have relied upon to establish actual malice. 

The plaintiffs point to the following matters :

1.      The improper use of the privileged occasion.

2.      The fact that no reasonable attempt was made to contact the plaintiffs and in that background the wrong inclusion in the article of the statement that neither plaintiff could be contacted on the day.

3.      Selective reporting of Mr Redford’s speech concentrating on the sweetheart deal and the union packages of the plaintiffs without then giving them an opportunity to respond. 

4.      The failure to publish the letter of the 22nd January 1996.

5.      The failure to call Mr Jory the editor to refute the accusations of actual malice.

6.      The failure to make enquiries as to the truth of the allegations or alternatively being reckless as to whether they were true or not. 

............. Mr Harris submitted, in respect of the allegations regarding failure to enquire into the truth of the allegations, that in a case where the truth is not relevant, as in the case of a fair and accurate report of parliamentary proceedings, a failure to make a due enquiry is not evidence of express malice.  I agree with that submission.  In the case of a report of parliamentary proceedings, the issue of truth of what was said in Parliament is not relevant.  In my view, it is not incumbent on a newspaper to make such enquiry.  The failure therefore to make the enquiry can never be evidence of express malice, in circumstances where a newspaper is reporting a parliamentary proceeding. 

............. Mr Harris also submitted that for a finding of express malice the court must be satisfied that the occasion of qualified privilege has been abused and that it must be proved positively by credible evidence.  The language or conduct of the defendant in defeating the occasion of qualified privilege must be proved by substantial evidence and not mere surmise.  (See Spautz v Williams [1983] 2 NSWLR 506 at 520) 

............. I accept the evidence of Penberthy that he wrote the article only after it had come to his knowledge that the enquiry announced by Mr Baker in July was not to proceed.  It was clearly a newsworthy matter and it was necessary to repeat some of Mr Redford’s allegations in Parliament to put the report into context.  Although, as I have found, the report did not fairly and accurately report Mr Redford’s speech, I am not satisfied that the defendant deliberately or recklessly abused the occasion.  In my view, the failure to contact Moriarty and Wortley before the publication of the article was unreasonable and unfair to them and the further refusal to publish the letter of the 22nd January, 1996, was also not reasonable.  However, I do not consider these failures to have been actuated by malice.  I accept Penberthy’s explanation that he believed that the reference to the response of the Gas Company was sufficient to overcome any prejudice to the plaintiffs in his failure to contact them.  I also accept that Mr Jory believed that there was no requirement to publish the letter of the 22nd January 1996 and that he genuinely believed that his offer of an interview with Penberthy was a sufficient response to the request.  I therefore conclude that the plaintiffs have not established express malice in respect of the publication. 

Government and Political matters

............. The defendant has pleaded that the publication complained of occurred on an occasion of qualified privilege, namely in the course of discussion of government and political matters. 

............. In response, the plaintiffs have argued, firstly, that when the defendant made the publication on the 25th November 1995 the statements of Penberthy were no longer matters of governmental or political discussion.  Mr Heywood-Smith submitted that what a union pays its officials is not a political or governmental matter.  It is submitted the article focuses upon the salaries and only refers to the enquiry into the conflict of interest and the backhoe arrangement as an aside.  Further, Mr Heywood-Smith argued that because of the time lapse between Mr Redford’s speech and the article, the matters discussed in the article were no longer government and political matters. 

............. In Theophanous v The Herald and Weekly Times Ltd and Another (1993-1994) 182 CLR 104 there was extensive discussion by the High Court of what may amount to a discussion of government and political matters.  Mason CJ, Toohey and Gaudron JJ discussed the acceptable limits to the type of discussion which falls within the ambit of government and political matters.  Although every case must be considered in the context of the surrounding circumstances their Honours observed at page 124 :

“For the present purposes, it is sufficient to say that ‘political discussion’ includes discussion of the conduct, policies or fitness for office of the government, political parties, public bodies, public officers and those seeking public office.  The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, eg, trade union leaders, Aboriginal political leaders, political and economic commentators.  Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices.”

In my view, although the article does not fairly and accurately report the speech of Mr Redford, it does refer to the discontinuance of the enquiry which the Minister had announced some four months before.  Having promised a further Ministerial statement within one week there was then silence.  The fact that an enquiry into the relationship between the Union and the Gas Company which was governed by an Act of Parliament and which had a monopoly over the supply of gas to South Australian consumers had been scrapped by Cabinet, was, in my view, a political and governmental matter.  It follows, in my view, that the privilege discussed by the High Court in Theophanous is relevant to the publication.  I agree with the submission of Mr Harris that an article which deals with the shelving by Cabinet of an enquiry into a major public utility which is alleged to be involved in a sweetheart deal with the Union is a matter of political discussion.  The fact that the article concentrates upon the salary packages of two union officials and inaccurately refers to them having entered into a sweetheart deal with SAGASCO, may go to the question of reasonableness, but in my view does not take the article out of a discussion on governmental and political matters.

The further matter that must be established once an occasion of qualified privilege is found to exist, is that the publisher acted reasonably.  In Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 the High Court in a joint judgment reconsidered the defence of publication of defamatory material relating to government and political matters.  The court said at page 116 :

“At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication.  But, apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients.  If a publication is made to a large audience, a claim of qualified privilege of common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth.  Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected.  Because privileged communications are ordinarily occasions of limited publication - more often than not occasions of publication to a single person - the common law has seen honesty of purpose in the publisher as the appropriate protection for individual representation.  As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory.  But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers.”

The court then considered whether there should be a requirement beyond that which exists when there is restricted publication.  Their Honours were of the view that a requirement of reasonableness applied when publications were extensive.  The court determined that reasonableness of conduct was the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of governmental or political matters.  The court said (at page 117) :

“Reasonableness of conduct is the basic criterion in section 22 of the Defamation Act which gives a statutory defence of qualified privilege... . And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters.  But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience.”

In this case publication falls within that category as it is publication by a newspaper to the world at large and therefore reasonableness of conduct becomes relevant. 

At page 118 the court said :

“Whether the making of a publication was reasonable must depend upon all the circumstances of the case.  But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue.  Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.”

In considering whether the defendant acted reasonably it is necessary to consider the circumstances surrounding the publication, including the time when it was made, whether it accurately reflected the statements made by Mr Redford and what steps were taken to enable the plaintiffs to respond.

In my view, it was appropriate for the defendant to comment upon the decision to abandon the enquiry.  In so doing it was necessary to refer to Mr Redford’s speech and I do not consider it to be unreasonable if the defendant relied upon reporting Mr Redford’s accusations without necessarily conducting its own investigations to ascertain the truth of what had been alleged by him.  I do not accept Mr Heywood-Smith’s submission that the defendant was required to take steps to verify the accuracy of the material. 

However, in the circumstances of this case, I consider that the defendant should have taken steps to ensure that the plaintiffs were given an opportunity to respond before the article was published.  There was no immediate urgency to publish the report on Monday 27th November 1995.  There had been no public comment, nor any announcement about the enquiry and the issue had been dormant for some months.  It was known that Moriarty and Wortley were officers of the Union and that if they could not be contacted on Sunday 26th November there was every probability that contact could be made on Monday 27th November and that publication could have been delayed for a day or so.  It was also known that Wortley considered that the attack upon him by Mr Redford was politically motivated.  The Advertiser should have been aware that Wortley or Moriarty may well have wanted the opportunity to refute the statements of Mr Redford.  Even if Wortley was overseas as Penberthy believed, with modern day communications it was likely that his secretary or someone employed at the Union office could have contacted him.  Further contact could have been made with Moriarty on the Monday if Penberthy and the defendant had waited.  The article was focused on the plaintiffs’ salary packages, it referred to a “pay probe”.  At the very least, Moriarty and Wortley should have been given the opportunity to respond.  The attack upon them was extremely damaging.  As I have said, I consider the effort made by Penberthy to contact them on the Sunday was totally inadequate.  If he could not contact them, publication of the report should have been deferred, to give them the opportunity to respond before publication.  Added to this failure was the refusal to publish the letter of response.  Even though Mr Jory believed the Advertiser’s response to be adequate, I consider the response of Mr Jory that the defendant would make Penberthy available for an interview rather than publish the letter of response as requested, was unreasonable.  At the very least, the Advertiser could have published the letter as a letter to the editor.  I consider the conduct of the Advertiser in these respects to have been unreasonable, to the extent that the claim of qualified privilege is defeated.

In my view, in the circumstances of the subject publication, the opportunity to respond was of utmost importance.  The failure of the defendant to afford the plaintiffs that opportunity was unreasonable and its conduct was such as to defeat the defence of qualified privilege. 

In my view, for the reasons stated above, the case for the plaintiffs has been made out. 

Damages

The damage to each plaintiff was significant.  The suggestion that a union official has entered into a sweetheart deal with the employer of its members is a very serious allegation of impropriety. 

Moriarty described his reaction when he read the article.  He said he was very disheartened and flabbergasted that the Advertiser would publish such an article without contacting him or Wortley.  The suggestion that he was involved in a sweetheart deal was a factor which led him to decide that he would not seek re-election as Secretary of the Union.  He had to put up with adverse comments.  He was required to travel the State in order to clear his name.

Wortley said that when he read the report he was absolutely devastated.  He described it as coming out of left-field.  As a consequence he spent considerable time explaining the position to members of the Union and to friends.  He said the allegations are still brought up from time to time.  He was required to travel throughout the State to reassure members there was no basis in the allegations.  His level of distress was heightened by the fact that he did not negotiate the original arrangements between SAGASCO and the Union.  Wortley is a relatively young man and has a long career in the union movement ahead of him.  A publication of this kind was clearly very distressing.  It does not appear that he has suffered any long term financial detriment, as he continues to be employed as a senior officer of the Union. 

Mr Heywood-Smith submitted that damages were aggravated by the suggestion of Mr Harris during the trial that the defendant wished to consider the defence of justification.  This was said at a time when Mr Heywood-Smith had made application to amend the Reply to withdraw an admission.  It was said in the heat of opposition by Mr Harris to that application.  Mr Harris made it clear that his client wished to consider its position.  Within a relatively short period he advised the court that no such application would be made.  I accept that the conduct of the defendant can be a factor which is relevant to damages, but in this case I do not consider the conduct of the defence was such as to aggravate any award of damages.

As to general damages I have had regard to the judgment of Gaudron and Gummow JJ in Chakravarti in which their Honours said that the imputations which seriously injured Mr Chakravarti in his capacity as a professional employee in the finance industry warranted a substantial award of general damages.  Kirby J regarded the general damages awarded as insufficient.  In that case the total award for general damages for two articles was $85,000. 

In assessing damages I have had regard to the fact that I have found that no express malice has been established.  Nevertheless, the imputations of dishonesty, corruption, rorting, impropriety and conflict of interest in the background of a pay probe are most serious.  The suggestion that the plaintiffs had negotiated a deal with the Gas Company to give and maintain for themselves inflated salary packages is a most serious attack upon their characters. 

I do not think it appropriate to distinguish between them.  Although Moriarty is much older than Wortley and he is now retired, his longstanding and hard earned reputation is of great importance to him.  In the case of Wortley he is younger and is likely to be actively involved in the union movement for many years.  The preservation of a reputation for diligence and honesty within the movement is of great importance to him.  In each case the defamation has caused great distress. 

I assess general damages in each case at $60,000. 

Interest

In allowing for interest I have used 4% as the appropriate rate.  I consider that most of the damage would have been suffered within the first year after publication.  The effect of an adverse newspaper article is immediate.  The person damaged clearly suffers most of the distress whilst the article is fresh in the mind of the reader.  Although the damage lingers on, time and faded memories tend to reduce the effect.  I consider that approximately 80 per cent of the damage was suffered before trial with most of that damage occurring within the first year after publication. 

I assess interest in respect of each award in the sum of $3,500.

There will be judgment for the first plaintiff in the sum of $63,500.  There will be judgment for the second plaintiff in the sum of $63,500.  I will hear the parties as to costs.