Nationwide News Pty Ltd v Redford No. Scciv-01-188

NATIONWIDE NEWS PTY LTD & ANOR v REDFORD
[2001] SASC 198
Full Court: Debelle, Bleby & Wicks JJ

DEBELLE J. This is an appeal from the decision of a judge of the District Court awarding the plaintiff damages for defamation. The appeal is instituted by the defendants. I will refer to the parties as “the plaintiff” and “the defendants”. The appeal is limited to questions as to the liability of the defendants. There is no appeal against the assessment of damages.
The plaintiff is a member of the Liberal Party. Since 1993 he has been a member of the Legislative Council and the Upper House in the Parliament of South Australia. He is also a legal practitioner. The plaintiff claimed damages for defamation in respect of two separate articles published in “The Australian” newspaper on 12 and 13 February 1999. The plaintiff recovered damages in respect of both articles.
The first defendant is the publisher of “The Australian”. The second defendant (“Mr Abraham”) is a journalist employed by the first defendant and is the author of both articles. Mr Abraham had a particular responsibility for covering South Australian State politics for the first defendant. He was an experienced political journalist having been employed in that capacity over a number of years. His general experience as a journalist ranged over a period of approximately 25 years. The defendants appeal against the findings in respect of both articles. I will deal with each in turn.
Events Preceding the First Article
In the week preceding 16 May 1998, the plaintiff learned that allegations of domestic violence had been made against Mr Ralph Clarke (“Mr Clarke”), a Labor member of the House of Assembly, the Lower House of the South Australian Parliament. The allegations had been made by Ms Edith Pringle (“Ms Pringle”), a woman with whom Mr Clarke had had a personal relationship. The plaintiff knew both Mr Clarke and Ms Pringle. The plaintiff’s wife was friendly with Ms Pringle. As a result of that friendship, the plaintiff had developed a friendly relationship with Mr Clarke. He and his wife had mixed socially on occasions with Mr Clarke and Ms Pringle.
On the morning of Saturday, 16 May 1998, the plaintiff received a telephone call from his wife. The plaintiff was then watching his son play football. His wife told him that she had received a telephone call from Ms Pringle in which she had sounded distressed. She said that Ms Pringle had informed her that she had been sleeping on the floor of some office for the previous two to three nights. The plaintiff’s wife told him that she had agreed to Ms Pringle’s request that she come to their house. The plaintiff then arranged for his wife’s general medical practitioner to see Ms Pringle at the plaintiff’s house. Arrangements were made for Ms Pringle to be accommodated on that Saturday evening. The plaintiff arrived home later in the morning. Ms Pringle was then asleep in the spare room. After she awoke, she spoke with the plaintiff. The plaintiff said that she was in a distressed state. The plaintiff said that, in view of the report of alleged domestic violence, he was very careful about what he said to Ms Pringle. He was concerned about political and other problems which might arise from what was taking place in his house. During the day, his wife’s general practitioner saw Ms Pringle in the plaintiff’s house.
As a result of Ms Pringle’s complaints, three charges of common assault were laid by the Director of Public Prosecutions alleging that Mr Clarke had assaulted Ms Pringle. The trial commenced on 9 February 1999. It continued on 10 February. On the morning of 11 February, the trial was brought to an end when the Director of Public Prosecutions entered a nolle prosequi with respect to all three charges. The conclusion of the trial was the catalyst for a series of events which led to the publication of the two articles.
Statement in the South Australian Parliament
On Thursday, 11 February, the Leader of the Labor Opposition in South Australia, the Honourable Mike Rann, made a speech in the House of Assembly, regarding the trial of Mr Clarke. The Hansard record of that speech is as follows:
“The Hon. M.D. RANN (Leader of the Opposition): I have long advocated that members of the public defamed or smeared under parliamentary privilege should be given the right to reply. I believe now that the same rights should be given to victims of people who have deliberately and intentionally lied under a similar privilege awarded to them by a court of law. Until now I have resisted every temptation to speak out on allegations made by Miss Edith Pringle, but today it has become clear that things Miss Pringle has said in court, and outside court, are grotesque lies. Domestic violence is a terrible crime, but it must be prosecuted competently and people must tell the truth about it in and outside court.
Miss Pringle perjured herself in court repeatedly and, in doing so, received strong support from Government people for the most malicious political motives. But let us go back a little. The morning after the member for Ross Smith was charged with assault against Miss Pringle, she phoned my office demanding to speak with me. I returned her call and she told me she was withdrawing the charges against Ralph Clarke, and she criticised me for standing Ralph down from the shadow Cabinet. She said that this would ruin him politically and financially and that losing his portfolios was too high a price to pay.
She asked me to reinstate Mr Clarke to the shadow Cabinet. I would not and did not. Miss Pringle told me on several occasions that she intended withdrawing the charges and then asked me whether I thought she was doing the right thing in doing so. I told her that was something that I was not going to do. I said, and I quote, ‘I cannot and will not ask you to drop charges because that is not my, my role. That is up to you to do. That is a decision for you to make’.
I also advised Miss Pringle to talk to a lawyer immediately. Miss Pringle has repeatedly lied about that conversation both inside and outside court and has been encouraged to do so, and that is when politics got involved. Indeed, I have grave fears that there has been political involvement in this case. The police were directed to investigate a single, unsubstantiated, unsourced allegation made in Parliament on 26 May last year by a Liberal member. That allegation related to whether or not ‘there has been any political interference with or pressure on police or others in regard to the charges against the member for Ross Smith’.
Certainly, a Liberal member of Parliament and a Liberal staff member have been persistently briefing journalists in an off the record way about this case, spreading false and defamatory information along the lines of, ‘If we get Ralph Clarke, we can get Rann’. Lie, after lie, after lie has been told to journalists in a vicious smear campaign which has had absolutely no basis in fact and has been proven so today. Before even the defence case started the prosecution stopped the case. What does that say about the veracity of Miss Pringle?
These people were delighted in Miss Pringle’s perjury until it all came unstuck. I had been assured by the member for Ross Smith’s lawyers that, following the blatant lies told by Miss Pringle, I would be given the opportunity to tell the truth, the whole truth and nothing but the truth about the matter in court. The extraordinary collapse of this case has denied me that opportunity, and I was disappointed with the assurances I was given by Mr Clarke’s lawyers. That is why I am being forced to make this statement in Parliament today. I hope there was no political pressure for this case to be prosecuted; I hope there was no political involvement in this case; and I hope there was no attempt to encourage a witness to commit perjury in court.
If those things did occur, then it would raise grave fears about the administration of justice in this State. I will look with interest to see whether Mr Rofe, so let down by the tawdry performance of his witness and his obvious doubts today about the truthfulness of Miss Pringle’s answers and allegations which led to the collapse of the case, will now take an investigation into Miss Pringle’s actions to decide whether a court action for perjury will be prosecuted, but somehow I doubt it.”
When Mr Rann was making that speech, the plaintiff was sitting in the Legislative Council. He was informed by some colleagues, in broad terms, about Mr Rann’s speech. He was then provided with what is called a Hansard “rush”, which is the first printing by Hansard of the speech by Mr Rann. After reading the speech in the Hansard rush, the plaintiff said he thought that he was the only person to whom Mr Rann could be referring in the speech. He said he was concerned about the allegations that politicians had been persistently briefing a journalist. He therefore decided that he should make a personal explanation in the Legislative Council. He did this a short time later. The Hansard record of his personal explanation made in the Legislative Council on 11 February 1999 is in these terms:
“The Hon. A.J. REDFORD: I seek leave to make a personal explanation.
Leave granted.
The Hon. A.J. REDFORD: In another place this afternoon, the Leader of the Opposition, in relation to the Ralph Clark case, said:
Certainly, a Liberal member of Parliament and a Liberal staff member have been persistently briefing journalists in an off the record way about this case.
I have been the only Liberal member of Parliament who has been referred to by name in the legal proceedings as reported in the press. One can only assume that when this is reported the readers will assume that the Hon. Mike Rann is referring to me. As a Liberal member of Parliament, I have not been persistently briefing journalists in an off the record way about this case. I certainly will concede that I have been asked on occasions questions about the matter, particularly recently, and I have answered those questions on the basis that nothing should be said which would prejudice the fair trial of the honourable member.
I have had many years of experience in dealing with those who are involved in the criminal justice system. I can assure this place and the South Australian community that I acted appropriately with propriety in dealing with this matter. I utterly reject the innuendo and the background briefing of the Hon. Michael Rann in relation to this matter. I would urge the Hon. Michael Rann to look at this issue dispassionately and carefully and not make this a political smear campaign, to deal with this very sensitive and difficult issue involving domestic violence with some sensitivity and with some principle and without resorting to his usual political grandstanding, political point scoring and political shamming.”
Publication of the First Article
Mr Abraham was not reporting the trial of Mr Clarke for his newspaper. However, he had read some press reports regarding the trial. During the course of Thursday, 11 February, he became aware of Mr Rann’s speech. Later, he telephoned Mr Rann’s office and listened to a tape recording of the speech over the telephone. He made a tape recording of the speech as it was played to him. Mr Abraham also became aware of the plaintiff’s personal explanation in the Legislative Council. Some time later on 11 February, he prepared the article which was published in “The Australian” on the following day. The article which was published was substantially the article he prepared. I will call it “the first article”.
The article appeared on page 3. It was in these terms:
“MP blames lies and malice
MATTHEW ABRAHAM
* South Australian political reporter
STATE Opposition Leader Mike Rann yesterday accused South Australian Liberals of encouraging the woman at the centre of the Ralph Clarke domestic assault trial to commit perjury for the ‘most malicious political motives’.
The Rann attack drew an admission from Liberal backbencher Angus Redford that he and his wife, Maryann Stenberg, a staffer with Liberal senator Grant Chapman, had fed, bathed and arranged medical help for Mr Clarke’s ex-girlfriend, Edith Pringle, three days after the alleged assault.
‘She was dishevelled, she was distressed and she reported that she had slept on the floor of a Labor MP’s office for the three previous nights,’ Mr Redford, a prominent supporter of Premier John Olsen, told Parliament.
Earlier, Mr Rann had delivered a broadside at Ms Pringle, saying she had told blatant lies and perjured herself.
‘Ms Pringle perjured herself in court repeatedly and, in doing so, received strong support from government people for the most malicious political motives,’ Mr Rann said.
He criticised the State’s Director of Public Prosecution, Paul Rofe, Q.C. and Mr Clarke’s legal team.
The attack followed Mr Rofe’s decision to drop all domestic assault charges against Mr Clarke, the former deputy Opposition leader, after two days in court.
‘Domestic violence is a terrible crime, but it must be prosecuted competently and people must tell the truth about it, in and outside the court,’ Mr Rann said.
In South Australia’s increasingly poisonous political climate, the Ralph Clarke case was touted by Liberals to journalists as the antidote to Mr Rann’s ‘liar-liar’ defamation case against Mr Olsen.
A senior Liberal source said yesterday some of the confidential reports that were going to be presented to court had been ‘used and available’ to Liberal MPs, and ministers had been briefed on the evidence.
But the Clarke case has also reached into the factional divides within the State ALP, particularly the minority Duncan Left faction that had engaged in skirmishes with Mr Clarke, from the now defunct Centre Left faction.
One Left factional source said they had been flabbergasted by Mr Rann’s attack on Ms Pringle. ‘Who’d be Edith for all the money in the word?’ the source asked.
On Tuesday, Ms Pringle told the court Mr Rann had tried to talk her into dropping the charges against Mr Clarke.
Mr Rann told Parliament yesterday it had become clear ‘things Ms Pringle has said inside and outside court are grotesque lies’.
He said the morning after Mr Clarke had been charged, Ms Pringle had phoned, demanding to speak to Mr Rann. When he returned her call, she had criticised him for standing Mr Clarke down.
Ms Pringle had said she was withdrawing the charges and asked if she was doing the right thing. ‘I said “I cannot and will not ask you to drop charges because that is not my role”,’ Mr Rann told Parliament.”
The Imputation
The plaintiff alleged that the natural and ordinary meaning of the words in the first three paragraphs of the first article carried the imputation that the plaintiff had encouraged Ms Pringle to commit perjury. The defendants had denied that those words carried the alleged imputation. They also pleaded that, if the words were defamatory, publication of the article was on an occasion of qualified privilege on two grounds, namely,
(1)that the article was a fair and accurate report of Parliamentary proceedings so that it was privileged pursuant to s 7 of the Wrongs Act 1936 and at common law, and
(2) that the article involved a discussion of government and political matters.
The plaintiff alleged that the qualified privilege was defeated by malice. The judge found that the words complained of were defamatory and rejected each of the defences. He also held that pleas of qualified privilege were not defeated by malice. He awarded the plaintiff $60,000 damages.
The defendants appeal against the finding that the words complained of were defamatory and against the judge’s decision that neither of the grounds of qualified privilege applied. There was no cross-appeal on the question of malice. I deal later in these reasons with the appeal in relation to the second article.
The Defamatory Meaning
The judge found that the first three paragraphs of the first article carried the imputation that the plaintiff had encouraged Edith Pringle to commit perjury. Noting the headline to the article “MP Blames Lies and Malice”, the judge found that the ordinary reader would conclude from the headline that the article would be concerned with the matters stated in the headline. That conclusion, he said, would be immediately confirmed on reading the first paragraph. The ordinary reader, he continued, would associate what was stated in the second and third paragraphs with the statements in the opening paragraph.
The defendant’s first ground of appeal is that the trial judge erred in reaching that conclusion. For the reasons which follow, I agree with the conclusion of the trial judge. As the judge noted, the article was headed “MP Blames Lies and Malice”. The ordinary reasonable reader (who I will call “the ordinary reader”) would believe that what was to follow would be concerned with a politician’s complaint about one or more persons lying for a purpose to be disclosed in the article. That belief was immediately reinforced by the first paragraph of the article which identifies Ms Pringle as the person accused of telling lies and being encouraged to do so by South Australian Liberals “for the most malicious political motives”. Thus, the first paragraph identifies who is telling lies, states that persons encouraged Ms Pringle to do so, and identifies the purpose as being for a malicious political motive. The ordinary reader would then wonder whether the article would name one or more members of the Liberal Party in South Australia. The next paragraph answers that question by immediately identifying two persons associated with the Liberal Party, the plaintiff and his wife. Their relationship with the Liberal Party is clearly stated. He is a member of Parliament. She is employed by a Liberal Senator, Senator Chapman. It is to be noted that, apart from Senator Chapman, the plaintiff and his wife, the only other member of the Liberal Party who is mentioned in the article is the Premier, Mr John Olsen and the plaintiff is identified as a prominent supporter of Mr Olsen. An ordinary reader would draw the clear inference that having been prepared to render assistance to Ms Pringle, the plaintiff and his wife would encourage her to lie. Thus, the juxta-position of the first three paragraphs, and, in particular, the first two and the content of those paragraphs, carries a clear imputation that the plaintiff and his wife had encouraged Ms Pringle to commit perjury.
The rest of the article reinforces the imputation. The trial of Mr Clarke is identified as being perceived by some Liberals as being a counter to Mr Rann’s action for defamation against Mr Olsen, an action that has had a degree of notoriety in this State. The earlier identification of the plaintiff as a prominent supporter of Mr Olsen only serves to reinforce the imputation that he encouraged Ms Pringle to commit perjury for the purpose of assisting Mr Olsen. The three points made in the first paragraph are:
(1)    South Australian Liberals,
(2)    encouraging perjury,
(3)    for the most malicious political motives.
The article plainly identifies the plaintiff and his wife as the persons involved in encouraging Ms Pringle to commit perjury for the purpose of countering Mr Rann’s action against Mr Olsen.
In reaching this conclusion, I am mindful of the distinction drawn by Mason J in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 with which the other members of the court agreed, and the fact that a statement will be capable of bearing an imputation defamatory of the plaintiff only if the ordinary reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. In my view, the ordinary reader would understand the words complained of as stating that the plaintiff and his wife encouraged Ms Pringle to commit perjury. The words are defamatory and they concern the plaintiff.

For these reasons, the trial judge was correct in concluding that the first article carried the imputation that the plaintiff had encouraged Ms Pringle to commit perjury.
A Fair and Accurate Report
The defendants had pleaded that, if the article was defamatory of the plaintiff, it was published on an occasion of qualified privilege being part of a fair and accurate report of proceedings of Parliament pursuant to s 7 of the Wrongs Act 1936 and at common law. The trial judge held that the defence was not available on the ground that the report and the article was not fair and accurate as it substantially altered the impression a reader would have gained had he or she been present in the Parliament. The defendants appeal against that conclusion.
I think that the trial judge was plainly correct. A reading of the plaintiff’s general explanation in the Legislative Council shows that he was identifying himself as the person to whom Mr Rann had been referring when he had made his attack. He not only denied that he had “been persistently briefing journalists in an off the record way about the case” but he also denied encouraging Ms Pringle to commit perjury. Although the latter is not denied in express terms, it is clearly implicit in the statement “I utterly reject the innuendo and background briefing of the Honourable Michael Rann in this matter”. Mr Rann had expressly stated “a Liberal member of Parliament and a Liberal staffer have been persistently briefing journalists”, that “lie after lie has been told to journalists”, and that Ms Pringle had been guilty of perjury. The clear innuendo in those remarks was that the Liberal member and staffer had told lies and had encouraged Ms Pringle to commit perjury. The plaintiff denied that innuendo. There could be little doubt that the plaintiff was denying all that had been expressly or impliedly stated by Mr Rann. A fair and accurate report of what the plaintiff had said in the Legislative Council would have mentioned his refutation of Mr Rann’s attack. Instead, the article merely refers to the plaintiff’s description of the assistance he and his wife had given Ms Pringle without any reference to his denial of encouraging Ms Pringle to commit perjury.
In his personal explanation, the plaintiff describes the assistance he and his wife gave Ms Pringle and adds that he told her to seek legal advice. He then reminds the members of the Legislative Council that he is a legal practitioner and asserts that he is acutely conscious of the importance of the administration of justice. He went on to state that he had had many years experience in the criminal justice system and assured the members of the Legislative Council and the South Australian community that he acted with propriety in dealing with this matter. He then utterly rejects the innuendo in Mr Rann’s attack.
While a fair and accurate report need not be a complete report of the proceedings in question or be accurate in every respect, it must be substantially accurate: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 per Gaudron and Gummow JJ at 540. This report failed to refer to the plaintiff’s refutation of Mr Rann’s attack, the very reason why the plaintiff had made a personal statement in the Legislative Council. Instead, it takes but one aspect of the personal statement and omits the reason for it. The trial judge was correct in finding that this was not a fair and accurate report.
Discussion of Government and Political Matters
The defendants also relied on the defence that the article was published on an occasion of qualified privilege in that it concerned government and political matters. That defence is discussed in Lange v Australian Broadcasting Commission (1997) 189 CLR 520 at 571. While agreeing that the article concerned government and political matters, the trial judge held that the conduct of the defendants was not reasonable relying on the reasoning in Lange at 574. The defendants contend that the trial judge has misapplied that reasoning.
In Lange at 574 the High 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.”
The court is making it quite clear that the stated criteria for reasonable conduct are not exclusive and that each case will depend on its own facts and circumstances.
As this article purported to be a report of proceedings in the Parliament on the previous day, it was not necessary for Mr Abraham to contact the plaintiff to seek a response from him unless Mr Abraham sought to put a particular slant on the article. However, if Mr Abraham is to act reasonably, he must convey a fair impression of what occurred in the Parliament. This is not to subordinate this ground of qualified privilege to the qualified privilege of a fair and accurate report of proceedings in the Parliament. Instead, it is to identify what constitutes reasonableness where a communication to the public on government or political matters purports to give an account of events in the Parliament. The tenor of the article is summarised in its heading “MP Blames Lies and Malice”. The article carries the imputation that the plaintiff has been involved in encouraging Ms Pringle to lie but totally fails to mention his denial. Had Mr Abraham mentioned the denial and then gone on to report the plaintiff’s statement about how he and his wife had assisted Ms Pringle, his reporting would have been reasonable. Alternatively, if Mr Abraham wished to suggest that there was some link between the assistance given by the plaintiff and his wife to Ms Pringle and her alleged perjury, he should have asked Mr Redford for his response in accordance with the remarks in Lange. I agree with the trial judge that this defence also fails.
Mr Harris QC relied on Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 at 500 and contended that Mr Abraham had an honest but mistaken belief in the truth of his article. That submission must fail for the reasons already expressed, namely, that the article did not mention the plaintiff’s refutation of Mr Rann’s attack or, alternatively, he did not ask the plaintiff for his response to the suggestion that he had encouraged Ms Pringle to lie.
For these reasons, I would dismiss the appeal in relation to the first article.
Events Leading to the Second Article
On Friday, 12 February, Mr Abraham telephoned the plaintiff. His evidence was that he wished to talk with the plaintiff regarding the plaintiff’s personal explanation in the Legislative Council the previous evening. He also wanted to ascertain whether the plaintiff had access to medical records of Ms Pringle. Mr Abraham said that he had heard rumours for some time that journalists and politicians had seen medical records of Ms Pringle recording injuries she had received. Mr Abraham was unable to contact the plaintiff. He left a message asking the plaintiff to return his call. Later, the plaintiff returned the call.
Mr Abraham tape-recorded the telephone conversation. He did not inform the plaintiff that the conversation was being recorded. The conversation took the form of questions by Mr Abraham and answers by the plaintiff. To some initial questions and answers regarding what the plaintiff had said to the Legislative Council the previous day, Mr Abraham asked the plaintiff whether he had ever made available Ms Pringle’s records to any person. The plaintiff informed him that he had shown a copy to the Minister for the Status of Women after Ms Pringle had commenced giving her evidence at Mr Clarke’s trial. In response to a question from Mr Abraham asking how he came to have the medical records, the plaintiff said they had been dropped into his box anonymously about six months earlier. The plaintiff said he presumed they had been dropped into his box by a member of the Labor party who was an enemy of Mr Clarke. The plaintiff explained to Mr Abraham that they were hospital records recording Ms Pringle’s admission to hospital suffering severe injuries.
During the conversation Mr Abraham challenged the credibility of the plaintiff’s explanation of the circumstances in which he came to be in possession of the medical records of Ms Pringle. Later in these reasons, the relevant part of this conversation is set out. As will be apparent, Mr Abraham misunderstood to what occasion the hospital records referred and he confused those records with records made as a result of the medical examination of Ms Pringle by the plaintiff’s wife’s general practitioner.
The Second Article
Mr Abraham referred to his telephone conversation with the plaintiff in the course of the second article which was published in “The Australian” on 13 February 1999. The article was in these terms:
“MP admits: I showed hospital assault records to minister
MATTHEW ABRAHAM
* South Australian political reporter
PERSONAL hospital records of injuries allegedly suffered by a politician’s former lover were circulated among Liberal MPs during the aborted trial for domestic assault of the Labor MP.
South Australian Liberal MP Angus Redford yesterday confirmed to The Australian that he had held copies of Edith Pringle’s medical records for about six months.
He had made them available to a Cabinet minister at the start of this week’s failed trial of former Labor deputy leader Ralph Clarke for allegedly assaulting Ms Pringle.
Mr Redford said that about six months ago he had received a copy of Ms Pringle’s health records showing ‘an admission to a hospital by her having suffered some severe injuries as a result of a bashing’.
Mr Redford admitted he had shown the records to the Minister for the Status of Women, Di Laidlaw, on Tuesday ‘after Edith commenced giving her evidence’, but denied showing them to any other Liberal MP in the months before the trial.
He said the records had been ‘dropped anonymously in my box by I presume a Labor Party enemy of Ralph Clarke’.
Mr Redford rejected suggestions it was stretching credibility to claim he had received the records anonymously when he had also arranged for Ms Pringle’s initial medical treatment, which was carried out by his wife’s doctor.
‘I arranged for a medical practitioner to examine a woman who was obviously distressed and obviously been subjected to some violence. That’s all I did,’ he said.
‘We behaved as normal human beings. We didn’t put her on the f...ing floor of a f...ing electoral office with a blow-up f...ing mattress and hope she goes away.’
Mr Redford told parliament on Thursday night that he and his wife, Maryann Stenberg, a staffer with Liberal senator Grant Chapman, had fed, bathed and arranged medical help for Pringle when she came to their house three days after an alleged assault.
Opposition Leader Mike Rann told parliament on Thursday that Ms Pringle had ‘received strong support from government people’ and that she had told ‘grotesque lies’ in court which had damaged him.
This capped an extraordinary week of political mud-wrestling in South Australia, with the public airing of the turbulent private lives of Mr Clarke and Ms Pringle generating fierce tensions between Government and Opposition, and between warring factions within both major parties.
Mr Clarke, a former power-broker of the now defunct Centre Left faction, has a history of often colourful factional clashes with rivals in the Left faction.
Director of Public Prosecutions Paul Rofe, Q.C., dropped the charges against Mr Clarke on Thursday, just two days into the trial and before Mr Clarke’s defence team had called a witness.
Police Commissioner Mal Hyde said he would now finalise an investigation into allegations of political interference in the case and report to the Government.
The police investigation followed allegations in parliament by Liberal backbencher Graham Gunn last May that Labor had applied pressure on police to have the Clarke charges withdrawn.
At a crowded press conference on Thursday, Mr Rofe defended his decision to drop the charges, saying the affair had been a case ‘between a man and a woman ..... it’s never been about politics’.
Asked whether charges could be laid against Mr Rann, Mr Rofe said: ‘No, I have no material to suggest that.’
The Opposition has been highly critical of what it believes has been the political agenda underwriting the handling of the Clarke case, particularly the launch of a police investigation based on Mr Gunn’s question in parliament.
But Attorney-General Trevor Griffin yesterday defended the probity of the handling of a sensitive case.
‘Neither I nor the DPP deal with the administration of justice in the political context,’ Mr Griffin said.
The prurient nature of the evidence presented in the two days of the Clarke trial mesmerised Adelaide’s media and public, largely diverting attention away from findings in the Cramond report into Premier John Olsen’s role in the $60 million Motorola affair.
The Cramond report found Mr Olsen had given false and misleading answers to parliament after denying he had formal or informal discussions offering Motorola an emergency radio network contract in return for locating its software centre in Adelaide.”
The plaintiff had pleaded that the following words in the second article were defamatory of the plaintiff:
“Mr Redford rejected suggestions it was stretching credibility to claim he had received the records anonymously when he had also arranged for Ms Pringle’s initial medical treatment, which was carried out by his wife’s doctor.”
There was an issue concerning the manner in which the defamatory imputation had been pleaded. I will return to that question. The defendants denied the defamatory imputation. They also pleaded, that if the article carried a defamatory imputation, the article was published on an occasion of qualified privilege, being in the course of a discussion of government and political matters and, in the alternative, that the words complained of consisted of fair comment made in good faith on matters of public interest. The trial judge found that the words complained of were defamatory. He rejected each of the defences. He further held that the defendants were not actuated by malice in publishing the article. He awarded the plaintiff $25,000 damages. The defendants appeal against the finding that the words complained of were defamatory and the rejection by the trial judge of the two grounds of their defence. The plaintiff did not cross-appeal the finding as to malice.
The Defamatory Meaning
The plaintiff’s statement of claim pleaded that the natural and ordinary meaning of the words complained of carried the imputation that
(1)the plaintiff had improperly attained another person’s private medical records; and
(2) the plaintiff had lied to cover up such improper conduct.
The trial judge held that the words conveyed the imputation that the plaintiff was lying as to the source of the medical records of Ms Pringle and that, although that imputation had not been pleaded, it was covered by the second imputation pleaded. The trial judge also held that the plaintiff was entitled to rely on the imputation because his counsel had articulated it in his closing address.
The defendants make three complaints about those conclusions. First, that the words used did not carry the imputation. Secondly, that that imputation was not covered by the second of the imputations pleaded and thirdly, that the plaintiff was not entitled to rely on it in the absence of an application to amend the statement of claim. I deal with each complaint in turn.
I agree with the trial judge that the words carried the imputation that the plaintiff was lying as to the source of the medical records. The words complained of follow a report that the plaintiff had had the records for about six months, that he had made them available to a Cabinet Minister, that he had received a copy of them about six months before, and that the records had been “dropped anonymously in my box by I presume a Labor party enemy of Ralph Clarke”. To assert immediately thereafter that the plaintiff rejected suggestions that “it was stretching credibility to claim he had received the records anonymously” is to infer that the plaintiff is not to be believed, particularly when the paragraph goes on to state that the plaintiff had also arranged for Ms Pringle’s initial medical treatment. By making that latter statement, the writer of the article is identifying a particular reason for the assertion that the plaintiff is not to be believed. As the trial judge said, although the paragraph is expressed in terms of having rejected suggestions, the ordinary reader would infer that the plaintiff was lying because the ordinary reader would have understood from the passages in the paragraphs preceding and following the impugned paragraph that the hospital records were associated with Ms Pringle’s visit to the plaintiff’s house and the fact that the plaintiff had made arrangements for a medical practitioner to treat Ms Pringle. For these reasons, the words are defamatory and they concern the plaintiff. This ground of appeal therefore fails.
The next ground of appeal is that the imputation was not covered by the second of the pleaded imputations. In order to understand the second imputation, it is necessary to examine the whole pleading. It is convenient to repeat it:
“Such words in their natural and ordinary meaning carry the imputation that the first plaintiff
(a) improperly obtained another person’s private medical records;
(b) lied to cover up such improper conduct.”
Courts have repeatedly stated that the word “improper” lacks precision and is to be avoided when pleading an imputation in an action for defamation: see, for example, Morris v Newcastle Newspapers Pty Ltd [1985] 1 NSWLR 260 at 271; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 710; Chapman v Australian Broadcasting Commission (2000) 77 SASR 181 at 190. However, the defendants did not object to the pleaded imputations either at the trial or on this appeal. Instead, they merely contend that the imputation alleged was not fairly within the second of the pleaded imputations.
Whatever the defects of the words “improper” and “improperly”, the meaning of the pleaded imputation is that the means by which the plaintiff came to have the records, in other words, the source of the records, was improper and that the plaintiff lied to cover up the means by which he had obtained them. In other words, he had lied to cover up the source. For these reasons, the imputation that the plaintiff was lying as to the source of the records is within the second of the pleaded imputations.
The answer which Mr Harris QC made on this appeal to the trial judge’s remarks that he did not object to the original imputation and did not point to any prejudice as a result of it being raised late in the trial, is that there was no need to do so because the plaintiff had not applied to amend the statement of claim to plead the additional imputation. He submitted that, until an application is made to amend, no question of prejudice could arise. It is now too late to raise this issue. The defendants are bound by their conduct at the trial. Furthermore, on this appeal, Mr Harris could not identify any prejudice. There was some unspecified suggestion of other evidence but, when pressed, that suggestion dissipated.
Discussion of Government and Political Matters

The trial judge rejected the defence that the article had been published on an occasion of qualified privilege in that it was a discussion of government and political matters and that the publication was reasonable in the circumstances. While he accepted that the article was a discussion of government and political matters, the trial judge held that the conduct of the defendants in publishing the article was not reasonable. In reaching the latter conclusion, he examined the transcript of a telephone conversation between Mr Abraham and the plaintiff concerning the means by which the plaintiff had obtained Ms Pringle’s medical records.
The telephone conversation began with questions and answers concerning what the plaintiff had said in his personal statement to the Legislative Council the day before and, in particular, the plaintiff’s denial that he had been briefing journalists. Mr Abraham then began what was a relatively lengthy series of questions concerning the means whereby the plaintiff came to have possession of Ms Pringle’s medical records and his use of them. The following exchange occurred when Mr Abraham asked the plaintiff how he obtained the records.
“Q     So how did you happen to have her medical records?
AThey were dropped anonymously into my box who by I presume a Labor party enemy of Ralph Clarke.
Q      How long ago was that?
A      12 months ago or no sorry 6 months ago.
Q      And you have shown no one since?
A      Yes.
Q      That is yes you have shown no one since?
A      I have not shown anybody since.
Q      Except after the case started so that would have been on Tuesday?
A      Yes.
Q      And these are what, her medical records?
ANo it was a medical record of an admission to hospital by her having suffered some severe injuries as a result of a bashing.
QBut no indication of who might have been involved or?
AYes.
QAnd so it indicated who may have been.
AYes.
QAnd it was Ralph was it?
AWell the partner of Edith Pringle at the time. Yeah.
QDo you think that is sort of proper behaviour?
AIn what respect?
QWell I have been told that you know that these, these records have been, you know, available to people like the minister for police and so on, that this hasn’t been ...
AWell, Matthew, I can’t, I can’t be responsible for Ralph Clarke’s factional enemies who drop these things into letter boxes ...
QYou don’t think that given you arranged hospital treatment for her that it’s a bit stretching the credibility to then say that you just happened to get her medical records from the Labor party?
ANow Matthew I didn’t arrange any hospital treatment for anyone. I arranged for a medical practitioner to examine a woman who was obviously distressed, who had obviously been subjected to some violence and that is all I did.
QSo how, so was that a doctor you knew or?
ANo it was my wife’s normal doctor, no personal relationship at all. In fact I’ve never met the doctor.
QDid Edith stay with you at all?
ANo.”
As the trial judge noted, it is apparent from this exchange that Mr Abraham misunderstood the occasion to which the hospital records referred. Despite the fact that the plaintiff corrected Abraham as to the nature of the records, pointing out that they were hospital records and not medical records of a general practitioner, and despite the fact that the plaintiff corrected Abraham when he asserted that the plaintiff had arranged hospital treatment for Ms Pringle, it is apparent from the article that Abraham entirely confused the nature of the records. The article asserts that the plaintiff had arranged Ms Pringle’s initial medical treatment and that that treatment was provided by the plaintiff’s wife’s general practitioner. It is on the basis of those incorrect facts that Abraham wrote that the plaintiff rejected suggestions that it was stretching credibility for the plaintiff to claim he had received the records from an anonymous source. It is to be noted that it is in response to the very question in which Abraham suggested a lack of credibility in the plaintiff’s explanation that the plaintiff corrected Abraham, pointing out that he had not arranged any hospital treatment but, instead, medical treatment by a general practitioner. It is clear that the plaintiff was harking back to his answer only six questions earlier that the records he had were hospital records, not medical records. In my view, it is plain that Abraham understood the difference between records kept by a hospital and medical records kept by a general practitioner, since the fourth paragraph of the article refers to health records showing an admission to hospital and the seventh paragraph refers to medical records kept by a general practitioner.
In his evidence, Mr Abraham said that he thought Ms Pringle had given the plaintiff her medical records. Later in his evidence, he said that he thought an alternative explanation to that provided by the plaintiff was that he had been given the hospital records by Ms Pringle. It is apparent that the innuendo in the article is that the plaintiff had obtained the records because he had arranged for Ms Pringle’s medical treatment by his wife’s medical practitioner. If Mr Abraham had conducted himself reasonably, he would have put that view to the plaintiff. Had he done so, he would again have been reminded of the nature of the records and that the true position would then have become clearer to him. The trial judge concluded that the fair course to adopt would have been to give the plaintiff the reasons for challenging his credibility.
“The fair course would have been to give to the plaintiff his reasons to challenge the plaintiff’s credibility. He should have put to the plaintiff his views that Ms Pringle was the possible source of the notes and why he had formed his opinion regarding the plaintiff’s credibility. This would have given the plaintiff an opportunity to respond. As I stated earlier, this approach would have been likely to have elicited that the hospital notes related to another time and another set of circumstances than that of the visit by Ms Pringle to the plaintiff’s home. It would have resolved the mistake Mr Abraham was labouring under. In my opinion, it was unreasonable for the defendants to publish the defamatory material without adopting this course.”
Instead, Mr Abraham merely challenged the explanation given by the plaintiff without stating why he did so. I respectfully agree with the trial judge’s conclusion that the conduct of the defendants was not reasonable so that the article was not published on an occasion of qualified privilege.
Fair Comment
The trial judge rejected the defence of fair comment. Although he accepted that the article concerned a matter of public interest, he held that the statement complained of was a statement of fact rather than an expression of opinion. He also held that the comment was not fair. The defendants appeal against both of those latter conclusions.
The trial judge held that the words “Mr Redford rejected suggestions that it was stretching credibility” would be understood by the ordinary reader to mean that there was more than one person who had made such a suggestion and not that it was “The Australian” newspaper which was making the suggestions. For that reason, he held that those words were a statement of fact. He added that, if he was wrong in that conclusion, he did not think there is any identifiable comment. I agree, albeit for slightly different reasons. Whatever the ordinary reader might have understood by the expression, “Mr Redford rejected suggestions, that it was stretching credibility to claim he had received the records anonymously ...”, the paragraph does not contain a statement of opinion. It is sometimes difficult to distinguish between statements of opinion amounting to comment and a statement of fact: Rocca v Manhire (1992) 57 SASR 224 per King CJ at 229. But I do not think that there is any difficulty here. The article is stating that it is a fact that Mr Redford had rejected suggestions that it was stretching credibility to claim he had received the records anonymously. It is stated as a fact in the same way that the paragraph also states that it is a fact that the plaintiff had arranged Ms Pringle’s initial medical treatment. The trial judge was therefore correct in concluding that the paragraph did not contain an expression of opinion amounting to comment.
Given the conclusion just reached, it is unnecessary to deal with the defendant’s contention that the trial judge erred in concluding that the comment was not fair. I do so for completeness. In order to be able to attract the defence of fair comment, the comment must be based on fact and the fact must be true. As Lord Denning MR said in London Artists Limited v Littler; Grade Organisation Limited v Littler [1969] 2 QB 375 at 391:
“In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v Dimbleby [1951] 1 K.B. 360, 364. They are the facts on which the comments are based or from which the inferences are drawn - as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v Foot [1952] AC 45; but he must get them right and be ready to prove them to be true.”
See also Sutherland v Stopes [1925] AC 47 at 62 – 63; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 – 321. As is apparent from the facts already mentioned, the facts upon which the purported comment is made are not accurate. The plaintiff had not arranged for Ms Pringle’s initial medical treatment, Ms Pringle’s initial medical treatment had not been by the plaintiff’s wife’s medical practitioner. In addition, no distinction is made between the hospital records and the medical records kept by a general practitioner which had been prepared in relation to Ms Pringle. Plainly, the facts upon which the purported comment were based were not truly stated and the defence of fair comment was not available.
For all of these reasons, I would dismiss the appeal in respect of the second article. The defendants’ appeal should therefore be dismissed.
BLEBY J.I agree that the appeal should be dismissed.
The first article – defamatory imputation
Mr Harris QC, for the appellant, argued that the article was not reasonably capable of bearing the imputation found by the trial Judge. In my opinion it was, and furthermore, the trial Judge was correct in holding that it did bear the imputation which he found. I agree with the reasons that Debelle J has given for that conclusion. The imputation can properly be drawn from the content of the whole article, its headline, and the juxtaposition of the offending paragraphs between themselves and with other parts of the article.
I merely add that whether a defamatory imputation can be drawn will also depend on external and well‑known factors prevailing at the time. In this case, great weight was placed on what was described elsewhere in the article as the poisonous political climate in the State between the two major political parties. This was epitomised by the defamation litigation between the leader of the opposition and the Premier, also referred to in the article, and its surrounding circumstances. In the political climate in which the article was published, and the association in the article of the respondent with the political interests of the Premier, the inference would be more likely to be drawn than might otherwise be the case that the respondent was one of the group of “South Australian Liberals” who had been encouraging Miss Pringle to commit perjury.
First Article – s 7 Wrongs Act
In order to attract the qualified privilege afforded by s 7 of the Wrongs Act, the article had to be a fair and accurate report of the proceedings of either House of Parliament. The matters contained in the proviso to s 7 are not presently relevant.
In his speech in the House of Assembly, the leader of the Opposition made the following relevant allegations:
1.Miss Pringle perjured herself in court, and in doing so received strong support from “Government people for the most malicious political motives”.
2.Miss Pringle had repeatedly lied about a conversation she had with the leader of the Opposition both inside and outside court “and has been encouraged to do so, and that is when politics got involved”. That allegation is clearly linked with the first allegation mentioned above.
3.The leader’s statement then immediately continued:
“Indeed, I have grave fears that there had been political involvement in this case. The police were directed to investigate a single, unsubstantiated, unsourced allegation made in Parliament on 26 May last year by a Liberal member. That allegation related to whether or not ‘there has been any political interference with or pressure on police or others in regard to the charges against the member for Ross Smith’.
Certainly, a Liberal member of Parliament and a Liberal staff member have been persistently briefing journalists in ‘an off the record way about this case, spreading false and defamatory information along the lines of, ‘If we get Ralph Clarke, we can get Rann.’ Lie, after lie, after lie has been told to journalists in a vicious smear campaign….”
That was not an allegation of encouraging perjury, but of other lies and political interference.
4.The statement relevantly concluded that “these people” (meaning Liberal Members of Parliament) “were delighted in Miss Pringle’s perjury until it all came unstuck”. This plainly relates back to the first allegation concerning the group who were said to be encouraging the perjury.
The personal explanation made by the respondent in the Legislative Council appeared to be directed initially to his denial that he had been “persistently briefing journalists in an off the record way about this case”. He then stated the facts, summarised in the second paragraph of Mr Abraham’s article, concerning the assistance that he and his wife had afforded to Miss Pringle. He went on to point out that he was a legal practitioner and conscious of the importance of the administration of justice. He continued that not only had he acted “with propriety” in dealing with the matter but said: “I utterly reject the innuendo and the background briefing of the Hon Michael Rann in relation to this matter”.
While it could have been expressed more clearly, nevertheless I take that to be a denial on the respondent’s part not only that he had been “persistently briefing journalists in an off the record way about this case”, but also that he had lied to anyone, that he was party to supporting or encouraging Miss Pringle in perjuring herself, or that he was “delighted in Miss Pringle’s perjury until it all came unstuck”.
To the extent that Mr Abraham’s article said nothing about the respondent’s denials, but only mentioned the physical and emotional support he had given to Miss Pringle after the alleged assault, it was not a fair and accurate report, and therefore did not attract the privilege conferred by s 7 of the Wrongs Act.
First Article – Discussion of Government and political matters
The article purported to contain or to include a report of proceedings in both Houses of Parliament. Once the conclusion is reached that it was not a fair and accurate report, it is an almost inevitable conclusion that the conduct of the defendants was not reasonable in the sense discussed in Lange v Australian Broadcasting Commission (1997) 189 CLR 520 at 571.
It is important to recall the basis of the High Court’s reasoning in Lange in identifying the reason for and the nature of the defence of qualified privilege based on discussion of government and political matters. A number of sections of the Constitution were identified as giving rise to the privilege. As the Court said (at 560):
“Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 168, they are ‘a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a “right” in the strict sense’.”
The Court went on to say (at 561 – 562) that the constitutional freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions:
“The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.”
As the Court pointed out at 565, the issue raised by the Constitution in this case is whether the common law of defamation, affected by s 7 of the Wrongs Act, conforms with the freedom required by the Constitution. As will be seen, in my opinion it does, and indeed it goes further than the constitutional requirement.
A statute which “diminishes the rights or remedies of persons defamed and correspondingly enlarges the freedom to discuss government and political matters is not contrary to the constitutional implication. The common law rights of persons defamed may be diminished by statute but they cannot be enlarged so as to restrict the freedom required by the Constitution” (at 566).
It was in that context that the Court limited the constitutional protection to reasonable conduct of the defendant and said (at 574):
“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 (Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211).”
What the Court said there was not exhaustive but was intended to indicate the general rule. However, the reasonableness of the publication may depend on the state of mind of the publisher and the publisher’s belief or otherwise as to the truth of the imputation. In other words, in order to avail oneself of the constitutional protection, there may need to be some circumstances dehors the statement which give rise to a belief on the part of the publisher as to its truth or otherwise. To the extent that a statement is or includes a report of parliamentary proceedings, s 7 of the Wrongs Act does not require reasonable grounds for believing that the imputation is true or absence of a belief that the imputation is untrue. In such a case, leaving aside questions of malicious publication or indecent or blasphemous material, where the defendant has been requested to publish a reasonable letter or statement by way of contradiction or explanation of the report and does not refuse or neglect to do so, all that is required is that the report is fair and accurate.

Given the limited nature of the constitutional protection, it does not necessarily override the protection afforded by s 7 of the Wrongs Act. In most cases, if the publication is one which could attract the privilege afforded by s 7 but does not because it is not fair and accurate, it is unlikely to attract the constitutional guarantee. This is because, if the report is not fair and accurate, it will seldom be a reasonable publication. If it is fair and accurate and is not published maliciously, and if the other provisos of s 7 are complied with, it does not matter that the defendant may not believe that the imputation is true or that the defendant believes that it was untrue.
I am therefore happy to rest my conclusion on the fact that because the article in its material parts incorporated what purported to be a report of parliamentary proceedings which was not fair and accurate, it was ipso facto not a reasonable publication. It was therefore not protected by the constitutional guarantee.
The Second article
I agree with the conclusion and reasons of Debelle J and have nothing to add to those reasons.
WICKS J. I agree that this appeal should be dismissed. I do so for the reasons given by Debelle J.

[2001] SASC 198

12 June 2001