Norman Peterson (Respondent) v Advertiser Newspapers Limited (Appellant) No. SCGRG 93/462 Judgment No. 5018 Number of Pages 56 Defamation Newspapers and Printing (1995) 64 Sasr 152
[1995] SASC 5018
•29 June 1995
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1) OLSSON(2) AND MULLIGHAN(3) JJ
CWDS
Defamation - newspapers and printing - Appeal and cross appeal from judgment for $88,200 damages for defamation - series of articles in the Advertiser - defamatory material - Advertiser argued statements were not actionable.
19/11/95 - contained defamatory statement of fact - no apparent attempt to review significance of known facts - conveyed a view that could not reasonably be fairly and rationally come to on the known facts - gave a misleading impression - defamatory word used recklessly and imputed a notion of dishonesty not warranted - sufficient to sustain a finding of express malice - to make out defence of "fair comment", onus on Advertiser to prove truth of assertion - unable to do so.
20/11/95 - contained defamatory statement of fact - omission of relevant facts - statement unreasonable because it reflected a failure to check true facts - reckless indifference to truth or falsity of inferences equated with lack of belief in truth - establishes express malice - unable to establish defence of qualified privilege or fair comment.
Commonwealth Constitution; Constitution Act, 1934 (SA) and Defamation Act, 1974 (NSW) s22. Theophanous v Herald and Weekly Times Ltd (1994) 68 ALJR 713; Stephens v West Australian Newspapers Ltd (1994) 68 ALJR 765; Kemsley v Foot and ors (1952) AC 345; O'Shaughnessy v Mirror Newspapers Limited (1970) 72 SR (NSW) 347; Lefroy v Burnside (1879) 4 LR Ir 556; Wright v Australian Broadcasting Commission and Anor (1977) 1 NSWLR 697; Clark v Molyneux (1877) 3 QBD 237; Horrocks v Lowe (1975) AC 135; Campbell v Spottiswoode (1863) 3 B and S 769; Coetzee v Union Periodicals Ltd and Ors (1931) WLD at 43; Christie v Robertson (1889) 10 NSWLR 157; Sutherland and Ors v Stopes (1925) AC 47 and Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44, applied. Milkovich v Lorain Journal Co (1990) 111 L.Ed.2d.1; Ollman v Evans (1984) 750 F.2d.970; Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 and Hawke v Tamworth Newspaper Co Ltd (1983) 1 NSWLR 699, discussed.
Words and phrases considered/defined - "fair comment".
HRNG ADELAIDE, 9-14 March 1995 #DATE 29:6:1995 #ADD 4:9:1995
Counsel for appellant: Mr A R Harris with him
Mr J R Sackar QC
Solicitors for appellant: Minter Ellison Baker
O'Loughlin
Counsel for respondent: Mr R J Whitington
Solicitors for respondent: Sykes Bidstrup
Counsel for intervener (State of SA): Mr J J Doyle QC with
Ms G L Ebbeck
Solicitors for intervener: Crown Solicitor (SA)
ORDER
Appeal allowed, cross-appeal dismissed.
JUDGE1 COX J The evidence and issues relating to this appeal are described in the reasons of Olsson J.
2. The judgements of the High Court in Theophanous v Herald and Weekly Times Limited (1994) 68 ALJR 713 and Stephens v West Australian Newspapers Limited
(1994) 68 CLR 765 enunciate a defamation defence that is derived from a freedom to publish material discussing political matters and related subjects that is implied in the Commonwealth Constitution. The nature of the defence and the conditions upon which it may be advanced, in the opinion of Mason CJ, Toohey and Gaudron JJ, are summarized at the end of their Honours' joint judgement in Theophanous. Deane J would have imposed no defamation-type conditions at all to the exercise of the constitutional freedom, but joined with Mason CJ, Toohey and Gaudron JJ in the answers they proposed in Theophanous so that there would be a majority of the Court in favour of those answers. See also Deane J's reasons in Stephens. That, as I understand it, does not create a precedent, to be treated as authoritative in subsequent cases, as to the precise scope of the constitutional defence and any conditions that may be applicable to its operation. It does mean, however, that this Court is bound in this appeal to apply the constitutional freedom with at least as much liberality as the joint judgement requires.
3. The common law defences that apply in South Australia are not rendered nugatory, in my opinion, by the constitutional freedom in the area in which the latter applies but they are modified to the extent necessary to make them consistent with that freedom. The effect of the modifications will be to the benefit of defendants, not plaintiffs. For instance, it will be easier now for a newspaper to overcome the duty-interest problem in establishing a defence of qualified privilege - an obstacle, indeed, that the learned Master held that the appellant had not surmounted in this case - or to show, where a defence of fair comment is raised, that the comment was on a matter of public interest. No doubt there will be many cases in future in which the defendant will be willing to rely on the constitutional defence alone. However, in doing that he will be obliged, at least until the subject is reconsidered by the High Court, to establish the conditions of the constitutional defence's operation that are set out in the joint judgement, and it may sometimes be the case that a defendant will wish to rely, instead or additionally, on a common law defence and so avoid the possible consequences of the adverse onus of proof with respect to those conditions including any difficulty he might have encountered in proving the reasonableness of publication.
4. This case was tried and judgement delivered before the High Court's decisions in Theophanous and Stephens were handed down. The learned Master considered that the implied constitutional right of freedom of expression that was discussed in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 did not affect the law of defamation. He therefore devoted the greater part of his long and careful reasons for judgement to the defences of qualified privilege and fair comment. For the purpose of the appeal and with the consent of the respondent the defence has been amended to enable the appellant to plead the constitutional defence conformably with Theophanous and Stephens. Rather than simply examine the evidence and the Master's findings in the light of the constitutional defence, I think it convenient to go first to the common law defences that the Master rejected.
5. I start with the first editorial, published in The Advertiser on 19 November 1992, and the defence of qualified privilege. Until Theophanous it was considered that a newspaper could not generally avail itself of this defence because it could not show that its published statements were made in pursuance of a duty to make them with a corresponding duty or interest on the part of its readers to receive them. Adam v Ward (1917) AC 309. However, the joint judgement in Theophanous makes it plain that the reciprocity requirement will be sufficiently supplied in the case of political statements by the interest of the public at large in a parliamentary democracy in the discussion of political matters. In other words, political discussion is an occasion of qualified privilege. Political discussion includes discussion of the conduct, policies and fitness for office of members of parliament. See Theophanous at 718. There is no extraneous matter in the first editorial that would take it outside the defence's protection. A common law defence of qualified privilege will be defeated by proof that the defendant was actuated by malice, that is, that he did not believe that his defamatory statement was true or that he was reckless as to its truth or falsity or that he made the statement with ill-will or some other improper motive in the sense of its being the sole or dominant motive for the publication. It may be that, in the case of political discussion, malice now has to be more narrowly defined than this if it is to defeat a defence of qualified privilege (see Theophanous at 726-7) but it is unnecessary to reach a decision about that for the purpose of this appeal. Even on the assumption that the appellant's qualified privilege defence could be defeated by proof of malice as the common law understands that term, the necessary proof in this case was lacking. The language of the first editorial may have been severe and its criticism of the respondent wrong-headed, but this was not a case in my opinion in which malice could be inferred from the contents of the document itself and I do not think that the other evidence upon which the respondent relied as evidence of malice took the matter any further. Had this been a case in which the onus of proof was carried by the appellant, it would have counted against it that it relied predominantly on Mr Jory to prove the newspaper's relevant state of mind and evidently took care to keep the editor and the leader writer out of the witness box. However, malice is not to be inferred lightly. Horrocks v Lowe (1975) AC 135, at 150-1; Calwell v Ipec Australia Ltd (1975) 135 CLR 321, at 332. It was for the respondent to prove it, not for the appellant to disprove it. In my opinion it failed to do so. That was the conclusion, indeed, of the learned Master with respect to both editorials and on the appeal the appellant did not challenge that finding as to the first editorial.
6. For these reasons the appellant was entitled to succeed, in my opinion, in its qualified privilege defence of the claim that was based on the first editorial. However, in case I am wrong about that I turn to consider the alternative defence of fair comment.
7. It was conceded by the respondent at the trial in the case of both editorials that they dealt with matters of public interest. Theophanous now establishes that, anyway. The appellant argued that all of the words in the first editorial that were impugned by the respondent were comment, not assertions of fact, but the Master considered that the description of the respondent as "the erratic Speaker" was a statement of fact and that the appellant had failed to prove the truth of the statement. That meant that the defence of fair comment could not succeed. His Honour went on to say that the editorial would in any event have failed the fairness test. The appellant attacks these findings. The respondent, for his part, complains of the Master's findings that the statement that the respondent "had capitulated...before the first speaker stood up" and the reference to his "duplicity" were comments. So the first question is one of characterization.
8. It must be said that the rigid distinction that is drawn between fact and comment in the law of defamation - that a word or statement must be one thing or the other - is as unsatisfactory as the like distinction between fact and opinion in the law of evidence. It assumes a dichotomy that it may be very difficult to apply in practice. Many disparaging terms are hybrids, with elements of both fact and opinion about them, and it hardly seems ideal to classify them all as facts even where the factual content is relatively minor. Sometimes it will be possible to classify a word or statement as fact or comment according to the context in which it is used or the circumstances of its publication (Gatley on Libel and Slander (8th ed.) pars.697-706; O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166, at 172 ff), but often a degree of ambiguity or uncertainty will remain. I think one may venture the generalization, however, that the courts should not be quick to identify one of these mixed or ambiguous expressions as being a statement of fact where it occurs in a newspaper editorial, the very place where the reader will expect to find expressions of opinion rather than statements of fact, particularly on political subjects.
9. It is also of the nature of a newspaper editorial that it assumes a degree of topical factual awareness on the part of the reader. Those who are interested in the political opinions of an anonymous leader writer or the publisher who employs him are hardly likely to have ignored the news pages upon which those opinions are probably based. The State Bank affair and the Royal Commission and their effect on the Government of the day and, indeed, the question of the Government's survival were front-page news at this time and little was needed in this particular editorial to link the comment it contained with the substratum of fact upon which the comment was based. Cf. Kemsley v Foot (1952) AC 345; Pervan v North Queensland Newspaper Company Ltd
(1993) 178 CLR 309. The learned Master deals with these background matters in his reasons. The respondent had promoted changes to the WorkCover scheme and had been correctly reported in The Advertiser earlier in November 1992 as threatening to withdraw his support for the Government because of the union reaction to his proposed amendments. A reader of the editorial would also have known that "yesterday's long but futile Parliamentary debate" was the debate on the Opposition's motion of no confidence which was lost on the casting vote of the respondent. It is in the light of these facts and circumstances that a classification of the words "the erratic Speaker" in this editorial is to be made.
10. The relevant dictionary definitions of "erratic" are "irregular or uncertain in movement; having no fixed course or direction" and "inconsistently variable in behaviour or habit; unpredictable; irregular or eccentric in opinion." Both definitions are taken from the New Shorter Oxford English Dictionary. When used of the course of a motor car along a road the word will be purely descriptive, namely, a statement of fact. Spoken of a politician it no doubt has an element of implied fact about it but it is much closer to the opinion or comment end of the spectrum. The learned Master appears to have understood the expression "the erratic Speaker" to have implied that the respondent had acted inconsistently. See page 52 of his reasons. I think he was right. In Australian society words such as "erratic" and "inconsistent" and "unpredictable" are familiar items in the vocabulary of political disparagement. I think a reader of the first editorial would have treated the word "erratic" as a comment or criticism related to the respondent's support for the Government in the no confidence motion, to which allusion is made in the first and third columns of the editorial, when compared with the respondent's readiness to vote against the Government over the WorkCover issue only days before, as alleged at the end of the editorial. The substratum of fact upon which the offending epithet commented was thus identified in the editorial itself. In my opinion, the learned Master was in error in treating the words "the erratic Speaker" as a statement of fact for the purpose of the fair comment defence. The respondent argued on the appeal that the Master erred in categorizing the reference in the first editorial to the respondent's "duplicity" as comment rather than fact. Again, I think this is a word that must take its meaning from its context. Cf. Rocca v Manhire (1992) 57 SASR 224, at 229, as to an accusation of dishonesty. The relevant dictionary definition of "duplicity" is "the quality of being deceitful in manner or conduct; the practice of being two-faced, of dishonestly acting in two opposing ways; deceitfulness; double-dealing" (New SOED), and in some contexts it could be highly defamatory and imply a foundation of discreditable facts. In the first editorial the word was being used, I think, in the sense of inconsistency - acting in two opposing ways - but without any necessary overtone of dishonesty. In my opinion the ordinary reader would have considered that the editorial writer was using it as a synonym for the earlier "erratic" and for the same reason. The alternative view is that the respondent was being described as dishonest or deceitful for some reason that was not explained or referred to in the editorial. I do not think that is the way an ordinary reader would have understood it. In my opinion, the Master came to the correct decision when he treated the word "duplicity" as comment.
11. Next, the respondent submitted that the Master should have treated as fact, not comment, the statement in the editorial that the respondent "is capable of rationalising almost any political stance, however contorted or contemptible, if it suits his own ends." It was argued that the reference to "his own ends" implies that the respondent had voted on the no confidence motion in accordance with self interest and not, presumably, in the interests of the community. A similar complaint was made of the statement in the editorial that the respondent in the no confidence debate, by way of contrast with his WorkCover campaign, "capitulated on this vastly more serious issue before the first speaker stood up." I think the Master was right in his classification of these passages. While, taken literally, both statements contain an element of factual assertion, they are more appropriately to be classified in the editorial as comment.
12. The appellant does not contest the Master's finding that the first editorial was defamatory of the respondent.
13. The next question is whether the comment in the first editorial was fair. Because the Master found that the words "the erratic Speaker" were a statement of fact he was not obliged to deal with the question of fairness, but he did discuss the matter briefly and concluded that the comments made in the editorial were quite unfair.
14. The notion of fairness in the defamation defence of fair comment is a technical one with an established if not entirely clear meaning. The test is whether a fair man, however prejudiced he may be, however exaggerated or obstinate his views, would have been capable of making the comment in question. Merivale v Carson (1887) 20 QBD 275, at 280; Silkin v Beaverbrook Newspapers Ltd (1958) 1 WLR 743, at 748-9. Cf. Rocca v Manhire, supra, at 229-230. It is not a question, of course, whether in the Court's opinion the comment was fair in the ordinary sense of that word.
15. There are certain notorious matters, relevant to political life in South Australia and elsewhere, that must be borne in mind, I think, when forming a judgement about the fairness or otherwise of the first editorial.
16. It was the duty of the respondent as Speaker of the House of Assembly to chair the proceedings with impartiality. However, he was under no obligation to be impartial when it came to exercising a casting vote on any political question before the House such as a motion of no confidence in the Government. There are places, such as the House of Commons at Westminster, where the Speaker upon taking office withdraws from the party room and, in the event of having to vote on a political question, always acts as impartially as possible, usually by casting his vote in the negative. In South Australia, with its much smaller House of Assembly elected by preferential voting, the prospect of the Speaker holding the balance of power is much greater and it has not been thought improper, at least in recent times, for the Speaker to exercise any casting vote in a partisan fashion. The general acceptance of the modern local practice is reflected indirectly in the first editorial. The respondent was not criticized for exercising his casting vote in a partisan way but simply for exercising it in favour of the Government instead of the Opposition.
17. Secondly, inconsistency of one kind or another, and certainly allegations of inconsistency, are endemic in Australian political life. Governments in particular are routinely criticized for failing to carry out election promises, for saying one thing and doing another, for not acting even-handedly between groups, for lacking consistency in pursuing declared policies, and so on. Individual members of Parliament come under the same condemnation, promising one thing to their electorate and then backing down in Parliament because the vote in the party room went against them. And, as everyone knows, the party room is where the fate of most important issues, and therefore the result of the important debates in Parliament, are decided, and in the case of most debates decided in advance. Furthermore, there are certain kinds of debate that are resolved on party lines as a matter of course, without any need for a party meeting. It would be naive to suppose, at least for all of those members of Parliament who belong to a political party, that the way they are going to vote on any motion of no confidence in the Government of the day is not determined for practical purposes before the debate begins.
18. Thirdly, politics in Australia is not a cloistered occupation. Political debate in and out of Parliament is carried on in a vigorous not to say colourful way. Examples of this at the highest level are legion. As Windeyer J said, a man who chooses to enter the arena of politics must expect to suffer hard words at times (Australian Consolidated Press Ltd v Uren (1966) 117 CLR
185, at 210). There is a long tradition in this country of strong criticism and modes of expression in political discussion and that includes the alleged shortcomings of members of Parliament. As long as published comment deals only with a member's political views and actions and even within limits his political motives, he may have to lump, if not like, some pretty harsh public expression of hostile opinion. That does not mean that politicians may be defamed with impunity. It does mean, however, that whether any particular words spoken of a politician are actionable may have to be judged in the light of his occupation - its environment of snap judgments and point-scoring and uncomfortably plain speaking including at times vehement denunciation - and the public's expectations with respect to it. For that reason a criticism of occupational inconsistency is unlikely to be actionable when made of a politician, though it may be if made of a University examiner.
19. Considered against this background the defence of fair comment with respect to the first editorial was, in my opinion, made out. The editorial said nothing about the respondent's private life or personal character. It commented severely, it may be in the ordinary sense of the word unfairly, on his political actions and judgement in certain respects but not in a way that transgressed the fair comment test.
20. The learned Master saw the matter differently. He said -
"...I have reached the conclusion that the comments made
were not fair within the meaning of the rule. It is obvious
from the first editorial that the defendant espoused the
view that the content of the report of the Royal
Commissioner was such that any honourable Government would
have resigned and that any steps taken by the plaintiff to
relieve the Government of that responsibility must be
regarded as similarly dishonourable. Had the comment been
pitched in such terms a convincing argument could be put
forward that the comment was fair within the meaning of the
rule. However, the comment actually made was totally
condemnatory of the plaintiff. The comment did not merely
express an opposing view and the reasons for such a view,
but attributed to the plaintiff in an unqualified way, the
basest of motives behind the exercise of his casting vote in
favour of the Government. The comment does not therefore
consist of gross exaggeration or the maintenance of
obstinate or prejudiced views. They go well beyond such
statements." (Reasons, pp55-6)
21. I think, with respect, that this takes quite an exaggerated view of the first editorial's language. If it is actionable to call a politician "erratic" in his political judgement, the outlook for free speech in this country is bleak indeed. There seems to be room for more than one view on the question of the respondent's consistency or otherwise in this instance. The appellant was not obliged to set out the opposing arguments or opinions before advancing the one it preferred. There is no suggestion in the editorial that the respondent's "own ends" were not his political ends, and there was nothing defamatory about suggesting that those ends motivated his political stance. I have already said that, in my view, "duplicity" was used in the editorial simply as another word for "erratic" in the sense of "inconsistent". The Master described the implication in the penultimate paragraph of the editorial, that the respondent had made up his mind as to the exercise of his casting vote before the debate began, as "a most serious defamatory comment." No doubt the respondent, as an independent member though generally aligned with the Government party, had the unusual advantage of being able to listen to a debate and then decide how he would exercise his casting vote without the formal restraint of a prior or assumed party decision that was for all practical purposes binding on him, but even so one may suppose that there were political considerations that he had to weigh very carefully in reaching any decision. All that the writer was saying was that, whatever influences may have determined the way the respondent voted on the no confidence motion, they did not include the speeches - and I dare say they were fairly predictable - of those who took part in the debate. At any rate to express an opinion that put the respondent in the same position as all of the Labor and Liberal members was not, in my view, most seriously defamatory of him. I do not think that the editorial, properly understood, attributes to the respondent the basest of motives. Politics and political feelings being what they are, the response of individual electors to the respondent's part in the WorkCover affair and the no-confidence vote probably ranged from the strongest praise to the strongest condemnation. It would be reasonable to conclude that the view of any particular elector or commentator on the subject would be conditioned largely by his attitude at that time to the Government. The appellant newspaper made no bones about its attitude. Obviously it wanted the Government out of office. It could not wait for the next election. It was exasperated at the respondent's giving his vote to the Government on the no-confidence motion and so enabling the Government to survive. It expressed itself strongly on the subject in the first editorial. It was legally entitled to do so. It directed its fire at the respondent because of what it claimed to see, rightly or wrongly, as his critical role in the Government's survival. The fact that others may have seen the matter quite differently does not make the editorial unfair in the relevant sense.
22. Proof of malice will defeat a common law defence of fair comment but, as I have already indicated, the learned Master found that the respondent had not established his plea of malice with respect to the first editorial and the respondent, correctly in my view, did not attack that finding on the appeal.
23. It is unnecessary in the circumstances for me to consider whether the appellant made out its constitutional defence on the evidence that was led. Here, of course, the appellant carried the burden of proof on the matters set out at the end of the joint judgement. Cf. Radio 2UE Sydney Pty Ltd v Parker
(1992) 29 NSWLR 448, at 462-3.
24. It is also unnecessary for me to deal with the issue of damages. I would only observe, with all respect to the Master, that an award of $85,000 damages for the first editorial was, in my opinion, even assuming that the appellant had failed in its defences, wholly disproportionate to any injury to feelings or reputation that the respondent could reasonably be found to have suffered. There was no special damage alleged. The damages should have been fixed at quite a modest figure.
25. For the reasons I have given I am of the opinion that the appellant should succeed in its appeal on the first editorial.
26. That leaves the second editorial. It is set out in the reasons of my brother Olsson. The respondent has cross-appealed against the learned Master's rejection of his claim with respect to this editorial. I can express my reasons for rejecting the cross-appeal quite shortly.
27. The defence of qualified privilege was established, in my opinion, with respect to the second editorial for reasons that are substantially the same as those applicable to the first editorial. The subject matter of the editorial was within the field of political discussion and so was protected by the privilege. The respondent failed to prove to the Master's satisfaction that the appellant was actuated by malice in publishing the second editorial. That finding was made a subject of the respondent's cross-appeal. Reliance was placed on such matters as the extravagance of the comments, the failure to explain to the readers what little opportunity the respondent had had to read the report, the appellant's reliance on Mr Jory (the sanitized front man, as Mr Whitington called him) instead of the editor and the leader writer to repel an inference of (it was said) at least recklessness, and the want of any subsequent apology or withdrawal. The Master thought that the comment in the second editorial went beyond the bounds of fairness but that it did not establish malice. I referred earlier in these reasons to the burden of proof and the courts' hesitation in making a finding of malice in defamation cases. I would uphold the Master's decision on this point.
28. As to the defence of fair comment the Master found that with one minor and, as he held, insignificant qualification the appellant established the truth of the facts referred to in the second editorial. The evidence, in my view, justified that finding. The Master described the comment that the editorial contained as "vigorous, even scathing criticism" of the respondent but he concluded, though obviously with little enthusiasm, that the comment must be regarded as fair within the meaning of the test. Mr Whitington for the respondent challenged this conclusion. He relied on a passage in Gatley (par.178) which makes the point that comment on facts inaccurately reported cannot be fair comment. He referred us to Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697, at 707. So, it was said, it was quite unreasonable for the appellant to criticize the respondent for not having read the Royal Commission's first report when the evidence showed that he did not have time to read it.
29. The report was tabled in the House of Assembly at 2.00 pm on 17 November 1992. The no confidence debate started about 2 o'clock the following afternoon and ended just after midnight. The second editorial appeared in The Advertiser of November 20. Central to the editorial's criticism was the respondent's statement to Parliament that he had read the report's "findings". The section of the report headed "Key Findings" consisted of eight pages out of about 400 pages with appendices. The respondent said in evidence that he was too busy to read any more than that, and he described his activities in the House and at home and in his electorate and on other official duties in the 24 hours between the tabling of the report and the start of the debate. The respondent presided over the debate. He made his statement about reading the findings just before the vote was taken. Mr Whitington likened the respondent's situation to that of a judge who is reported in the local paper, say, for having done "only five cases in a year when the other judges did twenty", without the explanation that the five cases each ran for two months. The analogy is, I think, unsound. As I understand the evidence it was not impossible for the respondent to read the report prior to the no confidence vote (and that did not necessarily mean every word of it); it was simply that he had other important things to do and, anyway, he was not expecting the no confidence debate to be called on that day. There would seem to have been a question of priorities and judgement involved -whether the respondent should have read more of the report the night he received it, or the next morning instead of spending as much time as he did on electoral affairs, or even during the debate itself as he had done, though with some difficulty, in the case of the findings the previous evening. The respondent may have had what he regarded, and probably many others would regard, as very good reasons for choosing to do other things instead of reading the report but we are not here in the area of impossibility or indisputable fact. It must be said, I think, that the criticism in the second editorial was severe, possibly unreasonable, but I do not think that in all the circumstances the editorial was one that a fair-minded person, though having the appellant's strong prejudices, could not have written. I have already dealt with the question of malice. In my opinion the learned Master came to the correct decision when he upheld the defence of fair comment to the second editorial.
30. For these reasons I would allow the appeal, set aside the award of damages and enter judgement in the action for the appellant. I would dismiss the respondent's cross-appeal.
JUDGE2 OLSSON J The Full Court has before it an appeal and a cross appeal in relation to a judgment in the sum of $88,200 damages for defamation entered by a Master of this court in favour of the respondent against the appellant. The appellant asserts that the claim against it ought to have been dismissed and that, in any event, the damages assessed against it are manifestly excessive. The respondent complains that certain elements of his claim ought not to have been dismissed and that the damages assessed are manifestly inadequate.
2. Before addressing the legal arguments arising on the appeals it is first necessary to attempt a resume of the salient facts.
3. As at November 1992 the respondent ("Peterson") was the Speaker of the House of Assembly of the Parliament of South Australia. Following an election held late in 1989 the then Labour Government was in a somewhat precarious situation. In the lower house it had 22 seats. The Opposition and the National Party combined had 23 seats. There were also two so-called "Independent Labor" members, namely Mr Martyn Evans and Peterson, who had announced general support for the Government.
4. Following the election of Peterson as Speaker, the Government and the Opposition had, in practical terms, an equal number of members. The Speaker did not have a deliberative vote, but was entitled to exercise a casting vote in the event of an equality on the floor. Unlike the situation in the House of Commons, the long established tradition in the South Australian Parliament was that the Speaker was entitled to (and did) exercise any casting vote according to his personal and political predilection.
5. The practical situation which therefore existed was that Peterson effectively held the balance of power in the House of Assembly and the Government was dependent upon his support to remain in office, assuming that Mr Evans continued to vote with the Government, as he normally did. Mr Evans had been appointed Deputy Speaker and Chairman of Committees.
6. For the sake of completeness it should also be mentioned that Mr Groom, who had been elected to the lower house as a Labor Party candidate, left the party during the life of the Parliament and therefore also sat as an Independent Labor member. However, like Evans, he invariably voted with the Government.
7. Early in 1991, following what became known as the "collapse" of the State Bank of South Australia ("SBSA"), due to imprudent lending policies and poor management, the Labour Government appointed a Royal Commissioner to investigate various aspects of the debacle and, in particular, the relationship which had existed between the SBSA and the Government and the reporting arrangements which had existed between the two entities.
8. The Royal Commissioner presented a series of three successive reports, the first of which was delivered to Her Excellency the Governor on 13 November 1992. That report ("the first report") was tabled in the House on 17 November 1992. On the same day, and prior to the formal tabling, the report was released to the media for perusal in a "lock up" situation.
9. The appellant ("Advertiser"), which was the sole daily newspaper circulating in South Australia, was heavily represented at the lock up. The evidence suggested that it had 8-10 members of the reporting staff, probably led by the Editor personally, who, as an orchestrated team, were assigned to dissect and analyse the report; and then produce written material from it for the purpose of potential publication.
10. On 18 November 1992, the Opposition moved a vote of no-confidence in the Government in the House of Assembly, based on the content of the first report. Peterson testified that this caught him somewhat by surprise, because he had not anticipated that it would be moved so soon after the tabling of the first report.
11. At the time of the motion the Government was led by Mr Arnold, as Premier; his predecessor, Mr Bannon - who was subject to personal criticism by the Royal Commissioner - having resigned as Premier some two months earlier.
12. The no-confidence motion was debated from about 2.00 pm to just after midnight on 18 November 1992, at which time it was defeated on the casting vote of Peterson.
13. At the time of the vote Peterson had this to say:-
"The SPEAKER: There are 23 Ayes and 23 Noes. As the votes
are equal, it is necessary for me to give a casting vote.
Before I do so, I would like to give my reasons for that
vote. I apologise to the House for the length of my
statement, but members will realise that my vote is
significant both to the State and for me personally. I can
fully understand and sympathise with the anger that the
first report of the Royal Commissioner has generated. Many
South Australians feel they have been let down; they are
hurt, and they are seeking some outlet for their anger and
rage. I have listened to the debate from both sides of the
House, and I have read the findings of the report. I have
no doubt that blame is to be laid at the foot of the former
Treasurer, as clearly explained in the report and in this
debate.
(Midnight)
All members would be well aware that I have made strong
public statements in the past in reference to the future of
the former Premier and Treasurer. Indeed, I am on record
prior to his resignation as stating that he should 'give
consideration to his future'.
Several references have been made in the debate to the
collective responsibility of Government. I have referred to
the House of Commons' practice, but it is a bit light on in
detail. Therefore, like the Leader of the Opposition, I
have referred to the House of Representatives' practice
insofar as it explains the conventions inherited from
Westminster. Paraphrasing from pages 86 to 89 of the second
edition, I quote:
'Aspects of ministerial responsibility. Ministerial
responsibility takes two forms - collective Cabinet
responsibility (or Cabinet solidarity) and individual
ministerial responsibility. Both concepts are governed by
conventions inherited from Westminster and both are central
to the working of responsible Government.
Collective Cabinet responsibility. Cabinet is collectively
responsible to the people, through the Parliament, for
determining and implementing policies for national
Government. Broadly, it is required by convention that all
Ministers must be prepared to accept collective
responsibility for, and defend publicly, the policies and
actions of the Government or else resign. Most importantly,
the convention also requires that the loss of a vote on a
no-confidence motion in the House or on a major issue is
expected to lead to the resignation of the whole Government.
Individual ministerial responsibility. During this century
there has been a change in the perceptions of both Ministers
and informed commentators as to what is required by the
convention of individual ministerial responsibility.'
The 1976 report of the Royal Commission on Australian
Government Administration reflects the current position, as
follows:
'It is through Ministers that the whole of the
administration - departments, statutory bodies and agencies
of one kind and another - is responsible to the Parliament
and thus, ultimately, to the people.
In recent times the vitality of some of the traditional
conceptions of ministerial responsibility has been called
into question, and there is little evidence that a
Minister's responsibility is now seen as requiring him to
bear the blame for all the faults and shortcomings of his
Public Service subordinates, regardless of his own
involvement, or to tender his resignation in every case
where fault is found.
Resignation is still a valid sanction where Ministers have
been indiscreet or arbitrary in exercising powers.
The responsibility of Ministers individually to Parliament
is not mere fiction. An individual can be disciplined
whereas the whole cannot.
When responsibility for a serious matter can be clearly
attached to a particular Minister personally, it is of
fundamental importance to the effective operation of
responsible Government that he or she adhere to the
convention of individual responsibility.'
I believe that the then Treasurer has accepted
responsibility and has resigned from that office as is
demanded under the Westminster system. If the member for
Ross Smith had not taken this action, I would have had no
alternative, on the basis of the royal commission report,
than to have voted for his dismissal as Treasurer as I had
promised. However, I do not accept that a case has been
made out against the Government as a whole and I therefore
give my casting vote for the Noes.
Motion thus negatived.
Honourable members: Shame, shame]
The SPEAKER: Order] Members have gone through this 'shame'
exercise previously. I have warned before and I warn again:
it is not acceptable. It is certainly against the
traditions and custom of all Houses."
14. In the prominent "Editorial Opinion" column in the edition of its newspaper published on 19 November 1992, Advertiser had this to say:-
"The Advertiser
EDITORIAL OPINION
Thursday, November 19, 1992
Govt stays for now but without honour
The Government appears, not unexpectedly, to have survived
the crisis that enveloped it with the publication of the
first report of the Royal Commission into the State Bank -
for now. It is hard to imagine any of what remains of the
royal commission being more critical of the Government. We
shall see.
There can be little doubt that it clings to office against
the will of a large majority of South Australians who are
angry, who feel betrayed, frustrated and contemptuous
towards the political process and politicians, in particular
the Government now masquerading as financial leaders who
deserve our confidence.
Its survival is a hollow victory which leaves it intact but
without honour. It is a mockery of public opinion. The
erratic Speaker, Mr Norm Peterson, has allowed the Arnold
Government to defy the dictates of decency which demand it
puts public interest above self-preservation. At least we
now know what we have long suspected, that Mr Peterson is
capable of rationalising almost any political stance,
however contorted or contemptible, if it suits his own ends.
It is one of the anomalies of the Westminster system of
government that the party which has the confidence of the
Lower House, sometimes called the People's House, cannot be
forced to an early election. There is no doubt - the ALP's
own research confirms it - that the Labor Party would be
thrown out by the people at any election held now. There is
a palpable fury in the community about a financial debacle
that has cost us $3.15 billion, so far, and has proscribed
the futures of every citizen, including those not yet born.
It is just untenable for the Premier, Mr Arnold, blithely to
pass off the scathing findings of Mr Samuel Jacobs, QC, as
criticisms of individuals, of the former premier and
treasurer, Mr Bannon, but not of the Labour Government which
presided over the State Bank's massive losses.
As the Opposition Leader, Mr Dean Brown, pointedly asked in
yesterday's long but futile parliamentary debate, are we to
presume that for months, if not years, all the members of
Cabinet sat mute, blind and deaf, like the proverbial three
wise monkeys, as the disaster unfolded around them? If they
did, they deserve to be driven from office; if they didn't,
and were accomplices, they deserve the same fate.
There was an air of unreality about yesterday and last
night's parliamentary debate. The outcome was known all
along. The 'boy from the Port', only days ago bristling
with indignation at the personal pressure he had been
subjected to over WorkCover, and ready to bring down the
Government, had capitulated on this vastly more serious
issue before the first speaker stood up.
It is to be hoped that at the next election Mr Peterson will
be remembered, even among the diehard Labor voters at the
Port, for his duplicity. The Arnold Government will be
remembered not only for its culpability in the State Bank
losses but for its refusal to accept responsibility."
15. Peterson's evidence before the Master was to the effect that, up to the time at which he gave his casting vote, he had had limited opportunity to study the full detail of the first report, due to the suddenness with which the no-confidence motion came on for debate.
16. He had, he said, presided over the sitting of the lower House from the time when that report was tabled at 2.00 pm on 17 November up until just after 9.00 pm that night. On the following morning he had been occupied in duties at his electorate office, in his electorate and in calling on the Governor with bills to be signed.
17. Both on his way to and from Government House Peterson was accosted by a large contingent of media representatives who, inter alia, demanded to know whether he had read the first report. It is not disputed that he responded "No, I'll leave it to you experts to tell me what the contents are". He had made a somewhat similar remarks in the course of a telephone radio interview earlier in the morning.
18. It was clear from Peterson's evidence that, during the sitting of the House on 17 November 1992, Peterson had asked the Clerk to photocopy the nine pages of findings in the first report (and, he thought, another segment as well) and had read them during debate. He had not read any other portions of the first report prior to the debate on the no-confidence motion on 18 November. It was his evidence that he had simply not had any opportunity of doing so. His comments to the media that morning were directed at the fact that the media had enjoyed about 4-5 hours in the "lock up" on the previous day to assimilate the whole document.
19. Peterson told the Master that he was unaware that the no-confidence motion was to be moved until about an hour prior to the actual event. It was his assessment that the Opposition would have allowed several days for the media build up and development of public reaction, in which time he had proposed to read the report in full.
20. Be that as it may, on 20 November 1992, Advertiser published a further "Editorial Opinion" in its daily newspaper, which focused on the remarks which he had made to the media about not having read the first report in detail.
21. That editorial was couched in these terms:-
"The Advertiser
EDITORIAL OPINION
Thursday, November 20, 1992
Speaker opts for power without glory
It defies belief that the Speaker in the House of Assembly,
Mr Norm Peterson, has not even read the long-awaited,
explosive first report of the Royal Commission into the
State Bank.
How on earth can he properly discharge his weighty duty to
the people of SA in one of the most important debates in the
history of the Parliament, if he has not even read the full
report that has given rise to the debate?
The people of South Australia deserve better.
Asked by reporters before Wednesday's historic debate and
motion of no confidence in the Arnold Government whether he
had read it, Mr Peterson replied: 'No.'
Asked again, by reporters who could not quite believe what
they were hearing, Mr Peterson again responded: 'No, I will
leave it to you experts to tell me what is in it.'
Later, perhaps recognising the significance of his
admission, he told Parliament he had read the key findings.
This comprises nine pages of the 475-page report.
Definitive insight
This is the judgment of the Royal Commissioner, Mr Samuel
Jacobs, QC, for which we have all waited for 18 months with
a mixture of impatience and apprehension, recognising that
it would be the first, definitive insight into what went
wrong at the State Bank, and why.
It is the document Mr Peterson himself has said, publicly,
in the Parliament and elsewhere, that he would wait for,
before making any judgment about the culpability or
otherwise of the Bannon/Arnold Government.
When it is released, first to Her Excellency the Governor,
Dame Roma Mitchell, then to the Government to allow it time
to prepare for the inevitable onslaught, then to the media
in a tightly-secured, Budget-style lock-up - each step in
keeping with the great moment attached to one of the most
important official documents commissioned in SA - what does
the Speaker do?
In preparation for the imminent debate that will be filled
with all the pent-up anger of South Australians whose
futures have been seriously compromised by the State Bank's
$3.15 billion losses, does he burn the midnight oil, poring
over the tale of woe, the 'tragedy', as Mr Jacobs calls it?
Does he take independent legal advice on some of the
subtleties, the minutiae of dense economic parlance, of
legal argument?
Does he lose sleep worrying about lost businesses, wrecked
finances and other dire consequences of the State's worst
financial disaster, wondering what position he will take in
the all-important parliamentary debate?
He reads only nine pages of it.
This must raise serious questions about his performance as
Speaker.
It does nothing for the parliamentary process or for Mr
Peterson's own pronouncements about calling this government
to account if it became apparent Parliament had been misled.
How would he know if he didn't even read the report?
As it happens, there is a compelling case to be made for the
view that Parliament was misled, more than once.
Mr Peterson compounded the situation yesterday by the manner
in which he treated questions on the matter in Parliament.
A media plot?
'I don't have to answer', was his response.
Then he alleged a 'plot' between members of Parliament and
the media.
There is no need for a conspiracy, or a 'plot' against this
Speaker.
His own admission that he had read only a small part of the
report is enough.
As revealed in a poll in The Advertiser today, less than
half of his constituents in Semaphore supported his decision
to back the Government early yesterday.
Mr Peterson is no stranger to power. He has been
influential in the fate of the Government since its shaky
re-election under Mr Bannon in 1989.
He accepted the Speakership with its status and higher
salary but never abandoned a public profile as the
Independent 'boy from the Port' who would be true to his
electorate, his Labor roots, and the wider public interest.
Only days ago he was ready to bring down the Government
because of a campaign of personal vilification against him
by the United Trades and Labor Council over WorkCover
reforms.
His failure even to read the Jacobs Royal Commission report
raises serious doubts about his ability to grasp the real
significance of the job people have a right to expect him to
do.
The people of SA, saddled with a Government which will not
accept responsibility for presiding over the State's worst
financial disaster by resigning, now have every right to
demand that the Speaker, Mr Peterson, stands down."
22. I digress, at this juncture, to record that, in the course of his reasons, the Master found that Peterson and the witnesses called by Advertiser "were manifestly witnesses of truth who attempted to give their evidence as clearly and accurately as possible". Problems of credibility did not, therefore, intrude into the situation.
23. Having so summarised the major outline events, it is necessary to regress somewhat, in point of time, for two successive purposes. First, it is desirable to focus upon the evidence bearing on how the editorials came to be written. Second, there is a need to reflect upon some historical evidence touching upon media reports as to the manner in which Peterson had expressed and conducted himself, as Speaker, specifically in relation to other legislation related to WorkCover. Both topics assumed a prominent role in the debate before the Master.
24. The primary evidence bearing on the first of those topics was that given by the Advertiser witness Rex Jory ("Jory"). He was, as at November 1992, the deputy editor of the newspaper.
25. He told the Master that, at that time, it was the practice to convene an editorial conference at 11.00 am each day in relation to the edition of the newspaper to be published on the following day. The conference was routinely attended by the editor (one Blunden), the deputy editor, the chief of staff, the pictorial editor, the chief artist and a senior reporter designated, for the time being, as the editorial writer (one McEwen).
26. The primary purpose of the conference was to determine the format and general thrust of the next edition and to allocate priorities to stories being, or to be, worked upon by journalists. In that context agreement would be reached as to what topics would be developed in the "Editorial Opinion" column and the attitude which would be adopted in that column, apropos selected topic or topics. In that regard the final decision was solely that of the editor personally, although this would be the end product of a "round table" discussion by those attending the conference.
27. It is of some importance to keep firmly in mind that neither Blunden nor McEwen were called by Advertiser as witnesses at the trial. The sole evidence as to the evolution of the two editorials was that given by Jory, who, in certain respects, could do little more than speak of general practice. He did not write either editorial, he could not recall suggesting any amendments to drafts of them and he was unable to say to what extent, if at all, Blunden had a personal hand in the final form adopted.
28. According to Jory, the normal practice was that, once the daily editorial conference concluded, it was McEwen's task to draft the material for the "Editorial Opinion" segment on computer. This was then available for perusal, on screen, by both Blunden and Jory. Jory normally reviewed it independently, and, occasionally, inserted suggested alterations on the computer, for consideration by Blunden. However, it was Blunden's responsibility to conduct a personal review of the material written by McEwen and to alter and/or accept it. As editor, he had the final say.
29. Jory had no clear memory of the nature and extent of his personal involvement in the actual production of the two columns in issue, nor could he recall whether Blunden made any alterations to McEwen's draft. All that Jory was able, affirmatively, to say was that he was in agreement with the sentiments expressed in the editorials, as finally published. Clearly, his involvement in the writing process, on the occasions in question, was relatively peripheral. He was, of course, unable to do other than testify as to his own state of mind in relation to the content of the editorials. Certainly he did not, in the relevant legal sense, stand in the shoes of Blunden, who made all final decisions concerning the direction and modes of expression of the subject editorials. No attempt was made to explain the absence of Blunden or McEwen as witnesses at trial.
30. I next turn to the evidence bearing on relevant historical coverage by Advertiser of Peterson in his role as Speaker. The evidence bearing on this was quite extensive and a good deal of it related to his expressed attitudes to the WorkCover legislation.
31. The appeal books contain copies of a substantial number of articles published by Advertiser in the above connection and it is impractical to attempt to reproduce them in these reasons. They speak for themselves. However, these features clearly emerge:-
- The expression "boy from the Port" appearing in the two
editorials derived from an earlier, general article titled
"The Premier's Advisor", written by a Peter Hackett and
published on 18 July 1992. That article purported to quote
Peterson as saying "I am just a boy from the Port trying to
do a job ... I am only an ordinary sort of bloke who found
himself in Parliament". On Peterson's own evidence the
reference to "the Port" is to Port Adelaide, which fell in
his electorate and was the district in which he was born and
employed in his early days.
- Peterson had, on a number of occasions, been reported as
to his expressed attitude towards support of the Labor
Government. Many of those reports were actually written by
Jory, who had enjoyed an excellent rapport with him. For
present purposes citations of particular significance were
these:-
(1) On 6 December 1989, Advertiser quoted Peterson as
saying:-
"If the Bannon Government goes off the rails, I will use my
position to vote against it".
"I will support them but if there a (sic) conditions or
issues that badly effect my area or the State, I will vote
against them."
(2) In a newspaper article published on 7 August 1991,
concerning a then pending censure motion against the Bannon
Government, for what was said to have been financial
incompetence, Peterson was reported as commenting:-
"I told the Premier I would not be supporting it.
"The State Government Insurance Commission situation has
been covered by a report. There are some shortcomings and
the Premier deserves a small smack on the fingers ..."
In the same report Jory wrote:-
"Mr Peterson said what the motion was doing was asking
Parliament to hang the Government now while the royal
commission into the State Bank continued."
He then went on to cite Peterson as adding:-
"If they later found someone had totally misled the
Government would we give them back Government?
"It seems to me there is no reason to defeat the Government
at this stage. If a decision comes from the Royal
Commission that the Government misled Parliament I would
withdraw my support."
(3) On 31 August 1991, he was quoted, apropos the SBSA
debacle, as saying:-
"I do support the Government at this stage as far as the
budget is concerned".
"It is a reasonable situation.
"But the State Bank issue is very different.
"If the Premier did know about the extent of the debt and
didn't act, then I would withdraw my support. If he did
know he obviously misled us but that is the subject of the
Royal Commission.
"The WorkCover issue must also be fixed. I am not impressed
with the way that has been handled."
(4) In an article published on 24 May 1992 Peterson was
quoted as making the point:-
"I can see the Premier remaining in office only until the
State Bank Royal Commission hands down its findings.
(5) Writing in an article published on 30 June 1992 Jory
quoted Peterson in these terms:-
"At this time, with the Royal Commission still sitting, it
would be wrong of me to withdraw my general support for the
Government.
"But I am concerned and obviously, from the letters I
receive, many other people are concerned.
"The outcome of the Royal Commission at the end of the year
will clarify the position."
(6) That was followed by an article written by Jory and
published on 9 July 1992, in which Peterson was reported as
saying:-
"I think Bannon should consider his future as leader now,
for the good of the Labor Party.
"I do not think he will be Premier by Christmas."
Jory further reported Peterson as reiterating that he had no
intention, at that stage, of using his vote to bring down
the Government.
(7) In follow on articles published by the Advertiser on 18
July 1992 and 29 August 1992 respectively Peterson was said
to have reiterated his statement that he would, in effect,
reserve his judgment until after the publication of the
report of the Royal Commissioner.
- Those reported statements need to be considered as the
background against which other reported events, bearing on
contentious legislation related to the WorkCover scheme,
took place in October and November 1992. These, of course,
followed the resignation of Mr Bannon as Premier and
statements by Evans, Groom and Peterson, at the time, that
they were prepared to support the new Government led by Mr
Arnold.
32. The Master described the situation which had developed as under:-
"Between the 20th October 1992 and 20th November 1992 the
defendant published a number of articles (D13) regarding
reforms to the WorkCover legislation. They portray the
stance taken from time to time by the plaintiff in relation
to those reforms which eventually became legislation on the
19th November 1992. It appears that when the Arnold
Government could not obtain sufficient union backing for its
reforms as a result of strong opposition from left wing
Unions, the plaintiff put forward his own amendments which
were not dissimilar to those propounded by the Government.
The same section of the union movement opposed the
amendments put forward by the plaintiff and expressed its
opposition by picketing his electoral office and harassing
the plaintiff and his staff. The plaintiff took exception
to this conduct. He publicly stated that if the Unions did
not support his WorkCover amendments, he would withdraw his
support from the Government."
33. As Jory and the Advertiser witness Kerin well knew and was a matter of public record, an extraordinary sequence of events took place.
34. Peterson's bill for Workcover reforms had been opposed by Government members in the Lower House, at the urging of the trade union movement, but was passed by virtue of the support of the Opposition and Peterson's casting vote. Peterson had been subjected to very considerable vilification at the hands of the left wing unions, which had actually instigated a picketing of his electorate office.
35. When the bill went to the Upper House Peterson publicly threatened to withdraw his support of the Government if it was returned to the Lower House in an amended form. He having made that threat, the Democrats, who held the balance of power, announced support for the bill. The Government members, at that stage, were likely to vote against it, in line with their colleagues in the Lower House.
36. Peterson having made his threat, the Opposition in the Upper House, who had initially indicated support for the bill, announced that they proposed to vote to amend and return it to the Lower House. This was obviously a tactical move designed to cause Peterson to unseat the Government.
37. In the event the ALP Council was ultimately forced, as a consequence of urgent representations by Mr Arnold (who was obviously fearful that Peterson would carry his threat into effect), to withdraw opposition to the bill, so that the way would be clear for Government members in the Upper House to support the bill, as they then did. The need for Peterson to execute his threat thereupon abated.
38. I have dwelt upon this history at some length, because it is highly relevant to the issue of the consistency of Peterson's conduct at all relevant stages - a question which assumes vital significance in light of the assertions in the editorials already adverted to.
39. As a consequence of publication of the two editorials Peterson initiated the present proceedings, in which he claimed damages against Advertiser for defamation of him in those publications. The trial before the Master occupied some ten sitting days, after which he published admirably detailed and analytical reasons for decision. Those reasons were ultimately published on 8 September 1994, that is to say, a few weeks prior to the publication, by the High Court, of its judgments in Theophanous v Herald and Weekly Times Ltd
(1994) 68 ALJR 713 ("Theophanous") and Stephens v West Australian Newspapers Ltd (1994) 68 ALJR 765 ("Stephens").
40. It follows that the Master did not take into account the concepts espoused in those cases and his conclusions require re-examination in light of them. Without objection, various amendments to pleadings were permitted in the course of the hearing before this Full Court, to ensure that they were adequately aligned with the concepts in question.
41. In his reasons the learned Master, not surprisingly, came to the conclusion that each of the editorials impugned contained material which was defamatory of Peterson.
42. As to the first editorial he concluded that the words:-
"The erratic speaker, Mr Norm Peterson, has allowed the
Arnold Government to defy the dictates of decency which
demand it puts public interest above self preservation. At
least we now know what we have long suspected, that Mr
Peterson is capable of rationalising almost any political
stance, however contorted or contemptible, if it suits his
own ends."
and the words:-
"There was an air of unreality about yesterday (sic) and
last night's parliamentary debate. The outcome was known
all along. The 'boy from the Port', only days ago bristling
with indignation at the personal pressure he had been
subjected to over WorkCover, and ready to bring down the
Government, had capitulated on this vastly more serious
issue before the first speaker stood up.
"It is to be hoped that at the next election Mr Peterson
will be remembered, even among the diehard Labor voters at
the Port, for his duplicity.", in their totality, necessarily gave rise to the imputations that Peterson:-
- is erratic;
- has defied decency;
- is self-seeking;
- is motivated by self-interest or self-preservation to the
detriment of the public interest;
- is lacking in principle;
- places his own electoral political survival above all
else;
- adopts positions which are contemptible or contorted as a
matter of political or personal expediency;
- is hypocritical;
- succumbs to pressure;
- is duplicitous; and
- is unworthy of re-election and were, thereby, plainly defamatory of him. That finding is not disputed.
43. As to the second editorial, the learned Master found that, read as a whole, it conveyed the following imputations against Peterson, namely that he:-
- determined his position on the no-confidence motion
without considering the issues or evidence;
- was too lazy or incompetent to read the report; is
indifferent to the report and its findings;
- was too lazy or incompetent to seek independent legal
advice;
- is unconcerned about the welfare of this State and its
citizens;
- is unconcerned about the matters the subject of the
report;
- is unworthy of the office of Speaker;
- has not been true to his electorate;
- has not been true to his Labor roots;
- has not been true to the wider public interest;
- does not and cannot understand his role and function as a
Member of Parliament;
- is not a fit and proper person to be a Member of
Parliament;
- is not a fit and proper person to be representative of the
Electorate of Semaphore;
- is not fit to be Speaker;
- should not be re-elected by the electors of Semaphore.
44. He also found that such imputations were defamatory of Peterson. Once again that finding was not challenged on this appeal.
45. By its defence Advertiser asserted that the defamatory statements were not actionable at the instance of Peterson by virtue of:-
(1) qualified privilege
(2) the freedom of speech implied by the Commonwealth
Constitution and the Constitution Act, 1934 (SA)
(3) the fact that they constituted fair comment on a matter
of public interest
46. In relation to the defences of qualified privilege and fair comment the learned Master was required to reflect upon a plea of express malice raised by Peterson in his Reply, as to both editorials.
47. In the event, the learned Master rejected the defence of qualified privilege on the basis that the occasions of publication in respect of both editorials were not occasions giving rise to the defence of qualified privilege. After reviewing the authorities he concluded that it could not be said that, on either occasion, there was vested in Advertiser a relevant interest or duty to communicate the content of its editorials to the public at large, or that the public at large had a corresponding interest or duty to receive it. The requisite reciprocity of interest or duty, in the sense adverted to in Adam v Ward (1917) AC 309 ("Adam") was absent.
48. He further rejected the constitutional immunity defence, having first embarked upon an analysis of the decisions of the High Court in Nationwide News Pty Ltd v Wills (1992) 66 ALJR 658 ("Nationwide") and Australian Capital Television Pty ltd v The Commonwealth (No 2) (1992) 66 ALJR 695 ("Australian Capital Television").
49. The learned Master then proceeded to a consideration of the defence of fair comment, successively as to each editorial.
50. In relation to the first editorial he held that the assertion of fact that Peterson had been erratic had not been shown to be true and that, even if it had been, the comments made were not fair. As to the latter aspect, he reasoned:-
"... It is obvious from the first editorial that the
defendant espoused the view that the content of the report
of the Royal Commissioner was such that any honourable
Government would have resigned and that any steps taken by
the plaintiff to relieve the Government of that
responsibility must be regarded as similarly dishonourable.
Had the comment been pitched in such terms a convincing
argument could be put forward that the comment was fair
within the meaning of the rule. However, the comment
actually made was totally condemnatory of the plaintiff.
The comment did not merely express an opposing view and the
reasons for such a view, but attributed to the plaintiff in
an unqualified way, the basest of motives behind the
exercise of his casting vote in favour of the Government.
The comment does not therefore consist of gross exaggeration
or the maintenance of obstinate or prejudiced views. They
go well beyond such statements. Because they go beyond fair
comment, the plaintiff has established a further basis for
holding that the defendant has not made out the defence of
fair comment in relation to first editorial."
51. Upon a review of the second editorial the learned Master pointed out that the main focus was a scathing attack on Peterson for failing adequately to read the first report prior to giving his casting vote on the no-confidence motion. His major concern in that regard was that:-
"... I have been concerned about, not so much the facts that
are stated in the article, but about the facts that are not
stated in it. No mention was made as to whether or not the
plaintiff had time to read the report before being called
upon to exercise his casting vote. No mention was made
about the speed with which the opposition brought on the
motion of no-confidence. No mention was made of the
plaintiff's need to attend to his Parliamentary duties
between the release of copy of the report to him and the
completion of the debate on the no-confidence motion. There
was no mention of the support given by the two other
independent labour members. These matters, if they had been
mentioned in the 2nd editorial, would have presented a
balanced picture of the position of the plaintiff. As
against that, the plaintiff did not help himself by publicly
stating on two occasions that he would leave it to the
journalists to tell him about the content of the Royal
Commission. On the second of those occasions he made the
comment sarcastically in reaction to the aggressive media
attention to which he was then subject. However, his
earlier comment to the same effect appears to have been made
dispassionately. The defendant might therefore be forgiven
for thinking that the plaintiff had taken a somewhat
cavalier attitude to ascertaining the contents of the first
report of the Royal Commission. Nevertheless, it must be
borne in mind that both of those comments were made before
the plaintiff was aware that the opposition would bring on a
no-confidence motion that afternoon. He had heard during
the course of the morning rumours to that effect, but he did
not think that the opposition would do so at such an early
stage. It is also to be noted that the comments were made
prior to the plaintiff obtaining a copy of the report of the
Royal Commission."
52. Having made the point that, in the circumstances of this case, it was difficult to know where to draw the line, he finally came to the view that, on balance, the comments made in the editorial were fair in the legal sense.
53. That being so, the learned Master proceeded to consider whether, nevertheless, Peterson had discharged his onus of making good his plea, in relation to the second editorial, that the Advertiser had been actuated by express malice. For reasons which he expressed and, do not, at this point, require recitation, the learned Master found that the onus had not been discharged.
54. So it was that he assessed damages and interest in the sum earlier mentioned in relation only to the first editorial. He allowed Peterson the full costs of the action, for reasons which he separately expressed.
55. By its notice of appeal Advertiser challenges the propriety of the finding that the defence of fair comment failed as to the first editorial, complained that the learned Master fell into error in rejecting the so-called "constitutional defence" related to the freedom implied by both the Australian and State Constitutions and asserted that the defence of qualified privilege ought to have been upheld. Complaint was also made as to the quantum of damages assessed and the allowance to Peterson of his full costs of action.
56. For his part Peterson cross appeals against the finding of fair comment as to the second editorial and asserts that the quantum of damages allowed is too low.
57. In examining those contentions it is necessary, first, to direct attention to the reasoning of the High Court in the cases of Theophanous and Stephens. In so doing I propose, as a matter of convenience, to advert to the joint judgments of Mason CJ, Toohey and Gaudron JJ as "the majority judgment". Whilst it is true that, in Theophanous, Deane J took a somewhat broader view of the impact of the relevant constitutional freedom, nevertheless, having regard to the division of opinion evidenced in the views expressed by the members of the Court, he was prepared to concur in the responses which they proposed to the case stated which was before the Court. In Stephens he was constrained to say:-
"... In Theophanous v Herald and Weekly Times Ltd,
I explained the reasons which caused me to conclude that
the Constitution's implication of freedom of political
communication and discussion precluded the application of
State defamation laws to impose liability in damages for
statements or comments made about the suitability for office
or official conduct of a member of the Commonwealth
Parliament or other holder of high Commonwealth office.
Those reasons would also lead me to conclude that the
constitutional implication, which extends to political
communication and discussion in relation to all levels of
government including State government and which applies to
confine the laws and legislative powers of the States as
well as the Commonwealth, precludes the application of State
defamation laws to impose liability in damages for
statements or comments about the suitability for office or
official conduct of a member of a State Parliament or other
holder of high State public office. My views did not,
however, prevail in Theophanous to the extent that they
would attribute a less qualified operation to the
constitutional implication in such cases than that accorded
it by Mason CJ, Toohey and Gaudron JJ. In view of the
division between the other members of the Court, it would,
to that extent, be inappropriate for me to adhere to them
for the purposes of this case."
58. Theophanous arose from the publication, by a daily newspaper, of a statement attributed to the President of the Victorian Branch of the Returned and Services League in which he was extremely critical of Dr Theophanous, who was then chairperson of the Joint Parliamentary Standing Committee on Migration Regulations of the federal Parliament. It castigated Dr Theophanous for what were said to have been his views as to immigration policy and was asserted to be defamatory of him.
59. In the course of an action for defamation questions arose as to the extent and nature of the freedom of communication implied in the Commonwealth Constitution, as recognised in Nationwide and Australian Capital Television. The action was removed into the High Court and a case was stated for the consideration of the High Court. Having regard to the diversity of views eventually expressed it is important to note that the case stated raised these questions:-
"1. Is there a freedom guaranteed by the Commonwealth
Constitution to publish material:
(a) discussing government and political matters;
(b) of and concerning members of the Parliament of the
Commonwealth of Australia which relates to the performance
by such members of their duties as members of the Parliament
or parliamentary committees;
(c) in relation to the suitability of persons for office as
members of the Parliament?
2. If yes to any part or parts of question 1, is any such
freedom subject to a condition that the publication will not
be actionable under the law relating to defamation if:
(a) the publication be without malice;
(b) the publication be reasonable in the circumstances;
(c) the publication not be made without any honest belief in
the truth of the material published or made with reckless
disregard for the truth or untruth of the material
published; or
(d) the publication be made at a time when it was publicly
anticipated that a federal election was about to be called?
3. If yes to any part or parts of question 1, is any such
publication a publication on an occasion of qualified
privilege:
(a) if published at a time when it was publicly anticipated
that a federal election was about to be called;
(b) if published at a time when it was not publicly
anticipated that a federal election was about to be called?
4. Are the defences pleaded in paragraphs 11 and 12 of (the
first defendant's) Further Further Amended Defence bad in
law?"
60. By majority, the High Court held that the following answers should be given to those questions:-
Question 1
Answer: There is implied in the Commonwealth Constitution a
freedom to publish material:
(a) discussing government and political matters;
(b) of and concerning members of the Parliament of the
8. Of course, this constitutional defence does not provide total immunity from liability on occasions of political discussion. The concept of the defence does not require that the publisher of a statement "be protected from the consequences of making a defamatory statement which is knowingly false ... (is) made with reckless disregard for the truth or untruth of the material published ... (and) the public interest to be served does not warrant protecting statements made irresponsibly": Theophanous at p723. Later in their joint reasons for judgment, Mason CJ, Toohey and Gaudron JJ, after discussing what is required by the publisher by way of enquiry and reasonableness, went on to say, at p725:
"At the same time, it cannot be said to be in the public
interest or conducive to the working of democratic
government if anyone were at liberty to publish false and
damaging defamatory matter free from any responsibility at
all in relation to the accuracy of what is published."
9. So, the publisher must establish the three matters which have been mentioned.
10. The Solicitor-General submitted for our consideration that the tests in Theophanous and Stephens do not seem appropriate for expressions of opinion or for comment which, in principle, he contended, should be protected. He referred to the position in the United States of America, where the courts appear to give unqualified immunity to expressions of opinion without a proven false factual connotation: Flemming 8th Ed 586.1, Gertz v Welch (1974) 418 US
323 at 339-340, Avins v White 627 F 2d 637 (1980) at 642-644, Ollman v Evans 750 F 2d 970 (1984) at 974-975, Milkovich v Lorain Journal Co et al (1990) 111 L Ed 2d 1, 497 US 1 especially at 17-19 (L Ed), 17-21 (US). He contended that it would be consistent with Theophanous and Stephens and the American approach, to give protection to statements of bare opinion (unrelated to any facts) unless defamatory facts were implied by the opinion and also, opinions upon facts which are stated, may be implied or are sufficiently indicated or notorious. In these circumstances he submitted that the protection could be absolute or available, if the publisher shows that the opinion was honestly held.
11. I do not think this approach should be adopted for the resolution of this appeal. The High Court considered the reach of the constitutional defence in Theophanous and established the circumstances in which it is available. The Court did not draw any distinction between fact and comment or opinions, even though the alleged defamatory material giving rise to the case stated was substantially comment. If the Court had considered it appropriate to protect comment absolutely or in any way other than by the tests which were laid down, it would have done so. Furthermore, Mason CJ, Toohey and Gaudron JJ, in Theophanous, at p718, acknowledged that it was necessary to treat Canadian and United States judicial decisions dealing with general guarantees of freedom of speech with some caution as their constitutional provisions are not the same as ours. Also, it may readily be seen that in their observations as to what type of discussion would be protected by the constitutional freedom, their Honours included defamatory publication by way of comment. The constitutional defence to be considered in this appeal must be resolved by the tests in Theophanous and Stephens which must be applied to comment or opinion as well as statements of fact.
12. The learned Master took the view that the defamatory statements in the first editorial were largely comment or opinion. It was only the reference to the respondent as "the erratic Speaker", which was a statement of fact. It is widely recognised that the distinction between an allegation of fact and an expression of opinion may not always be easy to make, but in this case I think the position is clear. The words "At least we know what we have long suspected, that Mr Peterson is capable of rationalising almost any political stance, however contorted or contemptible, if it suits his own ends" and that it is to be hoped that he "will be remembered, even among the diehard Labor voters at the Port, for his duplicity" are essentially statements of fact. They are not mere comment or expression of opinion.
13. There were no stated facts upon which it might be said that these statements were conclusions and therefore comments or expressions of opinion. True it is that there had been the statements published earlier by the appellant with respect to the WorkCover issue. It is unnecessary to set out the details of those publications. They recorded the stance taken by the respondent. He threatened to withdraw his support for the Government if his amendments to WorkCover legislation were not supported by the Government. The impasse between the Government and trades unions was resolved so that, in general terms, the former had its way on the proposed reforms. The respondent stood up to the unions and was subject to much vilification and intimidation. Nevertheless he stood firm. His amendments were carried in the Parliament and his threat did not have to be carried through. His stance on the WorkCover issue was similar to that of the Premier and a section of the Parliamentary Labour Party. A sensible observer may well have thought that the respondent had made the threat in the hope of achieving what he thought was right and on that issue he was not at odds with the Government.
14. It might also be said that his stance on this matter reflected his personal characteristics which were accepted by the Master and acknowledged by Mr Jory and which include integrity and courage. His stance on this issue when compared with his stance in refusing to support a vote of no confidence in the Government following the announcement of the State Bank crisis and later when the report of the Royal Commission was tabled could not, in my view, be regarded as "erratic" or, even inconsistent. The respondent's attitudes were in the public domain and perhaps mainly through publications of the appellant. He had said what he would do if it was the case that the former Premier Mr Bannon had misled the Parliament. He had said that he would wait and see what were the findings of the Royal Commission. By the time the report was tabled the former Premier had gone. The occasion to support or not support him did not arise.
15. I think it was patently false to assert:
"At least we now know what we have long suspected, that
Mr Peterson is capable of rationalising almost any political
stance, however contorted or contemptible, if it suits his
own ends."
16. Such a statement does not accord with the proven general character and reputation of the respondent within the community or with Mr Jory's view of the respondent. Mr Jory was the only member of the editorial committee called. Regardless of how he attempted to justify the editorial, the evidence discloses that it does not accord with his own view of the respondent at the time. There was simply no basis for the appellant to hold the view that it had "long suspected" anything seriously adverse to the respondent, let alone what is asserted in the first editorial. I think the unexplained absence of the Editor, Mr Blundon, and the author of the editorial, Mr McEwin, permits the inference that their evidence on this matter would not have assisted the appellant. Also, it was simply untrue to say that the respondent had engaged in "duplicity". The meaning of that word, according to the Shorter English Oxford Dictionary, includes "deceitfulness" and "double dealing". Such an allegation, on the evidence, was simply untrue and, in my view, to the knowledge of the appellant. Any attempt to explain away the significance of Mr Jory's views about the characteristics of the respondent on the ground that the respondent had changed, is entirely unconvincing.
17. It follows that the constitutional defence falls at the first hurdle. The appellant cannot establish that it did not know that the defamatory matter was false. Also it cannot establish that it did not publish the first article unreasonably. In Theophanous Mason CJ, Toohey and Gaudron JJ said, at p726:
"Whether a publisher has acted reasonably must be a question
of fact in every case. It will depend upon the standards
and expectations of the community as to whether the
allegations needed to be investigated. Reasonableness is a
concept with which the law is familiar."
18. Their Honours made the comparison with the consideration of reasonableness in s22 of the Defamation Act 1974 (NSW) as discussed in Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697, Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 and Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354. S22(1) of the Defamation Act provides the circumstances in which the defence of qualified privilege exists and includes that "the conduct of the publisher in publishing that matter is reasonable in the circumstances": s22(1)(c). In Wright Reynolds JA said, at p712:
"Section 22(1)(c) calls for the consideration of a wide
range of matters. Some are to be found in the published
material itself and the manner and extent of its
publication, and others from the whole of the surrounding
circumstances. The connection between the subject and the
defamatory imputation remains relevant. It may be tenuous,
or it may be real and substantial. If what was said
includes comment, it is relevant to consider whether it was
fair and whether it followed logically from facts known or
stated. Questions of the exercise of care before the
defamatory utterance are also relevant, and questions as to
whether the maker of the statement knew whether he was
likely to convey a misleading impression. These are but
examples of what I conceive to be involved in the inquiry to
be made by the judge in order to determine whether the
defendant has satisfied him that it was reasonable of him to
defame the plaintiff in the way he did."
19. These observations were approved in Morosi at p796. In Austin the Privy Council observed, at p360:
"A newspaper with a wide circulation that publishes
defamatory comments on untrue facts will in the ordinary
course of events have no light task to satisfy a judge that
it was reasonable to do so. Those in public life must have
broad backs and be prepared to accept harsh criticism but
they are at least entitled to expect that care should be
taken to check the facts upon which such criticism is based
are true."
20. It follows that if the publisher knows facts to be untrue or publishes recklessly, not knowing whether or not they are untrue, he or she has had not published reasonably. The evidence established that the appellant wanted the Government to fall and for there to be an immediate election. It was no impartial commentator about matters of public interest.
21. Upon consideration of all of the circumstances of the publication of the first editorial, including Mr Jory's knowledge of the personal characteristics of the respondent, the motives of the appellant and the publication of facts known to be untrue, it could not be said that the appellant published reasonably.
22. If I am wrong in the characterisation of what is fact and what is opinion in the first editorial, and the learned Master was correct in concluding that only the statement that the respondent was the "erratic Speaker" is an allegation of fact, I would reach the same conclusion about the constitutional defence. In my view the evidence discloses that the appellant was aware of the falsity of what it asserted and even though comment, if that is the case, the publication of them could not be regarded as being reasonable. They were false and, in my view, knowingly so and were made irresponsibly. The constitutional defence must fail.
23. I now turn to the second editorial which is set out in full in the reasons for judgment of Olsson J. The learned Master found that the facts stated in the editorial were true with only minor qualifications. Those qualifications were that prior to the first editorial, the respondent did not make public utterance of support for the "Bannon/Arnold Government", but had said that he would await the first report of the Royal Commission before making any judgment or otherwise about the Bannon Government. After the resignation of Mr Bannon, he said he would support the Arnold Government. The learned Master took the view that this inaccuracy in the second editorial did not detract from his finding that the appellant had established the truth of the facts in the second editorial. The words "It is the document (the report) Mr Peterson himself has said, publicly, in the Parliament and elsewhere, that he would wait for, before making any judgment about the culpability or otherwise of the Bannon/Arnold Government" constitute that factual assertion.
24. The second editorial is not only significant for the nature and strength of the attack upon the respondent but also for the facts, known to the appellant, which are not included in it. The imputations against the respondent conveyed by this editorial as found by the learned Master, are a very serious reflection upon the respondent. This was no mere strident criticism. This was an attack upon him with the clear imputations of laziness, incompetence, lack of concern for the welfare of the State, unfitness to hold office and the taking of a stance without taking the time to be properly informed. Nowhere in the editorial is there any reference to important facts which were in the knowledge of the appellant.
25. As the learned Master observed, there is no mention as to when the respondent received the report and as to whether or not he had time to read it before being called upon to exercise his casting vote. No mention is made of the speed with which the motion of no confidence was moved and brought on for debate. Nothing is said about the other duties which the respondent discharged and was obliged to discharge since receiving the report and of the support for the Government by the other two independent members. The appellant well knew of the resources which it had devoted to the reading and understanding of the report, which involved many staff in the lock up situation. In the context of considering the common law defence of fair comment, it might be said that fair minded persons were deprived of all facts necessary to enable an honest opinion to be expressed.
26. Given the knowledge of the appellant of the respondent, the facts known to the appellant which it deliberately chose not to publish and its desire for an early election, the constitutional defence is not made out with respect to the second editorial. It is reasonable to conclude that the omission of relevant and important facts from the editorial is so distorted the factual basis of the comment and opinion expressed, as to render them false and to the knowledge of the appellant and therefore unreasonable to be published.
27. It is necessary to consider the other grounds of the appellant's appeal with respect to the first editorial. The learned Master rejected the defence of qualified privilege because, as the law stood at that time, there was no privileged occasion, ie the necessary duty to publish the defamatory material and the corresponding duty or interest on the part of readers to receive them was absent: Adam v Ward (1917) AC 309 and Morosi. Since Theophanous, it may be accepted that the required reciprocity will exist in cases of political discussion. In my view the publication of the first editorial must now be regarded as an occasion of qualified privilege. Nevertheless that defence is defeated by proof that the appellant was activated by express malice.
28. Malice in that sense may be inferred from the publication or from any facts which show that the publisher was actuated by spite or some indirect motive: Adam v Ward (supra). To destroy the privilege this malice must be the dominant or some improper purpose for the publication. The onus of proof is upon the person defamed and the motive can only be inferred from what the publisher said, did or knew. Lack of belief in what was published is generally conclusive of express malice. Recklessly publishing without considering or caring whether the defamatory material is true, is to be equated with lack of belief: see Horrocks v Lowe (1975) AC 135 per Lord Diplock at pp149-150.
29. In my view malice is established by the respondent. As I have observed, facts or comments, if that is what they are, asserted in the editorial were not only untrue but quite contrary to Mr Jory's view of the respondent. As he was the only participant in the drafting and publication of the editorial called by the appellant, it is reasonable to accept his long held views of the respondent as those of the appellant and to accept that the appellant did not believe that the defamatory statements were true. As I have said, the suggestion that the respondent may have changed in some way is worth but momentary consideration before rejecting it. It is also reasonable to attribute to the appellant the dominant motive in publishing the article the desire to attack the respondent because he had frustrated the appellant's own political agenda, the fall of the Government and an early election. In all the circumstances, that is an improper motive. I do not accept that robust and extravagant political discussion and the need for politicians to have thick skins should deny a finding of express malice where it exists. The defence of qualified privilege must fail.
30. Next, it is necessary to consider the defence of fair comment. I reject this defence on the ground that the defamatory context of the first editorial is not comment but fact. I respectfully disagree with those who take a contrary view, including the learned Master. If I am wrong in this conclusion, I would conclude that the comments were not fair comment. The allegation of an "erratic" quality and "duplicity" are, as Mr Whitington argued, essentially comparative. They imply, inter alia, inconsistent conduct on different occasions. The factual basis for such comment was not stated or otherwise identified. To succeed, the appellant must prove one or more facts to justify the comment. As McHugh J observed in Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309, at p340:
"The difference between identifying the subject matter or
substratum of fact of the comment and the facts which justify
the comment is vital. The comment must indicate the subject
matter or substratum of fact of the comment."
31. In my view no such facts were identified or proven. The same must be said with respect to the other defamatory statements within the first editorial. There is substance in the submission that the editorial descended from criticism to mere invective and could not be regarded as fair comment.
32. I now turn to the common law defences in the context of the second editorial. They are qualified privilege and fair comment. The reciprocity of duty and interest is established and the defamatory statements were in the nature of comment. The learned Master rejected the contention that editorials had been actuated by express malice. With respect to his careful reasoning I do not agree. The second editorial presented a distorted factual basis contrary to the true position which was known to the appellant. That matter, along with the established knowledge of the appellant of the respondent and its own political stance, justify a finding of malice. The defence of qualified privilege should be rejected.
33. With respect to the defence of fair comment, these matters preclude a finding that the comment was fair in the circumstances. The appellant well knew that it had withheld important facts from the editorial. If the true facts as to when the respondent received the report and the timing of the other significant events were made known, the test "Could any fair-minded person honestly express that opinion on the proved facts?" (Rocca v Manhire
(1992) 57 SASR 224 per King CJ at p229), would have to be answered in the negative.
34. In my view the defence of fair comment was not established with respect to the second editorial and the learned Master erred in deciding to the contrary.
35. It remains to consider the appeals against the assessment of damages. Both parties complain. The appellant contends that the award is excessive and the respondent contends that the award is manifestly inadequate. The learned Master correctly identified the principles to be applied in assessing damages, including that there were no factors in mitigation. He rejected the suggestion that the appellant had aggravated the damage suffered by the respondent in the manner in which it conducted the trial. He, correctly in my view, regarded the first editorial as the more serious defamation. The appellant's newspaper had widespread circulation and was likely to attract great public interest. The learned Master took the view that aggravated damages should be awarded because the appellant failed to retract the defamatory statements and apologise to the respondent, as had been requested.
36. I think appellate courts should be slow to interfere with assessments of this nature. The learned Master had every opportunity to assess the respondent and the effect upon him of the defamatory statements and correctly accepted that there is a significant subjective element involved: Cassell and Co Ltd v Broome and Anor (1972) AC 1027 per Lord Hailsham LC at pp1070-1071.
37. The appellant complains of paucity of evidence as to the extent of the injury to the respondent's feelings. However, there was sufficient evidence, including the nature of the defamatory material and the personal characteristics of the respondent which permitted the learned Master to assess accurately this subjective element.
38. Of course, the Master had rejected the respondent's claim with respect to the second editorial and consequently had assessed damages only on the basis of the first editorial. Had he not done so, he would have had regard to the defamatory material in that editorial when assessing damages. However, in that event I do not think the award should have been increased substantially by reason of that editorial. The award made by the Master is high by standards in this State. I do not say that it is manifestly excessive or that it was made erroneously or unreasonably. However, considering the impact of both editorials, I think the award which he made is not unreasonable for both of them. For that reason I agree with the approach taken by Olsson J.
39. The appellant also appeals against the order for costs of the action in favour of the respondent. Given the conclusions which I have reached about the defences with respect to the second editorial, there is no basis to interfere with the order made by the learned Master. Even if the appellant had succeeded with respect to the second editorial, I would not have interfered with the discretion as exercised by the Master. It was acknowledged that the length of the trial had not been materially affected by the respondent proceeding with respect to both editorials and the order made by the learned Master was within the proper exercise of discretion.
40. It follows that I would dismiss the appeal, including the appeal as to damages and costs. I would allow the cross-appeal in so far as it relates to the defences with respect to the second editorial. The cross-appeal as to damages should be dismissed.
0
18
0