Palmer v Belan
[1999] NSWSC 187
•12 March 1999
CITATION: Palmer & Anor v Belan & Anor [1999] NSWSC 187 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 20523/94; 20524/94; 20115/95 HEARING DATE(S): 1/2/99; 3/2/99; 4/2/99; 5/2/99; 8/2/99; 9/2/99 JUDGMENT DATE:
12 March 1999PARTIES :
Edward Palmer (1 Pl)
Denis Boner (2 Pl)
Frank Belan (1 Def)
Arthur Benjamin Casey (2 Def)JUDGMENT OF: Kirby J
COUNSEL : M Holmes QC (Pls)
T Molomby/J B Conomy (Defs)SOLICITORS: W G McNally & Co (Pls)
Maurice May & Co (Defs)CATCHWORDS: Defamation; Union election; Qualified privilege; Reply to attack; Malice; Comment ACTS CITED: Defamation Act 1974 CASES CITED: Webb v Bloch
Lang v Willis
Howe v Lees
Telegraph Newspapers Co Ltd v Bedford
Penton v Calwell
Wright v Australian Broadcasting Commission
Morgan v John Fairfax & Sons Ltd
R v Kylsant
Horrocks v LoweDECISION: See para 295
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONKIRBY J
Friday 12 March 1999
020523/94 - EDWARD PALMER v FRANK BELAN
020524/94 - EDWARD PALMER v FRANK BELAN & ANOR
020115/95 - DENIS BONER v FRANK BELAN & ANORJUDGMENT
HIS HONOUR:
The Litigation
1 Three actions for Defamation were commenced as the result of the publication of a letter (Ex B), and a leaflet (Ex C) in the course of a union election. The union was the National Union of Workers, and the publication was said to have taken place in July 1994.
2 The three actions were heard together, without a jury. The parties to the actions were as follows:
· Edward Palmer v Frank Belan
· Edward Palmer v Frank Belan and Arthur Benjamin Casey
· Denis Boner v Frank Belan and Arthur Benjamin Casey
3 The first action is concerned with the letter signed by Mr Belan (Ex B). The second and third actions are concerned with a leaflet which accompanied that letter (Ex C).
4 Mr Edward Palmer was, at one time, the Secretary of the Federated Millers and Manufacturing Grocers Employees’ Association of Australasia, New South Wales Branch (“the Millers’ Union”). Mr Denis Boner was the Assistant Secretary of the same union. In 1992, in circumstances which will shortly be described, the Millers’ Union amalgamated with a number of other unions to form the National Union of Workers. A party to the amalgamation, and the most significant union in the proposed conglomerate, was the Federated Storemen and Packers’ Union of Australia, New South Wales Branch (“the Storemen and Packers’ Union”). Mr Frank Belan was the State Secretary of that union. Upon amalgamation he became the State Secretary of the amalgamated union, the National Union of Workers.
5 The National Union of Workers was divided into Divisions, one being known as the Food 1 Division. Former members of the Millers’ Union became members of the Food 1 Division. Upon amalgamation, Mr Palmer was made the Secretary of that Division. Mr Boner, his former assistant, was made an Organiser.
6 The National Union of Workers held an election in August 1994, as required by the Rules. Mr Belan stood for the office of State Secretary. He organised a ticket, known as “The Frank Belan Team”. Neither Mr Palmer, nor Mr Boner (for reasons which will be explained), was a member of that team. Mr Casey (the second defendant) was, however, part of the team. He stood in opposition to Mr Palmer for the office of Secretary of the Food 1 Division. Mr Boner was a candidate in the same election. He sought the office of organiser. The Frank Belan Team included alternative candidates for that position.
Background
7 Before examining the publications which are the subject of these actions, it is convenient to set out the background, and to resolve a number of factual issues which arise in the context of certain defences. I am, of course, conscious that the onus in respect of some matters is upon the plaintiff, and, in respect of others, upon the defendants. Most of the facts, however, were not in doubt. Where, during the hearing, significant controversy attached to a particular matter, I will identify that controversy, and, where relevant to its resolution, refer to the onus of proof.
8 Discussions concerning amalgamation began in 1990. Mr Palmer, in 1993, provided an account of these discussions to the Industrial Court of New South Wales (Hill J). I will later describe the circumstances giving rise to that case. Mr Palmer’s evidence included the following: (T 99/100)
“Q. Was there specific discussion that you can recall in relation to sick pay or annual leave in relation to the Millers’ liabilities?
A. Yes, Frank told me that he didn’t want them, and we were to get rid of them and that he would only accept four weeks annual leave when we entered or moved over to his building at 1 Bridge Street.”
9 In September 1990, the Executive of the Millers’ Union approved, in principle, an association with the Storemen and Packers’ Union, pending amalgamation. The Minutes of the Executive Meeting for 31 October 1990 included the following: (Ex D, p 415)
“The Secretary fully explained how he and the executive saw the future of the union, and what steps we should now start to take to secure the future. Which would include not only forming an association with the NUW, but also the fact we would have to clear our liabilities (financial) which would mean the disposal of our building. …”
10 Authority was given to Mr Palmer to take the steps necessary to bring about the amalgamation.
11 The new union, to be known as the National Union of Workers, was to comprise five amalgamating unions, of which the Millers’ Union was one, and the Storemen and Packers’ Union another. The smaller unions, including the Millers’ Union, would, from a certain date, move into the Storemen and Packers’ building. Their membership subscriptions would be paid to the Storemen and Packers’ Union, and that union would be responsible, thereafter, for the day to day running costs of the union. Separate accounts would be maintained, identifying each union, until full amalgamation had been achieved.
12 In that context, the auditors for the Millers’ Union (A J Williams & Co) furnished the following advice to the Executive on 19 November 1990: (Ex D, p 418)
“We refer to our recent telephone conversation when you advised us of certain procedures to apply from 1 January 1991. …
Employee Entitlements
It is proposed that employee entitlements will be cleared or reduced prior to 1 January 1991. The taxation aspects require consideration.
Annual Leave
Annual leave and loading paid on termination is taxed in full …
Long Service Leave
As all leave has accrued after 1978, the tax treatment is the same as for annual leave. …”
13 The letter then dealt with the issue of “Retiring Allowances”. It is the payment of these allowances which is dealt with by the publications (Exs B and C) about which complaint is made. The advice of A J Williams & Co said this: (Ex D, p 419)
“Retiring Allowance
Except for a few days accrual in respect of T Hough, benefits have accrued since 1 July 1983.
Where payment is made on termination of employment it is taxed as an ‘untaxed eligible termination payment’. The rate of tax is 16.25% where the recipient is aged 55 or more and 31.25% at less than age 55.
The payment may be ‘rolled’ into a superannuation fund or approved deposit fund.
Payment made during employment will be taxed as ordinary income. …”
14 The letter also dealt with Sick Leave which had not been taken, and concluded with these words:
“It may also be possible to arrange for benefits not to be paid out but to be ‘preserved’ in the amalgamated union.”
15 Mr Palmer, acting on the resolution of the Executive, sought a buyer for the union premises. On 27 November 1990 he reported an offer for the building, and that space within the new premises of the National Union of Workers would be ready for occupation on 1 January 1991.
16 The rule of the Millers’ Union dealing with retiring allowances was Rule 54. An issue arose concerning the construction of that rule. Mr Palmer sought advice from the unions’ solicitors, W G McNally & Co. The advice was furnished on 5 December 1990, and was in these terms: (Ex D, p 420)
“Rule 54 of the union rules provides:
‘The General Secretary/Treasurer, Assistant Secretary, Organisers and Permanent clerical staff shall be granted, on retiring or removal from office, three week’s holiday at current rate of salary at the time, for each completed year of service; unless such removal be due to any misdemeanour to which they were a party thereto.’
I am advised that Rule 54 replaced Rule 53 which provided:
‘The General Secretary/treasurer and Organisers shall be granted, on retiring or removal from office, one week’s holiday at current rate of salary at the time for each completed year of service; unless such removal be due to any misdemeanour to which they were a party thereto.’
I am asked to advise as to whether service before the amendment to the rule attracts holidays at the rate of one week or three weeks. The current rule 54 is capable of only one interpretation. The officials and clerical staff described in the rule are entitled upon retirement or removal from office to holidays at the rate of three weeks per year of service calculated by reference to his total service both before and after the rule amendment.”
17 In the proceedings before Hill J, Mr Palmer gave the following evidence concerning his discussions with Mr Belan on the subject of the retiring allowances payable under Rule 54. He said this: (T 100)
“Q. What did Mr Belan say, if anything, about these matters, about the retirement?
A. Well I do recall mentioning it was a matter that would have to be addressed and Mr Belan’s response, as I recall, stated something similar to it was a problem for the Millers and they would have to address it.”
18 On 18 December 1990, the Executive of the Millers’ Union held a further meeting. The Minutes recorded the following: (Ex D, p 415/416)
“The Secretary gave a full report on advice received from our solicitors and auditors re the union’s assets and liabilities. The advice being as follows: - once the mortgage is cleared, a term deposit to cover the officials and staffs retirement benefits be purchased, covering this liability.
With regards to annual leave and sick pay, the following annual leave - any leave in excess of four weeks be paid out, and the appropriate rate of tax paid.
Sick pay - any entitlements to be paid out in accordance with the Federal Milling Industry Award, with the appropriate tax being paid.
Moved the report be received and adopted and that the Secretary be authorised to act on the advice received.
Moved P Walters, seconded W Price.”
19 On 29 January 1991, the Executive held a further meeting. The Minutes included the following: (Ex D, p 416)
“Letter from A J Williams re the obligations of the union with regards to the Retirement Benefit to officials and staff on amalgamation with the NUW.
Williams advised sufficient funds must be preserved in a term deposit until such time as the union is deregistered (this happens on amalgamation). The benefits can then be transferred to a superannuation plan or paid out.
Moved the correspondence be received and noted and that the secretary be authorised to act accordingly (sic) to this advice.
Moved E Palmer, seconded P Walters.”
20 On the same day (29 January 1991), the Millers’ executed an agreement with the Storemen and Packers’. The agreement was expressed to run for a period of six months, the parties being confident that amalgamation could be achieved in that time. No provision was made to carry forward benefits or entitlements existing within the Millers’ Union. The agreement made the following provision, referring to the obligations of the Storemen and Packers’ to officials who would be absorbed into the new body: (Ex D, p 417)
“1. The Principal hereby agrees:
…
(6) To attend to the payment of the salary of the Secretary, Assistant Secretary and Organisers of the Trade Union for the duration of the Agreement in accordance with the rate specified in Schedule ‘B’ hereto and shall, furthermore, make provision for any leave entitlement in law accruing to the Secretary, Assistant Secretary and Organisers of the Trade union during the operation of this Agreement only.”
21 On the day the agreement was executed, the sale of the Millers’ building was completed. On 30 January 1991, Mr Palmer used approximately $45,000 of the proceeds to open a term deposit in the name of the Millers’ Union, known as “The Retirement Allowance/Long Service Leave Fund”.
22 The Executive of the Millers’ Union met once more on 26 February 1991. Mr Palmer tabled a report from the auditors covering the period up to the time of the new arrangements with the Storemen and Packers’ Union. He also reported on the disbursement of the proceeds of the building sale.
23 On 19 March 1991, the various unions which had agreed to amalgamate, to form the National Union of Workers, signed a Federation Agreement. On 29 October 1991, the solicitors for the Millers’ Union, W G McNally & Co, wrote to Mr Palmer in relation to the payment of officers of that union once amalgamation had been achieved. The advice was in these terms: (Ex D, p 421)
“Upon the completion of amalgamation under the Trade Union Act, the amalgamation is registered and the registration of each union party to the amalgamation is cancelled (Regulation 32). Upon amalgamation the officials of the union will accordingly cease to be officials.
Redundancy means that the availability of work of a particular kind and in a particular place is finished, or lessened or is expected to finish or lessen. I am of the view that upon amalgamation the officials of the union will become redundant and their ETP as defined earlier will be taxed at the pre-1 July 1983 rate irrespective of when it accrued …”
24 On 12 February 1992, the Industrial Registrar approved a scheme of amalgamation. The scheme required that members should approve the proposed amalgamation. A poll was conducted on 12 March 1992. The membership in each union voted in favour of amalgamation. The result was announced by the Electoral Commissioner on 18 March 1992. Before that announcement, and on the day following the poll (that is, 13 March 1992), the Millers’ Union drew cheques in favour of Messrs Palmer and Boner (and others) in respect of the amounts said to be payable to them under Rule 54.
25 On 25 March 1992, the Executive of the Millers’ Union met once more. The Minutes recorded the following: (Ex D, p 422/423)
“The Secretary gave a full report, on the aspect of the clause in the rules relating to the Officials and Staff Retiring Allowance, in the light of our amalgamating to form the NUW, NSW Branch. Secretary advised he had spoken with the President, the union’s solicitors and the union’s Auditors, on what the format should be.
The Secretary advices (sic) the rule of the Association was very explicit with regards to the Retiring Allowance RULE 54. W G McNally written letter of advice was tabled and discussed, as was the letter from A J Williams & Co, which talked about freezing the allowance at the time of entering the Federation’s Agreement with the other amalgamating unions.
…
That seeing as superannuation had been made available to the officials, and staff from 1 February 1991, all parties agreed to waive their time right under the rules for the period from 1 February 1991 to date.
However, the benefit of accrual ie 3 weeks per year of service should be calculated at the enhanced rate of pay as provided for the Federation. …”
26 The Minutes then dealt with the issue of taxation. This was another issue which was included in one of the publications which is said to be defamatory (Ex C). When the retiring allowances under Rule 54 were paid to Messrs Palmer and Boner (and others) the tax was withheld in the belief that the Union was responsible for its payment. Advice was later received from the auditors, A J Williams & Co, that the payment of taxation was the responsibility of the individuals concerned. Since the monies had not been paid by the Millers’ Union (Ex D, p 424), cheques were drawn on 29 May 1992 in favour of Mr Palmer for $339.19 and Mr Boner for $170.60, being the amounts withheld.
27 In September 1992, Mr Belan approached Mr Palmer. He had become aware of the payments under Rule 54. He was disturbed by them. Indeed, he believed, that the payments were “socially and morally wrong” (T 36). The following was put to Mr Palmer by counsel for Mr Belan as to what was said: (T 36)
“Q. Indeed, ‘I am sorry to have to do that you know, I worried about it all weekend, but that is virtually misappropriation’?
A. Yeah, misappropriation was mentioned, I remember that.”
28 Mr Belan, when cross-examined, gave the following evidence: (T 96)
“Q. I asked you about what Mr Molomby had said, that it was virtually misappropriation what he had done, they were your words, wasn’t it?
A. No, my words, ‘was wrong’, ‘was wrong’.
Q. You used the word, ‘misappropriation’?
A. As I can recall it I used words, ‘wrong’.
Q. I want you to just think long and hard, when you were talking about this matter did you use any words to the effect of misappropriation as you understood it?
A. Not that I can recall.
Q. You believed he had misappropriated union funds, didn’t you?
A. I believe that the money he paid himself and the others was …
HIS HONOUR: Q. Could you answer that question, did you believe that he had misappropriated union funds? That’s a simple question, if you just answer that question rather than some other question?
A. Yes, yes.
HOLMES: Q. Had you told him so?
A. I could have.
Q. The fact is you know you told him that, didn’t you?
A. I don’t know, I could have told him.”
29 On 15 October 1992, Messrs Turner Freeman, solicitors, provided advice to the National Union of Workers that officers of the former Millers’ Union were not entitled to any payment under Rule 54. On 19 October 1992, Mr Belan wrote to the officers of the former Millers' Union, including Messrs Palmer and Boner, requiring reimbursement, and stating the following: (Ex D, p 411)
“Such refund is sought as the subject payments were not authorised by Rule 54 ….
Clearly, you did not retire nor were you removed from office and the condition precedent for the payment of 13 March 1992 was not satisfied nor was the payment made on 29 May 1992 authorised by the rules …”
30 Mr Belan, on the authority of the Committee of Management, required the reimbursement within seven days, adding: (Ex D, p 411)
“I confirm that in requiring the repayment neither myself nor the Committee of Management have considered the issue of the responsibility for the payment nor whether any culpability or impropriety was involved by any individual in respect of the subject payments.”
31 On the same day, 19 October 1992, Mr Palmer spoke to Mr Belan concerning the repayment of the money. He sought a special meeting of the Branch Secretary’s to consider the issue. Such a meeting then took place. However, Mr Belan and the other Secretaries advised Mr Palmer that, even if the monies were repaid, they would not guarantee that charges would not be laid (Ex E, p 478).
32 On 22 October 1992, Mr McNally, solicitor for Messrs Palmer and Boner, wrote to Mr Belan in these terms: (Ex F, p 115)
“In order to avoid costly litigation we sought and obtained instructions from our clients to seek Senior Counsel’s advice to resolve the conflict. We are now advised by Richard Kenzie QC that the original advice given to the union was in his view correct and that of Turner Freeman incorrect.
We trust that this now resolves this issue.”
33 A copy of the advice was furnished.
34 On 28 October 1992, the Committee of Management met and resolved to charge Messrs Palmer and Boner and one other former officer of the Millers’ Union. The charges against Mr Palmer were as follows: (Ex D, p 412)
“(i) Committing substantial breaches (two) of the rules of the union in that he failed to carry out directions and instructions of the State Secretary to refund to the union each of the said sums of $21,368.72 and $339.19;
(ii) Committing substantial breaches (2) of the rules of the union in that he failed to act in accordance with lawful directions of the Committee of Management in that he failed to comply with a request from the State Secretary of the union to refund each of the said sums of money; and
(iii) Misappropriation (two) of the funds of the union in that he failed to refund to the union each of the said sums of money.”
35 The $21,368.72 mentioned in the first charge was the amount paid to Mr Palmer under Rule 54, and the smaller sum ($339.19) was the taxation mistakenly deducted from the amount which the union believed to be payable.
36 Similar charges were laid against Mr Boner. The charges were returnable, in each case, before the Committee of Management on 11 November 1992.
37 On 30 October 1992, Mr Belan wrote to Messrs Palmer and Boner in the following terms: (Ex D, p 414)
“Due to the current circumstances in relation to the charges being laid against Edward Palmer and Denis Boner, it is my view that it would be in the best interests of the organisation and all concerned that Edward Palmer and Denis Boner be relieved from all official duties as from today’s date, until 11 November 1992, when the charges will be heard.”Proceedings Before Hill J
38 The Industrial Court of New South Wales is given jurisdiction to require a union to observe its rules (s 441 Industrial Relations Act, 1991), and to cease conduct which is oppressive to its members (ss 497, 498). On 3 November 1992, an application was lodged on behalf of Messrs Palmer and Boner (and one other officer) for orders restraining the Committee of Management from proceeding to hear the charges. Various bases were identified which, it was suggested, amounted to oppression or failure by the union to observe its rules.
39 The matter proceeded before Hill J over a number of days. The applicants were Messrs Palmer and Boner (and another officer of the former Millers’ Union). The respondents were members of the Committee of Management. All but Mr Belan submitted to the order of the Court (save as to an order of costs). Mr Belan, as third respondent, therefore, had the carriage of the action. Mr Palmer gave evidence at some length, as did Mr Boner. Mr Belan, however, was not called. His Honour made the following comments upon the central controversy which separated the parties: (Ex D, p 452)
“Mr Palmer gave evidence that the matter of the payments was discussed with Mr Belan both prior to and after the making thereof in the context that it was a condition of the proposed amalgamation that the Millers’ and other amalgamating unions would discharge their liabilities prior to amalgamation. This is confirmed by documentary evidence including the minutes of the meetings of the Millers’ Executive.”40 His Honour added: (Ex D, p 452)
“Mr Palmer impressed me generally as a person of credit with a firm belief in the correctness and propriety of his position in the matter.”
41 Although Mr Palmer lacked precision in his recollection of some matters, Hill J said this: (Ex D, p 452)
“He was unwavering as to the substance of his evidence of relevant discussions with Mr Belan despite lengthy and searching cross-examination. His evidence was largely supported by Mr Boner whom I consider was honest and straightforward in his answers to questions again despite some imprecision as to matters of detail…”
42 His Honour’s conclusion was as follows: (Ex D, p 452)
“Significantly Mr Belan, with whom most of the relevant conversations allegedly took place, did not give evidence despite strong challenges by his counsel during cross-examination of Messrs Palmer and Boner, to the truth of the fact that the conversations ever took place and/or to the witnesses’ correct recollection of any which may have taken place. In all of the circumstances I have no reservations in accepting the substance and truth of the evidence of both Messrs Palmer and Boner on these matters.”
43 His Honour returned to the same issue when he came to deal with the question of costs. Mr Whitlam QC appeared for Mr Belan. His submission at the conclusion of the evidence was summarised by Hill J in these terms: (Ex E, p 472)
“… ultimately it had been put to the Court by Mr Whitlam QC, as he then was, that the honesty or integrity of the applicant Mr Palmer was not in issue although a good deal of Mr Palmer’s cross-examination had premised that both his veracity and motives were suspect and in issue …”44 In the same judgment, Hill J said this: (Ex E, p 477/478)
The Publications Complained Of
“It must be borne in mind that the evidence, uncontroverted as it turned out, was that the subject-matter of payments for accrued but untaken annual leave and sick leave and the retirement allowances under r 54 of the Millers were the subject of discussions with Mr Belan as far back as 1990 and as late as March of 1992. This in the context of it being, understandably, a condition of amalgamation that the amalgamating unions should first clear their financial liabilities and not bring them over to the amalgamated union. It was beyond doubt on the evidence that the payments were made by the Millers to the applicants on the basis of the advice of the union’s solicitor, Mr McNally, and its auditor, Mr Wales, despite the issues raised by the third respondent about timing and complete satisfaction of procedural requirements. Furthermore, the entitlement of the applicants to the retirement allowance was confirmed in the joint opinion of senior and junior counsel; all of this was known to the LCOM prior to the passing of its resolution on 19 October 1992 notwithstanding that a copy of counsels’ written opinion was not then available. It was subsequently made available and distributed to the COM meeting held on 28 October 1992; that meeting had been scheduled in order to consider the outcome of the resolution of 19 October. The matter had also been the subject of prior investigation and deliberation at meetings of the Finance Committee and the Branch Secretaries.”
Did Mr Belan Direct Mr Palmer?
45 An important issue in the context of the defence of comment, which will be dealt with below, is the truth or falsity of the following statement which appeared in the leaflet about which complaint is made (Ex C):
“, BELAN TOLD ME TO PAY OUT ALL THE OFFICERS ..
Palmer”
46 In the context in which it appears, as discussed below, the statement is characterised as being false. Was it, as a matter of probability, false to suggest that Mr Belan had told Mr Palmer to pay out all the officers? Although Mr Belan did not give evidence before the Industrial Court, he gave evidence before me. Mr Belan’s evidence, however, did not include testimony as to whether he had, or had not, given a direction to Mr Palmer, as asserted by Mr Palmer. When cross-examined as to whether Mr Palmer’s evidence before Hill J (extracted above) had been brought to his notice, Mr Belan gave an unresponsive answer which may suggest that he denied having given any such direction (T 100; see also p 108). The judgments of Hill J (Exs D and E) were, however, by agreement, placed before me “as evidence of the facts” within them. It was accepted that Mr Palmer gave the evidence set out above on oath before Hill J (T 159). In July 1993, Mr Palmer (as well as Mr Boner and another officer) published a document which purported to summarise the litigation, and its outcome. It included the following: (Ex G, p 2)
“The State Secretary elect, Frank Belan had made it quite clear the new organisation would not pay the amalgamating unions’ debts, their liabilities would have to be cleared where-ever possible.
Including, but not restricted to, untaken sick leave, (where payout of untaken sick leave was authorised) Accrued annual leave (no more than 4 weeks would be acceptable) and retirement or loss of office payments. These debts of the union were to be cleared before the union ceased to exist. The other unions, I presume, were told the same thing, because they did in fact do exactly as we did.”
47 In the context of the election, a further pamphlet was published, which carried a photograph of Mr Palmer, which included the following words, attributed to Mr Palmer: (Ex 1)
“When we amalgamated with the NUW, Belan told me to pay out all the Officers and Staff of the Millers and Grocers Union. I did this in accordance with the rules. Belan set me up. The court upheld this. Don’t be misled by what Belan and his henchmen have been saying.” (emphasis in the original)
48 Mr Palmer, when cross-examined, accepted the accuracy of that statement, although insisting that he would have worded the statement somewhat differently (T 60).
49 Like Hill J, I was impressed by Mr Palmer. I accept, as a matter of probability, that Mr Palmer was directed by Mr Belan to discharge all liabilities before amalgamation. The Millers’ Union was required to pay out all entitlements under the law and the rules. It was obviously sensible that it should do so. It was also fair, since no arrangements had been made to preserve such entitlements within the new structure.
The Silver Bullet
50 I have interrupted the account concerning the events which occurred before the publication in order to deal with an issue which will be important later in this judgment. Returning to the chronology, the evidence concluded before Hill J in late 1992. His Honour reserved.
51 On 12 March 1993, at a time when the judgment of Hill J was reserved, an incident occurred concerning Mr Boner. Mr Boner was in the habit of wearing a hat. He placed his hat in his office on a shelf which was at about eye level with his desk. He then returned to his car to retrieve some documents. He was absent from his office for five or ten minutes. Mr Boner described the scene upon his return: (T 70)
“I came back into the office and went upstairs and on the crown of the hat was a bullet, had a silver tip on it, and it was pointed, it was facing. When I walked up to the desk it was actually facing, point at me.”
52 Mr Boner immediately recognised the bullet and the shell. He had seen it many times before on Mr Belan’s desk. Mr Belan was in the habit of playing with it, separating and rejoining the shell with the silver bullet. When cross-examined, Mr Boner said this: (T 86)
“Q. One thing is clear, isn’t it, everybody must have known Mr Belan had something like this?
A. Everyone who had gone into his office and noticed it, I would say that would be correct.
Q. Anyone who saw this on the hat was likely to associate it with Mr Belan, weren’t they?
A. It would be fair to say that, yes.
Q. Not exactly something you would call a top secret mission of destruction, is it?
A. No, but I felt it was a threat.”
53 A number of officials of the union were in the office, in the immediate vicinity. They included Mr Belan. Mr Boner invited those present to examine the position of the bullet. He described the reaction of Mr Belan in these words: (T 70)
“Q. And did you confront him about the bullet?
A. Yes, I did. I actually called him into my office and I just basically said, ‘look, at this’ and he went to handle the bullet. I said ‘leave it alone. I’m, going to pass this on to my solicitors’.”
54 Mr Belan acknowledged that the bullet and shell were his, and had been in his office (T 93). He agreed with Mr Boner’s account of their confrontation (T 93). He acknowledged that Mr Boner appeared to be upset (T 94). He denied, however, that he had placed the bullet upon Mr Boner's hat, or that he knew who had done so. His office door was always open. Many had access to the area, and could have removed the bullet.
55 Although the evidence is spare, and the matter can never be free from doubt, I believe it is probable that Mr Belan was responsible for placing the bullet on Mr Boner’s hat. It was his bullet. He had the opportunity. He was nearby, at a time when Mr Boner was absent from his office. His relations with Mr Boner, which had previously been cordial, had soured. He had charged Mr Boner with misappropriation, and other matters besides. Mr Boner (and others, including Mr Palmer) had challenged his actions in the Industrial Court. I further accept that the action of Mr Belan was intended to be menacing.
The Judgment of Hill J
56 On 28 June 1993. Hill J delivered his judgment. It was wholly adverse to Mr Belan. His Honour found that Rule 54 conferred benefits, in the nature of retirement benefits, based upon past service. His Honour said this: (Ex D, p 436/437)
“However. In my opinion the applicants did, by operation of law, cease to hold office and employment in the Millers consequent upon its going out of existence; while provision was made for the taking up of alternative offices and employment the offices which they thereafter took up in the union were in fact and in law quite different to their former offices. They were therefore entitled both as a matter of law and merit to the retirement allowance.” (emphasis added)
57 His Honour elaborated upon the merits. He said this: (Ex D, p 437)
“Their qualifying service also ceased - no service thereafter could count; and in terms of merit, the cessation of qualifying service follows because thereafter they qualified as officers of the new union for retirement benefits under the same superannuation scheme previously applicable to officers of the Storemen and Packers. It appears on the evidence that all officers of the union now enjoy the benefits of a retirement scheme which provides for 10% and 2% contributions by the union. However, prior to this the only ‘retirement’ benefits scheme for officers and permanent clerical staff of the Millers were those provided by rule 54 and, seemingly in recent years, the minimum occupational superannuation provided in industry generally.”
58 The charges against Messrs Palmer and Boner (and another officer) presupposed an absence of entitlement under Rule 54 (Ex D, p 441). Moreover, the inference arising from the terms of the resolution by the Committee of Management (authorising Mr Belan to seek reimbursement) was that it had prejudged the issues which were the subject of the charges (Ex D, p 446). His Honour reached the following conclusion: (Ex D, p 451)
“I have also formed the view that participation in the adjudication of the charges by the other respondents who participated in the passing of the resolution of 19 October 1992 would deny procedural fairness to the applicants.”
59 Whilst it was open to the Committee of Management to seek the repayment of monies which it believed (mistakenly in his Honour’s view) were payable to the union, the action taken at the direction of the Committee was neither proper nor appropriate. Hill J made the following comment: (Ex D, p 454)
“But it was, in my opinion, neither proper nor competent for the COM and/or the third respondent to seek to convert demands for payment into directions and then for the third respondent to take punitive action under the rules against Mr Palmer on the basis that he had committed a substantial breach of the rules by failing to carry out directions or instructions given to him in respect to his obligations and duties as an officer of the union.”
60 Elsewhere, his Honour said this: (Ex D, p 466)
“The fair and reasonable course to have been adopted on behalf of the union following the refusal of the ‘instructions’ for repayment was to have instituted proceedings for recovery in a competent court rather than to seek to enforce the claim or punish the applicants by resort to the disciplinary provisions of the rules.”
Mr Belan’s Awareness of These Proceedings
61 Mr Belan, when he gave evidence before me, claimed to be almost completely ignorant of the proceedings before Hill J, and the judgment of his Honour. He did not attend the hearing, on advice. He acknowledged that he was provided with reports from time to time, upon the basis of which he gave instructions (T 97). However, Mr Belan said this: (T 101)
“Q. Leaving aside the advice as to whether you should take part in the proceedings, did they ask you for your comments on what had been alleged against you in the proceedings?
A. No.”
62 Mr Belan claimed that he was not aware that Mr Palmer had given evidence that he had been directed by him to pay out the officers (T 101). He also claimed not to have read Hill J’s judgment. He was therefore unaware of the various comments made by his Honour, some of which have been extracted above.
63 I do not accept Mr Belan’s evidence. I do not believe that he was ignorant of the evidence being given by Messrs Palmer and Boner before the Industrial Court. Nor was he unaware of the remarks of Hill J. First, Mr Palmer was cross-examined at length, and in some detail. One would expect, in the ordinary course, that the solicitors for Mr Belan would report to him during the case, in order to obtain instructions. Indeed, Mr Belan acknowledged that this occurred (T 97).
64 Secondly, in the context of another document (Ex G), which asserted that Mr Belan had given directions to Mr Palmer, Mr Belan again asserted ignorance. On this occasion, however, his assertions contradicted earlier evidence where he acknowledged that he had read the document when it was first distributed in Melbourne (T 108).
65 Thirdly, Mr Belan’s professed lack of familiarity with Mr Palmer’s evidence was inconsistent with the testimony of Mr Casey, the second defendant. Mr Casey, when cross-examined concerning his knowledge about statements which appeared in the leaflet (Ex C) (the matter the subject of complaint), said this: (T 151)
“Q. The only source of the information, any person you spoke to about what should go in that document was Mr Belan?
A. Yes.
Q. Did you check with any other person or document as to whether the contents were true or correct?
A. From time to time Frank showed me some documents and he also told me what happened in the court case.”
66 The cross-examination continued: (T 152)
“Q. Tell me what documents you were shown by Mr Belan, as far as you remember?
A. I think there was some transcript from the court case as well as some ledgers or some - I don’t know what they call them - balance sheets that show the change of money from one column to another.”
67 Mr Casey later added the following: (T 152/153)
“A. … I know that he read the transcript. He showed me parts of it and he would say, ‘Look , this is’ - opened the transcript and said, ‘Look, this is what happened here’.”
68 Fourthly, as I will shortly describe, Mr Belan launched, and then abandoned, an appeal against the decision of Hill J. He could not responsibly have done so without first examining the critical findings of his Honour’s judgment, or without being aware of those findings through their having been read or carefully explained to him. The judgment of Hill J is admittedly long (63 pages). However, it is interspersed with headings. There is, for instance, a heading (p 433) identifying the following subject: “Entitlement of the Applicants under Rule 54 of the Millers”. I believe, as a matter of probability, that Mr Belan was aware of the various findings that I have set out above.
Publication of Pamphlet (Ex G)
69 Notwithstanding the terms of his Honour’s judgment, Mr Palmer and Mr Boner (as well as other officers of the Millers’ Union) continued to be the subject of “innuendo in the workplace” (T 26). The Court decision was long, and delegates, therefore, did not read it. A short pamphlet was prepared (Ex G), summarising the background, and the findings of the Court.
70 Copies of the pamphlet were printed for distribution to all the members of the Food 1 Division. However, before its distribution was completed, a complaint was made that its dissemination was disrupting the running of the union. A direction was sought from the State Secretary prohibiting its circulation. The issue came before the Branch Committee of Management meeting of 16 August 1993. The Minutes of that meeting included the following: (Ex J)
“1. Internal dispute regarding Palmer, Boner and Hough regarding pamphlets which were circularised at national Conference and to some members at Kellogg and other sites. This circulation was not approved by the Branch Committee of Management but Ted Palmer advises that Food Division 1 gave approval. Frank Belan commented that he has tried to keep the matter away from the membership and general public …”
71 Although the Minutes do not record a direction that the document (Ex G), no longer be distributed, Messrs Palmer and Boner thereafter stopped distribution. Mr Palmer said, and I accept, that only city members (a little more than 25% of Food 1 Division) received a copy. The vital country centres were not provided with the document.
72 The payment of benefits to former officers of the Millers’ Union was plainly a sensitive issue with the membership, and was recognised as such by Messrs Belan and Casey. Mr Casey, on 15 July 1993, whilst still a delegate of the Food 1 Division at the Kellogg site, sent a letter to Mr Belan (signed by five others) complaining about Mr Boner. The letter included the following: (Ex H)
“We the NUW NSW Branch delegates, Kellogg site have moved a motion of no confidence in our organiser, Denis Boner and demand his replacement by another organiser for the following reasons:
1. …
2. The dispute between Denis Boner and the NUW NSW Branch over his entitlement due to the merger of the unions have caused a loss of confidence with the membership of the NUW NSW Branch at the Kellogg site …”
Hill J’s Judgment on Costs
73 When Hill J gave judgment on 28 June 1993, he reserved the question of costs. Further submissions on that issue were then made. The applicants (including Messrs Palmer and Boner) sought indemnity costs. His Honour gave judgment in respect of this issue on 8 October 1993. In the course of that judgment he acknowledged the test which he was obliged to apply. He said this: (Ex E, p 475)
“It is unnecessary to traverse the cases in any detail; they demonstrate in one form or another special or unusual circumstances which manifest themselves in improper or unmeritorious conduct by the unsuccessful party …”
74 In addressing that issue, his Honour made the following remarks: (Ex E, p 475/476)
“That having been said there is no doubt that in this case a significant number of matters directly involving Mr Belan were extensively pursued in cross-examination, clearly on instructions, in a situation where the third respondent did not put on an affidavit and where he was not called, and no application was made to call him, to give evidence in reply; nor were any other witnesses called by the third respondent in rebuttal of matters to which Messrs Palmer and/or Boner attested and on which they were cross-examined on a basis which put into issue the veracity and/or the accuracy of their evidence. Mr Shaw put that this resulted only in some forensic disadvantage to the third respondent - a mere forensic technicality as it were. But there is much more to the matter than that. In a case where facts are deposed to by one party and are strenuously challenged and their truth and/or correctness put in issue by the other party, such as occurred in this case, and that other party does not then give evidence nor call any other witness in rebuttal, without any or any sufficient explanation, the clear and commonsense inference to be drawn is that his and/or their evidence on those matters will not assist their case. The rational conclusion is that the facts put in issue are true and were known to be so.”
75 His Honour added, referring to the charges: (Ex E, p 476)
“In my opinion, those charges, on the particulars and the facts, bordered on the vexatious.”
76 An order was made that the respondents (being the Committee of Management) pay the applicants’ costs upon an indemnity basis.
77 An appeal was lodged against the decision by Hill J on the merits, and on the question of costs. As mentioned, the appeal on the merits was abandoned. The appeal against the order for costs, however, proceeded. It was heard by the Full Court of the Industrial Court of New South Wales in late 1993. The order for indemnity costs against Mr Belan was confirmed, although an adjustment was made to the order against other members of the Committee of Management. In the course of the Full Court’s judgment (Cahill Dep CJ, Maidment and Hungerford JJ), the following remarks were made: (Ex F, p 120)
“It is our view that the decision by his Honour to award costs on an indemnity basis as against Mr Belan was not only open to him, but was also correct. In this respect we would dismiss the appeal.”
The Election
78 In August 1994 the National Union of Workers held an election. Nominations were called some time before April 1994. In approximately May 1994, Mr Belan met with officers of the union to discuss the forthcoming election. Mr Palmer described what occurred in these words: (T 27)
“A. There was a meeting of the branch offices, all the branch offices. At that branch meeting Belan declared his intention to stand as secretary and sought all the officers unqualified support for that position. If you felt you couldn’t do so you were asked to leave the room. I think it went somehow like that.
Q. What did you do?
A. A couple of his own officers left the room first. I was considering my position. Denis Boner left and I then felt that I could not give the unqualified support, in view of the past circumstances, to Mr Belan so I left.
Q. After you left did you then continue to discharge your duties as secretary of the Food 1 Division between about April/May through to the election time in August of 1994?
A. In a manner of speaking. I was delegated duties that mostly dealt with sites that would not be voting for me. Old storeman and packer sites.”
79 Mr Belan gave the following evidence in relation to this incident, in the context of the publications about which complaint is made: (T 128/129)
“Q. And so it would be part of your expectation that it would harm him by him having less prospects to win the election?
A. I didn’t mean to harm anybody, I just wanted to win the election and keep my job and another 35, 40 people. They attacked me, I didn’t attack them. They ran ticket against me, I didn’t run ticket against them. They walked out of caucus, I didn’t walk out of caucus. They tried to unseat me. I was only defending myself. The attack was …
Q. This caucus, what was that that you were referring to?
A. The caucus was that we held normally prior to every election every four years of officers and the executive to determine the tickets that will be put together and run at the elections. Mr Palmer and Mr Boner, Mr McConville and Mr Gooch decided not to be on that ticket.”
80 There were two broad groups of candidate. There was the Frank Belan Team, and the McConville Rank and File Team. Mr Boner was a member of the Rank and File Team. He appeared in a group photograph in campaign literature of that team, circulated during the course of the campaign (Ex 2).
81 Mr Palmer believed that he also was on the Rank and File ticket. However, he was clearly mistaken, as he acknowledged. The ticket made no suggestion as to who, in the contest between Mr Palmer and Mr Casey, should receive support from voters who favoured the Rank and File Team (Ex 3).
82 Nonetheless, Mr Palmer did attend a number of meetings of the Rank and File Team. He contributed, in a modest way, to its call for donations. At one such meeting he was told what was being said about him in the workplace. Mr Palmer gave the following evidence: (T 50)
“… The second meeting they advised me I was getting - I think the term was slander in the rice area and had been called a thief and a crook and that if I didn’t do something about it or get down there any chance I had of winning any election was right out of the question. And that’s how this document came to be produced. They offered to put something out to maybe try and reverse the trend in the rice area predominantly because that was the largest area membership and it was my understanding it would be dealing with rule 54 and the case that had been gone before the Commission.”
83 A document was then produced (Ex 1), to which reference has been made. The document is important. The defendant alleges that it constituted an attack by Mr Palmer upon Mr Belan. It, therefore, justified (under the defence of qualified privilege) the publications about which complaint is made. I will later examine, in the context of that defence, whether the document can be characterised as an attack, and if so, whether it was Mr Palmer’s attack. The document put out by the Rank and File Team following this conversation included a photograph of Mr Palmer. Alongside the photograph was the statement, already referred to, which, for convenience, I repeat:
“When we amalgamated with the NUW, Belan told me to pay out all the Officers and Staff of the Millers and Grocers Union. I did this in accordance with the rules. Belan set me up. The court upheld this. Don’t be misled by what Belan and his henchmen have been saying.” (emphasis in the original)
84 The document continued as follows:
“Under Frank Belan, our Union is run by the Officials, and does not listen to its members. We need a Union that cares about its members - from both small and large workplaces.
Frank Belan’s incompetent administration:
· Lost almost $1.1 million of members’ money last year.
· Wasted $1/4 million of members’ money by suing our division of the Union (see above)
· Spent Union money trying to get Belan’s right-hand man elected to Parliament.
· Belan doesn’t understand the Milling Industry - he only cares about getting your vote.
· Has seen mass-resignations of Organisers and Officials.
· Has not faced an election in over a decade - it’s time he did!
Make sure you vote for the candidates that will look after the members, not after themselves.” (emphasis in original)
85 It is against this background that the Frank Belan Team campaign office despatched the two publications which are the subject of these actions (Exs B and C). They were sent to 5,000 Food 1 Division members in the one envelope. They were not attached to each other. The first document (Ex B) is a letter dated 27 July 1994 on the letterhead of the Frank Belan Team. It is signed in facsimile by Mr Belan. The text of the letter was as follows: (Ex B)
“ATTENTION ALL FOOD 1 MEMBERSA MESSAGE FROM THE STATE SECRETARYRecently, you may have received a pamphlet which I believe was issued by Ted Palmer. This pamphlet contains the misleading and deceitful statement that I, as State Secretary of this union, permitted the officials of the old Millers’ union to pay an unjustifiable and indeed wrongful retirement benefit when in fact, they had continuation of employment under the amalgamated union.
Dear Members,
I would like to bring to your attention the statement made in this pamphlet - “Belan Set Me Up”. Indeed, at no time did I ever Set Palmer Up.
The FACTS are:
1. By the abovementioned statement, Palmer confirms that there was some questionable and indeed dubious decisions made regarding the amalgamation with the NUW.
2. If Palmer in hindsight believes that his statement is true, then why doesn’t he simply pay the money back to the union?
3. Why didn’t he settle this matter with the union solicitors rather (than) fight bitterly to keep the money?
4. Why didn’t he direct the other union officials involved to repay the large sums of money involved?
5. In fact, it was Ted Palmer who authorised those payments to union officials involved - NOT ME.
By making these ridiculous claims, Ted Palmer is trying to distance himself from a situation he was responsible for, could have corrected at any time, but chose not to.
In light of this, it is little wonder that I as State Secretary no longer have any confidence or trust in Ted Palmer’s ability to look after the interests of Food 1 Division members.
Indeed, I believe Ted Palmer is NOT supported by any other official in the National Union of Workers NSW Branch, and they would be foolish to give him support.
In a week’s time you will be voting for a person to represent your union. I ask you to support a candidate with commitment to the union cause and workers’ rights.
SUPPORT ARTHUR CASEY FOR THE POSITION OF SECRETARY FOOD 1Yours fraternally,FRANK BELAN” (emphasis in original)
86 The letter was accompanied by a two sided leaflet (Ex C). The leaflet, on side 1, was in these terms:
“IMPORTANT NUW FOOD 1 MEMBERSPALMER AND BONERYou now have that opportunity to judge - do you think what they did was right?
YOU BE THE JUDGE
THE COURT CASE
Palmer & Boner commenced the court action to stop the Committee of Management looking at their use of union funds.
THE PAYOUTS* Palmer and Boner, where Millers (now Food 1) Officials, paid themselves redundancy even before the amalgamation was declared.;* Blank pre-signed cheques were used;
* They took redundancy payments but did not have one day off work;
* After paying themselves redundancy they kept working full time as Federal and State Officials of the NUW; and
* They used union funds to re-imburse tax deducted from their payments.
ISN’T IT TIME FOR A CHANGEVOTE ‘x’ ARTHUR CASEY & THE FRANK BELAN TEAM” (emphasis in original)87 The other side of the leaflet (Ex C) was as follows:
“SOMETIMES YOU JUST CAN’T BELIEVE YOUR EARS!‘I AM NOT A CROOK …’He just wants you to blame Frank Belan
Richard Nixon
‘I DID NOT INHALE …’
Bill Clinton
‘…NO CHILD WILL BE LIVING IN POVERTY’
Bob Hawke
‘,BELAN TOLD ME TO PAY OUT ALL THE OFFICERS …’
Palmer
______________________
Palmer doesn’t deny taking $46,525.51 out of the unionPalmer doesn’t deny commencing the court case over members moneyHe just want you to blame Frank Belan for trying to get the money back for union membersPalmer says don’t vote for candidates that only look after themselves!Did Palmer tell you about his $46,525.51 payout?If you don’t know whoThe Imputations
to believe …
Isn’t it better to stick with
the team you can trust?
VOTE THE FRANK BELAN TEAM”
88 Only Mr Palmer sued in respect of the letter. The following imputations were said to arise from that publication:
(a) The plaintiff deliberately and dishonestly misappropriated union moneys.
(b) The plaintiff to hide his misappropriation of union moneys deliberately and falsely implicated an innocent person as being responsible for the misappropriation of union money.
89 Messrs Palmer and Boner sued both Mr Belan and Mr Casey in respect of the leaflet accompanying the letter (Ex C). The imputations relied upon, in each case, were as follows:
(a) The plaintiff as a union official stole moneys from his union.
(b) The plaintiff deliberately commenced court action to stop his stealing of union funds being detected.
(c) The plaintiff to hide his stealing of union funds deliberately and falsely implicated an innocent person as being responsible for such stealing of union funds.
90 The defendants challenged the capacity of each publication to give rise to these imputations. Levine J found that each publication was capable of giving rise to the imputations pleaded (although he rejected an earlier version of imputation (c) in Ex C) (unreported, 29 March 1996; unreported 3 April 1996).
91 The issue for the Court is whether the imputations do in fact arise. In determining that issue, the publications themselves, and the context within which they were published, are relevant.
92 Should the two documents be regarded as two publications, or one? The actions have been pleaded upon an assumption that Exhibits B and C are separate publications, giving rise to separate imputations. In the action by Mr Palmer, the imputations said to arise from the letter (Ex B) are similar to the imputations said to arise from Ex C (paras (a) and (c)). The wording is slightly different (“misappropriation” being the key word in respect of Ex B, whereas “stealing” is asserted in Ex C), but they are otherwise the same. In circumstances where both publications were included in the same envelope, where nothing else was in that envelope, and both dealt with the same subject matter, should not the two documents be regarded as the one publication? Counsel for the plaintiff and the defendant submitted that, for practical purposes, it does not matter which way the issue is resolved. The damages, were the plaintiffs to succeed, ought to be the same. If they were the one publication, the plaintiffs would have to acknowledge there was no substantial difference between the imputations alleged in respect of Ex B, and those alleged in paras (a) and (c) in respect of Ex C. The better view, in my opinion, is that the two documents together should be regarded as the one publication. However, at the urging of the parties, I will approach the matter in the way in which it has been pleaded, namely, as two separate publications.
93 Examining the publications, as would an ordinary reasonable reader, without a morbid or suspicious mind, and without being avid for scandal (Farquhar v Bottom (1980) 2 NSWLR 380, per Hunt J at 385/386) what impression is made? Each publication must be looked at in its entirety. In determining whether the imputations arise, one is not bound by the literal meaning of the words used. Imputations may arise by insinuation, as well as by direct statement. Hunt J summarised the principles in these words in Farquhar v Bottom at 385/386:
“The ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd ([1964] AC 234 at 258); Jones v Skelton ([1963] SR (NSW) 644 at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408.”
94 In Lewis v Daily Telegraph Ltd, referred to by Hunt J, Lord Devlin made the following observation at 277:
“It is very difficult to draw the line between pure construction and implication, and the layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The laymen reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory…”
95 Lord Devlin added (at 285):
“It is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done.”
96 Dealing, first, with the letter (Ex B), the context is important. The letter was published to working men and women who were members of a trade union, the National Union of Workers, Food 1 Division. It may be assumed that they are persons who had paid their yearly subscription of union fees. Mr Palmer is the subject of Exhibit B. He was a person standing for election to the position of the Secretary of Food 1 Division.
97 The publication drew attention to a payment made to Mr Palmer as a retirement benefit. The payment was branded “unjustifiable and, indeed, wrongful”. The defendant acknowledged, in argument, that “wrongful” was capable of suggesting criminal conduct.
98 The letter dealt with the attempts by Mr Palmer to justify his actions. Essentially he asserted that he was acting upon superior orders, namely those of Mr Frank Belan. That statement was condemned in various ways:
· It was described as “misleading and deceitful”.
· It was contradicted by stating that it was “Ted Palmer who authorised those payments to union officials involved - NOT ME” (emphasis in the original).
· It was described as a “ridiculous” claim.
99 The ordinary reasonable reader, in the context of a trade union, with a certain amount of loose thinking, and reading between the lines, would have the broad impression that Mr Palmer had taken union money to which he was not entitled. Moreover, he had invented a story to cover up his crime. He had blamed Mr Belan for something which was his own doing. I am persuaded by the plaintiff that the imputations do arise.
100 The defendant argued that the unstated premise of the letter (as well as the leaflet, Ex C) was that there had been a court case, which Mr Palmer had won. I am not persuaded, however, that the ordinary reasonable reader would have that understanding. The court case is not given much prominence in Exhibit B (unlike Ex C). There is an oblique reference to it in “Fact (4)”. The impression is given that Mr Palmer fought bitterly, no doubt by resorting to lies, to avoid having to give the money back.
101 If one examines Exhibit B against the background of Exhibit C (which was in the same envelope, and therefore part of the context), the impression of lies to cover up wrongdoing is reinforced. Indeed, it is not clear from that publication (Ex C) that the court case had been concluded, and that Mr Palmer had won.
102 Turning to Exhibit C, and dealing with the imputations in paragraphs (a) and (c) (being, broadly, those equivalent to the imputations said to arise from Ex B), the context is the same. What is the broad impression which the leaflet would make upon the ordinary reasonable reader, being a trade unionist in the midst of an election? The imputations use the word “stealing”. Stealing is taking something that does not belong to you. Relevantly, the suggestion is that the plaintiffs have taken union funds belonging to members (“members’ money”). The leaflet uses the words “took”, and “taking”. Under the heading “The Payouts” it exposed the plaintiff’s method, namely:
· They “paid themselves redundancy even before the amalgamation was declared”.
· They used “blank pre-signed cheques”.
· They used union funds to reimburse tax deducted from their payments.
103 On page 2, again, the word “taking” is used. The leaflet included the following:
“Palmer doesn’t deny taking $46,525.51 out of the union” (emphasis in the original)
104 The leaflet also exposed the absence of any justification for taking union funds. It said this:
· They took redundancy payments but did not have one day off work.
· After paying themselves redundancy, they kept working full time as Federal and State officials of the NWU.
· Under the heading “Sometimes you just can’t believe your ears” the leaflet recites a number of famous “lies” (“I am not a crook … ”, Richard Nixon; “I did not inhale … “, Bill Clinton; “… No child will be living in poverty”, Bob Hawke). In that context they include the statement by Mr Palmer “Belan told me to pay out all the officers”, with the clear implication that it was false.
· “Palmer doesn’t deny taking $46,525.51 out of the union. He just wants you to blame Frank Belan.”
105 The defendants argued, first, that there was no accusation of stealing. The plaintiffs were already in control of the funds. However, I believe that the ordinary reader would regard a person as having stolen funds, whether or not those funds were under his control, if he diverted them improperly to his use. Lawyers may call such conduct misappropriation, or by some other label. An ordinary reader, who is a trade union member, would regard taking funds that do not belong to you as stealing.
106 Secondly, the defendants again assert that the assumption behind the article is that the plaintiffs had taken court action and won. The leaflet invites the membership to make an independent judgment upon that result. However, as already explained, I believe that there are difficulties in that suggestion. It is not clear that the court case is over, and has been won.
107 I am persuaded that imputations (a) and (c) do arise from Exhibit C.
108 Imputation (b) combines two ideas. I have dealt with the first already, namely whether the leaflet, as a whole, suggested that the plaintiffs had stolen union funds. I believe that imputation does arise. The second idea is that, having done that, the plaintiffs took defensive action to avoid being found out. The leaflet opens with these words:
“Palmer and Boner commenced the court action to stop the Committee of Management looking at their use of union funds.”
109 The defendants made the following submission in respect of this imputation:
“In addition to the difficulties discussed above in relation to ‘stealing’, this imputation confronts the fact that the words of the publication do not speak of ‘detection’ but of ‘looking at’ - implying that the payments were already known.”
110 However, the clear implication, arising from the leaflet, is that the Committee of Management wanted to follow the money trail to detect and expose the wrongdoing which the leaflet then does expose. I believe that imputation (b) also arises.
111 The defendants conceded that, were I to find (as I now have) that the imputations arose, that they were defamatory of each of the plaintiffs.
The Publication by the Defendants
112 In Webb v Bloch ([1928] 41 CLR 331), Isaacs J quoted with approval the following, on the issue of publication: (at 364)
“In Parkes v Prescott ((1869) LR, Ex 169 at p 173), Giffard QC quotes from the second edition of Starkie: ‘All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.’ In R v Paine ((1696) 5 Mod 163 at p 167) it is held: ‘If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man’s reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide.” (emphasis in original)
113 Here, Mr Belan acknowledged his responsibility for the dissemination of both the letter and leaflet (Exs B and C). They were shown to him. He read them. He gave his approval. He signed the letter. It was his expectation that they would be distributed to members of the Food 1 Division.
114 The actions against Mr Casey arise out of the publication of the leaflet, Exhibit C. Mr Casey made no concession that he was responsible for the distribution of that document. He acknowledged that he was responsible for the preparation of the letter, Exhibit B. His campaign manager, his brother Thomas, prepared that letter, which was then shown to Mr Belan for approval. However, his brother had not prepared the leaflet, Exhibit C. He did not know who had.
115 Mr Casey did, however, recall having seen Exhibit C before its distribution. It was shown to him at the campaign office of the Frank Belan Team by a campaign worker. He believed it was shown as a matter of courtesy. The decision had already been taken by Mr Belan to distribute the leaflet.
116 Mr Casey recalled folding the letters (Ex B) so that they could be placed in envelopes, and thereafter sent to Food 1 members. He saw other campaign workers folding other material. However, at no time, in his view, did he personally authorise the distribution of the leaflet, Exhibit C.
117 The recollection of Mr Belan, as to the involvement of Mr Casey was somewhat different. Both Exhibit B (the letter) and Exhibit C (the leaflet) were designed to assist Mr Casey, by denigrating his rival, Mr Palmer (as well as Mr Boner in the case of Exhibit C). The leaflet, indeed, included these words:
“VOTE ‘x’ ARTHUR CASEY AND THE FRANK BELAN TEAM”
118 Mr Belan gave the following evidence: (T 113)
“Q. Before the adjournment your evidence was pretty clear, wasn’t it, that both documents were given to you by Mr Arthur Casey, weren’t they?
A. And authorised by me, yes.
Q. That was your clear recollection before the adjournment, wasn’t it?
A. Yes, still is.”
119 I believe, as a matter of probability, that Mr Belan’s version is correct. Mr Casey was the beneficiary of both documents. He took it upon himself to arrange a response to Exhibit 1. The two documents, Exhibits B and C. are said to be that response. Both documents went out together in the same envelope. Mr Casey’s assertion that he arranged one, but not the other, and had no idea who arranged the other, even though it dealt with the same subject, and he was the beneficiary, is improbable.
120 Mr Casey’s responsibility for the publication of the leaflet is apparent from other evidence which he gave. He said this: (T 154)
“Q. You understood that you were agreeing to Mr Belan on occasions during the campaign putting out brochures on behalf of the Frank Belan team which would be included on your behalf?
A. Frank put out - the word we use is campaign material on behalf of the entire team.”
121 Elsewhere, Mr Casey said this: (T 155)
“Q. You were prepared to go along with Mr Belan deciding to spend funds on your behalf?
A. I was prepared for Frank, as a member of the team, to get campaign material out that would protect my position.”
122 I believe, in these circumstances, that Mr Casey published Exhibit C.
123 The plaintiffs, therefore, have established that the defendants published defamatory imputations concerning them. I shall now deal with the defences raised by the defendants.
Defence under s 13 of the Defamation Act 1974
124 The defendants, late in the hearing, with the consent of the plaintiffs, filed amended defences in each action. The defences, in each case, pleaded the defence provided by s 13 of the Defamation Act 1974, that, in the circumstances of publication of the matter complained of, the person defamed was not likely to suffer harm.
125 Counsel for the defendants, in submissions, did not seek to support that defence (T 160). The defendants, of course, bear the onus. The publication concerned rival candidates in an election. The imputations were serious. The plaintiffs were each accused of stealing union funds, and falsely implicating an innocent person in their crime. The issue was known by the defendants to be sensitive. Serious harm to the plaintiffs was likely. The defence, therefore, is not made out.
Qualified Privilege at Common Law
126 The defendants rely upon the defence of qualified privilege at common law. It is said to arise in two ways:
· First, the statements were made on a subject matter in which both the defendants, and the persons to whom the statements were made, had a legitimate common interest.
· Secondly, the statements were made in reply to an attack, namely the publication of the document bearing Mr Palmer’s photograph (Ex 1).
Qualified Privilege Through a Common Interest
127 The letter (Ex B) and leaflet (Ex C) were, of course, published during a union election. They were described as “campaign literature”. Broadly, they deal with the conduct of rival candidates. They were, if true, relevant to the fitness for office of such candidates. The publications were distributed by mail to Food 1 members. They were distributed, therefore, to electors in the forthcoming election, and to no-one else.
128 The defendants submitted that communications to electors by candidates in the course of an election are quintessentially communications on an occasion of qualified privilege. The law presumes that the defendant believes the truth of the assertions being made (Radio 2UE Pty Limited v Parker (1992) 29 NSWLR 448 at 462, per Clarke JA).
129 Attention was drawn to Braddock v Bevins (1948) 1 KB 580, where the Court of Appeal took what The Australian Defamation Law and Practice described as a “robust” approach to the issue (Tobin & Sexton para 14,025). The plaintiff was a member of the House of Commons. She was also an active supporter of a particular candidate running for office on the Liverpool City Council. The rival candidate published an election address to the electors of the relevant Ward. The plaintiff alleged the address defamed her. On the issue of qualified privilege, the Court of Appeal said this: (p 590)
“In principle, and quite apart from such assistance as can be derived from authority, we should have thought it scarcely open to doubt that statements contained in the election address of one candidate concerning the opposing candidate, provided they are relevant to the matters which the electors will have to consider in deciding which way they will cast their votes, are entitled to the protection of qualified privilege. The electors clearly have an interest in receiving a communication of that kind. Indeed, the task of the electors under democratic institutions could not be satisfactorily performed if such a source of relevant information bona fide given were to be cut off by the fear of an action for libel. As will be seen, there is a good deal of authority for the view that qualified privilege extends to communications by one elector to another in relation to a candidate at an impending election. It would be curious if the interest and duty subsisting between one elector and another were to be rated higher in this respect than the interest and duty subsisting between an elector and a candidate, and we are unable to see any ground for such a distinction …”
130 In Lang v Willis (1934) 52 CLR 687, the High Court was more circumspect. Statements were made in the course of a parliamentary by-election to the press. They characterised the leadership of the New South Wales Labor Party as a “dictatorship”. Evatt J said this: (at 672)
“One further matter: I disagree with the opinion expressed in the Supreme Court that the facts proved showed that the occasions of all seven speeches were ‘unquestionably privileged’ (Maxwell AJ). Of course it is possible that a privileged occasion will arise in relation to a speech at a public or an election meeting. But the common law warrants no such general doctrine of privilege as was here asserted on behalf of the defendant, and apparently by the majority of the Full Court. The general question of privilege I had occasion to discuss in the recent case of Telegraph Newspaper Co v Bedford ((1934) 50 CLR 632). In my opinion the theory that privilege attaches to every occasion upon which speakers at election meetings choose to broadcast before large gatherings opinions or information about one or other of the candidates cannot be supported.”
131 Here, of course, the publication was confined to the members of the Food 1 Division. The material was published only to those people who had a common interest (cf Guise v Cauvelis (1947) 74 CLR 102).
132 In Howe v Lees (1910) 11 CLR 361, O’Connor J said (at 377):
“The interest relied on as the foundation of privilege must be definite. It may be direct or indirect, but it must not be vague or insubstantial. So long as the interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rules.”
133 In Austin v Mirror Newspapers (1985) 3 NSWLR 354, the Privy Council defined the common law requirement in these words:
“… an interest material to the affairs of the recipient of the information such as would, for instance, assist in the making of an important decision or the determining of a particular course of action.”
134 Applying that test, the occasion would appear to be one of qualified privilege. However, the plaintiff drew attention to the remarks of O’Connor J in Hay v The Australasian Institute of Marine Engineers (1906) 3 CLR 1002: (at 1016)
“The privilege here, if it is to be of any value at all, is to publish, not an expurgated edition, but a complete report of the resolutions of the conference as they were arrived at, to all the members of the Institute, in order to give them that right which they possess as members to have placed before them a full and accurate account of everything said and done. If that is the nature of the occasion, prima facie it is the duty of the Institute to publish to members of the Institute the determination of the resolutions of the conference just as they were passed.”
135 The authorities emphasise the importance of the particular circumstances in each case. Evatt J (in Telegraph Newspapers Co Limited v Bedford (1934) 50 CLR 632 at 657) described the characterisation of the occasion as one of “extreme delicacy to determine whether, in any given circumstances, the claim of privilege should be allowed”. No doubt the electors had an interest in receiving an accurate account of the competing versions of the court action, and what the court had found. The plaintiff submitted, however, that the electors could have no interest in a misleading, expurgated version of those facts.
136 The submission has some attraction. It can hardly be in the interests of electors that they should receive misinformation. In the case already referred to (Telegraph Newspapers Co Limited v Bedford) Evatt J said this: (at 655)
“Considerations of public good and public policy run through all the common law cases on this topic. In the year 1837, in Todd v Hawkins ((1837) 8 C&P 88 at 93, 173 ER 411 at 413), Alderson B said: ‘It is for the common good of all that communications between parties situated as those were, should be free and unrestrained.’”
137 The importance of considerations of public policy were also identified by Jordan CJ in Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 362:
“Whether or not an occasion is one of qualified privilege depends upon considerations of public policy. The cases on this point were collected by Evatt J in Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 655-658. All the circumstances in which the defamatory statement for which privilege is claimed was made must be taken into account, and, in the light of them, it must be determined whether it is in the interest of the community, that is, the good of society in general, that the statement, though defamatory, should be made with impunity. It is of course not necessary that the facts of the particular communication should be of interest to the public at large. It is necessary only that it should be for the general good of the community that such a communication should be made with impunity so far as the law of defamation is concerned. Howe v Lees (1910) 11 CLR 361 at 368-9; Austin Digest 404.”
138 I believe that the plaintiffs’ submission, in the end, amounts to a requirement that the defendant establish the truth of what has been said, and that they behaved reasonably in the circumstances (cf s 22(1)(c) Defamation Act 1974) before they can claim privilege. Ordinarily these are not requirements of an occasion of qualified privilege. Falsity, and extravagance may be relevant in the context of malice. But that is a different issue. I therefore believe that the publication was made on an occasion of qualified privilege.
Reply to Attack
139 I should deal with the second basis upon which the defendants put their case. Upon the analogy of the criminal law, a person may defend himself against written or verbal attacks. As with the criminal law, however, the response must be reasonably commensurate with the attack, although “no nice scales will be used” (Adam v Ward (1917) AC 309, per Lord Dunedin at 330).
140 Here, a number of issues arise:
· First, can the original document (Ex 1) be characterised as an attack?
· Secondly, if it can, whose attack was it, and does it matter?
· Thirdly, do the documents, Exhibits B and C, amount to a reply to an attack?
141 Dealing with these issues, Exhibit 1 (supra p 32), was a documents which, itself, was said to have been produced because Mr Palmer had been “slandered” in the rice growing area, where there were many Food 1 members. The document included a photograph of Mr Palmer, and a statement attributed to him. The balance of the leaflet was highly critical of Mr Belan’s administration, and was unquestionably an attack. The documents ultimately published by Mr Belan, however, (the letter (Ex B) and leaflet (Ex C)) were not directed towards these criticisms. Rather, they responded to the quotation attributed to Mr Palmer.
142 That quotation asserted that Mr Belan had directed Mr Palmer to pay out the officers of the Millers’ Union in accordance with the rules. It also said that “Mr Belan set me up”. The statement concluded with a warning (from Mr Palmer) that members “should not be misled by what Belan and his henchmen have been saying”.
143 I believe these words amounted to an attack upon Mr Belan, and his administration. The imputation was that Mr Belan, through his allies, was spreading lies concerning certain payments to officers of the Millers’ Union; that, in fact, he had ordered those payments, and later denied his involvement, thereby setting up Mr Palmer.
144 It is not necessary that the defendants, in order to claim the privilege, need to respond to the whole of the attack, or do so on the one occasion. Provided the response (Exs B and C) can be characterised as a reply to the attack within Exhibit 1, or any part of it, that, in my view, is enough.
145 Whose attack was it? The document, Exhibit 1, does not identify a publisher. It carried the photo of Mr Palmer, and a statement attributed to him. It was otherwise anonymous. The campaign slogans in the lower part of the document resembled other literature promoted by the Rank and File Team.
146 Mr Belan, in his letter, Exhibit B, opened with these words:
“Recently, you may have received a pamphlet which I believe was issued by Ted Palmer.”
147 There is no suggestion that Mr Boner had anything to do with the production or publication of Exhibit 1. However, Mr Palmer, before its publication, discussed the desirability of producing a document with members of the Rank and File Team. It came to his notice, through that team, that accusations of dishonesty were being made against him. He did not compose the leaflet, Exhibit 1, nor furnish the photograph or quotation which were used. Nonetheless, he discussed the nature of the response which should be put out (T 45). He knew a document would be produced (T 47). He assumed that he would be shown that document before it was disseminated. Although in some respects he waivered in his answers, I accept the following evidence which he gave: (T 53)
“Q. You didn’t ask them to show it to you after the approval before they put it out, did you?
A. I was an ex-union official. You always want to see anything that’s put out under presumably your signature or under your - so I’m quite certain in my own mind I had said, ‘You let me see it before it goes out?’ I’m certain I would have asked to see it before it went out, but I didn’t get to see it.”
148 He was not shown the document before its dissemination, and was disappointed when he saw it. He would have worded differently the quotation attributed to him (T 60), although he did not disown the accuracy of the words “Belan Set Me Up”. There was, incidentally, no evidence before Hill J, or before me, that, in giving the direction to discharge liabilities, Mr Belan had deliberately led Mr Palmer into a trap. Rather, it appears, as will be discussed below, that Mr Belan may not, when giving the direction, have appreciated the monetary implications under Rule 54 of the Millers’ rules.
149 Was Mr Palmer responsible, in these circumstances, for Exhibit 1, such that it may be characterised as his attack? With some hesitation, I believe that he was. He discussed its production. He gave his approval to the production of a document. He assumed he would be shown a copy of the draft. In the context of an election, where time was of the essence, the adoption of a passive role, where he made no inquiry, and did not supervise what was being done in his name, does not, in my view, relieve him of responsibility for what was produced.
150 I, therefore, move to the third question: can the publications, Exhibits B and C, be characterised as a reply to an attack? There is little doubt that each purported to be a response to Exhibit 1. Exhibit B specifically quoted the words “Belan Set Me Up” and dealt with the general subject matter of retirement benefits. Likewise, Exhibit C repeated words taken from the quotation attributed to Mr Palmer, namely:
“,BELAN TOLD ME TO PAY OUT ALL THE OFFICERS ..”Palmer151 The leaflet, Exhibit C (unlike Ex B), repeatedly named Mr Boner as well as Mr Palmer. Although Mr Boner had nothing to do with the attack, the victim may, in his response, deal with the complicity of third parties, provided the allegations against them are not wholly unconnected with the defence (Gillooly, The Law of Defamation in Australia and New Zealand, p 178). In Loveday v Sun Newspapers Limited (1938) 59 CLR 503, Dixon J said: (at 520)
“But, if A attacks B and in order to defend himself B reasonably publishes defamatory matter of C, who has been no party to the attack, B’s privilege will protect him as against C (Coward v Wellington ((1836) 7 Car & P 531; 173 ER 234).”
152 The plaintiff submitted that the privilege was a shield and not a sword, whereas the publications, which were supposedly a response to Exhibit 1, were in the nature of a counter offensive, not warranted by the attack. Attention was drawn to News Media Ownership v Finlay (1970) NZLR 1089, where North P said this: (at 1095)
“Mr McKay was right when he submitted that while violence of language is not in itself enough to take away privilege even though it may provide evidence of malice, yet privilege is lost if the reply becomes a counter attack raising allegations against the plaintiff which are unrelated or insufficiently related to the attack he made on the defendant. In other words he cannot claim the protection of privilege if he decides to bring fresh accusations against his adversary.”
153 When responding to an attack, it is sometimes difficult to distinguish between response and counter attack. Indeed, Dixon J in Penton v Calwell (1945) 70 CLR 219, appeared to contemplate that a measure of counter attack was permissible. He said this: (at 233)
“When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion.” (emphasis added)
154 The publications complained of and the response dealt with the same subject (Ex 1). They dealt with the payment of benefits to former officers of the Millers’ Union, and the court action. They did not introduce fresh allegations. The response (Exs B and C) certainly had considerably more punch than the attack. Nonetheless, I believe it was within permissible limits.
155 I further believe that the defence is available to both defendants, not simply Mr Belan. The attack (Ex 1) named Mr Belan. However, it was a document issued in the context of an election in which Mr Belan was leading the Frank Belan Team. An attack upon him was an attack upon the team. Mr Casey was a member of that team. He was entitled to participate (by publication) in the response.
The Inclusion of Irrelevant Material
156 The privilege attaches only to statements relevant to the occasion, or which are in reply to the attack. The following statement in Exhibit B seems to me to be irrelevant to any attack in Exhibit 1:
“Indeed, I believe Ted Palmer is NOT supported by any other official in the National Union of Workers NSW Branch, and they would be foolish to give him support.”
157 However, that statement may be regarded as material which the defendants were entitled to communicate to electors, protected by their common interest.
158 Exhibit C, in the reference to $46,525.51, included payments for accrued leave, sick pay, holiday pay and other entitlements. The sum relating to the retirement benefits under Rule 54 was, in the case of Mr Palmer, $21,368.72. The inclusion of the higher amount was, implicitly, the inclusion of irrelevant material.
159 However, I believe, subject to the plaintiff establishing malice, that the defence of qualified privilege at common law has been made out.
Qualified Privilege Under the Defamation Act 1974
160 The defendants rely upon s 22 of the Defamation Act 1974. It is in these terms:
“22(1) Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving to him information on that subject; and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.”
161 It is convenient to move directly to a consideration of s 22(1)(c). The matters relevant to the satisfaction of that requirement were considered in Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697, where Reynolds JA said this: (at 712)
“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 reasonable 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.”
162 A helpful analysis has also been provided by Hunt AJA in Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374, where his Honour said this: (at 387)
“In my opinion, all of those cases support the following propositions in relation to the requirement of s 22(1)(c) that the conduct of the defendant in publishing the matter was reasonable in the circumstances;
(1) The conduct must have been reasonable in the circumstances to publish each imputation fround to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. ….
(2) If the defendant intended to convey any imputation in fact conveyed, he must … have believed in the truth of that imputation.
(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish:
(a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and
(b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.”
163 Having given a number of illustrations, his Honour continued: (at 388)
“(4) The defendant must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;
(b) that his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.”
164 Turning to the evidence, broadly, there are two possibilities. The first is that Mr Belan, as he proclaimed, was ignorant of the evidence before Hill J, and the judgments given by his Honour in respect of the merits and costs (apart from the orders made). On this view, Mr Belan had failed to undertake what may be thought to be basic research before publishing Exhibits B and C.
165 The second alternative is the one that I favour as a matter of probability (supra p 26). Mr Belan was well aware of the evidence of Mr Palmer. He was well aware of the critical findings of Hill J, both as to the merits of his dispute with the former officers of the Millers’ Union, and the order for costs. Notwithstanding that awareness, he nonetheless published Exhibits B and C.
166 In either case, it appears to me plain that Mr Belan is not able to satisfy the stringent requirements of the test formulated in respect of s 22(1)(c). The documents published, in the conclusions they offer, are, in a number of respects, inaccurate. I will deal more fully with those inaccuracies in the context of the defence of Comment below. The documents complained of (or at least Ex C) purported to deal with the court case, and the retiring allowances, and yet omit the following matters (which appear in the various judgments of Hill J), which I regard as fundamental to an accurate and reasonable presentation of the facts:
(a) That the retirement allowances related to past service.
(b) That no provision had been made to carry forward such benefits in the new Union.
(c) That, in these circumstances, his Honour had found that Mr Belan had directed the Millers’ Union, as one would expect, to discharge all liabilities before the amalgamation took place.
167 To publish the imputations contained in Exhibits B and C, in circumstances where these matters were omitted, was misleading and unfair. Mr Belan knew only too well that the impression created was misleading. His conduct, as publisher, in these circumstances, was, therefore, not reasonable in my view.
168 Is Mr Casey able to take advantage of the defence provided by s 22? Mr Casey gave evidence that he relied upon Mr Belan for the facts. He saw some transcript of the court case. He also was shown certain ledgers. However, he did not read the judgments of Hill J, although he had been put on notice of its terms, having read the plaintiffs’ pamphlet (Ex G).
169 I do not believe that Mr Casey’s conduct in publishing Exhibit C was reasonable, he having not done what I regard as basic research. I am not satisfied that either defendant has made out the defence of Qualified Privilege under the Defamation Act 1974.
The Defence of Comment
170 It is convenient to postpone, for the moment, the consideration of whether the plaintiffs have proved that the publications were actuated by malice, and to consider, instead, the defence of Comment which is also raised.
171 The defence is dealt with in Division 7 of the Act. A number of conditions must be satisfied before the defence is available,.
172 First, the defendants must establish that the imputations were conveyed as a comment, rather than as statements of fact (Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448, per Clarke JA at 468). This is done by establishing two matters (Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474) per Hunt J: (at 490)
“(a) whether the ordinary reasonable reader would have understood the statement as having been intended by its author to be an expression of opinion upon sufficiently indicated material; and
(b) whether the opinion is one which an honest man might have held on that material.”
173 Secondly, the comment must satisfy one or other limbs of s 30(3), which is in these terms:
“30(3) The defences under this Division are available as to any comment if, but only if:
(a) the comment is based on proper material for comment; or
(b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.”
A statement of fact which is substantially true is proper material for comment (s 30(2)). Hunt J in Bob Kay Real Estate v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505, explained the difference between the requirements of s 30(3)(a) and (b) in these terms: (at 517)
“The point made is that, where the defendant has established that the whole of the basis for the comment is proper material for comment, what was published is comment if the opinion is one which might honestly be based on that material; but where the defendant has only established that part of the basis for the comment is proper material for comment, what was published can be defended as comment only if the opinion is one which might reasonably be based upon that which has been established to be proper material for comment. The difference between the two concepts is substantial: cf Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 461. It is obvious from what was said there, I suggest, that a jury would be quite lost if the trial judge did not tautologically use the word ‘honest’ in order to draw a distinction between the two concepts involved.”
174 Thirdly, the comment must relate to a matter of public interest (s 31).
175 Having satisfied these requirements, the defence may yet be defeated if the plaintiff were able to show that, at the time the comment was made, it did not represent the opinion of the defendant (s 32(2)).
176 Dealing with these issues somewhat out of order, it is convenient to dispose of the third condition, namely that the comment must relate to a matter of public interest. A useful commentary upon the concept of public interest was provided by Lord Denning in London Artist v Littler (1969) 2 QB 375 at 391:
“I would not myself confine it within narrow limits. Whenever a matter is such as to effect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or to others, then it is a matter of public interest on which everyone is entitled to make fair comment.”
177 See also Bellino v Australian Broadcasting Commission (1996) 185 CLR 183 at 215.
178 In the context of a union election, the candidates were entitled to have their say, and the electors, no doubt, were interested in what they had to say. I believe comments relating to the union election were comments relating to a matter of public interest within the meaning of s 31.
179 Turning next to the second condition, the plaintiff asserted that a number of statements in Exhibits B and C were false, so that the defendants were obliged to satisfy the more stringent requirements of s 30(3)(b). I will now deal with that suggestion.
180 In respect of Exhibit B, the letter signed by Mr Belan, the plaintiff asserted that the following facts within that letter were false:
(a) “This pamphlet contains the … statement that I, as State Secretary of this union, permitted the officials of the old Millers’ union to pay …. (a) retirement benefit when in fact, they had continuation of employment under the amalgamated union.”
(b) “In fact, it was Ted Palmer who authorised those payments to union officials involved - NOT ME.”
(c) “… Ted Palmer … was responsible for” (the payments).
(d) (Ted Palmer) “fought bitterly to keep the money”.
181 I have dealt with the first three matters (paras (a) to (c)) already (supra pp 17-19). I am satisfied, as a matter of probability, that Mr Belan told Mr Palmer to pay out the officers of the Millers’ Union before amalgamation, as required by law (in respect of annual holidays etc), and the union rules (in respect of retirement benefits under Rule 54). I accept, therefore, that the defendants have not demonstrated, as a matter of probability, that the statements in (a), (b) and (c) are substantially true.
182 In respect of para (d), the plaintiff asserted that it was simply untrue to suggest that Mr Palmer had fought bitterly to keep the money. On 19 October 1992 (supra p 13, para 31), Mr Palmer spoke to Mr Belan concerning the repayment of the money. A special meeting of Branch Secretaries was convened. Mr Palmer was advised that, even were the money repaid, no guarantee could be given that charges would not be laid (Ex E, p 478). That conversation took place before charges were laid on 28 October 1992 (supra p 13). Indeed, Hill J made the following comment before determining that it was appropriate to award indemnity costs (Ex E, p 478):
“In my view the applicants made all reasonable attempts to settle the matter; and they made those attempts prior to the institution of these proceedings and indeed prior to the actual laying of charges by Mr Belan - which were laid on 28 October 1992 in accordance with the resolution of the COM on that day.”
183 The defendants, therefore, have not satisfied me that the matter asserted in para (d) is substantially true.
184 Accordingly, in respect to the publication of Exhibit B, para (a) to (d) cannot be regarded as proper material for comment.
185 Turning, then, to the leaflet, Exhibit C, the plaintiff asserted the following facts were false (Ex R):
(a) “Palmer & Boner commenced the court action to stop the Committee of Management looking at their use of union funds.”
(b) Under a heading “The Payouts”, the publication asserted that the plaintiffs “paid themselves redundancy”, “took redundancy payments” and did certain things “after paying themselves redundancy”.
(c) “They used union funds to re-imburse tax deducted from their payments.”
(d) The statement “Belan told me to pay out all the officers … Palmer” in the context of the heading “Sometimes you just can’t believe your ears!”, and the three “great lies” which were recited. The plaintiffs say that it was false to suggest that Mr Palmer’s statement was a lie.
(e) “Palmer doesn’t deny taking $46,525.51 out of the union”, where only $21,368.72 related to payments under Rule 54. Only that sum, and the tax related to it ($339.19), formed the basis of the charges, and the case before Hill J. It was false to suggest the higher sum.
(f) The statement that “the court case” was commenced “over members’ money” is false. That was not the reason for the court case, and it was not members’ money.
186 Dealing with each of these matters, in respect of para (a), the plaintiff asserted that the court action was to prevent oppression, and a departure by the union from its Rules. The order sought was to restrain the Committee of Management from proceeding to hear the charges. It was not aimed at preventing the Committee from examining, if it chose, the use of union funds by former officials of the Millers’ Union.
187 There is some merit in that submission. However, the Committee of Management was proposed to examine the use of union funds by Messrs Palmer and Boner (and another officer). They had in mind doing so, no doubt, in the context of the charges which had been preferred. On balance, I believe that the statement is substantially true, and accordingly is proper material for comment.
188 Turning next to para (b), Rule 54 referred to these payments as a “retiring allowance”. The difference in the nomenclature is important. A retiring allowance suggests a payment for past service. That is precisely what Hill J found was the nature of the payment. The word “redundancy”, coupled, as it was on two occasions in Exhibit C, with a statement (which was true) that the officials did not have a day off work, was quite misleading (cf R v Lord Kylsant (1932) 1 KB 442). It may be permissible to use the word “redundancy” loosely to describe the payment (cf McNally & Co letter 29 October 1991 (supra p 9, para 23)), provided that it is made clear, first, that the payment was, under the union rules, an accrued benefit based upon past service; secondly, that no provision had been made for it to be carried forward into the National Union of Workers; and, thirdly, that the officers had no security of tenure in that union, but held office subject to being re-elected every four years. I believe that, in the context in which it was used in Exhibit C, the word “redundancy” was false. The defendants, therefore, have not persuaded me that it was substantially true, and therefore, proper material for comment.
189 The statement in para (c) was also false. Tax was deducted which the auditors advised should not have been deducted. The responsibility for the payment of tax rested with the individual officers, not the union. It was not true to describe the money paid for the purposes of reimbursement as “union funds”. That statement falsely suggested that the officers had used money to which they were not entitled to discharge a liability which was truly theirs. I do not, therefore, regard the statement in para (c) as proper material for comment.
190 Paragraph (d) has been dealt with. It was false to suggest that Mr Belan had not told Mr Palmer to pay out all the officers. He had. The statement, likewise, was not proper material for comment.
191 Dealing with para (e), it was not substantially true, in the context of the court case, and the reference to “redundancy” (being Rule 54 payments) to speak of Mr Palmer “taking $46,525.51”. He was paid $21,368.72. It is repeated at the end of the same page (“Did Palmer tell you about his $46,525.51 payout?”). The reference to “payout” is a reference to “the payouts” described on page 1 of the leaflet. They, in turn, are referable to the court case, and Rule 54. The figure in the leaflet, therefore, is false. The statements which include that figure are not proper material for comment.
192 Finally, para (f) is a misdescription of the nature of the court case, and the entitlements of Messrs Palmer and Boner to payments under Rule 54. It was false to describe such monies as “members’ money”. Accordingly, that statement is not proper material for comment.
193 Accordingly, the defendants have not satisfied s 30(3)(a). For the purposes of dealing with s 30(3)(b) it is convenient to assume, in the defendants’ favour, that the imputations to which the publications gave rise were conveyed as comment, rather than as statements of fact. The issue then becomes whether, based on the material within Exhibits B and C which is substantially true, the comment made by the defendants represents an opinion which might reasonably be based upon such material. Both publications are emasculated when one disregards that material which is not proper material for comment. I do not believe, based upon what remains, that it can be said that the defendants have established that the comments made represent an opinion which might reasonably be based upon such material.
194 Finally, there are issues arising under s 32(2). The principle is encapsulated in Gillooly The Law of Defamation in Australia and New Zealand, in these words: (at 140)
“Where the defendant is the maker of the comment, the s 32 defence will only be forfeited if the plaintiff proves that ‘the comment did not represent the opinion of the defendant’ (s 32(2)). The motives of the commentator (including whether he or she is actuated by malice) are irrelevant - the issue is whether the commentator genuinely believed in the truth of the comment (Bickel v John Fairfax & Sons [1981] 2 NSWLR 475 at 491, 493). Hence if a defendant asserts that he or she did not intend to convey the imputation found by the tribunal of fact to have been conveyed by way of comment, then the defence must fail since ‘a person who states that he did not intend to convey a particular defamatory imputation cannot reasonably be taken to have held the opinion represented by that imputation’ (Lloyd v David Syme (1985) 3 NSWLR 728 at 736, per Lord Keith).”
195 Here the defendants may each be regarded as the maker of the statements. The plaintiffs’ administered interrogatories to each defendant, asking whether they intended to convey each of the imputations which the Court has now found were conveyed. Each defendant responded in the negative. This is a further reason why the defence of Comment is not made out.
Was the Publication Actuated by Malice?
196 Having found that the defence of qualified privilege at common law was established by the defendants, it is necessary to consider whether the plaintiffs have established that the defendants were actuated by malice.
197 The onus rests upon the plaintiffs to prove malice. Judges and juries are enjoined “to be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege …” (per Lord Diplock, Horrocks v Lowe [1975] AC 135 at 149).
198 The motivation of the defendant, in publishing the defamatory material, is crucial. Lord Diplock, in the same case, said this: (at 149)
“So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove.”
199 Knowledge that someone will be injured by the publication is not enough, if the defendant is nevertheless acting in the bona fide protection of his own legitimate interests.200 Lord Diplock, in the same case, added: (at 149/150)
203 Lord Diplock added: (at 151)
“The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.”
201 Mr Casey, on this issue, is unquestionably in a different position to Mr Belan. I will refer to those differences later in this judgment. Lord Diplock formulated the following test, relevant to Mr Casey, in these words: (at 150)
“If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true.”
202 Express malice may arise where it is proved that the defendant misused the occasion for some purpose other than that for which the privilege is given. Lord Diplock said this: (at 150)
“The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled.”
“It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that ‘express malice’ can properly be found.”
204 The written submissions of the defendants sought to encapsulate these principles in these words:
“To succeed on malice, the plaintiffs had to prove that the defendants either:
(a) lacked an honest belief in the truth of the matters complained of; or
(b) were motivated by some other dominant or improper motive.”
205 They added, drawing upon the speech of Lord Diplock in Horrocks v Lowe:
“The privilege is not to be destroyed by carelessness, impulsiveness, irrationality (150B-C), prejudice, relying on intuition instead of reasoning, leaping to conclusions on inadequate evidence, failing to recognise the cogency of contrary material (150D), dislike, indignation (151A), obstinacy, pig-headedness, stupidity, obtuseness (152A-B), even gross and unreasoning prejudice (152G).”
206 Did Mr Belan have an honest belief in the truth of what he published in Exhibits B and C? Mr Belan gave the following evidence in respect of each publication: (T 92)
“Q. At the time you signed the document did what was in it express opinions which you held?
A. Yes.
Q. Have you changed those opinions in any respect?
A. No, no.”
207 Mr Palmer was cross examined as to his understanding of Mr Belan’s views. He said this: (T 64)
“Q. Mr Belan … already raised with you, expressed disagreement to you, over the payment of the retirement allowance first in late September or perhaps early October 1992, correct?
A. Yes.
Q. You have already agreed with some of the things that were said in that initial conversation. The attitude he expressed then never changed, did it, that was the position he took throughout?
A. Probably.”
208 I have accepted that Mr Belan directed Mr Palmer to discharge all liabilities before amalgamation, including those arising under the rules. I, nonetheless, accept that when the payment under Rule 54 came to Mr Belan’s notice in September 1992, he was disturbed. He may well have believed, at that time, that such payments were “socially and morally wrong” because the officers of the Millers’ Union had continuity of employment with the National Union of Workers.
209 However, the Court is not dealing with the publication of Mr Belan’s views in September 1992. I recognise that people may stubbornly cling to their beliefs, and yet be honest. They may do so, notwithstanding evidence that appears to demonstrate that their beliefs are wrong. They may even do so when their beliefs are put to the test, in a court of law, and found wanting. People are not always rational, and yet they may be honest.
210 In this matter, however, I do not believe that Mr Belan was irrational. Nor do I believe that his views were unchanging in the years that followed September 1992. I have formed the view that Mr Belan lacked an honest belief in the truth of a number of statements in the publications, Exhibits B and C. Many of the statements appearing in the publication were simply false, and false to his knowledge. They do not depend upon any change in view on the part of Mr Belan. They were fundamental to the message which Mr Belan sought to convey by each publication. Substantially, they formed the basis for the imputations which were conveyed.
211 First, both publications repeatedly stated that the State Secretary, Mr Belan, did not give a direction to Mr Palmer to pay out the officers of the Millers’ Union. At the time of each publication in July 1994, Mr Belan, however, knew that he had given such a direction, and that it was false to suggest otherwise.
212 Secondly, Mr Belan knew that Mr Palmer had not “fought bitterly to keep the money”. An offer of repayment had been made, and repeated the same day (19 October 1992) (supra p 13, para 31) to the Branch Secretaries. It was rebuffed. The offer was a prominent aspect of the judgment of Hill J on costs. That judgment (unlike the judgment on the merits) was not long. Hill J awarded indemnity costs. He did so, in part, precisely because Mr Palmer had made every reasonable effort to settle the matter beforehand. I believe, as a matter of probability, that Mr Belan was aware of the terms of Hill J’s judgment on costs. It had, no doubt, significant financial implications, since the matter had been protracted. Mr Belan gave instructions to appeal. I find, therefore, that Mr Belan had no honest belief in the statement which suggested that Mr Palmer had fought bitterly to keep the retirement money.
213 Thirdly, the repeated use of the phrase “redundancy payment” in Exhibit C, and the coupling of that phrase with references to continuity of employment by Messrs Palmer and Boner was, I believe, deliberately misleading. Whatever Mr Belan’s first impression of the payments under Rule 54 (in September 1992), I do not accept that that impression endured. In October 1992, Mr Belan, and other members of the Committee of Management, were provided with an opinion of Mr Richard Kenzie QC dealing with the payments under Rule 54. The opinion was provided shortly before charges were laid on 28 October 1992. Mr Kenzie appeared for the plaintiffs before Hill J. It can be inferred that the opinion put before the Committee of Management was the same as the submission made by Mr Kenzie to the Industrial Court, which Hill J summarised in these words: (Exhibit D, p 435)
“I agree with the submissions of counsel for the applicants that the rule was a ‘cover the field’ provision intended to confer benefits in the nature of ‘retirement’ benefits based on past service to the Millers and should not be narrowly construed.”
214 In June 1993 Hill J, in the extracts which have been quoted, found that the plaintiffs were entitled to the payments under Rule 54 “as a matter of law, and of merit” (supra p 22). Mr Belan appealed. He then withdrew his appeal (except on costs). He was the only respondent to have contested the matter before Hill J. He was the one who gave instructions to lawyers, and received advice from them. He was, as he acknowledged, a dominant figure in the union. I infer from his involvement in this process that he knew of the findings in respect of Rule 54, and eventually had an understanding of the merits. I infer, therefore, before he gave instructions to withdraw the appeal, that he knew, first, that Mr Palmer had given evidence, which had been accepted by the Judge, that he had directed the discharge of all liabilities before amalgamation; secondly, that the payments under Rule 54 were in the nature of accrued benefits relating to past service; and thirdly, that no provision had been made in the rules of the National Union of Workers to carry forward such benefits.
215 I am prepared to accept that Mr Belan may have harboured a residual feeling of grievance in respect of the Rule 54 payments, arising from the rate of pay adopted when calculating those entitlements. Rule 54 provided that the officers’ entitlement was to be calculated at the “current rate of salary” (supra p 6). Upon absorption into the federation, and before amalgamation, officers of the Millers’ Union received a pay increase, presumably to bring them in line with other unions in the federation. On 25 March 1992, the Millers’ Union passed the following resolution (Ex D, p 423) (supra p 10, para 25):
“That seeing as superannuation had been made available to the officials, and staff from 1 February 1991, all parties agreed to waive their time right under the rules for the period from 1 February 1991 to date.
However, the benefit of accrual ie 3 weeks per year of service should be calculated at the enhanced rate of pay as provided for the Federation. …”
216 Hill J made the following remarks in the course of his judgment: (Ex D, p 442)
“… it is sufficient to say that those salary rates were used following and in accordance with advice provided to the Millers by its solicitors, W G McNally & Co. In my opinion, they were, in law, the correct rates to use for the purposes of the calculation despite that they resulted only from the agreement to associate and amalgamate with the other unions. While in all of the circumstances it may have been more prudent and appropriate to have exercised the same restraint in relation to salary rates as was exercised in relation to the calculation of the years of service this consideration does not in my view affect the legality of what was done.” (emphasis added)
217 If Mr Belan believed that the rate of payment was wrong, and extravagant, he could have said so. No doubt the law would have protected him. However, he chose not to do so. Instead, without any belief in the truth of what he was alleging, he attacked the fact that any payment had been made under Rule 54, and imputed stealing to those who had received such payments. Mr Belan, I believe, knew the payments under Rule 54 were retirement benefits, and were called a “Retirement Allowance” under the rule. He also knew they were benefits for past service, so that continuity of employment was irrelevant. I believe, therefore, he had no honest belief in the misleading description of these benefits in Exhibit C.
218 Thirdly, I accept, as a matter of probability, that Mr Belan knew that it was quite misleading, and indeed false, to suggest that the plaintiffs had used union funds to reimburse taxation deducted from their payments. The issue of taxation was dealt with throughout the hearing before Hill J, and in the course of his Honour’s judgment. I believe it probable that (for the reasons previously stated), Mr Belan either read or was made aware of Hill J’s findings on this, amongst other, issues. The monies had been withheld by the union in the mistaken belief that it was responsible for the payment of taxation. The auditors disabused the union. It was the responsibility of the officers who had been paid the allowances. The union had not made these payments. Accordingly, the taxation withheld was refunded, so that the persons responsible could attend to its payment.
219 Fourthly, I have little doubt that Mr Belan knew that Mr Palmer had been paid approximately $21,000 under Rule 54, and not $46,000. The figure of $21,368.72 was the amount which Mr Belan had directed Mr Palmer to pay. That sum thereafter appeared in two of the charges laid against Mr Palmer by Mr Belan. The correct amount of the payments under Rule 54 (namely $21,368.72) appeared on a number of occasions throughout the judgment of Hill J. The larger figure (which, if it can be justified, presumably included other entitlements, such as annual holidays etc) was simply part of the misinformation which, I believe, was designed to harm Mr Palmer.
220 In each of these four respects, I find that Mr Belan did not have an honest belief in the truth of the statements which appeared in the publications. In publishing the material with these falsehoods, he was actuated by malice. He wished to harm the electoral prospects of Messrs Palmer and Boner, and, thereby, enhance his own, and those of Mr Casey.
221 Mr Casey was differently placed to Mr Belan. He had not lived through the court case before Hill J, nor the appeal. His knowledge, therefore, was incomplete compared to that of Mr Belan. Indeed, his knowledge concerning the retirement benefits and court case substantially derived from Mr Belan (T 151). He had been made a member of the Frank Belan Team. He was the candidate nominated by the team in opposition to Mr Palmer. He was a young man, entering union politics. He had previously been a delegate. Mr Belan, the leader of the team, was a seasoned union official. He plainly dominated Mr Casey. Mr Casey, nonetheless, was the beneficiary of the attack made by Exhibit C upon Mr Palmer.
222 Mr Casey knew that Mr Belan had lost the court case. He knew that the court had determined that the payments to officials from the Millers’ Union were legitimate (T 152). He must surely have appreciated, therefore, that Mr Belan’s version may be suspect. Yet he did not read the judgment of Hill J. It did not occur to him to do so (T 157).
223 Mr Casey, however, did read a pamphlet published by the plaintiffs (and one other officer) in July 1993. It was a document designed to inform the membership of the outcome of the litigation before the Industrial Court (Ex G). That pamphlet should also have alerted Mr Casey to the possibility that Mr Belan’s version was false, and had been found by the court to have been false. The pamphlet included the following:
“The amalgamation process however did not address the question as to what would happen to previously accrued benefits under different rules and acts of the various unions, …..”
224 It continued:
“The State Secretary elect, Frank Belan had made it quite clear the new organisation would not pay the amalgamating unions’ debts, their liabilities would have to be cleared where-ever possible.
Including, but not restricted to, untaken sick leave, (where payout of untaken sick leave was authorised) accrued annual leave (no more than 4 weeks would be acceptable) and retirement or loss of office payments. These debts of the union were to be cleared before the union ceased to exist. The other unions, I presume, were told the same thing, because they did in fact do exactly as we did."
225 The pamphlet referred to advice that had been provided to the union by solicitors and auditors, which the officials had acted upon. It then said this:
“All the orders sought were granted against the Branch Committee of Management, completely vindicating your officials, executive, auditors and legal advisors of any wrong doing. I would add, all the Branch Committee of Management except the State Secretary, Frank Belan, agreed to abide by the court’s decision.”
226 I believe that the appropriate inference, in the circumstances, is that Mr Casey published Exhibit C recklessly. He neither considered, nor really cared, whether it was true or false.
227 It was submitted by the defendants that it was not open to infer an absence of honest belief in the material published, since neither defendant was cross examined upon that basis. The cross examination was confined to the sources of their knowledge, which is a different issue. No doubt it would have been helpful to me had Mr Belan been cross examined as to his beliefs. It may have been fairer to have done so. Nonetheless, I believe that the issue was sufficiently raised in the documentary material which was tendered, without objection, and especially the judgments of the Industrial Court. I believe that the findings that I have made, therefore, are appropriate.
228 There was also evidence of malice, in the sense of spite, upon the basis of which the plaintiffs’ submitted that the defendants (and specifically Mr Belan) were motivated by “some other dominant or improper motive” in publishing the material. The basis of that suggestion can be summarised as follows:
· First, the cordial relationship between the plaintiffs and Mr Belan soured in September 1992 as a result of the dispute concerning the Rule 54 payments.
· Second, Mr Belan then charged the plaintiffs with various offences under the union rules, including misappropriation.
· Third, the validity of those charges was then litigated. Whilst awaiting judgment there was the incident concerning the silver bullet (supra p 19), which I accept was intended to be menacing to Mr Boner.
· Fourth, the judgment of Hill J was given on 28 June 1993. It was the first in a series of reversals for Mr Belan at the hands of the plaintiffs. He was trenchantly criticised in the course of the judgement.
· Fifth, there was the further judgment on 8 October 1993 concerning costs. It was a further reversal, and included yet more criticism. Indemnity costs were ordered against, amongst others, Mr Belan.
· Sixth, there was the confirmation by the Full Court of the costs order by Hill J, singling out Mr Belan.
· Seventh, there was the pamphlet (Ex G) in July 1993 prepared by the plaintiffs (and one other officer). They repeated the criticisms of Hill J, and added their own.
· Eighth, in May 1994 Mr Belan called a meeting to determine the ticket in the forthcoming union election. He called for unqualified support. Messrs Boner and Palmer did not feel themselves able to give that support. They walked out of the meeting. Mr Boner thereafter joined the opposition team (the Rank and File Team). Mr Palmer was also associated with that team, and stood in opposition to Mr Belan’s candidate, Mr Casey.
· Ninth, there was a further episode involving Mr Boner in May 1995. I will deal separately with that issue, and then return to the question of malice.
229 Mr Boner and Mr Palmer both lost the election. They each left the industry. Mr Boner obtained employment as an Enterprise Bargain Facilitator for the New South Wales Furnishing Industry Association. He was appointed for a twelve month period, beginning in January 1995. On 2 May 1995, he attended a meeting at Dunlop Bedding. Mr Casey, and delegates from the National Union of Workers, were present at that meeting. Mr Casey came into the meeting room late. He apologised. He then made the following statement, according to the recollection of Mr Boner: (T 74)
“… and he indicated he had been instructed by the state secretary that the delegates of the NUW and himself were not allowed to sit in on meetings that an ex-official of the NUW was at because he was taking action against the state secretary in court and he wanted to get legal advice, and with that the meeting was sort of stopped.”
230 On 12 May 1995 Mr Boner received a telephone call from the manager of Dunlop Bedding. He recounted that call in these words: (T 75)
“… he informed me verbally over the telephone that a delegate, on site delegate had come to him and indicated that they would not be attending any other meetings where I was in attendance.”
231 On 31 May 1995 there was a further incident. A similar meeting had been arranged at the premises of Nobby’s Kitchens. The National Union of Workers were represented at that site. Mr Boner described what happened in these words: (T 75)
“About 25 minutes, may be longer, Alice Green who was an organiser and I think a spokesperson for the unions on that site - there were three divisions of the CFMEU on that site - indicated that they were supporting the NUW in whatever action they decided to take and that (they) would not attend any meeting where I was in attendance.”
232 Mr Casey acknowledged the accuracy of Mr Boner’s account (T 142). He declined to be in the same room (T 143). He gave his reasons in these words: (T 142)
“My reason was that we had an ongoing defamation case and I was told by the State Secretary and received legal advice to say that it would be detrimental to me to be in the same room as him because either Dennis - Dennis could say that I said things to him that could be used in the defamation case.”
233 Mr Belan, who gave Mr Casey the direction not to participate, described his reasons for that instruction as follows: (T 111)
“Q. And Arthur Casey had said to the meeting that he had been instructed by the State Secretary, yourself, that delegates of the NUW and Arthur Casey were not allowed to sit in on meetings with an ex-official of the NUW because he was taking action against the State Secretary?
A. No, that was not, that is not what I - what I said, I said that we should not participate in discussions until such time as we get legal advice in respect of the matter because of the proceedings in court. Legal advice. I made it very clear that there should be legal advice because there may be problems with it.”
234 His evidence continued:
“Q. Did you ever get legal advice?
A. Yes we did.
Q. When was that?
A. Soon after that we rang up lawyers and they said ‘Maybe it’s better if you didn’t participate’ because in addition to it, in addition to it I didn’t think that it would be a fair and reasonable outcome or discussion if you have people discussing the issue that they are in conflict over, the legal issues.”
235 These conferences occurred after the plaintiffs had issued the Statements of Claim for defamation against the defendants, these being the actions which are presently before the Court. I accept that the presence of Mr Boner on 2 May 1995, in such circumstances, was awkward. He was the plaintiff, and Mr Casey the defendant. It was reasonable that Mr Belan should seek legal advice, and that Mr Casey should refrain from participating in any conference pending that advice. If the episode were to end there, one would think nothing of it. However, it does not end there. There was, thereafter, a refusal to deal with Mr Boner, not only by Mr Casey, but by other delegates. More than that, other unions were apparently persuaded to join in the boycott.
236 No lawyer was called to confirm the advice allegedly given. One could understand advice that Mr Casey should refrain from speaking to Mr Palmer on the subject of the litigation, or indeed, any aspect of the National Union of Workers’ affairs, relating to a time when Mr Boner was an officer of that union. It is difficult to understand how a lawyer could advise the course that was in fact pursued. Such a course was unfair to Mr Boner, jeopardising his role as a Facilitator. It was also capable of being regarded as malice in the defamation proceedings. Indeed, the solicitors for the plaintiffs, some time after (1 August 1995), sent a letter to the defendants calling upon the National Union of Workers to cease such conduct. The same letter stated that the episodes would be relied upon as evidence of malice.
237 Returning to the issue of malice, should it be inferred, upon the basis of the nine matters identified, that Mr Belan acted out of malice in publishing Exhibits B and C? Before answering that question, I should deal with a submission by the defendants, based, in part, upon the remarks of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1, where his Honour said this: (at 22/23)
“There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based. It is this third reason for the application of the first rule in or aspect of Browne v Dunn which is applicable in the present case.” (emphasis in original)
238 The Reply (in respect of each action) alleged that the defendants had an improper motive, being an intention to injure the plaintiffs. Particulars were sought. The particulars referred to the succession of court cases, and the adverse findings made in each (Ex Q). They added:
“b) This substantial loss in Court angered Mr Belan. Mr Belan’s unlawful and wrongful conduct had been exposed and Mr Belan had been embarrassed and damaged by this Court case.
c) Because of the Court case referred to above, Mr Belan was motivated in publishing the matter complained of by way of bitterness, spite and desire to defame and denigrate Mr Palmer, so Mr Belan could get even with Mr Palmer because of the Court case.
d) Mr Belan in publishing the matter complained of sought to misrepresent and deceive the readers of the matter complained of about what happened in the Court case and what was the real position regarding the retirement benefits.”
239 In the course of the hearing, Mr Belan gave the following evidence: (T 101)
“Q. Mr Belan I then turn to the court case. That court case generated a certain amount of ill-feeling in you towards Mr Palmer and Mr Boner, didn’t it?
A. No, it did not.
Q. You recall Mr Boner giving evidence that he had previously been a friend of yours?
A. Yes.
Q. And visited homes and the like?
A. Yes.
Q. That stopped as a result of this dispute, didn’t it?
A. Not by me.
Q. My question was that stopped, didn’t it?
A. Yes, it did.”
240 Mr Belan recognised that the payment of retirement allowances to the officers was a sensitive issue with the electors (T 109). He was repeatedly asked whether, in publishing Exhibit C, he intended to hurt Messrs Boner and Palmer, or their case. He responded to one such question in these words: (T 128)
“Q. And so it would be part of your expectation that it would harm him by him having less prospects to win the election?
A. I didn’t mean to harm anybody, I just wanted to win the election and keep my job and another 35, 40 people. They attacked me, I didn’t attack them. They ran ticket against me, I didn’t run ticket against them. They walked out of caucus, I didn’t walk out of caucus. They tried to unseat me. I was only defending myself. …”
241 The defendants, in these circumstances, made the following submission:
“… what the plaintiffs must prove is that the defendants in publishing the matters complained of were motivated to no significant extent by the interests of the current election, but by a dominant motive to ‘get even with’ the plaintiffs because of the case in the Industrial Court. No such motivation was ever suggested to, or explored with, either defendant. The closest it came with Mr Belan was the relatively remote point of whether the court case, at the time it occurred, generated a certain amount of ill-feeling in him towards the plaintiffs (p 101, lines 11-27). Even a positive answer to this question would not have taken the plaintiffs the necessary distance on this issue, because the real issue is whether, some substantial time later, such ill-feeling not only persisted, but persisted to the extent that it was the dominant motive for the publications. This essential question was not approached.”
242 They added:
“Each defendant was cross examined on whether he realised that the publications would damage the plaintiffs (Mr Belan at p109-112, page 125 line 33 - p126 line 36, p128 line 6 - p130 line 35, Mr Casey p158 lines 1-15) but this is not the essential question. Given the inevitability of wishing ‘damage’ to the opposition in any election campaign, in the sense that the publishers wish themselves to win and the opposition to lose, the essential question is whether the defendants’ dominant motive for wishing to inflict such damage was a desire to ‘get even’ because of the court case, rather than to win the election. This essential question was not approached.”
243 Again, I believe the issue has been sufficiently raised. I accept that the nine matters listed above either gave rise to ill-will on the part of Mr Belan towards the plaintiffs, or illustrated that ill-will. I accept that, in publishing the material which Mr Belan knew to be false, he was attempting to injure the plaintiffs’ reputations.
244 I do not accept that the defendants’ submissions accurately formulate the test in circumstances where the person publishing the material does not honestly believe in the truth of what is being published. I do not believe that Mr Belan was setting out to “get even” with Mr Palmer or Mr Boner for their victories in the Industrial Court. Had they not stood for election, he would have ignored them, although still regarded them as “the enemy”. However, they stood in opposition to his candidates. He, therefore, chose to publish documents which he knew to contain falsehoods, and which he intended would damage their reputations. That was his dominant purpose. He was not, in short, seeking to put before the electors the truth as he saw it. Hence, the communication was not, in my judgment, one in which he was acting bona fide in the protection of his own legitimate interests (and those of Mr Casey) (cf Horrocks v Lowe Lord Diplock p 149).
245 Mr Casey again was in a different position to Mr Belan. There was not evidence of malice, in the sense of personal spite, in respect of Mr Casey. Is Mr Casey infected by Mr Belan’s express malice? It is an issue in respect of which there is room for doubt on the authorities (see Tobin & Sexton paras 18060-18065). I have described the circumstances of publication (supra p 44 ff). Mr Casey was prepared to allow Mr Belan to publish brochures on his behalf, he being the leader of the Frank Belan Team. I believe that Mr Casey is, in these circumstances, visited with Mr Belan’s malice. The principle was identified by Jordan CJ in Dougherty v Chandler (1946) 46 SR (NSW) 370 at 375/6 in these words:
“Where several defendants are charged with joint defamation, and express malice is established against one only, it has been said that the express malice of the one is fatal to the success of a plea of privileged occasion or fair comment by all or any: Smith v Streatfield [1913] 3 KB 764; Webb v Bloch (1928) 41 CLR 331 at 359, 365-6; Musgrave v The Commonwealth (1936-7) 57 CLR 514 at 536; Gatley on Libel and Slander, 3rd ed 630, 661. This may be true enough where the others are, on general principles, vicariously liable for the acts of the one: cf Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR 36 at 39-40; Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR 552 at 559.”
Damages
246 The plaintiffs have established that they were defamed by the defendants. The defences raised by the defendants have either failed, or been defeated by the presence of malice. It is, therefore, necessary to consider the issue of damages.
247 Section 46(2) of the Act provides that the damages recoverable, where a person has been defamed, shall be “in accordance with the common law, but limited to damages for relevant harm.” The words “relevant harm” are defined as “harm suffered by the person defamed” (s 46(1)).
248 The claim in each case is for general damages. No claim is made for special damages. The broad principles were stated by Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1965-66) 117 CLR 118 at 150:
“When it is said that in an action for defamation damages are given for an injury to the plaintiff’s reputation, what is meant? A man’s reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. The variety of the matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations. One of these is the conduct of and the intentions of the defendant, in particular whether he was actuated by express malice.”
249 The textbooks speak of damages for injury to reputation, and damages for “hurt feelings” (although incorporated within the one award).
250 The damages should reflect, first, the position and standing of each plaintiff, secondly, the seriousness of the imputations, and, thirdly, the degree of harm. The extent of publication is relevant. There is a difference between defamatory statements published through the media to the world at large, and publication to a small audience.
251 There is, in this matter, as well, an issue as to whether the conduct of the defendants calls for aggravated (compensatory) damages. The award of damages should take into account aggravating factors, if they are present. Where there is conduct which may be characterised as “improper, unjustifiable or lacking in bona fides” (Triggell v Pheeney (1951) 82 CLR 497 at 514) which causes harm to the plaintiffs, aggravated damages may be appropriate. Harm, in this context, means an increase in the hurt to feelings occasioned by the publications. If, by the presence of matters of aggravation, the hurt to feelings is exacerbated, the award of damages should reflect that fact.
252 Where there is express malice, is that relevant to the assessment of damages? Section 46(3)(b) of the Act is in these terms:
“46(3) In particular, damages for defamation:
(a) …
(b) shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm.”
253 In Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749, the Court (Moffatt P, Hope and Reynolds JJA) said this: (at p 805)
“In the report of the New South Wales Law Reform Commission on Defamation (LRC No 11, p 137, par 226), it was stated: ‘But the malice or other state of mind of the publisher has been treated as affording grounds for enhancing or aggravating damages even where it has not been shown to have increased the harm suffered by the plaintiff. An enhancement or aggravation of damages in these circumstances comes close to the allowance or exemplary damages. We think that it ought not to be allowed. Hence we supplement s 46(2) by the explicit statement in s 46(3)(b).’
We are of the opinion that the legislation achieves this effect. It follows that it is for a plaintiff who seeks to recover compensatory damages, and to include a component for particular personal hurt and affront arising from some state of mind on the part of the publisher, to point to evidence tending to show that it caused some harm suffered by the person defamed over and above what might ordinarily be expected to follow.”
The Effect Upon Mr Palmer
254 Mr Palmer arrived in Australia from the United Kingdom in 1968. He entered the milling industry. He worked with a number of employers. He became a foreman miller, which is the highest classification under the Award (T 24). Mr Palmer was active in the Millers’ Union, first as a delegate, and later as an elected member of the Committee of Management. He became President of the State Branch of the Union. In 1982 he was made an Organiser. He later became Branch Secretary, first in an acting capacity, and then as the elected holder of that office (in 1984).
255 He remained Branch Secretary until the amalgamation in 1992, when the Millers’ Union was absorbed into the National Union of Workers.
256 The affiliation of the Millers’ Union with the Labor Council meant that Mr Palmer, as Branch Secretary, attended meetings of that Council as a delegate (T 24). The State Branch of the Millers’ Union was part of a larger federal body. Mr Palmer held various offices in the federal organisation (including Trustee and Vice President) (T 24).
257 Mr Palmer, through his office with the Millers’ Union, became involved in various public bodies. He was appointed to the Board of Studies of TAFE, concerned with the cereal milling course. He held a position with the Dairy Industry Training Council, concerned with food industry training courses.
258 Mr Palmer heard of the publications (Exs B and C) before he saw them. He received a number of telephone calls. Some were from his supporters, conveying information as to their contents. Others were abusive. Mr Palmer gave the following evidence: (T 29)
“Q. Can you remember the words to the effect that were used in those conversations?
A. As I say, there were a number of them, some rang me, and I would assume my supporters, saying, ‘Are you aware that … is out in the workplace? You better do something about it because it’s very damaging, it’s telling a load of lies’ etcetera, etcetera. I also received phone calls saying ‘So it’s true, you had your hand in the till. You’re a thief, you stole money from the union.’ And very upsetting.
Q. How did you feel when you received the matter complained of, those publications, through the mail?
A. Well, astounded in a way.
Q. Why were you astounded?
A. Well, I couldn’t have believed that the thing would have sunk to that level. Anyway, it did. I mean, to me that is untrue, the people who put that out, particularly the secretary, was aware of what happened in the Industrial Commission, he had the decision and yet here I am being called a thief again as I see it.
Q. After you received it did the telephone calls continue?
A. Yes, they did.”
259 Mr Palmer took steps to change his telephone number.
260 The publication, of course, came in the midst of an election. Mr Palmer, as part of his campaign, visited various union sites. He received a very hostile reception (T 30):
“A. I had great difficulty in some areas of even holding a meeting, people just walked away, ‘We know all about you’ and that leaflet was thrown at me at one site, but anyway.
Q. You said, ‘but anyway’ and raised your hand to me to say stop, you have to tell us?
A. All right, I had that document thrown at me because it said it explained everything about what I had been doing with the union’s money. They assumed that I had taken $46,000.
Q. Where was that?
A. That was at Enfield as I recall.
Q. You said they assumed that you had taken $46,000, what were the words that were being said to you?
A. ‘You had $46,000 of the union’s money and you come here and want us to vote for you. You’ve got to be joking.’ Things like that.
Q. Do you recall at the moment any other types of comments that were said to you?
A. We had our hand in the till. ‘We always knew that all union officials are dishonest, that proves it.’”
261 Mr Palmer was forbidden access to a number of sites. Where he was given entry, there were occasions where no-one would talk to him (T 30). Before the publication of Exhibits B and C he had been able to address meetings at these sites.
262 Mr Palmer was defeated in the election. He attempted to get work in the industry. He was obviously experienced, and well connected. Yet, he was unsuccessful. He described what happened in these words: (T 31)
“Q. What happened then?
A. As I previously stated, I had held a position in the federal milling industry of a foreman miller equivalent. I had approached a few of the employers that I knew and they just said, ‘Sorry’.”
263 Mr Palmer persevered for three or four months, trying to get work. He then realised that he was not going to get work in the industry (T 31). He therefore left the milling industry, choosing instead to obtain qualifications as a taxi driver. He has since earned his living as a casual taxi driver.
264 Mr Palmer also gave the following evidence: (T 31)
“Q. How have you felt about knowing that that material in the exhibits B and C have been out in the workforce and the membership of the Food 1 Division since they were published?
A. I was most upset about it because there are people out there still today who would think that I’m a thief.”
265 To vindicate his reputation he has been obliged to take the present action. There was some publicity associated with the hearing of this claim, and to a wider audience (Ex M). This publicity, naturally, added to his distress.
266 I accept the account Mr Palmer has given concerning the effect of the publications upon him.
267 In 1994, Mr Palmer was a person of some stature within the milling industry, and the union movement. The accusations were serious. As Union Secretary of the Millers’ Union, he was ultimately responsible for husbanding the finances of that Union. The imputation was that he misappropriated, or stole, from the Union, and, thereafter, took action to cover up that theft. The cover up came about in a number of ways. He deliberately and falsely implicated an innocent person, Mr Belan, by suggesting that he was responsible when, in truth, it was Mr Palmer who was responsible. Further, he commenced a court action to prevent the theft being detected. The amount involved was substantial, namely, $46,525.51.
268 There is no doubt that these accusations were hurtful to Mr Palmer, and damaging to his reputation. He was shunned in the workplace, and exposed to harassment. The damage to his reputation came at a time when his reputation was of the utmost importance, because he was seeking re-election. I do not doubt that his chances of winning the election were diminished by reason of the publications.
269 Mr Palmer ultimately lost the election. I cannot infer, however, that he lost office because of the publication. He may have done so. However, the plaintiff bears the onus of establishing issues of causation as a matter of probability. I know nothing about the election beyond the fact that Mr Palmer lost and Mr Casey won. I cannot, in these circumstances, infer that the loss of office was part of the harm which Mr Palmer suffered as a result of these publications. There is, as mentioned, no claim for special damages.
270 Nor, it seems to me, can I infer that his inability to obtain employment in the industry after the election was a consequence of the publication. No employer was called. No-one came forward to say that, having seen the publication, they chose not to hire Mr Palmer because they suspected he may be a thief. Even though Mr Palmer was well credentialled, and experienced, his inability to obtain work may have had many causes other than the publications. It may have been a reflection of his age. It may have reflected an over supply of persons with his qualifications. It may simply have reflected the employers’ appreciation of industrial politics, and that it would be unwise to hire someone on the losing side.
271 There is evidence, nonetheless, from which it can be inferred that Mr Palmer was especially stung because of the malice which lay behind the publication. The imputations were false, and, in the perception of Mr Palmer, known by their publisher, Mr Belan, to be false. Mr Palmer, in the passage already quoted (supra p 95), adverts to this issue when he gave the following answer:
“Well, I couldn’t have believed that the thing would have sunk to that level. Anyway, it did. I mean, to me that is untrue, the people who put that out, particularly the secretary, was aware of what happened in the Industrial Commission, he had the decision and yet here I am being called a thief again as I see it.”
272 Mr Palmer had taken the issue to the Industrial Court to sort out his rights. His position had been vindicated. He knew, as the Judge had found, that Mr Belan had directed him to discharge all liabilities before amalgamation. I believe, in these circumstances, it is appropriate to include aggravated (compensatory) damages.
273 The publication was to a limited audience, namely, approximately 5,000 members of the Food 1 Division of the Union. However, from the viewpoint of Mr Palmer, these were the people who mattered. He had entered the milling industry in 1968. He had made his life in that industry, and the union movement.
274 The two publications were, of course, in the same envelope. If they are to be regarded as two publications (supra p 38, para 92), the one provided the context for the other. I believe that an overall sum of $90,000 damages is a proper and just sum for their combined effect. There is some artificiality in dividing that sum between Exhibits B and C, given that they were in the same envelope. However, the leaflet (Ex C) was, I believe, the more damaging. I would divide that sum into $65,000 for Exhibit C, and $25,000 for Exhibit B.
The Effect Upon Mr Boner
275 Mr Boner entered the work force in the late 1960s. He worked on the Strathgarden Dam in Tasmania. In 1972 he began working in the stockfeed industry, as a shift miller.
276 In 1986 Mr Boner became an Organiser for the Millers’ Union. He remained an Organiser for approximately five years until elected Assistant Secretary. He held that position until February 1992 when, under the Federation Agreement, he took up the position of Organiser with the National Union of Workers.
277 By virtue of his various offices with the Millers’ Union, Mr Boner performed a number of other functions. He was, on three occasions, a delegate to the ACTU National Conference. He served on the Food Industry Training Council.
278 Mr Boner described his reaction upon seeing Exhibit C (and Ex B) in these words: (T 71)
“Q. And how did you feel when you received those?
A. Total disbelief, angry, having to see that we had been accused of being crooks, myself and Mr Palmer. Having to again relive the court case that we’d taken on to stop. Mr Belan taking proceedings against us and as a result of that …”
279 He added: (T 72)
“A. As a Union organiser from time to time you visit sites and talk to people about issues that were going on in the Union and if you like at the time campaigning, talking, about the issues that were every day work place, and I was an organiser for quite some time, and on site basis, and people would raise issues with you from time to time. And some of the comments that came back at some of those meetings were ‘We always believed Union officials can’t be trusted. This sort of thing proves it. Why don’t you resign’, and words to that effect.
Q. How did you feel when people spoke to you about the pamphlet and the letter?
A. I worked hard. I felt very disappointed. I felt we had gone through this case, we were vindicated in that case, and here this was coming up again in the form that it was, wasn’t even raised in the case in respect of the fact we were crooks, and I just felt devastated by it all.
Q. When you visited these establishments did you have a conversation with a Mr Clyde Stewart?
A. Yes. I had taken some rostered days off. We had rostered days off, and I visited the Riverina because at that time it wasn’t the area I had been allocated as an official by the state secretary, Mr Belan. And in the Riverina at Deniliquin Clyde was actually on the site - Clyde Stewart was on the site when I visited the site, and he sat in on a small gathering of people there and he stood there and said ‘why don’t you resign, you can’t be trusted.”
280 Mr Boner had never previously experienced difficulty with that site. He gave another illustration of the reaction of workers after the publication: (T 72)
“Q. Did you have a particular incident at Albury?
A. Yes. A delegate there of long standing who I had a lot of respect for, a fellow Felix Janowski. Felix and I had a working relationship for about five, maybe six years, and I always felt welcome when I visited that site, and during the particular visit on my rostered days off he said ‘I don’t want you here. I don’t want you to speak to the people any more.’”
281 Mr Boner was also told not to visit the Kellogg’s site again.
282 Mr Boner, like Mr Palmer, was defeated in the election. He attempted to obtain work in the industry. He responded to advertisements placed by employers with whom he had a good working relationship before the publications. He was unsuccessful. He gave the following evidence: (T 73)
“A I applied for a couple of jobs within the industry that I came out of that had been advertised. Some of the employers who were advertising the jobs I knew because I had formed a working relationship with them over that time, and words given to me, probably not exactly in the way they said them, but ‘we would have great difficulty employing you because the NUW is still on these sites. You would have to negotiate directly with the NUW on any sort of position that we had.’”
283 Mr Boner, therefore, left the industry. He has not maintained an association with previous colleagues (T 75). He explained why in the following evidence: (T 75/76)
“A. I felt that we no longer had the same relationship that we had prior to it. I felt that there were some doubts in their mind, whether or not we were to be trusted or not and whether the allegations made against us were true, and I felt ashamed, I suppose, with all of this, even though it was all vindicated it kept on coming back and coming back.”
284 Ultimately, Mr Boner obtained a position in late 1994 as Enterprise Bargain Facilitator with the New South Wales Furnishing Industry Association. Reference has been made to his work with that association already (supra p 83). It was whilst working in that capacity that the incident occurred at Dunlop Bedding in May 1995, which has already been described. Mr Boner gave the following evidence concerning his feelings as Mr Casey made his announcement to the meeting that he would not remain in the same room: (T 74)
“Q. How did you feel by his conduct?
A. I thought, here we go again. I only just gained employment in this job. It was for a period of 12 months. I was hoping if I did the job well I would continue on after the 12 months, and I felt this job was being threatened by his actions.”
285 Mr Boner worked for twelve months as a Facilitator. His contract was not extended. For a time thereafter he performed casual work. In September 1996 he obtained a position as Industrial Relations Manager with CSR Limited. He still holds that position.
286 I accept the account of Mr Boner concerning the effect of the publications upon him.
287 Mr Boner, like Mr Palmer, had made his life in the milling industry, and the union movement. He had risen to the position of Assistant Secretary of the Millers’ Union, and later the position of Organiser with the National Union of Workers. The accusations against Mr Boner were grave. Indeed, to the working men and women who received Exhibit C, the accusation of dishonesty in the handling of union funds (representing their subscriptions) was extremely serious, as were the allegations of cover up.
288 It is clear that Mr Boner was hurt by the imputations arising from the article, and that his reputation suffered. When he entered the workplace during the election campaign he was ridiculed and shunned. As with Mr Palmer, the damage to his reputation came at a time when his reputation was of the utmost importance in his quest for re-election. Again, I do not doubt that Mr Boner’s chances of re-election were diminished by reason of the publication.
289 Mr Boner lost the election. I cannot, in assessing damages, attribute that loss to the publication for the same reasons as I gave in respect of Mr Palmer.
290 Nor, it seems to me, am I able to infer that Mr Boner’s inability to obtain employment in the industry, after the election, can be attributed to the publication of Exhibit C. He was told by employers (T 73) that “we would have a great deal of difficulty employing you because the NUW is still on these sites”. Such a statement is consistent with his being, in the employers’ perception, part of the losing faction. He was not passed over because of his damaged reputation. There is, in the case of Mr Boner, as with Mr Palmer, no claim for special damages. I, therefore, put that aspect to one side.
291 The extent of the publication was as already described. It was sent to people with whom Mr Boner had spent his working life for the past twenty years. He felt, thereafter, that they harboured mistrust. He, therefore, did not maintain associations that he had built up during those years.
292 Mr Boner, like Mr Palmer, was especially stung because the publication contained a number of falsehoods. The issues had been already litigated and resolved in their favour. In his perception, therefore, they were known to be false by the publisher, Mr Belan. This is a matter which justifies, in my view, aggravated (compensatory) damages.
293 There is a further aspect. It operates as an aggravating factor in the case of Mr Boner, although not present in respect of Mr Palmer. The actions of Messrs Belan and Casey in refusing to deal with Mr Boner in his capacity as an Enterprise Bargain Facilitator for the New South Wales Furnishing Industry Association, were (apart from the initial confrontation at Dunlop Bedding on 2 May 1995) unjustifiable and lacking in bona fides. Mr Boner, attempting to make a new start, immediately thought (in his words) (T 74), “Here we go again”. With some justification, he believed his position as a Facilitator was threatened.
294 I believe, in the circumstances, that the appropriate award in the case of Mr Boner is $75,000.
Orders
295 I therefore make the following orders:
1. In matter no. 20115/95 between Denis Boner and Frank Belan and Arthur Benjamin Casey, a verdict for the plaintiff against both defendants, jointly and severally, in the sum of $75,000 plus costs.
2. In matter no. 20524/94 between Edward Palmer and Arthur Benjamin Casey and Frank Belan, a verdict for the plaintiff against both defendants, jointly and severally, in the sum of $65,000 plus costs.
3. In matter no. 20523/94 between Edward Palmer and Frank Belan, a verdict for the plaintiff against the defendant in the sum of $25,000 plus costs.**********
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