Penfold v Higgins
[2002] NTSC 65
•11 December 2002
Penfold & Anor v Higgins & Anor [2002] NTSC 65
PARTIES:ROBERT PENFOLD and HUNT AUSTRALIA PTY LTD
v
BERNARD HIGGINS and NORTHERN LAND COUNCIL
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:279 of 1997 (9726456)
DELIVERED: 11 December 2002
HEARING DATES: 3 to 7; 11 to 14; 17 to 20; 24 to 28
June 2002
1 to 3 July 2002
26 to 30 August 2002
JUDGMENT OF: MILDREN J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiffs:P Heywood-Smith
Defendants:M Lynch
Solicitors:
Plaintiffs:Ward Keller
Defendants:R Levy
Judgment category classification: B
Judgment ID Number:
Number of pages: 106
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINPenfold & Anor v Higgins & Anor [2002] NTSC 65
No. 279 of 1997 (9726456)
BETWEEN:
ROBERT PENFOLD and HUNT AUSTRALIA PTY LTD
Plaintiffs
AND:
BERNARD HIGGINS and NORTHERN LAND COUNCIL
Defendants
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 11 December 2002)
Introduction
This is an action for damages for defamation. The plaintiff Robert Penfold (Mr Penfold), is and was at all times a director of the plaintiff Hunt Australia Pty Ltd (Hunt Australia) which, since 1981, has carried on business in the Northern Territory of Australia and elsewhere in Australia as a safari hunting operator. The only other director of Hunt Australia is Mrs Kathleen Elizabeth (Kay) Penfold, Mr Penfold's wife.
The defendant Bernard Higgins (Mr Higgins), was at all material times an employee of the defendant Northern Land Council (NLC). The NLC is a body corporate established pursuant to s 21 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Part of the NLC's functions is to assist and negotiate on behalf of traditional owners of Aboriginal land in its area with third parties who may wish to obtain rights, such as the right to enter and to hunt wild animals on such land. Mr Higgins' duties included, inter alia, the carrying out of these functions on behalf of the NLC. Mr Higgins was employed as a project officer in the Parks and Tourism section of
the NLC.
Hunt Australia's clients came entirely from overseas, mostly from Europe and the United States. Many of the hunters came to shoot trophy-sized beasts, especially boar, deer, banteng cattle, buffalo and goats. Some others were not so particular. Those animals were available in the Top End of the Northern Territory in broadly three locations: (1) at Gurig National Park, Cobourg Peninsula, administered by the Northern Territory Parks and Wildlife Commission on behalf of the Cobourg Peninsula Sanctuary Board where deer, banteng cattle and buffalo were available; (2) Aboriginal land, more particularly in or near Arnhem Land where goats and buffalo were available and (3) on privately owned pastoral leases where boar and some buffalo were available.
Gurig National Park was the only location where hunting of banteng and a rare breed of deer was available.
The plaintiffs also offered shooters 'culling' of donkeys and other feral animals on some pastoral leases from time to time.
During the period from 1981 to 1994, Hunt Australia's business grew from small beginnings to a total of 75 clients who attended hunts in the Northern Territory. (This figure includes both hunters and non-hunters.) Arrangements to enter the land and conduct hunts in the areas indicated, varied considerably during this period. In some cases, Hunt Australia's clients utilised another safari operator who held a licence to operate in the particular area in question. In some cases, Hunt Australia held a licence to hunt on Aboriginal land with the NLC. In other cases, Hunt Australia obtained permission from a pastoral lease-holder.
The defamatory publication.
On 2 December 1994, at Darwin, Mr Higgins published to Mr Darryl Pearce, the then Director of the NLC, a document headed:
Briefing Notes for Director NLC
NT Tourist Commission Board Meeting2 December 1994
(hereinafter called "the briefing notes"). Mr Pearce was also then a Commissioner for the Northern Territory Tourist Commission.
The text of the briefing notes is as follows:
Issue
Bob Penfold of Hunt Australia Pty Ltd was unsuccessful in securing a bantang concession in Gurig National Park. The NLC Full Council has an Agenda Item dealing with Penfold at next weeks Full Council meeting. Penfold owes the Arnhem Land Aboriginal Land Trust and the NLC money. The most recent buffalo that Penfold shot was in the stock yards at Bulman. He did not obtain the correct permission to shoot this buffalo. If Full Council supports the recommendation put forward Penfold will not obtain any Licence on Land Trust land until all outstanding money is paid and he agrees to operate by strict conditions.
In the meantime Penfold has been rubbishing other operators in the NT who do have Licences with either the Gurig Board or the Arnhem Land Aboriginal Land Trust both here and while he is overseas seeking business. This will be to the detriment of the traditional Aboriginal owners, the licensed safari operators and the reputation of the NT as a hunting destination.
Recommendation
That the NT Tourist Commission Board supports the licensed safari operators and the traditional Aboriginal owners in their endeavour to maintain and develop a high class safari product. Penfold spreading disinformation for his own personal gain or "sourness" is of detriment to this aim.
That the NT Tourist Commission prepares a letter to be given to the licensed safari operators for use as publicity and showing the support of the Commission in encouraging the safari industry in the NT. The letter could be displayed at hunting conventions by the operators. The letter would assist in countering any disinformation that Penfold may seek to relay.
The letter could serve as confirmation of a similar letter to be prepared by the Northern Land Council.
Matters for Consideration
Is is possible or even advisable to refer by name to either Hunt Australia Pty Ltd or Bob Penfold in the letter (sic).
Should a copy of the letter be sent to the Safari Club International in America?
The Minister for Tourism has already been approached by Davidson's Arnhemland Safaris concerning Penfold's activities. The NLC has informed the licensed safari operators of its desire to seek support from the NT Tourist Commission Board on this matter. The approach by the NLC has the support of the operators.
Additional Explanatory Notes
The hunting safari industry in the NT survives because of its access to Land Trust land. Included here is Gurig National Park.
The two big game animals in the NT are buffalo and bantang. The only location for bantang is within Gurig National Park. The largest remaining "game" populations of buffalo are in Arnhem Land. Without hunters visiting the NT to shoot bantang and buffalo there would not be a hunting safari industry in the NT.
Other animals shot are goat, deer, dingo and pig. None of these though are unique to the NT and can be shot elsewhere in Australia and the world. The buffalo and bantang in the NT are unique and prized trophy animals.
Buffalo are also hunted on Mainoru, Mountain Valley and Urapunga Stations but are in limited and decreasing numbers. It has also been stated by safari operators that some of the buffalo are in fact shot in Arnhem Land but as the access is through the stations it is the stations who receive the royalty. The buffalo on Melville Island are a smaller animal and do not produce trophies of the standard from Arnhem Land.
Hunting Safari Operators operating or intending to operate on Land Trust land
Business Principal Individual
Wimray Safaris Noel Bleakley
Davidson's Arnhemland Safaris Max Davidson
Territory Buffalo Safaris Brenton Hurt
Access Northern Australia Francois Giner
Roper River Safaris Grant Angel
Arafura Safaris Simon Kyle-Little
Illiwan Safaris Matthew KelmanMuckadilla Hunting Safaris Glen Giffin
Comments on Penfold
- Penfold has no respect for others with his only interest his own – he actively deals in disinformation – the last buffalo he shot in the NT was in the Gulin Gulin Buffalo Company yards at Bulman – this was shot without the proper authority or the payment of correct money.
- it is probable that if traditional owners monitored Land Trust boundaries in the vicinity of stations currently operating buffalo safaris fewer buffalo would be available to the safari market from those stations. One operator previously associated with those stations is now seeking access to the Arnhem Land Aboriginal Land Trust to take between 20 – 30 buffalo next year.
- there are traditional owners seeking operators of a reputable standard – people like Penfold and his associates are not reputable. Penfold though does travel the hunting conventions and does bring clients to Australia.
- a number of the operators listed above also travel the hunting convention circuit ie January through to March – it is at these conventions that a large number of hunts are sold – the other way hunts are sold is through agents or outfitters overseas who then sell the client a hunt offered by an operator in the NT. The NLC has been informed by one operator that an outfitter he deals with has been approached by Penfold with Penfold seeking to discredit all operators in the NT. Another operator down south who deals with New Caledonia and New Zealand has said that Penfold owes considerable money for hunts conducted in New Zealand and that Penfold has also told lies about his operation. At least five of the operators mentioned above would have a similar story of disinformation being told about them by Penfold.
- Penfold recently applied for one of the hunting concession Licences at Gurig – he was unsuccessful. One of the Aboriginal Board members had previously had Penfold conduct buffalo hunts on his country but kicked him off when he was found to be illegally netting barramundi – the view of this Board member was that for as long as he was a Board member Penfold would never have access to Gurig National Park. Penfold has also publicly criticised the CCNT management of bantang at Gurig and considered CCNT incompetent.
Consequence of Penfold's Activities
It is important to stress that the NT hunting safari industry does not depend on Penfold. Penfold's business though does depend on access to the animals on Land Trust land.
Penfold is giving the NT Hunting Industry a bad name. It seems that if he can not get what he wants he will seek to discredit other operators. His actions are detrimental to the industry and its future expansion.
Additional Matters which could be included in the NT Tourist Commission Letter
The NT Tourist Commission prepare a letter which can be provided to the safari operators for their use at conventions overseas stating that the Commission supports the NLC in its endeavours to encourage reputable operators. Safari operators on Land Trust land should be in possession of a Licence issued through the NLC. The Commission understands that Penfold does not have such a Licence for buffalo. The Commission is also aware of present difficulties concerning Penfold and that the Commission understands that the NLC is pursuing Penfold for breach of contract.
Request for further support
The NT Tourist Commission to encourage a study of the NT Safari Industry ie. what is its value; how many animals are turned off each year; what are these animals; how can the NT Tourist Commission assist this industry; what is the potential of the industry.
This action is brought and initially defended
The plaintiffs did not become aware of the publication of the briefing notes until some time in late 1997 during the course of defamation proceedings brought by Hunt Australia in the Federal Court of Australia against Davidson's Arnhemland Safaris Pty Ltd, Maxwell John Davidson and Philippa Jane Davidson, which had been commenced in early 1995 (hereinafter called "the Federal Court action"). The present action in this Court was commenced on 28 November 1997 and seeks damages for libel arising out of the publication of the briefing notes. The plaintiffs rely on the natural and ordinary meaning of certain of the expressions in the briefing notes as being defamatory of them as well as, in respect of some particular matters complained of, defamatory innuendoes arising out of certain facts and matters pleaded, to which I will come. In addition to general damages, the plaintiffs seek aggravated damages and special damages for losses to Hunt Australia's business.
Initially, the defendants sought to defend the action on a number of grounds, including qualified privilege, fair comment and by reliance upon a ground of privilege allegedly available by virtue of s 6 of the Defamation Act (NT). The defence of truth was never pleaded.
The apology – Liability is admitted
On the first day of the trial, Monday 3 June 2002, counsel for the defendants, Mr Lynch, admitted liability and read the following apology to the Court:
MR LYNCH: This is an apology to Robert Penfold and Hunt Australia Pty Ltd. On 2 December 1994, the first defendant, Mr Bernard Higgins, an employee of the Northern Land Council, published a briefing note to a member or members of the Northern Territory Tourist Commission. The briefing notes was indefensibly defamatory of and concerning Mr Robert Penfold and his company, Hunt Australia Pty Ltd, the plaintiffs in these proceedings, in that it contained a series of unjustified assertions about them, which should never have been made.
The Northern Land Council and Mr Higgins both accept responsibility for the publication of the briefing note, and hereby retract the defamatory statements made in it, about both Mr Robert Penfold and his company, Hunt Australia Pty Ltd, which were made without justification.
Both Mr Higgins and the Northern Land Council hereby apologise unreservedly to Mr Robert Penfold and his family and to Hunt Australia Pty Ltd, for the hurt and damage suffered by them as the result of the publication.
However, Mr Lynch made it clear that the extent of the publication was in issue, the only admission being that there was a publication to Mr Pearce. On the following morning, Tuesday 4 June 2002, judgment was entered for the plaintiffs against the defendants for damages to be assessed and the matter proceeded as an assessment of damages only. There were, as well, a number of other issues going to damages which were hotly contested, to which I will come in due course.
The meanings and innuendoes alleged by the plaintiffs
The plaintiffs have pleaded a number of natural and ordinary meanings flowing from the briefing notes; alternatively, by reason of certain facts and matters pleaded and relied upon, the plaintiffs assert that the briefing notes meant, and were understood to have, certain meanings set out in paragraph 9 of the Second Further Amended Statement of Claim. The defendants concede some of these meanings but not others; alternatively, they deny that some of these meanings are defamatory.
It is conceded that the following meanings are conveyed by the briefing notes and are defamatory of the plaintiffs:
1.that the plaintiffs conduct their business, both in the Northern Territory and elsewhere, without regard to contractual obligations and obligations to meet expenditure incurred and, in the Northern Territory, without regard to proper procedures as to the destruction of game and without regard to the obligations to operate only pursuant to licence or licences, or otherwise with the appropriate authority or permission of governmental or statutory authority;
2.that the plaintiffs for their own gain, promulgate disinformation to the detriment of the Aboriginal land owners, licensed safari operators and the Northern Territory, so as to give the Northern Territory hunting industry a bad name and prejudice its future;
3.that the plaintiffs are disreputable safari operators;
4.that the plaintiffs operate without a licence and kill game without a licence.
The defendants submit that notwithstanding their admission of liability, they are still able to contest which meanings are conveyed by the publication and whether those meanings are defamatory. I accept that submission. The admission of liability means that the defendants accept that the publication conveyed of and concerning the plaintiffs, at least one meaning pleaded in the Second Further Amended Statement of Claim which is defamatory of the plaintiffs. That said, and the meaning or meanings so conveyed having been identified, it is for the Court to decide if any other meanings are conveyed as alleged and if those meanings are defamatory.
The test to be applied is an objective one: what meaning would be conveyed to the mind of an ordinary, reasonable person? Gatley on Libel & Slander,
9th Edn, at para 3.14, says:
Words are normally construed in their natural and ordinary meaning, i.e. the meaning in which reasonable people of ordinary intelligence, with the ordinary person's general knowledge and experience of worldly affairs, would be likely to understand them. The question is what would the words convey to the mind of the ordinary, reasonable, fair-minded reader? The natural and ordinary meaning may also include implications and inferences
The "ordinary reader" is described by Gatley, op.cit., at para 3.23:
He is a sort of half way house between the unusually suspicious and the unusually naive. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care. The court must be alive to the broad impression created by the publication and a first impression may be lasting. The ordinary reader does not construe words as would a lawyer, for he is not inhibited by the rules of construction or of evidence and his capacity for implication or drawing inferences is greater than the lawyer's.
As to what is defamatory, and the difficulty of producing a single comprehensive test, Gatley, op.cit., says, at para 2.1:
The difficulty of producing a comprehensive definition of the meaning of "defamatory" has often been remarked, and the following have been offered at various times, namely that a defamatory imputation is one to the plaintiff's discredit; or which tends to lower him in the estimation of others; or causes him to be shunned, or avoided; or exposes him to hatred, contempt or ridicule. All of these present certain difficulties, which are considered below, and in one respect or another they are each perhaps too narrow to act as an exclusive test. For example, allegations that the plaintiff has been raped, or has an infectious disease or is insane or insolvent have all been held to be capable of being defamatory, but none of these would expose the plaintiff to hatred, contempt or ridicule, nor can they all be discreditable nor tend to lower him in people's estimation. Indeed, in the case of insolvency it is only possible to bring the case within any of the tests by giving a broad meaning to "shun or avoid" so that it includes others being unwilling to do business with him. Perhaps, therefore, there is need for a further category, of words defamatory as likely to damage the plaintiff in his trade, business or profession." Possibly the closest to a comprehensive definition is that adopted by the American Law Institute in the Second Restatement of Torts: "a statement is defamatory if it tends to harm the reputation of another so as to lower him or her in the estimation of the community or to deter third parties from associating or dealing with him or her." Although this has never been adopted by an English court and one must bear in mind that in many respects there are major differences between American and English defamation law, nevertheless it would seem to provide a workable test consistent with the case law. In any event, the definitions which have been stated in the English cases should be regarded as cumulative, so that words which fall within any of them are actionable. They all have the common feature that they look to the likely effect of the words upon the view taken of the plaintiff by others. For this purpose some standard of opinion has to be set and it is that of "right-thinking persons generally". Words are not defamatory merely because their publication has a damaging effect on the plaintiff's reputation: there has to be a statement of fact or expression of opinion or imputation conveyed by them which will have this effect. However, to be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency, so there is a cause of action even if the words were not believed by the audience.
In the present case, the briefing notes relate to and refer to the plaintiffs in their profession as safari hunting operators and it is important to bear this in mind. Thus, the words must convey a meaning which involve "a personal reflection upon personal character, or official, professional or trading reputation of the plaintiff": see Gatley, supra, at para 2.26.
As to innuendo, the plaintiff relied upon certain matters pleaded in paras
9.10 – 9.13 as giving rise to true innuendoes. These are said to be extra facts which the hearer needs to have special knowledge of. But, if the facts are matters within the general knowledge of the community, they cannot constitute extrinsic facts: see M Gillooly, "The Law of Defamation in Australia and New Zealand", p42; Gatley, op.cit., para 3.17. Two of the special facts pleaded are, in my opinion, matters of general knowledge. The first is that the word "rubbishing" is a slang expression to denote denigration of a person without them being present to defend him or herself. Clearly, the pleader refers to a meaning of the word in common usage. That cannot be an extrinsic fact. The second of the special facts pleads that the netting of barramundi is a practice which is despised within the hunting and fishing community of the Northern Territory and to accuse a professional hunter and fisher of such conduct is to disparage him in his trade or profession. I consider this also is a matter of common knowledge. The other special facts pleaded in paras 9.10 and 9.12 were proved in evidence. The first is that
Mr Penfold was an experienced safari guide who had operated in the Northern Territory since the early 1980s and consequently would be expected to know correct legal and ethical procedures for shooting animals. The second was that licensed safari operators in the Territory were, or may have been, the plaintiffs' competitors.
The first of the disputed meanings is contained in para 9.2 of the Second Amended Statement of Claim, ie, "that the plaintiffs rubbish or otherwise discredit, both in the Northern Territory and overseas, licensed operators who might be competitors of the plaintiffs". The defendants submit that the meaning conveyed is not defamatory because unless the rubbishing or discrediting is done without justification, no fair minded person would think the less of the plaintiffs for engaging in such conduct. Clearly the briefing notes conveyed the meaning contended for; the only question is whether it is defamatory of the plaintiffs. I consider that it does have a tendency to harm the plaintiffs' reputations. I consider that the likely affect on others would be to lower the plaintiffs in their estimation. It is one thing to imply that the plaintiffs are critical of their competitors, but to "rubbish" them, or "discredit" them, implies that the criticism is unjustified.
The next disputed meaning is contained in para 9.4 of the Second Amended Statement of Claim, ie. "that the plaintiffs so conduct their business as to make it necessary or advisable for the Northern Territory Tourist Commission to take action against them in order to maintain and develop a high class safari product". The defendants submitted that this meaning was not conveyed by the publication, nor is it defamatory. It was submitted that all that is suggested by the publication is that the Commission write a letter to be given to the licensed operators. I consider that the meaning contended for is conveyed by the publication and is defamatory of the plaintiffs.
The next disputed meaning is contained in para 9.6 of the Second Amended Statement of Claim, ie. "that the plaintiffs are a danger to the Northern Territory and to Aboriginal people or the traditional owners". The defendants submit that this meaning is not conveyed by the publication. The plaintiffs point to lines 96-98 of the publication. I agree with the defendants. This is a strained meaning which the ordinary, reasonable person would not find conveyed in its ordinary meaning.
The next disputed meaning is contained in para 9.8 of the Second Amended Statement of Claim, ie, "that the plaintiffs illegally net barramundi and by reason thereof are a disgrace to their industry and profession". The defendants accept that the publication conveyed the meaning that the plaintiffs illegally net barramundi, but deny that the second part of the imputation was conveyed. I have no difficulty in finding for the plaintiffs on this issue.
Finally, the Second Amended Statement of Claim alleges that the publication conveyed the meaning that the plaintiffs had so conducted themselves as to warrant being refused access to a national park forever. The defendants submit that this meaning is not warranted, particularly with reference to the word "forever". However, unlike New South Wales, in the Northern Territory the plaintiff is not bound by his pleading and the pleading is treated as the "high water mark" of his case and as including all imputations of a lesser seriousness than that which he has pleaded: see the discussion by Hunt J in Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at 263; Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519. I agree with the defendants that the word "forever" takes the matter too far. I would consider "indefinitely" more accurately conveys the meaning of this imputation.
The extent of the publication
There is no dispute that Mr Pearce received the briefing notes and it follows from the admission of liability that he read them – an inference I would have drawn anyway. The plaintiffs claim that I should find that the briefing notes were further republished by Mr Pearce at a meeting of the Board of the Northern Territory Tourist Commission held on 2 December 1994. The defendants submit that the evidence falls short of proving this.
The minutes of the Board Meeting state, under the heading "Managing Directors (sic) Report", the following:
A complaint was tabled against a particular operator who was seen to be denigrating Safari/Hunting activity in Cobourg Peninsula, in the Northern American marketplace. The Managing director, on behalf of the Board, was requested to issue a letter supportive of that particular Tourism activity to be available to use as required to refute the adverse allegation.
No other matters were raised in respect of the Managing Director's written report.
There is no other reference in the minutes which might suggest that the briefing notes were tabled at the meeting by Mr Pearce. The defendants submit that the minutes do not support the plaintiffs' contentions that
Mr Pearce tabled the briefing notes at that meeting because (a) the briefing notes made no reference to the "North American marketplace"; (b) the briefing notes do not request the Managing Director to do anything and (c) nor do they include any proposal "to refute the adverse allegation". It is true that the briefing notes do not directly refer to the North American marketplace, but the notes do refer to "... Penfold has been rubbishing other operators in the NT ... both here and while he is overseas seeking business ..." Further, the briefing notes contain a recommendation that the Commission "prepare a letter" of support to be given to licensed safari operators which "would assist in countering any disinformation that Penfold may seek to relay" and asks whether the letter should be sent to the Safari Club International in America. There is also evidence from Mr Penfold that he regularly attended safari conventions in the United States and the evidence is that such conventions were held only in the United States, although fairs which promoted safari operations were held in Europe. The briefing notes also refer to the Commission preparing "a letter which can be provided to the safari operators for their use at conventions overseas". There is, therefore, an inference that the references in the minutes do in fact refer to the briefing notes which, it is to be noted, were prepared for Mr Pearce's attendance at that meeting and published to him on the same day.
The only other possibility is that the reference in the minutes to a complaint, is a reference to a complaint from another source which, on the evidence, would most probably have come only from Davidson's Arnhemland Safaris. There is no evidence that Davidson's Arnhemland Safaris wrote to the Commission. There is evidence that on 2 December 1994, Mrs Philippa Davidson sent a facsimile (Ext D21) to the Minister for Tourism, the
Hon Barry Coulter MLA, in the following terms:
Dear Barry
Owing to problems created overseas and in Australia by Mr Bob Penfold of Hunt Australia, we request your assistance in clarifying who are the legal, respected Safari Operators in the Northern Territory particularly in reference to those licensed to operate in Arnhemland on Buffalo and Banteng.
As blatant lies have been spread by Mr. Penfold is having an adverse affect on the tourism in general in the Northern Territory and making the whole industry look unprofessional. (sic)
We would appreciate if you could write letters to Safari Club International and ask them to pass this information onto ALL of their chapters in the U.S.A. and Europe. Mr. Bernard Higgins from the Northern Land Council office in Darwin is in agreeance with the above request and has offered any assistance i.e. clarification of operators working under licence with the Northern Land Council.
As the Safari Club International convention is on in late January early February, 1995 we would appreciated your earliest attention to this matter. The address for S.C.I. is as follows:
The President
D. Patrick Bollman,
Safari Club International
4800 W. Gates Pass Road,
Tuscon. Arizona 85745
Fax No: 00111 602 622 1205Kind regards
Mr Coulter was called as a witness by the defendants. He said that although the Commission was an independent body and not a government department, the facsimile Ext D21 would have gone to the Commission, as well as possibly to "Parks and Wildlife", to generate a response for his consideration. There is no evidence as to when Ext D21 reached the Commission. Ext D21 shows that it was faxed to Mr Coulter at 19:55 hours on 2 December 1994. The meeting of the Commission, according to the minutes, began at 2.05 pm and closed at 6.15 pm. Accordingly, Ext D21 was not the complaint tabled at that meeting.
There is other evidence which also points to the conclusion that the briefing notes were tabled at the meeting by Mr Pearce. On 24 January 1995, Sharon Mulholland, one of the Commissioners present at the meeting and the Acting General Manager of the Commission, sent a facsimile addressed to "Ashley/Sharyn" with the following note attached:
Briefing Note Tabled By Commissioner Pearce At Last Board Meeting.
On 25 January 1995, Sharon Mulholland sent a memorandum to "General Manager Planning & Development" in which she says:
I refer you to the attached briefing paper tabled by Commissioner Pearce at the most recent Board Meeting.
The memorandum goes on to quote the final paragraph of the briefing paper. This is identical to the final paragraph of the briefing notes.
Mr Pearce was not called to give evidence on behalf of the defendants. No evidence was lead as to why he was not. As the former Director of the NLC, he was clearly a witness in the defendants' camp. The failure of the defendants to call him as a witness leads to the inference that his evidence would not have assisted the defendants: see Jones v Dunkell (1959)
101 CLR 298.
I conclude therefore that Mr Pearce did table the briefing notes at the meeting on 2 December 1994 and that these notes are what are referred to in the minutes as the complaint that was tabled.
It was submitted by the defendants that I should not conclude that, even if the briefing notes were tabled at the meeting, anyone at the meeting in fact read them. No one present at the meeting was called to give evidence by either party. Both sides prayed in aid the rule in Jones v Dunkell in support of their respective cases. In relation to non-party witnesses, the rule applies where a number of conditions exist. In Payne v Parker [1976] 1 NSWLR 191 at
20-202, Glass JA said:
(6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v Reichard, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid. Regina v Burdett, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v Castlemaine District Community Hospital, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v Australian Portland Cement Pty Ltd; his safety officer: Earle v Castlemaine District Community Hospital; his accountant: his accountant Steele v Mirror Newspapers Ltd; his treating doctor: O'Donnell v Reichard.
Counsel for the plaintiffs submitted that the officers of the Commission were naturally in the defendants' camp because the evidence shows that the Commission embraced the NLC's request to give effect to the purposes of the briefing notes; they, in effect, acted as the defendants' agents in this regard and the Commission subsequently consulted with the NLC, or sought verification from the NLC, in matters involving the plaintiffs. The plaintiffs relied upon a number of documents tendered in evidence in support of this submission, especially Exts P7, 241 (a memorandum from Miss Mulholland to the Minister dated 19 December 1994 to which I will come); and P1, 254 (memorandum of 25 January 1995 from Miss Mulholland to the General Manager, Planning & Development, already referred to). These and a number of other documents show that to a large extent, the Commission supported the NLC's position so far as the plaintiffs were concerned (see for example
P2, 444) over an extended period of time. I accept the plaintiffs' submission that the Commission and its officers are naturally in the defendants' camp, so as to make it unrealistic for the plaintiffs to have called these witnesses. Unquestionably, the evidence of any of those attending the meeting would have elucidated whether or not they read the briefing notes, or republished the contents thereof to others. No explanation was given by the defendants for failing to call any of these witnesses. The defendants submitted that these witnesses were available to be called by the plaintiffs and held no brief for the defendants. I have already rejected that submission, but even if that be so, there is no basis for drawing an adverse inference against the plaintiffs if the witnesses were equally available to both parties.
Furthermore, I consider that proof that the briefing notes were tabled at the meeting and that a resolution was passed requiring the General Manager to write a letter as a result, is prima facie evidence of publication of the contents of the briefing notes to all present at the meeting: c.f. Gatley, supra, paras 6.9, 32.5 and 32.6. In the circumstances, I have no difficulty in finding that the briefing notes were published to all at the meeting. On the evidence, there were ten persons present besides Mr Pearce.
There is no doubt that the briefing notes were republished by Ms Mulholland to "Ashley/Sharyn" and to "General Manager Planning & Development". Although there is no specific evidence that any of these people read the briefing notes sent to them, that may be inferred: see the references in Gatley, supra, referred to in para [37] . The "Ashley/Sharyn" were identified by
Mr Coulter as his Press Officer and File Office Manager. I think it is likely that Mr Coulter read the briefing notes, although his evidence is, which I accept, that he has no recollection of reading them. However, there would be little point in sending this document to his staff if he did not read it. In any event, there is evidence that the sting of the libel contained in the briefing notes was passed on to Mr Coulter when he was asked to sign a letter addressed to the Safari Club International in the United States: see the memorandum from Ms Mulholland to the Minister dated 19 December 1994 (Ext P7, p241). I note that according to that document, the contact officer was yet another person, presumably within the Commission, "Joc Schmiechen" and it is a reasonable inference that he either drafted that document, or was at least aware of its contents (see also P2, 269).
It is clear that the briefing notes were filed by the Commission for future reference. On 10 December 1996 there is a memorandum from the then Managing Director of the Commission, Mr Mayell, to the then Minister,
Mr Read, enclosing, inter alia, "a Board Paper presented to the NTTC Board in December 1994 by the then Commissioner, Darryl Pearce" (Ext P1, 376). The "action officer" according to the memorandum, was Pauline Rayner, another Commission officer who was called by the defendants to give evidence on another issue, but was not asked whether she had seen the briefing notes. Other evidence suggesting that publication of the defamation was spread widely within the Commission is to be found in Exts P2, 259-264; P2, 269; P2, 316.
Whether the briefing notes were published beyond the Commission, its officers and the Minister and his staff is very much in issue. The plaintiffs submit that I should find that the individual Commissioners who attended the meeting of 2 December 1994 were representatives of various bodies in the tourism industry, that I should infer that they each had a duty to report to their own bodies and that, therefore, I should infer that they in fact republished the libel accordingly. The defendants submit that not all of the Commissioners were responsible to any other bodies and in any event, were bound by law not to republish the libel. Accordingly, it was submitted that it was not open to draw the inference sought by the plaintiffs.
As to the first limb of the plaintiffs' argument, there is no evidence that the Commissioners were, as at 2 December 1994, acting otherwise than as Commissioners in attending that Board Meeting, although it is not disputed that some of the Commissioners were, or had been in the past, officers or representatives of other organisations interested in the tourist industry.
The main argument stressed by the defendants is based on s 16 of the Northern Territory Tourist Commission Act which provided at the relevant time:
A member of the Commission or an employee of the Commission shall not disclose any information obtained in the course of his duties as such a member or employee unless that disclosure is made in the course of his duty as such a member or employee.
Penalty: $4,000 or imprisonment for 2 years or both.
I am not prepared to infer, in the absence of any evidence to support it, that any of the Commissioners, or the officers of the Commission, would have acted contrary to the provisions of s 16 of the Act. I am, therefore, not prepared to infer that the natural and probable consequence of the republication of the briefing notes by Mr Pearce, was further republication by the Commission or its employees to others outside the Commission or the Minister's office. The only evidence of any republication outside of the Commission's offices in Darwin or the Minister's office, is a letter by the then Managing Director of the Commission, Stephen Gregg, to Rudi Heymann of the Commission's Frankfurt office (see Ext P2, 316). The case is unlike that of Crampton v Nugawela (1996) 41 NSWLR 176 at 193-194, where there is reference to "the grapevine effect". In that case, there were serious allegations made concerning a general practitioner's reputation made by another general practitioner at a meeting of some twenty-two other doctors. The allegations were such as to be likely to be quickly spread amongst the medical profession. Here the allegations are of a very serious character, but relate to a tourist operator in a niche market. The member organisations such as the Katherine Regional Tourism Association, did not promote the plaintiffs' safari hunting businesses in the past and the plaintiffs' clientele was sourced entirely from overseas. It is therefore not sufficiently likely that the allegations would be passed on, whether out of a supposed duty to report to a member organisation, or simply as gossip, such as to persuade me that in all probability the libel was further republished, contrary to the terms of s 16 of the Act.
The Minister's letter
The plaintiffs further asserted that the republication of the libel resulted in a letter being signed by the Minister, which was ultimately published in both the United States and Germany and which seriously affected the plaintiffs' reputation and business. There are two aspects to this submission; firstly whether the libel or any part of it was further republished by that letter; and secondly, whether the publication of the letter was caused by the republication of the libel by anybody.
The events which led up to the publication of the Minister's letter were as follows. Following the Board Meeting on 2 December 1994, Ms Mulholland sent a memorandum to the Minister dated 19 December 1994, recommending that he sign the "attached draft letter to the President of the Safari Club International in the USA". The full text of the memorandum is as follows:
To: MINISTER FOR TOURISM DATE: 19 DEC 1994
FROM: MANAGING DIRECTOR, NTTC NTTC Ref: 4863
MIN REF: 2-12-2823RE: SAFARI HUNTERS LICENSED TO HUNT IN
ARNHEMLAND
RECOMMENDATION:
It is recommended that you sign the attached draft letter to the President of the Safari Club International in the USA.
BACKGROUND:
At present Mr Bob Penfold Hunt Australia has no rights or concessions to conduct hunting safaris in Arnhemland or Coburg National Park (in effect he has been officially barred from Gurig National Park by a recent board meeting for improper activities in Arnhemland).
The stories about Mr Penfold's misdeeds and improper actions abound and on information from the Northern Land Council some of his actions include:
- Shooting penned animals and not paying proper trophy money
- Illegal access onto Aboriginal land without proper permits
- Introducing alcohol onto Aboriginal land- Failure to pay outstanding debts.
At present he has no concessions or access to Arnhemland or Gurig. He does have an agent in Katherine, Steve Fullarton, who he uses from time to time to try and circumvent his ability to operate directly. If the established operators are willing, he can book clients in through their operations. (sic) in some instances they may not be aware of where the booking is coming from.
Mr Penfold undoubtedly presents some major problems and his good will and welcome is probably exhausted in Northern Australia. It would be important for the correct information to be circulated in the world hunting circles.
A letter to this effect has been drafted and is attached.
Contact Officer: Joc Schmiechen
Telephone: 893837
SHARON MULHOLLAND SIGNED /
NOT SIGNEDBARRY COULTER
23 DEC 1994
On 23 December 1994, a letter signed by the Minister was sent to the President of the Safari Club International. The full text of the Minister's letter is as follows:
Mr D Patrick Bollman
The President
Safari Club International
4800 W. Gates Pass Road
TUSCON ARIZONA 502 1205 USA
Dear Mr Bollman
There has been concern expressed by some Safari Hunting Operators in the Northern Territory as to who is officially licensed to operate in Arnhemland and for hunting Banteng on Coburg Peninsula in the Gurig National Park. To avoid any possible misinformation within the world hunting circles, I would like to take this opportunity to clarify the current situation. I hope you will be able to pass this on to all your chapters in the USA and Europe.
Arnhemland is Aboriginal owned land and the Northern Land Council administrates all land use issues on behalf of the traditional owners. The hunting rights for any safari hunting operations on these lands are currently held by the following operators:
Wimray Safaris – Mr Noel Bleakley
Davidson's Arnhemland Safaris – Mr Max Davidson
Territory Buffalo Safaris – Brenton Hurt
Access Northern Australia – Francois Giner
There are two further operators presently being considered by the Northern Land Council for operations in 1995:
Roper River Safaris – Grant Angel
Illiwan Safaris – Mathew Kelman
Gurig National Park is a jointly managed Park between the Conservation Commission of the Northern Territory and traditional Aboriginal owners. It is the only area in Australia offering Banteng hunting and the Gurig Board of Management has granted licenses to the following three operators.
Wimray Safaris – Mr Noel Bleakley
Davidson's Arnhemland Safaris – Mr Max Davidson
Territory Buffalo Safaris – Brenton Hurt
Mr Bob Penfold from Hunting Australia has currently no rights to operate in either of these two areas, which can only be accessed through the above bone fide licensed hunting safari operators.
We welcome visitors from all parts of the world to enjoy our unique remote natural environment and Aboriginal culture in the Top End of the Northern Territory, and extend our warmest invitation to members of your organisation for future visits.
Yours sincerely
BARRY COULTER
On the same date, Mr Coulter sent a letter addressed to Mr & Mrs Davidson as follows:
Mr & Mrs M & P Davidson
Davidson's Arnhemland SafarisPty Ltd
PO Box 41905
Casaurina NT 0811Dear Mr & Mrs Davidson
I refer to your facsimile of 2 December 1994 wherein you sought a letter of clarification of licensed Safari Hunting Operators in the Northern Territory.
I have enclosed a copy of a letter I have today sent to Mr Bollman of Safari Club International in Arizona for your information.
I hope this will help to overcome problems you have been experiencing and wish you all the best for 1995.
Yours sincerely
BARRY COULTER
I have no doubt that the direct cause of the Minister's letter to Mr Bollman was Mrs Davidson's facsimile to the Minister of 2 December 1994. Clearly what happened, was that the Minister referred the facsimile to the Commission for comment, as Mr Coulter said in evidence.
The defendants submit that the conclusion that the direct cause of the letter to Mr Bollman was Philippa Davidson's facsimile, can be drawn from the following factors:
1.The facsimile invites the Minister to send a letter to the Safari Club International and provides the name, address and facsimile number of the President of the Safari Club International.
2.That Ms Mulholland's recommendation was a direct response to the facsimile from Mrs Davidson to the Minister.
3.The facsimile bears the same reference number in the date stamp as the Minister's letter.
4.The briefing notes were not forwarded to the Minister's office until
24 January 1995.
The fact that the documents have the same reference number is additional support for Mr Coulter's evidence that Ms Mulholland received
Mrs Davidson's facsimile. On the other hand, Ms Mulholland's memorandum contains matters which clearly came from the briefing notes and not from
Mrs Davidson's facsimile, including the following: shooting penned animals and not paying proper trophy money; failure to pay outstanding debts; in effect being officially barred from Gurig National Park by a recent Board Meeting for improper activities in Arnhem Land. Indeed, the text of the memorandum states that the source of this information comes from the NLC. .
The defendants further submit that Mrs Davidson's facsimile requests "assistance in clarifying who are the legal, respected safari operators in the Northern Territory" and say that the Minister's letter fits that description. I accept that this is so, but the briefing notes also refer to a letter from the Commission supporting licensed safari operators and stating that Mr Penfold does not have a licence for buffalo. The defendants also submit that
Mrs Davidson's facsimile seeks a letter from the Minister to the Safari Club International, a matter not referred to in the briefing notes. I accept the validity of this submission, but point out that the briefing notes envisage "a letter to be provided to safari operators for their use at conventions overseas". The Commission's officers may have reached the conclusion that a better way to deal with the problem was to advise the Minister to write to the President of the Safari Club, but I think it more likely that the true cause of
Ms Mulholland's memorandum and the Minister's letter to Mr Bollman, was the facsimile from Mrs Davidson. It is particularly significant in this respect that on 23 December 1994 the Minister wrote to the Davidsons enclosing a copy of his letter to Mr Bollman.
The plaintiffs assert that I should nevertheless find that the briefing notes were a cause. Their case is that Ms Mulholland's memorandum recommends that the letter drafted by the Commission be sent to Mr Bollman and in support of that recommendation, the sting of the libel is partly at least repeated in the memorandum. The argument is that the Minister relied upon the Commission's recommendation before signing the letter to Mr Bollman. In support of that argument, the plaintiffs rely upon the commonsense test of causation in March v E & M H Stramere Pty Ltd (1990-1991) 171 CLR 506.
There are a number of difficulties in accepting this submission. In the first place, the High Court's discussion of that subject was in the context of a negligence action. Each of their Honours relied heavily on the provisions of the Wrongs Act 1936 (SA), providing for apportionment between tortfeasors, in concluding that "the courts are no longer as constrained as they were to find a single cause for a consequence and to adopt the "effective cause" formula: per Mason CJ at 512; see also Dean J at 521-522; McHugh J at
533-534. Toohey J specifically limited his agreement with Mason CJ to cases where negligence is alleged (at p 524). In the Northern Territory, the provisions relating to apportionment of liability depended upon a finding of "fault" by the tortfeasor and by the person suffering the damage: see s 16 of the Law Reform (Miscellaneous Provisions) Act. The definition of "fault" in s 15(1) was arguably wide enough to include any tortious act. That section was amended in 2001 to substitute "wrong" for "fault" and to make it clear that the apportionment provisions apply only to negligence actions. It is at least arguable that the approach to causation favoured by the High Court in March v E & M H Stramere Pty Ltd does not apply to actions for defamation.
However, in Williams and Others v John Fairfax Group Pty Ltd & Another (1991) Aust. Def. Reps 51,035 appears to have accepted, at least for the purposes of a strike out application, that the principles of causation in March v E & M H Stramere Pty Ltd do apply to causation in defamation proceedings: see also Kirby J in Chakravarti v Advertiser Newspapers Ltd, supra, at 600. The plaintiffs argued that I should find that the briefing notes were a cause of the Minister's letter to Mr Bollman for the reasons I have already discussed. The argument (which may have been seen by the parties as the same argument expressed in a different way) was whether or not the plaintiffs had established that the letter to Mr Bollman was "the natural and probable consequence" of the publication of the briefing notes by Mr Higgins to
Mr Pearce. The "natural and probable consequence" test is discussed further below, but in my opinion, whichever test of causation is to be preferred, the original publication of the briefing notes was not a cause of the letter to
Mr Bollman. In this case, the fact that the letter to Mr Bollman was sent by the Minister, is clearly the result of the Minister's desire to accede to the request of Mrs Davidson. Without Mrs Davidson's facsimile, the chain of events leading to the letter to Mr Bollman would never have occurred. It was her conduct in sending a facsimile to the Minister, found by the Federal Court to be defamatory, which led to the letter being sent. It may be said that this is a mere application of the "but for" test, rejected in March v E & M H Stramere, as the main test of causation, but as Mason CJ points out at p 518:
It has been said that the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage which results from the intervening action, see Chapman v Hearse; M'Kew: Caterson v Commissioner of Railway. But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence.
If one regards Mrs Davidson's facsimile as the "intervening action", how can it be said that her action was the very kind of thing likely to happen as a result of the publication of the briefing notes by Mr Higgins to Mr Pearce, or by the subsequent republications? There is no evidence that her facsimile was in any way prompted by those publications, or her knowledge of the contents of the briefing notes. Similarly, I cannot see how it can be suggested that her facsimile was the natural and probable consequence of the original publication of the briefing notes, or the subsequent republications. On this analysis, the chain of causation was broken by Mrs Davidson's facsimile.
An alternative basis, is to look not at whether Mrs Davidson's facsimile was the very kind of thing likely to have happened as a result of the publication of the briefing notes to Mr Pearce, or the subsequent republications, but whether the publication of the letter to Mr Bollman by the Minister was the very kind of thing likely to have happened as a result of the republication of the defamatory matter by Ms Mulholland to the Minister, or whether that was at least a cause, as a matter of commonsense of the Bollman letter. This approach does not seem to accord with the reasoning in March & E & M H Stramere, supra, but I am prepared to accept that I may be wrong about that. If this be the correct way of looking at it, the plaintiffs are on stronger ground so far as causation goes, for reasons which are discussed in paras [72] and [73] below where I conclude that the defendants, wrong caused the republication of the sting of the libel to the Minister. It is but a small step to take that the Minister, having read Ms Mulholland's memorandum, took it into account in deciding to send the letter to Mr Bollman and that this was a reasonably foreseeable consequence of the original publication. If this be the correct way of looking at it, I would conclude that the original publication was a cause of the letter which the Minister wrote to Mr Bollman.
Did the Minister's letter repeat the libel?
The plaintiffs assert that the Minister's letter in part disseminated the defamation because the inference from that letter is that the plaintiffs are not bona fide safari operators. The defendants deny that any such imputation was conveyed by the letter.
The defendants further submit that it is not now open to the plaintiffs to assert that the Minister's letter was defamatory of them, because that issue was decided adversely against them in the Federal Court action. In that action, Hunt Australia claimed damages under ss 52 and 82 of the Trade Practices Act (Cth). The claim was that the Minister's letter contained material that was "misleading or deceptive" and that the respondents were liable to the applicant in damages for disseminating the letter. The applicant also claimed damages for libel based on Mrs Davidson's facsimile to the Minister dated 2 December 1994. The learned trial judge, O'Loughlin J, found that the Minister's letter was not misleading or deceptive. His Honour found that, properly understood, the Minister's letter was an accurate statement of the position relating to licensed safari tour operators in Arnhem Land and Cobourg Peninsula. That finding was upheld on appeal to the Full Court: see Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris [2000] FCA 1690. The plaintiff succeeded in recovering damages in respect of Mrs Davidson's facsimile to the Minister. A cross-appeal against that award was dismissed. However, it is to be noted that in the Federal Court action, it was not alleged that the Minister's letter was defamatory, whether for the reason now agitated or at all. Further, the plaintiff Robert Penfold was not a party to that action. It is clear that the causes of action are not the same and the determination of the Federal Court was not made between the same parties or their privies. Counsel for the defendants relied upon Reichel v Magrath (1889) 14 AC 665 and Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404. The former case appears to stand for the proposition that an issue tried in a civil proceeding brought by A against B and found by the Court in favour of B, cannot be retried in an action brought by A against C and will be struck out as an abuse of process. That decision and the principle for which it stands, was discussed by Hunt CJ at CL in Haines v Australian Broadcasting Corporation, supra, at 410-414, where the nature of the abuse is identified as a collateral attack on the former proceeding of a court of competent jurisdiction and therefore, contrary to public policy. In order to succeed on this point, the defendants must show that the issue which is now sought to be litigated must be one which the plaintiffs lost in the former action (see Haines, supra, at 414). I think that in this instance, the fact that Mr Penfold was not a party to the action against the Davidsons does not preclude the principle from operating. It is clear that Mr Penfold is the guiding light and principal director of Hunt Australia Pty Ltd, and for all intents and purposes they are one and the same. The sentence now complained of as being defamatory, is precisely the same sentence which O'Loughlin J held was not misleading or deceptive. The relationship between an action in defamation and an action under the Trade Practices Act was also discussed by Hunt CJ at CL in Haines, where the plaintiff had originally sued in defamation, had a determination against him that no imputation of the kind suggested was conveyed and then sought to amend the proceedings to claim damages under s 52 of the Trade Practices Act against other parties for the same imputation. His Honour indicated that he would have struck out the amendments as an abuse of process: see p 415. I consider that, the Federal Court having found that the imputation was not misleading or deceptive, it is not now open to the plaintiffs to allege that they are defamatory in these proceedings. Further, I do not consider that the letter conveyed the imputation sought to be relied upon. In context, it is plain that the letter conveyed no more than that the plaintiffs were not licensed to operate in the two areas referred to and only licensed operators can operate and access those areas. I therefore reject the plaintiffs' submission that the Minister's letter further disseminated the libel.
Are the defendants liable for any or all of the republications?
The defendants assert that they are not liable in damages to the plaintiffs for the republications on two bases. The first depends upon s 27A of the Northern Territory Tourist Commission Act. The second argument is based on a submission that it was neither intended nor foreseeable by Mr Higgins that Mr Pearce would publish the briefing notes at the Commission Board Meeting and that the consequential republications were not the natural and probable consequence of his publishing of the briefing notes to Mr Pearce. Inherent in this submission, is that the publication to Mr Pearce was not privileged and that Mr Pearce received and republished the briefing notes in his independent capacity as a Commissioner and not as the Director of the NLC.
Section 27A of the Act provides as follows:
27A PROTECTION OF MEMBERS
No action or proceeding, civil or criminal, shall lie against the Chairman or a member of the Commission for or in respect of an act done or omitted to be done in good faith by that person in the person's capacity as Chairman or member.
On the face of it, s 27A has no application to these proceedings because neither of the defendants to this action were members of the Commission and no action is brought against Ms Mulholland or Mr Pearce who were members of the Commission. The defendants' submission, however, is founded on the proposition that each subsequent republication is a separate tort, which gives rise to a fresh cause of action. Thus, if the republication be protected by
s 27A, there is no wrong. The plaintiffs' contention is that the plaintiffs are entitled to rely upon the republications as going to damages and have not sued upon the republications as separate causes of action and therefore s 27A is irrelevant. Alternatively, the plaintiffs submit that the defendants are liable because the original publication by Mr Higgins was activated by malice. If these arguments are not accepted, the plaintiffs submitted that (1) the plea based on s 27A was abandoned on the first day of the trial and (2) the defendants have called no evidence to bring themselves within the protection of s 27A.
It is well established that when a defamatory statement is republished, the plaintiff has a choice: he may sue the defendant both for the original publication and the republication as two causes of action, or he may seek to recover as a consequence of the original publication the damage that he has suffered as a result of the republication, so long as the damage is not too remote: Cutler v McPhail [1962] 2 QB 292 at 298-299; Sims v Wran [1984]
1 NSWLR 317 at 320; Toomey v Mirror Newspapers (1985) 1 NSWLR 173
at 182-183.
Gatley, supra, at 6.31 suggests that in either case, the general rule is that the original publisher of the libel is not legally responsible for the free and voluntary acts of others, including repetitions by them of defamatory matter, except in the situations recognised by Lopes LJ in Speight v Gosnay (1891) 60 LJQB 231 at 232: see also Gatley 9th Edn., para 6.30; M Gillooly, "The Law of Defamation in Australia and New Zealand", p79. These situations are:
1.where the defendant authorised or intended the republication;
2.where the person to whom the original publication was made was under a duty to repeat the statement;
3.where the republication was, in the circumstances of the case, the natural and probable result of the original publication.
In the present case, the plaintiffs' statement of claim specifically pleads the original publication by the first defendant to Darryl Pearce and to the NLC (para 5 of the Second Further Amended Statement of Claim). In para 7, the plaintiff alleges that the second defendant, by its Director Mr Pearce, republished the briefing notes to the Commission. In para 7.1, it is alleged that Sharon Mulholland republished the briefing notes to the Minister. It is necessary in an action for damages for defamation for the pleader, where he seeks to plead each republication as a separate cause of action, to:
... plead each republication in haec verba as a separate paragraph in his statement of claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication; in the latter case, the plaintiff is obliged to make his intention clear in his statement of claim. (see Toomey, supra, at 182.)
In this case, it is clear that the plaintiffs pleaded each of those republications as a separate cause of action.
The authorities to which I have referred establish that, where the republication is sued upon as a separate tort, both the original publisher and the republisher may be sued. In Cutler v McPhail (1962) 2 QB 292, it was held that in those circumstances, the original publisher and the republisher are jointly liable so that a release of one operates as a release of both; however, the plaintiff was still entitled to damages for the republication, notwithstanding the release, as a consequence of the original publication. If it be correct to categorise the original publisher and the republisher as joint tortfeasors in respect of the republication (which I doubt) the theory is that there is but "one cause of action": see the discussion in Fleming: "The Law of Torts", pps 258-9; Wah Tat Bank Ltd v Chan [1975] AC 507 at 515. But this does not necessarily mean that the original publisher can rely upon a defence open to the republisher.
As far as I can ascertain, the subject has not been decided by authority. There is authority for the proposition that if the original publication was privileged, but the republication was not, the plaintiff can recover against the republisher: see Lawrence v Newberry (1890-91) 7 T.L.R 588 at 589, where Denman J, with whom Wills J concurred, said:
It has long ago been decided that it is no answer to a libel that the original statement was on a privileged occasion.
No authorities are cited for this proposition and the case is not discussed by the text-writers in this context, except for the reference to it in Tobin and Sexton, "Australian Defamation Law and Practice", para 5330. Thus, the reason why the republisher is able to be sued is not discussed, but it may have been because the original publisher in that case would not have been liable for the republication in accordance with the rules in Speight v Gosnay. The only other case to discuss the issue is the unreported judgement of Byrne J in Smith v Harris (delivered 1 December 1995, Supreme Court Victoria) unreported, which is reproduced in Tobin and Sexton, supra, at 42,861) but his Honour declined to resolve the issue (see p43, 864).
However, in my opinion the effect of s 12(2) of the Law Reform (Miscellaneous Provisions) Act is to abolish the unity of the cause of action between joint tortfeasors: see Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 584 per Brennan CJ, Dawson & Toohey JJ. The concept of a single wrong and a single cause of action having gone, there is no longer any reason for holding that the original publisher can rely upon a defence which was only open to the republisher. I therefore reject the defendants' argument based on s 27A of the Act.
In any event, in view of the admission of liability and the interlocutory judgment obtained against the defendants and the way the case was run at trial, I would hold that the plaintiffs are entitled to rely on the alternative basis referred to above as the means by which damages may be awarded for the republications, so long as these damages are not too remote, and it is to the submissions on that issue that I shall next turn.
Remoteness of Damage and Causation
An issue between the plaintiffs and the defendants, is whether or not it was the natural and probable consequence of the publication of the briefing notes by Mr Higgins to Mr Pearce that he would republish the briefing notes at the meeting.
Before dealing with this topic, I should refer further to the principles which deal with tortious liability for republication (whether as a separate tort or not) and of remoteness of damages which I briefly referred to in para [62] above. According to the most recent authorities on this topic, there are no rules which are special to the law of defamation, but rather that these questions are to be determined in accordance with ordinary tortious principles. In Slipper v British Broadcasting Corporation [1991] 1 QB 283, the plaintiff, a former senior police officer, was featured prominently in a film concerning the infamous Great Train Robbery and the efforts made to bring Ronald Biggs back to England from Brazil to where he had escaped. The plaintiff sued in respect of the public broadcast of the film by the BBC and in respect of the showing of a preview of the film to press and television journalists. The plaintiff also sought damages in respect of reviews of the film in the national press. The defendant contended that it was not liable for the reviews and sought to strike out the paragraph in the pleadings which raised that issue. The authorities were extensively reviewed by the Court of Appeal which refused to strike out the pleading. The argument for the defendant rested in part on a submission that the decision of Ward v Weeks (1830) 7 Bing. 211 as approved by the majority of the House of Lords in Weld-Blundell v Stephens [1920] AC 956, limited liability for republication to those cases where the republication had been authorised. The Court rejected that submission, holding that the ordinary rules in tort relating to causation, novus actus interveniens and remoteness of damage applied to defamation actions: see Stocker LJ at 295-6; Bingham LJ at 299-300;
Slade LJ at 302-303. Slade LJ said, at p301:
... I for my part find it difficult to draw any distinction between damage which is the natural and probable consequence of the tort and damage which is a reasonably foreseeable consequence: compare The Wagon Mound [1961] AC 388, 423 per Viscount Simonds.
The decision in Slipper v BBC was considered by Hunt J in Williams and Others v John Fairfax Group Pty Ltd & Another (1991) Aust.Def.Reps 51,035, in particular in the light of the decision of the High Court in March v E & M H Stramere Pty Ltd (1991) 171 CLR 506. In that case, the plaintiffs were the manager, supervisor and a waitress in a restaurant whose efforts were criticised by the second defendant, Leo Schofield, in a restaurant review published by the defendants in a newspaper. Two of the plaintiffs also sought damages from the defendants for the repetition of the sting of that review later published by the presenter of a program on radio. The plaintiffs alleged that the repetition of parts of the review on the radio were the "natural and probable result" of its publication in the newspaper. The defendants sought to argue that this was insufficient in law for them to be liable. Hunt J, after reviewing the authorities, said at 51,035:
The defendants' third argument, as I understand it, is that the approach to causation in tort generally has been fundamentally changed by the decision of the High Court in March v E & M H Stamare Pty Ltd (1991) 171 CLR 506, so that, viewed from new first principles, the publication by Mr Dale on the ABC in the present case must necessarily be treated as a novus actus interveniens, a new cause rather than a consequence of the original publication. The judgments in that case do redefine the principles of causation, although I would not go so far as to accept that those principles have been "fundamentally changed". The causa sine qua non test, that the plaintiff would not have sustained his injuries but for the original tortious act of the defendant, can no longer be regarded as definitive of the issue of causation. Greater emphasis is now given to the application of common sense and experience to the facts of the particular case (515-516, 522-523, 524, 525, cf 532-534).
In relation to the novus actus interveniens, the supervening cause, the defendant is now liable for its consequences if that act was the very kind of thing which was likely to happen as a result of the original tortious act of the defendant – if, for example, that act of the defendant had generated the very risk that, in the ordinary course of things, a third party would act in the way which caused further injury to the plaintiff. As Mason CJ put it (at 519):
In such a situation, the defendant's [original tortious act] satisfies the 'but for' test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it.
(See, generally, at 517-518). Toohey & Gaudron JJ agreed with the judgment of the chief Justice. As I point out later in this judgment, the application of those redefined principles in the present case would not produce any different result to the application of the law stated in Speight v Gosnay and accepted in Dempster v Coates.
The evidence is that the briefing notes were attached to a memo from
Mr Higgins to Mr Pearce dated 30 November 1994, some two days before the Board Meeting. Also attached to the memorandum was a copy of the "Full Council Agenda Item" concerning the same matter. The heading to the briefing notes indicates that they were given to Mr Pearce and intended for his use at the Commission's Board Meeting on 2 December 1994. Having regard to the suggestion in the briefing notes that a letter of support be prepared by the Commission which the licensed safari operators can use for publicity purposes at conventions overseas, I consider that I should find that it was reasonably foreseeable that Mr Pearce would refer the Board to the matters contained in the briefing notes and would in all likelihood table the briefing notes. In my opinion, that was the very sort of thing likely to happen as a consequence of publishing the notes to Mr Pearce. It was therefore both reasonably foreseeable and likely that a copy of the briefing notes would be filed by the Commission only to emerge later. As Bingham LJ said in Slipper v BBC, supra, at 300:
... the law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publisher. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs.
Mr Higgins well knew that Davidson's Arnhemland Safaris had approached Mr Coulter about the same subject matter, as his memorandum of
30 November 1994 to Mr Pearce plainly states (and as is repeated in the briefing notes). It is reasonably foreseeable that the Minister would seek the advice of the Commission (which is subject to ministerial control [see s 19 of the Act]) and effectively operates vis-a-vis the Minister in the same way as a government department. It must have been anticipated by him that
Mr Coulter would, in order to deal with the Davidsons' complaint, seek the advice of the Commission and that the Commission would in all likelihood advise the Minister of the sting of the libel contained in the briefing notes. I find also that the republication by Ms Mulholland was, in the circumstances, the natural and probable consequence of the defendants' conduct. I am fortified in reaching this conclusion by the fact that Mr Higgins did not give evidence.
Are damages flowing from the publication of the Minister's letter too remote?
In addition to sending the letter to the President of the Safari Club International, the Minister sent a copy of it to Mrs Davidson. She in turn published the Minister's letter at a trade fair in Dortmund, Germany which
Mr Penfold was attending in order to promote Hunt Australia in Europe. As a consequence, the plaintiff Hunt Australia claims that it suffered very significant loss and damage, particularly in the European market, but also in the American market.
The defendants argue that to the extent that any loss flowed from the publication of the Minister's letter, they are not responsible for it. As I have found, the Minister's letter does not repeat the sting of the libel and therefore it is submitted that there is no republication of the libel for which the defendants can be held legally responsible. I accept that the publication of the Minister's letter, whether by the Minister or by Mrs Davidson, is not a republication of the sting of the libel contained in the briefing notes. There is therefore no separate tort by the publication or republication of the Minister's letter for which the defendants can be held responsible. The plaintiffs assert that, notwithstanding this, the defendants are liable for any loss caused by the publication or republication of the Minister's letter, because the defendants' publication of the briefing notes was a cause of that publication or republication. In other words, that such losses are not too remote and are not the consequence of a novus actus interveniens.
The principles relating to remoteness of damage depend upon "reasonable foreseeability" which is not in itself a test of causation, but marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act: see Chapman v Hearse & Anor (1961) 106 CLR 112
at 122; March v E & M H Stamere Pty Ltd (1990-1991) 171 CLR 506 at 510; 534-536. But not every foreseeable risk of damage is to be laid at the defendants' door; the damage will not be a consequence of the risk unless it is the kind of damage which should have been reasonably foreseen. In Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd(The Wagon Mound) [1961] AC 388, the risk which needed to be foreseen was damage by fire; it was not to the point that it was reasonably foreseeable that the oil spill could cause other kinds of damage. Similarly, in my view, what must be reasonably foreseen is that there will be caused damage by repetition of the sting of the original libel. This accords with the view of Slade LJ in Slipper v BBC, supra, at 301, and the principles in Speight v Gosnay, supra, a well established authority in defamation cases that limit damage to repetition of the "sting" of the libel. Whatever the cause of any financial loss to Hunt Australia, to the extent that this was a result of the republication of the Minister's letter, the defendants are not to be held responsible for loss flowing as a result as, in my opinion, it is too remote.
The extent of the publication within the NLC
The plaintiffs submitted that the extent of the publication included those within the NLC. The plaintiffs point to the evidence of Mr Penfold that the briefing notes first came to his attention when they were attached to a statement of evidence prepared for Mr Higgins by the solicitors for the Davidsons in the Federal Court action some years later. It is a reasonable inference that at least two copies of the briefing notes existed within the NLC, one kept by Mr Higgins and the other by Mr Pearce. The plaintiffs submit that I should infer that the sting of the libel permeated through that organisation (with significant consequences for Hunt Australia's economic interests), as well as to a number of traditional owners whom the NLC consulted on matters affecting Hunt Australia's interests in obtaining access to Aboriginal land. In particular, it was submitted that I should infer that certain decisions of the Full Council of the NLC were the result of the publication of the briefing notes.
The first decision, or group of decisions, were resolutions passed on
7 December 1994 at the 65th Full Council Meeting of the NLC. These resolutions were as follows:
1.The NLC has no dealing with Hunt Australia Pty Ltd or its associates except that involving the recovery of outstanding money and the pursuit of any reported visits to Land Trust land without a permit.
2.That the NLC issues no further permits to Hunt Australia Pty Ltd or its associates until all outstanding matters are settled.
3.Permit delegates in the areas that Hunt Australia Pty Ltd and its associates have operated be advised of the resolution of Full Council.
4.As no permits would be issued by the NLC the traditional owners will have to issue their own permits to Hunt Australia Pty Ltd if they wish Penfold and Fullerton to visit. It also means that Penfold or anyone associated with Hunt Australia will require a permit from every group through whose country they travel.
5.That even though the NLC may receive a request from a group of traditional owners to negotiate an agreement with Hunt Australia Pty Ltd the NLC would not undertake those negotiations. If the traditional owners wish to deal with Hunt Australia Pty Ltd while money is still outstanding to the Land Trust then those traditional owners should conduct the business themselves. The NLC will act though on complaints received by any neighbouring group.
Why was this resolution passed? The plaintiffs assert that it was a consequence of the "poison" from the briefing notes; the defendants say that it was because of a dispute about a contract with the traditional owners of North Goulburn Island relating to the shooting of goats. A great deal of time was taken at the trial relating to this dispute. It is not necessary to get into the fine details. There is no doubt that the dispute was a genuine one and that the plaintiffs had a legitimate complaint. Hunt Australia had been granted a licence to conduct hunting safaris for goats on the island for a period of three years from 18 August 1993. The licence permitted shooting a maximum of 25 goats per day, provided that the total goat population was not reduced below 1,800. Certain fees under the licence were payable annually. The plaintiffs complained that the goat population had fallen significantly below 1,800 and refused to pay the annual fee when it fell due. The plaintiffs' argument was that the contract had been frustrated: c.f. McRae & Anor v Commonwealth Disposals Commission & Ors (1951) 84 CLR 377; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982)
149 CLR 337. Not all of the traditional owners accepted Mr Penfold's assertions concerning goat numbers. Nevertheless Mr Higgins initially attempted to obtain the advice of an independent person to estimate the goat numbers, namely the Regional Stock Inspector at Jabiru, and Mr Penfold accepted this suggestion. It appears that when it became clear that the cost of establishing the goat numbers on the island would be significant, Mr Higgins took a different attitude and referred the dispute to an in-house lawyer to collect the debt.
After operating for two years in Dhurputjpi, Wimray Safaris moved back to Gangan at the beginning of the 2001 season at the invitation of Gawirrin Gumana, without a formal licence from the NLC, but on the same basis as before.
On the basis of this evidence, I conclude that the loss of the Gangan licence is directly attributable to the libel, and that there were financial losses to Hunt Australia as a result. The losses incurred were the loss of some hunters transferred to another operator, Simon Kyle-Little for a period of about four weeks and there were in addition, some higher operating expenses. I also find that the Gangan licence would not have been terminated but for the activities of Mr Higgins and that the libel was a significant factor in his ability to obtain instructions from the traditional owners to terminate the Gangan licence.
The plaintiffs' expert witness, Mr South, gave evidence to the effect that the losses to Hunt Australia amounted to some $2,839,000 (later reduced to $2,637,000) made up as follows:
Past loss of income $1,529,000
Abnormal expenditure 120,000
Loss of value of the business 1,190,000
$2,839.000The assumptions upon which these calculations were made, are not borne out by the findings of fact I have made. I am unable to find a precise figure for past loss of income. I find that the libel did cause Hunt Australia some financial loss.
Mr Penfold gave evidence that after 1995, Hunt Australia lost the support of the Northern Territory Tourist Commission. His evidence was that prior to 1995, the Commission did refer some enquiries from would-be clients to him. I accept that some overseas enquiries were likely to have come to Hunt Australia via the Commission, either directly or indirectly. I also accept
Mr Penfold's evidence that hunt enquiries from this source appeared to have come to a halt after 1995. It is not necessary to go into detail, but the omission of Hunt Australia from the Facts Sheet published by the Commission on two occasions after 1995, illustrates the point. It is not possible to know how many hunters were potentially lost to Hunt Australia through the Tourist Commission.
It is also likely that Hunt Australia lost some income after 1995 because it was necessary to employ Wimray Safaris. The difficulty is that there is no satisfactory evidence as to the financial arrangements between Hunt Australia and Wimray Safaris. According to Mr Penfold, Mr Bleakley worked for Hunt Australia in a number of capacities – guide, pilot, mechanic and "as a manager of his contracts and areas." To this extent, there is no loss as Hunt Australia would have needed to employ someone to meet these expenses in any event. The accounts reveal that "subcontractors" appears as an expense item for the first time in 1998 in the amount of $66,808. No similar item appears in the accounts for 1995 or 1996. It may be that this represents monies paid to Wimray Safaris which Hunt Australia could otherwise have earned for itself, but there is no evidence to that effect and I am not prepared to guess. During cross-examination, Mr Penfold was asked several times if he could identify what proportion of the total income received from a hunt would be Hunt Australia's and Wimray Safaris' respectively, but he said he had no idea. Mr Bleakley's answer was somewhat difficult to follow because the arrangements were made more complicated by the fact that Wimray Safaris provided hunts to Hunt Australia clients at a "discount" because Wimray Safaris used some equipment supplied by Hunt Australia, but he seemed to accept that, excluding trophy fees and air charter fees, Hunt Australia would pay US$3,500 for a hunt which would normally cost US$5,000. If this is so, Hunt Australia lost 70% of its hunt income to Wimray Safaris; or another way of looking at it is that Hunt Australia charged a fee of 30%, part of which represented value for the use of Hunt Australia's assets. According to Mr Bleakley, his other agents charged a booking fee of 15% to 20%. Another difficulty with being precise in calculating any loss is that the evidence does not provide a break-up between those hunters who only visited Gangan or Dhurputjpi, whereas many Hunt Australia clients also visited Cobourg, at least prior to 1999. Even assuming a gross loss of 15% to fees received by Hunt Australia, the evidence does not permit me to calculate the net loss before tax as I do not know (and can only assume) that there would be some outgoings in relation to those earnings. The financial accounts for 1994 and 1995 refer to commissions paid, but
Mr South, whose firm prepared the accounts, did not know what those commissions were for and there is no other explanation. If this represented commissions paid to Wimray Safaris, the amount paid in the 1995 year is less than half that for the 1994 year, although total income for Hunt Australia actually increased.
Mr South's calculations for past loss of income are also based on projected income based on a business plan prepared by Mr Penfold. I am unable to attach any significance to the business plan. The calculations are also based on a growth rate which is really conjecture and upon the selection of a base year which is limited in this case by several factors, including the lack of financial records prior to 1992-1993; the fact that the accounts were previously prepared by a different firm on a different basis from later accounts prepared by Mr South's firm making comparisons difficult; and an assumption, particularly in relation to American hunters, that it is reasonable to treat 1999 as a new base year, when the facts are that that year produced significant income as the result of a convention held in Australia by the Shikar group – a one-off event. Mr South's estimate of a gross profit of 331/3% was also attacked as being unrealistic. I am inclined to accept this as a reasonable figure, but I am unable to accept the rest of the calculations which, in my opinion, rest upon data which is unreliable, or upon unreasonable assumptions not supported by the evidence.
However, although Hunt Australia has not proved any special damages under this heading, it is still entitled to an award of general damages for presumed economic loss: see Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 235; Coyne v Citizen Finance Ltd (1990-91) 172 CLR 211 at 231; Carson v John Fairfax & Sons Ltd (1992-93) 178 CLR 44 at 118-119.
In relation to the claim for "abnormal expenditure" related to the cost of removing camps, as the defendants rightly point out, the cost of removing the camp at Cobourg is not causally related to the defendants' libel. However, the removal of the camp at Gangan to Dhurputji is so related. The difficulty is that the evidence is that the camp at that time belonged to Wimray Safaris. Mr Penfold's evidence is that Hunt Australia incurred the expenditure involved "because Wimray Safaris have been associated (by the defendants) with Hunt Australia and that was the reason their permits were cancelled, so I felt responsible for the expense of removing the camps". The defendants submitted that they ought not to be held liable to pay for the plaintiffs' benevolence, there being no legal obligation on Hunt Australia to meet these costs. There are also other difficulties with this claim. The only figures presented to the Court related to the cost of removing the camp at Cobourg. Mr Penfold's evidence was that the other camp removals would have been much the same, but there is simply nothing to substantiate this. Obviously, there are going to be cost differences depending upon how far it is necessary to transport the camp from one location to the next. I am not satisfied that any loss has been proved by way of special damages for camp removals. The removal from Dhurputji was necessitated in any event because of a flood. Further, the evidence is that camp removals are an inevitable consequence of this business. Mr Penfold's evidence was that sources of trophy-sized buffalo get shot out eventually and that is why new locations constantly have to be found. Assuming Hunt Australia had lost anything at all, it lost at the most the accelerated value of having to shift camp prematurely. I am unable to find any amount by way of special damages for the cost of camp removals.
As to the claim for the capital loss of the value of the business, this is based on the alleged loss of sale of the business to a Mr Gifford. However,
Mr Gifford's evidence establishes that he lost interest in purchasing the business when it was discovered that Hunt Australia did not have any written contracts entitling it to conduct safaris in either the Gurig National Park, or in Arnhem Land. Mr Gifford at that stage sent an e-mail to Mr Penfold dated 21 June 2000 in which he said:
I don't think that I will raise finance to buy the company, unless the above concession, or "right to hunt" contracts are in place for the buffalo and banteng areas.
That was a condition that Hunt Australia could not comply with. Mr Gifford never entered into a contract to purchase Hunt Australia or its business, although he has indicated a continuing interest at a much lower price.
I am unable to accept the evidence of Mr South that the value of Hunt Australia was, as a result of the defamation, reduced in value to the value of its fixed assets; nor do I accept that the business was originally worth the amount Mr Gifford and Mr Penfold had discussed in negotiations, viz. $1,250,000, plus an ongoing salary to Mr Penfold of $240,000. I consider that the goodwill of the business was affected by the libel, but I am unable to quantify the loss in this manner.
I have not overlooked the fact that the e-mail which Mr Gifford sent dated
2 August 2001, in which he finally withdrew from negotiations with
Mr Penfold, refers also to other reasons, in particular the following:
1. I was warned, in no uncertain terms, by all the senior officials in all the Government departments that I spoke to, not to have anything to do with you.
Bob I find this all very difficult to comprehend. I have yet to discover the reason why I was given this warning and have yet to discover what, if any, law you may have broken! I can only conclude from all my investigations and inquiries, that this warning is part of wider campaign of victimization that exists in the Northern Territory against you and in my opinion is totally unfounded, unjust and unfair.
I am willing to concede that your rather robust personality may have offended a few people along the way, but in my humble opinion, this is no excuse or cause, for the unfair treatment that you have been subjected to. Normally I would have been inclined to dismiss this warning as irrelevant to my personal business decisions but in this case I cannot do so.
If you, as a bona fide Australian citizen can be discriminated against in this way and as a result have your business all but destroyed, then how much more vulnerable will I be, as an immigrant without Australian citizenship to protect me? As you know, I have just left Zimbabwe where I have been faced with a situation where my native country has collapsed into total anarchy and lawlessness. There is no legal, constitutional or other recourse to injustices in that country anymore – I am certainly in no position now after this ordeal in Africa, not to take seriously, an explicit caution not to do business with you, especially considering my limited status in this great country!
2. It appears that as a direct consequence of the above-mentioned campaign against you, the value of your business has been dramatically prejudiced. When we opened discussions over two years ago, your financials, indicated a turnover of approximately $1.4 million. Last year, your turnover was down to $400,000. You had lost an important hunting concession to your business, being access to hunt banteng on Cobourg Peninsular which has undoubtedly hurt your business and reduced your operations.
3. Also, as a result of the above-mentioned losses, incurred in the last few years, it appears to me after inspection of the company movable assets, that the vehicles and equipment have deteriorated and some are in need of replacement. This has had the effect of decreasing the value of your saleable assets.
4. I am concerned that all this negative publicity that you have suffered has affected your overseas reputation, which is part of the "goodwill" that I would be buying. Hopefully, the fact that you have been successfully operating in the hunting industry for over 20 years, will nullify a lot of this nonsense, but it is still a factor for me to consider.
However, I formed a poor impression of the reliability of Mr Gifford as a witness. He gave evidence initially that he did not proceed with the purchase because he was warned by senior officials in the Northern Territory Tourist Commission not to have anything to do with Mr Penfold. He said also that he could not remember their names. That evidence was later demonstrated to be a bald-faced lie. Later, when he said he could remember some of the names, he said he did not want to reveal them out of fear it would prejudice him in some way. Later he changed his mind about not revealing names and a supplementary statement, P59, was filed in which he named Pauline Rayner and Bill Binns, both of whom he claimed warned him to stay away from
Mr Penfold. Mr Gifford was then recalled. When cross-examined about whether he had had a conversation with anyone which led him to change his mind about disclosing the names of persons he had spoken to who provided the alleged warning, he at first said he couldn't recall; later he said he had discussed it with his wife and family; eventually he admitted discussing the matter with Mr Penfold after he had finished his evidence when first called. Plainly, this evidence he gave about not recalling to whom he had spoken which led him to change his mind, was also a lie. The evidence he gave about the warnings given by Ms Rayner and Mr Binns was vague and contradicted by both Ms Rayner and Mr Binns, whose evidence I prefer.
Finally, Mr Gifford conceded in cross-examination that he truly stated the reasons for not pursuing the sale in the e-mail of 21 June 2000, ie. without secure contracts in place, he could not raise the finance to purchase the business.
Hunt Australia – General damages
Nevertheless, I am satisfied that the plaintiff company is entitled to general damages for loss of goodwill, lost economic opportunity and loss of business: see the authorities cited in para [145] above. Hunt Australia, being a limited company, is not entitled to damages for hurt to feelings. To the extent that the libel refers to Mr Penfold personally and not to Hunt Australia, I consider that Mr Penfold and Hunt Australia are so closely linked that they are identified as one and the same and any reflections on Mr Penfold reflect on Hunt Australia and vice versa: see the discussion in Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris [2000] FCA 1690 at paras 37-41, per Spender, Drummond and Kiefel JJ.
I have already found that the libel was not confined to one or two people, or even to the Northern Territory Tourist Commission, but included two Ministers and extended widely through the NLC and its traditional owners. I find that the damage to Hunt Australia's business reputation was severe; it was published initially to the Director of the NLC, an important official of that organisation, and resulted in a virtual ban on the plaintiffs' company operating in Arnhem Land through the offices of the NLC. It brought about the end of any hope of gaining a concession in the McKay Hills area. In the result, Hunt Australia had to operate through Wimray Safaris and this affected its profitability. The damage lasted from December 1994 and is on going. It precluded Hunt Australia from ever obtaining a written concession through the NLC as it had enjoyed in the past. It affected the value of the company's goodwill in the marketplace. The company's loss of reputation with the Ministers and with the Northern Territory Tourist Commission must have had a negative impact on its ability to gain any support from those sources. However, Hunt Australia still enjoyed a good reputation in the United States and any loss of reputation or financial loss in Europe was either not proven or too remote.
As to the apology, the plaintiffs complain that it was too late. There is no evidence that the NLC has, since the apology, changed its position in any way so far as the plaintiffs are concerned. The apology was made in open court when representatives of the media were present. It is likely to have been given some media attention. Nevertheless, I doubt if the apology will have had much effect upon those in the local tourist industry or in the NLC since it was given, although I expect it must have had some, albeit minor, effect. The apology was so late and the damage so long lasting and continuous in its effects, that I consider that the damage is mitigated by the apology only by a very minor degree.
As to aggravated damages, these are usually awarded only in respect of injury to feelings, although exceptionally, they can be awarded where the aggravating conduct caused further reputational damage: see Gillooly, op.cit., p 283. The findings I have made warrant an award of aggravated damages to Hunt Australia, given that Mr Higgins continued, over a lengthy period of time, to repeat the allegations both to traditional owners and to other officers within the NLC; see Sutcliffe v Pressdram [1991] 1 QB 153 at 169-70; 185: para [ 127] above; and Exts P15 and P40. In all the circumstances, I award Hunt Australia the sum of $400,000 by way of general damages. In arriving at that figure, I have taken into account the evidence of Mr South that any loss of income to Hunt Australia resulted in the company incurring a loss of profit because the company would not have needed to make any further outlays in order to have earned the income. I consider that whilst this is to some degree supported by the evidence, there would inevitably have been some further outlays or expenses incurred. To the extent that additional customers may have joined existing hunts, there must have been, at the very least, additional costs to Hunt Australia in food and other consumables, for example, and I have borne that in mind in my overall assessment. To the extent that additional hunters would have required more hunts, there must have been additional expenses involving the employment of guides, fuel, wear and tear on assets used and the like.
Mitigation of Damages
The defendants have proved that Hunt Australia recovered the sum of $20,000 damages in the Federal Court action. They claim that that award may be taken into account in mitigation of Hunt Australia's damages, relying on s 10 of the Defamation Act which provides:
At the trial of an action for defamation the defendant may give in evidence in mitigation of damages that the plaintiff has already recovered or has brought an action for damages or has received or agreed to receive compensation, in respect of a defamation to the same purport or effect as the defamation for which the action has been brought.
Hunt Australia denies that the compensation recovered in the Federal Court proceedings was "in respect of a defamation to the same purport and effect."
In the Federal Court action, Hunt Australia pleaded that the facsimile sent to the Minister of 2 December 1994 (referred to in the pleadings as "Davidson's first letter") was defamatory. The following meanings were pleaded in para 7 of the Amended Statement of Claim:
In its natural and ordinary meaning Davidson's first letter is defamatory of the applicant and means and was understood to mean that:
7.1the applicant was operated by a liar whose lies were destructive of the Northern Territory tourism industry;
7.2the applicant was not a legal, respected, safari operator in the Northern Territory.
O'Loughlin J found that the imputation conveyed was substantially as alleged in para 7.1, but his Honour rejected the submission of the plaintiffs that the imputation contained in para 7.2 was conveyed: see paras 17-120 of his Honour's judgment. The question is whether the imputation thus found to have been conveyed, was an imputation "to the same purport and effect" as any of the imputations conveyed by the briefing notes.
In Thompson v Australian Capital Television Pty Ltd and Others (1997)
129 ACTR 14 at 24, Miles CJ said, in respect of a similarly worded provision in the Defamation (Amendment) Act (ACT):
As far as I am aware, this is the first time that this court has had to consider the effect of those provisions. They are similar, if not identical, to s 48 of the New South Wales legislation which has been considered in the context of trial by jury in Uren v John Fairfax & Sons Pty Ltd (1956) 66 SR (NSW) 223. All that can be gleaned, with respect, is that the section is to be applied in a broad way with the object of preventing a plaintiff from receiving double compensation and while requiring the defendant to answer fully in damages to the extent that its publication has brought about damage to reputation, to restrict those damages to the injury caused by the publication by the defendant sued upon by the plaintiff.
Be that as it may, the question of whether or not the imputation conveyed by the unsuccessful defendants in the Federal Court action is to the same purport and effect as any of the imputations in these proceedings is a question of fact. I do not consider that the section is confined to damages for hurt to feelings: see Mirror Newspapers v Jools (1985) 5 FCR 507. I am unable to find any precise correlation between the imputations. To say of someone that they "promulgated disinformation" is tantamount to calling him a liar. The word "disinformation" is defined by the MacQuarie Dictionary (3rd Edn) as meaning "misleading information supplied intentionally, as in counter-espionage". To say that the disinformation gives a bad name to the Northern Territory hunting industry is very close to alleging that a person's lies had an adverse effect on the safari hunting industry in the Northern Territory. I find that the defamation for which the plaintiff Hunt Australia received an award of compensation in the Federal Court of Australia is "to the same purport and effect" as to at least part of the one of the imputations conveyed by the briefing notes. Consistently with the object of s 10, which is to reverse the old common law rule that allowed plaintiffs to in effect make a double recovery for the same damage, I consider that the defendants are entitled to the benefit of s 10 of the Defamation Act. The award to Hunt Australia will be reduced accordingly.
Award of damages to Mr Penfold
Mr Penfold gave evidence as to the injury to his feelings when he first read the briefing notes. He said that when he first read them, his reaction was one of disbelief and shock. He felt sick and completely devastated. He imagined what others in the NLC and the Northern Territory Tourist Commission would think when they read that of him. He felt outraged and physically ill for several days afterwards. Mr Penfold is obviously still feeling the hurt to his feelings. He was clearly visibly upset when giving his evidence in the witness box on this topic.
The imputations are of a very serious nature concerning a man in his professional capacity. I have already dealt with the extent of the publication and have found that Mr Penfold is entitled to aggravated damages for the injury to his feelings and for his loss of reputation. The injury to his feelings has lasted since 1997, although the loss to his reputation has been suffered since the end of 1994. I award to him the sum of $80,000 general damages. In arriving at this sum, I have reminded myself that the sum awarded must be a sufficient vindication to Mr Penfold and of what fell from the High Court of Australia in Carson v John Fairfax & Sons Ltd (1992-1993) 178 CLR 44 of the relevance of general damages awards in personal injury actions. I have taken into account also the findings I have already made concerning the apology given by the defendant.
Interest
Section 84(1) of the Supreme Court Act permits the Court to award interest to the plaintiffs, calculated from the date the cause of action arose until judgment. For the purposes of the calculations, I accept the submission of counsel for the plaintiffs that non-economic loss should bear interest calculated at the rate of 4%, and that economic loss should bear interest calculated at commercial rates.
As to the award to Mr Penfold personally, a component of the award is for hurt to feelings which runs from November 1997 when he first became aware of the libel and the remainder will run from the date of publication of the tort. I propose for the purposes of this calculation, to indicate that the sum awarded for hurt to feelings is $40,000. Accordingly, interest is awarded on that sum in the amount of $8,000 and on the balance in the amount of $12,800, making a total of $20,800 as follows:
$40,000 @ 4% x 5 years = $ 8,000
$40,000 @ 4% x 8 years = 12,800
$20,800Accordingly, there will be judgment for the plaintiff Robert Penfold against both defendants in the sum of $100,800. I see no reason to further subdivide the award for aggravated damages in order to calculate the interest, the divisions in any event being somewhat arbitrary and approximate.
As to the plaintiff Hunt Australia Pty Ltd, the major part of the award is for economic loss as part of the general damages awarded. I indicate that for the purposes of the calculation of interest, of the total sum of $400,000 the sum of $360,000 has been awarded for economic loss, the balance for loss of reputation. The plaintiff Hunt Australia Pty Ltd recovered judgment against Davidson's Arnhemland Safaris Pty Ltd and Philippa Davidson on
24 February 1999. However, no interest was awarded on that sum by the Federal Court; therefore, I propose to award interest on the full sum of $400,000 up to that date, but only on $380,000 thereafter. The $20,000 will be treated as having reduced Hunt Australia's award for economic loss.
Counsel for the plaintiffs has suggested that I allow interest on the non-economic loss at 4% and on the economic loss at 10%, less 50%, as the economic loss accrued over time. Commercial rates are presently much lower than 10%, but given that I am dealing with a period extending back to late 1994 when commercial rates were quite high, I accept the plaintiffs' suggestion. No contrary submission was made by counsel for the defendants. Interest in the sum of $153,050 is therefore awarded as follows:
4.25 years @ 4% x $40,000 = $ 6,800
4.25 years @ 5% x $360,000 = 76,5003.75 years @ 4% x $40,000 = 6,000
3.75 years @ 5% x $340,000 = 63,750
$153,050Accordingly, there will be judgment for the plaintiff Hunt Australia against the defendants in the sum of $533,050.
I will hear the parties as to costs.
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