Redford v Nationwide News Pty Ltd & Abraham No. DCCIV-99-199

REDFORD v NATIONWIDE NEWS PTY LTD AND ABRAHAM

[2000] SADC 155

Judge Robertson
Civil

The Nature of the Proceedings

The Plaintiff is a Liberal Member of Parliament. Since December 1993 he has been a member of the Legislative Council, the Upper House of the South Australian Parliament. He is also a legal practitioner. He seeks damages for defamation in relation to an Article appearing in “The Australian” newspaper published on Friday 12 February 1999 and a further Article published in “The Australian” on Saturday 13 February 1999. The First Defendant is the publisher of “The Australian”, a newspaper distributed throughout Australia, including the State of South Australia. It has a wide readership.The Second Defendant (sometimes called “Mr Abraham”) was, at the time of the respective publications, employed as a journalist by the First Defendant. He was the author of the two articles, the subject of these proceedings
At the commencement of the trial, the Plaintiff’s wife, Mary Ann Stenberg was also seeking damages with respect to the Article in the publication of 12 February 1999. However, shortly after the proceedings commenced she discontinued her action against both Defendants.
With respect to the article published in “The Australian” on 12 February 1999 (sometimes called “the First Article”), the Plaintiff pleads that a passage in that Article carried the imputation that he encouraged Edith Pringle to commit perjury. The Defendants deny that the particular words carried such an imputation. Furthermore, the Defendants plead that if the words carried such an imputation then it was a fair and accurate report of Parliamentary proceedings. Accordingly the Defendants plead that pursuant to Section 7 of the Wrongs Act 1936 (as amended) (“the Wrongs Act”) and at common law the publication complained of occurred on an occasion of qualified privilege. In addition, the Defendants plead a further defence, namely, that the publication occurred on an occasion of qualified privilege in that the Article involved a discussion of government and political matters.
With respect to the Article published in “The Australian” on Saturday 13 February 1999 (sometimes called “the Second Article”), the Plaintiff pleads that the words carried the defamatory imputations:-
·.. that the Plaintiff improperly obtained another person’s private medical records.
·.. that he lied to cover up such improper conduct.

Additionally, during the Trial, the Plaintiff claimed that the impugned words in the Article carried the imputation that the Plaintiff was lying as to the source of the records. The Defendants have denied that the words carried the defamatory imputations alleged. With respect to this Article the Defendants have also pleaded that if the words in the Article carried a defamatory imputation, then it was made on an occasion of qualified privilege being in the course of a discussion of government and political matters. In addition, the Defendants plead that if the words carried a defamatory imputation then they consisted of fair comment made in good faith on matters of public interest.

Finally, the Plaintiff claims that both publications were actuated by malice and that as a result, the defences of the fair and accurate report qualified privilege and “the government and political” qualified privilege with respect to the First Article and qualified privilege and fair comment with respect to the Second Article, are defeated.

Background to the Publications

In May 1998, the Plaintiff learnt that allegations of domestic violence had been levelled at Ralph Clarke (“Mr Clarke”), a Labour Member of the House of Assembly of the Lower House of the South Australian Parliament, by Edith Pringle (sometimes called “Ms Pringle”), a woman with whom Mr Clarke had a personal relationship. The Plaintiff knew both Mr Clarke and Edith Pringle. His wife, Mary Ann Stenberg, was friendly with Ms Pringle. As a result of that friendship, the Plaintiff had developed a friendly relationship with Mr Clarke. He and his wife mixed socially on occasions with Mr Clarke and Ms Pringle.
On the morning of Saturday 16 May the Plaintiff received a telephone call from his wife, Ms Stenberg. It was earlier in that week that he had learnt of the allegations against Mr Clarke. On the Saturday morning he was out watching his son play football when he received the telephone call. Ms Stenberg told him during the telephone conversation that she had received a telephone call from Edith Pringle in which Ms Pringle sounded distressed and she had informed Ms Stenberg that she had been sleeping on the floor of some office for the previous two to three nights. Ms Stenberg told the Plaintiff that she had agreed to Ms Pringle’s request that she come over to their house.
Following the Plaintiff receiving the telephone call from Ms Stenberg he arranged for a woman with whom he was acquainted to consult with Ms Stenberg or Ms Pringle regarding Ms Pringle’s immediate needs. Apparently this occurred. As a result, arrangements were made for Ms Stenberg’s general medical practitioner to see Edith Pringle at the Plaintiff’s home. The female acquaintance of the Plaintiff also arranged accommodation for Ms Pringle on that Saturday evening.
When the Plaintiff arrived home later in the morning, Ms Pringle was asleep in the spare room. After Ms Pringle awoke, she had a conversation with the Plaintiff. The Plaintiff said that she was in a distressed state. In view of the report of alleged domestic violence, which he had learnt about earlier in that week, the Plaintiff said that he was very careful about what he said to Ms Pringle. He was concerned about political and other problems which may arise from what was taking place at his home. During the day the general practitioner saw Ms Pringle whilst she was at the Plaintiff’s home. The Plaintiff said that Ms Pringle remained for the evening meal and afterwards he drove her and her young child to a motel where they stayed for the night.
As a result of the complaints made by Edith Pringle against Mr Clarke, three charges of Common Assault were laid by the Director of Public Prosecutions alleging Mr Clarke had assaulted Ms Pringle.
On Tuesday 9 February 1999 the Trial of Mr Clarke relating to the charges of Common Assault commenced in the District Court. The Trial continued on 10 February. On the morning of 11 February the Trial was brought to an end when the Director of Public Prosecutions entered a nolle prosequi with respect to the charges.
The conclusion of the Trial was the catalyst for a series of events which led to Mr Abraham writing the article which was published in “The Australian” on Friday 12 February. It is this Article which is the subject of the Plaintiff’s first claim for defamation.

Statements in the Houses of the South Australian Parliament

On Thursday 11 February, the Leader of the Labour Opposition in South Australia, the Honourable Mike Rann, made a speech in the House of Assembly, regarding the trial of Mr Clarke. I set out hereunder Hansard’s record of that speech:
“The Hon. M.D. RANN (Leader of the Opposition): I have long advocated that members of the public defamed or smeared under parliamentary privilege should be given the right to reply. I believe now that the same rights should be given to victims of people who have deliberately and intentionally lied under a similar privilege awarded to them by a court of law. Until now I have resisted every temptation to speak out on allegations made by Miss Edith Pringle, but today it has become clear that things Miss Pringle has said in court, and outside court, are grotesque lies. Domestic violence is a terrible crime, but it must be prosecuted competently and people must tell the truth about it in and outside court.
Miss Pringle perjured herself in court repeatedly and, in doing so, received strong support from Government people for the most malicious political motives. But let us go back a little. The morning after the member for Ross Smith was charged with assault against Miss Pringle, she phoned my office demanding to speak with me. I returned her call and she told me she was withdrawing the charges against Ralph Clarke, and she criticised me for standing Ralph down from the shadow Cabinet. She said that this would ruin him politically and financially and that losing his portfolios was too high a price to pay.
She asked me to reinstate Mr Clarke to the shadow Cabinet. I would not and did not. Miss Pringle told me on several occasions that she intended withdrawing the charges and then asked me whether I thought she was doing the right thing in doing so. I told her that was something that I was not going to do. I said, and I quote, ‘I cannot and will not ask you to drop charges because that is not my, my role. That is up to you to do. That is a decision for you to make.’
I also advised Miss Pringle to talk to a lawyer immediately. Miss Pringle has repeatedly lied about that conversation both inside and outside court and has been encouraged to do so, and that is when politics got involved. Indeed, I have grave fears that there has been political involvement in this case. The police were directed to investigate a single, unsubstantiated, unsourced allegation made in Parliament on 26 May last year by a Liberal member. That allegation related to whether or not ‘there has been any political interference with or pressure on police or others in regard to the charges against the member for Ross Smith’.
Certainly, a Liberal member of Parliament and a Liberal staff member have been persistently briefing journalists in an off the record way about this case, spreading false and defamatory information along the lines of, ‘If we get Ralph Clarke, we can get Rann.’ Lie, after lie, after lie has been told to journalists in a vicious smear campaign which has had absolutely no basis in fact and has been proven so today. Before even the defence case started the prosecution stopped the case. What does that say about the veracity of Miss Pringle?
These people were delighted in Miss Pringle’s perjury until it all came unstuck. I had been assured by the member for Ross Smith’s lawyers that, following the blatant lies told by Miss Pringle, I would be given the opportunity to tell the truth, the whole truth and nothing but the truth about the matter in court. The extraordinary collapse of this case has denied me that opportunity, and I was disappointed with the assurances I was given by Mr Clarke’s lawyers. That is why I am being forced to make this statement in Parliament today. I hope there was no political pressure for this case to be prosecuted; I hope there was no political involvement in this case; and I hope there was no attempt to encourage a witness to commit perjury in court.
If those things did occur, then it would raise grave fears about the administration of justice in this State. I will look with interest to see whether Mr Rofe, so let down by the tawdry performance of his witness and his obvious doubts today about the truthfulness of Miss Pringle’s answers and allegations which led to the collapse of the case, will now take an investigation into Miss Pringle’s actions to decide whether a court action for perjury will be prosecuted, but somehow I doubt it.”
At the time that Mr Rann made the speech, the Plaintiff was sitting in the Legislative Council. He was informed by some colleagues, in broad terms, about Mr Rann’s speech. He was then provided with what is called a Hansard “rush”, being the first printing by Hansard of the speech by Mr Rann. Having read the speech in Hansard, the Plaintiff said he thought that the only person that Mr Rann could be referring to in the speech was himself. He said he was concerned that there might be a suggestion of some sort of conspiracy. He said he was also concerned about the allegations that politicians had been persistently briefing a journalist. As a result, he reached the conclusion that he should make a personal explanation in the Legislative Council. He did this a short time later. Set out hereunder is the Hansard record of the personal explanation of the Plaintiff made in the Legislative Council on 11 February 1999:
“The Hon. A.J. REDFORD: I seek leave to make a personal explanation.
Leave granted.
The Hon. A.J. REDFORD: In another place this afternoon, the Leader of the Opposition, in relation to the Ralph Clarke case, said:
Certainly, a Liberal member of Parliament and a Liberal staff member have been persistently briefing journalists in an off the record way about this case.
I have been the only Liberal member of Parliament who has been referred to by name in the legal proceedings as reported in the press. One can only assume that when this is reported the readers will assume that the Hon. Mike Rann is referring to me. As a Liberal member of Parliament, I have not been persistently briefing journalists in an off the record way about this case. I certainly will concede that I have been asked on occasions questions about the matter, particularly recently, and I have answered those questions on the basis that nothing should be said which would prejudice the fair trial of the honourable member.
I will say this: Miss Pringle turned up at my home some three days after the alleged incident. She was dishevelled; she was distressed; and she reported that she had slept on the floor of a Labor member of Parliament’s office for the three previous nights. I, with my wife, arranged for her to be fed, for her to be bathed and for her to be examined by a medical practitioner. I also arranged for her to have shelter and urged her to seek legal advice. I understand that she followed that advice. Not only am I a member of Parliament but I am also a legal practitioner, and I am acutely conscious of the importance of the administration of justice.
I have had many years of experience in dealing with those who are involved in the criminal justice system. I can assure this place and the South Australian community that I acted appropriately with propriety in dealing with this matter. I utterly reject the innuendo and the background briefing of the Hon. Michael Rann in relation to this matter. I would urge the Hon. Michael Rann to look at this issue dispassionately and carefully and not make this a political smear campaign, to deal with this very sensitive and difficult issue involving domestic violence with some sensitivity and with some principle and without resorting to his usual political grandstanding, political point scoring and political shamming.”

Publication of the First Article

Mr Abraham is a journalist. He is the author of the First Article. At the time of the publication of the Article he was employed in the Adelaide Bureau of the First Defendant with particular responsibility for covering South Australian State politics. He was an experienced political journalist having been employed previously in that capacity over a number of years. His general journalistic experience ranged over a period of approximately twenty five years up to the time of the publication.
Mr Abraham was not covering the trial of Mr Clarke for his newspaper but he had read some of the print media reports regarding the trial. During the course of Thursday 11 February he became aware of the speech made by Mr Rann in the House of Assembly. Later he contacted the office of Mr Rann and listened to a tape recording of the speech played to him over the telephone by a member of Mr Rann’s staff. He also audiotaped the tape recording of the speech as it was played to him over the telephone.
Mr Abraham said that he was uncertain whether he was in the Legislative Council when the Plaintiff made his personal explanation or whether he perused the Hansard “rush”. In any event, he became aware of the Plaintiff’s personal explanation made in the Legislative Council, in the early part of the evening of 11 February. Some time after becoming aware of the Plaintiff’s personal explanation, Mr Abraham prepared the Article which was published in “The Australian” on the following day. He said that the Article which was published was substantially the Article he prepared.
The Article appeared on page 3 of the Edition of “The Australian” published on 12 February 1999. The page of the newspaper was headed “The Nation”. The Article so published is set out hereunder:-

“MP blames lies and malice
MATTHEW ABRAHAM
o South Australian political reporter
STATE Opposition Leader Mike Rann yesterday accused South Australian Liberals of encouraging the woman at the centre of the Ralph Clarke domestic assault trial to commit perjury for the ‘most malicious political motives’.
The Rann attack drew an admission from Liberal backbencher Angus Redford that he and his wife, Maryann Stenberg, a staffer with Liberal senator Grant Chapman, had fed, bathed and arranged medical help for Mr Clarke’s ex‑girlfriend, Edith Pringle, three days after the alleged assault.
‘She was dishevelled, she was distressed and she reported that she had slept on the floor of a Labor MP’s office for the three previous nights,’ Mr Redford, a prominent supporter of Premier John Olsen, told Parliament.
Earlier, Mr Rann had delivered a broadside at Ms Pringle, saying she had told blatant lies and perjured herself.
‘Ms Pringle perjured herself in court repeatedly and, in doing so, received strong support from government people for the most malicious political motives,’ Mr Rann said.
He criticised the State’s Director of Public Prosecution, Paul Rofe, Q.C, and Mr Clarke’s legal team.
The attack followed Mr Rofe’s decision to drop all domestic assault charges against Mr Clarke, the former deputy Opposition leader, after two days in court.
‘Domestic violence is a terrible crime, but it must be prosecuted competently and people must tell the truth about it, in and outside the court,’ Mr Rann said.
In South Australia’s increasingly poisonous political climate, the Ralph Clarke case was touted by Liberals to journalists as the antidote to Mr Rann’s ‘liar‑liar’ defamation case against Mr Olsen.
A senior Liberal source said yesterday some of the confidential reports that were going to be presented to court had been ‘used and available’ to Liberal MPs, and ministers had been briefed on the evidence.
But the Clarke case has also reached into the factional divides within the State ALP, particularly the minority Duncan Left faction that had engaged in skirmishes with Mr Clarke, from the now defunct Centre Left faction.
One Left factional source said they had been flabbergasted by Mr Rann’s attack on Ms Pringle. ‘Who’d be Edith for all the money in the world?’ the source asked.
On Tuesday, Ms Pringle told the court Mr Rann had tried to talk her into dropping the charges against Mr Clarke.
Mr Rann told Parliament yesterday it had become clear ‘things Ms Pringle has said inside and outside court are grotesque lies’.
He said the morning after Mr Clarke had been charged, Ms Pringle had phoned, demanding to speak to Mr Rann. When he returned her call, she had criticised him for standing Mr Clarke down.
Ms Pringle had said she was withdrawing the charges and asked if she was doing the right thing. “I said ‘I cannot and will not ask you to drop charges because that is not my role’," Mr Rann told parliament.”

The Imputation Alleged by the Plaintiff Arising from the 12 February Article

It is the Plaintiff’s case that the natural and ordinary meaning of the words contained in the first three paragraphs of the First Article carried the imputation that the Plaintiff encouraged Edith Pringle to commit perjury. There were other imputations alleged in the Statement of Claim but in the end the Plaintiff relied on the imputation to which I have referred. For convenience I repeat the first three paragraphs of the Article:-
“STATE Opposition Leader Mike Rann yesterday accused South Australian Liberals of encouraging the woman at the centre of the Ralph Clarke domestic assault trial to commit perjury for the ‘most malicious political motives’.
The Rann attack drew an admission from Liberal backbencher Angus Redford that he and his wife, Maryann Stenberg, a staffer with Liberal senator Grant Chapman, had fed, bathed and arranged medical help for Mr Clarke’s ex‑girlfriend, Edith Pringle, three days after the alleged assault.
‘She was dishevelled, she was distressed and she reported that she had slept on the floor of a Labor MP’s office for the three previous nights,’ Mr Redford, a prominent supporter of Premier John Olsen, told Parliament.”

The Relevant Legal Principles

The principles to be applied in considering alleged defamatory matter contained in a newspaper article were conveniently summarised by Hunt J in Farquhar v Bottom (1980) 2 NSWLR 380 at 385-386:-
......... “In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation. . . . I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence. . . . who is neither perverse: nor morbid or suspicious of mind. . . . nor avid for scandal. . . .
This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer. . .
......... In what might be described as “newspaper” cases (of which this present case is not one), further questions may arise as to the care with which the ordinary reasonable reader would have read a sensational article, and as to the degree of analytical attention he would apply to it . . . and as to the degree of accuracy he might have expected of that article . . . The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking . . . .
The mode or manner of publication is a material fact in determining what imputation is conveyed . . . One assumes that the reader of a book would read it with more care than he would a newspaper. In both the “newspaper” and in other cases, there is also a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual. . .
Finally, it is not enough to say that, by some person or another, the matter complained of might be understood in the sense contended for by the plaintiff. What must be considered is the sense in which the ordinary reasonable reader would understand it . . . ”
[Reference to authorities have been omitted].
Further guidance is provided by the comments of Kirby J in Chakravarti v Advertiser Newspapers Ltd (1997-1998) 193 CLR 519 (at 572-573):
“The matter complained of should be considered in the way that a reasonable person, receiving it for the first time, would understand it according to its natural and ordinary meaning. The recipient has been variously described as a ‘reasonable reader’, a ‘right‑thinking [member] of society’, or an ‘ordinary man, not avid for scandal’. Sometimes qualities of understanding have been attributed, such as the ‘reader of average intelligence’. The point of these attempts to describe the notional recipient is to conjure up an idea of the kind of person who will receive the communication in question and in whose opinion the reputation of the person affected is said to be lowered. Special knowledge is excluded. So are extremes of suspicion and cynicism (on the one hand) or naivety and disbelief (on the other). The basic question which is posed is whether the matter complained of, understood in its natural and ordinary meaning, would tend to lower the subject in the estimate of such an evocation of the ordinary, reasonable, member of society. In practice, the tribunal of fact, judge or jury, will ask itself about its own response to the matter complained of. To a very large extent that response will be impressionistic, subjective and individual to the decision‑maker. The point of the invocation of the hypothetical reasonable person is to remind decision‑makers that they may, or may not, reflect the response of the average recipient of the communication and should make allowance for that possibility.”
Whilst the Plaintiff has identified the first three paragraphs as the words from which it is claimed the defamatory imputation arises, it must be remembered that such words cannot be read in isolation. The ordinary reader is taken to have read the entire Article (World Hosts Pty Ltd v Mirror Newspapers Ltd (1976) 1 NSWLR 712 at 725; Charleston v News Group Newspapers Ltd (1995) 2 AC 65).
Mr Harris Q.C., Senior Counsel for the Defendants, submitted that the ordinary reader would read the first three paragraphs and understand them to be dealing with two separate topics. He submitted that the ordinary reader would understand the matters contained in the second and third paragraphs to be self limiting. By that expression Mr Harris Q.C. explained that the reader would read the response attributed to the Plaintiff in those paragraphs to represent the extent of his involvement. Mr Harris Q.C. argued that the reader would understand the word “admission” in the second paragraph to be referrable to the Plaintiff admitting to a relationship which the ordinary reader would see as being unusual. He submitted that the ordinary reader would have a perception that politicians on opposite sides of politics would not have a personal relationship and would therefore read the paragraph as the Plaintiff admitting to a relationship across “the political divide”. By “political divide” Mr Harris Q.C. meant from opposite sides of politics. I do not accept the submissions made by Mr Harris Q.C.
In reading the Article, in my opinion the ordinary reader would be struck by the headline in large bold type: “MP blames lies and malice”. The ordinary reader would conclude that, on reading the headline, the Article would be concerned with the matters set out in the headline. The ordinary reader’s view of the headline would be immediately confirmed on reading the first paragraph of the Article. On reading the second and third paragraphs of the Article the ordinary reader would associate what was expressed in those paragraphs with the statements contained in the first paragraph. That association would arise from the opening words of the second paragraph, namely, “The Rann attack drew an admission . . .”. The reader would read the “attack” as referring to:
“. . .South Australian Liberals . . . encouraging the woman at the centre of the Ralph Clarke domestic assault trial to commit perjury for the ‘most malicious political motives’.”
The description of the Plaintiff (and Ms Stenberg) in the second paragraph brings them within the expression “South Australian Liberals” in the first paragraph. Once the ordinary reader made the association between the assertions in the first paragraph and the contents of the second and third paragraphs in the manner I have explained, then the ordinary reader would infer that the reference to “South Australian Liberals” in the first paragraph was a reference to the Plaintiff (and Ms Stenberg). There is not any reference to other South Australian Liberals.
In reading the Article the reader would have read the material in the first three paragraphs against the background of the following statement in the Article:
“In South Australia’s increasingly poisonous political climate, the Ralph Clarke case was touted by Liberals to journalists as the antidote to Mr Rann’s ‘liar-liar’ defamation case against Mr Olsen”.

The ordinary reader would have also noted the statement that the Plaintiff was “. . . a prominent supporter of Premier John Olsen”. The reader would also have read the paragraphs taking into account the reference in the Article to the domestic assault charges against Mr Clarke having been “dropped” after two days in court.

In my opinion, the ordinary reader, on having read the First Article, would have inferred that the Plaintiff (and Ms Stenberg) had encouraged Edith Pringle to commit perjury. Accordingly, I find that the impugned words carry the imputation that the Plaintiff encouraged Ms Pringle to commit perjury. It was not disputed that the Plaintiff did not in fact encourage Ms Pringle to commit perjury. In my view, the words are capable of being defamatory and are defamatory of the Plaintiff.
In reaching the conclusion that the words carried that defamatory imputation, I have also rejected a further submission of Mr Harris Q.C. that to reach that imputation requires two inferences to be drawn and that in such circumstances a publisher cannot be held liable. Mr Harris Q.C. said that the first inference that a reader would draw was the Plaintiff’s admission in paragraphs two and three was not the full extent of his involvement with Ms Pringle. In other words, that the Plaintiff’s involvement was wider than that stated in the Article. He argued that the reader would need to draw that preliminary inference before proceeding to draw the inference that the Plaintiff (and Ms Stenberg) encouraged Ms Pringle to commit perjury.
In making this submission, Mr Harris Q.C. relied on the comments on Hunt CJ in Amalgamated Television Services v Marsden (1998) Aust. Tort Reports 64,832 at pages 64,838-64,839):-
“An inference is drawn from an inference when the reader, listener or viewer draws an inference which is available in the matter complained of and then uses that inference as a basis (at least in part) from which a further inference is drawn. The publisher is held responsible for the first of those inferences but not for the second because - as I have already said - it is unreasonable for the publisher to be held so responsible. In Mirror Newspapers Ltd v Harrison, the High Court illustrated the process which leads to an inference upon an inference in the case where the matter complained of states that the plaintiff had been charged with an offence. The first inference available from that statement (for which the publisher is held responsible) is that the police believed the plaintiff to be guilty or had a ground for charging him. The second inference, which is based at least in part upon that first inference (and thus is not one for which the publisher is held responsible because it is unreasonable to do so), is that the plaintiff is in fact guilty of the offence charged. That requirement of reasonableness must apply in every case.”
In rejecting Mr Harris Q.C.’s submission I have formed the view the ordinary reasonable reader would draw the defamatory inference I have found directly from the words used in the Article. I do not accept that the inference can only be reached by the two stage inference process described by Mr Harris Q.C. The argument is premised on the basis that the reader would first associate the word “admission” with the Plaintiff’s relationship with Ms Pringle in the manner he described. I rejected that submission when dealing with the earlier imputation issue.

The Defence of Fair and Accurate Report

The Defendants have pleaded that if it was found that there was a defamatory imputation of the nature claimed by the Plaintiff then the publication occurred on an occasion of qualified privilege arising from Section 7 of the Wrongs Act 1936, (as amended), (“the Wrongs Act”) being a fair and accurate report of proceedings of Parliament. The Defendants have also pleaded that the publication complained of occurred on an occasion of qualified privilege at common law as a fair and accurate report of proceedings of Parliament.
Mr Swan, Counsel for the Plaintiff, challenged the defence of fair and accurate report at its threshold by submitting that the First Article was not a “report” for the purpose of section 7 of the Wrongs Act or at common law. He submitted that the Article purported to be a round-up of interesting events, some of which are identified as occurring in Parliament.
In Anderson v Nationwide News Pty Ltd (1970) 1 NSWR 317 Asprey JA (at 320) described a report in the following terms:
“A report is a factual recounting of an event or situation and must be distinguished from comment”.

I am prepared to adopt that formulation.

It is beyond debate that sections of the Article reports on the speech made by Mr Rann in the House of Assembly. Further, the Article reports on part of what was said by the Plaintiff in his personal explanation in the Legislative Council. It is true that other sections of the Article deal with items which were not directly associated with anything said by either Mr Rann or the Plaintiff in Parliament. Clearly, those sections of the Article can never attract the “fair and accurate report” qualified privilege defence (Chakravarti v Advertiser Newspapers Limited(1998) 193 CLR 519 per Kirby J at 587). However, it seems to me that when a newspaper article does contain a report of Parliamentary proceedings the correct approach is to determine whether that section or sections of the article which reports on Parliamentary proceedings is a fair and accurate report of those proceedings. In other words, the report consists of those sections of the Article which report on the Parliamentary proceedings. It is not a case of weighing up the contents of the newspaper article as a whole and determining whether the article is a “report”. As I said, the focus should be on that section or sections of the article which purport to report on Parliamentary proceedings to determine whether it is a fair and accurate report. However, if I am wrong in this approach and a “weighing up” process is required then I remain of the view that the Article is a “report” for the purpose of Section 7 and at common law.
For qualified privilege to arise either under the Wrongs Act or at common law the report must be fair as well as accurate. In ChakravartiGaudron and Gummow JJ (at 540) said in relation to the question of whether a report is accurate:
“It is well settled that to be fair and accurate, a report need not be a complete report of the proceedings in question. Nor need it be accurate in every respect. It must, however, be substantially accurate. And the question whether it is substantially accurate is a question of fact”.
In Waterhouse v Broadcasting Station 2GB Pty Ltd(1985) 1 NSWLR 58 Hunt J (at page 63) expressed the test for determining whether a report is fair and accurate in the following manner:
“The issue will be whether the report of which the plaintiff complains substantially altered the impression which the reader would have received if he had been in court; if there is in the report a substantial misrepresentation of a material fact prejudicial to the plaintiff’s reputation, the matter complained of is not a fair protected report: Thom v Associated Newspapers Ltd (at 380; 393). A fair report is a substantially accurate summary of the proceedings, neither more nor less. The question is not whether it is fair or unfair to any particular person; the question is whether it substantially records what was said and done. . . .”.

In that case the issue involved the report of court proceedings. However, the comments are equally applicable to Parliamentary proceedings.

Further guidance is also gained by the comments of Herron CJ and Ferguson J in Thom v Associated Newspapers (1964) 64 SR (NSW) 376 (at 380):-
“There can be no doubt that a fair summary of court proceedings published in good faith for the information of the public has the protection of s.14(1)(d). The report need not be verbatim, but to be privileged it must accurately express what took place. Errors may occur; but if they are such as not substantially to alter the impression that the reader would have received had he been present at the trial, the protection is not lost. If, however, there is a substantial misrepresentation of a material fact prejudicial to the plaintiff’s reputation, the report must be regarded as unfair and the jury should be so directed.”

These observations were cited with approval in Chakravarti (at 526).

Finally, a most helpful summary of the relevant principles is provided by Batt J in Bruton v Estate Agents Licensing Authority (1996) 2 VR 274 at 309:
“The concept of fairness and accuracy is a composite one, for fairness here includes the requirement of accuracy: Allen v John Fairfax & Sons Ltd [1971] 1 NSWLR 773 at 780. Fairness denotes a fair presentation of what took place as it impressed the hearers, not fairness in the abstract between the plaintiff and those attacking the plaintiff: Cook v Alexander [1974] 1 QB 279 at 289. Although a fair report of proceedings does not require to be a verbatim account of them but may be a fair abstract or summary of them, it must in its reduction of the account of the proceedings retain substantial accuracy in all material respects: Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 320-1; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 62-63. The question is not whether the report is fair or unfair to any particular person, but whether it substantially records what was said and done: Waterhouse at 63. In particular the requirement of fairness may be defeated by the omission of relevant material: Thompson v Truth and Sportsman Ltd (No. 4) (1933) 34 SR (New South Wales) 21 at 23.”
In my opinion the report of the Parliamentary proceedings contained in the First Article was not fair and accurate. The report in the Article would substantially alter the impression a reader would have received if he or she had been sitting in each House of Parliament when the speech of Mr Rann and the personal explanation of the Plaintiff were delivered. If the reader had been sitting in the House of Assembly at the time of Mr Rann’s speech the reader would not have gathered that Mr Rann was suggesting that the Plaintiff (and Ms Stenberg) encouraged Ms Pringle to commit perjury. If the reader had shortly after been sitting in the Legislative Council the reader would not have concluded from hearing both the speech of Mr Rann and the personal explanation of the Plaintiff that Mr Rann was accusing the Plaintiff (and Ms Stenberg), of having encouraged Ms Pringle to commit perjury.
Furthermore, the reader sitting in the House of Assembly would have heard Mr Rann state that Ms Pringle perjured herself and received strong support from “government people”. This would have come as a surprise to the reader who had read the Article because the Article stated that Mr Rann accused South Australian Liberals of encouraging Ms Pringle to commit perjury.
The reader would also have been surprised to learn, if the reader had been sitting in the Legislative Council, that the Plaintiff indicated that he was making a personal explanation in response to the statement by Mr Rann in the House of Assembly that:
“Certainly, a Liberal member of Parliament and a Liberal staff member have been persistently briefing journalists in an off the record way about this case . .”

The reader would have been surprised because he or she would have understood from the Article, and in particular the first three paragraphs, that in the Plaintiff’s personal explanation his reference to his association with Edith Pringle arose as a result of Mr Rann’s “attack”, accusing South Australian Liberals of encouraging Ms Pringle to commit perjury.

In my opinion, all of those matters to which I have referred lead to the conclusion that the report in the Article was not fair and accurate. The report would substantially alter the impression which the reader would have received if he or she had been sitting in Parliament. Even if each of those matters stood alone I would have reached the same conclusion. Furthermore, the failure to refer to the reason expressed by the Plaintiff in the Legislative Council for making his personal explanation is another factor which leads me to the view that the report was not fair and accurate. Relevant material has been omitted. (Thompson v Truth and Sportsman Limited (No. 4) (1933) 34 SR (NSW) 21 at 23; Bruton at 309).
It follows from what I have said that the defence of qualified privilege either under Section 7 of the Wrongs Act or at common law fails. As a result of my conclusion it is unnecessary for me to deal in any detail with the submissions on behalf of the Plaintiff that the publication was not of public concern and was not for the public benefit. However, I should indicate that I agree with Sulan DCJ in Moriarty & Wortley v Advertiser Newspapers Ltd (1998) 198 LSJS 31 (at 47) that a report of proceedings in Parliament is a matter of public concern and of public benefit.

Qualified Privilege Arising From Discussion on Government and Political Matters

I now turn to the defence that the publication was made on an occasion of qualified privilege in that the Article concerned government and political matters. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the High Court declared that the defence of qualified privilege was available to publications disseminated to a wide audience where the publication concerned government and political matters. The defence of qualified privilege in those circumstances was described by the High Court in Lange in the following terms (at 571):
“Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter.”
Whilst extending the categories of qualified privilege, the High Court in Lange stated that such a defence was only available where the publisher of the defamatory matter could establish that in publishing the material its conduct was reasonable. I will come to this latter point shortly, as the first question to be determined is whether the First Article concerned government and political matters.
Assistance is gained regarding the meaning of “government and political matters” from the judgment of Mason CJ and Toohey and Gaudron JJ in Theophanous v The Herald and Weekly Times Limited(1993-94) 182 CLR 104 at 124:
“For present purposes, it is sufficient to say that “political discussion” includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, eg., trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices. Barendt states that:
......... “‘political speech’ refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.”
It was this idea which Mason CJ endeavoured to capture when, in Australian Capital Television, he referred to “public affairs” as a subject protected by the freedom.
A similar view has been advocated by Alexander Meiklejohn. He says freedom of speech:
......... “is assured only to speech which bears, directly or indirectly, upon issues with which voters have to deal - only, therefore, to the consideration of matters of public interest. Private speech, or private interest in speech, on the other hand, has no claim whatsoever to the protection of the First Amendment’.”
Mr Swan, counsel for the Plaintiff, conceded that the Article concerned government and political matters. In my opinion he was correct in making that concession. The First Article is concerned with government and political matters. It involves comments by Mr Rann, the Leader of the Opposition, regarding matters which arose in the trial of Mr Clarke, a Member of Parliament. Furthermore, it includes comments by Mr Rann, in Parliament, regarding evidence given by Ms Pringle in Court concerning his involvement with the Clarke prosecution prior to it coming to trial. The publication also refers to the statement of the Plaintiff in the Legislative Council regarding his association with Ms Pringle shortly after an alleged incident which was the subject of one of the charges laid against Mr Clarke. These references are but some of a number of matters referred to in the Article which demonstrate that it concerns government and political matters.
As I stated earlier, for the occasion to be one of qualified privilege the Defendants must establish that their conduct in publishing the material was reasonable. In Lange (at 573) the High Court explained the role of reasonable conduct in the following terms:
“Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. . . . Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.”
The Court went on to consider the concept of reasonable conduct and laid down specific tests relevant to the determination of whether a publisher’s conduct was reasonable. At page 573 the High Court said:
“Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.”
Mr Harris Q.C. submitted that the tests set out in Lange for determining whether the making of the publication was reasonable cannot be applied literally in every case. He said that when the Court laid down those tests for reasonable conduct it had in mind, particularly, a publication by a defendant where it “owned the truth” of a revelation made. Mr Harris Q.C. said that he meant by the expression “owned the truth”, that a course of investigative journalism had been undertaken by the publisher preceding the publication and in the publication a revelation or revelations were made which were the subject of the alleged defamation. He submitted that this case was entirely different in that the Defendants have merely published comments made on the public record. The thrust of the submission by Mr Harris Q.C. was that the tests laid out in Lange are not relevant in the present circumstances.
It was Mr Harris Q.C.’s further submission that it would be sufficient for the Defendants to establish that “in a general sense” the Defendants acted reasonably in publishing the report. As a result, Mr Harris Q.C. argued, in the present circumstances, all that is required for the Defendants to satisfy the reasonable conduct test is to establish that Mr Abraham believed what he had written was accurate and that it was derived in fact from what was said in Parliament.
Before I turn to consider those submissions I need to consider the evidence of Mr Abraham regarding the writing of the Article and its subsequent publication.
In his evidence Mr Abraham said he believed that when he wrote the First Article it was a fair and accurate report of the proceedings in both the House of Assembly and the Legislative Council. He also said that at the time he lodged the Article he did not believe that it conveyed any suggestion that the Plaintiff encouraged Ms Pringle to commit perjury. Mr Abraham said he did not believe the Plaintiff had encouraged Ms Pringle to commit perjury. He further said that what the Plaintiff said in the Legislative Council was newsworthy, because it indicated a relationship between the Plaintiff and Ms Stenberg on the one hand, and Mr Clarke and Ms Pringle on the other. He said this relationship between persons on opposite sides of politics shone a light on aspects of politics that the general public does not see. He said that although the main focus of his story was the comments made by Mr Rann in the House of Assembly, a further part of the story was the revelation by the Plaintiff of a family relationship with Ms Pringle. Mr Abraham also said that he did not attempt to contact the Plaintiff before submitting the Article because he considered Mr Rann and the Plaintiff had each made self contained statements and he was simply reporting those statements.
Mr Abraham said that having written the Article, he transmitted it for publication. He said that the Article was published substantially in the same form he had submitted it. There was no evidence from the Second Defendant relating to what occurred following receipt of the Article from Mr Abraham.
I accept Mr Abraham’s evidence that he believed the Article to be a fair and accurate report of proceedings in Parliament although, as my findings indicate, that belief was misplaced. I also accept that he did not believe that the Article suggested the Plaintiff had encouraged Ms Pringle to commit perjury. Furthermore, I also accept his evidence that the reason he did not approach the Plaintiff before the Article was published was because of his belief that Mr Rann and the Plaintiff had each made self contained statements and he was reporting them.
Having referred to some of the evidence given by Mr Abraham this is a convenient time to pause and give my views regarding the evidence of the Plaintiff and Mr Abraham. The only other witnesses who gave evidence were the then Senator Quirke and Mr Phillip Scales. They gave evidence with respect to the Plaintiff’s reputation. I will deal with their evidence later.
Before commenting on the evidence of the Plaintiff and Mr Abraham I should say that this was not a case where the evidence of each met head on and so required me to resolve conflicts between the evidence given by each of them.
I found the Plaintiff to be a frank and reliable witness. At times he tended to want to argue his case but I did not feel that it in any way detracted from his reliability. With respect to Mr Abraham there were odd memory lapses but, apart from one particular part of his evidence which I refer to later, I felt I could rely upon his evidence for the most part. At times he appeared to be somewhat defensive in answering questions but again, I did not see that as affecting his reliability in any real sense.
I now return to consider the submissions by Mr Harris Q.C. regarding the application of the tests laid down in Lange relevant to the determination reasonable conduct on the part of the publisher.
It was Mr Harris Q.C.’s submission that the High Court in formulating the tests or criteria in Lange had in mind circumstances where the publisher “owned the truth” of what was contained in the publication. Whilst Mr Harris Q.C. did not specifically submit that the tests should only apply in those circumstances, that would seem to be the natural conclusion to the submission. The second part of the submission, which is a corollary of the first, was that because all that was being published here were comments by the Plaintiff made on the public record those tests can have no application. He said this was an entirely different case.
I should state immediately that I do not accept that all the Defendants published were comments by the Plaintiff on the public record. The Defendants published much more than that. However, for reasons which will become clear shortly, it is unnecessary to pursue this point any further.
I have some difficulty in accepting that the Lange tests must be confined to “own the truth” publications. There is nothing in Lange to suggest that the High Court intended to so confine them. The passage of the judgment relating to the tests to be applied, which I quoted earlier, refers to the tests applying as a “general rule”. Having said that, I acknowledge the Lange tests do not appear to sit entirely comfortably alongside circumstances where the publisher was not aware of the defamatory imputation and therefore did not intend to publish material carrying a defamatory imputation. I note that in Brander v Ryan and Messenger Press Newspapers (2000) SASC 2 Wicks J (at page 13) expressed the opinion that the High Court in Lange left the door open for substitute tests or criteria where the circumstances of the case require it.
The submission by Mr Harris Q.C. raises difficult issues. However, I do not propose to resolve them as I am content to reach my decision without reference to the specific tests in Lange.
I mentioned earlier that it was the Defendants’ submission that to satisfy the reasonableness test in Lange they only need to establish two facts. First, that Mr Abraham, the author of the Article, believed that what he had written was accurate. Secondly, that what Mr Abraham wrote was derived from what was said in Parliament.
Mr Harris Q.C. submitted that the reasonableness test in Lange looks to the conduct of the journalist in the publication of the article and that the factors in this submission are consistent with that principle. By way of preliminary comment I must say that if by that submission Mr Harris Q.C. meant to say that the focus of the reasonableness test remains solely on the conduct of the journalist, then I cannot agree with him. The conduct of the journalist would clearly be a factor. However, the conduct of the publisher would also need to be considered.
I do not accept the submission that all that is required is for the Defendants to establish the two factors identified by Mr Harris Q.C. In formulating the “reasonableness” test in Lange the High Court indicated (at 572) that whilst honesty of purpose in the publisher was appropriate protection of a person’s reputation where the qualified privilege applied to a limited publication, it was not appropriate where the publication reached a large audience. It was because the potential damage to an individual was so much greater where the publication was to a large audience that the High Court accepted that there needed to be a requirement of reasonableness which went beyond honesty of purpose (Lange 572-573). The factors identified by Mr Harris Q.C. are, in essence, an honesty of purpose test. It seems to me that if there are to be substitute tests of reasonableness for those laid down in Lange then they should extend beyond the honesty of purpose test which applies where the publication is limited.
Apart from that matter there is a further reason why I am not prepared to accept the submission. Underlying the submission is the proposition that what was reported does not need be a fair and accurate report as that expression is understood for the purpose of qualified privilege pursuant to Section 7 of the Wrongs Act or at common law. In my opinion, this produces an entirely perverse result. A publisher could fail in its defence of qualified privilege of fair and accurate report pursuant to Section 7 and at common law by failing to produce a fair and accurate report but satisfy the reasonableness test and “the government and political matters” qualified privilege. In my view that would not produce a perverse result but it is also illogical.
It was argued by Mr Harris Q.C. that a finding that the report of Parliamentary procedure was not a fair and accurate report does not act as a barrier to finding that the Defendants’ conduct was reasonable in publishing the impugned material. I am afraid I cannot agree with that submission. In my view, the making of the publication by the Defendants was not reasonable as the publication was not a fair and accurate report of what was said in Parliament. The fact that it was not fair and accurate contributed, at the very least, to the defamatory imputation arising from the Article. If the Article had provided a fair and accurate report of the Parliamentary proceedings then it is unlikely that the defamatory imputation would have arisen. It follows from this finding that the publication was not made on an occasion of qualified privilege relating to government and political matters. The Defence therefore fails.
I find that the First Article was not published on an occasion of qualified privilege concerning government and political matters.

Was the Publication Published with Malice?

The Plaintiff, in response to the Defendants’ pleas of qualified privilege, has pleaded that the words complained of were published with express malice. Whilst I have found that the defences of qualified privilege are not available to the Defendants, I consider that it is appropriate that I deal with the question of malice.
At common law express malice “. . .embraces ill will, spite and improper motive” (Theophanus v The Herald and Weekly Times Ltd (1993-1994) 182 CLR 104 per Mason CJ, Toohey and Gaudron JJ at 137). It is the publisher’s motive that needs to be examined. For there to be express malice the motive, or if there is more than one, the dominant motive of the publisher must be to injure the person defamed (Horrocks v Lowe (1975) AC 135 per Lord Diplock at 149). In Horrocks Lord Diplock also pointed out (at 150) that if a person publishes “. . .untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false”. Accordingly, in those circumstances the publication was made with express malice.
Mr Swan, Counsel for the Plaintiff, submitted that the evidence suggests that Mr Abraham’s motive in writing the Article and having it published was to injure the Plaintiff. In considering the submission I start from a position that I accept Mr Abraham’s evidence that on completing the Article he did not believe that the words carried the imputation alleged by the Plaintiff. Mr Swan referred me to other evidence including a radio interview of Mr Abraham on Radio 5AN on 12 February 1999. I do not propose to deal specifically with each submission made by Mr Swan, nor with the references to the evidence which he made in support of his submission. It is sufficient for me to say that nothing said by Mr Swan has persuaded me that Mr Abraham had an actual motive to injure the Plaintiff.
It was submitted in the alternative that Mr Abraham was reckless as to the truth, as that term is explained in Horrocks, in writing the Article in the manner he did. In particular, said Mr Swan, by using the words contained in the first three paragraphs of the Article, and placing the first two paragraphs in juxtaposition to each other. In dealing with this submission it is again necessary to refer to Horrocks v Lowe (supra). Lord Diplock (at page 150) in dealing with the concept of “reckless as to the truth” said:-
“Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief”. . . If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true.”

Whilst Lord Diplock was referring to “carelessness” in the context of a publisher considering the truth of what was published, the principle is equally applicable to the present circumstances. The words used in the first and second paragraphs of the First Article and the proximity of those paragraphs to each other played a significant role in my reaching the conclusion that there is a defamatory imputation. However, even if it is accepted that Mr Abraham was careless in structuring the Article in the manner he did, this would not lead to the conclusion that he was “reckless as to the truth”. Such carelessness would not, in my opinion, equate to indifference regarding the truth. The reasoning by Lord Diplock in Horrocks would equally apply to the circumstances here. I reject the submission that malice was present because Mr Abraham was “reckless as to the truth”.
Accordingly, the Plaintiff has failed to establish express malice on the part of Mr Abraham.

Damages

I now turn to the question of damages. The Plaintiff claims compensation for his injured feelings and damage to his reputation.
There is very little evidence relevant to the head of damage of injury to feelings. The Plaintiff said he was annoyed when he read the Article because it was a very serious allegation to be levelled at anyone, and in particular to a legal practitioner. There is no further evidence regarding the feelings of the Plaintiff. As a result, the damages with respect to this lead must be quite limited.
With respect to the Plaintiff’s claim for damage to his reputation, the Plaintiff called witnesses who gave evidence of his reputation. The first was the then Senator Quirke, a Labour Member of the Senate of the Federal Parliament. Previously he had been a member of the South Australian Parliament as a Labour Member in the House of Assembly between 1989 to 1997. He said he first became acquainted with the Plaintiff after the latter’s election to the Legislative Council in 1993. Senator Quirke said that the Plaintiff’s reputation amongst Parliamentarians was that he was a man of integrity, who kept his word. Mr Philip Scales, a legal practitioner and a former partner of the Plaintiff who worked with the Plaintiff and knew him as a legal practitioner, said that the Plaintiff had a reputation for fairness, humanity, integrity and honesty.
I accept the evidence of both witnesses regarding the reputation of the Plaintiff.
An imputation that a person has encouraged another to commit perjury is a serious defamation; more so, if that person is a legal practitioner and a Member of Parliament. The evidence to which I have just referred indicates that the Plaintiff has a reputation of honesty, integrity and fairness. I do not think it matters that the Plaintiff at that time was only undertaking legal work occasionally; it is a serious defamation to have levelled against a member of the legal profession.
In assessing the quantum of damages I do not accept Mr Harris Q.C.’s submission that it is necessary to take into account that reasonable minds might differ regarding imputations which may arise from the words in the Article. I do not consider such a matter relevant to the assessment of the damages.
In undertaking the assessment of damages I am mindful of the comments of Doyle CJ in Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 (at 378):-
“. . .that it would be appropriate to increase the level of damages awarded in this State for defamation.”
I assess damages for injury to feelings and damage to his reputation at $60,000.

Events Leading To The Publication of the Second Article

The Plaintiff also seeks damages for defamation with respect to an article written by Mr Abraham and published by the First Defendant in the Weekend Edition of “The Australian” on Saturday 13 February 2000. Before turning to the Article and the defamatory imputations alleged by the Plaintiff it is necessary to describe the events leading up to the publication.
On Friday 12 February Mr Abraham telephoned the Plaintiff. He wished to talk with the Plaintiff regarding what he said in Parliament the previous evening. He also wanted to ascertain whether the Plaintiff had access to medical records of Edith Pringle. Mr Abraham said that he had heard rumours for some time that journalists and politicians had seen medical records of Ms Pringle recording injuries to Ms Pringle. Mr Abraham was unable to reach the Plaintiff by telephone, however in response to a message left by Mr Abraham, the Plaintiff returned his call.
The telephone conversation was recorded on audio tape by Mr Abraham. He did not inform the Plaintiff that the telephone conversation was being taped. He said he recorded the conversation because he felt the case was highly charged and he wanted to make sure he protected himself and his employer in case there was any dispute regarding what was said.
The conversation generally took the form of questions by Mr Abraham and answers by the Plaintiff. After some initial questions and answers regarding what the Plaintiff told Parliament the previous day, Mr Abraham asked the Plaintiff whether he had ever made available to anyone Edith Pringle’s medical records. The Plaintiff informed Mr Abraham that he had shown a copy to the Minister for the Status of Women after Edith Pringle had commenced giving her evidence in the trial of Mr Clarke. In response to a question from Mr Abraham regarding how he came to have the medical records, the Plaintiff said that they had been dropped into his box anonymously about six months earlier. The Plaintiff said he had presumed they had been dropped into his box by a Labour Party enemy of Mr Clarke. The Plaintiff explained to Mr Abraham that they were hospital records recording Ms Pringle’s admission to hospital suffering some severe injuries.
During the course of the telephone conversation Mr Abraham challenged the credibility of the Plaintiff’s story of the manner by which he came into possession of the hospital records. I set out hereunder the relevant part of the telephone conversation as it was recorded by Mr Abraham:-
"Q.... So how did you happen to have her medical records?
A...... They were dropped anonymously into my box who by I presume a Labor party enemy of Ralph Clarke.
Q...... How long ago was that?
A...... 12 months ago or no sorry 6 months ago.
Q...... And you have shown no one since?
A...... Yes.
Q...... That is yes you have shown no one since?
A...... I have not shown anybody since.
Q...... Except after the case started so that would have been on Tuesday?
A...... Yes.
Q...... And these are what, her medical records?
A...... No it was a medical record of an admission to hospital by her having suffered some severe injuries as a result of a bashing.
Q...... But no indication of who might have been involved or?
A...... Yes.
Q...... And so it indicated who may have been.
A...... Yes.
Q...... And it was Ralph was it?
A...... Well the partner of Edith Pringle at the time. Yeah.
Q...... Do you think that is sort of proper behaviour?
A...... In what respect?
Q...... Well I have been told that you know that these, these records have been, you know, available to people like the minister for police and so on, that this hasn’t been . . .
A...... Well, Matthew, I can’t, I can’t be responsible for Ralph Clarke’s factional enemies who drop these things into letter boxes . . .
Q...... You don’t think that given you arranged hospital treatment for her that it’s a bit stretching the credibility to then say that you just happened to get her medical records from the Labor party?
A...... Now Matthew I didn’t arrange any hospital treatment for anyone. I arranged for a medical practitioner to examine a woman who was obviously distressed, who had obviously been subjected to some violence and that is all I did.
Q......

So how, so was that a doctor you knew or?

A...... No it was my wife’s normal doctor, no personal relationship at all. In fact I’ve never met the doctor.
Q...... Did Edith stay with you at all?
A...... No.

I have set out this part of the conversation verbatim because the evidence indicates that Mr Abraham misunderstood to what occasion the hospital records referred. It would seem that his understanding was that the records the Plaintiff held were in some way associated with the visit to the Plaintiff’s home by Ms Pringle and her medical examination at his home. That understanding was incorrect because the records related to a visit to hospital in 1997.
The Plaintiff said in evidence that records of the Royal Adelaide Hospital regarding an admission by Edith Pringle into hospital in 1997 were placed anonymously in his Parliamentary letter box at Parliament House. He said he understood that he was not the only Member of Parliament who received such records. The Plaintiff said that it was these records he was referring to in the telephone conversation when he told Mr Abraham that medical records of an admission to hospital by Ms Pringle were dropped anonymously in his letter box. Whilst the records were not introduced into evidence, I accept the Plaintiff’s evidence that the only records he held related to a hospital admission by Ms Pringle in 1997. I also accept his evidence that the records were placed in his Parliamentary letter box by an anonymous person.
Mr Abraham said that when he challenged the credibility of the Plaintiff’s explanation that he received the records from an anonymous source, he did so because he thought it was possible that the records were supplied to the Plaintiff by Ms Pringle. Mr Abraham said he formed this view on the basis of the Plaintiff’s statement in Parliament that Ms Pringle had gone to the Plaintiff’s house and that a relationship existed between Edith Pringle on the one hand, and the Plaintiff and his wife on the other.
Following the telephone interview Mr Abraham prepared and submitted an Article for publication in the Saturday Edition of “The Australian”.

Publication Of The Second Article

The Article prepared by Mr Abraham appeared in the Saturday 13 February Edition of “The Australian”. The Article is set out hereunder:-
“MP admits: I showed hospital assault records to minister
MATTHEW ABRAHAM
o South Australian political reporter
PERSONAL hospital records of injuries allegedly suffered by a politician’s former lover were circulated among Liberal MPs during the aborted trial for domestic assault of the Labor MP.
South Australian Liberal MP Angus Redford yesterday confirmed to The Australian that he had held copies of Edith Pringle’s medical records for about six months.
He had made them available to a Cabinet minister at the start of this week’s failed trial of former Labor deputy leader Ralph Clarke for allegedly assaulting Ms Pringle.
Mr Redford said that about six months ago he had received a copy of Ms Pringle’s health records showing “an admission to a hospital by her having suffered some severe injuries as a result of a bashing”.
Mr Redford admitted he had shown the records to the Minister for the Status of Women, Di Laidlaw, on Tuesday “after Edith commenced giving her evidence”, but denied showing them to any other Liberal MP in the months before the trial.
He said the records had been “dropped anonymously in my box by I presume a Labor Party enemy of Ralph Clarke”.
Mr Redford rejected suggestions it was stretching credibility to claim he had received the records anonymously when he had also arranged for Ms Pringle’s initial medical treatment, which was carried out by his wife’s doctor.
“I arranged for a medical partitioner to examine a woman who was obviously distressed and obviously been subjected to some violence. That’s all I did,” he said.
“We behaved as normal human beings. We didn’t put her on the f...ing floor of a f...ing electoral office with a blow-up f...ing mattress and hope she’d go away.”
Mr Redford told parliament on Thursday night that he and his wife, Maryann Stenberg, a staffer with Liberal senator Grant Chapman, had fed, bathed and arranged medical help for Ms Pringle when she came to their house three days after an alleged assault.
Opposition Leader Mike Rann told parliament on Thursday that Ms Pringle had “received strong support from government people” and that she had told “grotesque lies” in court which had damaged him.
This capped an extraordinary week of political mud-wrestling in South Australia, with the public airing of the turbulent private lives of Mr Clarke and Ms Pringle generating fierce tensions between Government and Opposition, and between warring factions within both major parties.
Mr Clarke, a former power-broker of the now defunct Centre Left faction, has a history of often colourful factional clashes with rivals in the Left faction.
Director of Public Prosecutions Paul Rofe, Q.C., dropped the charges against Mr Clarke on Thursday, just two days into the trial and before Mr Clarke’s defence team had called a witness.
Police Commissioner Mal Hyde said he would now finalise an investigation into allegations of political interference in the case and report to the Government.
The police investigation followed allegations in parliament by Liberal backbencher Graham Gunn last May that Labor had applied pressure on police to have the Clarke charges withdrawn.
At a crowded press conference on Thursday, Mr Rofe defended his decision to drop the charges, saying the affair had been a case “between a man and a woman ..... it’s never been about politics”.
Asked whether charges could be laid against Mr Rann, Mr Rofe said: “No, I have no material to suggest that.”
The Opposition has been highly critical of what it believes has been the political agenda underwriting the handling of the Clarke case, particularly the launch of a police investigation based on Mr Gunn’s question in parliament.
But Attorney-General Trevor Griffin yesterday defended the probity of the handling of a sensitive case.
“Neither I nor the DPP deal with the administration of justice in the political context,” Mr Griffin said.
The prurient nature of the evidence presented in the two days of the Clarke trial mesmerised Adelaide’s media and public, largely diverting attention away from findings in the Cramond report into Premier John Olsen’s role in the $60 million Motorola affair.
The Cramond report found Mr Olsen had given false and misleading answers to parliament after denying he had formal or informal discussions offering Motorola an emergency radio network contract in return for locating its software centre in Adelaide.”

The Defamatory Imputations Alleged by the Plaintiff

In the Statement of Claim the Plaintiff alleges that defamatory imputations were carried by the following words in the Article:
“Mr Redford rejected suggestions it was stretching credibility to claim he had received the records anonymously when he had also arranged for Ms Pringle’s initial medical treatment, which was carried out by his wife’s doctor”

The imputations pleaded by the Plaintiff in the Statement of Claim are:-

·....... that the Plaintiff improperly obtained another person’s private medical records;

·....... that the Plaintiff lied to cover up such improper conduct.

During his closing address Mr Swan, Counsel for the Plaintiff, asserted an additional imputation, namely, “Mr Redford is lying as to the source of records”.

The Defendants submitted with respect to the pleaded imputations, that they must fail because the use of the word “improperly” and “improper” lacks the precision necessary for it to be a valid pleading of imputations. Mr Harris Q.C. relied upon the comments of Hunt J in Morris v Newcastle Newspapers Pty Ltd(1985) 1 NSWLR 260 at 271:
“The description of the plaintiff’s attempted intervention as “improper” is, of course, one of very uncertain import. The trouble which can be caused by the inclusion of the word “improper” in an imputation is well illustrated by the case of Cairns & Morosi v John Fairfax & Sons Ltd (1983) 2 NSWLR 708; it is discussed in Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386 at 403-404. For this reason, the word “improper” should not be used in imputations unless the context in which it is so used makes clear its intended meaning (and the degree of impropriety involved). Where the matter complained of itself uses the word “improper”, the pleaded imputation should be expressed in terms which demonstrate the precise sense (that is, the degree of impropriety) in which the plaintiff contends the word would have been understood (see Ellis v Grant at 925) - subject, of course, to the jury’s right to find an imputation in different terms but which does not differ in substance from it: Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 at 771.”
These observations were referred to by the Full Court in Chapman and Chapman v Australian Broadcasting Corporation 2000 SASC 146. In his Judgment (at page 11) Lander J (with whom Doyle C J and Nyland J agreed) said that the use of the word “improperly” was an imprecise word and should be avoided when pleading an imputation.
By way of preliminary comments I should say that the Defendants in their Defence did not object to the nature of the pleaded imputations on the specific basis raised by Mr Harris Q.C. at trial. I have already mentioned that Mr Swan asserted the additional imputation during the course of his final address. It would appear that this additional imputation was raised in response to the challenge to the pleaded imputations. Mr Harris Q.C. did not during his address in reply, object to the introduction of the additional imputation by Mr Swan, nor did he claim any prejudice was suffered as a result of it being raised at that late stage.
I turn to the pleaded imputations. Clearly, the word “improperly” is an imprecise word. In Cairns and Morosi v John Fairfax & Sons Ltd (1983) 2 NSWLR 708 Hutley JA said (at 710), in the context of that case, that a reference to a romantic relationship as being “improper” was capable of covering “. . .a steep gradation of activities”. In the context of this case the use of the word “improperly” in the first pleaded imputation is capable of covering a steep gradient of conduct. Because of the lack of precision of the word “improperly”, it seems to me that I am not at liberty to conclude that the impugned words carry the first imputation pleaded by the Plaintiff. It is not possible to identify what is the precise imputation asserted.
Whilst the second pleaded imputation refers to the improper conduct alleged in the first pleaded imputation, in my view, the emphasis is on the word “lied”. In my opinion, the proper construction of this pleaded imputation is that the impugned words carried the imputation that the Plaintiff’s explanation that he received Edith Pringle’s hospital records from an anonymous source, was a lie. I do not consider this pleaded imputation suffers the same lack of precision as the first and therefore it is open to me to consider whether the impugned words carry that imputation.
In raising the additional imputation, Mr Swan relied upon the decision of the High Court in Chakravarti in support of his contention that the Plaintiff is entitled to rely upon it in his claim.
In Chakravarti Brennan CJ and McHugh J, in their joint Judgment, first addressed the question of how pleaded imputations are to be considered when they said (at page 532):-
A plaintiff who pleads a false innuendo thereby confines the meanings relied on. The plaintiff cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis.
However, it was accepted that a Plaintiff could depart from his or her pleaded imputations provided certain conditions were present. At page 534 of Chakravarti Brennan CJ and McHugh J said:-
If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure - whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict - the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury.

In similar terms, Gaudron and Gummow JJ in their joint Judgment in Chakravarti (at page 546) said:-
As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.
In the event that I am wrong about the second pleaded imputation, I am of the view that the Plaintiff is entitled to rely upon the imputation raised by Mr Swan in his address, namely, that “Mr Redford is lying as to the source of the records” as part of the Plaintiff’s case. I do so, relying on Chakravarti, on the basis there is no “unfair disadvantage” to the Defendants by allowing the Plaintiff to rely on that imputation. It may be categorised as a variant of that pleaded in the second imputation or it may be categorised as a different nuance or a less serious defamation. In any event, I do not think it is necessary to place a particular label on it. What is important is that the Plaintiff is not relying on a substantially different meaning or a meaning which focuses on a different factual base. In reaching this conclusion I observe, as I mentioned earlier, that Mr Harris Q.C. did not suggest that the Defendants have in any way been disadvantaged or prejudiced by the Plaintiff relying on the imputation raised by Mr Swan in his final address.
Applying the legal principles to which I referred when I was considering the imputation claimed with respect to the First Article, I am of the opinion that the impugned words do carry the imputation that the Plaintiff was lying as to the source of the hospital records. In other words, that the Plaintiff was lying when he said that he received the hospital records from an anonymous source. In the paragraph immediately above the impugned paragraph in the Article there was a reference to the Plaintiff having stated that the records had been anonymously dropped in his box. I am of the opinion the ordinary reasonable reader would infer from the words of the impugned paragraph that he was lying when he stated that the records had been dropped into his box anonymously. That is the sting in the paragraph. Whilst it is expressed in terms of the Plaintiff having “rejected suggestions” the ordinary reader would draw the inference that the Plaintiff was lying. From the passages in the Article preceding and following the impugned paragraph the ordinary reader would have understood that the hospital records were associated with the visit to the Plaintiff’s house and the Plaintiff making arrangements for a medical practitioner to treat her. The ordinary reader would have read the Article as suggesting that the hospital notes were furnished from another source; either Ms Pringle or someone else, and that the Plaintiff was lying about the source. In my view, the imputation I have found accords with the second pleaded imputation or alternatively, the imputation advanced by Mr Swan during the course of his address. The imputation is capable of being defamatory and is defamatory of the Plaintiff.

Qualified Privilege Arising from Discussion on Government and Political Matters

I now turn to the first defence pleaded by the Defendants; that the impugned words were published on an occasion of qualified privilege, namely, in the course of a discussion on government and political matters.
It is unnecessary to repeat the legal principles which I set out earlier in these Reasons with respect to this category of qualified privilege. In my opinion, the Second Article concerned government and political matters. The Article dealt, in part, with a Member of Parliament (the Plaintiff) having possession of medical records of Edith Pringle which were relevant to the allegations made by her in the trial of Mr Clarke. Further, it dealt with the Plaintiff having possession of those records for about six months prior to the commencement of the trial. It also contained a reference to the Plaintiff showing those medical records to the Minister for the Status of women after Edith Pringle had commenced to give evidence in the trial of Mr Clarke. These matters are but some of a number of matters referred to in the Article which demonstrate that it concerned government and political matters.
For the Defendants to successfully raise the defence of qualified privilege they must establish that their conduct in publishing the defamatory material was reasonable.
Before turning specifically to that question it is necessary to refer briefly to the evidence of Mr Abraham. He said that at the time of the telephone conversation with the Plaintiff he held the belief that medical records of Edith Pringle may have been seen by journalists and politicians. He also understood that those records related to injuries suffered by Ms Pringle as a consequence of an assault on her. However, at that time Mr Abraham was not aware that the medical records were hospital records, nor was he aware that they related to an occasion in 1997. Mr Abraham said that during the course of the telephone conversation he formed the view that the Plaintiff’s explanation that the hospital records were delivered to him anonymously, was stretching credibility. He said he reached that conclusion because of the Plaintiff’s statement in Parliament that Ms Pringle had visited the Plaintiff’s house and he admitted to a personal relationship with Ms Pringle. By that reference I understood Mr Abraham to be referring to the relationship between Ms Pringle on the one hand, and the Plaintiff and his wife on the other. Mr Abraham said that he thought it was possible that the Plaintiff had received the medical records from Edith Pringle. Later, in his evidence, he said he thought that an alternative explanation to that provided by the Plaintiff was that he was given the hospital records by Ms Pringle.
In my opinion, the Defendants have not met the second test laid down in Lange in that they failed to take proper steps to verify the accuracy of the published material. There were a number of steps which Mr Abraham could have taken but he failed to do so.
During the telephone conversation with the Plaintiff he was informed that the Plaintiff held hospital records of an admission to hospital by Ms Pringle having suffered some severe injuries. He knew from the Plaintiff’s statement in Parliament that on the day she visited his home the Plaintiff had arranged for her to be medically examined by a general practitioner. Mr Abraham was also informed by the Plaintiff during the telephone conversation that he had never arranged hospital treatment for Ms Pringle. The Plaintiff did this when correcting Mr Abraham’s erroneous statement that he had arranged hospital treatment for her. The Plaintiff also confirmed in the telephone conversation that all he did was arrange for a medical practitioner to examine Ms Pringle.
At this point Mr Abraham had three pieces of information which did not sit comfortably together. He needed to reconcile apparently conflicting facts. It was important for him to do so if he was to make reference to the Plaintiff’s credibility in any article he was going to write.
In my opinion, if Mr Abraham had taken steps to resolve those conflicting pieces of information it was likely that the error that he was labouring under, namely, that the records the Plaintiff was holding were associated with the visit by Ms Pringle to the Plaintiff’s house, would have been resolved. Mr Abraham could have made further enquiries of the Plaintiff for the purpose of resolving the conflict. The perfect opportunity to make those enquiries was during the telephone conversation with the Plaintiff. Even if that opportunity had passed, there was still an opportunity to call the Plaintiff again before the Article was published. Mr Abraham replayed the tape recording of the telephone conversation when he was writing the Article. The conflicting factual information was contained in the recording of the telephone conversation. It is possible that he would not have received co-operation from the Plaintiff in responding to a further telephone call due to the acrimonious manner in which the telephone conversation ended. However, that was not the only means of communication available to Mr Abraham. I was not told why Mr Abraham did not pursue this line of enquiry, but in any event the conflict was there to see and it remained unresolved.
I mentioned earlier that Mr Abraham held the belief at this time that some medical records may have been seen by journalists and politicians. A further step which could have been taken by him was to make enquiries of other politicians as to whether they had seen or held hospital records relating to Ms Pringle. On one view, those rumours lent some credence to the Plaintiff’s story.
In my opinion Mr Abraham’s failure to take these steps has the result that the Defendants have failed to meet the second test laid down in Lange.
In addition to this matter there are other grounds to find that the Defendants’ conduct in publishing the defamatory material was not reasonable.
During the telephone conversation Mr Abraham formed the view that a possible or alternative source of the hospital notes was Ms Pringle. He was not prepared to accept the Plaintiff’s story. It was his view that Ms Pringle was a possible source of the hospital records that led him to challenge the credibility of the Plaintiff during the telephone conversation. The fair course would have been to give to the Plaintiff his reasons for challenging the Plaintiff’s credibility. He should have put to the Plaintiff his views that Ms Pringle was the possible source of the notes and why he had formed his opinion regarding the Plaintiff’s credibility. This would have given the Plaintiff an opportunity to respond. As I stated earlier, this approach would have been likely to have elicited that the hospital notes related to another time and another set of circumstances than that of the visit by Ms Pringle to the Plaintiff’s home. It would have resolved the mistake Mr Abraham was labouring under. In my opinion it was unreasonable for the Defendants to publish the defamatory material without adopting this course. Whilst this ground appears to be a rider to the matters I have raised when considering the second test in Lange, in my opinion it is a separate and distinct ground for conclusions I have reached that the Defendants’ conduct was not reasonable.
There is also a further reason why the conduct of the Defendants in publishing the defamatory material was unreasonable. Mr Abraham said that it was his opinion that the Plaintiff’s explanation of the source of the hospital records was stretching credibility. In the Article he wrote that “Mr Redford rejected suggestions it was stretching credibility . . .”. The word “suggestions” is plural. In my opinion, it conveys that there was more than one person who made that suggestion. I found Mr Abraham’s evidence regarding the use of the plural word “suggestions” unsatisfactory and unconvincing. He did not provide a satisfactory explanation for using the word “suggestions” He accepted that one way of conveying to the reader it was his suggestion that the Plaintiff’s explanation was stretching credibility was to write, “Mr Redford rejected The Australian’s suggestion ....”. In my view it is a reasonable inference that the use of the word “suggestions” was intended to convey that there was more than one suggestion that Mr Redford’s explanation regarding the source of the hospital notes “was stretching credibility”. The Article failed to state that it was the journalist’s suggestion.
I think the following answer given by Mr Abraham to a question during examination-in-chief (T301.8) tends to affirm the conclusion I have reached:
"Q.... “Why did you write ‘Mr Redford rejected suggestion it was stretching credibility’.
A...... Well I think as a political journalist you have to test things and I - I had been rejecting suggestion it was stretching credibility. But, it is, I suppose, a way - it expresses a test there that this explanation may not - may not carry much water with people”.
For the reasons I have outlined, the Defendants’ conduct in publishing the material giving rise to the defamatory imputation was not reasonable. As a result the defence of qualified privilege fails.

Defence of Fair Comment

The other defence raised by the Defendants is that of fair comment. The elements of the defence are set out in the judgment of Olsson J in Peterson v Advertiser Newspapers Limited (1995) 64 SASR 152 at 190:-
“The main principles relating to the defence of fair comment may be stated as follows:
(a).... the comment must be on a matter of public interest;
(b)the comment must be based on fact;
(c).... the comment, though it can consist of or include inferences of fact, must be recognisable as comment;
(d)the comment must satisfy the following objective test: could any fair-minded man honestly express that opinion on the proved facts?
(e).... even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.”
Before it becomes necessary to deal with the principles outlined above there is a fundamental question which needs to be addressed, namely, whether the impugned words are “comment”. It is sometimes difficult to distinguish between comment and fact. In Rocca v Manhire (1991-1992) 57 SASR 224 at 229 King CJ explained the distinction in the following terms:-
“Both respondents pleaded a defence of fair comment on a matter of public interest. I have no doubt that the honesty of attempts to influence votes in a council election is a matter of public interest. The question arises as to whether the statements complained of are statements of comment as distinct from fact. A comment is an expression of opinion on facts. The defence of fair comment applies only to comment made upon facts stated or referred to in the statement. It is frequently difficult to distinguish between statements of opinion amounting to comment and statement of fact especially where the imputation is one of disgraceful or dishonourable conduct.”
I have earlier referred to the use of the word “suggestions” in the Article and how I view its meaning. In my opinion, the ordinary reasonable reader of the impugned paragraph in the Article would not read the words “Mr Redford rejected suggestions that it was stretching credibility . . . .” and conclude that it was “The Australian” which was making the suggestion. The reader would understand the words as stating that there was more than one person who made such a suggestion. As a result of those findings it seems to me that the words in the impugned paragraph are fact, not comment. If I am wrong in that conclusion the defence still fails at the threshold because there is no identifiable comment by the publisher or the author of the Article. If it is comment then it would not be recognisable by the ordinary reader as a comment or opinion by the publisher or the author of the Article.
If I am found to be incorrect in the views I have expressed and it is seen as a comment, I still remain of the opinion that the defence fails for a number of reasons. I accept that the comment (if it be comment) is on a matter of public interest. It related to a statement made by a Member of Parliament regarding the manner in which the hospital records of the alleged victim of an assault came into his hands prior to the trial of the alleged perpetrator of the assault. However, I do not consider the comment to be fair.
There are a number of criteria which need to be present for a comment to be fair. One of those criteria is that the facts upon which the comment is based are included in the publication. A rider to that proposition is that where it is not possible to include the relevant facts in the publication, the facts must be readily available to the reader. A further criteria is that the facts upon which the comment is made must be true. Any misstatement of the facts prevents the comment from being a fair one.
These criteria were expressed by Lord Denning MR in London Artists Limited v Littler Grade Organisation Limited(1969) 2 QB 375 at 391 in the following manner:
“In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v Dimbleby [1951] 1 K.B. 360, 364. They are the facts on which the comments are based or from which the inferences are drawn - as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v Foot [1952] AC 345; but he must get them right and be ready to prove them to be true.”
With respect to the principle that the facts must be true Olsson J in Peterson v Advertiser Newspapers Limited(supra) said (at 193):
“To establish the defence of fair comment the requirement is not merely that the facts stated are true. Rather, it is that they be truly stated: Sutherland v Stopes [1925] AC 47 at 62-63; Thompson v Truth & Sportsman Ltd (No 4) (1932) 34 SR (NSW) 21 at 25.
The omission of a series of relevant facts, having the result that the factual scenario represented in a publication is quite unbalanced and potentially misleading to the average reader, results in a situation that the facts have not, relevantly, truly been stated.”

See also Pervan v North Queensland Newspaper Co Ltd (1992 - 1993) 178 CLR 309 at 321.

In my opinion, the facts upon which the comment is said to be based are not truly stated. Facts have been misstated. Furthermore, there has been an omission of relevant facts.
In the impugned paragraph it is stated that the Plaintiff “. . . had also arranged for Ms Pringle’s initial medical treatment which was carried out by his wife’s doctor”. (The emphasis is mine). Earlier, the Article had referred to the Plaintiff having possession of hospital records of Ms Pringle. The Article had also quoted the Plaintiff saying that he arranged for a medical practitioner to examine Ms Pringle and that is all he did. In my opinion, the use of the word “initial” taken in conjunction with the Plaintiff holding hospital records would suggest to the ordinary reader that Ms Pringle received initial treatment by a medical practitioner on the day she went to the Plaintiff’s home and subsequently there was hospital treatment and those records related to that treatment. The use of the word “initial” is a misstatement of the facts. There is no evidence to suggest that Ms Pringle received any further treatment after being attended to by the general practitioner. There is no evidence upon which it could be validly suggested that the treatment by the medical practitioner was the “initial” treatment.
Furthermore, there are significant factual omissions. The hospital records related to injuries allegedly suffered by Edith Pringle in 1997. The treatment she received at the Plaintiff’s home took place in May 1998. In my opinion, these facts were necessary to enable the reader to judge for himself or herself whether the comment was fair (Pervan v North Queensland Newspaper Co. Ltd (supra) at 356).

As a result of all this, in my opinion, the facts upon which the comment relied were not truly stated in accordance with the principles I have expressed. It follows, that even if the impugned words were “comment” in the relevant sense, then the comment was not fair.
For the reasons I have stated the defence of fair comment fails.

Was the Publication Published with Malice?

In response to the Defendants’ pleas of qualified privilege and fair comment the Plaintiff has pleaded that the publication of the Article was actuated by express malice. If the Plaintiff can establish that the Article was motivated by express malice then the defences of qualified privilege and fair comment will be defeated. Whilst I have found that such defences have failed for other reasons I think it is appropriate that I deal with the plea of malice. In considering the plea of malice with respect to the First Article I set out the principles relevant to a plea of malice in response to the claims of qualified privilege. The same principles apply where the plea is one of fair comment. A comment cannot be fair it if is actuated by express malice. It is unnecessary to repeat the principles I referred to earlier.
Mr Swan identified a number of factors in support of his submission that the defamatory imputation was a result of the improper motives on the part of Mr Abraham. He said that the taping of the telephone conversation with the Plaintiff and his failure to advise the Plaintiff that he was taping it were two of those factors. In my view Mr Abraham’s failure to inform the plaintiff that the conversation was being recorded was unfair. Mr Abraham should have obtained the consent of the Plaintiff to tape the telephone conversation. Whilst I understand the reasons why Mr Abraham taped the conversation, I feel that it was unfair to the Plaintiff not to inform him of that. However, these two factors do not, in my opinion, establish the presence of malice.
I do not propose to deal with each of the other matters which Mr Swan pointed to as evidence of malice on the part of Mr Abraham. It suffices to say that even if I accepted that each of the matters identified by Mr Swan were established (and I am not so satisfied), I would not be persuaded that Mr Abraham was actuated by malice in writing the Article. The burden of establishing malice is not lightly satisfied (Horrocks, page 151). I am therefore not satisfied that the Plaintiff has established the presence of malice.

Damages

The defamatory imputation arising from the Second Article is, in my opinion, far less serious than the defamatory imputation in the First Article. Having said that, I am still of the opinion that it is a serious defamation. The Plaintiff is a Member of Parliament and a legal practitioner. The defamatory imputation is that he lied when he said that the hospital notes were placed in his Parliamentary box by an anonymous person. The assertion that a person has lied can be a serious one, more so where the person is in public life.
The Plaintiff’s claim for damages is for injury to feelings and damage to reputation. There is very little evidence with respect to the first head of damages claimed. The Plaintiff said that when he read the Article he was concerned that it asserted that he had obtained the hospital records improperly. His concern led him to consult his solicitor on that Saturday morning, and the following Monday morning. His solicitor wrote to “The Australian” seeking an apology.
I have earlier had occasion to refer to the evidence regarding the Plaintiff’s reputation. Both Senator Quirke and Mr Scales said the Plaintiff had a reputation of a person with integrity. Mr Scales also said he had a reputation for fairness and honesty. The imputation that he lied has damaged the reputation of the Plaintiff. He is entitled to be compensated for such damage. In assessing damages, he is also entitled to compensation for injury to feelings, but only in a very limited way for the reasons I have explained.
I assess the Plaintiff’s damages at $25,000.

Summary

I have found that a defamatory imputation arises from the impugned words in each Article and that on each occasion the Plaintiff was defamed. I have also held that the Plaintiff is entitled to damages with respect to both defamations. With respect to the defamation in the First Article I have assessed damages at $60,000. For the defamation in the Second Article I have assessed damages at $25,000.
Accordingly, there will be judgment for the Plaintiff against each Defendant for the sum of $85,000.
I will hear the parties on interest and costs.

[2000] SADC 155

20 December 2000