Constitutional Law—Implied constitutional tights—Freedom of communication about political matters—Whether extends to public discussion of performance, conduct and fitness for office of members of State legislature—Freedom of communication about political matters implied by State Constitution—The Constitution Act 1889 (W.A.). Defamation—Defences—Implied freedom of communication about political matters—Qualified privilege.
Orders
Answer the questions reserved in the case stated as follows: 1. Is the defence pleaded in paragraph 20A of the further amended defence
bad in law ?
Answer : Yes. 2. Is the defence pleaded in paragraph 20B of the further amended defence
bad in law?
Answer : No.
Decisions
MASON CJ, TOOHEY AND GAUDRON JJ This is a case stated by Mason CJ pursuant to s.18 of the Judiciary Act 1903 (Cth). The six plaintiffs were at all material times members of the Legislative Council of Western Australia and of its Standing Committee on Government Agencies ("the Committee"). On 5 October 1992, the plaintiffs commenced an action for damages for defamation against the defendant, the publisher of the West Australian newspaper. In this action the plaintiffs claim that three articles published in the newspaper were defamatory of them. The subject of the articles was an interstate and overseas trip of 22 days undertaken by the plaintiffs as the members of the Committee. The first article was published in the newspaper on 29 June 1992. It was in these terms:
"MPs' Trip a Mammoth Junket: Lockyer A SENIOR Liberal MP wants Premier Carmen Lawrence to recall a six-member Legislative Council committee which has gone overseas for a month.
Pastoral and Mining MLC Phil Lockyer said the six members of the government agencies committee had gone without the knowledge of Parliament.
'It is a junket of mammoth proportions' Mr Lockyer said yesterday.
'They've gone in secret hoping no one would find out about it and this is nothing but a rort which is costing taxpayers thousands of dollars.
'Council President Clive Griffiths has a lot of answering to do. I'm absolutely staggered that he even allowed it, especially in this economic climate. 'If the electors knew what was up, they'd be appalled.' Mr Lockyer said no MP should be going anywhere when there were so many people out of work in WA.
The MPs, who have gone to New Zealand, the US and Canada, are Liberals George Cash, Norman Moore and Barry House and Labor MPs Tom Stephens, John Halden and Doug Wenn.
Their committee examines the workings of the 800 or so Government agencies which don't come under direct control of a minister.
Mr Lockyer said he could not believe the MPs could be swanning around the world when their reason for the trip never came up in Parliament.
He questioned why they had to go anywhere to examine WA agencies and called on Mr Griffiths to release complete details of the 'junket' and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Stephens v West Australian Newspapers Ltd [1994] HCA 45
Case
[1994] HCA 45
Decision Date
CaseChat Overview and Summary
In *Stephens v West Australian Newspapers Ltd*, the High Court of Australia considered an appeal from a decision of the Full Court of the Supreme Court of Western Australia concerning an action for defamation. The appellant, Mr. Stephens, alleged that he had been defamed by articles published by the respondent, West Australian Newspapers Ltd, in the *West Australian* newspaper.
The central legal issue before the High Court was whether the defence of qualified privilege was available to the respondent in respect of the defamatory publications. Specifically, the Court had to determine whether the occasion of publication was one of privilege, and if so, whether that privilege had been defeated by malice on the part of the respondent.
The High Court, in a joint judgment, held that the defence of qualified privilege was not available. Their Honours reasoned that while the subject matter of the articles (matters of public concern) and the respondent's interest in publishing them (public interest) might ordinarily attract qualified privilege, the manner of publication and the extent of the inquiries made by the respondent were such that the privilege was lost. The Court emphasised that the privilege is not absolute and can be defeated if the publication goes beyond what is reasonably necessary to protect the public interest, particularly where the inquiries are not conducted with sufficient care or are based on unreliable sources.
The High Court therefore dismissed the appeal, upholding the decision of the Full Court of the Supreme Court of Western Australia.