CHAPMAN & ORS v CONSERVATION COUNCIL OF SA & ORS No. SCCIV-98-81 [2002] SASC 4 (21 January 2002)

Last Updated: 24 June 2002

Court

Judgment of the Honourable Justice Williams

Hearing

Catchwords and Materials Considered

DEFAMATION --- STATEMENTS AMOUNTING TO DEFAMATION --- REFERENCE TO PLAINTIFF --- LIBEL

Plaintiffs claimed eleven publications (media releases and journal articles) authorised by officers of the Conservation Council defamed them as developers of the marina on Hindmarsh Island - plaintiffs claim damages for libel - natural and ordinary meaning of words - whether aspects of campaign went beyond justifiable debate or lawful protest - defendants deny alleged defamatory imputations and plead defence of fair comment upon a matter of public interest - community standards and effect of statements upon right thinking members of society - whether statements made in good faith.

DEFAMATION --- PRIVILEGE --- QUALIFIED PRIVILEGE --- REBUTTAL OF PRIVILEGE BY MALICE

Publications as part of a campaign to persuade or coerce the plaintiffs to abandon contractual arrangements for building of bridge provide evidence of express malice - distinction between 'mere presence' of malice and situations where the publication is `actuated by malice' - malice inferred from evidence as a whole - forfeiture of privilege by reason of malice and difference between Australian and English law - reasonableness and malice as relevant to the Lange defence - in considering whether the conduct of the publisher is reasonable in terms of the Lange defence the court must consider all the circumstances surrounding the publication - intrinsic and extrinsic evidence of malice - pleading particulars of malice - the rule in Hollington v Hewthorn - whether in some circumstances a party is precluded from pursuing a point upon which that party has been unsuccessful in other proceedings but involving different parties.

DEFAMATION --- DAMAGES --- GENERAL DAMAGES

ASSESSMENT - MITIGATION Three publications found to be defamatory - mitigation of damage by reason of amounts received in twelve other proceedings or claims associated with thirty-two other publications containing defamatory statements to same effect or similar - heavy burden on plaintiff seeking to establish the absence of good faith when a publication addresses the public interest - liability being established damages awarded must reflect the unique and respected position of influence of the defendants - the effect in terms of damages of successive publications in a campaign to cause hurt.

• Wrongs Act 1936 s 11;
• Planning Act 1982 s 51;
• Aboriginal Heritage Act 1988 s 6, s 35;
• Development Act 1993 s 85;
• Trade Practices Act 1974 s 45D;
• Industrial Relations Reform Act 1993 s 54;
• Survey Act 1992 ;
• Evidence Act s 34a;
• Defamation Act (NSW) 1974 s 22, referred to.
• Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520;
• Re Robson [1952] SASR 101;
• Renouf v Federal Capital Press of Australia (1977) 17 ACTR 35;
• Adam v Ward [1917] AC 309;
• Morosi v Mirror Newspapers [1977] 2 NSWLR 749;
• Stephens & Ors v West Australia Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211;
• Loveday v Sun Newspapers Ltd & Anor [1938] HCA 28; (1938) 59 CLR 503;
• Crofter Hand Woven Harris Tweed Company Ltd & Ors v Veitch & Ors [1941] UKHL 2; [1942] AC 435;
• Seaward v Paterson [1897] 1 Ch 545;
• Duffield v Arts Council of SA Inc & Fox Publishing Company [1981] 27 SASR 540;
• Hines Exports Pty Ltd v Mediterranean Shipping Company SA [2001] SASC 311; (2001) 80 SASR 268;
• Mirror Newspapers Ltd v Jools [1985] FCA 153; (1986) 65 ALR 174;
• Rocca v Manhire (1992) 57 SASR 224;
• Roberts and Case v Bass [2000] SASC 297; (2000) 78 SASR 302;
• Waterhouse v Broadcasting Station 2GB [1985] 1 NSWLR 58;
• Williams & Ors v Hursey [1959] HCA 51; (1995) 103 CLR 30, applied.
• Chapman v Nationwide News [1999] SASC 553, distinguished.
• Chapman v Luminis Pty Ltd (No 5) [2000] FCA 1106;
• Reichel v Magrath (1889) 14 App Cas 665;
• Rogers v R [1994] HCA 42; (1994) 181 CLR 251, not followed.
• Pratt & Ors v British Medical Association [1919] 1 KB 244;
• Morgan v Lingen (1863) 8 LTR 800;
• Krahe v TCN Channel Nine Pty Ltd & Ors (1986) 4 NSWLR 536;
• Horrocks v Lowe [1975] AC 135;
• Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102;
• Bellino v ABC [1996] HCA 47; (1995) 185 CLR 183;
• Lonrho PLC v Fayed & Ors [1990] 2 QB 479;
• Torquay Hotel Co Ltd v Cousins & Ors [1969] 2 Ch 106;
• Chapman v Rural Press [1999] SADC 178;
• Chapman v Allan & Draper [1999] SASC 460;
• Uren v John Fairfax & Sons Pty Ltd (1965) 66 SR (NSW) 223;
• Lewis v Daily Telegraph [1964] AC 234;
• Thompson v Australian Capital Television (1997) 129 ACTR 14;
• Austin v Mirror Newspapers Ltd [1986] 1 AC 299;
• Northern Territory v Mengel (1995) 185 CLR 307, discussed.
• ABC v Lenah Game Meats Pty Ltd [2001] HCA 63;
• Sim v Stretch (1936) 52 TLR 669;
• Reader's Digest v Lamb (1981) 150 CLR 400;
• Berkoff v Burchill & Anor [1996] EWCA Civ 564; [1996] 4 AER 1008;
• Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293;
• London Artists Ltd v Littler Grade Organisation Ltd & Ors [1968] EWCA Civ 3; [1969] 2 QB 375;
• Nationwide News Pty Ltd & Anor v Redford [2001] SASC 198;
• Brander v Ryan [2000] SASC 446; (2000) 78 SASR 234;
• Wright v ABC & Anor [1977] 1 NSWLR 697;
• Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733;
• Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358;
• Wilkinson v Downton [1897] 2 QB 57;
• Davies & Davies v Nyland & O'Neil (1974) 10 SASR 76;
• Thomson v Deakin (1952) Ch 646;
• Woolley v Dunford (1972) 3 SASR 243;
• Coulson v Coulson [1887] 3 TLR 846;
• Bonnard v Perryman [1891] 2 Ch 269;
• Hollington v Hewthorn & Co Ltd & Anor (1943) KB 587;
• Stratford v Lindley [1965] AC 269;
• Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336;
• Peterson v Advertiser Newspapers [1995] SASC 5018; (1995) 64 SASR 152;
• Chakravarti No 2 v Advertiser Newspapers (1998) 72 SASR 361, considered.

Representation

Plaintiff: WENDY JENNIFER CHAPMAN

Counsel: MR D MEYER - Solicitors: LYNCH & MEYER

Plaintiff: ANDREW LINCOLN CHAPMAN

Counsel: MR D MEYER - Solicitors: LYNCH & MEYER

Defendant: CONSERVATION COUNCIL OF SA INC

Counsel: MR P HEYWOOD-SMITH - Solicitors: DUNCAN BASHEER HANNON

Defendant: MARGARET BOLSTER

Counsel: MR P HEYWOOD-SMITH - Solicitors: DUNCAN BASHEER HANNON

Defendant: DAVID SHEARMAN

Counsel: MR P HEYWOOD-SMITH - Solicitors: DUNCAN BASHEER HANNON

Defendant: RICHARD OWEN

Counsel: MR P HEYWOOD-SMITH - Solicitors: DUNCAN BASHEER HANNON

SCCIV-98-81

Judgment No. [2002] SASC 4

21 January 2002

(Civil)JUR

CHAPMAN & ORS v CONSERVATION COUNCIL OF SA

[2002] SASC 4

WILLIAMS J

SUMMARY

1. Publication No 6 is defamatory of Mrs Chapman. Publications No 7 and 11 are defamatory of Mr Tom and Mrs Wendy Chapman. The remaining Publications No 1-5 and 8-10 are not defamatory of any plaintiff.

2. Publications No 6, 7 and 11 each appear in Environment South Australia (the journal of the Conservation Council) Publication No 6 carries the heading "President's Message - Hindmarsh Island - Suppression of Free Speech". Publication No 7 carries the heading "A Win for Freedom of Speech - a further update Hindmarsh Island (Kumarangk) Bridge". Publication No 11 carries the heading - "Hindmarsh Island - Not so secret political business".

3. The defamatory imputations arising with respect to Publications 6, 7 and 11 are set out in part 5 of the accompanying reasons; the defendants do not assert that any of these imputations are true.

4. The defences of fair comment and qualified privilege fail with respect to the defamatory publications. The dominant motive of each defendant was to damage the standing of Tom and Wendy Chapman in order to influence them and others to withdraw support for the building of a bridge to Hindmarsh Island. The conduct of each defendant was part of an orchestrated campaign to "target" and attack the Chapmans' interests and to influence public opinion against the government and others who were interested in the bridge building contract.

5. The damages which Tom and Wendy Chapman are entitled to recover (as compensation for their injured feelings and harm to their reputations) are subject to mitigation by reason of the overlap between the effect of these libels and earlier libels which were the subject of a number of other actions and settlements involving other parties in respect of libels to the same purport. (see Wrongs Act s 11). The effect of this requirement has been brought to account.

6. The plaintiff Andrew Chapman has not been defamed but Tom and Wendy Chapman are entitled to damages assessed as follows:

7. Questions of interest and costs have yet to be determined.

INDEX

Page No

1 An overview of the plaintiffs' case 5

2 The undisputed background 7

3 The Constitution of the Conservation Council 9

4 The legal principles

(a) The nature of libel 10

(b) The defence of qualified privilege 12

(c) The defence of fair comment on a matter of

public interest 14

(d) Abuse of privilege in Australia 15

(e) The exceptional case 20

(f) "Reasonableness" 22

5 The identification of defamatory imputations (and

consequential issues thereby raised on the pleadings) 23

6 Community values 27

7 Mr Owen's anti bridge campaign

(a) The interest of the shack owners 29

(b) The relevance of a "campaign" 34

(c) The origins and extent of the campaign 36

(d) The underground campaign 40

8 Evidence of malice

(a) General evidence 42

(b) As regards Professor Shearman 44

(c) As regards Ms Bolster 44

(d) As regards Mr Owen 45

(e) Particulars of malice as pleaded 45

9 The facts upon which the defamatory publications are based 47

(a) Suppression of free speech 47

(b) Developers' planning obligations 50

10 Ms Margaret Bolster 52

11 Professor Shearman 56

12 Mr Owen 59

13 Mr and Mrs Chapman and Andrew 62

14 The Non Party Witnesses 63

15 An application to amend the defence 66

16 Mitigation of damages 69

17 Analysis of the publications

1 Latest moves to build a bridge 79

2 ABC telecast 81

3 Media release-New alliance 82

4 Media release-How many wrongs 83

5 Hindmarsh Island-Update 84

6 President's message 85

7 A win for freedom of speech .89

8 Hindmarsh Island & the human condition 91

9 The Washpool .92

10 Divide and rule .93

11 Hindmarsh Island-Not so secret political business .94

18 Schedule of publications

1 Latest moves to build a bridge 99

2 ABC telecast 101

3 Media release-New alliance 105

4 Media release-How many wrongs 107

5 Hindmarsh Island-Update 108

6 President's message 110

7 A win for freedom of speech 112

8 Hindmarsh Island & the human condition 114

9 The Washpool 116

10 Divide and rule 118

11 Hindmarsh Island-Not so secret political business 119

19 Schedule of background facts 122

20 The planning process 127

21 Conclusion 129

1. An overview of the plaintiffs' case

8. The plaintiffs' claim damages for libel in respect of eleven individual publications occurring between 22 February 1994 and September 1995 or thereabouts. The text of each publication is set out in Part 18 hereof.

9. At the time of the publications for which they were responsible the personal defendants respectively held office within the Conservation Council - Professor Shearman as President, Ms Bolster as Vice President and Mr Owen (as from 2 August 1994) as a member of the Executive Committee or Board. It is not in dispute that where one of the abovementioned publications at its foot is attributed to one of the personal defendants by name (as appears in Part 18) then such person is the author (or co-author as the case may be) and is responsible for publication as relevant to this case.

10. It is the plaintiffs' case that the Conservation Council and its officers in the course of a campaign against the building of the Hindmarsh Island bridge were party to attacks upon the reputation of the plaintiffs as persons known to be the developers of a marina and real estate project which would be serviced by the Bridge. The plaintiffs' contend that the campaign was designed to influence public opinion and to persuade those with an immediate commercial interest to withdraw from the project or to abandon the bridge construction and continue to rely upon ferries to provide access to the Island. It is not in dispute that the commercial arrangements to build the bridge were contractually locked in place by the South Australian government in March 1993; thereafter it was not possible for a new government (elected in December 1993) to avoid the contractual commitment without monetary compensation (unless Parliament legislated to the contrary or the parties waived their rights or there were some intervention in exercise of Federal law). The campaign waged under the aegis of the Conservation Council can be identified as originating in May 1993 and continuing in one form or another from about October 1993 at least throughout the next two years. The campaign gained momentum in February 1994 when the State Government (after an enquiry by The Hon Mr SJ Jacobs QC) publicly acknowledged the contractual commitment which it had inherited from the preceding Government). It is the plaintiffs' case that there were aspects of the anti-bridge campaign (to which the defendants were party) which went beyond the bounds of justifiable debate or lawful protest; the 11 publications now in issue are claimed to be instances of these excesses in the course of "the struggle" (as Mr Owen describes it).

11. The plaintiffs' allege that defamatory attacks were made through media releases and by publication of articles in Environment South Australia - a periodical produced by the Conservation Council for circulation amongst its member organisations and the conservation movement more generally. Volume 4 No 3 part 1995 (which contains the most recent article of complaint) claims that the journal's circulation is 6000 and that "unaudited readership 100,000 includes educational institutions, libraries, Government departments and member groups".

12. The defendants deny the alleged defamatory imputations; in some cases there is a dispute as to whether the words have been written of and concerning the plaintiffs. The defendants also plead fair comment upon a matter of public interest and they further assert that the publications were made on occasions of qualified privilege (in accordance with common law principles and as these were extended by Lange - see below). In order to make out this last mentioned defence the defendants assert that their conduct as publishers was reasonable with respect to discussion of "Government or political matters" (see Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520 at 574). There is an issue as to whether these defences are available but in any event the plaintiffs reply that any defence of fair comment or qualified privilege which might otherwise be available to the defendants is defeated because the defendants were actuated by malice.

13. In respect of some publications and to some imputations the defendants purport to plead truth as a defence but in each case the supposed justification is a false plea in that the defendants purport to deal with imputations which the defence puts forward rather than the imputations relied upon by the plaintiffs.

14. A special situation arises with respect to Publication No 11 the author of which is stated to be "Kumarangk Coalition". It is alleged that a practice developed amongst the anti bridgers of publishing and operating under this assumed name in the course of the "struggle" with a view to creating difficulties for the plaintiffs in finding someone to sue in respect of tortious activity. It is not in dispute that the name Kumarangk Coalition (sometimes written Kumarank Coalition) was adopted soon after the Chapmans took steps in March 1994 to secure injunctive relief in the Federal Court against those who were alleged to be interfering with their banking services and the contractual arrangements to build the bridge. The fact that Publication 11 is published over this name is relied upon by the plaintiffs as one important thread in a case of circumstantial evidence as to the dominant motivation of the publisher.

15. The defendants claim that the Kumarangk Coalition is an amorphous body which cannot be identified. The plaintiffs' case is that Ms Bolster as editor of Environment SA (and Vice President of the Conservation Council) was well aware of the Coalition's place within the campaign structure and that the use of that name carried with it a particular significance. The Kumarangk Coalition requires separate treatment as does Mr Owen's involvement in taking the campaign "underground" in order to escape legal responsibility.

To the extent that the defendants claim to have published (on occasions of privilege) material which is defamatory of a plaintiff it becomes important to examine the motivation for the publication. However, I understand the plaintiffs' case to be that for the most part the defendants were intentionally and unjustifiably mischievous rather than malevolent but in any event the plaintiffs allege that a desire to inflict harm to the plaintiffs was uppermost in the minds of the defendants when publishing.

16. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 par 340 attention is drawn to difficulties facing plaintiffs in this type of case:

"A defence of qualified privilege is a very difficult defence for plaintiffs to overcome. No narrow view, rightly, is taken of public interest. It may extend to "the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion". And, a defence of fair comment (absent malice) will prevail unless "no fair minded [person] could honestly hold [the] opinion [expressed]". Proof of a defendant's absence of good faith by a plaintiff is necessary to overcome a defence of qualified privilege, which imposes a very heavy burden upon a plaintiff, a proof in effect of a negative."

(See also Pratt & Ors v British Medical Association [1919] 1 KB 244 at 275-276 where the meaning of "malice" is discussed).

17. Undoubtedly some ill will has been generated by the present proceedings but I do not assume that this necessarily relates back to the dates of the various publications. A great deal of time has been occupied in a seven week trial in taking evidence as to the motivation of the defendants and the reasonableness of their conduct. However care is necessary to distinguish between situations in which there may be the "mere presence" of malice and situations in which the publication is "actuated" by malice. It is also necessary to distinguish between the state of mind which as now relevant is called "malice" and the various mental elements which are associated with the economic torts (as discussed below) which were apparently committed or anticipated in the course of "the struggle". To establish their case as to malice, the plaintiffs rely upon evidence extrinsic to the publications as well as material which is patent upon the face of the publications.

2 The undisputed background

18. The controversy surrounding the decision to build a bridge to Hindmarsh Island has been the subject of a Royal Commission and many legal actions. The framework of facts (apart from Mr Owen's crucial role) is well known and is the subject of extensive documentation.

19. In the interests of economy I have reproduced in an appendix to these reasons [see Part 19] a chronology of some of the more significant events in this framework which was provided to me as part of the plaintiffs' opening address. The case was fought against the background of that document (which I have slightly modified). Some of the items in that schedule were not formally proved. However on all trials much is taken by all parties as assumed and only those facts really in dispute strictly proved. In such cases what is assumed is in proof: in Re Robson [1952] SASR 101 at 105 per Napier CJ citing R v Higham [1857] EngR 448; 119 ER 1352 at 1355. For present purposes, I consider that the facts set out on that schedule have been sufficiently established or assumed by counsel.

20. Many of the items referred to in the chronology concern the planning process associated with Government approval for the building of the Hindmarsh Island bridge and for a real estate development. The steps in that process have also been reduced to tabular form in an appendix to these reasons. [see Part 20].

21. On 27 October 1989 the Department of Environment and Planning wrote to Conservation Council to place it on notice that an Environmental Impact Statement (EIS) had been required for a bridge to Hindmarsh Island in accordance with a decision of Cabinet on 23 October 1989. Guidelines for the preparation of the report were enclosed.

22. In November 1989 Binalong Pty Ltd issued for public comment a draft Environmental Impact Statement relating to a Bridge to Hindmarsh Island, Marina extensions and waterfront development. The Conservation Council responded to that proposal on 18 December 1989 expressing qualified approval for the proposal.

23. A supplement to the draft EIS was published in January 1990. Major Projects and Assessments Branch of Department of Environment and Planning issued its report on the project in March 1990. This report followed a requisition by the Department for a supplementary report dealing with anthropological issues; that report was supplied in January 1990 by Mr R Lucas.

24. On 11 April 1990 the Governor in Executive Council granted consent pursuant to s 51 of the Planning Act 1982 to Binalong's application under s 51 of the Planning Act to the development of a bridge. On 12 April 1990 the Manager of Aboriginal Heritage Branch of the abovementioned Department exercising delegated powers under s 6 of the Aboriginal Heritage Act 1988 authorised Binalong to establish the marina/waterfront development subject to conditions. On 22 March 1993 a deed was executed between Minister of Transport Development, District Council of Port Elliot and Goolwa and Binalong Pty Ltd whereby the Minister agreed to procure the construction of the Bridge and roadworks; the deed provided for Binalong to contribute to the cost of the works by way of a debt to the Minister but subject to certain priority payments to Partnership Pacific Ltd (Binalong's secured financier). Partnership Pacific is a subsidiary of Westpac Bank. On 9 September 1993 the Environmental Resources and Development Committee of the South Australian Parliament (ERD Committee) tabled a report as to its concerns regarding the building of the bridge. On 15 February 1994 (after obtaining a report from Mr Jacobs QC) the newly elected South Australian Government confirmed its intention to honour the contract entered into by its predecessor. In March 1994 the developer took proceedings in the Federal Court to restrain interference by protestors with the building of the bridge and the provision of banking services and on 29 March 1994 obtained interim injunctions which were modified on 19 April 1994. On that lastmentioned date interim orders against the Conservation Council, Professor Shearman and Ms Bolster were discharged for lack of evidence. On 7/8 May 1994 Professor Shearman and Ms Bolster attended a seminar conducted by the Environmental Law Association on the topic "Defending the Environment" where Professor Shearman complained in the course of a lecture about the oppressive effect of the Federal Court injunction upon the anti-bridge campaign.

25. My conclusion upon the reading of the background documents is that there was a process of community consultation before planning approval for the bridge was issued. The adequacy of that process became a matter for debate.

3 The Constitution of the Conservation Council

26. The Conservation Council of South Australia Inc is the peak (or "umbrella") conservation organisation for South Australia and represents member groups (fluctuating between 50 and 65 in all) whose main purpose is conservation and protection of the environment; the Conservation Council claims that those combined groups represent over 60,000 members (and this is confirmed by Ms Bolster's evidence). It is partially funded by grants from the Federal and State Governments. It is a non profit, non political party organisation. The evidence shows that the Conservation Council is influential in public affairs in South Australia. The Council is in a position through the goodwill of its members and associated organisations to provide expert advice to government and the community. The Council is also accustomed to lobby and to proselytise with respect to selected issues. My assessment is that the Conservation Council occupies a respected and powerful position of influence within the community.

27. As at September 1995 the Conservation Council ran 16 working groups to advise the Council on various environmental issues. One of these groups was the Environmentalists and Aboriginal Reconciliation Action Group ("EARAG") whose purpose was declared to be "Promotion of Aboriginal reconciliation and the forging of links, particularly in relation to the conservation movement and environmental issues".

28. Membership of the Conservation Council in terms of its 1993 rules is confined to organisations which become affiliated with the Council and which meet a strict set of criteria. Such organisations have voting rights via councillors appointed to represent the organisation at meetings of the Conservation Council; the number of councillors to be appointed by a particular organisation is dependent upon its own membership in accordance with a prescribed scale. It is the practice of the Conservation Council only to admit incorporated bodies to membership. (As a result of this requirement the admission of The Friends of Goolwa and Kumarangk to membership of the Conservation Council was deferred for some months until May 1994 to enable the association to become incorporated).

29. The Executive Committee (which includes the President, Vice President, Secretary, Treasurer and committee members) are elected by the councillors in general meeting from amongst their number but the Executive Committee itself has power to fill vacancies by election or appointment (see Rule 55); there is also a power to include staff on the Executive.

30. The rules contemplate the creation of Research Action and Resource Groups or Committees but these groups are not required to pay an affiliation fee. The operation of these groups is required to be reviewed by the Executive from time to time (see Rule 44 & 56).

31. The Conservation Council employs salaried core staff but it is largely dependent upon voluntary activity. Ms Bolster explained how a degree of informality is necessarily associated with the flexible workings (in an organisational sense) of the various sub-committees and working groups; these may hive off a matter of interest to a designated subgroup to satisfy the exigencies. Ms Bolster explained how those participating voluntarily in the affairs of the Conservation Council "came and went" as their interest in a particular topic waxed or waned or as the topic of interest was disposed of.

32. This evidence is important in order to understand how Mr Owen (when he expressed an interest) was so quickly absorbed into the workings of the Conservation Council in the latter part of 1993 without formality. It also assists in explaining how the Kumarangk Coalition could be created as an apparent entity working alongside other interests within the Council. Ms Bolster's evidence also explains how (until the Friends of Goolwa and Kumarangk became incorporated during 1994) the Friends' organisation after May 1993 was treated as a de facto member of the Council.

33. Having regard to the issues in this case I have found it to be convenient to refer to the terms of the 1993 constitution; I note that this has since been substantially revised. Although the 1999 revision (incorporating changes in November 1995 and February 1999) is much easier to read than its predecessor there is no great change in structure. I note that provision has now been made for three Vice Presidents instead of only one.

4 The legal principles

(a) The nature of libel

34. The gist of the tort of libel is the publication of material (in this case words) conveying a defamatory imputation. Such an imputation is one to the plaintiff's discredit or which tends to lower him in the estimation of others or causes him to be shunned or avoided or exposes him to "hatred, contempt or ridicule". This lastmentioned phrase has been criticised as too narrow and the test proposed in Sim v Stretch (1936) 52 TLR 669 by Lord Atkin is "Would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?" However untruth alone does not render an imputation defamatory. The issue is whether the words in their particular context impinge adversely upon the reputation of the particular plaintiff. (see also Reader's Digest v Lamb (1981) 150 CLR 400 at 505-506 and Berkoff v Burchill & Anor [1996] EWCA Civ 564; [1996] 4 AER 1008.)

35. An imputation which may tend to injure a person's reputation in his business calling or office is defamatory if it imputes to the plaintiff some quality or lack of quality which is essential to that business calling or office. The mere fact that the words tend to injure the plaintiff in the way of his calling is insufficient to found an action unless they involve a reflection upon personal character or professional reputation [see Milmo, P & Rogers, WVH, Gatley on Libel and Slander (9th ed) Sweet & Maxwell London, 1998, par 2.26].

36. An allegation of insanity will diminish confidence in a person and may therefore be defamatory. (Morgan v Lingen (1863) 8 LTR 800). However, to say that someone is "crazy" or "lunatic" when taken in context does not necessarily impute a mental disorder. "Sheer lunacy" as descriptive of conduct may therefore not be construed literally (see Gatley supra at 2.6 and cf Publication No 4).

37. Words or matter which merely injure the feelings of the plaintiff or cause annoyance but without in any way reflecting on character or reputation or tend to cause the plaintiff to be shunned or avoided are not actionable as defamation [Gatley supra at par 2.9]. However, if the words are defamatory then the court may have regard to the injury to the plaintiff's feelings in fixing damages. Words which tend to cause inference with a person's business are not as such defamatory unless they tend to injure the plaintiff's reputation.

38. It is the effect of a statement upon right thinking members of society generally which provides the criterion by which an imputation will be judged. It is the impression which the statement would produce upon the minds of the average reasonable person which stands to be considered. However in applying this test it is necessary to put aside conclusions which (although excited by the publication) substantially arise by reason of an individual's own beliefs and prejudices. In Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 Mason J said at 301:

"A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader."

39. It is sufficient that the imputation in a statement is one which might lead at least a group of people to think less of the plaintiff so long as the statement is made to members of that group. (see Krahe v TCN Channel Nine Pty Ltd & Ors (1986) 4 NSWLR 536 at 544). However in such a case it will be necessary for the plaintiff to plead the sectional attitude as an extrinsic fact; that has not happened in the present case which has been argued with reference to general community attitudes. (see Reader's Digest Services Pty Ltd v Lamb (1981) 150 CLR at 500 at 507).

(b) The defence of qualified privilege

40. Qualified privilege at common law was described by Lord Atkin in Adam v Ward [1917] AC 309 at 334:

"...a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

41. Qualified privilege is defeated if the plaintiff proves that the defendant was activated by "express" or "actual" malice. The plaintiff must prove that the defendant's dominant motivation was something not directly connected with the privilege so as to constitute an abuse of the privilege of the occasion. The usual motive is a desire to injure the plaintiff.

42. This defence has been "extended" by the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. The court after reviewing the limits of common law privilege and the criterion for its application then pointed out the shortcomings involved in applying the principle of Adam v Ward to a publication made to the general public. The High Court (without disturbing the operation of existing principle) then grafted onto the general principle a test to meet the circumstances where the occasion is claimed to be privileged only on the footing of the relevance of the published matter to a discussion of government or political matters and where otherwise the audience would be too wide to attract the general defence of qualified privilege.

43. The High Court said at 571:

"...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."

and at 574:

"Having regard to the interest that the members of the Australian community have in receiving information on government and political matters that affect them, the reputations of those defamed by widespread publications will be adequately protected by requiring the publisher to prove reasonableness of conduct. The protection of those reputations will be further enhanced by the requirement that the defence will be defeated if the person defamed proves that the publication was actuated by common law malice to the extent that the elements of malice are not covered under the rubric of reasonableness. In the context of the extended defence of qualified privilege in its application to communications with respect to political matters, "actuated by malice" is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose."

and further at 574:

"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."

44. I have discussed below the topic of "reasonableness" and the circumstances in which malice might arise independently of conduct which is otherwise characterised as "reasonable" within the Lange test. At first blush it would seem that the presence of malice would be incompatible with reasonable conduct. My conclusion (as appears below) is that it was necessary for the High Court to express itself as it did in order to maintain a consistency between the Lange defence and the principle which it extends.

45. It is at present far from clear as to the ambit of the discussion which is protected by the Lange principle.

46. In Australian Broadcasting Commission v Lenah Game Meats [2001] HCA 63 par 196 Kirby J pointed out that:

"In Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211, a majority of this Court held that, because of the integration of politics within the Commonwealth, the implied constitutional freedom of communication, as there expressed, protected political discussion in relation to all levels of government including State government. Whether that approach is compatible with the constitutional principle expounded in Lange has not yet been decided. It is not communication at large, nor communication relevant to politics generally, that is protected by the implication upheld in Lange. To be inconsistent, the law must conflict impermissibly with the postulated operation of the Constitution."

47. For present purposes I have treated the Lange principle as having the capacity to include (at least potentially) matters germane to State and local government politics.

(c) The defence of fair comment on a matter of public interest

48. It is of the essence of this defence that the published material is an honest expression of opinion. An imputation of corrupt or dishonourable motives will render the comment unfair unless such imputation is warranted by the facts truly stated (see Publication No 6). The essential elements of the defence are:

(a) the words are an expression of opinion (as opposed to a statement of fact).

(b) the opinion is with respect to a topic of public interest.

(c) the comment was fair; this requires the opinion to be expressed on a matter of fact (or on privileged material such as the judgment of a court or the proceedings of Parliament) and to be expressed honestly (see Tobin and Sexton - Australian Defamation Law par 13010).

49. This defence will also be defeated by malice (the onus of proving which lies on the plaintiff). In Renouf v Federal Capital Press of Australia (1977) 17 ACTR 35 Blackburn J said at 54:

"If the plaintiff can show that the opinion represented by the comment was affected by personal hostility, or some such irrelevant motive, in such a way that it does not represent a disinterested judgment upon the matter which is the subject of the comment, then the reply of malice succeeds, notwithstanding that it is not proved that the comment...did not represent the defendant's real opinion."

50. Balkin and Davis Law of Torts (2nd ed) at 549 provides the following definition as to the extent of the fair comment defence:

"...criticism on matters of public interest, in the form of comment upon true or privileged statements of fact, such comment being made honestly by a person who did not believe the statements to be untrue and was not otherwise actuated by malice."

51. In London Artists Ltd v Littler Grade Organisation Ltd & Ors [1968] EWCA Civ 3; [1969] 2 QB 375 Lord Denning MR said at 391:

"In order to be fair, the commentator must get his basic facts right. The basic facts are those which go the pith and substance of the matter: see Cunningham-Howie v Dimbleby [1951] 1 KB 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. He must indeed afterwards in legal proceedings, when asked, give particulars of the basic facts: see Burton v Board [1929] 1 KB 301; but he need not give particulars of the comments or the inferences to be drawn from those facts. If in his original article he sets out basic facts which are themselves defamatory of the plaintiff, then he must prove them to be true: and this is the case just as much after section 6 of the Defamation Act, 1952, as it was before. It was so held by the New Zealand Court of Appeal in Truth (NZ) Ltd v Avery [1959] NZLR 274, which was accepted by this court in Broadway Approvals Ltd v Odhams Press Ltd [1965] 1 WLR 805. It is indeed the whole difference between a plea of fair comment and a plea of justification. In fair comment he need only prove the basic facts to be true."

(See also Nationwide News Pty Ltd & Anor v Redford [2001] SASC 198 par 43).

(d) Abuse of privilege in Australia

52. In determining the imputations which arise by reference to the natural and ordinary meaning of words, the intention and knowledge of the publisher are immaterial. However these two lastmentioned matters become of importance when the defence of qualified privilege is under consideration. The speech of Lord Diplock in Horrocks v Lowe [1975] AC 135 is authoritative as to the principles relating to "malice" in defamation law. However, it appears that in one respect the Australian approach to the question of malice is different from that which has found favour with Lord Diplock.

53. Under the general law (considered apart from Lange) a distinction is to be drawn between abuse of privilege and lack of privilege. This distinction may be difficult to apply in practice. In Adam v Ward [1917] AC 309 Lord Loreburn identified this distinction at 321:

"Language has been used in some cases which seems somewhat to confuse the two separate points, namely, whether the defendant has gone beyond the privilege which the occasion creates, and whether the defendant has forfeited the privilege by malice. Excess of privilege in part of a defamatory publication may of course be evidence of malice as to the whole of it, but the two things are different."

54. Lord Finlay LC said at 318:

"The privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. The introduction of such extraneous matter may afford evidence of malice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication."

55. Lord Dunedin said at 327:

"...if the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto, than to say, though the result may be the same, that the defamatory statement is evidence of malice".

56. In Horrocks v Lowe [1975] AC 135 Lord Diplock expressly relies on Lord Dunedin's speech when dealing with the case where the publication incorporates matter for which protection is unnecessary in order to satisfy the underlying legal purpose of the privilege. At p 151 Lord Diplock said:

"As Lord Dunedin pointed out in Adam v Ward [1917] AC 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference."

57. As Adam v Ward shows, once an occasion of qualified privilege is found by the Judge, at common law the plaintiff must show, (if he can) that the defamatory matter was not published for the purpose of the privilege. In Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 at 117 Dixon J said:

"...since upon this issue the burden is upon the plaintiff, a question of the sufficiency of evidence to sustain the issue, which, of course, is one for the Court, is a question whether the plaintiff has displaced, not whether the defendant has established, privilege for the communication. Whether or not the occasion gives a privilege is a question of law for the judge, but whether the party has fairly and properly conducted himself in the exercise of it is a question for the jury: per Lord Campbell CJ in Dickson v Earl of Wilton (1859) [1859] EngR 26; [175 ER 790 at 793]."

58. Where the specific matter of complaint is part of a wider publication relating to a topic which itself would attract privilege, it seems that in Australia the distinction between absence of privilege for the occasion and abuse of a privileged occasion as identified by Lord Loreburn should be maintained.

59. In Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1995) 185 CLR 183 the High Court of Australia made its analysis by reference to the various speeches in Adam v Ward. It seems that in Australia Lord Dunedin's approach (as adopted by Lord Diplock in Horrocks v Lowe) has not been preferred.

60. In Bellino at 203 Brennan CJ summarised the position as follows:

"Except in those clear cases where the defamatory matter is "extraneous" in the sense of being "unconnected with and irrelevant to the main statement", Lord Dunedin would have left the connection between the defamatory matter and the general subject matter of the publication as a factor for consideration by the jury in determining the issue of express malice. Lord Finlay's exposition, on the other hand, requires the judge to consider that connection in determining whether the publication of the defamatory matter fell within the occasion of qualified privilege that covered the publication of the "main statement" and entitles the jury to take the same or a similar factor into account in determining the issue of malice.

In Australia, Lord Finlay's analysis appears to have commanded assent in Code jurisdictions as well as at common law..."

And at 204:

"Protection for such a statement, however, is not determined by negating Lord Dunedin's test of "unconnected with and irrelevant to the main statement". It is determined by the positive criterion of relationship to or nexus with the relevant subject of public interest. That criterion is not satisfied unless the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest. In the present case, the question is whether those passages of the programme which contained the imputations found by the jury contributed to the discussion of the subjects of public interest specified in the defendant's particulars. Before answering that question, it is convenient to refer to the issues (other than the publication of defamatory matter) on which the plaintiff bore the onus of proof and the judge's function in considering the evidence on those issues.

As Adam v Ward shows, once an occasion of qualified privilege is found by the judge, at common law the plaintiff must show, if he can, that the defamatory matter was not published for the purpose of the privilege."

(I note that Brennan CJ was in dissent in Bellino but that does not affect the usefulness of the above remarks).

61. In the present action, the defendants' "primary case" (as defence counsel described it) relies upon the extended application of the defence of qualified privilege by virtue of the application of the principles in Lange. The defendants assert the "reasonableness" of their individual conduct on an occasion of qualified privilege by virtue of the subject matter of the publication being relevantly related to a discussion of government or political matters (see Lange at 573).

62. It seems to me that if the general common law principles already discussed are consistently applied to the "Lange extension" there will be some situations in which the ambit of the extended privilege (based on an analysis of "conduct") will determine whether or not the privileged occasion encompasses defamatory matter written maliciously; there will be other occasions when the matter may be determined by reference to whether the privilege has been forfeited by the reason of abuse of privilege.

63. In Lange at 574 the High Court appears to have accommodated these two possible approaches in observing that the extended privilege may be defeated if the publication was actuated by common law malice "to the extent that the elements of malice are not covered under the rubric of reasonableness". Whether or not the conduct of the defendant is "reasonable" may be measured partly by reference to the defendant's own conduct and partly by reference to the behaviour of the plaintiffs (see Brander v Ryan [2000] SASC 446; (2000) 78 SASR 234 at 249). If one applies the principles discussed by Brennan CJ as abovementioned there may be circumstances arising out of the plaintiffs' behaviour where the defendant has not gone beyond the privilege which the occasion creates but nevertheless forfeits that privilege if actuated by express malice - to be proved as a fact.

64. However, the ambit of malice as known to the common law and as extended by Lange may not entirely coincide. At 574 the High Court said:

"In the context of the extended defence of qualified privilege in its application to communications with respect to political matters, "actuated by malice" is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.

In Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 137, the Court held that, once the publisher proved it was unaware of the falsity of the material, had not acted recklessly, and had acted reasonably, malice could not defeat the constitutional defence. But once the concept of actuating malice is understood in its application to government and political communications, in the sense indicated, we see no reason why a publisher who has used the occasion to give vent to its ill will or other improper motive should escape liability for the publication of false and defamatory statements. As we have explained, the existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was actuated by that ill will or other improper motive Mowlds v Fergusson [1939] NSWStRp 43; (1939) 40 SR (NSW) 311 at 327-329. Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff's onus of proof on this issue."

65. This statement may be compared with Lord Diplock's exposition in Horrocks v Lowe [1975] AC 135 at 150 with respect to common law malice:

"Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity."

66. It is the plaintiffs' case that each of the defendants has not used the occasion of publication for the purpose of making a contribution to public discussion but for the predominant purpose of administering a blow to the reputation of the plaintiffs (or one or more of them) in furtherance of a campaign to persuade or coerce those involved in the bridge project to have a change of mind. The plaintiffs rely upon the circumstances of publication as well as the other extrinsic evidence and intrinsic evidence in the publication to support the allegation of malice.

(e) The exceptional case

67. Generally speaking the media do not have the benefit of the defence of qualified privilege at common law (see Morosi v Mirror Newspapers [1977] 2 NSWLR 749 at 777-8 and Stephens & Ors v West Australia Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 at 261). This topic is also discussed in the passage from Lange which I have quoted. However, as the High Court acknowledged in Lange there are "a few exceptional cases". The example given is Loveday v Sun Newspapers Ltd & Anor [1938] HCA 28; (1938) 59 CLR 503 at 525 where Dixon J identifies a social duty upon a newspaper to publish a reply to material which was published under the plaintiff's authority; the course taken by the plaintiff completed the foundation for qualified privilege in that case.

68. Despite the way in which Stephens was qualified by Lange (so as to conform to the requirements of the Australian Constitution) the following extracts from the reasons given by McHugh J in Stephens provide guidance at 261:

"Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large. Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested. In Howe & McColough v Lees, Higgins J said that the word 'interest' was not used in any technical sense. However, his Honour said that the person must not be 'interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news'. In the same case, O'Connor J said that the interest must be 'of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it."

And at 265:

"Accordingly, it is now appropriate for the common law to declare that it is for 'the common convenience and welfare' of Australian society that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers. The scientist who discovers that lack of governmental action is threatening the environment, the 'whistleblower' who observes the bureaucratic or ministerial 'cover up', and the investigative journalist who finds that grants of public money have been distributed contrary to the public interest are examples of persons who have special knowledge of matters affecting the exercise of public functions or powers or the performance of duties by public representatives or officials. If such persons, acting honestly, inform the general public of what they know about such matters, their publication will be made on an occasion of qualified privilege. The defence of qualified privilege will be available even if the information is subsequently proved to be incorrect. Thus, the occasion will still be privileged even if the 'whistleblower' mistakenly but honestly publishes information which defames another person or the scientist or journalist honestly overlooks some fact which undermines the thesis of his or her claim. The publication of erroneous information may be evidence of malice in some cases. But by itself an error in the published information will not destroy the occasion of privilege."

69. Qualified privilege (if the conditions in Adam v Ward are satisfied) is available to meet the situation where a statement honestly made has insufficient foundation in fact. The defence of fair comment on the other hand requires that the comment be on a matter of public interest and based upon an adequate foundation of fact. The exceptional cases to which I have referred are only concerned with qualified privilege.

70. By reason of the way in which the plaintiffs in the present case chose to open up the public debate and alternatively by reason of the special topics which have been canvassed it seems to me that it is at least arguable that qualified privilege at common law might attach to communications with the subscribers to Environment SA. I have made this assumption for the purpose of my analysis. In this respect upon one view of the facts some of the publications in the present case may be the exception to the Morosi principle.

(f) "reasonableness"

71. The High Court in Lange adopted the test of "reasonableness of conduct" in light of the basic criterion contained in s 22 of the Defamation Act (NSW). Although the element of reasonableness of conduct under the Lange test is not necessarily tied to the New South Wales statutory provisions, decisions under that legislation may be helpful.

72. Thus in Austin v Mirror Newspapers Ltd [1986] 1 AC 299 at 313 Lord Griffiths on behalf of the Privy Council said:

"In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. These circumstances will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be."

And at 317:

"The harder hitting the comment the greater should be the care to establish the truth of the facts upon which it is based."

73. In Wright v Australian Broadcasting Commission & Anor [1977] 1 NSWLR 697 Reynolds JA (with Glass JA agreeing) said at 712:

"The connection between the subject and the defamatory imputation remains relevant. It may be tenuous, or it may be real and substantial. If what was said includes comment, it is relevant to consider whether it was fair and whether it followed logically from facts known or stated. Questions of the exercise of care before the defamatory utterance are also relevant, and questions as to whether the maker of the statement knew whether he was likely to convey a misleading impression. These are but examples of what I conceive to be involved in the inquiry to be made by the judge in order to determine whether the defendant has satisfied him that it was reasonable of him to defame the plaintiff in the way he did."

74. I have brought these principles to account in my own assessment of the facts of this case.

5 The identification of defamatory imputations (and consequential issues thereby raised on the pleadings)

75. Brander v Ryan [2000] SASC 446; (2000) 78 SASR 234 contains a useful summary of the principles which I am now required to apply and the steps to be taken with respect to each publication in order to establish whether or not liability has been proved. The first step is to decide whether the words in question were written of or concerning the plaintiffs (or any of them) and whether any of the alleged imputations arise and, if so whether any such imputation is defamatory. I have undertaken this exercise in detail with respect to each publication later in this judgment (see Part 17) but it is convenient now to provide a synopsis of my conclusions as follows:

Synopsis of conclusions

76. In my opinion only Publications 6, 7 and 11 are defamatory. Publication 6 (which is to be read in light of a reference back to Publication 5) is defamatory only of Wendy Chapman; Publications No 7 and 11 are defamatory of Tom and Wendy Chapman. I do not consider that the plaintiff Andrew Chapman is defamed by any publication.

Defamatory imputations

77. In respect of the three defamatory publications I find that the following imputations arise:

Publication No 6 That Wendy Chapman was party to the commencement of Court proceedings and the issue of legal letters for the purpose of (i) suppressing freedom of speech, (ii) stifling debate and (iii) stopping the Conservation Council from engaging in legitimate expression of opinion in public regarding the Bridge issue.

Publication No 7 That with respect to the right of freedom of speech upon the Bridge issue Tom and Wendy Chapman are oppressing the ordinary citizens of Goolwa.

Publication

No 11 That during the planning process for the bridge the developers (Tom and Wendy Chapman) consulted with the aboriginal people in a less than meaningful way and with respect to the bridge building they failed to consult aboriginals when they had an obligation to do so.

78. Publications No 6 and 7 impute motive and conduct which the ordinary person would treat as dishonourable. Publication No 11 attributes to developers a cavalier attitude (at the least) in the discharge of their professional responsibilities.

79. In my opinion when read fairly and in context the natural and ordinary meaning of the words complained of in the statement of claim (with respect to Publications No 6, 7 and 11) carry the imputations set out above. In my judgment each of these imputations would tend to "lower Tom or Wendy Chapman (as the case may be) in the estimation of right thinking members of society generally". They are statements which if false bring discredit upon the reputation of the persons about whom they are written.

80. During the course of the trial I gave the defendants an intimation which made it necessary for them only to address the imputations pleaded with respect to Publications No 5, 6, 7 and 11. The evidence (apart from that dealing with the defendants' motives and the "reasonableness" of their conduct) in fact has been substantially confined to those publications and to the more general question of the identification of the plaintiffs in the various articles. However, in the four publications lastly mentioned there is an internal identification. Publication 5 identifies the activities of Wendy Chapman and this is carried forward into Publication No 6 by virtue of its cross-reference to Publication 5. Publication No 7 refers to "the Chapmans" but there did not seem to be an issue at trial that this was a reference to Tom and Wendy Chapman. Publication No 11 refers to Tom and Wendy Chapman as being the developers. (Without the aid of Publication No 5, the ordinary reader would have treated article No 6 as referring both to Tom and Wendy Chapman).

81. With respect to Publication No 6 the defendants plead a false issue. They assert that insofar as the words meant that the plaintiffs silenced the defendants from expressing valid concerns on the bridge by legal process then that statement is true. However, the imputation alleged by the plaintiffs (and the one which I find to be proved) is one involving the plaintiffs' purpose. The relevant ground of defence does not directly deal with the meaning alleged by the plaintiffs and it provides no answer in law.

82. With respect to the imputation of oppression of ordinary people which is raised by Publication No 7 the defendants again plead truth insofar as the words complained of meant that the plaintiffs had caused people to be intimidated by legal proceedings or the threat of legal proceedings. In my view it is an embarrassment to introduce a plea which requires the Court to determine whether "oppression" mentioned in the publication is synonymous with the "intimidation and threat of legal proceedings" mentioned in the defence. If the defendants consider that the imputation alleged by the plaintiffs is true then the proper course is to plead directly to the statement of claim and not to some modification thereof, which the defendants may consider to be more advantageous to their case. Again, the defendants avoid joining issue with the plaintiffs and their false plea should be treated as having no force.

83. As regards Publication No 11 the defendants plead truth in respect of an imputation that the plaintiffs failed to properly consult with Aboriginal people during the planning process; however the defendants do not limit their assertion to the planning process for the bridge. To the extent that this plea deals squarely with one of the defamatory imputations which I have found to arise, it may be arguable that there is upon the pleadings an issue of fact to be determined as to whether or not during the planning process for the bridge the plaintiffs' consultations with the Aboriginal people were less than meaningful. It is to be noted that in this plea (referred to by counsel as a Polly Peck Plea) the defendants do not assert that Wendy Chapman made an admission in the Federal Court as alleged in the statement of claim nor do they plead that any breach of condition attaching to the building of the bridge was committed by Tom or Wendy Chapman.

84. Upon a fair reading of the pleadings (despite what I have said in the previous paragraph) I do not consider that a defence of truth (or justification as it is often called) is properly raised. This conclusion was confirmed by the acknowledgements of defence counsel. His position was reaffirmed in the course of argument Despite the "false issues" which I have mentioned, it has not been difficult for the defendants (under the rubric of "reasonableness") to canvass these topics in the course of presenting the "Lange defence". Thus, the defendants have presented a case based upon alleged intimidation of the people of Goolwa by the plaintiffs with respect to legal proceedings so as to stifle free speech. The defendants have also put a case which alleges some breach of the planning process with respect to the bridge. The defendants have therefore been afforded a full opportunity to present the case of their choice and I do not consider that the plaintiffs have been disadvantaged in any substantial way.

85. Subject to consideration of the defences as pleaded and the reply it is my opinion upon the face of the statement of claim and upon bringing to account the matters admitted in the defence that the Conservation Council is liable in respect of Publications 6, 7 and 11 and that jointly with it Professor Sherman is liable in respect of Publication No 6 and that jointly with it Ms Bolster and Mr Owen are liable in respect of Publication No 7; upon this provisional view Mrs Wendy Chapman has been defamed by Publication No 6 and Mr Tom and Mrs Wendy Chapman have each been defamed by Publication No 7 and by Publication No 11.

6 Community Values

86. For the purposes of the law of libel a statement must be viewed in the light of the prevailing community standards. As appears from Part 5 of these reasons it is my judgment that only Publications No 6, 7 and 11 carry an imputation which is defamatory of any of the plaintiffs. It is convenient that I mention community values which are relevant to my assessment of these publications.

87. In my opinion right thinking members of society generally will be concerned with the plight of the Australian Aborigine - whether in an urban environment or in more remote areas. I consider that these members of society would be more demanding as regards the standards which they would expect a developer to observe when dealing with the disadvantaged than when dealing with those who are seen as better able to look after their own interests. To say (for example) that a person in commerce has been able to by-pass the interests of a banker is very different from asserting that during a planning "process" (ie when taking the steps required by law) one step with respect to consultation with Aborigines has been carried out by a real estate developer in a way which is less than meaningful (see Publication No 11). In my view society would condemn the latter conduct and it would reflect to the discredit of the person responsible.

88. The present case is different from that which arose in Chapman v Nationwide News [1999] SASC 553 where the relevant words of the article merely said that "consultation of Aborigines over the bridge has been insufficient". The critical difference between that case and the present is the reference to an objective standard of the "planning process" in Publication No 11.

89. In about March and April 1994 the anti bridge campaign (to which I have referred in Part 1) stalled when Federal Court injunctions were obtained or foreshadowed. For a time some anti bridgers were unwilling to persist with their active participation in demonstrations and protests by reason of anticipated legal consequences. This has led to the publication of three articles Publications No 5, 6 and 7 (in successive parts of Environment SA - in about June, September and December 1994); Publication No 6 incorporates a reference to No 5. It seems to me that having regard to community values, Society's attitude with respect to an allegation that a person was using court proceedings or threat thereof for the purpose of suppressing free speech of citizens with respect to matters of environmental importance and the planning process more generally - being matters of moment - will be regarded differently than if the issue were seen to be trifling. I do not consider that the imputation with respect to interference with free speech can be satisfactorily assessed at large and without having regard to the topic - in this instance "The Hindmarsh Island Bridge issue". The statement of claim does not make any express reference to the topics with respect to which the plaintiff is supposed to have been acting to suppress freedom of speech. It is an allegation made generally. However, the grievance which is being aired is apparent upon the face of the Publications No 5 and 7 (and in the cross reference from Publication No 6 to No 5) and I have addressed the case upon this basis.

90. Community attitudes change. However, at the times of issue of Publications No 6, 7 and 11 I consider that the effect of the imputations arising with respect to these publications as regard the reputations of the plaintiffs is significantly affected by the issues which are seen to be at stake. My assessment of community values has thus led me to a conclusion that the reputation of Tom and Wendy Chapman (or one of them as the case may be) would be lowered in the eyes of right thinking members of society by Publications No 6, 7 and 11 by reason of the imputations mentioned in Part 5. My reasoning is developed in later parts of this judgment.

91. The defamatory nature of each imputation in Publications No 6, 7 and 11 lies in its tendency to excite against the relevant plaintiffs the adverse opinions or feelings of other people (being the reasonable readers of the publications). Each of the three publications reflects poorly upon the reputation of Mr or Mrs Chapman; each publication contains an attack upon the moral character or business practices of a plaintiff, attributing to him (or her) conduct, which judged by ordinary community standards, is unacceptable and leading to an adverse effect upon reputation. Publications No 6, 7 and 11 each has the effect of inviting the reader's condemnation of Mr or Mrs Chapman (as the case may be).

92. In reaching this conclusion I have applied the principles discussed by Heuston, RFV & Buckley RA, Salmond & Heuston on the Law of Torts (21st Edition, Sweet & Maxwell Ltd, London, 1996 at 141):

"The test of the defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinions or feelings of other persons. The typical form of defamation is an attack upon the moral character of the plaintiff, attributing to him any form of disgraceful conduct, such as crime, dishonesty, untruthfulness, ingratitude, or cruelty. But a statement may be defamatory if it tends to bring the plaintiff into ridicule or contempt even though there is no suggestion of any form of misconduct. An action will lie, therefore, for the publication of a caricature of his personal appearance or manners. In some circumstances it might even be defamatory to say of a man that his acts were legally justified. Rightminded men sometimes think the less of one who has successfully pleaded a technical defence - eg the Gaming Acts or the Statute of Limitations. Successful litigants have in the past been booed on leaving the court. Again a statement is defamatory if it amounts to a reflection upon the fitness or capacity of the plaintiff in his profession or trade, or in any other undertaking assume by him."

93. It is the standards of the right thinking member of society which are to be applied.

7 Mr Owen's anti bridge campaign

(a) The interest of the shack owners

94. This is the story as to how Mr Owen a shack owner on Hindmarsh Island used his professional skills arising from his training as a research librarian and geography teacher in his struggle (on behalf of himself and the Friends of Goolwa and Kumarangk) to avoid the development which would be associated with construction of a bridge between the Island and Goolwa. He has not worked alone. He has harnessed the support and professional skills of academics as well as people living on the Island. Arguably, the government's decision to build a bridge to Hindmarsh Island was not immediately accompanied by a comprehensive environmental management plan for the Island. If the anti bridgers had confined themselves to seeking improvements to the environmental management techniques and programmes then the issue would have been far less controversial. However, Mr Owen (and others with him) chose to oppose a decision of an elected government; this decision was effectively beyond recall (in the absence of intervention by the Federal Government) unless the parties entitled to the benefit of the commercial agreements could be persuaded to give way. A significant feature of the anti bridge campaign was therefore the attempt to coerce. Such a campaign is necessarily different from a normal political lobby.

95. It was open to Mr Owen and his supporters to try to convince the various commercial interests that there was a better way to develop than to build a bridge. Ostensibly this was tried but the reality is that in practice a bridge was necessary in order to satisfy the various commercial and governmental requirements. With the benefit of hindsight it can be seen that since February 1994 in terms of the public debate employing legitimate argument Mr Owen was fighting a losing battle without much ammunition unless the building of the bridge could be frustrated in law by the over-riding application of some Federal law. The campaign did include a successful attempt to invoke Federal law and to this extent a proper lobbying situation can be identified. That aspect of the campaign must be separated from steps which were designed merely to hurt the Chapmans or the bridge builders (including the South Australian Government.)

96. Mr Owen's campaign purports to raise a number of "issues". These are summarised in an information package dated 30 May 1994 and distributed at about that time The issues are there summarised as including:

"Aboriginal heritage issues

International agreements to protect wetlands for migratory birds

environmental management

the built heritage, particularly of Goolwa

poor planning policies and practices

civil liberties"

97. I draw attention to the way in which the campaign developed. It was an environmental campaign in May 1993; Aboriginal issues had been added by January 1994 and civil liberties after April 1994.

98. Mr Owen has a shack on Hindmarsh Island's southern foreshore overlooking the Coorong estuary and the mouth of the Murray River. He has used the shack since 1980 but has only lived there permanently since 1998. His shack lies immediately to the west of and adjoining the "Mouth House", a shack then owned by Ms Lewis and occupied at the relevant time (post October 1993) by Mr Milera (since deceased) and Mrs Milera. Mr Owen was a secondary school geography teacher in metropolitan Adelaide (having obtained an arts degree at Adelaide University majoring in geography and history). He also did some two years study in religious education. He undertook further training as a teacher/Librarian and took appointments with various school resource centres. In 1986 Mr Owen obtained an appointment at Adelaide College of TAFE as deputy principal in charge of the learning resources programme and he remained in this position until retirement in 1998. Mr Owen had responsibility for the "Learn Network" of all resource and training centres across TAFE. He was the Foundation President for 8 years of the Resource Centre Teachers Association where he gained experience (so I infer) at lobbying Government.

99. In my opinion Mr Owen is a clever man, he has literacy skills as a "wordsmith" combined with powers of advocacy as a lobbyist; he also has organisational ability. He has an assertive personality which no doubt contributed to his success in the affairs of the Conservation Council. Mr Owen's prolific writings show that he is ready to take his assertions to the very limits of the truth but also prepared to go beyond that point. His letter to the District Council of Goolwa dated 21 December 1994 is an example. He was prepared to brand the Chapmans'conduct as "criminal" when it suited his purpose.

100. Mr Owen had been watching events since the original planning approval for the bridge by the Governor in Council issued on 11 March 1990. He had made a submission in response to the 1989 draft EIS (which he read). He has developed an intimate knowledge of the documents. His address to a public meeting at Goolwa on 8 October 1993 shows a remarkable knowledge of facts which must have involved some research effort. Mr Owen was generally aware of opposition to the building of the bridge as evident by petitions to Parliament in 1991, 1992 and 1993. In 1993 he became associated with a group of anti bridgers whose purpose was to lobby the State Government to try to exert pressure on the South Australian Government to change its mind in terms of its announced intention to build a bridge. This group became the Friends of Goolwa and Kumarangk. When it became evident in 1993 that the State Government itself was about to proceed with the bridge building he embarked upon a course to garner support for his cause and later to pursue action to thwart the project. Despite extensive litigation and a Royal Commission his pivotal role in the turmoil which was created has never been identified. The absence of the evidence of "key people" before the Stevens Royal Commission is acknowledged by Mr Owen in a letter to Justice Matthews dated 5 February 1996. Mr Owen wrote that letter in his capacity as Chair of the Friends of Goolwa and Kumarangk Inc. My finding is that Mr Owen himself is a "key person" with special knowledge.

101. In summary Mr Owen involved himself in the following steps:

(1) He approached a meeting of the Conservation Council on 21 May 1993 and solicited the Council's support for opposition to the bridge building on environmental grounds. He made a written submission to the Council.

(2) He secured appointment to Conservation Council's EARAG sub-committee (Environmentalists and Aborigines Reconciliation Action Group).

(3) He took steps to incorporate an organisation called the Friends of Goolwa and Kumarangk (a group of anti bridgers of which he was the President) so that it could affiliate with the Conservation Council and provide Owen with formal status under the rules of the Conservation Council to qualify for membership of the Conservation Council's Executive.

(4) He wrote letters ostensibly in the name of a representative of Lower Murray Aboriginal Heritage Committee to members of Government and he provided detailed argument (upon reading of planning documents) for overturning the bridge building arrangements. He used his position of assistant to the Lower Murray Heritage Committee to obtain access to classified information (see s 35 Aboriginal Heritage Act) which he then used as part of his own writings. In this way he was able to link up the concerns expressed by Aboriginal interests with his own campaign.

(5) He provided briefing material to the media (for example Victor Harbour Times 17 March 1995 - and fax to Advertiser reporter Mr James - dated 3 June 1994).

(6) He participated in covert operations conducted under the name "Kumarangk Coalition" for the purpose of putting activities beyond the reach of court injunctions which were anticipated at the suit of the plaintiffs or their associated entities.

(7) He acted as a public face of the Kumarangk Coalition.

(8) He became a member of the Executive of the Conservation Council and used that position and his association with Friends of Kumarangk and Goolwa to develop an association with other bodies namely a trade union, Greenpeace and aboriginal interests for the purposes of protest against the building of the bridge.

(9) He went in search of argument justifying opposition to the bridge but he also looked to see how those involved with the bridge could be "targeted". He then worked up a campaign in which he used his connections as set out above to disseminate his messages.

(10) He took part in the "counselling" of anti bridge pickets and he personally picketed the bridge site and attended protest meetings.

(11) He participate in the composition of various letters and leaflets (see for example a pamphlet distributed in the Goolwa district in about June 1994 which is expressed in extravagant terms in its criticism of developers).

(Mr Owen personally took his cause to Canberra in December 1993 as President of the Friends; he there met up with an Aboriginal delegation for the purpose of approaching government; I have treated his efforts in this respect as being part of a "proper lobbying situation" to which I have already referred and isolated from the campaign to hurt the Chapmans and the bridge builders).

102. I am satisfied that Mr Owen inspired the decision of the Conservation Council in 1993 to oppose the building of the bridge despite the fact that previously the council had formally given qualified written approval to the project when the Environmental Impact Study (EIS) was submitted for public comment before planning approval was granted.

103. There can be no doubt that the Conservation Council adopted a sharp reversal of policy as a result of Mr Owen's representations to it despite the attempts in evidence to explain the inconsistency. The Conservation Council in their submission on the draft EIS (dated 18 December 1989) suggested that the design of the bridge be revised and that the impact of day visitors be further examined; the draft EIS is generally commended).

104. In his approaches to the Conservation Council Mr Owen was fortunate. The Vice President Ms Bolster had only joined the Council in 1990 and was not aware of the earlier policy decisions. She was disappointed at that time (1993) with the performance of the Bannon Government (subsequently led by Mr Arnold) in environmental affairs and an election for State Parliament was held in December 1993. She was ready to "take on" the Government over its decision to build a bridge and when the Government changed in December 1993 she was ready to hold the new government to its promises as she saw them. (To be fair to Mr Brown, the new Premier, he had said to the public meeting at Goolwa on 8 October 1993 that although opposed to the building of a bridge he would regard himself as bound to honour any contracts which his predecessors in Government may have put in place. As it transpired the Government was then already irrevocably committed in law to build a bridge). Ms Bolster had only a superficial knowledge of Hindmarsh Island; she had many other conservation issues and responsibilities to deal with. The way was therefore clear for Mr Owen to exercise his influence over the details of a campaign with the imprimatur of Ms Bolster.

105. From 1991-1994 Professor Shearman was the President of the Conservation Council; he held the Mortlock chair in Medicine at Adelaide University from 1975 until 1997. He is an authority on the Environment and its relationship to health. He is a scholarly man who is passionately committed to the environmental causes which he espouses. I doubt if he would have appreciated the need to exercise a firm control over the activities of Mr Owen whose keenness for his personal cause has the consequence that he is prepared to have scant regard for the rights of others. Professor Shearman was at least vaguely aware of the existence of the Kumarangk Coalition. (His letter to Professor Saunders dated 9 June 1994 - is expressed to be written "to support the submission of the Kumarangk Coalition..."). I think that he eventually must have had some inkling as to how Mr Owen and the Kumarangk Coalition were operating but he did not enquire. His distinguished professional record at Edinburgh University, the Royal Infirmary and Yale University well qualified him to lead the Conservation Council of SA as the highly respected umbrella organisation for the conservation movement in South Australia. Professor Shearman was not briefed on the "Hindmarsh bridge issue" until after the State election in December 1993. He then allowed himself to be carried along with the tide of protest which Mr Owen had generated. Professor Shearman accepts full responsibility for his actions but even now he argues that he has done nothing wrong.

106. My criticism of Mr Owen is that he does not seem to know where to "draw the line" in the promotion of his cause. There is an element of his campaign which I treat as "ugly". For example, there are aspects of the June 1994 leaflet which are inflammatory. In his article "The Hindmarsh Island bridge SLAPP suit: a personal view" (22/11/94), Mr Owen talks of being "astounded" and "angered" by the restrictions imposed by law upon what he regards as his right to speak as he wishes. This lastmentioned document contains example of the lack of restraint in Mr Owen's pen - such as "On May 3 Dr Michael Armitage, State Minister for Aboriginal Affairs accedes to the request from his sister-in-law Diana Laidlaw Minister for Transport to desecrate the Ngarrindjeri sites in the vicinity of the bridge" and (referring to the Federal Court) "Why the judge in the first instance was not able to separate those issues is beyond me. Ngarrindjeri people later told me they considered this decision to be racist." This will help explain why I have referred to the need for firm control over the activities of Mr Owen. In writing this "personal view" on 22 November 1994 he was not purporting to speak for the Conservation Council but I attribute a great deal of the heat generated by the bridge affair to the intemperate conduct of Mr Owen who for the purpose of his campaign has been prepared to embrace almost anything (short of physical violence). His campaign was not only directed against the Chapman family but they were amongst the principal targets.

(b) The relevance of a "campaign"

107. The plaintiffs have set out to prove (by evidence external to the publications) that the defendants in their various publications have been activated by improper motive so as to take away the protection which might otherwise be available in terms of the defences of qualified privilege and fair comment.

108. It is claimed that Mr Owen in particular in his opposition to the bridge has embarked upon a course of conduct designed to put pressure upon the Government, upon the Chapmans and upon others commercially involved with the building of the bridge to abandon the project. Upon the plaintiff's case, Mr Owen did not confine his activities to lobbying and lawful protest but was prepared to cause damage to others.

109. The plaintiffs' case traces the development of Mr Owen's campaign from his initial private objection to the draft Environmental Impact Statement (EIS) in December 1989 into an organised protest in 1993 and then into "underground" activity in 1994. Upon the plaintiffs' case, what started out as a lawful expression of opinion became a bitter fight; it is alleged that Mr Owen in his bid to undermine the bridge project and the standing of the Chapmans was prepared to resort to tortious behaviour knowing it to be unlawful. Eventually, upon the plaintiffs' case Mr Owen was prepared to use a device (called the Kumarangk Coalition) for the purpose of hiding the full extent of his activities (and others whether acting alone or acting in concert) so as to frustrate the plaintiffs in seeking remedial action through the Courts. (See Part 7(d) of these reasons).

110. It is this course of conduct which I have loosely described as Mr Owen's "campaign". In my view the plaintiffs have proved this case. The campaign involved other people to a greater or lesser extent. However, it is difficult in evidentiary terms to identify a campaign except by tracing through the actions of one of the principal participants and then considering the extent to which others have endorsed his actions and made themselves party to his campaign or put in place their own campaign.

"Now it is well established in English jurisprudence, in accordance with the dictates of common sense that the words and acts of a person are admissible as evidence of his state of mind" - per Lord Moulton in Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733 at 751.

111. In accordance with this principle the plaintiffs set out to prove (partly by circumstantial evidence) that Mr Owen and the other defendants have misused the occasions on which the various publications occurred for the dominant purpose of obtaining an improper advantage by deliberately and unfairly seeking to portray the Chapmans in a poor light so as to harm their reputations.

112. The plaintiffs rely upon proof of various "economic torts" in support of their case. These all involve some form of intention to harm the plaintiff whether it be a predominant purpose to injure or mere awareness that injury to the plaintiff is the probable consequence of the act - cf Crofter Hand Woven Harris Tweed Company Ltd & Ors v Veitch & Ors [1941] UKHL 2; [1942] AC 435 and Torquay Hotel Co Ltd v Cousins & Ors [1969] 2 Ch 106. The fact that Mr Owen or any of the other defendants was prepared to bring improper pressure to bear by means of an attempt physically to block the performance of the bridge building operations does not mean that such person's attitude carries over in any particular way to other occasions and to other people. However, the case for the plaintiffs (which I find to have been proved) is that the campaign involved a preparedness (by Mr Owen and some other protagonists) to seek improper advantage in any way possible (short of physical violence) and to "target" the developers as part of this scheme. The course of conduct (and particularly the "underground activity" of the Kumarangk Coalition) coupled with Mr Owen's acknowledgement in his evidence that he would resort to civil disobedience is relied upon as circumstantial evidence which I find to be compelling. Upon the plaintiffs' case Mr Owen's preparedness to seek improper advantage when coupled with other evidence (see Part 8 of these reasons) makes it easier to discern malice as now relevant.

113. In Horrocks v Lowe [1975] AC 135 at 151 - Lord Diplock said:

"There may be evidence of the defendant's conduct upon occasions other than that protected by the privilege which justify the inference that upon the privileged occasion too his dominant motive in publishing what he did was personal spite or some other improper motive."

114. The identification of Mr Owen's campaign (and the association of the other defendants with it) is therefore relevant as a step in providing extrinsic evidence that publications in the course of this campaign were actuated by malice.

(c) The origins and extent of the campaign

115. Mr Owen acknowledged in evidence that he was a "conduit" for the passage of information between anti bridgers in Adelaide and those at Goolwa and Hindmarsh Island. His counsel submitted that Mr Owen "worked tirelessly" for his anti bridge cause. I agree with that but I consider that Mr Owen fulfilled a role which was more influential than a mere conduit. In my opinion Mr Owen's role was pivotal in co-ordinating the efforts of a number of people; his position was more akin to a nerve centre. He wore at the same time a number of hats - as President of the Friends of Goolwa & Kumarangk, as a member of the Executive of the Conservation Council, as a point of contact for the Kumarangk Coalition and as assistant to the Secretary of the Lower Murray Aboriginal Heritage Committee. Before formally joining the Conservation Council Executive he occupied some undefined position of influence within the Council - as demonstrated by his contribution to the Council's submission to Mr Jacobs QC in January 1994. (Ms Bolster gave evidence that the Friends of Goolwa and Kumarangk were treated as de facto members of the Council but without voting rights prior to the Friends' formal admission to Council membership).

116. By memo dated 18 December 1989 Mr Richard Owen and his wife together with Ms Anne Lucas lodged a joint objection with the Minister for Environment and Planning with respect to the draft EIS which had been submitted to public scrutiny. (They were not the only objectors.) Mr and Mrs Owen and Ms Lucas identified themselves as the owners of shacks on Sugars Road, Hindmarsh Island overlooking the mouth of the Murray River. They advocated the installation of a second ferry between Goolwa and the Island and they complained that the draft EIS concentrated on the bridge, the extensions to the marina and the waterfront development.

117. Planning approval for the bridge and marina complex was granted on 11 April 1990.

118. Over the next three years, three petitions were presented to Parliament objecting to the proposed development. The evidence does not specifically show that Mr and Mrs Owen and Ms Lucas were signatories to the petitions but I am prepared to infer it.

119. During 1993 when the building of the bridge was imminent Mr Owen joined a group which called themselves the Friends of Hindmarsh Island ("The Friends"). This was an anti bridge group. The group eventually changed its name to Friends of Goolwa and Kumarangk and it became incorporated under that name during 1994. Mr Owen became President of this group.

120. On 21 May 1993 Mr Owen on behalf of the Friends made a presentation to the May Quarterly Meeting of Conservation Council. This was at a time when a Parliamentary Committee (the ERD Committee) was calling for submissions. The terms of Mr Owen's submission was apparently along the lines of Exhibit D82. It should be noted that those involved with the Friends included (inter alia) Mr Owen, Mr Roscrow, Ms Lucas and Ms Barwick. The last named two women gave evidence in this case.

121. The essence of the submission in May 1993 was to draw attention to the sittings of a Parliamentary ERD Committee and to advocate that unrestricted bridge access to the Island would be detrimental to the sensitive environment. On behalf of the Friends of Hindmarsh Island Mr Owen joined with Ms Bolster (for the Conservation Council) in organising a public forum at Adelaide on 3 August 1993. By 25 July 1993 Mr Owen had access to Conservation Council letterhead for the purpose of communicating with the Marina developers concerning the arrangements. I do not suggest any impropriety in Mr Owen's use of the letterhead. Mr Owen (disclosing his status as President of the Friends) had earlier written jointly with Ms Bolster as Vice President of the Conservation Council to the developer. However, the evidence shows how Mr Owen seems to have taken the lead in pushing forward the anti-bridge lobby.

122. The ERD Committee's Report was dated 9 September 1993; it shows that Mr Owen together with Ms Barwick, Ms Lucas, Mr Roscrow and Mr Longworth gave evidence; these people were members of the Friends of Goolwa and Kumarangk.

123. On 8 October 1993 a public meeting was called at Goolwa by the Friends, the Conservation Council and the Goolwa Ratepayers and Residents Association.

124. Ms Bolster spoke at the meeting and Mr Richard Owen introduced a series of four motions which were adopted by the meeting as resolutions. The seeds of protest can be seen in the third resolution namely:

"...that this public meeting supports cooperation between this community, through the sponsoring bodies of this meeting, and the CFMEU and the Building Trades Federation, to protect the environment, consistent with the findings of the ERD Committee."

125. Mr Dean Brown as local member spoke and made it clear that the law would have to be observed by any incoming government but he acknowledged that environmentally sensitive areas of Hindmarsh Island needed protection. He also expressed a concern as to the effect of the third motion by reason of its breadth. I construe his remarks as disassociating himself from any support for illegal action. According to a transcript of part of the proceedings of the public meeting at Goolwa on 8 October 1993 Mr Elliott MP (a member of the Parliamentary ERD Committee) also spoke in the following terms:

"A couple of legal contracts, we need to look at, but I think there are ways of getting around them, for instance, if there happened to be a green ban for only a couple of months, there will be a change of Government and perhaps the new Government might be willing to negotiate with the bridge builder to not pay out the cost of a bridge, that's ridiculous. Surely the profit margins that builders work in these days are very thin. I must say if I was a builder and the Government came along and said "look you can have $100,000 you don't have to build the bridge, you just take the cash in hand", I'd say "thank you very much". I don't think that's unreasonable. After all the people working for the State Bank have larger payments than that. But there are a couple of other legal contracts too which create some difficulties. There's one between Binalong, the Council and State Government. I think that surely the Council could be persuaded by the ratepayers to change their minds, which still leaves you with Binalong and I think that surely all they ever wanted was to build their blocks over there and to make sure there was access. If the two ferries could guarantee access, isn't that really all they need? Has anyone ever tried actually negotiating and I hope that negotiation would go no and finally there's Westpac, who have quite an investment there too and public relations are always important and I would have thought that they were capable of persuasion too, by somebody who was in a position to persuade them."

126. (The whole of the proceedings of the meeting were not transcribed so that it is possible that I have been given an incomplete picture. Mr Elliott has not given evidence and has had no opportunity to comment on this transcript. However, as between the parties it is evidence in the case). It appears from a newspaper report that Mr Elliott addressed the meeting more generally but I do not treat the newspaper report as being evidence of the facts reported. (I refer also to Exhibit D58 which contains a partial transcript of other aspects of the meeting).

127. In my opinion Mr Owen's actions show that from about early 1994 the organisation with which he was associated set about trying to persuade the Chapmans to change their mind. Others associated with the Friends approached Westpac along the lines of Mr Elliott's suggestion. Mr Roscow wrote to Westpac on 11 November 1993 and Ms Lucas raised a question at a Westpac shareholders' meeting. (I note that on 10 March 1994 CFMEU also wrote to Westpac but that letter itself is not in evidence. As Mr Owen and Ms Bolster were at the Goolwa meeting I infer that it is likely that Professor Shearman was briefed about these matters at least in general before he wrote to Westpac himself in March 1994.

128. I find that by 8 October 1993 Mr Owen was firmly steering the course of the protest which he was instrumental in organising. I have already noted how his hand was at the helm by 25 July 1993. At this stage there is no suggestion of excesses which later became evident in the direction taken by the protest.

129. On 23 October 1993 a picnic was held at Amelia Park, Goolwa under the auspices of the Friends, the Conservation Council, the Lower Murray Aboriginal Heritage Committee (LMAHC) and the CFMEU (Construction, Forestry, Mining and Energy Union). Mr Owen was active in arranging the involvement of all these people. Greenpeace was also involved. A representative of that organisation announced his interest at the Goolwa meeting on 8 October 1993.

130. At about this time Mr Milera (Secretary of LMAHC) moved into the shack (called the Mouth House) owned by Ms Lucas alongside and to the east of Mr Owen's shack on Sugars Road. At about this time (22 November 1993) correspondence started to flow from LMAHC to State and Federal Ministers and government officers complaining about the proposed bridge construction in its effect on aboriginal sites and upon the ecology.

131. The bridge construction started in the last week of October 1993. On 28/29 October 1993 Mr Owen was one of those who formed a picket and physically obstructed vehicles from working on the bridge site. (cf Williams & Ors v Hursey [1959] HCA 51; (1995) 103 CLR 30 where at 76 Fullagar J refers to conduct which is "euphemistically referred to as picketing episodes").

132. On 2 December Mr Owen on behalf of Mr Milera and under his name wrote to Mr Tickner seeking an appointment.

133. On 15 December 1993 Mr Owen wrote a letter in the name of Mr Milera as LMAHC Secretary to Mr Brown (the incoming Premier) complaining about the proposed bridge. I am satisfied upon reading these last two documents that they were composed by Mr Owen despite his denials. He asserted in evidence that Mr Milera was "quite a wordsmith". I have already applied that description to Mr Owen himself. His style of writing is unmistakable. His grasp of the planning documents is impressive.

134. At the end of 1993 Ms Bolster and Mr Owen produced a proposal for a Development Plan for the Lower Murray. Mr Owen was included in the briefing of Professor Shearman over the Christmas period 1993.

135. On 18 January 1994 the Conservation Council made a submission to Mr Jacobs QC who was conducting an enquiry into the bridge on behalf of the South Australian Government. Mr Owen had an input into that document.

136. Mr Owen's position as a go-between a journalist and LMAHC is demonstrated by his memo of 3 June 1994. However, I regard his position as being much more than an amanuensis. The abovementioned memo deserves close study. It was written by Mr Owen on behalf of Ms Milera (see the authentication by "Sarah" and "Richard"). I note the presence of Ms Milera on the participant list with Ms Bolster for the seminar "defending the environment" on 8 May 1994; I also note the presence of Ms Milera as a guest of the Conservation Council on 13 March 1995 where she is recorded as making the remark "We see the wearing down of Wendy Chapman - not much left to go". That note (according to the minutes) was made by Ms Bolster as minute secretary. I note the presence of Mr Owen at that meeting. All this speaks volumes in terms of identification of the reach of Mr Owen's campaign and his sphere of influence. I find that Ms Bolster made this minute notwithstanding her denial in cross-examination. The fact that Ms Bolster selected this particular remark for her record is a telling piece of evidence.

(d) The underground campaign

137. Kumarangk Coalition is a name from time to time adopted as the public face or figurehead for selected activities conducted under the aegis of the Conservation Council. No association as known to the law has been shown to exist. An essential characteristic of an association is the element of consensus which can be identified between the membership of such an organization as regulating their relationship with each other; (see Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358 at 371). this element is lacking in this formless vehicle which has been designed to attract no status in law. Undoubtedly from time to time some people became party to a particular enterprise or operation conducted under the Kumarangk Coalition banner; in this limited respect they may have combined in their endeavours although taking care to give the appearance of being leaderless and having acted without the involvement of the Conservation Council itself.

138. Mr Owen in his evidence described the Kumarangk Coalition as "an Adelaide based support team for the Hindmarsh Island struggle". [T 1668].

139. The genesis of Kumarangk Coalition is probably to be found in a meeting held in a house at Currency Creek shortly after the Federal Court imposed injunctions in March or April 1994 against Mr Owen and others at the instigation of Mrs Chapman (and more recently the receiver of Binalong). The fourth defendant Owen attended this meeting at Currency Creek and he identifies that occasion as the first time when he ever heard or read the name Kumarangk Coalition. Mr Owen gave evidence that his memory failed him as to any further details of this meeting except that Kumarangk Coalition was a response to the injunctions. I find that Mr Owen knows a lot more about the origins of the Kumarangk Coalition and its operations than he was prepared to remember in his evidence. In this respect both Mr Owen and Ms Bolster gave less than truthful evidence.

140. Upon the whole of the evidence I conclude that Kumarangk Coalition was a device which was put in place (inter alia) to facilitate the harassment of the Hindmarsh Island marina developers and bridge builders and to frustrate any attempt to enforce the law in the event that the acts of harassment might involve an allegation of tortious or criminal action. I infer that the device must have been intended to lessen the likelihood that those involved in anti-bridge protests could be dealt with for aiding and abetting the breach of any injunction and thus provide them with some measure of comfort. (cf Seaward v Paterson [1897] 1 Ch 545). Mr Owen was nonplussed by the imposition of the injunctions. He was not aware that his activities could be restricted in this way. He saw his campaign (which involved defiance of the law) falling apart as a result of the Federal Court orders. In a memorandum dated 22 November 1994 Mr Owen described himself as angered:

"The lack of protection of the fundamental right to freedom of speech astounded me, and angered me. I never thought that on issues like this the people could be silenced. If there was nothing to hide, if everything was above board, if the proper processes had been undertaken, why then the need to shut people up?"

141. The Kumarangk Coalition was the concept which he adopted in order to meet this set back. However, Mr Owen clearly felt uncomfortable in this new phase of his campaign. In this paper which he prepared dated 22 November 1994 he said "I started to feel like an urban terrorist: False names, secret rendezvous, information in plain brown envelopes and all because we were unsure of the legal exactitudes of the injunctions...". After allowing for Mr Owen's possible hyperbole, this statement bears a remarkable resemblance to the evidence of Ms Bolster who explained how the Kumarangk Coalition operated.

142. The defendant Owen appears to have acted as a public face of Kumarangk Coalition until about 1998. He said in evidence that he ceased his involvement about this time. He mentioned Dr Greg Ogle as one person whom he knew to have some interest with him in Kumarangk Coalition activity. Dr Ogle became a member of the Board of Conservation Council during the year 2000. Correspondence on the letterhead of Kumarangk Coalition on 1 December 1999 and another of about 6 December 2000 shows the more recent address of Kumarangk Coalition as being PO Box 3168 Rundle Mall SA 5000. Other documentation shows this as the post office box address of Dr Ogle as Secretary of the Kumarangk Defence Fund. Dr Ogle was generally present in court throughout this trial to provide assistance to defence counsel. In the absence of Dr Ogle from the witness box I draw the inference that the baton formerly held by Mr Owen has effectively passed to Dr Ogle.

143. I express myself in this somewhat imprecise way because of the unsatisfactory evidence of Mr Owen. Although Mr Owen maintains that he ceased to have involvement with Kumarangk Coalition in 1998 he also says that he gave no notice to anyone of his withdrawal; he has remained a Board member of Conservation Council. Somehow Mr Owen laid down his baton and it was eventually picked up by Dr Ogle or an associate. I need not be concerned as to how the baton change was accomplished.

144. There is evidence in the minutes of the Board of Conservation Council dated 11 July 1995 (together with evidence from the Executive Officer by way of explanation) that Mr Owen gave a report as the responsible member of the Executive which showed that the resources of a working group or subcommittee of the council called EARAC had been (at least temporarily) "overtaken" by Kumarangk Coalition activities. The same minutes contain a separate report upon activities of the Kumarangk Coalition as a "priority item". Various articles and notices thereafter issued with Mr Owen's approval show the address of Kumarangk Coalition as 120 Wakefield Street Adelaide (ie that of the Conservation Council's offices). The register of bookings made for the use of the Conservation Council's meeting rooms shows that there were 12 occasions between 19 June 1995 and 29 November 1995 when a meeting was booked in the name of Kumarangk Coalition; 9 of these bookings was for a room designed to hold only a small working group (as opposed to a mass meeting). It may be that the larger meeting hall was booked on occasions when the smaller rooms were not available.

145. During the course of evidence Mr Owen's inability to remember crucial details suggested to me (as I now find) that he was hiding his knowledge.

8 Evidence of malice

(a) General evidence

146. Publications No 6, 7 and 11 each contain (on the face of the journal) material from which it could be inferred that the publisher was deliberately using the occasion to obtain an advantage for a purpose otherwise than that for which the law provides protection.

147. Publication No 6 shows that its author has been made aware of the fact that comment upon the bridge issue is not "necessarily" prevented. Nevertheless despite this knowledge, the author is prepared to assert a loss of freedom of speech by the less well informed. Standing by itself I would not infer malice on the part of the author but this fact must be considered along with the other evidence - bearing particularly in mind how this publication (along with Publication No 5) came to be produced after the Seminar in May 1994.

148. In the case of Publication No 7 there is a reference to the activities of Senator Baden Chapman Teague. Mr Teague is well known in South Australia as Senator Baden Teague but he also carried the given name "Chapman". He is not related to the plaintiffs although on reading the article one could conclude that Mr Teague and the plaintiffs belong to the same "clan". I was curious as to why Senator Teague was identified in this formal way whereas Mr Tickner is described as Minister Robert Tickner. To be consistent one might have expected him to be described as Minister Robert Edward Tickner. Neither Ms Bolster nor Mr Owen was able satisfactorily to explain to me why Senator Teague was so described. Mr Owen observed that "that is his name and that is how we address him". I am satisfied that Publication No 7 was drafted with a view to misrepresenting the position by suggesting a family association between the plaintiffs and Senator Teague which did not exist. The use of the figure of speech "boot of Binalong" is in itself some indication how the authors were seeking to portray the Chapmans as adopting discreditable practices; this (along with other evidence) assists me to understand the workings of the mind of the writers.

149. Publication No 11 appears to have been prepared as a single page article to occupy page 27 of the journal. However a segment of the article has been carried over onto page 28 and the bottom half of the second column of page 27 has been printed against a grey background so as to provide emphasis. The bottom of the first column (printed on the usual white background) alleges a breach by Binalong of the bridge building approval and token compliance with the planning process itself. Alongside it (printed on the grey background) is a do-it yourself explanation (side note) as to the use of s 85 of the Development Act 1993. The fact that the primary article is published over the name Kumarangk Coalition provides some evidence that the person or persons responsible for the publication believed the article to be potentially actionable; as I read the side note it is a subtly worded invitation to the reader to initiate action. The inference is open that the writer of the article was seeking thereby to encourage harassment of the Chapmans; that is an inference which I would be very slow to draw if it were not for the mass of evidence which discloses the improper motives which I attribute to those using the name Kumarangk Coalition. The defendants will point to evidence of harmless, lawful and peaceful activity conducted under this banner (for example a "Long Walk" from Adelaide to Goolwa). All that can be concluded on the evidence is that activities conducted under the name Kumarangk Coalition deserve to be closely examined to see why the name has been used - perhaps on some occasions only to confuse and to create an impression.

150. The article (according to Ms Bolster) over the name Kumarangk Coalition was written by Denise Noack. In the next part of the journal (Vol 4, No 4) I note that at page 19 an article "Dalhousie Springs" appears over the name "Denise Noack Ph D Candidate Mawson Graduate Centre for Environmental Studies, University of Adelaide". Why would Ms Noack (or the editor Ms Bolster) choose to publish Publication 11 over the name Kumarangk Coalition rather than by attributing it to Ms Noack? Having regard to the purpose for which Kumarangk Coalition was adopted, I conclude that those responsible for the publication must have believed its contents to be susceptible of a claim for relief at the suit of the Chapmans. Ms Bolster's evidence eventually confirmed this. Ms Bolster initially gave deliberately false evidence in cross-examination as to her knowledge of the writer of the article. She eventually disclosed that Ms Noack had asked that her name not be used by reason of fear of repercussions. All this helps to establish that Ms Bolster published this article as part of Mr Owen's campaign for the purpose of damaging Tom and Wendy Chapman. Ms Bolster as editor was unable to explain why the typesetter had chosen to place the side note in the position which I have described. In the absence of evidence from the typesetter (a volunteer - Mr David Edey) I am prepared to find (as I do) that the lay-out chosen was deliberate and not mere coincidence.

151. In addition to these matters malice can be inferred from the following:

(b) As regards Professor Shearman

(1) his "open" letter of 14 March 1994 to Westpac containing a veiled threat; it must have been made available by him to the media for the purpose of applying pressure to Westpac.

(2) his interview on 15 March 1994 on Station 5AN when he confirmed that his Westpac letter was intended to put pressure on Westpac although "we would not be prepared to say that;...we're not going to be involved in threats".

(3) his speech on 8 May 1994 to the Environmental Law Seminar when he identified the need to target developers and their financiers. The President's Message (Publication No 7) together with Publication No 6 are based on the Environmental Law speech. The strong sentiments expressed in the speech (although not included in Publication No 7) must have continued to have been present when he published the President's Message. (There was some debate during evidence as to whether the speech or Publication No 6 was prepared first. Despite contrary evidence I consider that Professor Shearman wrote the speech which he later delivered).

(4) the President's Message itself (Publication No 6) discloses on its face that Professor Shearman had been properly advised as to the effect of the injunctions but he nevertheless has chosen to misrepresent the legal constraints in what might be regarded as a mischievous fashion. It was a publication known to be unjust (Cf Gatley, 9^th Ed, par 16-19).

(5) the unsatisfactory explanations given by Professor Shearman in the witness box; he was unwilling to acknowledge the obvious connection between the bank and the Chapmans as motivating his approach to Westpac.

(6) his participation (albeit in a limited extent) in the campaign which I have attributed to Mr Owen.

(c) As regards Ms Bolster

(1) Her knowledge of what Mrs Chapman had said in the evidence before the Federal Court referred to in Publication No 11;

(2) Her approval of the Marina development in her evidence but her criticism of it in the articles which she wrote.

(3) Her participation in a campaign which relied upon coercion for its success.

(4) Her participation in "covering up" the affairs of the Kumarangk Coalition.

(d) As regards Mr Owen

(1) His preparedness as disclosed on 27/28 October 1993 to break the law and his continuing preparedness to be civilly disobedient notwithstanding the service of an injunction upon him;

(2) His participation in the affairs of the Kumarangk Coalition;

(3) His publication of material which he knew to be untrue of and concerning the Chapmans as part of the "struggle".

(4) His conduct of a campaign which relied upon coercion for its success. - see Pt 7 of these reasons.

(e) Particulars of malice as pleaded

152. In par 2.4 of their reply the plaintiffs provided particulars of malice. The evidence in support of this plea is overwhelming. The plaintiffs allege (inter alia) that the intention of the defendants in publishing was to embarrass and hurt the plaintiffs. I allowed the plaintiffs to rely upon material arising during trial which supported this assertion (see Duffield v Arts Council of SA Inc & Fox Publishing Company [1981] 27 SASR 540 at 543 citing Ampol Petroleum Ltd v Shell Co of Aust Ltd[1966] 1 NSWR 508 at 510). I designated the collection of incidents and the motivation therefor as constituting a "campaign" although the reply did not use that expression. As the evidence emerged I required the plaintiffs' counsel to identify with more particularity the campaign which I have described.

153. Gatley at par 1.12 examines the mental element attaching to statements (requiring some form of intention to harm the plaintiff) which varying in the context will support different forms of tortious action. In light of the decision of the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats (supra) at par 123 I supplement Gatley's reference by identifying the developing tort of harassment as well as the tort of intentional infliction of harm to the individual (Wilkinson v Downton [1897] 2 QB 57). I consider these references to be useful in relation to the identification of a campaign.

154. This topic is referred to by Gummow and Hayne JJ in Lenah (supra) at par 123 but I note that harassment may be limited to "acts calculated to cause harm to the plaintiff" (see article in Mullany WJ (Ed) Torts in the Nineties LBC 1997 Sydney at 204 referred to by Gummow and Hayne JJ in footnote 138). The need for better definition of the emerging tort is referred to in the High Court's joint judgment in Northern Territory v Mengel (1995) 185 CLR 307 at 342-343 (and see also Lonrho PLC v Fayed & Ors [1990] 2 QB 479 at 489 and 492 - affirmed [1992] 1 AC 448). Gummow and Hayne JJ (in the abovementioned reference) recognise the special position respecting defamation in relation to such torts which generally may otherwise attract injunctive relief.

155. It seems to me that in the present case the conduct which has been proved against the defendants and as reflected in Publications 6, 7 and 11 could fairly be described as conduct which is intended to cause harm to the Chapman family.

156. The degree of cohesion between the individual acts (and the common motivation) is such that they may usefully be characterised as giving rise to a "campaign".

157. Motive, object and purpose are in application to practical matters difficult strictly to define or distinguish (see Crofter Hand Woven Harris Tweed v Veitch & Ors [1941] UKHL 2; [1942] AC 435 at 469 per Lord Wright). In the present case Professor Shearman would undoubtedly seek to justify his actions upon the footing that his object (in the satisfaction of his social conscience and for the good of the community) was to cause the bridge not to be built. However, in the present case the Publications (No 5, 6 and 7) for which Professor Shearman was responsible as editor were "aimed" at Tom or Wendy Chapman for the purpose of causing them injury. Likewise, publication No 11 was similarly aimed. Professor Shearman targeted the Chapmans as he did so as to intimidate and thereby compel the promoters of the bridge project to desist from a commercial undertaking. To this end I find that he was prepared to make statements in respect of which he did not have an honest belief. I make the same finding with respect to Mr Owen and Ms Bolster as regards publication No 7 and Ms Bolster with regard to Publication No 11. As I have already observed the campaign was one based upon attempted coercion.

158. According to Mahoney JA in an extra-judicial discussion of defamation law (Torts in the Nineties supra at 269):

"Power is the capacity to have others do what one wants them to do... Words are one of the means by which this may be achieved and, accordingly by which power may be exercised. Words may persuade...but more often...the power of the media...lies in its capacity to hurt."

159. Mahoney JA identifies a type of verbal injury the essence of which lies in the "contumelious unwarranted public proclamation of derogatory remarks". It seems to me that the campaign (upon which the case for malice has been built) relies upon the exercise of such power. In my opinion the defendants have chosen to exercise such a power. They have placed Tom and Wendy Chapman in a false light in this unwarranted and improper use of the Conservation Council's authority and prestige. In my opinion, the Friends of Goolwa and Kumarangk standing alone was not in a position to wield power as effectively as the Conservation Council.

160. The campaign which I have identified has other aspects to it - such as the picketing of the bridge worksite and interference with the work. The motivation for all these acts is common. The relevance of a campaign is discussed in Part 7(b) of these reasons.

9. The facts upon which the defamatory publications are based

161. I need only be concerned with a background of publications Nos 6, 7 and 11. Those publications are concerned with two supposed issues namely (1) as regards Publications 6 & 7 - the alleged oppressive use of injunction proceedings to stifle public comment and (2) as regards Publication no 11 - the alleged failure of the Chapmans to carry out the planning process and associated requirements for the bridge. I will now review the circumstances in which these articles were published. The background is relevant principally for the purpose of assessing the reasonableness of the conduct of the defendants and their bona fides. Defence counsel informed me that the defendants do not advance a defence of justification with respect the particular imputations which I have found to be proved.

(a) Suppression of free speech

162. This topic underlies Publications No 6 and 7 as well as Publication No 5.

163. On 29 March 1994 Binalong Pty Ltd and The Marina Services Co Pty Ltd made application to the Federal Court (Matter No SG 23 of 1994) seeking orders that the Conservation Council and other named persons and organisations (including Ms Bolster, Professor Shearman, Mr Owen and the Friends of Goolwa and Kumarangk Inc) be restrained from hindering or preventing the provision of banking services to the applicants by Westpac and from hindering the construction of the Hindmarsh Island Bridge. However, I am informed by counsel that Professor Shearman's letter to Westpac of 14 March 1994 was not before the Federal Court.

164. An interim injunction was granted by O'Loughlin J on 29 March 1994 against all defendants. On 19 April 1994 Heerey J dealt with an application for an interlocutory injunction pending a full trial and gave reasons for his decision.

165. The application was based upon s 45D of the Trade Practices Act 1974 (as in force by virtue of s 54 of the Industrial Relations Reform Act 1993). The applicants also sought an injunction quia timet arising out of inducement to breach of contract and interference with performance of contracts (see Davies & Davies v Nyland & O'Neil (1974) 10 SASR 76).

166. The interim order dated 29 March 1994 restrained the respondents from hindering the provision of services to the applicants (namely the construction of the Hindmarsh Island bridge and a water main and water supply via that main). The interim order also contained an injunction against hindering or preventing or attempting to hinder or prevent the provision by Westpac and Partnership Pacific of banking and financial services to the applicants.

167. By his order of 19 April 1994 Heerey J discharged all orders against the Conservation Council, Ms Bolster and Professor Shearman and discharged the injunction dealing with banking and financial services but otherwise confirmed the earlier order against Mr Owen and the Friends of Goolwa and Kumarangk Inc, Ms Olwyn Barwick (a member of that organisation) and others.

168. The complaint made against Ms Bolster was her participation in a rally on the steps of Parliament House on 24 March 1994 (which she compered) and her publicly expressed opposition to the building of the bridge. Upon the evidence then available her actions therefore went no further than general exhortations falling short of any attempted procurement of breach of any contract relating to the bridge. The Federal Court's decision is consistent with the well established approach taken in Thomson v Deakin (1952) Ch 646 at 698. English law has been developed in a series of cases since Thomson v Deakin (as noted by Wells J in Woolley v Dunford (1972) 3 SASR 243). However I do not understand the law as preventing genuine debate or the expression of opinion. The orders made in the Federal Court (expressed in negative terms) made it clear as to the limit of the injuncted activity namely "hindering the construction of the bridge". No doubt such an order had the effect of inhibiting the formation of a picket line and verbal exchanges between Mr Owen and the bridge building contractors but there is nothing in the terms of the injunction which is in any way unusual.

169. The Federal Court regarded Professor Shearman as being at liberty to provide advice to Westpac and treated his actions as not disclosing any tortious activity. However, Shearman's open letter to the bank dated 14 March 1994 was not in evidence before the Federal Court. Professor Shearman was at liberty to provide "mere advice" to the bank but I regard that letter as being pernicious. Its effect was reinforced by his comments on Radio 5AN the following day. In Torquay Hotel Co Ltd v Cousins & Ors [1969] 2 Ch 106 at 147 Winn LJ said:

"It was one of [counsel's] main submissions that mere advice, warning or information cannot amount to tortious procurement of breach of contract. Whilst granting arguendi causa that a communication which went no further would, in general, not, in the absence of circumstances giving a particular significance, amount to a threat or intimidation, I am unable to understand why it may not be an inducement. In the ordinary meaning of language it would surely be said that a father who told his daughter that her fiancé had been convicted of indecent exposure, had thereby induced her, with or without justification, by truth or by slander, to break her engagement. A man who writes to his mother-in-law telling her that the central heating in his house has broken down may thereby induce her to cancel an intended visit."

170. In my opinion Professor Shearman (as a customer of the Bank and as President of the Conservation Council) wrote his letter in an attempt to induce the bank to abandon its support for the bridge project. I also construe it as an attempt to intimidate. The fact that he assured the audience of Station 5AN that he was not issuing a threat only serves to confirm its efficacy. The fact that it was written as an open letter is significant. The letter stated that it would not be in the interests of the Bank "to be seen to be instrumental in this mistaken development". Professor Shearman sought a public statement from the Bank "on this issue as a matter of urgency"...which will "further avoid community confrontation". (We apologise for the need to pass this onto the media, but the matter is urgent)."

Professor Shearman was unable to give a satisfactory explanation for this letter.

171. On about 22 April 1994 the plaintiffs' solicitors sent letters in common form to 35 people who had been associated with picketing of the bridge site. The letter gave notice of the arrangements for building the bridge and then referred to the addressee as a "person who has been involved in attempts to stop the bridge work." The letter placed the recipient upon notice of the consequences of such conduct in terms of liability.

172. During April 1994 Tom and Wendy Chapman were looking for evidence to support the Federal Court injunction proceedings. Mr Owen's description of the incident is contained in his paper dated 22 November 1994:

"There was considerable concern amongst the members and sympathisers of the Friends of Goolwa and Kumarangk over the injunctions issue. What did it mean, how did it constrain us, what could we still do? They met on Sunday afternoon, April 17 in a member's house in Goolwa. As people were preparing to leave, the Chapman's 4-wheel drive, with both Tom and Wendy aboard was noticed parked on the corner of the road nearest the meeting. They were in the process of photographing people leaving the meeting, hopefully matching people with vehicle registration numbers for what was to follow. This action caused a variety of reactions and some consternation amongst the protestors, for never had they experienced such harassment, but worse was to come.

Chapman's lawyers had already demanded a listing of the members of the Friends from our lawyers. This was of course denied them, but it serves as another example of the intimidation that was taking place."

173. It is the injunctions, the letters and the actions of the Chapmans which purport to provide a factual base for Publications No 6 and 7. However, in assessing these publications it is relevant to bear in mind the importance attached by the Courts to the right of free speech. (see the statement of Lord Esher MR in Coulson v Coulson [1887] 3 TLR 846 and Lord Coleridge's reference in Bonnard v Perryman [1891] 2 Ch 269 at 284 as to the importance of leaving free speech unfettered and dealing most cautiously and warily with the granting of interim relief).

(b) Developers' planning obligations

174. This topic provides the background to Publication No 11.

175. If the Conservation Council in Publication No 11 had confined itself to a comment that with the benefit of hindsight the consultation of aboriginal interests concerning planning for the bridge was "not comprehensive" then it would have avoided the difficulties association with the assertion of "token" consultation. There is no basis for this lastmentioned allegation. It is sufficient to refer to the terms of the anthropological report of Mr Rod Lucas to see that such a claim is not sustainable. Ms Bolster had seen this report before she published Publication No 11. Section 1.2 and s 5.1 of the report provide a list of people who were consulted. Mr and Mrs Chapman also personally had consultations as did their representative Nadia McLaren. Ms Vanessa Edmonds also consulted in the course of an archaeological survey.

176. If the Conservation Council had criticised the procedures adopted in connection with the building of stage 1 of the marina project it would have been on firmer ground than is the allegation in Publication No 11 which is linked to the absence of compliance with a bridge building condition. There was no such condition as now relevant; the evidence given by Mrs Chapman in the Federal Court (on 6 December 1994 in the course of an ADJR hearing was not directed to such a condition. She was asked in evidence before the Federal Court about conditions attaching to the stages of the developmental project but this topic was not followed up in any way which could fairly be described as giving rise to an "admission".

177. The original consent for the building of a bridge was given by the Governor under the Planning Act on 11 April 1990. Consent was also given to development of the Marina/real estate project in stages subject to conditions as regards Aboriginal consultation on anthropological matters.

"Binalong should consult directly with the relevant Aboriginal representative bodies identified herein, and with any other Aboriginal persons chosen by those bodies. The expense of such consultations in respect of time and travel on the part of Aboriginal representatives to be borne by the developer.

All relevant Aboriginal representative bodies should be notified immediately and fully consulted concerning any possible skeletal material revealed by survey of the development of the site.

Binalong and all subsequent agents such as construction crews, etc should be fully conversant with the provisions of the Aboriginal Heritage Act, 1988, particularly in respect of skeletal material.

Binalong and all subsequent agents, should be fully acquainted with the procedures of Aboriginal Heritage Branch in respect of Aboriginal skeletal material.

Binalong should forward a full report of any action taken in respect of Aboriginal skeletal material revealed as a consequence of survey or development activity on the Hindmarsh Island site, to the relevant Aboriginal representative bodies, at this point identified as the Ngarrindjeri Tendi, Raukkan Community Council, Ngarrindjeri Lands and Progress Association and the Lower Murray Heritage Committee."

178. On 12 April 1990 the Manager of Aboriginal Heritage Branch of Department of Environment and Planning issued an authorisation "to establish the marina/waterfront development..." subject to conditions set out in the relevant Government Assessment report. Paragraph 4.6 of the assessment report refers to the recommendations in the report including a set of conditions contained in par 7.4 of the report. These conditions have then been carried forward and incorporated into the terms of the authority dated 12 April 1990. The terms of those conditions form recommendations to be found in the anthropological report of Mr Rod Lucas. The Conservation Council in its submission to Mr Jacobs QC in January 1994 raised a point as to whether the conditions had been satisfied. On 6 December 1994 in the course of an ADJR hearing in the Federal Court Mrs Chapman was cross-examined as to whether she or her husband had consulted with the Raukkan Community Council, Ngarrindjeri Tendi, Ngarrindjeri Lands and Progress Association and Lower Murray Heritage Committee (referred to in the authorisation dated 12 April 1990 and the consent dated 11 April 1990).

179. Mrs Chapman said that there had been no such consultation apart from a meeting "on site" with Dr Draper and some members of the Aboriginal community in November 1993. Mrs Chapman referred to the history of the imposition of the conditions. She was reminded that Mr Lucas' report had noted a desire by the Tendi to convene a meeting of those with a traditional interest in the Island and for this to be followed by a meeting with the developers to discuss "relevant issues". Mrs Chapman responded that she was "still waiting for the Tendi to come back and say they have had their meeting and would like to meet with us."

180. The cross examination ended with the following exchange:

"Q ...I think it is the effect of your evidence, is it not, that apart from discussions with the Rankines in 1989, which is prior to these recommendations. Binalong at no stage, in fact, consulted directly with any of the organisations listed in the last condition, namely the Ngarrindjeri Tendi, the Raukkan Community Council, the Nganindjerri Lands and Progress Association or the Lower Murray Heritage Committee? -

A That is correct."

181. That answer must be construed in the light of the whole of Mrs Chapman's evidence. I do not treat her answer as acknowledging any condition attaching to the building of the bridge which required any action by the developer.

182. These questions were extensively canvassed by Judge Kitchen in Chapman v Rural Press [1999] SADC 178 where statements attributed to Mr Owen were the subject of analysis in the light of the history of the development approval and Mrs Chapman's answers in the Federal Court. I have reached my own conclusions upon the evidence before me but I have been referred by counsel to Judge Kitchen's reasoning which I find to be persuasive.

10. Ms Margaret Bolster

183. Ms Bolster the second defendant trained as a music teacher in New Zealand came to Australia in 1964 and settled in the Adelaide Hills in 1983. She became a representative from the Mount Lofty Ranges Conservation Association to the Conservation Council of SA in 1990. She became vice president of the Conservation Council of SA from 1992 until 1996 and is currently serving her second year as President (having been elected to the office in the year 2000). She succeeded Professor Shearman as editor of Environment SA in January 1995. At all relevant times since 1992 she has been a member of the Executive of Conservation Council of SA.

184. Ms Bolster is an enthusiastic supporter of the conservation movement. She has served on many Government committees dealing with conservation issues. Since coming to Australia Ms Bolster has read something of the plight of the Australian Aboriginal and has become interested in the process of Reconciliation. She is the author of the article - Hindmarsh Island and the human condition (Publication No 8). An examination of that publication will provide some insight into the way in which her interests in Conservation and Reconciliation have been blended. She sees commercial exploitation in our economic system as being destructive of the last vestiges of Australian indigenous culture as well as causing irreparable damage to the environment. Within the orthodoxy of the Conservation Council's principles she requires commercial development to be assessed against a "triple bottom line approach involving cash economics, environmental implications and social implications".

185. Ms Bolster resisted the building of a bridge to Hindmarsh Island. She is clearly disappointed with the decision of the State Labor Government in 1993 to proceed with a bridge and was particularly critical of a former Premier and one of his Ministers. Ms Bolster's views of the Liberal Government (which came to power in December 1993) are also unflattering. She saw the Liberal opposition as having taken a policy stand against a bridge in the lead up to the election and she saw them as having reversed their stand and reneged when in Government. (I have already noted that Mr Brown's remarks at the Goolwa meeting on 8 October 1993 make it clear, however, that in Government he would be bound by any pre-existing bridge building contract but Ms Bolster ignores this). Ms Bolster sees the economic cost of the protection of the Environment in terms which others might find difficult to justify. She would regard the payment of massive compensation as justifiable in the long term interest of South Australia in order to avoid the Government decisions of 1993. Whether or not one agrees with her point of view it is not difficult to appreciate the circumstances in which Ms Bolster was prepared to identify (what seemed to her to be) departures by the two major political parties from the positions which she anticipated that they would adopt. I accept that in Ms Bolster's eyes the Labor Government had lost standing by reason of a series of events which could be traced back to the State Bank collapse; for example she saw the decision to build the bridge as an expedient one to relieve pressure on a subsidiary of the State Bank which was involved in Hindmarsh Island development. (I make no finding upon this assertion which the evidence suggests may be unjustified). In her eyes the "honeymoon" of the Conservationists with the Brown Government was quickly at an end by reason of that Government's professed inability to avoid building the bridge. It is understandable that she should feel impelled to call politicians to account in terms of their perceived failure (as she saw it) to honour commitments to the Conservation cause; it is also understandable that others should insist that commercial arrangements made by an elected government should be respected.

186. Ms Bolster demonstrated an ability to recall and recount events until questions were asked about an organization called the "Kumarangk coalition". Although the Publication No 11 article was published by Ms Bolster as editor of Environment SA over the name Kumarangk coalition, Ms Bolster expressed herself as being unable to answer certain questions which I find were within her knowledge. On Friday 20 July 2001 the following exchange occurred during her cross-examination:

"Q Can you tell me the name of any person who attended a meeting that was held in the Conservation Council building that was a meeting of the Kumarangk Coalition. Can you tell me the name of a person who attended.

A I certainly can visualise - I was at an early meeting and I can visualise a number of people. I tend to only remember first names.

Q That will do. Give me first names.

A I remember an Andrew, a John, a Mary.

Q Were they students or academics.

A Two students and one academic.

Q Name some academics. You said there were academics who were member(sic) of the Kumarangk Coalition. Tell me their names.

A I would have trouble - if I mention a name, I can't be sure it is a member of the Kumarangk Coalition. They could have rocked up to one meeting.

Q Give us a name and we will go and ask them.

A I could mention Mary Heath. I think that is about it.

Q You are being evasive, aren't you.

A No

Q You don't want to name who are the members of the Kumarangk Coalition.

A I don't have a very good memory for names. I can only remember first names."

At 1021-2:

Q You appear to have some knowledge as to why this group was formed. How did you get that knowledge. By talking to somebody.

A It's perfectly obvious.

Q Without it being obvious, how did you get the knowledge as to the formation of the Kumarangk Coalition. Was it by talking to someone.

A Can't remember specifically, but certainly they didn't know me. I remember people, all these different faces, new faces, wandering in and I would be wandering out. I would not recognise them and they would not recognise me. Also, I seem to recall, in the early days, they were meeting in Halifax Street, or maybe they met a few times at the Conservation Centre, and then moved to Halifax Street. That is sort of my memory.

Q Why would you publish, in a responsible publication like Environment SA, material from somebody who you cannot identify.

A It was an article that was presented. The group seemed to be functioning well, and the few I did know of were respectable, informed people.

Q You don't know that, you don't know who they were.

A They were a changing, a shifting group, it wasn't like a conservation group that has a constitution.

Q How can you say they are a group of respectable people if you don't know who they are.

A One knows.

Q How.

A Instinct.

Q I put to you that you know perfectly well the names of people in the Kumarangk Coalition and you are being evasive.

A You may be right."

187. On Monday 23 July 2001 Ms Bolster gave evidence:

"...the reason I hesitated on Friday, Mr Meyer, I know you have been trying to get the Kumarangk Coalition to court and naturally one's first instinct is not to dob people into that circumstance I wouldn't wish it on my worst enemy, but I confronted this over the weekend and I think I'll place my faith in telling the truth."

And with regard to Publication No 11:

"A Everyone was petrified at this stage, you have to realise, to use their names. For protection she asked it be in the name of the Kumarangk Coalition.

Q Who was the author.

A Denise Noack. She has a PhD in wetland management."

And:

"I also have a liaison person for Environment SA at this time; it was a volunteer called David Edey. He received the article, set it -"

(Emphasis added).

188. I consider that Ms Bolster has allowed herself to be swept along by the force of Mr Owen's dominant personality.

11. Professor Shearman

189. Professor Shearman became President of the Conservation Council in October 1991 and served in this office until about November 1994.

190. In January 1994 in conjunction with others he prepared or adopted a position paper with respect to Hindmarsh Island. In common with others associated with the Conservation Council he had expectations that upon the change of State government at the election in December 1993 steps would be taken to reverse the previous government's decision to build a bridge. Professor Shearman made a written submission dated 20 January 1994 to Mr Jacobs QC who had been commissioned by the new government to report. He also wrote on that day to Mr David Wootton a Minister in the new government with his concerns. When it became apparent that the government was facing an unacceptable level of compensation if it failed to meet its contractual commitments to the developers Professor Shearman decided to act.

191. On 14 March 1994 Professor Shearman wrote to Mr Uhrig as Chairman of Westpac Bank advising him that it would not be in the interests of the Bank to continue its association with the Marina development. This letter was an "open" letter in that Professor Shearman sent copies to the media.

192. On 15 March 1994 Professor Shearman followed up this letter by giving a radio interview on Station 5AN to Mr Keith Conlon. Professor Shearman made the point that "it's not going to be in [the Bank's] interest to support this type of development". And later (referring to the Bank):

"SHEARMAN:They haven't had a bright and burning public image over recent years in many ways. I would have thought that they would be concerned about being on the wrong side of the fence on this one, very very concerned. Because there are so many people have worries about it, I suspect that they will lose a lot of business on this. And I think they need to look at that in terms of self interest.

CONLON: So in essence, if you...if you don't get an immediate response from the Chairman, John Uhrig, who happens to be a South Australian, if you don't get a response from him do you plan to put pressure on the bank more widely?

SHEARMAN: ...We wouldn't be prepared to say that. We hope for discussions with Westpac. And let me say we're apologising for putting this to the media at the same time, we feel the matter is urgent and that's the reason we've done that. I think the first step is for Westpac to understand fully.. and for heaven's sake I hope they now have environmental experts advising their board, they didn't have some years ago. If they would look at this carefully and closely and discuss this with community representatives, then I think they'll have a different viewpoint. That's...that one, we're not...we're not going to be involved in threats." (Bk IV p1365)

193. On 8 May 1994 Professor Shearman delivered a paper to a seminar conducted at Adelaide University by Australian Centre for Environmental Law as to "experiences of conservationists in SA". It was a discussion of the legal action taken in the Federal Court leading to the granting of interlocutory injunctions by Heerey J on 19 April 1994. .Subsequently the text of that address has been substantially broken into two parts and has been used as a basis for the Publications No 5 and 6 which are complained of in this action. Of course, the two articles collectively or individually do not necessarily bear the same meaning as the corresponding language in the oral address (or its draft). Publication No 6 also includes material which was supplied for the purpose by Professor Stewart (as attributed to him in the article).

194. Professor Shearman gave evidence in the present trial that his letter of 14 March 1994 to Mr Uhrig did not intend to inflict harm on the Marina developer. He said that "any infliction of harm is not within my personal ethos of care for others". He added that he had never seen on the agenda of the Conservation Council anything which "involves playing people rather than the ball". However Professor Shearman then went on to acknowledge that as a result of the Council's activities "some people may be hurt...we are putting our point of view through government...obviously this will affect people but our agenda is not to harm people." In my opinion Professor Shearman in his letter of 14 March 1994 and in Publication No 6 was "playing people rather than the ball".

195. I find that Professor Shearman wrote Publication No 6 intending to refer to and to reflect badly upon the Chapmans. (That of course is a different question from whether the publication would be treated by the reader of the article as referring to the Chapmans).

196. Professor Shearman's state of mind and his purpose in approving the article for publication can be distilled from an examination of the whole of his seminar speech of May 1994 in conjunction with Professor Shearman's evidence at trial of this action.

197. I am satisfied that Professor Shearman was well aware when he wrote to Westpac Bank on 14 March 1994 that he was trying to apply pressure by way of a veiled threat to Binalong's banker. When he delivered (or at least wrote) his seminar speech he was still smarting from the interim injunction obtained in the Federal Court and his knowledge of the letters of foreshadowed action sent to some 36 of the supporters of the organization of which he was President. That is apparent from the tone of his speech.

198. In his seminar speech Professor Shearman described his feelings of dismay upon being served with Federal Court interim injunction. Having seen and heard Professor Shearman in the witness box I conclude that Professor Shearman is someone who would find it difficult to admit that he was wrong. He sees himself as an authority on Public Health in relation to the environment (as he undoubtedly is) and he resents any attempt to curb his perceived right to act as he sees fit in the public interest. No doubt he can advance very powerful arguments for the views which he expresses but he refuses to accept the limitations of the law which he finds irksome.

199. Professor Shearman's seminar speech includes the following:

(a) A statement (which I assume was made tongue in cheek) that Professor Shearman was contemplating putting his house in his wife's name by reason of earlier comments made at the seminar upon the topic "Dealing with SLAPP suits". (In fact Professor Shearman gave effect to this device on 10 December 1997; I find the explanation given by him for this transaction to be unconvincing particularly in light of the present proceedings which were commenced the following month after notice of action).

(b) If damages are awarded against the Conservation Council it is not in a position to pay.

(c) Despite the proceedings taken against him Professor Shearman refused to be silenced.

(d) That the "legal mechanisms" employed by the developers have transgressed Dr Shearman's civil liberties to comment on issues of very great importance to this State. "The length to which these have been pursued to stifle public opinion is in my view quite outrageous." he said.

(e) "...I would just like to think that the developer and the financial supporters and their legal advisors are thinking about their image because many individuals feel that there is still room for negotiation on this matter, and that has not yet occurred" Professor Shearman said.

(f) The speech also included:

"We have to improve our effectiveness to counter developers, the corporate sector, multinationals and Governments who damage the environment and use the law to protect themselves....We need to be able to define our corporate targets, inform the public of their products and let our thousands of members have an impact. To do this we need expert legal advice so we don't incur legal action against us."

200. In my view the overall thrust of the evidence is that Professor Shearman intended to continue to "target" the Chapman development and continue the campaign upon which he had embarked.

201. From this point onwards Professor Shearman was treading on particularly dangerous ground. By so declaring himself and coupled with his later actions he was providing a footing for an argument that he was actuated by malice towards the Chapmans as his "target". Professor Shearman intended obstinately to pursue his chosen course whilst hoping that volunteer lawyers would be able to keep him out of trouble.

202. Professor Shearman's efforts in the witness box to explain why he wrote to Westpac on 14 March 1994 did not impress me. Professor Shearman sought to paint himself as someone who was somewhat naïve in matters of business. I agree with the submission made by the plaintiffs' counsel that Professor Shearman was not as unworldly as his evidence upon its face was intended to suggest.

203. I consider that the surrounding circumstances by inference provide me with much better evidence as to Professor Shearman's state of mind as now relevant than does his sworn evidence.

12 Mr Owen

204. I have dealt extensively with Mr Owen's evidence in part 7 of these reasons. Mr Owen appeared to be more comfortable in answering questions in cross-examination when he could anticipate the point than questions where he could not foreshadow where the cross-examination was heading. He is an intelligent man who had an appreciation as to what the cross-examiner could and could not prove by other evidence and he tailored his evidence accordingly.

205. I disbelieve his crucial evidence as to his lack of memory about the origins of the Kumarangk Coalition. I think that he (like Ms Bolster) could have told me a lot more about the Kumarangk Coalition and its modus operandi than he was prepared to disclose.

206. Mr Owen assigned his interest in the Hindmarsh Island shack to his wife on 26 May 1994 but he continued to use the premises. I found unsatisfactory Mr Owen's evidence as to his reasons for undertaking that transaction. On 19 April 1994 an order for an interlocutory injunction was made against him in the Federal Court to prevent him from interfering with the bridge building. His attitude to this is reflected in cross-examination as to some notes which he made. It came as a surprise to Mr Owen that "there was a legitimate means to prevent [him] from doing something which was civilly wrong". I consider that Mr Owen intended pursuing his campaign and transferred his house by reason of concerns which either he or his wife had as to the possible financial consequences. I compare this evidence with the steps which were taken about the same time (ie shortly after the injunctions came into force) to adopt the Kumarangk Coalition name and its underground activities so as to provide some comfort to those who made use of the name and method of operation.

207. Mr Owen gave (what I regard as) deliberately vague answers when it suited him. For example when asked about a contribution to the "Kumarangk News" he was unable to recall to whom he gave permission "at the Kumarangk Coalition" for his article to be used.

208. Mr Owen was unable to say how correspondence addressed to the Kumarangk Coalition at 120 Wakefield Street (the Conservation Council's address) found its way to the Coalition. Mr Owen denied being the conduit by which correspondence sent to the Kumarangk Coalition care of the Conservation Council was passed on. I disbelieve this evidence to the extent that I find that Mr Owen must have known the system of communication even if, as he says information was being passed "in plain brown envelopes".

209. In his response dated 18 December 1989 to the draft EIS Mr Owen (together with his wife and Ms Anne Lucas) as a shack owner expressed his "undisguised desire to continue enjoying these surroundings and the environment of which that is a part." He expressed "concern about the access the bridge will provide to the Island."

210. Nevertheless, Mr Owen (with the very considerable skills which he possesses) has cleverly steered the subsequent debate towards public interest factors and away from self interest. He has chosen (under the auspices of the Conservation Council) to attack the proponents of the bridge by seeking to score points in a public relations exercise which was promoted (if not designed) by him to denigrate Tom and Wendy Chapman. In my opinion he has chosen to associate the Friends of Goolwa and Kumarangk with the Conservation Council by reason of the "clout" which the Conservation Council must possess when purporting to "speak in the public interest" (cf Part 3 of these reasons). Although Mr Owen has based his anti-bridge case on public interest grounds, I am satisfied that he has not overlooked the personal advantages to the shack owners if a bridge were not built.

211. Mr Owen is well aware of the difficulties (in terms of conservation principles) in retaining the waterfront shacks in their present condition; however, as he pointed out the occupancy of the shacks is lawful for the time being. There are particular problems with effluent disposal from the shacks (particularly at a high tide) when septic systems do not function properly. When the question of effluent disposal was raised with Mr Owen in cross-examination I observed him to be uncomfortable. Likewise, I think that Mrs Chapman struck a raw nerve when she invited Mr Owen to inspect the wood lot effluent disposal system planned for the Binalong real estate development. She issued this invitation at a rally after he had criticised Binalong's sewage arrangements. Mr Owen declined the invitation as "inappropriate". I was puzzled by this response until I realised that Mr Owen had no real interest in being properly briefed as to the true state of the Binalong development; he was only interested in scoring points in a public relations exercise. I consider that when he joined with Ms Bolster in preparing Publication No 7 for distribution his state of mind remained the same.

212. Mr Owen was cross-examined as to a proposal in the draft EIS that a trust fund be established to acquire properties in the conservation zone of Hindmarsh Island. In its response to the EIS dated 18 December 1989 (and before Mr Owen became involved in the Council's affairs) the Conservation Council by its Executive Officer Mr Beresford treated the proposal for a Trust Fund as in many respects having "great merit".

213. At p 91 of the draft EIS the purposes of the Trust Fund is expressed to include "the purchase of private and Government owned land of recreation and conservation value." The conservation zone (including Sugars Road) is shown at p 88 of the draft EIS. Nowhere in any documents or evidence originating from Mr Owen can I find any concern being expressed by or on behalf of the shack owners for the possibility that their properties might be acquired. The concerns of the residents were voiced in terms of the damage to the environment which would result from an increase in visitors. Owen's cross-examination shows:

"Q. The proposal in the draft EIS was, in fact, for a trust fund to acquire properties such as yours, wasn't it.

A. I have no idea what the trust fund, what properties, were going to be taken by the trust fund. I don't recall ever reading that.

Q. Because the shacks along Sugars Road are all located, aren't they, in the conservation zone.

A. There are lots of houses in the conservation zone.

Q. That wasn't an answer to my question.

A. Certainly those shacks are in the conservation zone.

Q. They are, in fact, in the sort of area that, if you go and peruse papers in the Conservation Council, where the Conservation Council says there shouldn't be development.

A. Yes, I think that's probably accurate. Can I point out on the map where the conservation zone is?

Q. No, because we already have it on other details.

A. It is certainly not just a coastal fringe."

214. Mr Owen made a close study of the documents associated with the planning process and he demonstrated in the witness box an intimate knowledge of matters of detail. I express some surprise that the significance of the proposed trust fund should have escaped him although it attracted specific favourable comment from the Conservation Council in December 1989.

13 Mr and Mrs Chapman and Andrew

215. Mrs Wendy Chapman is a former Lord Mayor of Adelaide and has a long history of involvement in public affairs. She was made a Member of the Order of Australia in 1986 for services to local government and to the community. Her husband, Mr Tom Chapman is an experienced land developer; he also has had extensive involvement in community affairs; in particular he has been prominent in Apex and other service organisations and he has served at President of the National Council of Independent Schools. Nothing has been put before me as now relevant to detract from the reputations which they appear entitled to enjoy. Their characters have not been put in issue. It is unnecessary to recite the details of their contribution to the community [T176-178].

216. The evidence of Mr and Mrs Chapman shows that they have each been deeply hurt by the sustained personal attack which has been made upon them over many months on behalf of the Conservation Council of SA. It is therefore not surprising that they have become somewhat thin skinned and embittered and are looking for a defamatory innuendo in circumstances where it would not occur to the ordinary person to place such a construction on an innocuous publication. Mr and Mrs Chapman have given evidence as to the meanings which they attribute to the eleven publications of which they complain. I accept that Mr and Mrs Chapman each believe the various publications to be directed at them and reflecting upon their reputations. Although I do not consider that in many cases their construction of the publication is a fair one, nevertheless I consider that their reaction is understandable in light of the campaign to which they have been subjected.

217. Mr Chapman was particularly incensed by Professor Shearman's letter of "advice" to the Chapmans' bankers dated 14 March 1994 (which itself is not the subject of any claim). This is not an action for interfering with contractual relations and the letter does not attract damages.

218. I accept that Mr and Mrs Chapman have been wounded by the slur cast upon them by the publications for which liability has been established in this trial. For the purposes of awarding damages I am faced with the task of isolating the hurt caused by those Publications (No 6, 7 and 11) from other parts of the campaign which has been waged against Mr and Mrs Chapman. I do not understand the evidence of Mr and Mrs Chapman otherwise to be controversial.

219. In the witness box Mrs Chapman displayed a particular aggression in cross-examination; Mr Chapman was also more than ready for combat in cross examination. In my opinion they have both become somewhat unbalanced to the point where I would have to look very carefully at their version of events before accepting the detail of their evidence. All this is not necessarily to their ultimate disadvantage in these proceedings as their evidence demonstrated the depth of their hurt.

220. They have been subjected to an intense and unfair campaign in which many people and organisations (including the present defendants) have apparently participated so as unfairly to tarnish their reputations.

221. I have spelt out some details of the campaign to which they have been subjected in anticipation that this explanation in itself may go some way towards achieving justice.

222. There is a great deal of evidence in documentary form (newspaper clippings and radio and television references) to support the allegation (in par 8 of the Statement of Claim) that Tom and Wendy Chapman were closely identified in the public mind since early 1993 with the development of the bridge. The ordinary person would know them as the developers of land on Hindmarsh Island and as persons involved in the construction of the bridge.

223. I do not consider that the plaintiff Andrew Chapman was subjected to the same degree of media exposure as his parents. He gave evidence in the case but I consider that his role would have been seen publicly as subordinate to that of his parents, if indeed, his participation in the commercial venture was a matter of general knowledge. The reference in publication no 7 to "the Chapmans" could arguably extend to him but I find to the contrary by reason of the state of the public mind.

224. Tom and Wendy Chapman at all material times were shareholders in Binalong Pty Ltd. Until November 1996 Wendy Chapman and her son Andrew were directors of Binalong; thereafter Tom Chapman became a director. Binalong went into receivership on 15 April 1994 (in the course of the Federal Court injunction proceedings). Undoubtedly the Chapmans had enormous financial problems but I do not consider that these concern me.

14 The Non Party Witnesses

225. 1. Ms Michelle Grady the Executive Officer of the Conservation Council gave evidence as to the administrative arrangements within the Conservation Council and as to its organisation. However, her evidence was important. She identified the Kumarangk Coalition as a body with which the Conservation Council had a direct association. She identified Mr Brian McDermott as a contact person. Mr McDermott had chaired the EARAG group for some years. Ms Grady's recollection of him is a person having some connection with the Department of Community Medicine at Adelaide University. My own impression on reviewing all the documents is that Mr Owen and Mr McDermott seem to have had (at least to some degree) interchangeable roles in EARAG and as the guiding force behind the Kumarangk Coalition. Ms Grady explained that there was no formal connection known to her between the Kumarangk Coalition and the Conservation Council. The Coalition was known to Ms Grady as a coalition of people interested in supporting the aboriginal heritage issues and the Ngarrindjeri people in relation to the bridge issue and also having a common cause of being in opposition to the building of the bridge. I regard Ms Grady as a very satisfactory witness and I treat her evidence as being reliable and truthful. I was interested to know the extent of Ms Grady's knowledge of the workings of the Kumarangk Coalition. I have used Ms Grady's evidence as a base against which I have been able to assess other evidence. Her limited knowledge of the affairs of Kumarangk Coalition leads me to the conclusion that by and large the more significant and controversial aspects of the coalition were not on public display. Ms Grady's evidence makes it easier for me to accept that Professor Shearman may not have had much to do with the Kumarangk Coalition in his capacity as President of Conservation Council in the course of attending to general business. Ms Bolster, on the other hand, clearly knew a lot more but apparently did not discuss with Ms Grady the full extent of her knowledge. Ms Grady's evidence assists me to appreciate the extent to which the activities of Kumarangk Coalition were covert and how the coalition would appear to an outsider.

226. 2. Ms Olwyn Barwick is a shack owner on Hindmarsh Island. She gave evidence as to "direct action" taken by her to stop the construction of the bridge. Her complaint was that there was no environmental management plan to deal with the impact of a bridge. She was injuncted by Federal Court order from interfering with the bridge construction. She was involved in impeding a grader on 29 October 1993 and she also appears to have committed an offence under the Survey Act 1992 by removing survey pegs associated with the bridge. Ms Barwick gave evidence that she thought that she was in jeopardy of losing her house if she continued her involvement with the protest activities. Speaking of the injunction proceedings she said:

"I had been one of the organisers of Friends of Goolwa & Kumarangk and it made me very loathed to encourage people to speak out. I tended to advise caution for people. This made me feel very constrained, very anxious, and vigilant. I felt I had to be watching myself all the time."

And

"It affected my sleeping very significantly. It also interfered, I felt, with my freedom of speech, and my freedom to encourage other people to speak out on what they believed. I had never, ever been motivated by a wish to badly affect the Binalong business, or the individuals in the company. I had always been focussed on what I thought were the shortcomings of the government and the local council. I suppose I felt a bit indignant that I was being done for something I hadn't ever wanted to do."

227. I thought that Ms Barwick was patently honest and sincere in her evidence - even in describing conduct which did not reflect well on her. Upon her own evidence Ms Barwick was in jeopardy of being called upon to pay compensation for her flagrant breaches of the law. The members of the Friends of Goolwa and Kumarangk were at risk of (at least) aiding and abetting the procurement of breaches of the injunctions if they continued to follow Mr Owen.

228. The change of heart by Ms Barwick and others in like position was a setback to Mr Owen's campaign of civil disobedience. I regard Publications No 5, 6 and 7 as an attempt to re-establish the momentum of the protest after people such as Ms Barwick had come to realise the risks which they were running.

229. 3. Ms Anne Lucas is the owner of the Mouth House which she purchased in 1988 as a holiday house. She was involved jointly with her neighbour Mr Owen in lodging an objection in December 1989 to the draft EIS for the bridge. Ms Lucas "on and off" was a member of the Friends of Goolwa and Kumarangk. In late 1993 she attended at Amelia Park Goolwa and associated herself with people who were displaying placards. Ms Lucas was served with a warning letter by the plaintiffs' solicitors. She took it to a very experienced solicitor who helped her draft an answer. I treat her as having access to very competent advice. Despite this, when asked to describe the effect of the plaintiffs' letter of April 1994 she said:

"It has had, I believe, a great impact on my life. It's virtually stymied speech. I believe that a lot of my health problems have had their genesis from this time. Affected me, I felt as though I couldn't speak out for the waterway, the birds, the fish, the very things that I find the area most dear to me, and I found that also my social life, friends, I was ridiculed shortly after that by people I knew, and it's had an effect on my family, because my family has been involved, and so I haven't been able to speak freely on anything to do with Hindmarsh Island. It's become - for five years it's been a very effective disruption in my life."

230. Ms Lucas is a somewhat intense person. She had previously raised at a Westpac shareholders' meeting the question of the bank's involvement in the Hindmarsh Island development. Her evidence was helpful to my understanding as to how it was that Mr Owen was able to have Mr and Ms Milera as immediate neighbours so as to give Mr Owen access to the affairs of the Lower Murray Aboriginal Heritage Committee. Ms Lucas' evidence supplements that of Ms Barwick in demonstrating how Mr Owen's campaign to his knowledge must have lost momentum when members of his organisation got "cold feet".

231. 4. Ms Pamela Fulton moved to the Goolwa area in 1992 and became a member of the Friends of Goolwa and Kumarangk. Ms Fulton read an article in the Adelaide Advertiser on 1 April 1994 headed "Bridge protest groups face jail". The article referred to the bridge construction contract let in September 1993 to Built Environs and to the fact that work had been stopped. The article referred to the "ringleaders of picket lines" and described the terms of the interim injunctions.

232. Ms Fulton described herself as devastated by what she read. Mr Owen had a basis for seeing his campaign falling apart. The defendants rely upon Ms Fulton's evidence as demonstrating how debate was being stifled. The issue in this case is somewhat different - namely the purpose for which the Chapmans (and in particular Mrs Chapman) authorised the proceedings. Some of Ms Fulton's evidence was taken under objection. I find the evidence useful for a reason different than that for which it was sought to be justified. It helps to confirm my understanding of the situation which faced Mr Owen when his carefully crafted campaign was disrupted in a way which he had not anticipated. (I should make it clear that even without Ms Fulton's evidence I would reach the same conclusion).

233. 5. Mr David Paton gave evidence as an expert regarding his assessment of the Avifauna of Hindmarsh Island. The evidence was uncontroversial.

234. 6. Mr Steven Hemming gave evidence of his research of Aboriginal groupings in areas from Murray Bridge through Meningie and into Western Victoria. He provided a scholarly exposition of Aboriginal history of the Hindmarsh Island area since the establishment of a mission station at Point McLeay in the 1840s. His evidence was directed principally to material in publications which I have found not to be defamatory.

15 An application to amend the defence

235. During the course of the final addresses of counsel my attention was directed to the decision of the Federal Court in Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106, delivered on 21 August 2001. Basing an argument upon the outcome of that case (in which Tom and Wendy Chapman and Binalong Pty Ltd were the unsuccessful plaintiffs) the present defendants put forward an argument that Tom and Wendy Chapman are bound by findings made against them.

236. To take advantage of this submission, the defendants sought to amend their defence to allege that an imputation arising with respect to publication No 11 was justified. Par 88aa of the statement of claim alleges that the natural and ordinary meaning of identified words of the publication (as one alternative) carried the meaning that:

"the Plaintiffs ... failed to meaningfully consult Aboriginal people during the planning process for the bridge."

237. The important feature of the proposed amendment to the defence is that it seeks to address "the planning process for the bridge" whereas previously the defence addressed the more general topic of "the planning process". (It will be noted that in Part 5 of these reasons I discussed the breadth of the so called "Polly Peck plea" in the defence which did not exactly match and address the allegation of the statement of claim).

238. After hearing argument I refused the application to amend in light of the following observations:

1. The existing defence makes an assertion of fact with respect to the planning process (which presumably includes planning for the bridge and other planning). To the extent that the evidence deals with the planning process for the bridge, it is addressing the imputation in the statement of claim. To the extent that the evidence addresses other aspects of planning it is irrelevant - at least in terms of a plea of truth. The present plea in the defence enables me to do justice - albeit with some embarrassment. There is insufficient basis for allowing such a late amendment having regard to the merits of the proposed new plea.

2. The plaintiffs opposed the amendment and intimated that they wished to call further evidence if the defendants' application to amend were to be allowed. The plaintiffs provided an outline of the evidence which they would call if permitted to re-open their case. In effect the plaintiffs wish to rely upon practice within relevant State Government departments in order to explain the meaning of the Planning consent and statutory authority under the Aboriginal Heritage regime. I was provided with an outline of all proposed evidence. To allow further evidence at such a late stage would be unusual and inconvenient - particularly as the addresses were nearing completion. I considered that if I were to allow the defendants' application to amend then justice would require that I allow the plaintiffs to re-open their case. This was a telling factor against allowing the amendment. (However the over-riding consideration will be an analysis of all aspects of what the interests of justice require).

3. The defendants sought to rely upon the decision in Chapman v Luminis Pty Ltd (No 5) (supra) as support an argument that the outcome of the issues litigated in another action ought to be decisive in the present action. Based upon an entirely different set of pleadings von Doussa J said [504]:

"Paragraphs 38(n), (o), (p) and (q) [of the statement of claim in the Luminis action] deal with the topic of consultation. Before dealing with these particulars, I discuss more generally the evidence relied upon by the applicants in support of their contention that throughout the planning process both the State and Binalong dealt with Aboriginal heritage issues in an orderly and comprehensive matter (sic) during which appropriate consultation with Aboriginal organisations occurred."

and at [521]:

"... I do not think that Binalong could have been under any misapprehension that the planning conditions required meaningful and serious consultation between them and representatives of the four organisations identified in the planning conditions, to occur after the grant of planning approval. No such consultation ever occurred."

239. Assuming that (despite the rule in Hollington v Hewthorn - see below) the defendants are correct in their submission that this statement is now binding in law upon the plaintiffs (as relevant to the issues in the present action) that fact will not be determinative of the plea of truth which the defendants are now wishing to pursue. Publication No 11 refers to consultations as being token and also refers to an alleged admission by Wendy Chapman in the Federal Court. Even if the consultations which were undertaken were shown not to be "comprehensive" it does not mean that they were only token. If meaningful and serious consultations were required after the grant of planning approval, that does not mean that (within the context of Publication No 11) consultations were required with respect to the building of a bridge irrespective of what one might make of Mrs Chapman's evidence in the Federal Court ADJR proceedings on 6 December 1994.

240. In my view the passages relied upon in the judgment in Chapman v Luminis (No 5) do not establish the truth of any alleged imputation arising with respect to Publication No 11.

241. I have reviewed my decision to refuse the application to amend and the consequences thereof and confirm that decision. I do not consider that the decision in Chapman v Luminis (No 5) advances the defendants' case with respect to the current pleadings. The defendants rely in particular upon the principles enunciated in Reichel v Magrath (1889) 14 App Cas 665 and Rogers v R [1994] HCA 42; (1994) 181 CLR 251.

242. I acknowledge that there may be circumstances in which a party is precluded from pursuing a point upon which that party has been unsuccessful in other proceedings but involving different parties. I do not consider that this principle is applicable in the present circumstances whether by reference to the principles of issue estoppel or abuse of process. (see Phipson on Evidence - 15th ed at pars 38-58). The nature and effect of the Federal Court judgment and the nature and basis of the claim in the present proceedings (when compared with that in the Luminis action) shows that the present proceedings should not be regarded as an abusive collateral challenge to something which has already been decided.

243. The general principle often referred to as the rule in Hollington v Hewthorn & Co Ltd & Anor (1943) KB 587 is that upon a civil trial a judgment in personam is no evidence of the truth either of the decision or of its grounds as between strangers or as between a party and a stranger but subject to certain exceptions. The rule has been modified in South Australia by the Evidence Act 1929 s 34a (with regard to proof of convictions) but that is not now relevant. As an exception to the rule, a judgment with respect to public or general rights is admissible as between strangers or as between a party and a stranger. (see Ligertwood - Australian Evidence 3rd ed at par 5.94 and Phipson on Evidence (15th ed at par 38.76).

244. In the course of preparation of these reasons and my review of my decision to refuse the defendants' application, I have had the benefit of the reasons of the Full Court in Hines Exports Pty Ltd v Mediterranean Shipping Company SA [2001] SASC 311; (2001) 80 SASR 268 at 274-278 (dealing with the principles to be applied upon an application to re-open a case before judgment has been delivered). I do not consider that the allowance of an amendment of defence and admission of additional evidence would be likely to affect the result of this action.

16. Mitigation of damage

245. The defendants plead the effect of the Wrongs Act s 11 which reads as follows:

"At the trial of an action for a libel, the defendant may give in evidence in mitigation of damages that the plaintiff has already recovered or has brought action for damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought."

246. The operation of this section was discussed by the Full Court in Chapman v Allan & Draper [1999] SASC 460 at [197]- [202] and by Miles CJ in Thompson v Australian Capital Television (1997) 129 ACTR 14 at 24-26.

247. I have been supplied with a list of amounts to which Tom and Wendy Chapman have become entitled as against various persons and organisations as a result of court judgment or agreement in respect of alleged libels which the defendants seek to bring to account by way of mitigation against any liability herein. I have decided not to include particulars of the amounts in these reasons. In some cases the agreement has been made upon a confidential basis; that fact could not stand in the way of my use of the material and the publication thereof if I considered that the requirements of justice so required. However, parties should be encouraged to settle their differences and I consider that there is a public interest in respecting their desire to preserve confidentiality so as to promote the advantages of private compromise. On the other hand parties must be aware that there may be circumstances in which their arrangements will become public if the dictates of "open justice" so require. The amounts appear in exhibit D19 but I do not intend that there will be general access to its contents. (cf Chapman v Allan & Draper [1999] SASC 460 at par 198).

248. It may be debatable whether the actual amount of the monetary sums awarded in other cases or likely to be awarded (where a case is still outstanding) is directly relevant to the exercise which is envisaged by s 11.

249. Walsh J did not consider the point to be free from doubt (see Uren v John Fairfax & Sons Pty Ltd (1965) 66 SR (NSW) 223 at 249:

"... Next, I am of opinion, although the point is not free from difficulty, that no error was made in permitting the evidence to be given as to the amount of the previous verdict. It is true that the section may have to be applied in circumstances where no amount can be put before the jury, as it permits evidence to be given in an appropriate case of the fact that an action has been brought which is still pending. But in its application to evidence that the plaintiff has already recovered or has received or agreed to receive compensation, I think its language supports the view that the amount so recovered or received may be proved. As I have said, it appears that this was done in the case of Lewis v Daily Telegraph Ltd and it escaped any criticism in the appellate courts."

250. The amount which the defendants ought to pay is not to be determined by reference to other awards which may be too large or too low or which may not have yet been assessed. I am required to deal with the situation where damage has resulted from the concurrent operation of multiple libels to the same purport or effect. In order to avoid the plaintiff being paid more than once for the same loss I am required to isolate and exclude from my reckoning that part of the total "damage" for which a defendant in this case ought not to be responsible. The section enables evidence of "damages" to be given which will avoid duplication in compensation to the plaintiffs for the "damage" suffered.

251. The defendants are entitled to put before me (as they have done) the claims, pleadings, judgments and agreements made in other cases (including, of course, the text of the other publications). I have particulars of apologies which have been furnished in some instances.

252. The defendants rely upon the compensation received or recoverable in respect of matters particularised in para 130 of the defence namely:

253. Mr Heywood-Smith, counsel for the defence, provided me with a table (substantially reproduced below) which he prepared in support of his argument. His table includes a column (which I have omitted) in which the amounts of awards are placed against particular publications. However in the case of a lump sum payment in settlement of claims and costs for multiple publications there is no way of assessing how much ought fairly to be attributed by way of damages to a particular publication, how much is by way of costs and how much might represent the amount which someone is prepared to pay as consideration for the terms of the agreement (and as the price of confidentiality). Counsel took the arbitrary approach of dividing the lump sum by the number of publications for the purpose of attributing segments of a lump sum to the various individual publications. That situation applied with respect to amounts payable by the Australian Broadcasting Commission, SA Telecasters (Channel 7), Mr Coulter and the Australian Democrats, and Mr Dean Whittaker. The total amount received is substantial. Nevertheless I question whether the precise amounts really matter except in a very broad way. It is of some evidentiary value as a guide to have regard to the compensation agreed by parties at arm's length. The fact that someone else has paid too much or too little is beside the point. It is the area of overlap in the damage which I must seek to isolate.

254. The table reads as follows:

TABLE 1

255. It will be noted that the eleven publications at issue in the present proceedings have been included in the table. Likewise, a publication in June 1994 of a circular for which Mr Owen in evidence acknowledged some responsibility is included; this is shown in the list as a claim against the Kumarangk Coalition and Friends of Goolwa and Kumarangk Inc which has not yet come to trial. I have made an assessment of that publication. I consider that the publication is somewhat remote in time from publication 11 and I have treated it as having a limited readership and I have not made an allowance in respect thereof. Most copies of a pamphlet of this nature are likely not to have long survived whereas copies of Environment SA are more likely to have ended up on a coffee table for the benefit of visitors and family members. The "reach" of Environment SA in terms of its readership is likely to be considerably greater than and different from the circular of June 1994. In reaching this conclusion I must do the best I can in this respect upon very limited information.

256. In seeking to apply Wrongs Act s 11 I have sought to identify the degree (if any) of congruence or overlap between Publications No 6, 7 and 11 and the publications for which the plaintiffs have already been compensated (or agreed to be compensated) or appear entitled to be compensated. I have noted that an amount of a judgment against the Green Left Weekly remains unsatisfied but I do not consider that this matters in view of the nature of the task that I am undertaking.

257. In seeking to identify congruence or overlap (as now relevant) I have had regard in particular to the following factors:

1. The ambit of a publication in terms of its subject matter as compared with that in Publications 6, 7 or 11.

2. The date of a publication and how far distant in time that date is from the date of the Publications No 6, 7 or 11 as the case may be.

3. The likely target audience or readership of the publications under comparison; the sections of the community which each publication is likely to reach will be considered and this may include not only geographic considerations.

4. The likely impact of the publications relative to each other bearing in mind the nature of the medium used; it has been recognised, for example, that television is likely to have a particularly strong impact. The manner of treatment of the topic - whether in large headlines as front page news or in some more modest fashion - ought to be brought to account.

5. The effect of any apology in respect of another publication, bearing in mind the date of the apology.

258. Mr Heywood-Smith has provided me with a further analysis (Table 2) which establishes links (some stronger than others) between Publications 6, 7 and 11 on the one hand and other publications for which compensation has been paid or is payable. Again I reproduce his summary but omitting any reference to actual amounts. (Rural Press is the publisher of the Victor Harbor Times; Allen published the Green Left Weekly; Mr Whittaker published letters to the editor of the Southern Argus a weekly newspaper circulating in the Strathalbyn, Goolwa and Fleurieu areas.)

TABLE 2

Publications 6 and 7 - SLAPP suits

Publication 11 - Consultation

(a) Awards for same words re Mrs Chapman's 'admission' in the Federal Court

(b) Awards for same sting - ie lack of Aboriginal consultation

(c) Awards within the same general sting: failed to follow planning processes

(d) Awards within a related, but more defamatory sting: racism or racist attitudes to Aboriginal people/issues

259. Mr Heywood-Smith has run together Publications 6 and 7 in this exercise in Table 2. However, the allegation of "oppression" in Publication 7 is not directly to be found elsewhere; Publications 6 and 7 are linked to the extent that interference with free speech is in issue. I observe that the Wrongs Act s 11 requires me to identify libels "to the same purport or effect" and not libels having merely some similarity.

260. In making my assessment I have had regard to the authoritative position which I am prepared to assume Environment SA must have enjoyed amongst the adherents of the Conservation Movement. It seems to me that there is a qualitative element involved in this exercise which goes beyond the application of the factors that I have listed. I am prepared to reach this conclusion although the journal carries the disclaimer that the views expressed may not be those of the Conservation Council. I have also had regard to the "persuasive power of television" with which Environment SA could not expect to compare (see per Miles CJ Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14 at 21).

261. I have had regard to the statement of Lord Reid in Lewis v Daily Telegraph [1964] AC 234 at 261:

"In effect it requires that each jury shall be told about the other action, but the question is what each jury should be told. I do not think it is sufficient merely to tell each jury to make such allowance as they may think fit. They ought, in my view, to be directed that in considering the evidence submitted to them they should consider how far the damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which they are concerned and how far it ought to be regarded as the joint result of the two libels. If they think that some part of the damage is the joint result of the two libels they should bear in mind that the plaintiffs ought not to be compensated twice for the same loss. They can only deal with this matter on very broad lines and they must take it that the other jury will be given a similar direction. They must do the best they can be ensure that the sum which they award will fully compensate the plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the plaintiffs which ought to enter into the other jury's assessment."

262. However, the adjustment which I have made goes beyond consideration of the abovementioned tables and consideration of the factors which I have listed. The tables are merely an aid but each publication must be individually assessed in order to gain a proper appreciation of its likely impact - particularly in the longer term. I have reached the conclusion that no mathematical apportionment should be attempted in the present case. I have dealt with the matter "on very broad lines" as suggested by Lord Reid.

263. I have given effect to the approach suggested by Fox J in Mirror Newspapers Ltd v Jools [1985] FCA 153; (1986) 65 ALR 174 at 179:

"While the section refers only to the admissibility of evidence, it is plain that it sanctions the division or reduction of an amount of damages in the circumstances to which it refers. In the present case, there is the complication, which is probably not uncommon, that some part of the damages flows from circumstances peculiar to the particular case. In this case, other newspapers acted differently in relation to prominence of publication and in the matter of apologies. Their circulations were different. One does not know what the outcome will be of the action against them. No mathematical apportionment is possible. The best that can be done is to be reasonably sure that what is awarded can fairly be attributed to the defendant, solely. ... "

17 Analysis of the publications

Publication No 1 - Latest moves to build a bridge

264. The plaintiffs complain with respect to two passages in this media release.

265. Firstly they complain about the sentence "exploitation was the purpose of an otherwise unneeded bridge and the bridge was to be funded by exploitation". They assert that these words in their natural and ordinary meaning carry the imputation that the plaintiffs:

(a) had a reprehensible purpose in proposing the bridge.

(b) would take advantage, unethically and/or unjustly, for their own advantage.

(c) would abuse the environment.

(ca) would abuse people.

(d) caused Binalong to act in some or all of the manners described in subparagraphs (a) to (ca).

266. Secondly, they complain about the passage "the bridge was a questionable deal in the dishonourable tradition of a State Bank Debacle, itself a product of reprehensible commercial/political wheelerdealing". They assert that these words mean that the plaintiffs:

(a) acted dishonourably.

(b) were party to an immoral or dishonest arrangement.

(c) were party to reprehensible conduct.

(d) had received favourable treatment due to political connections.

(e) caused Binalong to act in some or all of the manners described in subparagraphs (a) to (d) inclusive.

267. The media release was issued shortly after Ms Laidlaw as Minister for Transport announced in Parliament on 15 February 1994 the intentions of the State Government to construct a bridge linking Hindmarsh Island and the mainland. The Minister in her statement referred to the Tripartite agreement dated 31 March 1993 and the acceptance of a tender by Built Environs to the previous Government on 20 September 1993 to build the bridge.

268. It seems to me that the media release now in question is a reaction to and commentary upon the Government decision. It is drawing to public attention the attitude (as seen through the eyes of the Conservation Council) of the new Government with respect to environmental issues. It includes a reminder of the shortcomings (as viewed by the Conservation Council) of the previous Government. Mr and Mrs Chapman gave evidence that they treated this publication as referring to them. In my opinion that evidence illustrates their undue sensitivity and lack of objectivity with respect to any criticism of their development or anything associated with it.

Publication No 2 -ABC Telecast

269. The plaintiffs complain particularly about the words "dishonourable deals and I call them dishonourable deals". The plaintiffs allege that these words are defamatory of them and they allege that such words in their natural and ordinary meaning carry the imputation that the plaintiffs

270. "(a) acted dishonourably.

(b) were party to an immoral or dishonest arrangement.

(e) caused Binalong to act in some or all of the manners described..."

270. The plaintiffs complain about a statement attributed to Ms Bolster as part of an ABC television programme dealing with the bridge. Ms Bolster was apparently televised at a rally at Goolwa when she refers to the course being pursued by the Brown government. As in Publication No 1 she refers to "dishonourable deals and I call them dishonourable deals". The plaintiffs claim that in context the natural and ordinary meaning of the words carried the same imputations concerning the plaintiffs as in Publication No 1.

271. Ms Bolster does not deny using the words attributed to her but, understandably, she cannot specifically recall the occasion. It is obvious that only a segment of Ms Bolster's speech has been incorporated into the telecast. I find that this was done without her knowledge or approval. This telecast was made the subject of a claim by the Chapmans against the ABC in action no 321 of 1998 (referred to in Part 16 of these reasons).

272. I have insufficient before me to assess Ms Bolster's words in the context in which they were spoken by her. Whilst there might be circumstances in which a plaintiff could succeed based upon proof of only an extract from a conversation, it would be dangerous in the present case to assume that the published extract when standing alone has the same meaning as it might have had if the speech itself were in evidence.. Insufficient has been proved by the plaintiffs for me to be able to determine the meaning of the words in their context. If, as is possible, Publication No 2 is no more than another version of Publication No 1, then I would conclude that the publication for which Ms Bolster was responsible was not necessarily one published of and concerning the plaintiffs.

273. Moreover, Ms Bolster's speech in its original form will be subject to the rules regarding slander (see Gatley 9th Ed at par 3.6). This is to be distinguished from television broadcasts which by statute are deemed to be in "permanent form". Ms Bolster had no responsibility for the adoption and repetition by Australian Broadcasting Commission of the segment which is now in issue.

3 Publication No 3 -Media release-new alliance

274. This media release complains in particular about the expression "Billions of dollars have been squandered in South Australia, pursuing Fool's Gold" (or, alternatively "Fool's Gold Developments").

275. The plaintiffs plead that the natural and ordinary meaning of these words carried the imputation that the plaintiffs were:

(a) foolish.

(b) ridiculous.

(c) lacking in sense or judgment.

(d) causing Binalong to act in some or all of the manners described in subparagraphs (a) to (c) inclusive.

276. In my opinion the thrust of the publication is that certain people are pursuing that which in their ignorance they consider to be valuable but which is, in fact not valuable by the standards which the environment movement is seeking to promote.

277. The thrust of the media release deals with questions of community standards. Undoubtedly the development of Hindmarsh Island (together with two other proposed developments) is being referred to.

278. It may be that the article implies that in the eyes of the conservation movement the developers have the wrong values - preferring material gain derived from real estate sprawl to the preservation of the area by Ecotourism. I do not consider that the charge made against the developers is defamatory. It will not lower the plaintiffs in the estimation of right thinking members of society. There will always be room for the expression of differences of opinion as to the effect of development. Some will obviously consider it to be a pity if certain types of development cannot be held back but I do not consider that right thinking people would treat the strong expression of such sentiments as reflecting adversely upon the reputation of the plaintiffs.

279. The publication carries the imputation that in the opinion of the writer Tom and Wendy Chapman are foolish in a particular respect but in context I do not regard the statement as being defamatory. The publication calls in question the judgment of the developers but I do not consider that this reflects upon their reputations.

Publication No 4 - Media release - how many wrongs

280. This media release says:

"A bridge to Hindmarsh Island is sheer lunacy, says the Conservation Council of SA. Here we have a capital asset which any intelligent planner would assess as central to Australia's future in Ecotourism and second-rate minds propose to destroy it with instant population explosion and day trippers."

281. According to the plaintiffs this means that the plaintiffs were:

(a) persons with an inferior grade of intelligence.

(b) persons with inferior minds.

(c) causing Binalong to act in some or all of the manners described in subparagraphs (a) to (c) inclusive.

282. In my opinion the media release will not be read literally by reasonable people. The gist of the publication is that the decision to build a bridge is flawed; the Government has not recognised the Island's asset value in terms of Ecotourism; the Government's planning decision is deserving of condemnation.

283. I do not consider that the article is referring to the plaintiffs. In any event to challenge the wisdom of the decision to build the bridge does not reflect upon the reputation of any of the plaintiffs.

284. As with Publication No 1, I consider that the evidence of Mr and Mrs Chapman as to their reading of this publication causes me to regard them as being extremely thin skinned.

Publication No 5 - Hindmarsh Island - Update

285. The plaintiffs complain with respect to the following extracts from this article:

"The Conservation Council escaped the net of legal action known internationally as a SLAPP suit (Strategic Litigation Action Preventing Participation).

A recent finding in the US awarded damages of over $85M in a counter SLAPP suit. But as anyone who has dallied with the law will know, companies and corporations liable for such damages are almost invariably structured so that payment is eternally out-of-reach. Environmental Lawyers are aware that people's courts are often compelled to support capital to the detriment of society and the environment, making a mockery of the myth of justice."

286. According to the plaintiffs the natural and ordinary meaning of these words carry the imputation that the plaintiffs:

(a) ...

(b) issued proceedings for the purpose of stopping people participating in lawful protest.

(bb) issued proceedings for the purpose of stifling debate.

(c) ...

(d) issued proceedings with the purpose of suppressing freedom of speech.

(e) ...

(f) were party to mocking the institution of justice.

(g) caused Binalong to act in some or all of the manners described in subparagraphs (a) to (f) inclusive.

287. There is evidence in the trial of various articles concerning the conduct of SLAPP suits. I get the impression from the flavour of the articles that there are those in the community who would regard it as morally reprehensible to institute proceedings of this type. However I do not consider that the reasonable person would know more about SLAPP suits than appears on the face of Publication No 5 itself. In my view the plaintiffs are reading more into the publication than the text justifies. I do not consider that the article gives rise to alleged defamatory imputations.

Publication No 6 - President's message

288. The plaintiffs complain with respect to the following extracts from this article:

"The legal mechanisms used to silence community groups from expressing valid concerns on the Hindmarsh Bridge issue have profound implications for free speech in Australia.

We were silenced by two different mechanisms. Binalong Pty Ltd and Marine Services Co Pty Ltd acted against the Conservation Council under Section 45D of the Trade Practices Act 1974.

We believe that this legal process is being used simply to silence us ...

The mechanism being used here is one called a 'SLAP suit' commonly used in the United States to silence environmental groups, consumer groups and legitimate viewpoints being put from the community ..."

289. The plaintiffs allege that these words in their natural and ordinary meaning carry the imputation that the plaintiffs issued proceedings to silence the Conservation council or caused Binalong so to do, as well as the further imputations that the plaintiffs:

(a) ...

(b) issued proceedings for the purpose of stopping people participating in lawful protest.

(bb) issued proceedings for the purpose of stifling debate.

(c) ...

(d) issued proceedings with the purpose of suppressing freedom of speech.

(e) ...

(f) were party to mocking the institution of justice.

(g) caused Binalong to act in some or all of the manners described in subparagraphs (a) to (f) inclusive.

290. In my view Publication No 6 in September 1994 goes a step beyond Publication 5 which appeared in the preceding part of Environment South Australia.

291. There is now spelt out an alleged ulterior purpose for Wendy Chapman's actions. For the Chapmans (or one of them) to use their resources for the express purpose of standing in the way of community debate on the particular topics seems to me to be conduct which the reasonable person would regard as discreditable. (I have discussed this matter in Part 6 of these reasons.)

292. The plaintiffs allege that they were associated in the public mind with Binalong and the marina development and were thus indirectly identified as the persons responsible for the loss of free speech resulting from the employment of the "two different mechanisms" described in Publication No 6. If this article stood alone I would find that the topic of complaint was a publication of and concerning Tom and Wendy Chapman. However the article specifically refers the reader back to Publication No 5 and I consider that it is appropriate to read Publication No 6 in conjunction with Publication No 5. When this is done the reasonable reader would conclude that it is the actions of Wendy Chapman (at least in terms of the Federal Court proceedings) which (according to Publication No 6) were responsible for the legal steps of which the article complains. I consider that Publication No 5 draws attention to Wendy Chapman so as to suggest that she has been responsible for taking steps for the purpose of stifling debate on sensitive issues. I consider that the terms of Publication No 5 override the background knowledge which the reader would otherwise bring to bear. Although Publication No 6 in my opinion is defamatory of Wendy Chapman irrespective of Publication No 5, the effect of that earlier publication is that Publication No 6 should only be read as being written of and concerning the alleged conduct of Mrs Chapman.

293. In reaching my conclusion I have been assisted by the decision of the Full Court in Chapman v ABC [2000] SASC 146 pars 138 and 145.

294. In his evidence Professor Shearman described the result of the injunction proceedings "as silencing us". "That was the effect that it already had over the next couple of months was to stifle further opinion". However, Publication No 6 goes beyond this; it refers to the purpose of Mrs Chapman and the mechanisms used simply to silence (us) community groups. The fact is that the mechanism was being used to prevent apprehended tortious behaviour and there is no basis for suggesting otherwise.

295. In my opinion the subject matter of this publication falls within the exceptional case discussed in pt 4(e) of these reasons. The actions of Mrs Chapman and her solicitors made it clear that anyone who unlawfully interfered with the bridge construction could expect to face court proceedings (including an application for relief quia timet). In my opinion this climate created the "exceptional" situation where Professor Shearman was entitled to advise the conservation movement of the limits of the law. It was the actions of the Chapmans which created this special situation of qualified privilege. However, I consider that Professor Shearman abused the privilege of the occasion.

296. Professor Shearman, President of the Conservation Council had an interest in publishing to the conservation movement advice as to the legal difficulties facing environmentalists who chose to carry their protests to the point where they intentionally interfere with commercial contracts; the members of that movement had a reciprocal interest in receiving such advice. There is a public interest in everyone being aware of the principles established by Stratford v Lindley [1965] AC 269 and Torquay Hotel v Cousins (supra). It would be proper to use the example of the Federal Court proceedings to explain the point. A factual error in describing the course of the Federal Court proceedings, arguably, would be protected by qualified privilege if the matter makes a "contribution to the discussion of the subject of public interest". I consider that it does make such a contribution. Nevertheless my finding is that the defamatory matter was not published for the purpose of the privilege. Professor Shearman's dominant purpose has already been extensively analysed. Therefore by reason of the existence of malice the claim for privilege fails.

297. In my opinion the Lange defence also fails because the topic is not one to which the extended privilege applies. In any event I do not consider that Professor Shearman's conduct was reasonable. The Lange defence would also be defeated by the presence of malice.

298. Insofar as the publication involves expression of opinion I find that the comment does not represent a disinterested judgment by Professor Shearman but was actuated by malice. Any matter of comment was not fair. Professor Shearman said "We believe that....". That expression must be inclusive of Professor Shearman so as to mean "I am of opinion that...". There is no proper factual basis for such an opinion.

299. Professor Shearman as editor was responsible for overseeing the inclusion of the related articles Publications 5, 6 and 7 as a series in Environment South Australia. I consider that I may use the combined effect of the three publications to confirm my views as to the presence of malice on his part in the course of "targeting the developers".

300. In the latter part of April 1994 in a radio broadcast on station 5AN in a programme called "Drivetime" the announcer said "

Mary Heath said that the principle of using the law to stifle public protest is shameful and outrageous and it places the people objecting to the project in an impossible situation when the weight of the law is brought to bear to, as she said intimidate them."

This was a reference to the Federal Court action.

301. I consider that the purport of Publication No 6 is the same as that put forward by the Australian Broadcasting Corporation on 27 April 1994 or thereabouts in respect of which I will treat Mrs Chapman as having recovered damages by virtue of the terms of settlement which are before me. There was no apology tendered by ABC. There is a gap in time of about five or six months between the ABC publications and Publication No 6. I consider that there must have been some slight continuing effect of the ABC broadcast so as to create an overlap between the effect of the relevant publications. (I do not consider a radio broadcast has such an impact as a television presentation). I have therefore made a small reduction in Mrs Chapman's damages in respect of Publication No 6 on account of the earlier treatment of this topic by the ABC.

302. I note that Mary Heath abovementioned was identified by Ms Bolster as having an association with the Kumarangk Coalition. I mention this only for the sake of completion.

303. I consider that $20,000 is a fair assessment of Mrs Chapman's damages.

304. In making this assessment I have had particular regard to the standing of Professor Shearman and the Conservation Council and the effect which a "President's message" is likely to have had.

Publication No 7 - A win for freedom of speech

305. The plaintiffs complain specifically about the following passage:

"The people of Goolwa have been intimidated by this action and have been prevented from speaking freely on issues of concern. Whilst the Chapmans seek compensation, who compensates ordinary residents of Goolwa who have suffered greatly under the boot of Binalong?"

306. The plaintiffs allege that these words are defamatory in that such words in their natural and ordinary meaning carry the imputations that the plaintiffs:

"(b) issued proceedings for the purpose of stopping people participating in lawful protest.

(bb) issued proceedings for the purpose of stifling debate.

(d) issued proceedings with the purpose of suppressing freedom of speech."

And that the plaintiffs:

"(a) had acted tyrannically.

(b) were cruel

(c) had oppressed ordinary people.

(d) caused Binalong to act in some or all of the manners described in sub-paragraph (a) to (c) inclusive."

307. This matter is pleaded so as to emphasise the nexus between Publication No 5 and Publication No 7. I consider that the allegation of oppression is the most apt.

308. The thrust of the article is that the Chapmans have had recourse to litigation to deter Goolwa citizens from exercising their normal right to express a point of view about the bridge. Whilst the citizens have been disadvantaged in this way a Senator (who has an association with the Chapmans) is disseminating misleading information in Parliament. In the result (according to the article) the Goolwa people have been left without redress.

309. It may be defamatory (subject to the context) to say that a person has been guilty of oppressive conduct (see Gatley - 9th Ed at par 2.19 citing Woodward v Dowsing (1828) 6 LJ KB 225).

310. I find that the article has a tendency to excite against Mr and Mrs Chapman the adverse opinion or feeling of other people. The complaint made by the joint authors seems to be a development of that contained in Publication No 5 and 6. I have no difficulty in treating Publications 6 and 7 (together with Publication No 5) as part of the same campaign to discredit Tom and Wendy Chapman.

311. I note that under cover of a letter dated 5 February 1996 to Justice Matthews, Mr Owen in his capacity as Chair of Friends of Goolwa and Kumarangk Inc, forwarded a copy of "Environment South Australia Vol 3 No 6 Nov/Dec 1994". The abovementioned Publication No 7 appears at p 14 of the November/December 1994 issue of the journal. Although Mr Owen is in this instance writing on behalf of "the Friends", it demonstrates how he has maintained the impetus of his campaign.

312. I have not had regard to this further publication in February 1996 except to provide evidence of the continuing campaign.

313. Unlike Publication No 6 (Professor Shearman's "message") I do not consider that Publication No 7 attracts qualified privilege. The occasion of the publication was not one upon which information needed to be conveyed to the world at large. It is merely a somewhat one sided progress report ("a further update") of a civil action. It is an attempt to reinforce in the minds of the Environment South Australia subscribers the impressions left by the ABC publication of 27 April 1994 and Publication No 6.

314. The extended Lange defence is not established. The topic dealt with in Publication No 7 is not one to which the Lange principle applies. The conduct of the defendants is not reasonable. The authors of the article were motivated by malice as I have already discussed.

315. The residual effect of the earlier impressions left by the ABC is a matter for mitigation and I have again brought this to account although any memory of the ABC broadcast must have dimmed. In any event the overlap between the audience of "Drivetime" and the subscribers and readers of Environment SA must be limited.

316. I consider that $25,000 is a fair assessment of the damage suffered by each of them, Wendy and Tom Chapman in respect of Publication No 7.

Publication No 8 - Hindmarsh Island & the human condition

317. The plaintiffs complain of the following words:

"Intimidation or pseudo-legal, clever and expensive manipulation of real issues to achieve financial or political or media supremacy is ultimately destructive of the last toehold of Aboriginal culture. This is spiritual rape feeding on fear, jealousy, greed and loneliness."

318. Upon the plaintiffs' case these words mean that the plaintiffs were:

(a) engaging in intimidation.

(b) manipulating to gain an unfair advantage.

(c) scheming to destroy Aboriginal culture.

(d) guilty of violation or abuse of Aboriginal culture.

(e) manipulating people via their fears, jealousies, greed and loneliness.

(f) causing Binalong to act in some or all of the manners described in subparagraphs (a) to (e) inclusive.

319. I have had difficulty in understanding this article. However, I gained a better appreciation of it with the benefit of a background explanation by Ms Bolster in the course of her evidence. I consider that the reasonable person would regard the meaning of the impugned paragraph as being obscure. With the benefit of Publication No 7 (and its reference to intimidation) I conclude that the author was trying to promote the campaign being waged by Mr Owen and to pursue the theme of Publication No 7 but I consider that the paragraph has missed its mark. However, the article stands alone for the purposes of establishing the natural and ordinary meaning of the words and it is not written of and concerning the plaintiffs.

Publication No 9 - The washpool

320. The plaintiffs complain about the following passage:

"One of the tragedies of the Kumarangk (Hindmarsh Island) bridge planning disaster is that what could have been the beginning of a golden age - nature and culture based tourism allied to ecological restoration - has been ignored in state government panic to cover up the facts of earlier, short term processes designed to deliver quick profits to a handful of individuals at the expense of South Australia's greater long term potential."

321. The meaning attributed by the plaintiffs to these words is that the plaintiffs:

(a) were party to a cover up.

(b) failed to carry out planning processes for the bridge as required by law and/or relevant authorities.

(c) had acted in the manner in paragraph (b) to secure quick profits.

(cc) had acted exploitatively.

(d) were causing Binalong to act in some or all of the manners described in subparagraphs (a) to (c) inclusive.

322. In my opinion this article (as now relevant) is dealing with alleged inadequacies in Government. The article is attacking the policies and procedures of the State Government which is said to be preferring development interests (and the immediate financial benefits) to the longer term ecological benefits which could be derived from Ecotourism. In my opinion this article would not be viewed by reasonable people as reflecting upon the plaintiffs.

Publication No 10 - Divide and rule

323. Publication No 10 is a slightly shortened version of Publication No 8. The parties are in agreement that the meaning of this article (issued to the media) is indistinguishable as now relevant from Publication No 8. It is unnecessary to discuss it further.

Publication No 11 - Hindmarsh Island - Not so secret political business

324. The plaintiffs' complaint is with respect to the following words:

"Consultation with the relevant Aboriginal groups throughout the planning process was token. Wendy Chapman has admitted in Federal Court that Binalong never consulted directly with any of the organisations listed as a condition for building the bridge."

325. The plaintiffs allege that such words in their natural and ordinary meaning carry the imputation that the plaintiffs:

(a) failed to consult Aboriginal people during the planning processes for the bridge.

(aa) alternatively, failed to meaningfully consult Aboriginal people during the planning process for the bridge.

(b) admitted that they had failed to consult Aboriginals when they had an obligation to do so.

(c) caused Binalong to act in some or all of the manners described in subparagraphs (a) and (b) inclusive.

326. There are two related complaints in the two sentences contained in this paragraph. The defendants argue that the first sentence (as to token consultation) stands alone. I disagree. In my opinion the paragraph is dealing with the topic of bridge building and with conduct of the developers during the planning process and conduct after planning approval had been obtained. The article identifies "Binalong developers Tom and Wendy Chapman". The general topic under examination is the extent of consultation with Aboriginal groups or organisations at these different times. It is alleged that whereas the developers' consultation was token during the planning process it was non existent thereafter (as relevant to the building of the bridge) despite a legal requirement imposed upon the developers in this behalf. It is also alleged that Mrs Chapman made an admission in Court in respect of the lastmentioned allegation.

327. It seems to me that the article carries with it the imputation that when working through the consultative steps leading to planning consent for the bridge the Chapmans had undertaken aspects of the task as regards Aboriginal interests in a perfunctory manner. The article also carries the imputation that there was some legal obligation attaching to the building of the bridge in respect of which the developer had not satisfied a requirement to consult and had admitted to this.

328. I have dealt with community standards in Part 6. I consider that the conduct attributed to the developers breaches those standards and that the reputations of Tom and Wendy Chapman are likely to be tarnished thereby.

329. In my opinion there is no privilege attaching to the publication of Publication No 11 to such a wide readership (see Morosi v Mirror Newspapers (supra)). However a discussion as to the operation of the State planning laws is a matter which is properly characterised as a topic concerning "government and political matters that affect the people of Australia"; each member of the community has an interest in disseminating and receiving information, opinions and arguments on this subject. Publication No 11 is therefore potentially within the protection of the Lange defence but I find that the conduct of the Conservation Council and Ms Bolster was not reasonable in all the circumstances of the case. I do not consider that anyone who was responsible for Publication No 11 had reasonable grounds for believing the imputation to be true nor was any proper step taken to verify the accuracy of the information. The publication was not made for the purpose of communicating "government or political" information but instead was published as part of the campaign to lambaste Tom and Wendy Chapman and for that specific purpose. I consider that Ms Bolster was at least recklessly indifferent as to whether the material was truthful and accurate. I find that the publication was actuated by malice. I therefore find that the defence fails to satisfy the conditions identified by the High Court in Lange; in any event common law malice independently would destroy the defence even if other requirements were treated as being satisfied. I find that Ms Bolster as editor published the article over the name Kumarangk Coalition believing that the article had shortcomings which were likely to lead to litigation at the suit of the Chapmans. She knew that Ms Noack the writer of the article did not want her name associated with the publication for this reason.

330. A statement reflecting adversely upon a person's reputation may be published by the Editor of Environment South Australia in different ways as now relevant:

(a) as a statement expressed to be made by the publisher - typically in an editorial.

(b) as a statement purporting to record the statement of a third party - in the form of a report

(c) as the acknowledged republication of material submitted by a contributor - typically as a letter to the editor or a journal "article".

331. In the present case there is room for argument as to how Publication No 11 should be viewed. Upon its face Publication No 11 is an article submitted on behalf of and with the authority of a body calling itself the Kumarangk Coalition. However, the defendants' arguments were presented upon the footing (which is probably factually correct) that the statement contained in the article was really one made by Ms Bolster as Editor. The evidence as to the circumstances in which Publication No 11 came into being is far from complete. Whether Ms Noack wrote the article of her own volition or whether she acted at the instigation of Ms Bolster or someone else is not in evidence. Whether the article was really contributed by an independent person under the name Kumarangk Coalition or whether it is an article drafted by Ms Noack on behalf of Ms Bolster and then attributed by Ms Bolster to the Kumarangk Coalition is unknown. The inference which I am inclined to draw is that Ms Bolster was responsible for attributing authorship of the publication to Kumarangk Coalition. Whether anyone other than Ms Bolster authorised the use of the name Kumarangk Coalition is not before me. If Ms Noack was party to the use of this name the source of her authority (other than from Ms Bolster) has not been identified. If the Kumarangk Coalition is the formless and leaderless body identified in pt 7(d) of these reasons then there would be no one with authority beyond the Conservation Council to sanction the use of the Coalition's name.

332. Publication No 11 does not purport to be a publication originating in the Editor's office. The side note to Publication No 11 is attributed to the editor ("Ed") and thereby draws a distinction between the side note and Publication No 11.

333. In my opinion there is difficulty in attaching privilege to an occasion or to a publication where the true source and status of the publication has been deliberately obscured in such a way as likely to mislead. The readers of Environment SA would have an interest in knowing the truth about the author of Publication No 11. If the author was stated to be "anonymous" then the status of the publication would be disclosed even if author were not; if the article were not attributed to anyone then one might conclude that the article should be attributed to the editor. It seems that each of those situations has been carefully avoided by applying the Kumarangk Coalition stamp.

334. In my opinion there is a public interest in discouraging resort to such a practice which lacks transparency. By reason of the mention of the Kumarangk Coalition the publication (in a material respect) purports to be that which it is not.

335. The journalistic practice of writing under a pseudonym is commonplace and generally unremarkable; the practice may be adopted for a variety of legitimate reasons. However, in the present case, the use of the name Kumarangk Coalition in the particular circumstances (upon my assessment) is indicative of a lack of bona fides.

336. I have treated the impugned material in Publication No 11 as being a statement of fact. (I have had regard to the comments of Cox J in Peterson v Advertiser Newspapers [1995] SASC 5018; (1995) 64 SASR 152 at 157). In my opinion if the material were to be regarded as comment it would fail the test for "fair comment" for the same reasons (mutatis mutandis) as does Publication No 7. "Could any fair minded person honestly express that opinion on the proved facts?". (see Rocca v Manhire (1992) 57 SASR 224 at 229). The answer to that question is in the negative upon my finding of fact.

337. The defamatory imputations in Publication No 11 had been the subject of a number of earlier publications as set out in Table 2 (which is contained in pt 16 of these reasons). However, for the purpose of applying s 11 of the Wrongs Act I am only concerned with the publications to "the same purport or effect" which preceded Publication No 11 in point of time or which occurred concurrently with it. Although Publication No 11 occurred nominally in about September 1995, in the ordinary course the copies would take some time to be disseminated. I have ignored any other publication in Table 1 (and Table 2) where the publication date is later than September 1995. In any event I have also not brought to account any publication not appearing in Table 2(a), (b) or (c). My general impression is that Tom and Wendy Chapman have received (or are entitled to receive) substantial sums of money in respect of these earlier publications although the extent of overlap with the present action is difficult to discern. The topic as now relevant seems to have been promoted in the media as a live issue for a long time. It appears that in Thompson v Australian Capital Television (1997) 129 ACTR 14 Miles CJ took a narrow view as to what constituted a libel to the same purport or effect although His Honour recognised that only those publications which had already damaged the plaintiff's reputation were relevant to the application of s 11. In Thompson (supra) Miles CJ said at 25:

"...The Channel 10 broadcast was a completely independent interview by another presenter with the same complainant and a second complainant. It is true that the allegations of incest made by the complainant against the plaintiff are similar, it may also be true that had the action against Channel 10 gone to trial, the defendant could have relied in mitigation on a reputation already damaged by Channel 7, but the converse cannot be the case. Having regard to the lapse of time between the Channel 7 broadcast and the Channel 10 broadcast, the differences in the identity of the personnel involved in the broadcast and the lack of evidence to show overlapping of harm to reputation or damage to feelings, or both, I do not consider Channel 10 to be a concurrent, several or joint tortfeasor, let alone a joint tortfeasor with Channel 7. Nor do I think that, for the purposes of s 7 of the Defamation (Amendment) Act, the amount received by the plaintiff from Channel 10 is compensation in respect of a libel to the same purport or effect as the libel published by Channel 7."

338. In Chapman v Rural Press [1999] SADC 178 (published 17 December 1999) Judge Kitchen dealt with a number of reports or letters published in the Victor Harbor Times between 12 October 1993 and 25 September 1997. His Honour was required to traverse much of the same ground as has been covered in the present trial. A publication on 17 March 1995 in the Victor Harbor Times attributed many statements to Mr Richard Owen as to a number of "myths listed by Mr Richard Owen - including reports that the EIS was satisfactory, that the Aboriginal people were consulted and that opposition to the bridge is recent". The Times also noted that "the Friends" were "critical of the Planning process". Judge Kitchen awarded $25,000 damages to each of Tom and Wendy Chapman in respect of this publication. Mr Owen was cross examined about his alleged statements. Although he does not accept responsibility for all that is published it is apparent that his campaign has been successfully introduced to the media. Judge Kitchen's award brings to account a series of earlier statements in the media about the insufficiency of consultation and subversion of the planning process - all of which had been the subject of other claims and settlements. I have brought this award to account in accordance with s 11 of the Wrongs Act; there is some limited overlap although the Victor Harbor Times and Environment SA are (presumably) generally not directed to the same segment of the community; the dates of the publications are also some six months apart.

339. In considering an appropriate award in this case (in relation to Publication No 11 and also Publications No 6 and 7) I have had regard generally to the level of other awards. For example in Chapman v Allan & Draper [1999] SASC 460; (1999) 74 SASR 274 the Full Court had to consider the effect of defamatory imputations with respect to Tom and Wendy Chapman which "impeached their moral integrity and professional practices" (see par 203); the Court described the imputations as quite serious and likely to cause substantial harm to the plaintiffs' reputations. The Court considered the Judge's award of $50,000 to each of the plaintiffs to be "generous" but not manifestly excessive.

340. I note the award of $75,000 general damages to the plaintiff in Peterson v Advertiser Newspapers [1995] SASC 5018; (1995) 64 SASR 152 - albeit through a publication to the whole of South Australia.

341. I have had regard to the approach taken in the Full Court to three successive publications in the course of an electoral campaign to an electorate of about 20,000 voters as exemplified by Roberts and Case v Bass [2000] SASC 297; (2000) 78 SASR 302 in the light of the remarks of Doyle CJ in Chakravarti No 2 v Advertiser Newspapers (1998) 72 SASR 361 at 375-378.

342. Publication No 11 is directed to the professional practices of Tom and Wendy Chapman as real estate developers and calls in question their integrity in this capacity.

343. In my opinion damages payable to each of them Tom and Wendy Chapman in respect of Publication No 11 should be assessed at $30,000.

18 Schedule of publications

Publication No 1 - Media Release 22 February 1994

Latest moves to build a bridge

to Hindmarsh Island

The Brown Government has spent nothing on an environmental audit to reveal the true costs of building a bridge to Hindmarsh Island, according to the Conservation Council of South Australia. "Sanctuaries are expensive things to CONTRIVE - ask Dr John Walmsly about Warrawong and Yookamurra, Hindmarsh (Kumaranok) Island is a natural sanctuary. It is the lynchpin for an existing set of wetlands embracing the Coorong, the Lower Murray and the Murray Mouth - but some of the bird population travels from Central Australia, some from China, Siberia and Japan. The international Ramsar Agreement is designed to protect such wetlands".

"All this will be transformed irretrievably by the exploitation that must follow on the heels of any bridge. Exploitation was the purpose of an otherwise unneeded bridge and the bridge was to be funded by exploitation. The Jacob's Report would make interesting reading - if it is ever released!" said spokesperson Margaret Bolster.

"ECO TOURISM PROJECTS CENTRED ON BIRD SANCTUARIES OF SIGNIFICANCE, ABORIGINAL INVOLVEMENT, APPROPRIATE FISHING AND BOATING DEVELOPMENTS COULD IDENTIFY SOUTH AUSTRALIA ON WORLD MAPS AND BE WORTH MILLIONS ANNUALLY IN ONGOING VALUE-ADDING AND EMPLOYMENT. An expanded ferry service could cope with this kind of development. Will the Brown Government abandon all this for a few minor players and transitory, banal real-estate sprawl? The hypothetical costs of litigation are a minor matter compared to the loss that is looming", said Ms Bolster.

The Jacob's enquiry, despite its cost to the taxpayers, could never by its Terms of Reference, have done more then(sic) confirm what we already know - that the proposed bridge was a questionable deal in the dishonourable tradition of a State Bank Debacle, itself a product of reprehensible commercial/political wheelerdealing, according to the Council. "We have no confirmation that Westpac would indeed sue Government should the bridge proceed. As responsible members of the State's economic community, they may well forgo such a right in the plan. Shylock, ultimately, did not cut his pound of flesh!", said Ms Bolster. "Built Environs is presumably a decent group of engineers, hoping for ongoing government business - their interests could be accommodated elsewhere".

"We have now moved into the stage of 'selected information'," says Margaret Bolster. Government comment stresses the 'possible costs of NOT proceeding with the bridge to Hindmarsh Island. Scary, 'snowjob' numbers frighten the public and contrive a semblance of agreement to go ahead - is that what is wanted?".

Further comment:

David Close 278 4337 (h) Margaret Bolster 390 1481 (h & w)

SA Ornithological Association 201 2126 (w) CCSA Vice-President

Joe Schmiechen 293 4729

Travel Consultant

Publication No 2 "7.30 Report"

Telecast by Australian Broadcasting Corporation on 22 February 1994

Publication No 3 - Media release NEW ALLIANCE

Between community groups, unions and

The environment movement

RALLY!

Thursday 24 March, 12.30pm on the steps of Parliament House

Billions of dollars have been squandered in South Australia, pursing Fool's Gold

Developments have failed because they did not deserve to succeed

This new Coalition will work toward a new standard...

Communities, unions and the environment movement will work together to help government achieve ecologically sustainable developments in South Australia.

The Halifax Eco City Project, for example, would meet all our criteria for sound, ecologically based urban renewal and green jobs. Responsibility for community consultation has been taken seriously by the co-initiators of the project, Ecopolis and Urban Ecology Australia Inc. The potential for ecotourism and crystallizing a unique South Australian identity via the Eco City project, is profound.

PRESENT ISSUES IN CONFLICT

The Hills Face of Adelaide is most valuable as uncluttered open space. Real estate creep destroys that asset for the city and is an appalling bushfire hazard.

Hindmarsh Island is a natural sanctuary, protected by international wetlands' conventions and has a very special role to play in future ecotourism. The Pacific Asian Travel Association (PATA) identified the area from the oceanfront to the Lower Murray, the Murray Mouth, the Lakelands, the wetlands and their waterbird populations as the (South Coast) Region's only international promotable asset. Why destroy a prime asset while other arms of government struggle to establish tourism, protect endangered species and market SA's unique identity? There is nothing unique about real estate sprawl, day trippers and polluted waterways. The island is a sacred site in that it holds aboriginal remains and pre-history dreaming.

Craigburn Farm has been under threat since the early 70's. Intensive development here will have high bushfire risk, will cost the State millions in infrastructure and pollution and destroy one of the last remaining green belts in the metro area. Impact will be far beyond local boundaries - extending to the Patawalonga and the Gulf.

FURTHER INFORMATION:

Margaret Bolster, Conservation Council of SA: (08) 223 5155

Bill Mallyon, Hills Face Network: (08) 362 5055

Davy Tomlinson, Construction, Forestry, Mining and Energy Union: (08) 231 5532

Sandy George, Save Craigburn Farm Committee: (08) 278 7761

Olwyn Barwick, Friends of Goolwa & Kumarangk: (085) 55 2865

George Trevorrow, Lower Murray Aboriginal Heritage Committee: (085) 751 557

Richard Mills, Greenpeace, (08) 410 3533

Publication No 4 - Media release 15 March 1994

PROPOSED BRIDGE

TO HINDMARSH ISLAND

How many wrongs must

Government achieve to

try and make it right?

A bridge to Hindmarsh Island is sheer lunacy, says the Conservation Council of SA. Here we have a capital asset which any intelligent planner would assess as central to Australia's future in Ecotourism and second-rate minds propose to destroy it with instant population explosion and day trippers.

In 1996 delegates from more than 100 countries will be visiting Australia for a conference on the Ramsar Convention - the document to which we are signatory along with other nations caring for migratory birds and wetlands. It is a fabulous opportunity to introduce our SA wetlands to the world and launch a new approach to tourism (see attachment).

"The principle of Ecotourism is to conserve natural and cultural resources by providing visitor experiences; to lower rates of growth but increase the yield of benefits per visitor. The SA Government have spent a fortune defining and investigating Ecotourism - but it appears they do not begin to recognise the invaluable assets they are sitting on," said Margaret Bolster, Vice President of the Conservation Council.

"The issue is not a matter of NO development, rather of WISE development. The present Marina project, funded by Westpac could be transformed with wise and lateral thinking into a splendid core site for sensitive, visionary ecotourism," Mrs Bolster said.

Further comment

Margaret Bolster (Vice President) (08) 390 1481w&h (or 223 5155)

Publication No 5 Environment SA May/June 1994

Hindmarsh Island (Kumarangk)...Update

His Honour Justice J Heerey (19 April 1994):

'THIS CASE CONCERNS A PROPOSED BRIDGE TO HINDMARSH ISLAND. IT IS A TROUBLED BRIDGE OVER WATERS. MUCH OPPOSITION HAS EMERGED BASED ON PERCEIVED DAMAGE TO THE ENVIRONMENT AND INTERFERENCE WITH ABORIGINAL HERITAGE SITES. TWO THINGS MUST BE MADE CLEAR AT THE OUTSET. FIRST, I AM HEARING AN APPLICATION FOR AN INJUNCTION PENDING A FULL TRIAL. THUS ANY CONCLUSIONS OF FACT OF LAW THAT I COME TO, ARE NOT FINAL. SECONDLY, I AM NOT CONCERNED WITH THE MERITS OR OTHERWISE OF THE BRIDGE ITSELF.'

So said Judge Heerey, introducing 15 pages of Reasons for Judgement the matter of an application by Binalong Pty Ltd and the Marine Services Co Pty versus 10 respondents ie: the CCSA, Margaret Bolster, David Shearman, CFME union, David Thomason, Bentley Carslake, Friends of Goolwa and Kumarangk, Richard Owen, Olwyn Barwick and Douglas Hassall. The Respondents were represented by Peter Hannon of Duncan and Hannon, the Applicants by J Mansfield QC with Steve Pallyga.

The matter concerned an alleged secondary boycott involving the obstruction of construction of a bridge to Hindmarsh Island for reasons of environmental and Aboriginal sacred site concerns and whether conduct evidenced was for the purpose of causing substantial loss and damage to the business of the applicants.

There was further, the matter of tort of unlawful interference with trade or business, in particular comments in the media urging a financier to reconsider its position (as represented in the recent findings of Justice Jacobs, investigating the matter on behalf of State Government) reportedly being in a position to sue the State Government should it decide not to proceed with the proposed bridge.

The Applicants had compiled a volume of media reportage as evidence of the alleged breach of the Law and had recorded speeches made at our recent environment rally. Their private surveillance had been very thorough and is continuing.

Justice Heery found: '...I do not find a triable issue in relation to the Conservation Council or the respondents Bolster or Shearman. Ms Bolster's role did not go beyond expressing public opposition to the bridge and compering the rally on Parliament House steps. The rally was not called to take any particular action in relation to picketing at the bridge site but rather to discuss conservation issues and the planning process generally. Areas of perceived significance other than Hindmarsh Island were to be discussed. Ms Bolster is not in law responsible for everything that was said at the rally. Likewise, there appears to be no evidence of a triable issue relating to the Conservation Council, or Professor Shearman.'

The Conservation Council escaped the net of legal action known internationally as a SLAP suit (Strategic Litigation Action Preventing Participation). The green-minded Construction, Forestry, Mining and Energy Union was not as fortunate nor were the Friends of Goolwa and Kumarangk. Based on the Applicant Binalong's Wendy Chapman's affidavits, Justice Heerey found: 'The respondents Thomason, Barwick, Carslake, Owen and Hassall and the Union and the Friends of Goolwa, have by their conduct, including public statements, manifested an intention to continue physical obstruction of building works at the site in the event of an attempt being made to resume construction of the bridge'. Accordingly, Justice Heerey extended the temporary injunction on those individuals and groups.

The respondents had not chosen to make their own affidavits. The reality, however, had been that a group of concerned residents on one occasion had peacefully protested the progress of a grader instructed to make a road through what they knew to be an Aboriginal site. At the end of that day, the State Government recognised its error, required work on that site to cease. The local Council has since permanently closed that access. No picketing has occurred since then. On the basis of a few hours of arguably responsibly action later upheld by government (and a collection of media reportage recording verbal opposition to a bridge), the temporary injunction was extended over participants in that event. There are current threats from a private company to sue those named for unspecified losses and damages.

A recent finding in the US awarded damages of over $85 million in a Counter SLAP suit. But as anyone who has dallied with the law will know, companies and corporations liable for such damages are almost invariably structured so that payment is eternally out-of-reach. Environmental Lawyers are aware that the people's courts are often compelled to support capital to the detriment of society and the environment, making a mockery of the myth of justice.

Margaret Bolster

Vice-President

Conservation Council of South Australia

Publication No 6 Environment SA Sept/Oct 1994

President's Message

Hindmarsh Island - Suppression of Free Speech

The legal mechanisms used to silence community groups from expressing valid concerns on the Hindmarsh Bridge issue have profound implications for free speech in Australia. As in the USA they are likely to be used increasingly by developers, large corporations and the rich, to silence opposition posed by environmentalists, consumer groups and concerned individuals.

An important role of the Conservation Council is to speak publicly on matters of environmental importance and to represent the views of the community on such issues. This we did on the implications of the Hindmarsh Island Bridge. It was highly appropriate that we should express our concerns on the potential effects of development on extensive wetlands which have birdlife protected by international agreements. It was appropriate that we should express our views on planning processes which had failed to consider environmental matters and forward management plans.

We were silenced by two different mechanisms. Binalong Pty Ltd and Marine Services Co Pty Ltd acted against the Conservation Council under Section 45D of the Trade Practices Act 1974. This injunction on expressing our opinions was lifted by His Honour Justice Heery but despite this interim viewpoint from His Honour the companies indicated that they would continue the case against us. We believe that this legal process is being used simply to silence us for the view of an eminent legal expert, Andrew Stewart, Associate Professor of Law at Flinders University is that 'What the law prohibits is intentional interference with the performance of contracts. This obviously limits the capacity of environmentalists to protest against projects for which contracts have already been signed. But it would be ludicrous to suggest that any one who so much as discusses the Hindmarsh Island Bridge or indeed comments on the outcome of the recent Court proceedings is necessarily guilty of contractual interference. Of course those of us with some legal knowledge or the money to pay for legal advice may realise this. But others may not. As a society we must not allow the point to be reached where the mere threat of law suits is enough to silence those who wish only to express a legitimate point of view'.

An even more effective legal mechanism was used to silence those who wished to express an opinion. Dozens of individuals, some of whom never made a public statement on the issue, on meeting privately to discuss the matter had their car registration numbers taken and were then served with legal letters indicating and I quote 'your past actions give (the company) a claim against you for interference in contractual relations. By your conduct you have already caused (the company) enormous losses'. Thirty two million dollars is then mentioned. The letter then indicates that your past actions have resulted in receivership and a probable 'fire sale'. If this occurs there will be a claim against you of this magnitude even if the bridge is built.

You be the judge of the intent of these letters! This produced anxiety and even terror in many ordinary members of the community who feared the loss of their houses and other assets. All these individuals were deeply concerned with their local environment and the future. If we were to select model citizens here they were. Some in their eighties were reduced to sleepless nights, other developed anxiety states. Some went away temporarily because of stress. The mechanism being used here is one called a 'SLAP suit' commonly used in the United States to silence environmental groups, consumer groups and legitimate viewpoints being put from the community (see article in May/June issue of ESA). However in the United States the Constitution guarantees the right of free speech and the communities are fighting back with anti-SLAP suits, damages for the psychological stress and other injuries incurred by the community. In Australia you will be surprised to find that our Constitution does not provide for the right of free speech and at the moment there is no way that we can proceed with an anti-slap suit. Constitutional review? Forget the monarchy and republicanism - we need constitutional review to give us free speech!

Certainly these events are enough to drive one to cynicism for the only political and press response to these legal events has been several political somersaults, a wail for loss of development and a stampede to salve the muscle spasms brought on by persistent and compulsive genuflection before the altar of State's rights. Certainly our representatives have not expressed any concern about the suffering and loss of free speech of many of our citizens.

Prof David Shearman, President, Conservation Council of SA

Publication No 7 -Environment SA Nov/Dec 1994

A Win for Freedom of Speech...a further update

Hindmarsh Island (Kumarangk) Bridge

The public's right of freedom of speech has been vindicated in a highly significant judgement in the Federal Court regarding the Hindmarsh Island Bridge issue.

Injunctions that sealed the lips of community concern for the past seven months have been lifted through the efforts of the Conservation Council of SA (CCSA); its member group Friends of Goolwa and Kumarangk Inc; and the Construction, Forestry, Mining and Energy Union.

The lawyers for Binalong P/L sought a stay of proceedings in their action against the above groups on the grounds that the Chapman's appeal against Federal Minister Robert Tickner's decision to ban the building of the Hindmarsh Island bridge had implications for their court action.

Justice O'Loughlin refused Binalong's application for a stay in proceedings; dissolved the injunctions and ordered that Binalong's lawyers proceed with any intended legal action by 12 Dec 1994.

This is a clear victory for free speech and the rights of the public to protest, to debate, to question and to challenge what is being done in this State. The injunctions have remained since April with no action being taken through the courts to test the validity of the charges.

The people of Goolwa have been intimidated by this action and have been prevented from speaking freely on issues of concern. Whilst the Chapmans seek compensation, who compensates ordinary residents of Goolwa who have suffered greatly under the boot of Binalong?

Baden Chapman Teague - Senator for SA?

In October, Senator Teague, in our opinion, used Parliamentary privilege in the Senate to broadcast misinformation. The commissioned report he referred to uses inaccurate and uninformed statistical data and information. He reveals a complete lack of sensitivity to, in fact ignorance of Aboriginal issues, and a poor understanding of union involvement.

The Friends of Goolwa and Kumarangk approached Senator Teague after his first misleading Parliamentary speech in June this year, but at no stage has he agreed to discuss the issue with conservationists or Aboriginal people. It is disappointing to see a Senator for SA representing short-term financial indulgences (which have cost SA tax payers dearly). CCSA calls on the Senator to justify his assertions to the people of this state, whom he is charged to properly represent.

Richard Owen and Margaret Bolster, CCSA Executive

Publication No 8 Environment SA April/June 1995

Hindmarsh Island & 'the human condition'...divide and rule

The impact of the European invasion and devastating occupation of Ngarrindjeri lands was sealed by a deliberate scattering of families in mission stations. It is a miracle that vestiges of a highly evolved and sophisticated legal system has survived. A wise Aboriginal man said recently 'the human condition hasn't changed... Aboriginal people were not intrinsically better than or different to white people. But Aboriginal Law had evolved to contain the human condition'.

The Hindmarsh Is (Kumarangk) 'issue' is a microcosm of the inadequacy of White Law to accommodate the Australian indigenous culture. Our economic system is driven by competition and exploitation which were anathema to the Aboriginal way. The Ngarrindjeri women, after 150 years of resignation and suffering, were finally empowered to help white society understand what their Law and Dreaming had taught them - that enough was enough. The Island, the River and life itself can't take any more abuse.

Intimidation or pseudo-legal, clever and expensive manipulation of real issues to achieve financial or political or media supremacy is ultimately destructive of the last toehold of Aboriginal culture. This is spiritual rape feeding on fear, jealousy, greed and loneliness.

Essentially Hindmarsh Island (Kumarangk) is an environmental and a spiritual issue. It lies nearly destroyed in a dying river. That the Colonists came and saw and conquered is historical fact. The explanation for the life crisis of Hindmarsh Island and the River in which it lies, is scientifically evidenced and recorded.

Anthropology provides insight and a spiritual explanation of the way in which Aboriginal Law would not have permitted this to happen. The Land was Mother to its people. We could learn and be enlightened.

With love and commitment to a new partnership between black and white Australians we could move to a new way of seeing things. We risk losing the chance to change and are reverting to tactics of division and assimilation.

It is a very frightening moment in Australian history Federally there is a genuine attempt to atone for the unthinkable 19^th century white crimes against a black nation, but internally proponents of 'State Rights' epitomise the entrenched determination of landowning and ruling classes to reimpose upon the Ngarrindjeri women, utter subordination to white colonial law. In the spirit of reconciliation, these women have come together as a group. Thus identified, there are wealthy and powerful right-wing forces who apparently seek to discredit, undermine and destroy them. Whatever it takes to suppress their resurgent strength and confidence is being attempted. But the spirit of reconciliation, in the final years of the 20^th century, is likely to override 19^th century colonialism.

What is at stake is clearly more than a Bridge to Hindmarsh Island.

Margaret Bolster, Vice-President, CCSA

Publication No 9 - Environment SA April/June 1995

The Washpool

ON 11 MARCH 1995, THE DISTRICT COUNCIL OF WILLUNG HELD A SUCCESSFUL AND PROVOCATIVE SEMINAR AT MCLARENS BY THE LAKE, ENTITLED...FOCUS ON WASHPOOL

In March 1996, the annual RAMSAR Conference will be held in Brisbane. Its theme is 'Coastal Wetlands'. One of the tragedies of the Kumarangk (Hindmarsh Island) Bridge planning disaster is that what could have been the beginning of a golden age-nature and culture based tourism allied to ecological restoration - has been ignored in state government panic to cover up the facts of earlier, short-term processes designed to deliver quick profits to a handful of individuals at the expense of South Australia's greater long term potential.

The Wetlands of South Australia have been little islands in an often desert landscape. They were revered by indigenous people and exploited by Europeans, quite naturally, because the wetlands were few and this was a dry land.

Sleeping wetlands may be revived, not by a single kiss, but simply by taking away abusive elements. Ancient wetlands like The Washpool, await the magic of restoration ecology when they may again become the oasis for wild life on intercontinental journeys or simply a haven for less adventurous species.

Fish can come from nowhere, they seem to drop from outer space when the water returns - it can be like the miracle of creation. Reeds and rushes and complex invertebrate food chains make wetlands uniquely rich. The health of this planet depends not just on bio-diversity ie a wide range of species, but on species richness, because richness is the texture of bio-diversity, the dimension within variety. It implies distribution and numbers and many other factors. Species richness is a particular feature of wetlands. They are a refuge for endangered species, threatened because of loss of habitat.

For farmers, the richness of a region may be measured by the number of wet spots. During recent decades, it has been a money spinner for developers to drain wetlands, in old parlance 'swamps', and produce a crop of houses, usually unimaginative, as habitat for multiplying homo sapiens.

Gradually the eco-tourism potential from developing our wetlands is adding weight to the simple biological wisdom of conserving them.

The Washpool (near Aldinga Scrub) is one of an Aboriginal 'songline' of springs which includes Kingston Park, Hallett Cove, Port Noarlunga, Red Ochre Cove, Port Willunga, Sellicks Beach and Carrickalinga. It features in Tjilbruke Dreaming. There is speculation that the 'songline', or 'dreaming trail' ultimately may be established as connecting Kangaroo Island through Goolwa, Kumarangk, Mt Lofty, the Flinders Range and Alice Springs northward even up to Darwin.

Wetlands are the kidneys of the planet. The rest of the world has by and large destroyed its wetlands in the course of ignorant and greedy development. But it is not too late for SA to restore its wonderland of wetlands. The wisdom of Willunga Council and its many environmental groups can lead the way.

Margaret Bolster,

Vice-President, CCSA

Publication No 10 - Media release 7 June 1995

HINDMARSH ISLAND and the

HUMAN CONDITION

DIVIDE AND RULE

A wise aboriginal man said recently "the human condition hasn't changed. Aboriginal people were not intrinsically better than or different to white people. But Aboriginal Law had evolved to contain the human condition".

The Hindmarsh Island (Kumarangk) "issue" is a microcosm of the inadequacy of White Law to accommodate the Australian Indigenous culture. Our economic system is driven by competition and exploitation which were anathema to the Aboriginal way, comments CCSA.

"The Ngarrindjeri women, after 150 years of resignation and suffering, were finally empowered to help white society understand what their Law and Dreaming had taught them - that enough was enough. The Island, the River, and life itself can't take any more abuse", said Ms Bolster.

Intimidation or pseudo-legal, clever and expensive manipulation of real issues to achieve financial or political or media supremacy is ultimately destructive of the last toehold of aboriginal culture. This is spiritual rape feeding on fear, jealously, greed and loneliness.

Essentially Hindmarsh Island (Kumarangk) is an environmental and a spiritual issue. It lies nearly destroyed in a dying river. That the Colonists came and saw and conquered is historical fact. The explanation for the life crisis of Hindmarsh Island and the River in which it lies, is scientifically evidenced and recorded.

Anthropology simply provides insight and a spiritual explanation of the way in which Aboriginal Law would not have permitted this to happen. The Land was Mother to its people. We could learn and be enlightened.

"With love and commitment to a new partnership between black and white Australians we could move to a new way of seeing things. We risk losing the chance to change and are reverting to tactics of division and assimilation".

"In the spirit of Reconciliation, these women have come together as a group. Thus identified, there are wealthy and powerful right-wing forces who apparently seek to discredit, undermine and destroy them. It is a very frightening moment in Australian history", said Richard Owen.

What is at stake is clearly more than a Bridge to Hindmarsh Island.

Further comment:

Richard Owen Margaret Bolster

Publication No 11 - Environment SA July/Sept 1995

Hindmarsh Island

Not-so-secret political business

First the bridge and now the commission to nowhere ...all funded by SA taxpayers.

Despite increasing opposition the SA Government persists with a Royal Commission which it claims will decide the truth about the spiritual significance of Kumarangk (Hindmarsh Is) to Aboriginal women. Due to appalling reporting in commercial press many people in the community remain confused about the issues and believe the commission should continue as it will reveal the 'truth'. Unfortunately Terms of Reference for the commission prevent it from investigating an of the issues which could reveal the political reasons for this assault on Aboriginal cultural beliefs. It is worth re-examining some of the history of this saga to identify who is currently benefiting and why the Commission should be abandoned immediately.

The Hindmarsh Island bridge should never have been an issue at all. There was and continues to be widespread local community opposition to building a bridge to Hindmarsh Island. This was ignored. The bridge was proposed by the State government as an adjunct to the terms of planning approval for Binalong developers Tom and Wendy Chapman to proceed with a marina and housing development on the island.

Despite widespread community and environmental concerns the Government decided to fund the building of the bridge to cost SA taxpayers $6.4m when the developers said they were unable to do so. It should be remembered that this bridge was believed to benefit a small number of Hindmarsh Is landowners. The bridge, objectively speaking, was never in the best interest of the SA community. At Berri a bridge was desperately needed to support crucial SA primary industries.

Consultation with the relevant Aboriginal groups throughout the planning process was token. Wendy Chapman has admitted in Federal Court that Binalong never consulted directly with any of the organizations listed as a condition for building the bridge.

In opposition the Liberals repeatedly indicated that they would stop the Hindmarsh Is Bridge. Once in Government they commissioned the Jacobs Inquiry which examined the financial and contractual obligations in relation to the bridge. The findings are undisclosed and the report exempt under Freedom of Information. Pre-election promises were rescinded and the bridge given the go-ahead in May 1994. Michael Armitage, State Minister for Aboriginal Affairs, authorised the Dept of Road Transport to do as much damage to Aboriginal sites as necessary for construction of the bridge. At the request of the Ngarrindjeri people and after investigation by constitutional lawyer Cheryl Saunders, Federal Minister Tickner declared a ban of the bridge for 25 years. The decision to stop the bridge was on the basis of all materials submitted to Saunders. The secret women's business was just one part of the significance of the area to Ngarrindjeri people.

Attention returned to the Hindmarsh Is bridge in March 1995 with Ian McLachlan resigning, after admitting he had misrepresented events to the Australian public. McLachlan had authorised the photocopying of materials he had received which were meant for Tickner's office. This included a male staff member copying the contents of an envelope marked 'Confidential Appendices 2 & 3. To be read by women only.' He had claimed that the envelope containing the secret knowledge was neither sealed nor marked confidential.

In May 1995, Liberal Party campaigner Sue Lawrie organised a meeting of the Aboriginal women who now claim the Kumarangk women's business was fabricated (known now as he dissident women). In evidence at the Commission most of these women have revealed that they know little or none of their Ngarrindjeri language, traditional stories and mythology. Why should it be surprising that they have also not heard about the women's business? This exploitation of divisions within Aboriginal communities for political purposes can only be viewed with sadness and abhorrence.

Based solely on frenzied media reports which ensued from the dissident women's claims, the SA Government demanded that Tickner resign and an investigation be undertaken. Before the announcement of the Federal inquiry, Premier Brown had established the Royal Commission to determine 'whether the "women's business", was a fabrication'. Contrary to endless media reports Tickner did not stop the building of the bridge solely on the basis of the women's business and the contents of the secret envelopes. The basis of the Royal Commission is thus fundamentally flawed and its real purpose comes into question. In some respects the Royal Commission seems to be just another attempt to discredit Aboriginal beliefs as apart of a post-Mabo backlash. It also appears to be part of a campaign to discredit Federal Minister for Aboriginal Affairs, Robert Tickner, and to allow the reinstatement of Ian McLachlan on the Liberal frontbench in the approach to the Federal election. The women who hold strong beliefs in relation to Kumarangk have rightly said that they will not be a part of this inquisition into their beliefs So how can an adequate outcome ever be reached by this Commission?

Kumarank Coalition

Side note to above article

The next issue of ESA (to be distributed in January 1996) will feature an article by Paul Leadbeter (ELCAS (SA) Inc and Director Australian Centre for Environmental Law, the University of Adelaide), entitled Citizen Enforcement of the Development Act and the Environment Protection Act. In this Paul reminds us that "Where there is an apparent breach of the provisions of the Development Act (DA) individuals and community groups are often frustrated by the failure of the relevant authorities to take any action under the legislation regarding that breach. They should not forget that s85 of the DA provides that any person may apply to the Environment Resources and Development Court for an order to remedy or restrain a breach of the DA. Obviously, it is preferable that enforcement action be initiated by the relevant authority...However it is useful to know that if the authority will not initiate proceedings, there is the option to do it yourself. Ed

19 Schedule of background facts

20 THE PLANNING PROCESS

1. An application and for the further development of the Marina Goolwa was lodged with the South Australian Planning Commission during 1988.

On 19 December 1988 notice was given to adjoining landowners of the application for development, creating 813 new allotments, and for marina and commercial, retail and residential development.

2. On 2^nd February 1989 Binalong's application was forwarded to Mr Henry Rankine, at the Point McLeay Community Council for comment.

3. On 21^st April 1989 the Department of Environment and Planning, Major Projects and Assessments Branch wrote a letter to Binalong, raising the issue of access to Hindmarsh Island.

4. The Minister for Environment and Planning notified Binalong by letter dated 26 October 1989 that State Cabinet had approved the construction of a bridge to Hindmarsh Island, subject to a satisfactory EIS.

5. The Department of Environment and Planning invited public comment in respect to the Draft EIS lodged by Binalong, by public notice dated 4 November 1989.

6. A similar public notice was published in the Victor Harbour Times on 8^th November 1989.

7. By letter dated 12 January 1990, the Department of Environment and Planning notified Binalong that further investigations will be required for the purpose of determining an application pursuant to section 12 of the Aboriginal Heritage Act.

8. By notice published in the Government Gazette on 29^th March 1990, the Executive Council gave notice pursuant to section 50(1) of the Planning Act that Division III of Part V of the Act applies to the application for the Hindmarsh Island lodged by Binalong.

9. By letter dated 11 April 1990, the Minister for Environment and Planning notified Binalong that the Governor in Executive Council granted consent to Binalong's application, pursuant to this Section 51 of the Planning Act, and enclosed a set of conditions relating to the development.

10. By letter dated 12 April 1990 the Department of Environment and Planning, Aboriginal Heritage Branch notified Binalong that authorisation pursuant to Section 13 of the Aboriginal Heritage Act was granted to "establish the Marina/waterfront development" (as detailed in both the draft EIS and the supplement to the Draft EIS for Hindmarsh Island Bridge, Marina Extensions and Waterfront development)". This authorisation is subject to the conditions set out in section 4.6 of the Assessment Report.

11. By letter dated 26 August 1992 the Minister for Environment and Planning notified Binalong of consent given by the Governor in Executive Council, pursuant to Section 51 of the Planning Act, for the development of stages 2-6 of the Marina development, and enclose a list of conditions relating to the development.

12. On 31 March 1993 a deed was executed between the Minister of Transport, the District Council of Port Elliott and Goolwa and Binalong, relating to the construction of the bridge.

13. On the 22^nd April 1993, a further approval was granted by the Governor in Executive Council to Binalong for the development of Stages 2-6 of the Marina Goolwa.

14. Of 13 July 1993 a further approval was granted by the Governor in Executive Council to Binalong for the development of Stages 2-6 of the Marina Goolwa. This approval amended he previous approvals cover by replacing the condition which required a bridge to be completed to "practical completion" before Stage 2 could be commenced with a condition which provided that the Binalong could commenced Stage 2 after the "substantial commencement" of the construction of a bridge.

21 Conclusion

344. I have summarised in part 5 the reasons for my conclusion that only three publications (No 6, 7 and 11) give rise to defamatory imputations affecting the reputation of one or more of the plaintiffs. The defendants rely upon claims of qualified privilege and fair comment but I am satisfied that each of the personal defendants was activated by malice which would defeat any such defence. I impute malice to the Conservation Council by reason of the state of mind of the person or persons responsible for publishing in its name (see Waterhouse v Broadcasting Station 2GB [1985] 1 NSWLR 58 at 72 per Hunt J).

345. The defamatory imputations which I have identified are set out in Part 5 of these reasons. I have sometimes described or referred to the imputations in an abbreviated or imprecise fashion (see below for example). That has been done as a matter of convenience in the particular context but such references should be treated as embracing the imputations and only the imputations identified in Part 5.

346. In reaching my conclusions as to the motivation of the defendants I have been conscious of the serious nature of the allegations of "actual malice" which the plaintiffs advance. I consider that with respect to each defendant the fact as to state of mind as pleaded ought to be established having regard to the Briginshaw principle and to the standard or degree which is there discussed. (see Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336 at 107 and 362-363). In the present case the evidence as to motivation for Publications No 6, 7 and 11 is strong. The plaintiffs have produced clear and cogent evidence of motivation which satisfies the civil standard of proof and discharges the onus which Mrs Chapman (together with her husband in two instances) bears.

347. All three personal defendants were substantially discredited in the witness box. The Conservation Council of SA is liable for these publications made in its name and on its behalf by its officers.

348. Each of the publications was made in the course of and for the dominant purpose of a campaign to attack those associated with the building of the bridge. The defendants claim that that they were only interested in preventing the bridge from being built. However, the means adopted was to coerce the Chapmans and their interests and also to seek to demonstrate to others that the Chapmans were not the sort of people with whom they should be associated in business. The defendants' statements were not the honest expressions of their real opinions and they did not have an honest belief in the truth of the facts which they asserted.

349. The personal defendants (by way of explanation for their actions) have given evidence as to their concern for the consequences of building a bridge to Hindmarsh Island. They claim to be acting to protect the wetlands of the Lower Murray from further degradation by an influx of visitors; they also condemn the urban sprawl which they anticipate from the development of the Island as a suburb of the Town of Goolwa. For these environmental reasons (amongst others) they sought to ensure that the bridge project was abandoned. They called in aid the very considerable power which the Conservation Council is able to wield. Although the personal defendants in their own minds justify their conduct by reference to their environmental concerns, I am satisfied that their immediate object in publishing Publications No 6, 7 and 11 has been to coerce the Chapmans to give way.

350. In my opinion the conduct of the defendants in the circumstances is not reasonable. I do not consider that the defendants had reasonable grounds for believing that the imputations (for which they respectively were responsible) were true; they did not take proper steps to verify the accuracy of the material; they were (at least) recklessly indifferent as to the truth of what they published.

351. Publications No 6 and 7 have a common theme although Publication No 7 is expressed in more extravagant language than Publication No 6. When publications are part of a series in the course of a campaign it is difficult to assess the effect of the successive verbal blows which are delivered. This depends upon the repetitive effect of the defamatory assertions in a different form. The publications are spaced some time apart. The later publication may reinforce and exacerbate the effect of the earlier publication or alternatively the later publication may have reduced impact if it is merely repeating "old news". In the present instance there is room for argument, particularly as between publications Nos 6 and 7 as to how the assessment should be approached. As I pointed out in Roberts and Case v Bass [2000] SASC 297; (2000) 78 SASR 302 (par 55) there is a degree of artificiality in such an exercise when the cumulative effect of separate publications needs to be considered. In the present case Publication No 7 has been written in a way which is sufficiently different from Publication 6 as to ensure that it is not passed over lightly as "old news" for regular subscribers. Publication No 7 is written in a provocative style.

352. Although the thrust of Publication No 11 is different from the two earlier publications (No 6 and 7) it is part of a continuing attempt by an officer of the Conservation Council to denigrate Tom and Wendy Chapman in the eyes of the conservation movement and more generally. The attack contained in Publication No 11 has been turned in a different direction from the earlier publications but its place in the overall campaign is a relevant factor.

353. It must have been apparent to each of the personal defendants that none of them had any reasonable basis for believing the truth of the allegations; the personal defendants are intelligent and well informed people who must have realised that they were engaged in a public relations exercise to score points against the Chapmans.

354. Publications No 6 and 7 (as well as Publication No 5) were under the editorial control of Professor Shearman and Ms Bolster was on the editorial committee. Publication No 11 was published by the Conservation Council under the editorial control of Ms Bolster the Vice President. There are clear and continuing links between all personal defendants.

355. The defendants do not seek to justify an allegation that the plaintiffs issued proceedings for the purpose of stifling debate. Nor do the defendants seek to justify the "state of consultation" nor as to what Mrs Chapman "admitted" as mentioned in Publication No 11. The issue before me nevertheless is what was in the minds of the personal defendants as relevant to the matters pleaded by way of defence. My finding is that they each (as relevant) had an absence of honest belief in the truth of what was published or was recklessly indifferent as to whether the statements (as now relevant) were true or not.

356. The claims made in Environment SA as to its readership and circulation are substantially greater than Ms Bolster's evidence would suggest. I have therefore discounted the published claims. (Ms Bolster herself is the editor responsible for the claims but she was not cross-examined thereon). In my opinion the contents of Environment SA is generally of a quality which would attract attention and it does not surprise me that its readership is claimed to be many times greater than its circulation; I find that the readership is much larger than the circulation.

357. In fixing damages I have brought to account the effect of s 11 of the Wrongs Act 1936 as previously discussed. I have had regard to the fact that each of the tortious acts appears to have occurred in the course of a concerted campaign in which each blow which was delivered must have had some cumulative effect. Each blow must have had the effect of besmirching the reputation of Tom or Wendy Chapman. Each blow independently must have caused some pain to Wendy Chapman and in two instances also to Tom Chapman.

358. In fixing damages I have had regard to the important position of influence occupied by the Conservation Council with regard to public affairs. Liability having been established, the damages to be awarded must reflect the unique and responsible position occupied by the Conservation Council and the authority which will be seen by the ordinary person as attaching to its statements. The result is as follows:

359. There is a public interest in encouraging bodies such as the Conservation Council to participate in public debate but within limits; individual reputations must be protected. The principles which I have discussed achieve a balance between these considerations.

360. In the result:

(1) Professor Shearman and the Conservation Council are jointly and severally liable to Mrs Chapman in respect of Publication no 6 in respect of which I award her $20,000 as damages.

(2) Ms Bolster and Mr Owen and the Conservation Council are jointly and severally liable to Mr Tom and Mrs Wendy Chapman respectively in respect of Publication no 7 in respect of which I award each of them $25,000 as damages.

(3) The Conservation Council is liable to Mr Tom and Mrs Wendy Chapman respectively in respect of Publication no.11 in respect of which I award each of them $30,000 as damages.

(4) The claims made by all plaintiffs are otherwise dismissed.

361. I will hear the parties upon questions of interest and of costs.