CONSERVATION COUNCIL OF SA INC & ORS v CHAPMAN & ORS No. SCCIV-98-81 [2003] SASC 398 (9 December 2003)
CONSERVATION COUNCIL OF SA & ORS v CHAPMAN &
ORS
[2003] SASC 398
Full Court: Doyle CJ, Gray and Besanko JJ
1 DOYLE CJ: I have had the advantage of reading the reasons prepared by Besanko J.
2 I am content to rely on his comprehensive statement of the relevant facts and issues. I propose to add some observations on some of the issues to be decided in this appeal.
Publication No 6
3 I agree with the conclusions of Besanko J.
4 I will state my reasons for deciding that the publication was not one that concerned matters that attract Constitutional protection in the form of an extended defence of qualified privilege. I do so because of the general importance of the topic. I will also state briefly my reasons for agreeing with Besanko J that the finding of malice by the trial Judge be set aside, recognising as I do that such a finding is not lightly set aside.
5 In Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 the High Court said at 559:
“Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates...”
The recognition and protection of that freedom of communication required some modification of the common law, because in some respects the common law of defamation restricted freedom of speech to an extent inconsistent with the constitutional requirement. In particular, the constitutional requirement called for a relaxation of the common law approach that in other than exceptional cases a claim of qualified privilege was not available in respect of a communication to the general public: at 570.
6 It is important to bear in mind that the constitutional requirement of freedom of communication is anchored in the text of the Constitution. As the court said (at 561):
“However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.” (footnote omitted)
That led to the statement of principle set out below (at 571 – 572):
“ Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.
Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.”
The Court went on to explain that the publisher of the statement who relies upon the constitutional protection must also prove that he or she acted reasonably: at 574. However, it is not necessary to dwell on that aspect of the matter.
7 Is Publication No 6 a publication that attracts constitutional protection? That question can be answered only by considering the circumstances of the particular case, in the light of the statements of principle set out above. Two aspects of those principles call for particular consideration in this case. First, a communication is protected because it is communication of a kind “... necessary for the effective operation of that system of representative and responsible government provided for by Constitution”: at 561. Second, the subject matter that is protected is “... information, opinions and arguments concerning government and political matters that affect the people of Australia”: at 571. Content is given to these criteria by referring to the basis on which the constitutional protection is available. It is available because Australians must be able to communicate freely with each other “... with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government ...”: at 571. I approach the case on the basis that these are statements of principle, to be applied in a practical way. And, as the High Court recognised, matters of government or politics at the State level will often attract constitutional protection, for the reasons given by the High Court.
8 Publication No 6 was published in the course of a continuing vigorous and widespread public debate in South Australia (and more widely) about the construction of a road bridge to Hindmarsh Island. The opponents of the construction of the bridge relied on the adverse impact of the bridge on the local environment (including bird life). They also relied on anticipated interference with or disturbance of the land in a manner that would damage features of the land that were part of the heritage of the local Aboriginal people, and that would offend traditional Aboriginal beliefs relating to the land. Claims were made that the Chapmans had not consulted adequately or appropriately with the Aboriginal people who had links to the site. The State Government had become closely involved in the matter. The construction of the bridge was subject to various State laws. The Minister of Transport had agreed to become the constructor of the bridge. The Commonwealth Government had become involved when a Minister exercised statutory powers to prevent the construction of the bridge because of its effect on Aboriginal interests. The construction of the bridge had attracted considerable political attention at the State and Commonwealth level.
9 The debate about the construction of the bridge to Hindmarsh Island had aspects to it that brought that debate within the area of discussion that attracts constitutional protection. In particular, opposition to the bridge rested on matters (protecting the environment and protecting Aboriginal heritage) in which the Commonwealth Government had an interest, had certain legislative powers and in relation to one of which (Aboriginal heritage) the Commonwealth Government had exercised statutory powers already. The construction of the bridge had become a matter of political contention as between the Commonwealth Government and the Opposition in the Commonwealth Parliament.
10 At the State level the debate over the bridge had involved the Executive Government in a variety of ways, and the issue had become thoroughly political.
11 It is clear that the discussion of government and political matters at the State level may attract the constitutional protection. It may be that it does so only if the particular discussion has a bearing on matters of government at the Commonwealth level. That more cautious view was taken by Spigelman CJ in John Fairfax Publications Pty Ltd v Attorney-General for the State of New South Wales [2000] NSWCA 198; (2000) 181 ALR 694 at [87]. His Honour found support for that view in what McHugh J said in Levy v The State of Victoria and Others [1997] HCA 31; (1997) 189 CLR 579 at 622.
12 If that view is correct, it nevertheless remains necessary to approach the issue on a broad basis. In the present case, the Commonwealth executive government had become involved in the construction of the bridge, and the issue had received considerable attention in the Commonwealth Parliament. And, as I have said, the claimed impact on the environment and on Aboriginal interests were matters of significance to the executive government of the Commonwealth. Accordingly, Publication No 6 occurred in the course of a debate that raised a number of issues capable of attracting the constitutional protection to a contribution to the debate.
13 However, it is necessary to go further. The particular publication must be shown to be one “concerning government and political matters that affect the people of Australia”: Lange at 571. A simple example will illustrate this point. Assume that an opponent of the bridge alleged that the bridge was unsafely designed due to incompetence by a structural engineer. That defamatory statement would not attract the constitutional protection in my opinion. The communication would not be one on the protected topics, even though it related to a matter, debate over which involved the protected topics.
14 It is necessary to examine the link between Publication No 6 and the debate about the bridge. The publication is about the use, by the Chapmans as proponents of the bridge, of legal proceedings, or the threat of proceedings, for the purpose of silencing opponents of the bridge construction because of its impact on the environment. The publication refers generally to the use of legal processes by developers to silence community opposition to proposed developments. It has three main elements – the role and motive of the Chapmans in doing what they did, the use of the courts as a weapon in a matter like this, and the impact on free speech of the use made of the courts.
15 I agree with Besanko J that, in the present context, the fact that the publication refers to the Federal Court and to court orders is not of itself enough to attract the constitutional protection. The mere fact that the publication deals with the use of the litigation by the Chapmans does not bring it within the constitutional protection. I agree with the observations of Spigelman CJ in Fairfax [at 83]. The fact that the publication refers to freedom of speech is not, of itself, sufficient to bring the publication within the constitutional protection. Nor, in my opinion, does the fact that the publication links these two elements by referring to the use of legal proceedings to stifle free speech.
16 Gray J at [146] has said that each publication has “directly contributed to the ongoing public comment and debate” about construction of the bridge. I agree with that observation, but is that enough?
17 As I have said, the question of whether the constitutional protection is attracted to a publication is not to be approached in a narrow way. The question is one of substance. Nor should it be assumed that a particular publication can be characterised in only one way. On the other hand, as I indicated when referring to a defamatory statement about a person involved in the design of the bridge, it is not enough to attract the constitutional protection that the publication relates to the event or matter, debate over which attracts the constitutional protection. In my opinion it is not sufficient that the publication can be said to make a contribution to the “ongoing public comment and debate”. To say that is to do no more than link the publication to the dispute. It is a separate question whether or not the publication itself attracts the constitutional protection.
18 In the end, I agree with Besanko J that the publication does not attract the constitutional protection. In my opinion the article, having regard to its contents, does not deal with “government and political matters”. Nor, placed in the wider context, does it make a contribution to the dissemination of information about those matters. The publication is made in the course of a public controversy that raises those matters, but that in itself is not enough. The publication is properly characterised as a publication about use by the Chapmans, and developers generally, of legal proceedings to silence or subdue opponents of proposed developments. As such, it does not attract the constitutional protection.
19 I turn now to the Judge’s finding that the occasion was not one of qualified privilege at common law because of the presence of malice on the part of Professor Shearman.
20 I agree with Besanko J that the finding cannot stand.
21 The Judge’s finding that the article was published on an occasion of qualified privilege, according to the common law test, was not challenged. The Judge found that it was an occasion of qualified privilege because the publication was one made by the president of the Conservation Council to members of its member groups, and because the publication dealt with the use of legal proceedings by developers to silence people like those members (claiming to represent the public interest) when they opposed development projects.
22 There is no indication from the terms of the article that the occasion was used for a purpose other than the purpose that made the occasion one of qualified privilege. In that respect I agree with Besanko J. I do not agree that the article misrepresented the matters with which it dealt in a “mischievous fashion”, even though I acknowledge that the article ignores the fact that Mr and Mrs Chapman brought proceedings to protect themselves against an apprehended legal wrong. To my mind there is no basis for inferring that Professor Shearman had an overriding purpose for inflicting loss on Mr and Mrs Chapman. It was obvious that they were likely to suffer financial loss if the construction of the bridge was stopped. But it did not follow that the purpose of Professor Shearman was to cause that loss. That circumstance made it particularly important to take care to distinguish between the consequence of successful opposition to the construction of the bridge, and the purpose of Professor Shearman. I also consider, with all respect to the Judge, that a public campaign of the kind that occurred here commonly involves reliance on the pressure of public opinion and public disapproval of the project in question. Those matters are commonly brought to bear on both the proponent of the project, and those involved with the proponent. One needs to be careful in inferring malice from that. That sort of thing is part of the ordinary process of public debate. I also agree with Besanko J that the Judge’s reference to Professor Shearman’s involvement in “the campaign” does not advance the matter.
23 The Judge touched on the question of malice many times in the course of his reasons. He expressed his views on the point in different ways. At [157] he referred to Professor Shearman as having “aimed” publications at Mr and Mrs Chapman “for the purpose of causing them injury”. In my opinion the evidence does not warrant that conclusion. He also refers there to Professor Shearman as making statements “in respect of which he did not have an honest belief”. I agree with Besanko J that that conclusion is erroneous. At [195] the Judge refers to Professor Shearman as intending “to reflect badly upon the Chapmans”. That, with respect, appears to me to confuse legitimate criticism with the use of an occasion for a purpose other than that which makes it one that attracts qualified privilege. The same comment applies to the Judge’s statement at [66] that the object was “to persuade or coerce those involved in the bridge project to have a change of mind”. In the same paragraph the Judge finds that Professor Shearman acted “for the predominant purpose of administering a blow” to the reputation of the Chapmans for the purpose just stated. I consider that there is nothing in the material before the Judge that, properly understood, supports that conclusion.
24 All in all, for these reasons and the reasons given by Besanko J, I am unable to agree that the material relied on by the Judge supported the conclusion that Professor Shearman used the occasion for a purpose foreign to the purposes that made the occasion one of qualified privilege. To my mind, there was no basis for concluding that Professor Shearman used the occasion other than for the purpose of informing persons with whom he was communicating about the use of legal proceedings by developers to silence opponents of a development project. Proof of hostility or ill-will or bias or prejudice were not irrelevant, but were of little significance.
Publication No 7
25 Subject to what follows, I agree with the reasons given by Besanko J in relation to this publication.
26 I agree with him that this publication was not one which attracted constitutional protection. I reach that conclusion on much the same basis as I reached my conclusion in relation to Publication No 6.
27 I agree with Besanko J that the Judge was right in deciding that the words and imputation complained of are not fair comment. I must say that I regard the decision on this issue as borderline, but in the end I am not persuaded that the Judge was wrong.
Publication No 11
28 I agree with the trial Judge that this publication attracted the constitutional protection. It attracted that protection because it was about the role of the Commonwealth and State governments in connection with the construction of the bridge. Its focus was on governmental and political issues that were relevant to both levels of government
29 I agree with the reasons given by Besanko J in relation to this publication.
Conclusion
30 I would allow the appeal. I would set aside the judgment and orders made at trial. I would order that there be substituted a judgment for the first and second plaintiffs in the sum of $25,000 against the first, second and fourth defendants, and an order that otherwise the claims made by the plaintiffs against the defendants be dismissed. It will be necessary to hear the parties on the question of cost.
GRAY J
Introduction
31 This is an appeal against an award of damages for defamation.
32 The plaintiffs, Thomas Lincoln Chapman, Wendy Jennifer Chapman and Andrew Lincoln Chapman claimed damages for defamation arising from eleven publications. The claims were made against the Conservation Council of South Australia Inc, Margaret Bolster, Professor David Shearman and Richard Owen.
33 On 30 September 2002 a judge of this court ordered that Mrs Chapman recover $20,000 from the Conservation Council and Mr Shearman in respect of a publication described as “publication 6”, that Mr Chapman and Mrs Chapman each recover $25,000 from Ms Bolster, Mr Owen and the Conservation Council in respect of a publication described as “publication 7”, and that Mr and Mrs Chapman each recover $30,000 from the Conservation Council in respect of a publication described as “publication 11”. The claims involving all other publications were dismissed.
34 The learned trial judge concluded that publications 6, 7 and 11 were defamatory. The defences of justification, fair comment, common law qualified privilege and extended qualified privilege were rejected.[1] The judge found that the defendants were motivated by express malice.
35 The judge ordered that Mr and Mrs Chapman recover costs fixed at $50,000. The Conservation Council and Mr Shearman were held to be jointly and separately liable for $10,000; the Conservation Council, Ms Bolster and Mr Owen jointly and severally liable for $20,000, and the Conservation Council liable for an additional $20,000.
36 On appeal counsel for the defendants challenged many aspects of the judge’s reasons and his conclusions. Most issues raised during the trial were reventilated on appeal. It was contended that the judge made errors of fact and law. It was said that his findings of malice were not open on the evidence.
The Parties
The plaintiffs
37 Mr and Mrs Chapman are husband and wife. Andrew Chapman is their adult son. Mrs Chapman had an extensive involvement in public affairs. She was a former Lord Mayor of Adelaide. She was made a Member of the Order of Australia in 1986 for services to local government and the community. Mr Chapman was an experienced land developer. He too had extensive involvement in public affairs. He had been a prominent figure in service organizations and had served as the president of the National Council of Independent Schools. All claims brought by Andrew Chapman were dismissed.
38 At relevant times Mr and Mrs Chapman controlled Binalong Pty Ltd. Both were directors and shareholders.
The Conservation Council
39 The judge observed that the Conservation Council occupied an important position of influence with regard to public affairs. This was a unique and responsible position. He found that the Conservation Council was seen by the ordinary person as a body which made authoritative public statements. He concluded that there was a public interest in encouraging bodies such as the Conservation Council to participate in public debate.
40 The Conservation Council was described by the judge as:
... 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 ...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.
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’.
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).
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 R55); there is also a power to include staff on the Executive.
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 R44 & 56).
The Conservation Council employs salaried core staff but it is largely dependent upon voluntary activity. ... 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. ... 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.
Ms Bolster
41 At relevant times Ms Bolster was the vice president of the Conservation Council. The evidence established that Ms Bolster had a long history of involvement with conservation and environmental organisations in a voluntary capacity. Her involvement extended to various management, planning and steering committees with a particular focus on revegetation, natural heritage and biodiversity. Ms Bolster was further involved in government working groups and committees within Department of Environment and Heritage, Department of the Premier and Cabinet and Department of Primary Industry and Natural Resources. In her work with the Conservation Council, she contributed her time and effort on a voluntary basis in positions ranging from editor to vice-president and later president. She was widely read on issues relevant to Hindmarsh Island. Ms Bolster had a commitment to the environment and believed herself to be engaging in public debates in the wider public interest.
42 The judge made the following findings:
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.
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.’
Professor Shearman
43 Professor Shearman was the president of the Conservation Council from October 1991 until November 1994. Professor Shearman had a distinguished career in the medical field holding positions as professor, senior lecturer and chair at various international and local universities. Through his involvement as a member of the International Panel on Climate Change and Doctors for the Environment he demonstrated an interest in environmental and conservation issues. He acted in a voluntary capacity as president to the Conservation Council. He instigated the publication Environment SA and acted for some time as its editor. He demonstrated an interest in the issues of the environment and conservation.
44 The judge observed:
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. ... 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.
Mr Owen
45 The evidence established that Mr Owen had a long term interest in conservation and the environment through his membership of many groups, boards and panels since the late 1980’s. His involvement included membership of the Hindmarsh Island Landcare group, the Coorong and Lower Murray Lake Ramsar Community Reference Panel and further as a board member on the Conservation Council. He had been active for more than 20 years in revegetation of the Murray mouth region and had been a strong advocate in attempts to prevent further degradation in the region.
46 The judge outlined Mr Owens’ background:
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 at lobbying Government.
A Matter of Public Interest
The Island
47 Hindmarsh Island (“the island”) is located south of Adelaide in the lower Murray. In earlier times vehicle access was by ferry that travelled between the township of Goolwa and the island. With increasing development on the island the ferry became a traffic “bottleneck”. In the early 1980’s the local council approached the South Australian government to secure better access to the island. A larger ferry was installed. However traffic flow remained congested. Public meetings were held and local residents called for the construction of a bridge to better cater for the increasing traffic flow between Goolwa and the island. In 1987 the local council approached the Minister for Transport requesting that a bridge be constructed. Thereafter the council continued to pressure the government.
48 Binalong acquired land on the island in or about 1977. Between 1981 and 1984 Binalong obtained planning and other approvals to develop a marina complex on its land. The proposed complex included marina berths, a motel, a restaurant, a conference centre, and accommodation units. By 1985 the first marine basin had been substantially completed. A number of berths had been established together with supporting infrastructure. The development continued. Accommodation units were built and a restaurant opened.
49 In early 1988 Binalong decided to expand the marina. Adjacent land was acquired. By July 1988 a planning application pursuant to the Planning Act 1982 had been prepared for the proposed construction. A six stage development was proposed. At the request of the State government the lodging of the planning application was deferred until a draft supplementary development plan for the island had been prepared and made public.
50 The preparation of the draft supplementary development plan led to the commissioning of an Aboriginal archaeological survey. The survey involved the entire island including the marina and the approach to the ferry. Vanessa Edmonds, an archaeologist, conducted the survey and reported in 1988. By this time another developer had lodged a planning application for a competing development. Submissions from the public were invited in regard to both proposals. Extensive public consultation occurred.
The Bridge Proposal - State Government Involvement
51 Whilst the development proposals were under consideration the State government expressed a preference for a bridge to be built rather than ferry services improved. In June 1989 Binalong offered to build a bridge. A public meeting was held and a majority of those present favoured a bridge.
52 In August 1989 the State government advised that it was likely that Binalong's planning application would be treated as a “major project” pursuant to the provisions of the Planning Act. As a result, the project would be considered by cabinet and Binalong was required to follow the environmental impact statement process. In October 1989 Binalong was advised that cabinet would recommend to the Governor in Executive Council that the marina expansion and bridge proposal proceed as a major project and that the State government would contribute either half the total construction cost of the bridge, or $3 million, whichever was the lesser sum.
53 Binalong prepared a draft environmental impact statement. In November 1989 the draft was made public and comment invited. A public meeting followed in December 1989 arranged by the State government. Following this public meeting the State government prepared a preliminary assessment of the draft environment impact statement. The preliminary assessment suggested that because the section on Aboriginal heritage had been based solely on the 1988 Edmonds report, an additional archaeological survey should be prepared. It was suggested that a comprehensive survey of the bridge site and the proposed marina expansion be conducted by a consultant acceptable to the Aboriginal Heritage Board and the appropriate Aboriginal Heritage Committee. The preliminary assessment concluded:
Similarly, although the Environmental Impact Statement makes reference to discussions with the Point McLeay Community Council, any consultations with the Aboriginal traditional owners and any anthropological study should be carried out by a suitably qualified and experienced anthropologist. This anthropologist should be acceptable to the Aboriginal Heritage Branch which can also advise on the brief for such a study.
Mr and Mrs Chapman then arranged for an anthropological survey to be undertaken by Rod Lucas. Mr Lucas reported in early 1990.
54 A further report from Ms Edmonds was completed in January 1990. This report identified several new archaeological sites close to the shoreline and not within the proposed marina expansion site.
55 In March 1990 an assessment report on the draft environment impact statement and its supplement was released by the State government. The six stage development was recommended for approval subject to the conditions set out in the assessment report. These conditions included conditions related to Aboriginal heritage concerns and accorded with recommendations made in the Lucas report. These conditions were contained in paragraph 7.4 of the assessment report. Paragraph 7.4 in turn contained recommendation 2.5 which picked up the conditions recommended in the Lucas report.
56 In March 1990 an application for approval of the six stage development was lodged. Shortly thereafter the Governor in Executive Council granted consent to the development subject to a number of conditions, including those conditions in section 7.4 of the assessment report which related to Aboriginal heritage matters. The approval granted to Binalong on 11 April 1990 included the following conditions:
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 the 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 the 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.
57 Other conditions provided that stages two to six of the marina extensions were not to proceed until after the practical completion of the bridge project. The State government confirmed its previous commitment to pay either half of the construction cost or $3 million whichever was the lesser sum.
58 On 12 April 1990 authorisation was granted pursuant to the Aboriginal Heritage Act 1988 (SA) to Binalong to establish the “marina/waterfront development” as detailed in the draft environmental impact statement and its supplement. This authorisation was subject to specified conditions in the assessment report. The specified conditions were those identified in Section 4.6 of the assessment report. Section 4.6 in turn referred to Section 7.4 of the assessment report.
59 Formal planning approval pursuant to the Planning Act was confirmed by Executive Council on 26 August 1992 in relation to stages two to six. The 1990 approval was to lapse if the bridge was not substantially completed within two years.
60 The same conditions were referred to in Sections 4.6 and 7.4 and these conditions reflected the recommendations in the Lucas report. These conditions had to be satisfied before the bridge could be constructed. Stages two to six could not proceed until practical completion of the bridge project. As a result all six stages of the proposed development were subject to the specified conditions of the assessment report.
The State Government and The Financier
61 By July 1989 Westpac Banking Corporation Ltd had taken over Partnership Pacific Limited the Chapman’s previous financier. On 30 October 1990 Westpac declined to finance stage one and sought repayment of Binalong’s outstanding debt. This led to discussions between the State government and Westpac. As earlier observed the State government decided to build the bridge. This led to a “tripartite” agreement between the State government, the local council and Binalong. As part of the agreement the State government had arranged for Westpac to finance stage one of the marina. Stage one proceeded to completion.
Public Opposition
62 In November 1991 and October 1992 petitions opposing the construction of the bridge were tabled in Parliament. Prior to this time there had been limited public opposition to the construction of the bridge. However from early 1993 opposition grew. In February 1993 a number of local residents and holiday home owners opposed the bridge. “The Friends of Hindmarsh Island” group was formed to oppose the bridge project. In about October 1993 the Friends of Hindmarsh Island became incorporated as the Friends of Goolwa and Kumarangk Inc[2]. Other organisations also opposed the construction of the bridge. They included the Conservation Council of SA Inc, the Construction, Forestry, Mining and Energy Union, the Goolwa Residents and Ratepayers Association, and in late October 1993 Greenpeace and the Lower Murray Aboriginal Heritage Committee.
63 In March and April 1993 members of the State opposition voiced concern about the arrangement under which the State government was to contribute to the cost of the bridge. In April 1993 the Legislative Council resolved that its Parliamentary Environment, Resources and Development Committee should hold an inquiry into issues relating to the funding of the bridge. Meanwhile in May 1993 the State government called for tenders for the construction of the bridge. A tender from Built Environs Pty Ltd was accepted in September 1993. The Committee tabled its report in Parliament in October 1993. It recommended that the bridge proposal be reassessed and that a second ferry be investigated to relieve the perceived difficulties to island access.
Bridge Construction
64 It became public knowledge that work on the construction of the bridge was to commence at the end of October 1993. In early October 1993 a public meeting arranged by the Friends of Goolwa and Kumarangk Inc, the Conservation Council of South Australia and the Construction, Forestry, Mining and Energy Union was held at Goolwa to protest against the construction of the bridge. Further public meetings were held later in October 1993. By late October 1993 protesters had organised a picket at the proposed bridge site. At about this time the Lower Murray Aboriginal Heritage Committee expressed concern about the impact of the proposed bridge on Aboriginal sites. This concern was made known to the Department of State Aboriginal Affairs who in late October 1993 advised the State Office of Planning and Urban Development that concerns existed about Aboriginal heritage sites and consultation with Ngarrindjeri people needed to be considered in the ongoing assessment of the draft supplementary development plan.
Federal Ministerial Involvement
65 On 23 October 1993 the Lower Murray Aboriginal Heritage Committee wrote to the Federal Minister for Aboriginal and Torres Strait Islander Affairs expressing concern at the proposed bridge construction. The committee considered that the approaches to the bridge project were near Aboriginal sites of significance. The committee was also concerned about other sites on the island and the ecology of the region. It was said that the northern end of the Coorong was sacred to the Ngarrindjeri people.
66 Work on the bridge commenced on 27 October 1993. The picket was maintained at the site by protesters. That day the contractor was told to cease work by an inspector acting pursuant to the provisions of the Aboriginal Heritage Act. There was concern that the grading of a diversion road could damage an Aboriginal heritage site which had been earlier identified in the 1990 Edmonds report. The proposed bridge construction was the subject of regular comment in the electronic and print media.
67 On 20 December 1993 the newly elected State government appointed a retired Supreme Court judge to investigate and report on the State's contractual obligations regarding the bridge.
68 Public demonstrations in opposition to the bridge continued. In March 1994 there was a rally outside Parliament House in Adelaide and a demonstration outside a Westpac bank.
Legal Proceedings
Section 45D proceedings
69 In March 1994 Binalong sought and obtained an ex parte injunction in the Federal Court pursuant to section 45D of the Trade Practices Act 1974 (Cth) (“the TPA”) against persons and entities involved in picketing and obstructing bridge work. In April 1994 the Federal Court continued an interlocutory injunction against seven of the ten respondents.
Heritage Protection Act Declarations
70 In April 1994 the Aboriginal Legal Rights Movement sought protection of the proposed bridge site under the Heritage Protection Act 1988 (Cth). In May 1994 an emergency declaration was made by the Federal Minister under section 9 of the Heritage Protection Act. This declaration had the effect of banning bridge construction work for 30 days. In June 1994 the declaration was extended for a further 30 days.
71 Professor Cheryl Saunders prepared a report pursuant to the Heritage Protection Act at the request of the Federal Minister. The report concluded that, if constructed, the bridge would affect a significant Aboriginal area. It was said that the immediately surrounding area was adjacent to a known Aboriginal site, skeletal remains, known and anticipated were present in the area; and that the proposed bridge site was within an area regarded by Ngarrindjeri women as crucial to the reproduction of the Ngarrindjeri people and their continued existence.
Judicial Review Proceedings
72 In July 1994 Mr and Mrs Chapman and Andrew Chapman commenced proceedings in the Federal Court for judicial review of the Federal Minister’s decision to make a declaration pursuant to the Heritage Protection Act. His decision was set aside by the Federal Court. An appeal to the Full Federal Court by the Minister was dismissed.
State Royal Commission
73 In late 1994 through to mid 1995 considerable media debate continued. In June 1995 the State government announced that a Royal Commission would be established to enquire into and report about whether alleged secret “women’s business” was a fabrication. A Royal Commissioner was appointed. The commissioner reported in December 1995 that the whole of the secret “women’s business” was a fabrication. The commissioner was of the view that the purpose of the fabrication was to obtain the declaration under the Heritage Protection Act to prevent the construction of the bridge.
Federal Inquiry
74 In June 1995 the Federal Minister advised that there would be an independent enquiry into the significance of Hindmarsh Island to Aboriginal people. This enquiry was to be conducted by Justice Jane Matthews. In December 1995 following the dismissal of the Full Federal Court appeal, the Federal Minister announced that procedures had been set in train for the preparation of a further report under the Heritage Protection Act by Justice Matthews. Challenges were initiated in the High Court concerning the appointment of Justice Matthews.
Legislative Intervention and High Court Challenge
75 There was a change of Federal government in March 1996. The Hindmarsh Island Bridge Act 1997 (Cth) was enacted. This legislation was challenged unsuccessfully in the High Court in April 1998. The construction of the bridge could now proceed. Work commenced in late October 1999 and the bridge construction was completed on 4 March 2001.
Conclusions
76 This summary of events from 1989 to 2001 demonstrates the extensive and continuing public interest in the Hindmarsh Island bridge development. Many different public interests arose. They included matters of public policy concerning environment and heritage issues, Aboriginal heritage issues, State and Federal government relationships, and political issues including aspects of State and Federal power.
77 What commenced as a proposal for a commercial development on private property was catapulted into the public domain. Issues of public involvement and public financing became important aspects of the project. Mr and Mrs Chapman took on a role as protagonists for the bridge. They became embroiled in the public controversy. They prepared environmental impact statements. They published extensively to the public through the media.
78 An analysis of media statements and publications by the Chapmans reveals that they were involved in media publications for more than a decade from 1982. The volume of this material increased during 1991 and included numerous statements throughout the period relevant to the present case. There were a considerable number of statements by the Chapmans to the media in the years 1993 to 1995.
79 Many of the publications or statements by the Chapmans were in the print media including the Advertiser, the Australian, the News and the Victor Harbour Times. Those publications have a wide readership. The Chapmans had and took the opportunity to add to the public debate on the issue of the bridge construction before a wide audience. They were able to respond to issues raised by the Conservation Council and others.
80 The Conservation Council and the other defendants became involved as opponents to the development. The issues raised by the proposed development were of governmental and political concern. All levels of government, local, state and federal became involved. It is against this background and during the course of these events that the alleged defamatory publications were given currency.
The Publications
81 The Chapmans complained of eleven separate publications made between February 1994 and September 1995. With the exception of publication 2 all were made generally under the name of the Conservation Council. Publication 2 was an ABC telecast attributing a number of statements to Ms Bolster. Ms Bolster was involved in publications 1, 3, 4, 5, 7, 8, 9 and 10. Professor Shearman was involved in publication 6. Mr Owen was involved in publication 7. Publication 11 was made specifically under the authorship of the Kumarangk Coalition. At all relevant times the Conservation Council had publicly acknowledged that Kumarangk Inc was one of its members.
82 As earlier observed the judge found that only publications 6, 7 and 11 were defamatory. Publication 6 was made between September and October 1994, publication 7 in November and December 1994 and publication 11 between July and September 1995.
83 During at least the period of June and July 1994 Mr and Mrs Chapman were publishing statements about the Hindmarsh Island projects including the proposed bridge. At the same time the Conservation Council and its members were expressing their views to the public.
84 Publications 1 to 11 and in particular publications 6, 7 and 11 were said by the defendants to raise matters of concern relating to public issues. An analysis of the publications confirms this to be the case. At the broadest level it can be said that the Hindmarsh Island Bridge debate had become a public interest issue. All levels of government were involved. The developer interests and the conservation interests had entered the public arena.
The Trial Judge’s Findings
Publication 6
85 Publication 6 was in the following terms:
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
86 The judge concluded:
In respect of [publication 6] I find that the following imputations arise:
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.
87 The judge considered that publication 6 imputed motive and conduct which the ordinary person would treat as dishonourable. He said that when read fairly and in context the words complained of carried the identified imputations. He concluded that these imputations would tend to lower Mrs Chapman in the estimation of right thinking members of society generally and that if false would discredit her reputation. He concluded that the words were defamatory.
88 The judge took the view that the defence of justification had not been properly pleaded. However he observed that when arguing their case on extended qualified privilege the defendants, under the rubric of a submission on reasonableness had presented their case of justification.
89 In concluding that publication 6 was defamatory the judge reasoned:
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.
90 The judge considered that the publication was made on an occasion of common law qualified privilege. However he concluded that malice had been proven and the defence failed. The judge reasoned that the Lange defence did not apply as that publication was not about a topic “to which the extended privilege applies”. He concluded that in any event Professor Shearman’s conduct was not reasonable. This conclusion was not supported by findings or reasoning. The judge also observed that a Lange defence had it arisen, would have been defeated by malice.
91 With respect to fair comment the judge concluded:
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.
Publication 7
92 Publication 7 was in the following terms:
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
93 The judge found that the following imputation arose:
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.
The judge considered that the imputation would tend to lower Mr and Mrs Chapman in the estimation of right thinking members of the community generally and if false would discredit their reputations.
94 With respect to the defence of justification the judge observed:
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.
95 However the judge considered that as with publication 6 the defence of justification had been canvassed under the rubric of reasonableness because it was suggested that a Lange defence arose.
96 The judge concluded that publication 7 had a tendency to excite the adverse opinion or feeling of right thinking members of the community against Mr and Mrs Chapman.
97 The judge took the view that publication 7 did not attract common law qualified privilege. He considered that the extended Lange defence was potentially available but had not been established. Again the judge expressed the bare conclusion that the conduct of the relevant defendants was not reasonable and that the article was motivated by malice.
98 The judge appeared to give no consideration to the pleaded defence of fair comment.
Publication 11
Hindmarsh Island
Not-so-secret political
business
99 Publication 11 was in the following terms:
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 any 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 the 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
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
100 The judge concluded that publication 11 carried the following imputation:
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.
The judge concluded that publication 11 attributed to Mr and Mrs Chapman at least a cavalier attitude in the discharge of their “professional” responsibilities. The judge considered that publication 11 would tend to lower Mr and Mrs Chapman in the estimation of right thinking members of society generally and that if false would discredit their reputations.
101 On the asserted defence of justification the judge observed:
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.
Again the judge considered that the defendants had been able to put their case in regard to the defence of justification under the rubric of reasonableness when addressing the Lange defence. The judge concluded:
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.
102 The judge took the view that qualified privilege at common law did not arise but that the protection of the extended defence of qualified privilege could be raised. He concluded that the conduct of the Conservation Council and Ms Bolster was not reasonable. He did not consider that reasonable grounds for belief in the truth of the imputation existed. He did not accept that any proper step had been taken to verify the accuracy of the information. The judge considered that the purpose of the publication was to “lambast” Mr and Mrs Chapman. The publication was not made for the purpose of communicating government or political information. He further considered that Ms Bolster was at least recklessly indifferent as to whether the material was truthful or accurate. He found the publication was actuated by malice and that accordingly the extended defence of qualified privilege failed.
Issues on Appeal
Defamatory Imputation
103 A statement is defamatory of a person of whom it is published if it tends to lower that person in the estimation of right thinking members of society generally. [3]
104 Counsel for the defendants submitted that a consideration of whether publications 6, 7 and 11 formed part of the public debate on government and political matters was important when determining whether the publications contained defamatory imputations. It was contended that when publications concern government or political matters a more robust view of the language used would be taken by reasonable members of the community. What might be defamatory in a non government and non political context may amount to no more than “rhetorical hyperbole” or a “vigorous epithet” in the context of discussions about government or political matters. Counsel submitted that this approach was supported by the decisions in Lange and Roberts v Bass[4].
105 In Milkovich v Lorain Journal Co [5] the United States Supreme Court reaffirmed as a matter of constitutional principle what was said to have been generally understood at common law, namely that rhetorical hyperbole, the vigorous epithet and loose figurative language were types of speech protected from libel in discussions of government or political matters. The view was taken that such expressions could not reasonably be interpreted as assertions of fact. It was said that protection of such expressions provided an assurance that public debate would not suffer for the lack of an imaginative expression which had traditionally been associated with public discourse. The Court observed that “name calling” is readily recognisable. It is not susceptible to a determination of truth or falsity. When used, such expressions negated the impression that a publisher was seriously maintaining a statement of fact. Such expressions were protected either because the names were mere epithets or because such expressions constituted nothing more than strongly worded views that were not true or false. Characterising such expressions as opinion not demonstrably false in the words of the United States Supreme Court provides an alternative constitutional buttress to the common law proposition that epithets and vituperation are not actionable.
106 It is inevitable that during the course of public debate about government or political matters, name calling and strong epithets will be commonplace. Right thinking members of the community would understand this to be so. Their estimation of a person will not be lowered by such publications. The Australian community appears to take a robust attitude towards discussion of government or political matters.
107 As earlier observed publications 6, 7 and 11 were made against the background of extensive and ongoing public debate about government and political matters. As was observed in Lange the Australian community has an interest in the dissemination and receipt of information, opinions and arguments on these issues.
Publication 6
108 Earlier in these reasons the full text of Publication 6 has been set out[6]. Instituting proceedings to stop the publication and dissemination of material is not uncommon. In the present case earlier reference has been made to section 45D Trade Practices Act proceedings issued by the Chapmans. These proceedings, the terms of the injunctions obtained and the follow up letters demonstrate that the Chapmans were seeking to stop or at the very least restrict public statements being made by the appellants and others about the bridge project. The letters included the assertions:
Sir, it remains to be said that you must be aware, as the carefully couched terms of your media interview make clear, of the perilous nature of your conduct, and the large claim to which you have now exposed yourself.
Our clients have a multi million dollar development, and you are attempting to seriously prejudice it by your improper conduct. Any damages awarded to our clients because of your conduct would necessarily be a very large sum.
May we suggest that you carefully reflect on those facts, and that you ensure that your future conduct is strictly within the rules.
A further letter advised:
We are instructed that our clients have identified you as a person who had been involved in attempts to stop bridge work.
On our instructions:
1. Your past actions give Binalong a claim against you for interference in contractual relations, inducing breach of contract, and unlawful interference with trade.
2. By your conduct, and the conduct of others similarly involved, you have already caused Binalong enormous losses.
The delays in the construction of the bridge have cost Binalong millions of dollars. This principally comprises extra finance costs and lost sales revenue.
3. If the bridge is not built, Binalong will suffer further loss, namely –
* the loss of $32m being the current projected profit to be earnt on future development of Binalong’s marina and
* a loss, probably exceeding $15m, in the finance costs incurred by Binalong but not recouped.
4. This conduct of yourself and others has also resulted in Binalong being put into receivership. This may result in the development being sold at a ‘fire sale’ price.
You will appreciate that, if this occurs, Binalong will have claims of the magnitude referred to above even if the bridge is built.
We will be in further contact with you regarding the matters raised in this letter.
In the meantime, our clients reserve all their rights.
109 Community members who received notice of their potential involvement with court orders, future court proceedings and threatening letters were likely to be fearful of consequences that might follow if court action was successful. Intimidation and fear are closely linked.
110 Given the ongoing public debate publication 6 did not carry any defamatory imputation. Vigorous language was used but no more than that. Right thinking members of the community would not have had their opinions of Mr and Mrs Chapman lessened by the publication. Right thinking members of the community would have considered that the Chapmans through Binalong had utilised legal process to advance their commercial interest in the bridge project. The Chapmans were entitled to pursue orders restraining the activities of protestors who were by words and conduct preventing the bridge construction. Right thinking members of the community would recognise that Binalong would understandably be seeking to stop discussion and debate that had the potential to, or did, undermine or adversely effect the progress of the bridge project. Right thinking members of the community would not draw the conclusion that the Chapmans were misusing legal proceedings, acting with an improper purpose or engaging in an abuse of process.
Publication 7
111 Earlier in these reasons the full text of publication 7 has been set out.[7] The judge concluded that a defamatory imputation arose. The Chapmans were oppressing the ordinary citizens of Goolwa. The word “oppression” was not used in publication 7. The publication used the phrases “intimidation by use of legal proceedings” and “that the ordinary residents of Goolwa had suffered greatly under the boot of Binalong.”
112 Publication 7 should be understood to have been made in the context of the earlier summarised ongoing public debate. By November and December 1994 right thinking members of the community were well aware that a major public debate had and continued to rage about the construction of the bridge. The protagonists for and against the bridge had been openly identified. The battle lines had been drawn.
113 The opponents to the bridge construction project were taking steps to stop the bridge project. Governments at all levels were being lobbied. Attention was directed towards the joint venturers, Local and State government, the Federal government, the financiers and “the developers”. The objectors had a measure of success. The Federal minister became involved. Federal inquiries and activities were counter balanced by State inquiries and activities. Right thinking members of the community would have understood that vigorous debate would occur. In this context publication 7 was not defamatory. In the context of the ongoing public debate the reference to the “boot of Binalong” was a vigorous and colourful epithet but no more. The reference to “intimidation” was an emotive description of the effect of the litigation. In so far as an imputation of oppression arose it was not defamatory.
Publication 11
114 Earlier in these reasons the full text of Publication has been set out[8]. Right thinking members of the community would have had their estimation of the Chapmans lowered by the statement that they failed to meet their obligations in respect of a matter concerning Aboriginal heritage. However the imputation was not actionable as the statement was true. The defence of justification as discussed later in these reasons was made out.
Justification
115 Generally it is a defence to an action for defamation that the words of the alleged defamatory statement are true in substance and in fact. This defence commonly referred to as the defence of truth or justification, is a complete defence to any allegation of defamation. In order to make out a defence of justification, the defendant must prove that the imputations conveyed by the allegedly defamatory matter complained of were substantially true. The truth must extend beyond the content of the express words and also cover the imputations that flow from those words.
Publication 6
116 Counsel submitted that the defence of justification had been raised on the pleadings and that the judge was in error in excluding it from his consideration. This complaint is well founded. The judge’s view of the pleadings was unduly restrictive. In any event the judge pointed out that in seeking to advance the Lange defence the defence of justification had been fully explored under the rubric of reasonableness. As the issue was addressed at trial and as both parties debated the defence of justification the judge was in error in not addressing this defence.
117 The imputations found by the judge to have arisen in respect to publication 6 have been set out earlier.[9] It was true to state that Mrs Chapman was a party to the commencement of court proceedings and the issue of legal letters for the purpose of suppressing freedom of speech. Mrs Chapman sought to stifle debate that had the potential to impact adversely on the bridge project. It was true to say that the proceedings initiated by her sought to stop the Conservation Council and others from engaging in what was considered to be a valid concern in the public regarding the bridge issue. The proceedings and follow up letters sought to stop public statement, suppress freedom of speech and stifle debate. However, for reasons to be discussed later, the words of publication 6 are more appropriately to be characterised as comment.
Publication 7
118 With respect to the defence of justification the judge took the same view as he did to publication 6. His view of the pleadings was too restricted. In any event the judge considered that the issue of truth was fully debated under the rubric of reasonableness when he considered the asserted Lange defence. As the issue had been raised at trial and as both parties were able to fully debate the question of truth the judge should have determined the issue.
119 To say that the people of Goolwa had been “intimidated” by the legal proceedings by the Chapmans and the follow up letter and that many had been prevented from speaking freely on government and political issues of wider political concern was a comment on the facts separately identified elsewhere in the publication. However the impugned statements in the publication were not assertions of fact. They were matters of comment on facts elsewhere identified in publication 7.
Publication 11
120 The judge accepted at least in part that a defence of justification had been raised with respect to this publication. He again considered that the issue of truth had been fully debated when considering reasonableness as an aspect of the Lange defence.
121 Earlier in these reasons reference was made to a preliminary assessment by the Department of Environment and Planning of the draft environmental impact statement prepared on behalf of Binalong. Reference has also been made to the Lucas report.
122 The Lucas report made recommendations that were adopted in the assessment report. The assessment report in section 7.4 addressed the bridge project as well as the marina project. It contained recommendation 2.5 within Section 7.4 with respect to the project generally including the bridge project. This recommendation is set out earlier in these reasons[10].
123 The assessment report in the section addressing Aboriginal heritage issues included the following:
The draft [Environmental Impact Statement] referenced information from a previously conducted archaeological study (Edmonds 1988) of Hindmarsh Island. Subsequently, further archaeological (Edmonds 1989) and anthropological (Lucas 1990) studies were conducted specifically to investigate both the marina/waterfront development site and the bridge site.
The anthropological study (Lucas 1990) is also to the satisfaction of the Aboriginal Heritage Branch. However, there are a number of recommendations in this report which need to be addressed (see Section 7.4 of the Assessment Report). It is necessary for the proponent to consult with the Aboriginal Heritage Branch about implementing these recommendations, particularly with regard to burials, skeletal remains and the discovery of other material during excavation.
The archaeological study is satisfactory on the understanding that the recommendations put forward by Edmonds (1989) and quoted in the Supplement will be followed. The anthropological study (Lucas 1990) is satisfactory, but the recommendations from this report have not been addressed in the Supplement. In this regard it is necessary for liaison to occur between the proponent and the Aboriginal Heritage Branch before any development proceeds.
124 The assessment report recommended that the section 7.4 recommendations be addressed. They were addressed and became conditions. As earlier observed cabinet considered Binalong’s application for planning approval. Cabinet consented to Binalong’s application for the development of the bridge, the marina extensions and the waterfront development on Hindmarsh Island. The conditions linked the Section 7.4 Recommendation 2.5 of the assessment report to the marina extension. However when addressing authorisation under the Aboriginal Heritage Act the State government through the Department of Environment and Planning required compliance with section 4.6 of the assessment report for the proposed Hindmarsh Island Bridge. Sections 4.6 and 7.4 were linked. In this way the projects were interlinked. The conditions set out in sections 4.6 and 7.4 became conditions for the building of the bridge.
125 The impugned statements in publication 11 were true.
Fair Comment
126 It is a defence to an action for defamation for a defendant to prove that the words complained about were published as fair comment on a matter of public interest. The defence is defeated by proof of express malice. To make out the defence the comment must be based on fact and must be recognisable as comment although it may consist of or include inferences of fact. The comment must also satisfy the test – could any fair minded person honestly express that opinion on the proved facts.
127 On occasions it may be difficult to distinguish between assertions of fact and statements which represent inferences drawn by a commentator. There is no comprehensive judicial pronouncement as to how the distinction between a statement of fact and a comment is to be made. If a commentator sets out or refers to other facts and then makes it clear that the relevant statement is the commentator’s inference from those facts the relevant statement can be defended as comment.
Publication 6
128 The defamatory imputation drawn by the judge with respect to publication 6 was a statement about Mrs Chapman’s purpose in issuing court proceedings and sending “legal letters”. The statement satisfies the test of comment. The statements included “we believe that this legal process is being used simply to silence us for the view of an imminent legal expert” and “you be the judge of the intent of these letters”. These expressions were an indication to the reader that the publisher was expressing an inference drawn from facts stated elsewhere. The relevant words in publication 6 are comment. The suggested defamatory imputation is drawn from matters of comment.
129 These matters of comment in publication 6 were differentiated from the assertions of fact said to justify the comment. The legal processes and the content of the letters said to give rise to the comment, were identified. Each of the relevant underlying facts were true. Those facts included the existence of the injunctions, Binalong’s intention to continue legal proceedings, the content of the letters, the content of the statements by Mr Heath and Mr Stewart, the papers from the Environmental Law conference, the James article and the media reports.
130 Subject to the issue of express malice the defence of fair comment was available had publication 6 conveyed any defamatory meaning.
131 For reasons later appearing the judge was in error in concluding that express malice had been established.
Publication 7
132 The judge failed to consider the defence of fair comment pleaded in respect of publication 7. The relevant words in publication 7 giving rise to the defamatory imputation were:
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?
133 The words in the publication giving rise to the imputation are clearly differentiated from the supporting facts appearing earlier in the publication. These supporting facts were true. Examples include the lifting of the injunctions, the seeking of a stay of proceedings, the Federal Court’s refusal of Binalong’s application, the fact that injunctions remained in place from April 1995 with no action to test their validity, the continuation of the proceedings, the terms of the legal letters, the statements of Mr Heath, the statements from Mr Stewart, the papers from the Environmental Law conference, the James article, the media reports and the fact that the Chapmans sought compensation.
134 Subject to the issue of malice the defence of fair comment was available in regard to publication 7 were it to be defamatory.
Publication 11
135 There was no submission on appeal that publication 11 attracted the defence of fair comment.
Qualified Privilege
Traditional Qualified Privilege
136 Qualified privilege at common law was described by Lord Atkin in Adam v Ward[11]:
...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.
137 Qualified privilege is defeated if a plaintiff proves that a defendant was activated by “express” or “actual” malice. The plaintiff must prove that the defendant’s dominant motivation was not something 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.
Publication 6
138 The judge found that publication 6 was made an occasion of traditional qualified privilege. However he rejected this defence as he concluded that Professor Shearman abused the privilege of the occasion. The judge considered that express malice had been established:
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.
139 The issue of express malice is discussed later in these reasons and the conclusion reached that express malice was not established.
Extended Qualified Privilege
140 The defence of common law privilege has been extended by the High Court in Lange v Australian Broadcasting Commission[12]. After reviewing the limits of common law privilege and the criteria for its application the High Court pointed out the shortcomings involved in applying the principles set out in Adam to a publication made to the general public. Without disturbing the operation of existing principle, the court enunciated a test appropriate to circumstances where an occasion is claimed to be privileged only on the basis 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.
141 In its joint judgment the court observed:
...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[13]. ...
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.[14]
...
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.
142 In Australian Broadcasting Commission v Lenah Game Meats Pty Ltd[15] 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.
143 Counsel for the defendants submitted that the defence of extended qualified privilege was available with respect to publications 6, 7 and 11. The judge concluded that this defence was not available in respect of publication 6 and 7 but that it was potentially available in regard to publication 11. However with respect to publication 11 it was defeated by a lack of reasonableness and malice.
144 In Lange[16] the High Court reaffirmed that not only Federal legislation but also State and Territory legislation and the common law must conform to the freedom of political communication. This freedom was described as an indispensable incident of the system of government created within a federal constitution. The court concluded that the Australian Constitution protected the freedom of communication between people concerning political and government matters which enabled the people to exercise a free and informed choice as electors. The court further reaffirmed that laws that provided and limited civil rights of action must conform to the constitutionally protected freedom of political communication. The court considered the impact on defamation law of the freedom of communication protected by the Constitution.
145 The court declared that the common law of defamation had to recognise 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. One effect of this declaration was to develop what has been described as an extended form of qualified privilege. The declaration was in wide terms. Guidance was not provided on the precise meaning of “government and political matters affecting the people of Australia”. However nothing in the decision suggests that the protection depends on whether the plaintiff is a politician or other type of public figure. The unequivocal nature of the court’s reasoning with respect to the ambit of the protection would suggest that the Lange defence is not limited to a “public figure style” defence as under United States law.[17]
146 As earlier observed there had been extensive ongoing public debate about the Hindmarsh Island Bridge particularly during 1994 and 1995. The debate addressed matters of a political and governmental nature. Publication 6, 7 and 11 directly contributed to the ongoing public comment and debate. The members of the Australian community had an interest in disseminating and receiving information opinions and arguments concerning those government and political matters. The question of freedom of speech was of prime importance to the ongoing debate. The freedom of the conservationists to speak out freely had become a matter of importance. They were matters that affected the people of Australia. The judge was in error in failing to consider that the Lange defence was potentially available with respect to publications 6 and 7.
147 Although the judge did comment on the question of reasonableness, he did no more than express his bare conclusion. In concluding that express malice had been established the judge appeared to give no consideration to the different test for malice articulated by the court in Lange.
The Present Case
148 The defence of extended qualified privilege was available in respect publications 6, 7 and 11. Widespread public debate took place about the bridge and the wider political and governmental implications. The issues debated were of government and political concern. All levels of government were involved. Publications 6, 7 and 11 formed part of this debate. The issue of the bridge and freedom of speech became linked. The issues were of such a nature that each member of the Australian community had an interest in disseminating and receiving information, opinions and arguments considering the government and political matters that affected the people of Australia. The wide public interest is evidenced by the facts and events to which earlier reference has been made. The expenditure of public money, the Royal Commission, the Jacobs Inquiry, the Saunders Enquiry, the Tickner Orders, the Federal and High Court hearings, the Commonwealth legislation, the public protests, the aboriginal interests and the continued level of ongoing public debate all are examples.
149 The onus was on the defendants to prove reasonableness of conduct. As earlier noted, the issue of reasonableness depends on all the circumstances of the case. The defendants gave evidence about their beliefs about the truth of the publications. The history of the matter recounted earlier demonstrates the accuracy of their assertions. This was a dispute between those supporting conservation and the advocates for development. The plaintiffs were well prepared to respond and did so generally in the media. The plaintiffs were well used to arranging for publication of their position. There was no need for the defendants in the circumstances to provide an opportunity for response.
150 In assessing reasonableness it is relevant to consider the conclusions reached elsewhere in these reasons concerning the history of the matter, the question of defamatory meaning, truth and justification, fair comment and malice.
151 As elsewhere observed Professor Shearman held the office of president of the Conservation Council. That body and its president had an interest in publishing to the conservation movement and generally about the issues concerning the bridge. Publication 6 occurred during extensive ongoing public debate on matters of government and political concern. The use of legal mechanisms to silence community groups from expressing valid concerns about the bridge were an important matter of public interest. The publication was reasonable. The use of legal mechanisms did have the consequences of silencing community groups from expressing valid concerns. As elsewhere observed the alleged defamatory implications were matters of comment. The facts on which the comments were based were identified and were true. The comment was not unreasonable.
152 Mr Owen and Ms Bolster were involved in publication 7 in their capacity as members of the Conservation Council executive. The publication was made in the course of public debate on matters of government and political concern. Robust language was used but as earlier observed such language might be expected given the nature of the political and governmental concerns that had been raised by December 1994. Further as earlier observed the statements were justified. In the circumstances the publication was reasonable. The legal proceedings were having the effect of limiting or curtailing freedom of speech on the Bridge issue.
153 Publication 11 was also reasonable. It too was publication made in the course of public debate on matters of government and political concern. The allegedly defamatory imputation at worst involved a misunderstanding of matters arising in a complex governmental treatment of a proposal for development.
154 Were it necessary the defence of extended qualified privilege was made out in respect of publication 6, 7 and 11 subject to the question of malice.
Malice
The Different Meanings of Malice
155 The word “malice” is used in a number of different contexts in defamation law. A statement of claim which alleges that words were published falsely and with malice, traditionally does not impute a state of mind or intention to defame. The words are merely an indication that the words were published without lawful excuse.
156 At common law express malice may defeat defences of fair comment and qualified privilege. Express malice in this context means malice in fact. It amounts to an allegation that the words were published by a person actuated by express malice.
157 Express malice may also defeat an extended qualified privilege defence. In this context express malice has a refined meaning. In Lange the court enunciated a different test for express malice. A publisher will lose the protection accorded by the extended qualified privilege only if it can be established that the material was published for a purpose other than that of communicating government or political information or ideas.
158 For the purposes of extended qualified privilege express malice cannot be established by showing that the defendant did not have a belief in the truth in the words published. This approach is consistent with the interpretation of the reasonableness requirement identified in Lange. A publisher may be protected even though he did not have a belief in the truth of what he published.
159 In Lange it was concluded that having regard to the subject matter of government and politics the motive of causing political damage to a plaintiff could not be regarded as improper. In so far as improper motive was concerned the fact that a publisher was motivated by a desire to cause political damage is not enough to establish that the material was published for a purpose other than that of communicating government or political information or ideas.
160 In the present case the judge did not address the refined meaning of express malice when considering the Lange defence.
Malice in the Present Case
161 Each of the appellants claimed a legitimate and overriding purpose in stopping the construction of the bridge.
162 Earlier in these reasons the judge’s remarks concerning Professor Shearman have been set out. Professor Sherman was the president of the Conservation Council. The judge accepted that Professor Shearman was properly motivated. Professor Shearman did not set out to harm the Chapmans simply for the purpose of causing harm. There was no basis for a finding of express malice with respect to Professor Shearman and therefore there was no effect on the defences of fair comment, qualified privilege or extended qualified privilege.
163 The Conservation Council took on a public role of the protector of environmental issues. The overriding and predominant purpose of the Conservation Council was to stop the building of the bridge for environmental reasons. The Conservation Council was not shown to have the intention of causing harm to the Chapmans as its sole or dominant purpose. Express malice was not established and had no effect on the defences of fair comment, qualified privilege or extended qualified privilege.
164 Ms Bolster was vice president of the Conservation Council. Her overriding motives related to issues of conservation and the environment. She did not set out to harm the Chapmans simply for the purpose of causing harm. Her publications were designed to stop the construction of the bridge for environmental reasons. Her sole or dominant purpose could not be said to be one of harming the Chapmans. Express malice was not established and had no effect on the defences of fair comment or extended qualified privilege.
165 The judge took an adverse view of Mr Owen. It is apparent that the judge’s conclusion of express malice was coloured by matters raised at trial outside the particulars pleaded. One example is the judge’s conclusion that Mr Owen was motivated by issues about sewerage arrangements at his “shack” on Hindmarsh Island. Counsel for the Chapmans acknowledged that this suggestion was not particularised and did not form part of any submissions made at trial. Mr Owen did not come to court to prepare to address these allegations. The judge should not have drawn adverse inference against Mr Owen from such a matter. The judge had regard to irrelevant considerations when making findings about his credit. In these circumstances the findings against Mr Owen must be set aside.
166 Mr Owen was a committed environmentalist. His dominant and overriding motive was the stopping of the bridge. The findings of express malice of the judge were not made having regard to the refined test for express malice for the purposes of the defence of extended qualified privilege. In any event the evidence did not support the findings of express malice. Express malice had no effect on the defences of fair comment or extended qualified privilege.
Conclusion
167 For these reasons the appeal should be allowed. Judgment should be entered for the defendants.
JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT
1 Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR
520.
2 Kumarangk was a recognised Ngarrindjeri name for Hindmarsh
Island.
3 Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1981)
150 CLR 500 at 505-6
4 [2002] HCA 57; (2002) 194 ALR 161
5 [1990] USSC 117; (1990) 497 U.S. 1, see also Greenbelt Cooperative Publishing Association
Inc v Bresler [1970] USSC 109; (1970) 398 US 6
6 at [85]
7 at [92]
8
at [99]
9 at [87] – [91]
10 see [56]
11 (1917]
AC 309 at 334
12 [1997] HCA 25; (1997) 189 CLR 520
13 at 571
14 at
574
15 (2001-2002) 208 CLR 199 at [196]
16 [1997] HCA 25; (1997) 189 CLR
520
17 New York Times v Sullivan [1964] USSC 40; (1964) 376 US 254
168 BESANKO J: This is an appeal from a decision of a Judge of this Court in a defamation action. At trial, the plaintiffs were Mr Thomas Chapman, Mrs Wendy Chapman and Mr Andrew Chapman. The defendants were the Conservation Council of SA Incorporated (“CCSA”), Ms Margaret Bolster, Professor David Shearman and Mr Richard Owen.
169 The plaintiffs’ claims related to eleven publications for which one or more of the defendants was said to be responsible. During the trial, the Judge told the defendants that they needed to address only four of the eleven publications. The plaintiffs did not complain about the Judge taking that course. In the result, the Judge found that three publications were defamatory of one or more of the plaintiffs. He found that what was referred to as Publication No 6 was defamatory of Mrs Wendy Chapman and he awarded her the sum of $20,000 in damages against the CCSA and Professor Shearman. He found that Publication No 7 was defamatory of Mr Thomas Chapman and Mrs Wendy Chapman and he awarded them $25,000 each in damages against the CCSA, Ms Bolster and Mr Owen. He found that Publication No 11 was defamatory of Mr Thomas Chapman and Mrs Wendy Chapman and he awarded them $30,000 each in damages against the CCSA.
170 The CCSA is an incorporated body which represents a number of groups which have an interest in the protection of the environment. The Judge referred to it as an “umbrella” organisation for conservation groups. By this I understand him to mean that the groups are members of the organisation rather than the individual members of the groups. Through the member groups the CCSA is said to represent over 60,000 persons. The CCSA is a non-profit and non- political organisation. It is partially funded by the Federal and State governments and is influential in public affairs in South Australia. The CCSA has a number of committees and working groups which advise it on environmental issues.
171 The conservation groups which are members of the CCSA must meet a strict set of criteria. They must be incorporated bodies. They are represented at meetings of the CCSA by councillors. They appoint the executive committee of the CCSA which consists of a president, vice president, secretary, treasurer and committee members.
172 The CCSA has a small number of salaried staff, but is largely dependent upon voluntary activity. The various committees and working groups operate somewhat informally and, I gather, are formed and disbanded as issues arise and are then resolved.
173 Ms Bolster is an enthusiastic supporter of the conservation movement. She became involved in the CCSA in 1990 as a representative of the Mount Lofty Ranges Conservation Association. She became a member of the executive, and vice president of the CCSA in 1992 and held that position until 1996. She is currently the president. Professor Shearman is also a committed supporter of the conservation movement. He became president of the CCSA in October 1991 and held that position until November 1994. Mr Owen was strongly opposed to the construction of a bridge from the mainland at Goolwa to Hindmarsh Island. He became involved in the activities of the CCSA in May 1993. I will discuss his involvement in greater detail in due course.
174 In 1994 and 1995 the CCSA published a magazine which contained articles about issues affecting the environment. The magazine was called Environment SA and in 1994 there were about six issues of the magazine throughout the year. Professor Shearman was the editor of the magazine in 1994. Ms Bolster became the editor in January 1995.
175 Publication No 6 is a president’s message written by Professor Shearman. The message is entitled, “Hindmarsh Island – Suppression of Free Speech”. It appeared in the September/October issue of the magazine in 1994. Publication No 7 is an article written by Ms Bolster and Mr Owen. It is entitled, “A Win for Freedom of Speech ... a further update - Hindmarsh Island (Kumarangk Bridge)”. It appeared in the November/December issue of the magazine in 1994. Publication No 11 appeared under the name Kumarangk Coalition. It is entitled, “Hindmarsh Island not-so-secret political business”. It appeared in the July – September issue of the magazine in 1995.
176 At all relevant times Binalong Pty Ltd ACN 007 620 439 (Receivers and Managers Appointed) (In Liquidation) (“Binalong”) was a company which carried on business as a developer of property, and relevantly for the purposes of this case, a marina and waterfront development on Hindmarsh Island. The development came to include the construction of a bridge from the mainland at Goolwa to Hindmarsh Island. At all relevant times, Mr and Mrs Chapman controlled Binalong and I did not understand there to be any dispute on appeal that Mr and Mrs Chapman were associated with Binalong’s conduct and activities by the public or a substantial section of it. Mr Andrew Chapman is the son of Mr and Mrs Chapman. In view of the Judge’s findings and the issues on appeal, his position and role need be noticed no further.
177 The defendants appeal against the judgment and orders of the Judge. I will identify the precise grounds of challenge in due course. It is convenient to refer to them as “the appellants”. In the context of a particular publication, that term should be understood as referring to the particular appellants involved. For example, in relation to Publication No 6 the appellants are the CCSA and Professor Shearman. The plaintiffs have not cross appealed or filed a Notice of Alternative Contentions. I will refer to Mr and Mrs Chapman as “the respondents” except where it is necessary to refer to one of them in particular.
Significant Events relating to the Construction of the Bridge
178 The proposed construction of a bridge from the mainland at Goolwa to Hindmarsh Island excited considerable public debate and there was strong opposition to the proposal from sections of the community. It is necessary to outline the significant events in the course of the controversy in order to understand the context in which the three publications were made.
179 During the trial, the respondents put forward a schedule containing a chronology of significant events or facts. The Judge noted that the case was fought against the background of that document which he modified slightly. The Judge noted that some of the matters in the chronology were not formally proved. However, he noted that what had not been proved was assumed by the parties, and he said that the facts set out in the schedule had been sufficiently established or assumed by counsel.
180 Neither the appellants nor the respondents complained about the Judge’s approach in this respect. The chronology and other relevant facts found by the Judge form the basis of what follows.
181 Binalong first purchased land on Hindmarsh Island in 1977. The area of the land was approximately 80 acres and it was adjacent to a deep channel. In December 1982, Binalong was granted development approval for the construction of the first basin for what was to become known as the Goolwa Marina. By 1984 the marina was open. In the same year, Binalong purchased additional land with a view to extending the marina to create more waterways and residential allotments. In 1988, Binalong commenced planning for the extension of the marina and for the subdivision of land. Binalong submitted a development proposal to the then State Planning Commission in May 1988. It included an increase in the marina berths from 320 to 1100, the creation of four lagoons in a residential housing scheme, additional parking and shed areas, motel buildings and a convention centre. The entire development was to be completed in six stages. Consideration of the development proposal was delayed pending the preparation of a Supplementary Development Plan for the Goolwa and Environs area. At the time Binalong submitted its development proposal, the only vehicular access to Hindmarsh Island was by way of a ferry operating between Goolwa and the island. In April 1989, the Department of Environment and Planning (Major Projects and Assessments Branch) raised with Binalong the issue of access to Hindmarsh Island and, at a time not made precisely clear in the evidence, the development proposal came to include the construction of a bridge from the mainland at Goolwa to Hindmarsh Island.
182 Binalong’s development proposal was considered by State Cabinet on 23 October 1989. Cabinet decided that an environmental impact statement (“EIS”) should be prepared pursuant to s 49 of the then Planning Act 1982 (SA). Cabinet decided that it would recommend to the Governor that a declaration be made pursuant to s 50 of the Act so that the Governor could exercise control over the development. Cabinet decided that it would contribute fifty percent of the construction cost of the bridge or $3 million, whichever was the lesser, subject to various conditions including the preparation of a satisfactory EIS and ownership and responsibility for the bridge being accepted by the local council. Binalong was advised of these decisions by letter dated 26 October 1989.
183 Binalong engaged consultants to prepare the EIS and on 4 November 1989 a draft EIS relating to the bridge, marina extension and waterfront development was issued for public comment. A copy of the EIS was available for inspection at several locations, including the premises of the CCSA (the Conservation Centre). On 5 December 1989 a public meeting was held at Goolwa as part of the process involved in the preparation of a satisfactory EIS. Officers from various government departments and Mr Chapman were present at the meeting and available to answer questions. On 18 December 1989 the CCSA lodged a response to the draft EIS. The Judge found that the CCSA generally commended the EIS, although it suggested that the design of the bridge be revised and the impact of day visitors be further examined.
184 The draft EIS contained recommendations in the section entitled “Aboriginal Heritage” to the effect that a comprehensive archaeological survey needed to be conducted for both the bridge area and the marina and waterfront development site. It stated that any consultations with the Aboriginal traditional owners and any anthropological study should be carried out by a suitably qualified and experienced anthropologist. On behalf of Binalong, Mr Chapman engaged Ms Vanessa Edmonds, an archaeologist, and Mr Rod Lucas, an anthropologist, to prepare the relevant reports in accordance with the recommendations in the draft EIS. Those reports were duly provided, following which Binalong prepared and lodged a supplement to the EIS. The supplement incorporated a reference to reports. In his report, Mr Lucas made five recommendations concerning the need for consultation in the future with Aboriginal people.
185 In March 1990 the Major Projects and Assessments Branch of the Department of Environment and Planning completed an assessment report in respect of the development proposal, and that report recommended that certain conditions be imposed on any approval of the development. The recom-mendation in the assessment report included a recommendation that the suggestions of Mr Lucas concerning consultation with Aboriginal people be imposed as a condition of any approval of the development proposal (sections 4.6 and 7.4 of the assessment report).
186 On 11 April 1990 the Minister for Environment and Planning notified Binalong that the Governor had granted consent (pursuant to s 51 of the Planning Act) for the construction of the bridge to Hindmarsh Island and for the proposed marina extensions and waterfront development to be constructed in six stages subject to a number of conditions (“the consent”). There were no conditions attached to the consent for the construction of the bridge. Conditions were attached to the consent for each stage of the development proposal including a condition requiring consultation with Aboriginal people. Clause 2(b) was as follows:
“2. Consent is granted to development outlined as Stage 1 of the project as detailed in the Section 51 application, dated March 1990 and held in Docket No 2116/88 and subject to the following conditions being fulfilled -
...
(b) The following recommendations on anthropological matters should be carried out by Binalong as follows.
Binalong should consult directly with the relevant Aboriginal representative bodies identified herein [ie. in the consent], 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.”
Condition 2(b) reflected the respective recommendations of Mr Lucas and those contained in the assessment report of the Major Projects and Assessment Branch. The consent for Stage 2 of the development proposal contained a condition that it could not proceed until the bridge was constructed.
187 On 12 April 1990 the Aboriginal Heritage Branch of the Department of Environment and Planning notified Binalong that an authorisation had been granted under the Aboriginal Heritage Act 1988 (SA) to establish the marina and 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) subject to the conditions set out in section 4.6 of the assessment report of the Major Projects and Assessment Branch (“the authorisation”). Section 4.6 refers to section 7.4 which contains the conditions which were subsequently imposed as conditions of the consent (ie., clause 2(b) above).
188 On 20 May 1991, Binalong notified the Aboriginal Heritage Branch that construction work had commenced in relation to Stage 1 of the marina development. In October 1991, the State Government assumed responsibility for the initial funding of the construction of the bridge. On 26 August 1992, the Minister for Environment and Planning advised Binalong that the Governor had granted an amended consent for Stages 2 to 6 of the development proposal.
189 The requirement that the ownership of the bridge, once complete, must vest in the local council resulted in Binalong’s financiers reviewing their position because it meant that Binalong could not provide security over the bridge. This difficulty was resolved by the execution on 22 March 1993 of a tripartite agreement between the Minister for Transport, the District Council of Port Elliot and Goolwa and Binalong whereby the Minister agreed to procure the construction of the bridge and roadworks. Pursuant to the tripartite agreement, Binalong would contribute to the cost of the construction of the bridge by way of a debt to the Minister but subject to certain priority payments to Binalong’s financier. Binalong’s financier was a subsidiary of Westpac Banking Corporation Limited (“Westpac”), Partnership Pacific Ltd.
190 On 21 May 1993 Mr Owen addressed the CCSA on behalf of a group known as the Friends of Hindmarsh Island. On 3 August 1993 the successor group to the Friends of Hindmarsh Island, namely, the Friends of Goolwa and Kumarangk, and the CCSA organised a public forum to discuss the development proposal. At about this time, a committee of the South Australian Parliament (the Environment Resources and Development Committee) was preparing a report in relation to the development proposal, and that report was tabled in Parliament on 9 September 1993. The State Government engaged a builder, Built Environs Pty Ltd, to build the bridge in September 1993. It is clear that by this time opposition to the construction of the bridge was growing and there was a public meeting of those opposed to the construction of the bridge at Goolwa on 8 October 1993.
191 On 27 October 1993 work on the bridge commenced. It stopped two days later after opponents of the bridge had formed a picket line at the site of the bridge.
192 On 11 December 1993 a State election was held and a Liberal Government replaced the previous Labor Government. On 20 December 1993, the Liberal Government appointed a retired Judge of this Court (the Honourable S Jacobs QC) to prepare a report which examined the nature and extent of the government’s obligations with respect to the construction of the bridge. The findings of Mr Jacobs QC were announced by the State government on 15 February 1994. The government announced that it would proceed with the construction of the bridge. Three of the publications which were initially in issue in these proceedings (Publication Nos 2, 3 and 4) were made in late February, early March 1994.
193 On 14 March 1994, Professor Shearman, on behalf of the CCSA, wrote a letter to the Chairman of Westpac. It seems that the State Government faced a substantial liability to Westpac if it did not carry out its contractual obligations in relation to the construction of the bridge. Professor Shearman said in the letter that he was writing to Westpac as a customer of the bank and as President of the CCSA. He sought to persuade Westpac not to proceed with action against the State government if the latter did not proceed with the construction of the bridge. If successful, this would have meant that the State government would be free to elect not to proceed with the construction of the bridge. In advancing arguments against the construction of the bridge, Professor Shearman referred to the interests of residents in the area, Aboriginal interests and environmental issues.
194 On 15 March 1994, Professor Shearman was interviewed on Adelaide radio. Professor Shearman made the point that it would not be in the interests of Westpac to support the development proposal. He said that Westpac did not have a good image in recent times, and that it may lose significant business if it continued to support the development proposal. He said that the CCSA wished to have discussions with Westpac. Again, he emphasised the environmental issues associated with the development proposal. He called for discussion with community representatives. He said that the CCSA was not going to be “involved in threats”.
195 Professor Shearman wrote a further letter to Westpac on 24 March 1994. On the same day, there was a rally against the proposed development on the steps of Parliament House. There is no doubt that by this time, whether the development should proceed and, in particular, whether the bridge should be constructed, had generated considerable public interest. A significant section of the community was opposed to the construction of the bridge.
196 On 29 March 1994, Binalong and another company, The Marina Services Co Pty Ltd, issued proceedings in the Federal Court of Australia against a number of parties who were seen by the applicants as impeding or likely to impede the carrying out of the development proposal. The parties included the CCSA, Ms Bolster, Professor Shearman, Friends of Goolwa and Kumarangk Inc and Mr Owen. The proceedings sought (relevantly) the following relief:
“1. A declaration that the respondents or each or any of them are in breach of s 45D of the Trade Practices Act and/or are a person or persons involved in a contravention of s 45D of the Act as referred to in s 75B of the Act.
2. Final and permanent orders under common law and also pursuant to s 80 of the Trade Practices Act in terms of the interlocutory relief sought herein.
3. Damages pursuant to s 82 of the Trade Practices Act for breach of s 45D of the Trade Practices Act or alternatively for being involved in a contravention of s 45D of the Trade Practices Act.
4. Damages for unlawful interference with business.
5. Damages for interference with contractual relations.
6. Damages for inducement to breach contract.”
197 The applicants sought interlocutory relief including orders preventing the respondents from hindering or preventing Westpac or Partnership Pacific Ltd from providing banking services to the applicants and from hindering or preventing the Minister of Transport and/or its contractor, Built Environs Pty Ltd, from providing services to the applicants being the construction of Hindmarsh Island Bridge and a water main. On the same day, a Judge of the Federal Court (O’Loughlin J) granted interim injunctions against the respondents.
198 On 15 April 1994, Westpac appointed Receivers and Managers to Binalong. No doubt the delay in the carrying out of the proposed development contributed to, if not caused, Binalong’s financial difficulties.
199 On 19 April 1994, a Judge of the Federal Court (Heerey J) discharged the interim injunctions against the CCSA, Ms Bolster and Professor Shearman, but the injunctions against the other respondents including the Friends of Goolwa and Kumarangk Inc were continued.
200 On 22 and 27 April 1994, the solicitors for the directors of Binalong wrote to approximately 35 persons who had been identified by the directors as persons who had been involved in attempts to stop the construction of the bridge. The letters stated that Binalong had a claim against each person for interference in contractual relations, including breach of contract and unlawful interference with trade. The letter asserted that the recipient of the letter had caused enormous losses to be sustained by Binalong. The letter states:
“3. If the bridge is not built, Binalong will suffer further loss, namely –
- The loss of $32 million being the current projected profit to be earned on future development of Binalong’s marina and
- A loss, probably exceeding $15 million, in the finance costs incurred by Binalong but not recouped.
4. This conduct of yourself and others has also resulted in Binalong being put into receivership. This may result in the development being sold at a ‘fire sale’ price.
You will appreciate that, if this occurs, Binalong will have claims of the magnitude referred to above even if the bridge is built.”
201 On 11 May 1994, work on the bridge recommenced. On the following day, the Federal Minister for Aboriginal Affairs issued a declaration pursuant to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (“the Heritage Act”) prohibiting construction of the bridge for 30 days. This period was extended for a further 30 day period. It seems the declaration resulted from an application by the Lower Murray Aboriginal Heritage Committee. On 23 May 1994, the Minister appointed Professor C Saunders to prepare a report pursuant to the Heritage Act.
202 In May/June 1994, the CCSA published Environment SA which contained an article entitled “Hindmarsh Island (Kumarangk) ... Update”. This article was referred to in the proceedings as Publication No 5.
203 On 7 July 1994, Professor Saunders delivered her report to the Federal Minister for Aboriginal Affairs, and on 9 July 1994, the Minister made a declaration pursuant to s 10 of the Heritage Act preventing the construction of the bridge for a period of 25 years. On 22 July 1994, Mr and Mrs Chapman commenced an action in the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) seeking an order that the declaration made by the Minister was invalid. Mrs Chapman gave evidence in that action in December 1994.
204 On 8 August 1994, an order was made placing Binalong in liquidation.
205 In September/October 1994, Publication No 6 appeared in Environment SA. Publication No 6 reads as follows:
“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 Heerey 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”
206 In November/December 1994, Publication No 7 appeared in Environment SA. Publication No 7 reads as follows:
“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”
207 On 8 June 1995, the State Government announced the establishment of a Royal Commission to inquire into claims that allegations by Ngarrindjeri women concerning the spiritual and cultural significance of sites on or related to Hindmarsh Island had been fabricated.
208 Three other publications which were initially in issue in these proceedings (Publication Nos 8, 9 and 10) were made between April and June 1995.
209 On 19 July 1995, the Royal Commission commenced hearing submissions and evidence.
210 In July/September 1995, Publication No 11 appeared in Environment SA. Publication No 11 read as follows:
“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 (sic) 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 any 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 (sic) 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 the 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”
211 The side note appeared near to that part of the publication which refers to consultation with Aboriginal groups.
212 On 7 December 1995, the Full Court of the Federal Court dismissed an appeal by the Federal Minister for Aboriginal Affairs against the decision of O’Loughlin J in the action under the ADJR Act setting aside the 25 year ban on the construction of the bridge to Hindmarsh Island. On 19 December 1995 the Federal Minister announced that a fresh application had been received pursuant to the Heritage Act and that a report in relation to the application would be obtained. On 21 December 1995, the report of the Royal Commission was released, and the Premier of South Australia announced that work on the construction of the bridge would recommence.
213 It is clear from the evidence placed before the Judge that the campaign by those in favour and those against the construction of the bridge was a long and protracted one. It is also clear that many different points of view were expressed by a large number of people.
214 It is necessary to look at the facts in relation to the planning process in a little more detail in view of the issues that arise in relation to Publication No 11. In 1988, an application was lodged with the South Australian Planning Commission for the further development of the marina at Goolwa. On 19 December 1988, notice was given to adjoining landowners of an application to develop 813 new allotments, and for marina and commercial, retail and residential development. On 2 February 1989, Binalong’s application for development was forwarded to Mr Henry Rankine at the Point Macleay Community Council for comment. As I have said, on 21 April 1989, the Department of Environment and Planning, Major Projects and Assessments Branch, wrote a letter to Binalong raising the question of access to Hindmarsh Island, and on 26 October 1989, the Minister for Environment and Planning wrote to Binalong advising it that the State Cabinet had approved the construction of the bridge to Hindmarsh Island subject to a satisfactory EIS and other conditions. In early November 1989, notices were published inviting public comment in relation to the draft EIS prepared by Binalong. By letter dated 12 January 1990, the Department of Environment and Planning advised Binalong that further investigations were required for the purpose of determining an application under s 12 of the Aboriginal Heritage Act. By notice published in the Government Gazette on 29 March 1990, Executive Council gave notice pursuant to s 50(1) of the Planning Act 1982 that Part 5 Division 3 of the Act applied to Binalong’s application. I have already referred to the consent granted by the Governor on 11 April 1990 and the authorisation granted by the Aboriginal Heritage Branch on 12 April 1990.
215 I have already referred to the fact that on 26 August 1992 the Minister for Environment and Planning, advised Binalong that the Governor had granted an amended consent for Stages 2 to 6 of the development proposal and that the tripartite agreement was executed on 31 March 1993. On 22 April 1993, the Governor granted a further amended consent for Stages 2 – 6 of the development proposal and on 13 July 1993 the Governor granted a yet further amended consent for Stages 2 – 6. The last mentioned consent amended the previous consent by (inter alia) replacing the condition which required the bridge to be complete to “practical completion” before Stage 2 of the development proposal could be commenced with a condition which provided that Binalong could commence Stage 2 after the “substantial commencement” of the construction of the bridge.
The Judge’s Findings and Reasons
Publication No 6
216 Publication No 6 was written by Professor Shearman and published by the CCSA. The words in Publication No 6 which were alleged to be defamatory were as follows:
“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 s 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 ...”
217 The Judge found that the words were defamatory of Mrs Chapman only. The Judge found that the words gave rise to the imputation 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.”
218 The appellants faintly argued that the Judge erred in finding that the above imputation arose from the words and that the imputation was defamatory of Mrs Chapman.
219 The appellants had pleaded that insofar as the said words gave rise to the imputation that the respondents had silenced the appellants from expressing valid concerns on the bridge by legal process, that imputation was true in substance and in fact. The Judge said that this pleading raised a false issue because the imputation he found related to the respondents’ purpose not the effect of their actions. The Judge did not consider that the defence of justification in relation to the imputation found by him was properly raised upon a fair reading of the pleadings and he said that this conclusion was confirmed by the appellants’ counsel. On appeal, the appellants did not seek to argue that the imputation found by the Judge was justified.
220 The Judge found that the publication occurred on an occasion of qualified privilege in the traditional sense. I will refer to this privilege as traditional qualified privilege and it is to be distinguished from the extended defence (see below). The Judge noted that in the ordinary case the media could not take the benefit of traditional qualified privilege because publication by the media is to such a wide audience. He referred to Morosi v Mirror Newspapers [1977] 2 NSWLR 749. However, there are exceptional cases where the relevant duty and interest or reciprocal interests exist (Loveday v Sun Newspapers Ltd and Anor [1938] HCA 28; (1938) 59 CLR 503 per Dixon J at 525). The Judge found that Publication No 6 was an exceptional case. As I have said, the respondents have not filed a Notice of Alternative Contentions, and this conclusion of the Judge is not challenged. The Judge found that the respondents had made it clear that any person who unlawfully interfered with the construction of the bridge could face legal proceedings. It was this conduct which created the occasion of qualified privilege in that Professor Shearman was entitled to advise members of the conservation movement of the limits of the law. The Judge found that Professor Shearman had an interest in providing advice to members of the conservation movement as to the legal difficulties facing those members who chose to carry their protests to the point where they intentionally interfered with commercial contracts, and that those members had a reciprocal interest in receiving such advice. The Judge said that it was appropriate to refer to the proceedings in the Federal Court in order to explain the point. However, the Judge found that the defamatory material was not published for the purpose of the privilege, and therefore, malice on the part of Professor Shearman defeated the claim for traditional qualified privilege. The Judge found that the dominant motive of Professor Shearman in writing the publication was to damage the standing of Mr and Mrs Chapman in order to influence them and others to withdraw support for the building of the bridge to Hindmarsh Island. He found that the conduct of Professor Shearman was part of an orchestrated campaign to “target” and attack the interests of Mr and Mrs Chapman and to influence public opinion against the State government and others who were interested in the contract to build the bridge. In making his finding of malice against Professor Shearman, the Judge relied on the following matters:
1. The matters referred to in Publication No 6 make it clear that Professor Shearman knew that comment on the bridge issue was not necessarily prevented, but he nevertheless chose to assert a loss of freedom of speech by the less well informed. The Judge said that standing by itself, this matter would not be a sufficient basis from which to infer malice, but that it could be considered with other evidence.
2. Professor Shearman’s letter to Westpac dated 14 March 1994 contained a veiled threat, and was made available to the media for the purpose of applying pressure to Westpac.
3. Professor Shearman’s interview on the Adelaide radio station on 15 March 1994 contained statements whereby he confirmed that his letter was intended to put pressure on Westpac, although he said that the CCSA was not going to be involved in threats.
4. Professor Shearman made a speech to an environmental law seminar held at the Adelaide University on 8 May 1994 during which he identified the need to target developers and their financiers. Publication No 6, and the President’s message in Publication No 7 are based on this speech. The strong sentiments expressed in the speech were present at the time he wrote Publication No 6.
In his speech, Professor Shearman referred to the controversy associated with the bridge, and to the proceedings in the Federal Court. He referred to Associate Professor Stewart’s comments on intentional interference with contracts. He referred to the letters dated 22 April and 27 April 1994 to the 35 persons. He concluded by asking the question of what are the lessons for the conservation movement from the various events. In answering that question, he referred to the need for the conservation movement to improve its effectiveness to counter developers, the corporate sector, multinationals and governments who damage the environment and use the law to protect themselves. He referred to the need for the conservation movement to have legal advice. He referred to the need for the conservation movement to go further and “to be able to define our corporate targets, inform the public of their products and let our thousands of members have an impact”. He referred to the need to have an impact on specific areas of the financial community. In this particular context, he referred to a person’s ability to object to the use of that person’s superannuation funds in tobacco companies and for the purpose of investing in mining companies.
5. Publication No 6 made it clear that Professor Shearman had been properly advised as to the effect of the injunctions, but he nevertheless chose to misrepresent the legal constraints in what might be regarded as a mischievous fashion. The Judge said that Professor Shearman knew that the publication was unjust. I think that this point is the same point as that referred to in paragraph 1 above, although expressed in slightly different terms.
6. Professor Shearman gave unsatisfactory explanations in the witness box. The Judge gives as an example, Professor Shearman’s unwillingness in the witness box to acknowledge the obvious connection between Westpac and Mr and Mrs Chapman as motivating his approach to Westpac.
7. The Judge said that Professor Shearman participated to a limited extent in the campaign conducted by Mr Owen. I will outline the Judge’s findings as to the campaign conducted by Mr Owen in due course. It is enough to say at this point that I have been unable to identify any findings by the Judge whereby he clearly identifies Professor Shearman’s involvement in the campaign.
221 In addition to the above matters, the Judge made a finding as to Professor Shearman’s state of mind when he wrote Publication No 6. He said that Professor Shearman was prepared to make statements in respect of which he did not have an honest belief.
222 The Judge analysed the evidence Professor Shearman gave at trial. The Judge referred to Professor Shearman’s evidence that the CCSA does not do anything which “involves playing people rather than the ball”. The Judge found that Professor Shearman, in his letter to Westpac dated 14 March 1994 and in Publication No 6, was, as the Judge put it, “playing people rather than the ball”. The Judge found that Professor Shearman wrote Publication No 6 intending to refer to Mr and Mrs Chapman and for it to reflect badly upon them. The Judge said that Professor Shearman’s state of mind and his purpose in approving the article for publication could be distilled from an examination of the whole of his seminar speech of May 1994 in conjunction with his evidence at the trial.
223 The Judge found that when Professor Shearman wrote his letter to Westpac dated 14 March 1994 he was aware that he was trying to apply pressure by way of a veiled threat to Binalong’s banker. He rejected Professor Shearman’s evidence that at that time he did not know that Westpac was Binalong’s banker. The Judge found that when Professor Shearman wrote his seminar speech he was still “smarting” from the interim injunction granted by the Federal Court and his knowledge of the letters of demand dated 22 and 27 April 1994. The Judge said that Professor Shearman refused to accept the limitations of the law which he finds irksome.
224 In his seminar speech, Professor Shearman referred to the possibility of putting his interest in his house into his wife’s name. The Judge found that Professor Shearman made this statement tongue in cheek. However, the Judge noted that Professor Shearman did in fact transfer his interest in his house into his wife’s name on 10 December 1997, and he said that -
“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”.
225 The Judge found that the overall thrust of the evidence was that Professor Shearman intended to continue to target the Chapman development and continue the campaign upon which he had embarked. He found that Professor Shearman targeted Mr and Mrs Chapman and that he did so to intimidate them and thereby to compel them to desist from a commercial undertaking. The Judge said that the inferences he could draw from the circumstances surrounding the relevant events was better evidence of Professor Shearman’s state of mind at the time than Professor Shearman’s evidence in the witness box.
226 The appellants challenge the Judge’s finding that in writing Publication No 6 Professor Shearman was actuated by malice.
227 The Judge held that the publication did not fall within the scope of qualified privilege in the extended sense. The Judge referred to this as the Lange defence (Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520). I will refer to it as the extended defence. The Judge found that the topic was not one to which the extended defence applied. He also found that Professor Shearman’s conduct was not reasonable and that, in any event, the defence would be defeated by the presence of malice. The appellants challenge each of these conclusions.
228 The Judge held that the words were not fair comment on a matter of public interest. The Judge found that insofar as the words involved an expression of opinion, they were actuated by malice. He said that any matter of comment was not fair. The Judge found that there was no proper factual basis for any expression of opinion. The appellants challenge each of these conclusions.
229 The Judge found that the CCSA and Professor Shearman were liable to Mrs Chapman and he awarded her $20,000 in damages.
Publication No 7
230 Publication No 7 was written by Ms Bolster and Mr Owen and was published by the CCSA.
231 The words in Publication No 7 which were alleged to be defamatory were as follows:
“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?”
232 The Judge found that these words gave rise to the following imputation:
“That with respect to the right of freedom of speech upon the bridge issue, Mr and Mrs Chapman are oppressing the ordinary citizens of Goolwa.”
233 The appellants submitted that the reference to the “boot of Binalong” was no more than a vigorous epithet and was not defamatory.
234 The appellants pleaded that insofar as the proper imputation from the words was that the plaintiff had caused the people to be intimidated by legal proceedings, or the threat of legal proceedings, such an imputation was justified. The Judge said that the appellants had avoided joining issue with the respondents and their false plea should be treated as having no force. On appeal, the appellants did not submit that the imputation found by the Judge was justified.
235 The Judge held that unlike Publication No 6, Publication No 7 did not occur on an occasion of traditional qualified privilege. The Judge said that the occasion of the publication was not one upon which information needed to be conveyed to the world at large, and he characterised the publication as “merely a one-sided progress report ... of a civil action”. The Judge said that Publication No 7 was an attempt to reinforce in the minds of the subscribers of the magazine the impressions left by a publication by the Australian Broadcasting Commission on 27 April 1994 and by Publication No 6. The appellants did not appeal against the Judge’s decision in relation to traditional qualified privilege. In case this was an oversight on the part of the appellants, I make the observation that I do not think the words were spoken on an occasion of traditional qualified privilege and I refer to my reasons for rejecting the defence in relation to Publication No 11.
236 The Judge held that the communication was not on a government or political matter and therefore the extended defence did not arise. Furthermore, he held that the conduct of Ms Bolster and Mr Owen in making the publication was not reasonable. The Judge held that even if these two matters had been established, Ms Bolster and Mr Owen were actuated by malice and that defeated the extended defence.
237 The Judge found that Ms Bolster was actuated by malice in relation to both Publication No 7 and Publication No 11. He relied on a number of matters in relation to both publications. The matters he relied on are as follows:
1. The use of Senator Teague’s middle name (Chapman) in Publication No 7. Senator Tickner is also referred to in the publication but his middle name is not used. The use of the phrase “boot of Binalong” was some evidence of Ms Bolster’s state of mind.
2. Ms Bolster’s knowledge of what Mrs Chapman had said in her evidence before the Federal Court as referred to in Publication No 11.
3. Ms Bolster’s approval of the marina development in her evidence, but her criticism of it in the articles which she wrote.
4. Ms Bolster’s participation in a campaign which relied upon coercion for its success. I will describe the campaign when I come to consider the evidence of Mr Owen.
5. Ms Bolster’s participation in (as the Judge put it) “covering up” the affairs of the Kumarangk Coalition.
238 In addition to the above matters, the Judge made a finding as to Ms Bolster’s state of mind when she wrote Publication No 7 and authorised Publication No 11. He said that Ms Bolster was prepared to make statements in respect of which she did not have an honest belief.
239 The Judge analysed the evidence Ms Bolster gave at trial. He said that she demonstrated an ability to recall and recount events until questions were asked about an organisation called the “Kumarangk Coalition”. Publication No 11 was published by Ms Bolster as editor of the magazine over the name of the Kumarangk Coalition, but, the Judge said, Ms Bolster expressed herself as being unable to answer certain questions which he found were within her knowledge. He cited a passage of her evidence in cross-examination which culminated in the following question and answer:
“Q I put to you that you know perfectly well the names of people in the Kumarangk Coalition and you are being evasive.
- You may be right.”
240 That evidence was given on a Friday. On the following Monday, Ms Bolster said:
“... the reason I hesitated on Friday, Mr Meyer, I know you have been trying to get the Kumarangk Coalition to court and naturally my 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.”
241 Ms Bolster then identified Ms Denise Noack as the person who had written Publication No 11.
242 The Judge said that Ms Bolster had allowed herself to be swept along by the force of Mr Owen’s dominant personality. She allowed herself to be carried along with the tide of protest Mr Owen had generated.
243 In making his finding of malice against Mr Owen, the Judge relied on the following matters:
1. The use of Senator Teague’s middle name (Chapman) in Publication No 6. Senator Tickner is also referred to in the publication but his middle name is not used. The use of the phrase “boot of Binalong” was some evidence of Mr Owen’s state of mind.
2. Mr Owen’s willingness 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. The first comment seems to be a reference to Mr Owen’s participation in the picket line at the bridge site on 27/28 October 1993.
3. Mr Owen’s participation in the affairs of the Kumarangk Coalition.
4. Mr Owen’s publication of material which he knew to be untrue of and concerning the Chapmans as part of the “struggle”.
5. Mr Owen’s conduct of a campaign which relied upon coercion for its success. I will describe the campaign shortly.
244 The Judge analysed the evidence Mr Owen gave at trial. He said that Mr Owen was an intelligent man who had an appreciation as to what the cross-examiner could and could not prove by other evidence, and that he tailored his evidence accordingly.
245 The Judge said that he disbelieved Mr Owen’s crucial evidence as to his lack of memory about the origins of the Kumarangk Coalition. He said that he thought that Mr Owen could have told him a lot more about the Kumarangk Coalition and its method of operation than he did.
246 On 26 May 1994, Mr Owen assigned his interest in a property on Hindmarsh Island to his wife, although he continued to use the property. The Judge found that Mr Owen’s evidence of his reasons for carrying out the transaction were unsatisfactory. The Judge found that Mr Owen intended to pursue his campaign, and that he transferred his interest in the property because of concerns which either he or his wife had as to the possible financial consequences of doing so. The Judge noted in this context, evidence of steps taken at about this time to adopt the name, Kumarangk Coalition, and its underground activities so as to provide some comfort to those who made use of the name and method of operation.
247 The Judge found that Mr Owen gave what he regarded as deliberately vague answers when it suited him. He gave examples. The Judge disbelieved Mr Owen’s evidence as to how correspondence addressed to the Kumarangk Coalition at 120 Wakefield Street, Adelaide (CCSA’s address) found its way to the Coalition. The Judge found that there was an element of self-interest in Mr Owen’s approach. He said that although Mr Owen had based his anti-bridge case on public interest grounds, he was satisfied that Mr Owen had not overlooked the personal advantages to the shack owners if the bridge was not built.
248 The Judge said that there were environmental problems associated with the maintenance of the waterfront shacks, and in particular, problems with effluent disposal when septic tanks do not function properly. The Judge said that when the question of effluent disposal was raised with Mr Owen in cross-examination, he observed Mr Owen to be uncomfortable. The Judge noted that Mr Owen was invited by Mrs Chapman to inspect the woodlot effluent disposal system planned for the development. Mr Owen declined the invitation as “inappropriate”. The Judge said he was puzzled by Mr Owen’s response until he realised that Mr Owen had no real interest in being properly briefed as to the true state of the Binalong development and that he was only interested in scoring points in a public relations exercise. That was his state of mind at the time Publication No 7 was prepared. The Judge said he was surprised that Mr Owen did not appreciate the significance of the proposed trust fund referred to in the draft EIS. The proposal was that a trust fund would be established to acquire properties (including Mr Owen’s property) in a conservation zone on Hindmarsh Island.
249 As with Professor Shearman, the Judge found that Ms Bolster and Mr Owen targeted Mr and Mrs Chapman to intimidate and thereby compel the promoters of the bridge project to desist from a commercial undertaking, and to that end, Ms Bolster and Mr Owen were prepared to make statements in respect of which they did not have an honest belief. The campaign was one based upon attempted coercion.
250 I turn now to the Judge’s findings with respect to the campaign. It is necessary to set out the Judge’s findings at some length because one of the submissions made by the appellants is that the respondents’ case on malice travelled well beyond the pleadings.
251 The Judge found that Mr Owen was at the forefront of a campaign to stop the development which would be associated with the construction of the bridge between the mainland at Goolwa and Hindmarsh Island. He found that Mr Owen and others chose to oppose the decision of an elected government. The Judge said that the 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 not to proceed. The Judge found that a significant feature of the campaign was an attempt to coerce, and that this was necessarily different from what the Judge called a “normal political lobby”. The Judge found that the campaign did include a successful attempt to invoke Federal law, and that to this extent, what the Judge called a “proper lobbying situation” could be identified. That aspect of the campaign (said the Judge) must be separated from steps which were designed merely to hurt Mr and Mrs Chapman, or those building the bridge, including the State government. The Judge said that the campaign developed as time went on. It was an environmental campaign in 1993. Aboriginal issues had been added by January 1994, and civil liberties were added after April 1994.
252 The Judge said that Mr Owen was a clever man who has literacy skills as a wordsmith. The Judge said that Mr Owen’s writings showed that he was ready to take his assertions to the very limits of the truth, but he was also prepared to go beyond that point. He referred to a letter from Mr Owen dated 21 December 1994 to the District Council of Port Elliot and Goolwa. Mr Owen was prepared to brand the conduct of Mr and Mrs Chapman as “criminal” when it suited his purpose.
253 The Judge found that in 1993, Mr Owen became associated with a group of people who were opposed to the construction of the bridge. That group was originally known as Friends of Hindmarsh Island and later became the Friends of Goolwa and Kumarangk. That body was incorporated in 1994. It is to be distinguished from the Kumarangk Coalition which was an unincorporated group of persons. The Judge outlined Mr Owen’s involvement with the anti-bridge lobby, and the approach he made to the CCSA for its support. The Judge found that Mr Owen acted as the public face of the Kumarangk Coalition. The Judge found that Mr Owen went in search of arguments justifying opposition to the bridge, but he also looked to see how those involved with the bridge could be “targeted”. The Judge clearly distinguished between Mr Owen’s efforts as part of a “proper lobbying situation” and his efforts in the campaign to hurt Mr and Mrs Chapman and those responsible for building the bridge.
254 The Judge found that it was Mr Owen who inspired the decision of the CCSA in 1993 to oppose the building of the bridge. The CCSA had given qualified written approval to the development proposal at the time the EIS was submitted for public comment.
255 The Judge criticised Mr Owen on the ground that he did not seem to know where to “draw the line” in the promotion of his cause. There was an element of Mr Owen’s campaign which the Judge thought was “ugly”. The Judge said:
“ ... 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.”
256 The Judge found that the respondents had proved the campaign (as he described it) and Mr Owen’s involvement in it. The Judge found that Mr Owen was prepared to seek an improper advantage in any way possible and to “target” Mr and Mrs Chapman as part of this scheme. The following findings are a very important part of the Judge’s reasons for concluding that Mr Owen (and, to the extent the Judge found they were involved, Professor Shearman and Ms Bolster) were actuated by malice:
“The course of conduct (and particularly the ‘underground activity’ of the Kumarangk Coalition) coupled with Mr Owen’s acknowledgment in his evidence that he would resort to civil disobedience is relied upon as circumstantial evidence which I find 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 ...
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.”
257 The Judge found that Mr Owen’s actions show that from about early 1994 the organisation with which he was associated set about trying to persuade Mr and Mrs Chapman to change their minds.
258 On 2 December 1993, Mr Milera, the secretary of the Lower Murray Aboriginal Heritage Committee, wrote to the Federal Minister for Aboriginal Affairs seeking an appointment under the Heritage Act. On 15 December 1993, Mr Milera wrote a letter to the incoming Premier. Despite Mr Owen’s denials, the Judge found that he composed these two letters.
259 Mr Milera’s wife was a guest of the CCSA at a meeting on 13 March 1995. Ms Bolster, as minute secretary, noted that Mrs Milera made a remark to the following effect:
“We see the wearing down of Wendy Chapman – not much left to go.”
260 The Judge rejected Ms Bolster’s denial that she recorded this comment. He said the remark was significant in terms of the identification of the reach of Mr Owen’s campaign and his sphere of influence. He said that the fact that Ms Bolster selected this particular remark for her record was a telling piece of evidence.
261 The Judge discussed the evolution of the group known as the Kumarangk Coalition. The Judge found that Mr Owen knew a lot more about the origins of the Kumarangk Coalition and its operations than he was prepared to say in his evidence, and that both Mr Owen and Ms Bolster gave less than truthful evidence on this topic. The Judge found that the 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 conduct. The Judge inferred that the device must have been intended to lessen the likelihood that those involved in anti-bridge protest could be dealt with by way of aiding and abetting the breach of any injunction and thus provide them with some measure of comfort. The Judge found that Mr Owen gave unsatisfactory evidence as to how he ceased his involvement with the Kumarangk Coalition in 1998. The Judge found that Mr Owen’s inability to remember crucial details was due to the fact that he was hiding his knowledge.
262 The appellants challenge each of the reasons the Judge gave for rejecting the extended defence.
263 The Judge rejected the appellants’ plea of fair comment in the public interest on the ground that no fair-minded person could express the opinion on the proved facts. The appellants challenge this conclusion.
264 The Judge found that the CCSA, Ms Bolster and Mr Owen were liable to Mr and Mrs Chapman and he awarded each of them $25,000 in damages.
Publication No 11
265 Publication No 11 was published by the CCSA. The Judge found that the writer of the publication was Ms Noack, but there was no evidence as to whether she wrote the publication of her own volition or whether she acted at the instigation of Ms Bolster or some other person. The Judge said that he was inclined to draw the inference that it was Ms Bolster who attributed the publication to the Kumarangk Coalition. The Judge said that the appellants’ arguments were presented on the footing, which was probably correct, that the statement made in the publication was one made by Ms Bolster as editor. In considering the extended defence the Judge considered Ms Bolster’s conduct and state of mind in deciding the issues of reasonableness and malice. I did not understand either the appellants or the respondents to challenge that approach.
266 The words in Publication No 11 which were alleged to be defamatory were as follows:
“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.”
267 The Judge found that the said words gave rise to the following imputations:
“During the planning process for the bridge Mr and Mrs 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.”
268 The Judge said that there were two related complaints in the two sentences of the relevant paragraph. The Judge rejected an argument by the appellants that the first sentence (as to token consultation) stood alone. The Judge considered that the paragraph was dealing with the topic of bridge building and with conduct of the developers during the planning process and conduct after planning approval had been granted. The Judge said that the general topic under examination was the extent of consultation with Aboriginal groups or organisations at different times. The Judge said that it was asserted that the consultation by Mr and Mrs Chapman was token during the planning process, and was non-existent thereafter (as relevant to the building of the bridge) despite a legal requirement imposed upon Mr and Mrs Chapman in that regard. The Judge said that it was alleged that Mrs Chapman made an admission in the Federal Court in respect of the last mentioned allegation.
269 The imputations set out above are taken from a summary of the relevant imputations in paragraph 77 of the Judge’s reasons. In a paragraph later in his reasons (paragraph 327), the Judge described the imputations in relation to Publication No 11 in the following terms:
“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.”
270 There are differences between paragraphs 77 and 327 in terms of the way in which the Judge has described the imputations, particularly the second imputation. However, the Judge made it clear in his conclusions (paragraph 345) that the imputations he found were those identified in paragraph 77 and I proceed on that basis.
271 The Judge noted that the appellants had pleaded justification insofar as the words gave rise to an imputation that the respondents had failed properly to consult with Aboriginal people during the planning process. He noted that this plea was not limited to the planning process for the bridge. The Judge said:
“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.”
272 The Judge went on to note that the appellants did not assert that Mrs Chapman made an admission in the Federal Court as alleged in the publication, nor did they plead that any breach of condition attaching to the building of the bridge was committed by Mr or Mrs Chapman. The Judge said that he did not consider that upon a fair reading of the pleadings a defence of justification was properly raised. He said that that conclusion was confirmed by the appellants’ counsel. However, he said that it had not been difficult for the appellants to canvass these topics in the course of presenting the extended defence. The appellants had put a case which alleged some breach of the planning process with respect to the bridge and they had been afforded a full opportunity to present the case of their choice and the respondents had not been disadvantaged in any substantial way.
273 The Judge rejected an application made by the appellants towards the end of the trial to amend their pleadings to plead justification with respect to a specific imputation raised by the respondents.
274 In the course of his reasons, the Judge did make findings about the extent to which the imputations were correct. The Judge found that there was no basis for the assertion that the consultation with Aboriginal interests concerning planning for the bridge was token. The Judge said that there may have been no difficulties for the appellants had the assertion been that the consultation was not comprehensive. The Judge referred to the consultation which had taken place, and in particular, he referred to consultation undertaken by Mr Rod Lucas, consultation undertaken by Mr and Mrs Chapman and their representative Ms Nadia McLaren, and the consultation undertaken by Ms Edmonds. With respect to the second imputation, the Judge found that there was no condition attached to the building of the bridge which required consultation with Aboriginal interests. Nor was anything said by Mrs Chapman in the Federal Court which could be described as an admission. The Judge observed that the appellants may have been on firmer ground had they criticised the procedures adopted in connection with the building of Stage 1 of the marina project.
275 The Judge found that the imputations he identified were defamatory of the respondents.
276 The appellants submitted that the Judge’s findings as to the relevant imputations were unduly and unnecessarily specific. The Judge should have found that the imputation was a more general one. If he had done so, he would not have found that the imputation was defamatory of the respondents or, in the alternative, the Judge would have found that the defence of justification had been made out. Alternatively, the appellants submitted that the imputations found by the Judge were not defamatory of the respondents or, if this be wrong, the defence of justification was made out because the substance or “sting” of the imputations was true.
277 The Judge found that the publication had not occurred on an occasion of traditional qualified privilege. The publication was circulated to too wide an audience. The appellants challenge that conclusion.
278 The Judge said that the publication was potentially within the protection of the extended defence because the operation of the State planning laws was a matter which was properly characterised as a topic concerning (to use the Judge’s words) “government and political matters that affect the people of Australia”. The Judge said that each member of the community had an interest in disseminating and receiving information, opinions and arguments on this subject. The respondents have not filed a Notice of Alternative Contentions and this conclusion of the Judge is not challenged. However, the Judge found that the conduct of the CCSA and Ms Bolster was not reasonable in all the circumstances of the case. He did not consider that anyone who was responsible for Publication No 11 had reasonable grounds for believing the imputations to be true, nor was any proper step taken to verify the accuracy of the information. The Judge found that 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”. The Judge said that Ms Bolster was at least recklessly indifferent as to whether the material was truthful and accurate. He found that the publication was actuated by malice. The Judge found that the publication failed to satisfy the conditions identified by the High Court in Lange and, in any event, common law malice independently would destroy the defence even if the other requirements were treated as being satisfied. The Judge found that Ms Bolster, as editor, published the article over the name of the Kumarangk Coalition believing that the article had shortcomings which were likely to lead to litigation at the suit of Mr and Mrs Chapman and that she knew that the writer of the publication (Ms Noack) did not want her name associated with the publication for this reason. The Judge said that the use of the name Kumarangk Coalition in the particular circumstances was indicative of a lack of bona fides. It seems that in inferring malice on the part of Ms Bolster the Judge relied on the above matters and the evidence I have identified in connection with Publication No 7. The appellants challenge the Judge’s conclusion that Publication No 11 was not protected by the extended defence.
279 Although it was not pleaded in relation to Publication No 11, the Judge considered the defence of fair comment in the public interest. He said that the relevant words were statements of fact. If they were regarded as comment, the Judge said that he would hold that no fair-minded person could honestly express the opinion on the proved facts. The appellants did not argue on appeal that Publication No 11 was protected by the defence of fair comment.
280 The Judge found that the CCSA was liable to Mr and Mrs Chapman and he awarded each of them $30,000 in damages. The appellants argued on appeal that the award of damages in relation to Publication No 11 was manifestly excessive.
Arguments on Appeal
Publication No 6
Imputations and Defamatory Meaning
281 The appellants argued, somewhat faintly, that the Judge erred in finding that the said words gave rise to an imputation relating to Mrs Chapman’s purpose in causing legal proceedings to be instituted and letters to be written. The appellants argued that the imputation which arose related to the effect of Mrs Chapman’s conduct, not the reason for which it was undertaken. They referred to the decision of the Full Court of this Court in Chapman and Chapman v Australian Broadcasting Corporation [2000] SASC 146; (2000) 77 SASR 181. I do not think it is necessary to refer to that decision in any detail. The passages in the reasons for judgment of Lander J identified by the appellants contain no statements of general principle. Lander J identifies the imputations which arose from the particular words under consideration in that case. The words under consideration in this case are different.
282 I reject the appellants’ submission. I do not think the Judge erred in finding that the imputation which arose related to Mrs Chapman’s purpose. The words,
“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 environment groups, consumer groups and legitimate viewpoints being put from the community ...”
support the Judge’s conclusions that the imputation which arose related to Mrs Chapman’s purpose.
283 The appellants argued, again somewhat faintly, that the Judge erred in holding that the imputation was defamatory of Mrs Chapman. The test for determining if words are defamatory of a person is whether the words would lower the person in the estimation of right-thinking members of society generally (Sim v Stretch (1936) 52 TLR 669 per Lord Atkin at 671; Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 per Brennan J at 505 – 506). I do not think that the Judge erred in finding that the imputation he identified had that effect.
Traditional Qualified Privilege and the Extended Defence
284 The appellants argued that the Judge erred in finding that Professor Shearman was actuated by malice thereby defeating traditional qualified privilege.
285 The appellants also argued that the Judge erred in finding that Publication No 6 did not occur on an occasion giving rise to the extended defence, that Professor Shearman’s conduct was not reasonable and that the extended defence would in any event be defeated by the presence of malice.
286 It is convenient before considering the challenge to the Judge’s finding of malice for the purposes of traditional qualified privilege and the extended defence to consider the issue of whether the Judge erred in holding that Publication No 6 was not a communication on a government or political matter for the purposes of the extended defence.
287 A communication about the conduct of candidates for, and elected representatives of, Commonwealth, State, Territory or local governments is a communication about a government or political matter. A communication about the conduct of those governments (including statutory authorities and public utilities who are obliged to report to the legislature or to a Minister who is responsible to the legislature) is also a communication about a government or political matter (Lange). In Lange, the High Court said a communication about the acts of the United Nations or other countries may also be a communication about a government or political matter. It is not clear how far the principle extends beyond these circumstances. Various State Courts have considered the question.
288 In Heytesbury Holdings v City of Subiaco (1998) 19 WAR 440, Steytler J of the Supreme Court of Western Australia considered whether a communication by the Mayor of a local government authority about the conduct of a corporate ratepayer and tenant within the council area was a communication on a government or political matter. The communication was made in the course of a dispute between the authority and the company with respect to the authority’s entitlement to the payment of rent and rates. Steytler J made two observations with which I respectfully agree. First, he said that it is the nature of the discussion, rather than the office or function of the person publishing the words in question which is important. Secondly, he said that the mere fact that a statement is published in the context of a discussion about government and political matters will not necessarily give it that character and that much might depend on the particular circumstances. In the result, his Honour held that the words in question were not published in respect of government and political matters affecting the people of Australia, but rather “they amounted to no more than gratuitous and angry comments by the City and its Mayor disparaging the conduct of a company believed by it to be one of its tenants and ratepayers in the course of a dispute between it and that company with respect to its entitlement to the payment of rent and rates” (at 458).
289 The question was considered by the Full Court of the Supreme Court of Western Australia in Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95. A media organisation had published an article concerning the conduct of a bank which provided home loans. Professor Fels on behalf of the Australian Competition and Consumer Commission had made certain public statements about the bank’s conduct. The sting of the defamation was that the plaintiff, a provider of home loans, had attempted to extort money from the bank and when that failed, it had reported the matter to the Commission out of malice and to place the bank under “unfair commercial pressure”. The media organisation sought leave to amend its defence to plead the extended defence. The application was refused and it was that refusal which was before the Full Court. The question before the Court was whether the trial Judge had fallen into error in deciding that the defence was unarguable. Owen J (with whom Pidgeon and Ipp JJ agreed) said that the article contained a criticism of Professor Fels and a criticism of the plaintiff. The conduct of Professor Fels as the chairman of a public body (ie, the Commission) was a government or political matter. The question was whether the reference to the plaintiff’s conduct was relevant to the comments that related to the conduct of the Commission or Professor Fels. Owen J said that the question involved a value judgment. I respectfully agree that this is the proper approach. Owen J said that the comments on the actions of the Commission and Professor Fels and the comments on the conduct of the plaintiff were separate and distinct. He said (at para 27):
“It seems to me that a proper reading of the article as a whole compels the conclusion that it was not germane to the section about Professor Fels to make a separate and distinct allegation that the respondent had been involved in a “sting” against the Bank. The latter was not sufficiently connected to the former to make it relevant to the discussions about the appropriateness of the actions of Professor Fels.”
290 In Popovic v Herald and Weekly Times Ltd [2002] VSC 174 the Deputy Chief Magistrate of the Magistrates Court of Victoria sued the publisher and author of an article in a newspaper which she alleged was defamatory of her both personally and in her office as a magistrate. The defendants sought to rely on the extended defence. Bongiorno J said that discussion of the conduct of a judicial officer and whether his or her decisions are correct or otherwise would not be a discussion of a government or political matter. However, discussion of the conduct of a member of the executive government or of Parliament who might exercise functions or powers relevant to the removal process of a magistrate was a discussion on a government or political matter. Bongiorno J said:
“Accordingly, I conclude that if the article sued upon in this case is in fact a discussion which contemplates or advocates the removal of the plaintiff from her position as a magistrate then it would be properly characterised as being a discussion of a government or political matter for the purpose of attracting the relevant qualified privilege. There is sufficient nexus between the discussion and the concept of representative government to protect such a discussion by the extended qualified privilege.”
291 His Honour then considered the appropriate characterisation of the article. He said the characterisation must be of the article itself unrelated to any imputation alleged to arise from it. His Honour concluded that the article advocated the removal of the plaintiff as a magistrate. It was only the executive government who could initiate the removal process. The article was properly characterised as a discussion of government or political matters.
292 In Rowan v Cornwall (No 5) [2002] SASC 160; (2002) 82 SASR 152 the Australian Broadcasting Commission broadcast a television program which discussed the contents of a government report about the conduct of a women’s shelter and interviewed some of the major participants. What was said during the course of the program was defamatory of the plaintiff who had been involved in the administration of the women’s shelter identified in the report. Debelle J held that the program was not a communication on a government or political matter. He said that a communication on a matter of public interest is not necessarily a communication on a government or political matter. I respectfully agree. Debelle J went on to say (at 345):
“The factors which might put it in the class of government and political matter are that the Shelter was in receipt of government funding (both Commonwealth and State), that the Report raised questions as to the propriety with which those funds had been spent, that the Report had been tabled in the State Parliament, and that the funding of women’s shelters had been the subject of political debate for at least fifteen months before the Report was published. However, if those factors are sufficient to render the program a communication on a government and political matter, then like programs dealing with allegations of financial and sexual misconduct concerning members of the board of either a public or private school, a hospital or arts organisation funded by government or the members of the staff a school, a public or private hospital or arts organisation are also government and political matters. Allegations of either financial or sexual misconduct are clearly a matter of public interest but they are not in themselves government or political matters. The fact that the particular public or private school, hospital or arts organization is in receipt of government funding does not elevate the allegations to a government or political matter. It remains an allegation of financial or sexual misconduct.”
293 It is not necessary for me in this case to indicate whether I agree with his Honour’s reasoning. It seems to me that an (if not the) important question will be how the publication is characterised. An allegation of financial or sexual misconduct may well fall within a communication on a government or political matter if there is a sufficient link between the allegation and the conduct of, for example, the executive government.
294 I turn now to consider the facts of this case. First, there can be no doubt that by the time Publication No 6 was published in September/October 1994 the question of the construction of a bridge from the mainland at Goolwa to Hindmarsh Island was a matter of public debate and that strong views were held by sections of the community as to whether the bridge should or should not be built. There can be no doubt that it was a matter of public interest. I do not think that fact is sufficient to confer on any publication broadly related to the issue of the construction of the bridge the character of a communication on a government or political matter. Secondly, there can be no doubt that discussion and debate about the conduct of members of the executive government and the legislature in relation to matters arising in connection with the construction of the bridge would be communications about government or political matters. For example, and speaking generally for the moment, comments about the planning process including the assessment and adoption of the EIS, the decision of the State government to provide significant funds towards the construction of the bridge, the work and report of the Environment Resources and Development Committee of the Parliament, the report on the government’s obligation to proceed with the construction of the bridge prepared by Mr Jacobs QC on behalf of the State government, and the declaration under the Heritage Act by the Federal Minister for Aboriginal Affairs would be communications of a government or political nature. However, the question is whether this publication can be characterised as an article about one or more such matters.
295 It seems to me that there are a number of possibilities in terms of how this publication is characterised. It is either a publication about the orders of the Federal Court of Australia, or the reasons Mrs Chapman took the action she did or the limits of freedom of speech or one or more of these matters. I do not think the publication is a comment about the orders of the Federal Court and, even if it is, I do not think that topic is a government or political matter. I do not think that comments about the courts and the orders they make is a government or political matter. The publication is to an extent about freedom of speech. As important as that topic is in our community, it seems to me that it is not a government or political matter unless it is raised in the context of conduct by the executive or legislative branch of government. The publication does not deal with the topic in that context. The publication is to an extent about Mrs Chapman’s conduct. Clearly, her conduct is not a government or political matter. Nor can it be said that her conduct is so linked or intertwined with a communication about a matter which is government or political that it should be characterised in the same way.
296 In my opinion, the Judge was correct in finding that Publication No 6 was not a communication about a government or political matter. It is therefore unnecessary to consider the reasonableness of Professor Shearman’s conduct and malice in the context of the extended defence.
297 I turn back to the appellants’ challenge to the Judge’s finding that Professor Shearman was actuated by malice thereby defeating traditional qualified privilege. Before considering the facts, I will say something about the relevant legal principles.
298 First, in order to constitute malice at common law the improper motive must be the dominant motive (Godfrey v Henderson [1944] NSWStRp 36; (1944) 44 SR (NSW) 447; Roberts v Bass [2002] HCA 57; (2002) 77 ALJR 292 per Gaudron, McHugh and Gummow JJ at para 104). The dominant motive may be proved by extrinsic evidence, that is to say, evidence of facts existing before, at, or after the statement was made (Mowlds v Fergusson [1939] NSWStRp 43; (1939) 40 SR (NSW) 311 per Jordan CJ at 327 –328). It seems clear from the Judge’s reasons that he directed himself that the improper motive must be the dominant motive. It is also important that it be clear on the evidence that the improper motive actuated the publication. The Judge referred to authority in support of this principle, although for reasons which I will give, I do not think he gave proper effect to that principle.
299 Secondly, malice consists of misusing the occasion which gives rise to the privilege. It is the presence of an improper motive which is the critical consideration. In terms of a defendant’s state of mind at the time he made the statements, knowledge that the statements are false is almost conclusive evidence of malice. On the other hand, a lack of an honest belief in the truth of a statement does not of itself constitute malice. The Judge correctly approached the question of malice by treating the absence of an honest belief as a relevant consideration but not of itself sufficient to constitute malice.
300 The importance of these points, particularly the second, was emphasised by the High Court in Roberts v Bass. Gaudron, McHugh and Gummow JJ said (at [76]):
“Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication.”
301 In Roberts v Bass the High Court discussed at length the principles relevant to malice in the context of defamatory statements concerning government or political matters and the defence of traditional qualified privilege. The extended defence was not in issue on the appeal because the trial Judge had found that the defendants’ conduct was not reasonable in the circumstances of the case and that finding was not challenged on appeal. The statements of the Court as to what constitutes malice in the context of government or political statements (whether the relevant privilege be traditional qualified privilege or the extended defence) are of course authoritative in that context. Although all members of the Court discussed the common law principles relevant to malice, there may be some debate about the extent to which particular statements made by the Court in relation to malice could be said to apply outside the context of statements about government or political matters. It seems to me a majority of the Court rejected any suggestion that the absence of an honest belief was of itself always sufficient to constitute malice. The criterion for malice is whether there is an improper motive or purpose. The absence of an honest belief is, with other factors, relevant to whether an improper motive or purpose is made out. There is no reason to think that these principles do not apply generally, that is to say, whether the communication is a communication on a government or political matter or not. As I have said, the Judge in the present case did not take an approach inconsistent with this approach. He treated the absence of an honest belief as a relevant consideration, not the decisive consideration. He approached the issue of malice by asking himself whether the dominant motive or purpose was an improper one.
302 A dominant motive or purpose to injure or damage the plaintiff is, at common law, an improper motive or purpose. Roberts v Bass makes it clear that this principle is modified in the context of communications on political matters in that targeting a candidate for election does not of itself constitute malice. I do not think there is anything in the judgments in Roberts v Bass which suggests that the common law principle is modified outside this particular context.
303 The Judge’s finding of malice is an inference he has drawn from other facts which he has found proved. This Court, although giving respect and weight to the Judge’s conclusion, must reach its own conclusion as to the proper inference to be drawn (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989).
304 In considering the finding of malice not only against Professor Shearman but also the other appellants, it is necessary to bear in mind a number of important background facts. First, at the time of each publication the appellants were implacably opposed to the construction of the bridge. They had been and were involved in a vigorous public campaign to gather support for their point of view. They were vigorous in their opposition to the bridge. However, at least in the case of Professor Shearman and Ms Bolster, the Judge did not find that they at any stage knowingly acted in breach of the law. The fact that the appellants had a continuing and “overriding” motive or purpose of preventing the construction of the bridge does not exclude the possibility that in relation to a particular publication the appellants’ dominant motive was to injure or damage the respondents. However, it does mean that any suggestion that the dominant motive of the appellants in relation to a particular publication was to injure or damage the respondents needs to be carefully scrutinised. Secondly, there was no evidence that the appellants harboured feelings of ill will or personal spite against the respondents. That was not the respondents’ case at trial. Thirdly, there was no evidence, at least in the case of Professor Shearman and Ms Bolster, that they stood to gain personally by making the statements in the publications. That was not the respondents’ case at trial. I will refer to these matters as “the important background facts”.
305 Turning now to the facts, the matters relied on by the Judge to infer malice on the part of Professor Shearman might conveniently be divided into four categories. First, there were the inferences which can be drawn from the content of the publication. Secondly, there were the inferences which can be drawn from Professor Shearman’s conduct at or about the time of the publication. Thirdly, there is the finding as to Professor Shearman’s state of mind. The Judge said that Professor Shearman was prepared to make statements in respect of which he did not have an honest belief. Although it is not clear from the Judge’s reasons what statements he relied on to make that finding, I will proceed on the basis that they are the statements in Publication No 6 which give rise to the defamatory imputations. Fourthly, there is the evidence given by Professor Shearman at trial.
306 For reasons which will become apparent, it is convenient to start by analysing the fourth category. As I have said, the Judge found that there were aspects of Professor Shearman’s evidence which were unsatisfactory. He rejected evidence that Professor Shearman did not write Publication No 6 intending that it refer to and reflect badly on Mr and Mr Chapman. He rejected evidence that Professor Shearman did not know that Westpac was Binalong’s financier at the time he wrote the letter to Westpac dated 14 March 1994. The Judge said that he found Professor Shearman’s explanation as to why he transferred his interest in his house into his wife’s name on 10 December 1997 unconvincing. Ordinarily, an Appeal Court will be slow to interfere with findings of this nature because the Judge had the advantage of seeing and hearing Professor Shearman. However, in my respectful opinion it is clear from the transcript that the Judge’s conclusion on the last point cannot stand.
307 The reason Professor Shearman transferred his interest into his wife’s name was something that was raised during his evidence and the respondents suggested that they would be asking the Judge to draw an adverse inference from his inadequate explanation for the transaction. After some debate, counsel for the respondents asked Professor Shearman to give an explanation but to be (as counsel put it) “brief in the detail” because of concerns Professor Shearman had about privacy issues. Professor Shearman gave an explanation which involved his poor state of health at the time of the transaction. He was not challenged on his explanation in any way. The explanation was not obviously improbable. In those circumstances, in my respectful opinion it was not open to the Judge to find that his explanation for the transfer was unconvincing. It is not possible to know the extent to which the Judge’s finding on this issue affected his assessment of other aspects of Professor Shearman’s evidence. For example, it is not possible to know to what extent it influenced the Judge’s finding as to Professor Shearman’s state of mind at the time he wrote Publication No 6.
308 There is a further difficulty which arises in relation to the fourth category. The Judge used Professor Shearman’s unsatisfactory explanations in the witness box as a ground upon which to infer malice. I do not think it was open to him to do so. Absent admissions, rejection of his evidence does not prove the contrary to that which he asserted (Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 per Scrutton LJ at 21; Roberts v Bass per Gaudron, McHugh and Gummow JJ at para [97]).
309 In light of these two errors it is necessary for this Court to consider carefully whether the Judge’s finding that Professor Shearman was actuated by malice can be sustained.
310 In view of the important background facts, in order to succeed in establishing malice against Professor Shearman, the respondents needed to show that his dominant motive in writing Publication No 6 was to injure or damage Mrs Chapman. In my opinion, the matters identified by the Judge do not support such an inference. First, the Judge relied on Professor Shearman’s letter to Westpac dated 14 March 1994 and his comments on radio on 15 March 1994. Even if (as the Judge appears to have found) he did know of the relationship between Westpac (through its subsidiary Partnership Pacific Ltd) and Binalong, I do not see how it can be inferred that his motive was to injure or damage Mrs Chapman. The letter and the radio interview were plainly designed to persuade Westpac not to insist on its rights in circumstances in which it was thought that if it did not, the State government might not proceed with the construction of the bridge. It may be that Professor Shearman appreciated that his approaches to Westpac may cause injury and damage to Binalong (and therefore Mrs Chapman), but I cannot see how it can be said that was his motive, let alone his dominant motive.
311 Secondly, the Judge relied on Professor Shearman’s speech to the environmental law seminar. The relevant statements in the speech are:
“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 go further. 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.
And finally, with some sophistication we need to impact specific areas of the financial community. This is where the problem comes from.”
312 I do not read these comments as necessarily advocating a personal attack on developers as distinct from targeting their products and those who provide services such as finance to them. I do not say the Judge was wrong to rely on this matter, but I think it is a weak factor.
313 Thirdly, the Judge said that Professor Shearman knew Publication No 6 was unjust. The Judge said that the Publication itself disclosed that Professor Shearman had been properly advised and yet he chose to misrepresent the legal constraints in a mischievous fashion. I do not agree with the Judge. Professor Shearman set out Associate Professor Stewart’s opinion in the publication and I do not see how, by referring to the fact that some individuals were uncertain and anxious and were persuaded not to speak, amounts to a misrepresentation of the legal constraints in a mischievous fashion. The publication reveals a certain zeal and strong belief, but I do not think it misrepresents the legal constraints in a mischievous fashion and was therefore known to be unjust.
314 Fourthly, I have already dealt with the Judge’s reliance on Professor Shearman’s unsatisfactory explanations in the witness box.
315 Fifthly, the Judge relied on Professor Shearman’s limited participation in Mr Owen’s campaign. Subject to one matter, the Judge does not identify Professor Shearman’s involvement in Mr Owen’s campaign. The Judge says that Professor Shearman was briefed on the bridge issue after the State election in December 1993. The Judge said:
“He then allowed himself to be carried along with the tide of protest which Mr Owen had generated.”
316 The Judge said that Professor Shearman probably did not appreciate the need to exercise firm control over Mr Owen’s activities. He was at least vaguely aware of the existence of the Kumarangk Coalition and how it and Mr Owen were operating but he did not make any inquiries. It was not put to Professor Shearman in cross-examination that he participated in a campaign conducted by Mr Owen of the nature found by the Judge. I do not think the findings made by the Judge support the conclusion that he was in any real sense involved in Mr Owen’s campaign. Nor does an examination of his evidence support a conclusion that he participated in Mr Owen’s campaign even to a limited extent.
317 Sixthly, the Judge said Professor Shearman did not have an honest belief in the statements in Publication No 6. That finding means that Professor Shearman did not believe that Mrs Chapman’s purpose in commencing legal proceedings and issuing legal letters was to suppress freedom of speech, stifle debate and stop the CCSA from legitimately expressing opinions in public regarding the bridge issue. However, there is no reason to think that Professor Shearman did not have an honest belief that that was the effect of Mrs Chapman’s conduct and I think that is a relevant matter in considering the weight to be placed on the Judge’s finding in relation to Professor Shearman’s belief about Mrs Chapman’s purpose.
318 Although I have analysed each of the matters relied on by the Judge, I must, as the Judge did, consider the effect of the matters as a whole. I have done that and I do not think a finding that, in writing Publication No 6, Professor Shearman was actuated by a dominant motive or purpose of injuring or damaging Mrs Chapman was justified. The correct finding is that the respondents did not establish that Professor Shearman was actuated by malice. The appellants made out the defence of traditional qualified privilege in relation to Publication No 6.
Fair Comment on a Matter of Public Interest
319 In light of this conclusion it is unnecessary to consider the other defence raised by the appellants, namely, fair comment on a matter of public interest. For the sake of completeness, I will deal with the defence which I can do briefly. I think that the defence fails at the initial stage in that the defamatory words are not matters of comment. It is true, as counsel for the appellants pointed out, that some of the words complained of may well be characterised as comment. An example is the statement, “We believe that this legal process is being used simply to silence us”. Even if this phrase should be construed as comment only, it is only part of the defamatory words. I think that as a whole the defamatory words should be construed as statements of fact rather than comment. However, that is not an end of the matter. Gatley states (Gatley on Libel and Slander (9th ed) at para 12.10):
“It is clear that a comment may consist of an inference or deduction of fact; that is, an author can assert as his comment on facts stated or referred to in what he publishes, some other fact the existence of which he deduces from these facts.”
320 However, that principle is qualified by another which I think (with some hesitation) applies in this case. Comment in order to be justified as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment (Hunt v Star Newspaper Co Ltd [1908] UKLawRpKQB 51; [1908] 2 KB 309 per Fletcher-Moulton LJ at 319 – 320; Andrews v Chapman [1853] EngR 280; (1853) 3 Car & Kir 286 at 288; Gatley on Libel and Slander (9th ed) para 12.10). Read as a whole I do not think the reader could distinguish between what is report and what is comment and therefore the defamatory words are not comment. The defence of fair comment on a matter of public interest was correctly rejected by the Judge.
Conclusion
321 In relation to Publication No 6, the appellants made out the defence of traditional qualified privilege and the respondents did not establish malice. The award of damages and the orders of the Judge in relation to Publication No 6 must be set aside.
Publication No 7
Defamatory Imputations
322 The appellants submitted that the reference to the “boot of Binalong” was no more than a vigorous epithet, and therefore not defamatory. It appears that there is a principle in the United States that a statement that is no more than a vigorous epithet (or rhetorical hyperbole or loose, figurative language) is not defamatory and is therefore not actionable (Sack on Defamation Libel, Slander, and Related Problems (3rd ed) Vol 1, para 4.3.3). At common law, words are not actionable if it would be understood that they were made in jest or constituted no more than vulgar abuse (Gatley on Libel and Slander (9th ed) paras 3.31 and 3.32). The distinction is between mere vulgar abuse and defamatory matter, or put another way, vulgar abuse and a matter likely to affect reputation (Mundey v Askin [1982] 2 NSWLR 369). I do not think it can be said that looked at in their context the defamatory words in Publication No 7 would be understood as having been said in jest or as constituting no more than vulgar abuse. The Judge did not err in finding that the words gave rise to the imputation which he identified.
The Extended Defence
323 In relation to the defences raised by the appellants, I start with the extended defence and I refer to my earlier discussion of what constitutes a communication on a government or political matter. Publication No 7 deals with three separate topics. It provides information as to the course of the proceedings in the Federal Court and the orders previously made by the Court. It contains a statement about the conduct of Mr and Mrs Chapman, and finally, the publication contains statements about the conduct of a senator in South Australia. I have no doubt that the last topic is a communication on a government or political matter. However, there is no relationship between that topic and the earlier two topics. The first topic is not a government or political matter so that even if it is wrong to separate the first and second topics, that would not confer on the defamatory words the character of a communication on a government or political matter. It follows that Publication No 7 was not published on an occasion to which the extended defence applied.
Fair Comment on a Matter of Public Interest
324 As to the defence of fair comment on a matter of public interest, the appellants must first prove that the defamatory words represent comment and not a statement of fact. Secondly, they must prove that the comment is “objectively fair” in the sense that an honest and fair-minded person could hold the view expressed. It is important to note that a comment is not unfair because it is affected by prejudice or exaggeration. As King CJ said in Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 (at 191):
“The criticism must be such as might be made by a fair-minded person, but the law makes considerable allowance for the prejudice and bias to be found even in generally fair-minded persons.”
325 Finally, the appellants must prove that the comment is on a matter of public interest. The defence may be defeated if the respondents establish that the defamatory words were actuated by malice.
326 I do not think the first and second elements of the defence were established by the appellants. On the face of it, the defamatory words do not constitute comment. However, an inference of fact from other facts referred to may amount to a comment. In that regard, the first question is whether Publication No 7 purports to state all the facts giving rise to the criticism (Pryke per King CJ at 192 –193). The appellants sought to rely on various “facts” outside the publication, namely, the decision of Heerey J of the Federal Court on 19 April 1994 (which was the subject matter of Publication No 5), the fact and content of public debate over that decision and its implications for free speech and certain facts set out in Publication Nos 5 and 6. The relevant principle for determining if reference may be made to facts outside the publication was stated by King CJ in Pryke in the following terms (at 192):
“Where the facts upon which the comment is made are in the public arena and are well known or easily ascertainable, it is not necessary that those facts be stated, but is sufficient that they be clearly indicated.”
(See Kemsley v Foot [1952] AC 345). Although the title to the publication refers to “A further update”, I do not think the facts outside the publication are clearly indicated in the publication. I think Publication No 7 purports to state the facts giving rise to the criticism.
327 Having regard only to the facts stated in the publication, I do not think the phrase, “who compensates ordinary residents of Goolwa who have suffered greatly under the boot of Binalong” is comment. It is a statement of fact about the conduct of Binalong. The appellants cannot overcome this conclusion by characterising the statement as a deduction reached by Ms Bolster and Mr Owen from other facts stated or referred to from which the deduction can be reasonably inferred (Gatley on Libel and Slander (9th ed) para 12.10). The statement that Mr and Mrs Chapman have acted oppressively towards the ordinary citizens of Goolwa cannot be reasonably inferred from, or reasonably based on, the facts stated in Publication No 7 and proved to be true.
328 I should add that I do not see how one of the particular facts not referred to in the publication, namely, that there was public debate of a particular nature prior to Publication No 7 can be a fact which forms part of the basis upon which a comment that Mr and Mrs Chapman had engaged in conduct oppressing the ordinary citizens of Goolwa with respect to the right of freedom of speech upon the bridge issue is made. The fact that other people also held that view and expressed that view publicly cannot be a fact forming the basis of the particular criticism.
329 As to the second element of the defence, I do not think the criticism contained in the defamatory words was such that it might be made by a fair-minded person even making allowance for the prejudice and bias found in a fair-minded person.
330 For these reasons, the appellants have not made out the defence of fair comment.
331 It follows that I would uphold the Judge’s decision in relation to Publication No 7. In these circumstances it is not strictly necessary for me to address malice in relation to the appellants’ liability for Publication No 7. However, it is necessary that I do so for a number of reasons. First, in case I am wrong and the appellants have made out the extended defence or fair comment in relation to Publication No 7. Secondly, I must consider whether Ms Bolster was actuated by malice in relation to Publication No 11 and in that regard the Judge has relied on a common substratum of facts in relation to Publication No 7 and Publication No 11. Thirdly, in making his finding of malice in relation to Publication No 11, the Judge has placed very considerable weight on Ms Bolster’s involvement in Mr Owen’s campaign.
Malice
332 The appellants’ attack on the Judge’s findings in relation to Mr Owen’s campaign consisted of three major submissions. First, they submitted that a campaign by Mr Owen was not pleaded as a particular of malice, or a number of elements of the campaign (as found by the Judge) were not pleaded. Secondly, they submitted that the Judge erred in his approach in that he decided what was a proper campaign and characterised what fell outside that concept as improper and illustrative of malice. Thirdly, they submitted that a number of findings of fact were incorrect having regard to the evidence.
333 The appellants submitted that the Judge relied on a number of matters to infer malice which had not been pleaded by the respondents in accordance with the Supreme Court Rules 1987 (r 46.19). Under the Rules a plaintiff who alleges malice must provide particulars in the pleadings of the facts and matters he or she relies on to establish malice. In compliance with the Rules, the respondents provided the following particulars of malice in paragraph 2.4 of their Reply.
“PARTICULARS OF MALICE
(a) The relevant Defendants had an obligation to make some extrinsic inquiry as to the truth or otherwise of the words referred to before publishing the same, but failed and/or refused to do so.
(b) The relevant Defendants published the words referred to in wilful blindness as to their truth or otherwise.
(c) The relevant Defendants failed to inquire of the Plaintiffs as to the truth or otherwise of the words referred to.
(d) The relevant Defendants gave no opportunity to the Plaintiffs to comment on or answer the allegations contained in the words referred to.
(e) It is manifest from facts, and the Defendants’ conduct, relating to, and/or both before and after, the publication of the words complained of that the relevant Defendants’ intention in publishing the words referred to was to embarrass and hurt the Plaintiffs, such facts and conduct being -
(i) the fact of defamatory publications of the Plaintiffs being regularly and repeatedly made by the Defendants as set out in the Statement of Claim
(ii) the fact of the virulence of such defamatory publications as set out in the Statement of Claim
(iii) the fact that such defamatory publications amounted to a sustained and virulent attack on the integrity of the Plaintiffs
(iv) the fact that the Defendants’ intention is and was to advance the cause of those opposed to the Hindmarsh Island bridge and/or those with an interest in embarrassing and hurting the Plaintiffs as protagonists for that bridge
(v) the fact that the first Defendant has known for some time that material published by it relating to the bridge, namely a paragraph in a pamphlet called ‘Coorong Ramsar Site’ relating to the reasons for decreases in bird species, is an incorrect and misleading quote from Paton Pedlar and Pedlar 1989, but has failed or refused to amend the same, and continues to publish the same
(vi) the fact that the first Defendant has so refused despite the Plaintiff’s solicitor’s letters of the 2nd April 1997, the 18th April 1997, the 7th May 1997and the 13th May 1997 to the first Defendant, and its letters to the first Defendant’s solicitors dated 16th May 1997 and the 25th June 1997, requesting it to amend the same.
(vii) the fact that the first Defendant denies that the anti-bridge unincorporated association known as the Kumarangk Coalition is or has been located within the first Defendant’s premises, despite the fact that letters dated 2nd April 1997, 18th April 1997, 7th May 1997, 13th May 1997 and 25th June 1997 have been sent to it at such address, namely 120 Wakefield Street, Adelaide, but not returned
(viii) the fact that the first Defendant has attempted to harm the Plaintiffs financially by lobbying their financiers Westpac Banking Corporation Limited to ‘pull out’ of the marina development, which lobbying was done by way of the first Defendant’s letter to the said Bank of the 15th March 1994
(ix) the fact that the third Defendant has similarly attempted to harm the Plaintiffs financially by lobbying their financiers Westpac Banking Corporation Limited to ‘pull out’ of the marina development, which lobbying was done during a radio segment on the Keith Conlon Show on the morning of Tuesday 15th March 1994 being an interview with the third Defendant, and also in a paper he delivered at the ‘Defending the Environment Conference’ in May 1994
(x) the fact that the Plaintiffs by their solicitors wrote to the first and second Defendants on the 9th March 1994, and the first and third Defendants on the 16th March 1994, advising that the recipients had defamed the Plaintiffs, but such Defendants failed and/or refused to apologise and retract such defamations, and notwithstanding that, in respect to the letters dated 9th March 1994, the same related to the publication referred to in paragraph 21 of the Statement of Claim in respect of which the first and second Defendants do not now seek to justify the truth
(xi) the fact that, after receiving the letters referred to above, in or about May 1994 the Defendants participated in and/or promoted the establishment of the Kumarangk Coalition for the purpose of and/or knowing that such unincorporated association would be used to publish false and/or defamatory statements about the Plaintiffs without the publisher being able to be stopped or sued because the publisher could not be identified
(xii) the fact that by their solicitors’ further letters dated 9th January 1996, 17th September 1996 and 14th October 1996, the Plaintiffs further sought that the first Defendant publish an apology and retraction in respect to libels published, but the first Defendant failed or declined to do so, and notwithstanding that the Defendants do not now seek to justify the truth of most of the publications referred to in the Statement of Claim
(xiii) the fact that it is manifest from the various letters to the Defendants referred to above, and from the fact that the Defendants have not made or offered any retraction or apology notwithstanding that the Defendants do not now seek to justify the truth of most of the publications referred to in the Statement of Claim, that the Defendants have a wilful disregard for such truth and/or the Plaintiffs’ reputation
(xiv) the fact that, by their solicitor’s letter dated 9 January 1996, the Plaintiffs complained of certain conduct on the part of the first Defendant, and requested that the letter in question be published in the first Defendant’s magazine Environment SA, but the first Defendant, by reply dated 7th August 1996, declined to give them such opportunity to respond
(xv) the fact that other Defendants knew of and/or approved the conduct of named Defendants referred to above and/or participated in such conduct by reason of the facts in paragraphs 3-5 of the Statement of Claim and, in the case of the conduct of the first Defendant, by reason that the second, third and fourth Defendants were participating in and/or directing the conduct of the first Defendant as officers of it.”
334 In finding malice, the Judge did not rely on any of the matters in paragraphs 2.4(d), (e), (v), (vi), (x), (xii), (xiii) and (xiv).
335 During the trial the appellants’ counsel objected on a number of occasions to matters being raised which were not pleaded. In his reasons for judgment and after referring to the particulars in paragraph 2.4 above, the Judge said that he relied upon material arising during the trial which supported the assertion that the intention of the appellants in publishing was to embarrass and hurt the respondents (see paragraphs 2.4(e) above). The Judge said:
“I designated the collection of incidents and the motivation therefore 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.”
336 In taking this approach the Judge appears to have relied on the decision of this Court in Duffield v Arts Council of SA Inc & Fox Publishing Co Ltd (1981) 27 SASR 540 at 543. In that case in the course of saying an order for particulars of the matters relied upon to establish malice should have been made, Mitchell ACJ said (at 543):
“In my opinion such particulars should have been ordered and, as was pointed out by Maguire J. in Ampol Petroleum Ltd. v. Shell Company of Australia Ltd., the plaintiff may, in supplying particulars, reserve the right to rely upon matters which may arise up to and during trial and which may show malice on the part of the defendants or either of them.”
337 The appellants submitted that the reference to matters arising up to and during trial is a reference to facts and circumstances which occur during that period, not a reference to facts and circumstances which occur before (sometimes well before) that time, but which the plaintiff seeks to raise at trial. In my opinion, the authorities do not suggest that there is such a narrow rule (Ampol Petroleum Ltd v Shell Co of Aust. Ltd [1966] 1 NSWR 508). At the same time, there is no reason to think the normal rules as to amendments do not apply. My examination of the transcript suggests that the Judge, over the objection of the appellants’ counsel, took a more liberal view of the matters which could be raised than was warranted by the application of the normal rules and in doing so, in my respectful opinion, he erred.
338 I do not think it matters whether the word “campaign” was used in the pleadings provided the main elements of the campaign were identified. However, in my opinion, there were a number of matters forming part of the campaign as found by the Judge which were not pleaded. They are matters which should have been pleaded. They are not matters covered, for example by the general plea of paragraph 2.4(e)(iv). The matters not within the pleadings are:
1. That in 1993 Mr Owen was engaged in a campaign to prevent the construction of the bridge and that his campaign was not a normal political lobby or a proper lobbying situation.
2. That in 1994 Mr Owen was prepared to make assertions which were not the truth (eg., Mr Owen’s letter dated 21 December 1994 to the District Council of Port Elliot and Goolwa) and material which was inflammatory.
3. That Mr Owen took steps to incorporate the Friends of Goolwa and Kumarangk so that it could become a member of the CCSA and he could qualify for membership of the executive of the CCSA.
4. That Mr Owen wrote letters on behalf of the Lower Murray Aboriginal Heritage Committee including two that were sent under the hand of Mr Milera and that he used his position as assistant to that Committee to obtain access to classified information.
5. That the motions passed at the public meeting on 8 October 1993 were suggestive of malice on the part of Mr Owen, and for that matter, Ms Bolster.
6. That Mr Owen was prepared to be, as the Judge put, “civilly disobedient” by joining the picket line on 28 October 1993.
7. That Mr Owen had not overlooked the personal advantages to the shack owners if the bridge was not built. It seems to me that this goes further than a finding as to credit and is evidence the Judge might have used to infer an improper motive.
339 As to the appellants’ second submission, I think the appellants have made good their submission. To my mind, the Judge has, with respect, placed too much weight on the distinction he drew between a proper lobbying situation and conduct designed to injure or damage the respondents. It was open to the Judge to consider the likely effect of particular conduct as that could throw light on the motives of those carrying out that conduct. However, I think the Judge went further than that in that he characterised what he considered to be part of a legitimate campaign and characterised any conduct which did not fall within that concept as conduct designed to injure or damage the respondents.
340 As to the third major submission of the appellants, I do not propose to discuss each finding of fact of which they complain. I say that because for the two reasons I have already identified, the finding of malice against Mr Owen cannot stand. At the same time, I do not think the position involving Mr Owen (unlike Professor Shearman and Ms Bolster) is so clear that this Court would be justified, bearing in mind the importance of his state of mind and the advantages a trial Judge has in seeing and hearing a witness, in substituting a finding that he was not actuated by an improper motive. There was a substantial case against Mr Owen which was within the pleadings. Had the issue of malice been decisive in relation to Mr Owen, I would have made an order for a retrial.
341 I will deal with the finding of malice against Ms Bolster in the context of Publication No 11.
Conclusion
342 In conclusion in relation to Publication No 7, the appellants have not made out the extended defence or the defence of fair comment on a matter of public interest and their challenge to the orders of the Judge in relation to that publication must be rejected.
Publication No 11
Imputations, Defamatory Meaning and Justification
343 The words alleged to be defamatory and the imputations found by the Judge are set out above.
344 The respondents pleaded (relevantly) that the imputations which arose from the words were that they failed to consult meaningfully the Aboriginal people during the planning process for the bridge and that they admitted that they failed to consult the Aboriginal people when they had an obligation to do so in connection with the construction of the bridge.
345 The appellants denied that the imputations alleged by the respondents arose from the words and pleaded that insofar as an imputation arose that the respondents had failed to consult properly the Aboriginal people during the planning process, that imputation was justified.
346 Although the imputations found by the Judge are related, it is convenient at this point to consider them separately. I will call the imputation that during the planning process for the bridge the respondents consulted with the Aboriginal people in a less than meaningful way, the first imputation and the imputation that with respect to bridge building the respondents failed to consult Aboriginals when they had an obligation to do so, the second imputation. It is apparent from his reasons that the Judge considered that the first imputation related to the period before the planning consent was granted in April 1990 and the second imputation related to the period thereafter.
347 During final addresses at trial the appellants sought to amend their defence to plead justification in relation to the first imputation. To support the application the appellants’ counsel referred to a decision handed down by the Federal Court shortly prior to the application, Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106; (2001) 123 FCR 62. In that case, one of the matters von Doussa J was dealing with was an allegation that throughout the planning process both the State and Binalong dealt with Aboriginal heritage issues in an orderly and comprehensive manner during which appropriate consultation with Aboriginal organisations occurred. The Judge made a finding to the following effect:
“... 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.”
348 The appellants submitted that the respondents were bound by that finding. The Judge rejected that submission. He rejected the appellants’ application to amend. The appellants submitted that the Judge erred. For reasons I will give, it is unnecessary for me to consider the challenge to the Judge’s decision.
349 The starting point is the appellants’ challenge to the first imputation found by the Judge. The appellants submitted that the Judge’s approach was “unduly and unnecessarily specific”. The appellants submitted that the imputation which arose was that the respondents failed to consult properly with Aboriginal people during the planning processes.
350 The question of what imputation arises depends on the words used and the context in which those words appear. The question is to be judged from the standpoint of an ordinary reasonable reader. This Court is in as good a position as the Judge to determine what imputation arose. I disagree with the Judge that the first sentence in the relevant paragraph relates to one period of time (ie., before April 1990) and the second sentence relates to another period of time (ie., after April 1990). In my opinion, the first sentence contains a general assertion and the second sentence provides an example in support of the assertion. The general assertion relates to the whole of the period from 1989 to the date construction of the bridge first began on 27 October 1993 and probably thereafter, until the date of Publication No 11. On balance, I think the general assertion relates to the planning processes for the development proposal as a whole and not just the bridge. In my opinion, the Judge erred in his formulation of the first imputation. In my opinion, the first imputation relates to the planning process for the development proposal and relates to the period both before and after the consent was granted in April 1990. That is how an ordinary reasonable reader would understand the words.
351 The appellants did not challenge the second imputation found by the Judge.
352 The appellants submitted that an imputation that a developer had not consulted Aboriginal people was not defamatory. It was said that whilst one section of the community might see it as defamatory to say that a developer did not consult adequately with Aboriginal people, another section would not see such a criticism as going so far as to damage reputation. The appellants referred to the following passage from the reasons for judgment of Brennan J in Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 (at 507):
“The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes. But if the imputation is defamatory according to the standards of the community generally, a particular impact of the defamatory imputation may be proved.”
353 The Judge said that he considered that society would condemn a real estate developer who was said to have consulted Aboriginal people in a less than meaningful way and that such conduct would reflect to the discredit of the person concerned. I agree with the Judge’s conclusion. The Judge’s comment applies with even greater force to the second imputation which alleges a failure to comply with an obligation to consult.
354 The appellants submitted that the imputation that the respondents failed to consult meaningfully the Aboriginal people during the planning processes was justified. In view of my conclusion as to the first imputation, I think the appellants’ pleadings were sufficient to raise justification in relation to that imputation. In those circumstances, it is unnecessary to consider the appellants’ challenge to the Judge’s decision on their application to amend. The Judge made certain findings of fact in relation to the consultation which took place before the consent was granted. He found that Mr Lucas consulted Aboriginal people during the course of preparing his anthropological report, although it is also clear that Mr Lucas recommended that further consultation take place. Ms Edmonds consulted Aboriginal people during the course of her archaeological survey. Mr Chapman met with Mr and Mrs Rankine in the winter of 1989 and Mrs Chapman and Binalong’s consultant, Ms Nadia McLaren, met Mr and Mrs Rankine later that year. Mr Rankine is an elder of the Ngarrindjeri Tendi. It is not clear to what extent (if at all) the construction of the bridge was discussed, although the resolution of that issue is not critical for present purposes. There was an informal meeting between Mr and Mrs Chapman and certain Aboriginal persons in November 1993 which resulted from the discovery of artefacts, although I doubt whether this meeting could be described as consultation. There was never any formal consultation with any of the four Aboriginal groups referred to in the planning consent.
355 I think the substance or “sting” of the first imputation (as found by me) was justified. It is necessary to look at the consultation which took place between 1989 and October 1993 and, as I have said, probably thereafter until the date of Publication No 11 in July – September 1995. There was no consultation after the consent and authorisation were granted in April 1990. Mr Chapman had a meeting with one Aboriginal elder (Mr Rankine) in mid 1989 and Mrs Chapman had one meeting with the same person later in 1989. The anthropologist, Mr Lucas met with prominent Aboriginal people during the course of preparing his report in early 1990, but he recommended that consultation with the four Aboriginal groups he identified should take place. His recommendations were adopted by the relevant authorities and became conditions of the consent and authorisation. The archaeologist, Ms Edmonds, consulted with Aboriginal people in the course of her survey, but that occurred before the granting of the consent and authorisation. As I have said there was no consultation with the Aboriginal people after April 1990. The Judge restricted his consideration to the period before April 1990. Looking at that period and the period after April 1990, I think the substance of the first imputation as found by me that the respondents failed to consult meaningfully the Aboriginal people during the planning processes was justified.
356 The appellants submitted that the second imputation (as found by the Judge) was justified. I doubt whether the appellants have clearly pleaded justification in relation to the second imputation. However, it is unnecessary for me to consider that issue because I have reached the conclusion that the second imputation was not justified. It is true that the construction of the bridge was an integral part of the marina extension and waterfront development and that there was a condition requiring consultation before that development proceeded at least beyond Stage 1. It is also true that the authorisation for the development under the Aboriginal Heritage Act was subject to a condition which required consultation. It is also true that the Judge expressed the second imputation in rather general terms – “with respect to the bridge building”. However, the fact is that there was no condition requiring consultation attached to the consent for the construction of the bridge.
357 In view of these conclusions, it is necessary to consider whether the appellants have made good a defence in relation to the second imputation. The appellants submitted that they had established the extended defence or the defence of traditional qualified privilege. The Judge referred to fair comment on a matter of public interest in the context of Publication No 11 but as I have said that defence was neither pleaded nor raised by the appellants on appeal. Plainly, the relevant statements are statements of fact.
The Extended Defence
358 The Judge accepted that Publication No 11 involved a communication on a government or political matter because a discussion as to the operation of the State planning laws is properly characterised as such a matter. As I have said, the respondents did not challenge that conclusion on appeal. I would make the observation that the Judge’s decision on this point can probably be justified on a broader basis. The main topic dealt with in the publication is the justification for the establishment of a Royal Commission to examine the veracity of claims made by certain Aboriginal women. That is a communication on a government or political matter. I think whether there has been any consultation with Aboriginal people in the past is sufficiently linked with that matter to be characterised as part of that topic.
359 The Judge found that the appellants failed to establish the second requirement, namely, that the conduct in making the publication was reasonable. The Judge identified the conduct of the CCSA and Ms Bolster as relevant. The Judge found that no one 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 Judge found that Ms Bolster was at least recklessly indifferent as to whether the material was truthful and accurate.
360 In Lange the High Court identified matters relevant to the question of whether conduct is reasonable. The Court said (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.”
361 I agree with the appellants’ submission that it may not be necessary in a particular case to show all of the matters identified in the above passage. This case is such an example because I do not think it was necessary in this case to show that the respondents were given an opportunity by the appellants to comment on the assertions. The evidence shows that the respondents were making ample use of the media to counter the arguments put by those opposed to the construction of the bridge. However, whether the person responsible for the publication has reasonable grounds to believe that the statements are true, and has taken steps to verify the information, are important matters.
362 As to those matters, the appellants referred to the material Ms Bolster relied on for the purpose of making the relevant statements in Publication No 11. The material relevant to the second imputation was the evidence Mrs Chapman gave in the Federal Court in December 1994. I have read that evidence carefully. I think there are reasonable grounds to believe that there was a failure to consult Aboriginals. Mrs Chapman admitted that there had been no consultation in the terms in fact envisaged by the consent and authorisation. I think there are reasonable grounds to believe that there was an obligation to consult in the course of carrying out the development proposal. It is true that it is not clear whether the obligation attached to the construction of the bridge or to the other aspects of the development proposal but the question is not whether the second imputation is true but whether there were reasonable grounds to believe the imputation was true. I think that there were such grounds. I do not think Ms Bolster can be criticised for not taking further steps to verify the information. It was reasonable for her to rely on the evidence Mrs Chapman gave in the Federal Court. The Judge did not find that Ms Bolster knew the relevant statements in Publication No 11 were untrue. In my opinion, the Judge erred in finding that the conduct in making Publication No 11 was not reasonable.
363 The Judge found that Ms Bolster was actuated by malice in relation to Publication No 11. I start with one observation about the proper approach to the issue of malice in the case of a communication on a government or political matter. I do not think what the High Court said in Roberts v Bass about targeting a candidate for election can be applied to the respondents. In other words, I proceed on the basis that if the evidence supports a finding that Ms Bolster’s dominant motive was to injure or damage the respondents then that is sufficient to constitute malice.
364 In considering the challenge to that finding, I start with the terms of the publication itself. The publication is a discussion of various issues surrounding the establishment of the Royal Commission and in the course of that discussion some of the history is recounted. The thrust of the publication is not an attack on the respondents. The language used in the publication is forceful in putting a point of view, but is not extravagant. The issues dealt with were in the public arena and of considerable public interest, and, as I have previously said, the respondents were making ample use of the media to put their point of view. Turning to the particular words, they are not extravagant, and I would not construe the words as asserting that Mrs Chapman had admitted that Binalong, knowing that there was a condition for building the bridge which required consultation, had failed to comply with the condition. I would construe the words as asserting that she had admitted to a failure to consult and a statement that there was a condition for building the bridge which required consultation. That was the way the Judge appears to have construed the words bearing in mind that the imputation which he found arose from the words was:
“... with respect to the bridge building they failed to consult Aboriginals when they had an obligation to do so.”
365 If one then looks at the position in fact, there was no consultation after the consent and authorisation were granted. There was a condition requiring consultation attached to the consent and authorisation for the marina extensions and waterfront development. The construction of the bridge was an integral part of the development proposal, although a condition requiring consultation was not attached to the consent for the construction of the bridge. It may be doubtful whether many members of the community, absent special knowledge or advice, would appreciate the difference between the imputation found by the Judge and the position in fact.
366 Ms Bolster relied on the evidence of Mrs Chapman in the Federal Court in making the statement which she did. It cannot be said that that was an unreliable source or one suggestive of the need for further inquiries. Mrs Chapman did admit to a lack of consultation. It seemed to be assumed that there was an obligation to consult, although it is not clear how that obligation arose. Absent any suggestion that Ms Bolster knew the statement was untrue, I see no basis for concluding that she did not have reasonable grounds for believing and did believe it was true.
367 To this point in the analysis I do not think there is any basis for thinking that Ms Bolster was actuated by malice.
368 The Judge relied, as he was entitled to, on extrinsic evidence. I have outlined the matters he relied on. The fact that the Judge found her evidence on a number of points unsatisfactory and that this Court would be slow to interfere with that finding may be accepted but as I have said earlier, absent admissions, that does not prove malice. Her evidence about what she knew about the Kumarangk Coalition was found to be unsatisfactory. However, there was no evidence that she was intimately involved in the affairs of the Kumarangk Coalition. She said that she attended one meeting of the Coalition for about half an hour. Furthermore, involvement in the activities of the Kumarangk Coalition, whatever one might think about the use of such a mechanism, does not necessarily prove an intention to injure or damage the respondents. It may indicate no more than a desire to continue opposition without being involved in legal proceedings. Ms Bolster may have played a part in certain aspects of Mr Owen’s campaign but even on the findings made by the Judge, her motives cannot be equated with those of Mr Owen.
369 I have reached the conclusion, having regard to the above matters and the important background facts I identified in the course of my discussion in relation to Publication No 6, that the finding that Ms Bolster was actuated by malice in publishing the defamatory words in Publication No 11 cannot stand. Even if the evidence supports a finding that she was aware that as part of the campaign criticisms were being made of Mr and Mrs Chapman and that from time to time she joined in those criticisms, the evidence falls well short of establishing that her dominant motive in publishing the defamatory words in Publication No 11 was to injure or damage the respondents. Assuming for present purposes that they were improper, Mr Owen’s motives for conducting a campaign of opposition to the bridge cannot be attributed to Ms Bolster simply because she participated in aspects of the campaign. In my opinion, the respondents failed to establish malice in relation to Publication No 11. The appellants made out the extended defence in relation to Publication No 11.
Traditional Qualified Privilege
370 The Judge rejected the appellants’ submission that Publication No 11 was made on an occasion of traditional qualified privilege on the ground that there could be no privilege attaching to a publication to such a wide readership. With respect to the Judge, I think the issue needs to be analysed in more detail.
371 The Judge found that Environment SA was circulated among member organisations of the CCSA and the conservation movement more generally. He referred to a statement in the July – September issue of the magazine in 1995 (in which Publication No 11 appears) to the effect that the magazine’s circulation is 6000 and the unaudited readership of 100,000 includes educational institutions, libraries, Government departments and member groups.
372 Traditional qualified privilege does not ordinarily arise in the case of material distributed to a wide audience. This is because a wide audience is unlikely to have the corresponding interest (or duty) or common interest sufficient to give rise to the privilege. In Lange the Court said (omitting footnotes) (at 572):
“At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication. But, apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication – more often than not occasions of publication to a single person – the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation.”
373 However, there will be occasions when a large audience will have a sufficient interest to give rise to the privilege (see, for example, Adam v Ward [1917] AC 309). The appellants submitted that this was such a case because the CCSA had a duty to convey information which was relevant to the protection of the environment, including the planning process undertaken in the case of a particular development, and its members and those persons generally in support of the conservation movement had an interest in receiving such information.
374 In Bowin Designs Pty Ltd & Anor v Australian Consumers Association (Federal Court of Australia, Lindgren J, 6 December 1996 unreported), Lindgren J held that an article published in “Choice” magazine by the Australian Consumers Association that criticised the safety aspects of a portable gas heater manufactured and owned by the applicants was protected by traditional qualified privilege. The magazine was sent by mail to 140,403 subscribers plus approximately 150 persons and bodies on a “free” list such as libraries, and consumer organisations. There were a number of features of the case which were important to the Judge’s decision. The heaters posed a substantial danger and the Association knew that no one else had taken steps to warn owners of suspect heaters, or was proposing to do so, and knew that the identity and addresses of the owner of the heaters were unknown so that the only effective means of communication with them was by means of a general and widely publicised warning. Lindgren J referred to the authorities to the effect that, generally speaking, the public media do not have the benefit of the defence of qualified privilege at common law. He said:
“They did not contemplate publications which, although widely available, are on their face, directed to a particular interest. But more importantly, they do not contemplate publications of warnings against a danger of interest or death.”
375 Although these particular features are not present in this case, that does not mean that a sufficient duty and interest may not arise between the CCSA and its members. However, as the passage from Lange which I have cited makes clear, publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. It seems to me that is the difficulty for the appellants in this case because on the evidence the extent of publication is not at all clear. There is evidence from Ms Bolster that the magazine was distributed to groups who were in fact established to promote development (eg., the Mineral Foundation). I am not satisfied the appellants have established a relevant duty and interest between the CCSA and those to whom the magazine was distributed, and in those circumstances I would reject the submission that Publication No 11 was published on an occasion of traditional qualified privilege.
Conclusion
376 In conclusion in relation to Publication No 11, the first imputation (as found by me) was justified and the second imputation (as found by the Judge) was protected by the extended defence and the respondents did not establish malice. The award of damages and the orders of the Judge in relation to Publication No 11 must be set aside. In the circumstances, it is unnecessary to consider the appellants’ submission that the award of damages in relation to Publication No 11 were manifestly excessive.
Conclusion
377 I would allow the appeal and I would set aside the orders made by the Judge. I would order that there be substituted a judgment for the first and second plaintiffs in the sum of $25,000 each against the first, second and fourth defendants and order that otherwise the claims made by the plaintiffs against the defendants be dismissed. I would hear the parties on the costs of the trial and of the appeal.
[1] Lange v Australian
Broadcasting Commission [1997] HCA 25; (1997) 189 CLR
520.
[2] Kumarangk was a
recognised Ngarrindjeri name for Hindmarsh
Island.
[3] Reader’s
Digest Services Pty Ltd v Lamb [1982] HCA 4; (1981) 150 CLR 500 at
505-6
[4] [2002] HCA 57; (2002) 194 ALR
161
[5] [1990] USSC 117; (1990) 497 U.S. 1, see also
Greenbelt Cooperative Publishing Association Inc v Bresler [1970] USSC 109; (1970) 398 US
6
[6] at
[85]
[7] at
[92]
[8] at
[99]
[9] at [87] –
[91]
[10] see [56]
[11] [1917] AC 309 at
334
[12] [1997] HCA 25; (1997) 189 CLR
520
[13] at
571
[14] at
574
[15] (2001-2002) 208 CLR 199
at [196]
[16] [1997] HCA 25; (1997) 189 CLR
520
[17] New York Times v
Sullivan [1964] USSC 40; (1964) 376 US 254