"This letter is not specifically addressed only to yourself, Mr Prime Minister but to all your Federal Government Ministers, colleagues, and heads of Government Departments and semi-governmental Authorities."
36 Mr Littlemore contends that on its true construction, that sentence means that Mr Skalkos was intending to write in similar terms to other prominent persons, as identified in that letter.
37 Mr Hughes, on the other hand, contends that it is in effect an invitation to the Prime Minister, or whoever was handling the matter within his Office, to republish the letter, if thought fit, to those other persons in authority as identified there. Whether that is so or not must ultimately be resolved by the jury, but I must say that I have great difficulty, with respect, accepting the construction which Mr Littlemore puts on it.
38 If it is taken, as I am inclined to think it is, as an invitation to republish, then of course that becomes a critical aspect of this letter. In a sense, although I don't mean this in a technical sense, it becomes a publication somewhat at large, because one would never know the extent to which copies of the letter may be passed on to others.
39 In any event, the evidence to which I have made reference in Ms de Salis's evidence is the total evidence that has been led in this Court as to what occurred in the Prime Minister's office. I must say, bearing in mind that Ms de Salis said that she worked continuously in Canberra whilst working for the Federal government, I do not think the jury would have much difficulty in inferring that she was in Canberra at the time the copy of the letter came into her possession.
40 There is evidence that a signed copy of the letter (exhibit W), came into the possession of an officer at the Melbourne office of Telecom, which was, of course, in 1993, a wholly government-owned instrumentality.
41 Ms Tessa Hall gave evidence that for some years up to 1994 she worked for Telecom in Melbourne. In 1993 her position was Manager Liaison, Multicultural Marketing. She had held that office for just under 12 months. She was shown the letter, Ex W, which is a copy, as I have already indicated, of the full text signed by Mr Skalkos. She said she first saw it probably in late July 1993, when she located it in the in-tray on her desk. She read it a couple of times and she expressed a degree of concern. She had known Mr Assaf for some 8 or 9 weeks.
42 It was of keen interest to her to read the letter because she was responsible for a Telecom launch to the multicultural community in a pre-ballot situation (the Telecom/Optus ballot) and the second plaintiff was the agency that had been chosen for her to work with, and the allegations in the letter related to that agency. So, naturally, she said, she felt a degree of concern as to the validity of what was written there.
43 She reported the letter to her senior officer, Colin Harvey and discussed the matter with him. She also discussed it with Therese Fedor, who was the Marketing Manager for the multicultural market, dealing with different types of publications and documents.
44 After she had read the letter, Mr Skalkos rang Ms Hall simply saying he wanted to do business with Telstra. She said that she couldn't do anything about that.
45 Evidence was given also by Mr Harvey. He read the letter and had discussions with Margaret Fairman, another officer in Telecom who was interested in the matter raised in the letter.
46 The issue will arise in the proceedings when the matter is finally put before the jury as to whether, in fact, there was a publication by the defendants to Telecom.
47 The plaintiffs will rely in part, it has been indicated so far as this letter is concerned, on Ex W, the copy of the letter identified by Ms Hall, which has a transmission note dated 23 July 1993 from " C and G Sales T Skalkos". However, interestingly, there is no evidence as to the identification of the addressee by reference to the fax number of the addressee on the document.
48 In his submissions, Mr Littlemore referred me to the judgment of Badgery-Parker J in the matter of New South Wales Aboriginal Land Council v Perkins. Unreported, CLD11262 of 1991, 15 August 1997. His Honour allowed a letter published to the Premier of New South Wales and the alleged defamation flowing from that letter to be the subject of a s.13 defence.
49 I have read the judgment of Badgery-Parker J in relation to that aspect, and given it such weight, if I may respectfully say so, as I feel in the circumstances of this particular case it bears.
50 In his submissions Mr Littlemore stressed the limited publication of the letter within the Prime Minister's Office and, to the extent that it was published to Ms de Salis, she gave no credence to it, and destroyed it.
51 He submitted that it was not "a grapevine case" and that in considering publication within the meaning of s13, the Court is necessarily limited to what the plaintiffs have proved in that regard.
52 Then, on the assumption that the issue of the publication to Telecom will be established in favour of the plaintiffs, he again focused upon what he contends was the restricted publication of a different document to three people in a section of Telecom. He submitted that the only publication at Telecom was to Mr Harvey and Ms Hall and Ms Mitchell.
53 Mr Littlemore submitted that it was only necessary for the defendants to make out the s13 defence as being legally tenable, and that was relatively easy in the circumstances where the publication was to a small number of persons, as it was to Telecom and the Prime Minister's office, all of such persons being acquainted with the plaintiffs and well able to make their own judgments as to the validity of the material in the letter.
54 He stressed that this is a defence to the publication, not strictly a defence to the imputations. He referred to the necessity to take into consideration the nature of the published material, the manner in which it was published, to whom it was published, and the place of publication.
55 The "circumstances of the publication", he contended must be a reference to the actual publication not the intended publication.
56 The matter one could not take in consideration, he submitted, in the light of the authorities, is any evidence of harm, in fact, suffered by the plaintiffs as a result of the publications.
57 He submitted that s140 and s142 of the Evidence Act, 1995, established a Brigenshaw type standard. I do not have any difficulties, if I may so, with respect to that submission.
58 I do not propose to set out the entirety of the legal arguments that were put to me by Mr Littlemore, all of which have been considered, and are set out in the transcript.
59 The question is: what is the test posed by s13?
60 I have referred to the test, if I could use that expression, identified by Mahoney JA in King and Mergen Holdings, namely, the defendants must negative not merely that there would be great or substantial harm but that there be "harm" at all. Although, as his Honour stated, the significance of what is required in this regard may require consideration in subsequent cases.
61 Another way of putting it, as I read the cases, is whether the circumstances of the publication were such as to activate or be capable of activating s13. Of course, in considering that question, one must look at the entirety of the evidence as it exists and the specific matters relied upon by the defendants.
62 Reluctant as one must necessarily be to express views on the evidence, the evidence as it stands, and the authorities as I read them, lead inexorably, in my view, to the conclusion that s13 is not available to the defendants in this case, and in expressing that view, I take into account the extent of the actual publication.
63 The publication, firstly to the Prime Minister's office, the highest political office within the country and concerned with ethnic matters and the ethnic media, could only be considered, in my view, as a matter of much significance and propensity to cause harm to the plaintiffs.
64 In no sense at all, in my view, could that publication fall within the concept of triviality, or the triviality defence as it is sometimes called, as explained in the cases.
65 Thus, in my view, in relation to the first publication, I have no alternative but to take away the defence under s13 in relation to all imputations. There is no satisfactory way in which a different conclusion could be reached in relation to any of them. I turn then to the Novosti publication.
66 The first plaintiff is not named in the Novosti publication, only the second defendant. The same, of course, applies to the letter to the Prime Minister. The evidence would seem to indicate that there was a potential readership of conservatively 14,000 members of the Australian/Serbian community of Novosti.
67 There is evidence from one, George Jaksic, (at page 465 and following), who has been known to the first plaintiff for some 20 years. Their relationship flowed from various publishing roles, Mr Jaksic being by occupation a publisher.
68 He was born in Australia but speaks the Serbian language fluently.
69 He gave evidence, (page 467), that on the Sunday afternoon of 1 August 1993 his late father walked downstairs in his house in Annandale, and said:
"'George, I have got something interesting to show you. You are dealing with criminals again'. I said 'What the hell are you talking about, Dad' and he showed me the paper which is an edition of Novosti and turned to page 13 where I was made aware of the open letter to Paul Keating and I stopped and read that".
70 He read it, of course, in the Serbian language text. He then said: