Bass v Roberts & Case No. DCCIV-98-438 [2000] SADC 35

Bass v Roberts & Case No. DCCIV-98-438 [2000] SADC 35 - SADC 2000 case summary — Zoe

[32]

"20.3 The first defendant, through his solicitors letter dated 3rd October 1997 gave an undertaking that the first defendant would take steps to stop the distribution of FTT. 20.4 Notwithstanding the said undertaking FTT was nevertheless distributed extensively to all or at least a substantial number of the residences and business premises situated in the electorate of Florey. 20.4A On 3rd October 1997 the Electoral Commissioner wrote to the first defendant. In the said letter the Electoral Commissioner informed the first defendant that he was satisfied that the FTT contained a statement that the plaintiff was a member of a Frequent Flyer's Club and such statement purported to be a statement of fact and further that on the evidence available to the Electoral Commissioner such statement was inaccurate and that such inaccuracy was material. The Electoral Commissioner in the said letter requested the first defendant to withdraw the FTT from publication. 20.4B The first defendant received the letter referred to in paragraph 20.4A hereof on 3 October 1997 and on the said date retained David Wilson, solicitor. 20.4C On 6 October 1997 the Electoral Commissioner wrote to Mr David Wilson setting out his understanding that the FTT had been distributed within the electorate of Florey and asking whether this had occurred before or after his request to withdraw the advertisement from publication or distribution. The Electoral Commissioner further requested the publication of a retraction in the terms and in a manner and form as specified by him in the said letter including the words 'Any suggestion that Mr Bass used public money for private holidays is also retracted' and requested the immediate withdrawal of the FTT from further publication or distribution. 20.4D Notwithstanding the terms of the letter referred to in 20.4C hereof distribution of the FTT continued. 20.4E By letter dated 7 October 1997 to the Electoral Commissioner David Wilson said that the first defendant 'would be happy to publish a retraction' and suggested an alteration to the retraction requested by the Electoral Commissioner but suggested no alteration to the words quoted in paragraph 20.4C hereof. 20.4F By letter dated 7 October 1997 to David Wilson the Electoral Commissioner said that the was prepared to accept the suggested alteration and stated his requirements as to the terms and form of the retraction including that the retraction be distributed to all addresses within the Florey electorate by 5.00pm Wednesday 8 october 1997. 20.4G By letter dated 7 October 1997 to the Electoral Commissioner David Wilson claimed that the first defendant's enquiries had revealed that there was no distribution facility that would be able to comply with the requirements of distribution laid down by the Electoral Commissioner. 20.4H By letter dated 7 October 1997 to David Wilson the Electoral Commissioner said that his recent experience suggested that the original timetable set by him was reasonable and achievable and repeated his request that the first defendant effect distribution of a retraction as soon as possible. 20.4I The first defendant has never published or distributed a retraction of the FTT. 20.4J Following the distribution of the FTT and the PSBL and the election the first defendant was prosecuted on two counts of publishing an electoral advertisement which advertisement contained statements purporting to be statements of fact that were inaccurate and misleading to a material extent. The charges related to the distribution of the FTT and PSBL respectively. On or about the 4th day of February 1999 the first defendant pleaded guilty in the Holden Hill Magistrates' Court to each of the said charges. Despite such pleas of guilty the first defendant has at no stage acknowledged to the plaintiff the inaccuracy and misleading nature of the PSBL and FTT and has persisted in these proceedings with pleas of justification. 20.5 The first defendant published FTT with the intent of causing hurt, distress and political damage to the plaintiff. AND the plaintiff claims: 1. Damages against the first, second and third defendants in respect of the said words and images appearing in FTT. 2. Exemplary or aggravated damages against the first defendant in respect of the said words and images appearing in FTT. 3. Damages against the first and fourth defendants in respect of the said words appearing in the PSBL pamphlet. 4. Damages against the first defendant in respect of the words and image appearing in the postcard document. 5. Costs. 6. Interest."

[46]

"In further answer to the whole of the statement of claim the first defendant says that the FTT and the pamphlet ('the documents') and the postcard ('the documents') were published on occasions of qualified privilege and was a matter concerning government and political matters affecting the electors of Florey and the choice for electors at an election.

PARTICULARS

24.1 At the time of publication of the documents and the postcard the plaintiff was the elected member in the Parliament of the State of South Australia for the seat of Florey. 24.2 At the time of publication of the documents the plaintiff was a candidate for election to the seat of Florey, which election was to take place on 11 October 1997 ('the election'). 24.3 The documents and the postcard related to matters concerning the conduct of the plaintiff as a Member of Parliament. 24.4 The documents and the postcard related to matters relevant to an elector determining who to vote for at the election. 24.5 Publication was only made to persons who could be expected to be enrolled as electors. 24.6 During the course of his parliamentary term the plaintiff had travelled to Nauru and the United Kingdom at the expense of taxpayers. 24.7 The first defendant repeats the particulars given in paragraph 10.2.1 of this defence. 24.8 The first defendant repeats the particulars given in paragraph 17 of this defence as to the facts and matters relied upon in support of the allegations in that paragraph. 24.9 The first defendant repeats the particulars given in paragraph 18.7 of this defence. 24.10 In the premises, the first defendant had an interest and the electors of Florey had a reciprocal and corresponding interest (or apparent interest) in the matters the subject of the documents and postcard. 24.11 By reason of the matters set out above the publication of the documents and the postcard concerns the public's interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the public. 24.12 The publication thereof and the mode and manner and extent of publication were reasonable in the circumstances."

[52]

"5. The plaintiff says further that the defence referred to in paragraph 11 of the Amended Defence of the first defendant is not available to the first defendant because the publication was made with actual malice.

PARTICULARS OF MALICE

(a) The plaintiff will reply upon all of the matters referred to in paragraph 8 of the Statement of Claim. (b) The publication of FTT was made shortly prior to the election referred to in paragraph 2 of the Statement of Claim. (c) The depiction of the plaintiff in the caricature referred to in paragraph 8.1(a) of the Statement of Claim was such as to lower the reputation of the plaintiff and hold him up to ridicule and contempt. (d) The depiction of the plaintiff was such as to suggest excessive consumption and sloth on the part of the plaintiff. (e) The words and layout of the words 'Parliamentary traveller of the year' were such as to suggest that the plaintiff travelled more than any other parliamentarian when the first defendant had no basis for making such allegation and such allegation was not true. (f) The words 'flat out working for you' in conjunction with the caricature was such as to suggest extreme sloth and failure to attend to his duty by the plaintiff. (g) The reference to 'frequent flyer' in association with the depiction of a false Ansett Australia Frequent Flyer Activity Statement when the first defendant had no basis for suggesting that the plaintiff was a member of Ansett Frequent Flyer and such was not in fact the case. (h) The depiction of apparent newspaper cuttings on the final page of FTT in association with the identification of the plaintiff suggested such cuttings were relevant to the plaintiff's activities when the first defendant had no basis for such suggestion and such was not the case. (i) The get up and layout of the FTT was such as to suggest a serious abuse by the plaintiff of his position as a member of Parliament when there was no basis for such suggestion and such was not the case. (j) The failure of the first defendant to contact or seek the truth in relation to any travel of the plaintiff from the plaintiff prior to publication. (k) The plea of truth in paragraph 10 of the Amended Defence. (l) The conduct of the first defendant in publishing and arranging for the publication and distribution of the FTT, the PSBL pamphlet and the postcard document. (m) The failure of the first defendant to prevent distribution of the FTT after receipt of the letter of 3 October written by the plaintiff's solicitors as referred to in paragraph 20 of the Statement of Claim. (ma) The conduct of the first defendant referred to in paragraphs 20.4A, 20.4B, 20.4C, 20.4D, 20.4E, 20.4F, 20.4G, 20.4H, 20.4I and 20.4J of the Statement of Claim. (n) The matters referred to in paragraphs 15, 17 and 18 hereof."

[106]

"We act for Mr. Sam Bass who is the Member for Florey and is contesting the election to be held on 11 October 1997. We are instructed that you have authorised the publication of a pamphlet entitled 'Free Travel Times' (the pamphlet). The pamphlet contains a number of untrue statements and imputations. It is a serious defamation of our client and is calculated to cause him damage. In particular we are instructed that: 1. It suggests that Mr. Bass is a member of the Ansett frequent flyer program by reproducing a statement from that airline. The statement is a forgery and a fabrication. Mr. Bass is not and never has been a member of the Ansett (or any other) frequent flyer program. 2. The front cover of the pamphlet depicts Mr. Bass luxuriating at a resort; the clear imputation being that he was holidaying in Nauru. This imputation is false and defamatory. As you well know, Mr. Bass represented the South Australian Parliament at a bona fide conference of Presiding Officers. 3. The statement 'Parliamentary Traveller of the Year' implies that Mr. Bass has travelled more than any other member of Parliament. This is false. 4. The third page of the pamphlet suggests that Mr. Bass undertook 8 'free trips' in 1996 and 6 in 1997. It also suggests that he 'ticked up' frequent flyer points on these 'trips'. Both suggestions are false and are designed to damage Mr. Bass. 5. The collage of newspaper clippings on the next last of the pamphlet would be interpreted by ordinary readers to imply that Mr. Bass has been the subject of adverse press comments in relation to travel. None of the clippings in the collage relate to Mr. Bass The distribution of the pamphlet will also contravene section 113 of the Electoral Act which makes it an offence to publish misleading and inaccurate material which is calculated to affect the result of an election. We put you on notice that if any copies of the pamphlet are distributed our client will issue proceedings for substantial damages against you and against each and every person who is concerned in its printing, publishing and distribution. Unless we receive your written undertaking not to distribute the pamphlet by 5.00pm today, Friday 3 October 1997 we will issue proceedings without further notice. We have also brought this matter to the attention of the authorities responsible for instituting prosecutions for breaches of the Electoral Act."

[159]

"A. Yes, we decided as a group that we would target, in particular, Sam Bass in the electorate of Florey. Q. What was the reason for that decision, do you recall. A. The reason we decided to target Sam Bass, as opposed to the other two members in that district, was because we felt that Sam Bass was, to put it bluntly, an easy target. We believed that his record was such that we would be able to campaign and would have a good chance of success in having him defeated at the election. There were two aspects to that. One was that Sam Bass had actively taken actions and spoken out against the interests of the group, which was to restore the Modbury Hospital to public hands. So we felt that as a local member in that district, that the interests of returning the Modbury Hospital to public hands would be best served by getting rid of Sam Bass. That was one reason. Another reason was that Sam Bass's record on the hospital issue was one that we could argue quite easily, because on two occasions he had refused to help us in the issue of the privatisation. So we could categorically go to the electorate and say that he wasn't doing what he should be doing as the local member, and therefore you people out there shouldn't be voting him back in. That was in regard to the hospital. We were also aware that he tripped off overseas in the death knock of his term of office, when everybody was saying there is going to be election next week, or next month, or whatever, and in the face of all of the stuff about politicians going overseas, he went overseas. We just thought that was like jam on our toast. It would mean the public, and it was all over the place, that the public were already going to be against him on that issue, and there was that. And the third issue was in regard to the gun legislation where he actively opposed the Howard propositions and he was publically known for doing that. So all we were doing was adding the Modbury Hospital action stuff to it, and we figured we would defeat him. That would benefit us in two ways. One is, we would get rid of a local member that was no good to us or, in fact, no good to the electorate, as we believe, and it would also bring greater attention to the Modbury Hospital issue, because we could claim that as a group that issue had been significant in defeating him and therefore if the Liberals got back into power, that would put more pressure on them to actually do something about the Modbury Hospital contract."

[184]

"Q. So far as being able to say that he stood by and did nothing to stop secret deals at the Modbury Hospital, what do you base that on. A. On the facts. Q. What facts. A. There were, in fact, during that election there were two secret deals, two secret contracts, in fact, and those contracts were totally secret, and we had made numerous noises as had numbers of other players in that arena, about finding out what was in the contracts and the nature of the contracts and so forth, and they were secret, and Mr Bass had done nothing about that. Q. It may seem a bit tautologous, but what are these secret deals. A. The secret deals are the contract. The contract was a secret deal. I mean, it was extraordinary in the sense that there was no information given to the public about what the responsibilities of Healthscope were. There was no indication of what rights we had as patients at the hospital. The whole thing was a secret, even to the extent that when the media tried to actually do a report on the Modbury Public Hospital, as they did on the other public hospitals, they were refused entry. Q. You said there were two contracts. When was the first of the contracts. A. The first of the contracts was in January 1995, and that was for the management of the hospital. Q. On what basis do you say that Mr Bass stood by and did nothing to stop that contract, if that is what you meant to refer to. A. First of all, we actually asked for him to put the views of the public to the Minister, and he refused to do that. The contracts went through, and as I said before, there was a big issue about the contracts and Mr Bass did nothing. As our local elector he never contacted us about it. He never made any issue in the press about it. He never indicated to anybody in the press that he had done anything about it. In fact, there are several indications where he wholeheartedly supported the contract. Q. You had never asked him what he had done in respect of the contracts, had you. A. No, but we asked him for help. Q. You told us of the two instances that you suggest comprise that, but apart from that, you never asked him what he had done in respect of lobbying the Minister or anything like that. A. No. Q. And with respect to the second contract, when do you say that was. A. The second contract would have been, I am not sure if it was '96 or '97. I have a sneaking suspicion it might have been '96, but basically what happened was the first contracts virtually folded. Healthscope was in a pretty parlous position financially, over the contract, losing money hand over fist, and the government renegotiated it, to keep Healthscope there. In fact, we were told at one stage by the management of Healthscope that if the government didn't do something about it, they would walk away. Q. All I asked you was, when the second contract was, and you think it was '96. A. Yes. Q. And in respect of that contract, is your basis for suggesting that Mr Bass did nothing to stop secret deals, the same as in your first one. A. That's right."

At a glance

Court

Decision date

Before

Source

Judgment (419 paragraphs)

Bass v Roberts & Case No. DCCIV-98-438 [2000] SADC 35 (24 March 2000)

Parties

Cases Cited (16)