Evatt v Nationwide News Pty Ltd

COUNSEL : Appellant - J R Young Respondent - T S Hale & M S C Champion SOLICITORS : Appellant - Charters, Auburn Respondent - Cropper Parkhill, Sydney CATCHWORDS : DEFAMATION - statutory qualified privilege - whether conduct in publishing defamatory material reasonable in the circumstances - imputation found by jury not intended - believed in different meaning - failure to show conduct reasonable in relation to unintended imputation - defence not made out. DECISION : (1) Appeal allowed; (2) Set aside the judgment for the defendant and the order for costs; (3) Judgment for the plaintiff for $20,000; (4) Order the respondent to pay the appellant's costs of the proceedings at first instance and of the appeal.

17 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Monday 19 April 1999 LYNDAL EVATT v NATIONWIDE NEWS PTY LTD (t/as CUMBERLAND NEWSPAPERS)

3 GILES JA: The respondent Nationwide News Pty Ltd published the Northern District Times, circulating principally in the northern suburbs of Sydney. The edition of 27 January 1993 contained an article written by Mrs Leanne Younes, a journalist employed by the respondent, concerning a meeting of residents of a public housing estate at Ryde known as Ivanhoe Place. The meeting had been called by an association known as the Ivanhoe Place Residents Association Inc, of which the appellant Ms Lyndal Evatt was then the secretary. It was chaired by Mr Wayne Tilly, an employee of the Public Tenants Council, a body established to represent the interests of persons occupying public housing in the State.

4 The article included - "According to Mr Tilly, the meeting had been called to present a no-confidence motion in the IPRA Inc secretary Lyndal Evatt. Ms Evatt was asked to explain several of her actions, including the failure to produce minutes of previous committee meetings and failure to send out letters as requested by the committee. A dispute also arose over Ms Evatt's wish to tape record the meeting's proceedings. As the meeting further 'degenerated' police urged the gathering to concentrate on the agenda." 5 The appellant brought proceedings against the respondent, alleging that the article was defamatory of her. In her statement of claim she pleaded two defamatory imputations -

(a) that she was derelict in her duties as secretary of the Ivanhoe Place Residents Association; and (b) that she caused the meeting of the Ivanhoe Place Residents Association to degenerate.

6 In its defence the respondent denied that the article conveyed the imputations, denied that the imputations were defamatory of the appellant, and pleaded that the article was published in circumstances where the appellant was unlikely to suffer harm and under qualified privilege. Particulars of the defence of qualified privilege included - "(e) The defendants [sic] comment was reasonable in the circumstances because its servants and agents believed what they published to be true and took care to form a belief in the accuracy and fairness of the information contained in the matter complained of. It was satisfied as to the authenticity and accuracy of the sources of the information available in preparing the matter complained of. Furthermore the defendant was satisfied as to the fairness of the language and the manner in which the matter complained of was composed."

7 In her reply the appellant alleged in relation to the defence of qualified privilege that the respondent was "actuated by express malice". It is unnecessary to refer to the particulars then given.

8 The proceedings were heard by Newman J and a jury over ten days in February and March 1997. At the conclusion of the evidence his Honour ruled that the question of malice in relation to the defence of qualified privilege should not go to the jury. The jury's answers to specific questions were taken. The defence of qualified privilege was then determined by his Honour.

9 In answer to the questions the jury found that the article conveyed imputation (a), but not imputation (b); that the imputation was defamatory of the appellant; and that the respondent had not established that the article was published in circumstances where the appellant was unlikely to suffer harm. Accordingly, and subject to the defence of qualified privilege, it found for the appellant and assessed damages of $20,000.00. 10 The jury answered two further questions material to the defence of qualified privilege - "1. Has the defendant established that at the time of publication of the article on 27 January 1993 the defendant, by its employee Leanne Younes, believed in the truth of what was published - YES 2. Has the defendant established that on or shortly prior to 27 January 1993 Leanne Younes spoke to the plaintiff about the subject matter of the article subsequently published on 27 January 1993 - NO." 11 In reasons published on 6 March 1997 Newman J held that the statutory defence of qualified privilege had been made out. His Honour gave judgment for the respondent and ordered that the appellant pay the respondent's costs.

12 The appellant appealed in relation to the holding that the statutory defence of qualified privilege had been made out and the ruling that the question of malice in relation to that defence should not go to the jury. Qualified Privilege 13 Section 22(1) of the Defamation Act 1974 ("the Act") provides - "22(1) Where, in respect of matter published to any person: (a) The recipient has an interest or apparent interest in having information on some subject; (b) The matter is published to the recipient in the course of giving to him information on that subject; and (c) The conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication." 14 The statutory defence of qualified privilege must be determined by the judge after any disputed questions of fact upon which it depends have been decided by the jury (s 23 of the Act; Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511; Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374). The further questions answered by the jury earlier set out were intended to decide such disputed questions of fact, and Newman J recorded that the parties had agreed that, in addition to findings of fact made by the jury, he was to make any further findings of fact necessary for a consideration of whether the defence succeeded.

15 His Honour found that the readers of the Northern District Times had an interest in having information upon events at a meeting involving residents of Ivanhoe Place, and that the matter complained of was published in the course of giving information to those readers on that subject. He said that the contentious issue was "whether the conduct of the defendant in publishing the article in question (and in particular the defamatory imputation) was reasonable in the circumstances". There was no challenge to his Honour's findings in relation to s 22(1)(a) and (b), and the appeal was concerned with his Honour's conclusion in relation to s 22(1)(c). 16 His Honour cited a passage from the judgment of Hunt AJA, with whom Samuels JA agreed, in Morgan v John Fairfax & Sons Ltd (No 2) at 385, referring to the necessity in most cases, in determining whether the defendant's conduct was reasonable in the circumstances, for the defendant to establish an honest belief in the truth of what was written. His Honour then said -

"In the instant case the jury's affirmative answer to the first of the questions asked of them in relation to that matter establishes that the defendant had the requisite belief in the truth of the matter. Thus the critical question which arises for my determination is whether, in the light of the failure of the defendant to establish that Leanne Younes spoke to the plaintiff prior to the publication of the article, the defendant has succeeded in establishing that its conduct, in publishing what it published, was reasonable in the circumstances. At the trial the competing imputations contended for by the parties were:

A. By the plaintiff that it was imputed as a fact that she was derelict in her duties; and B. By the defendant that others alleged that she was so derelict. As I have said, the jury found that the plaintiff had established her contention. The author of the article, Leanne Younes, deposed that it was her belief that the imputation conveyed by the article was that contended for by the defendant. The jury's finding demonstrates that they accepted that was, in fact, her belief." 17 As will appear, his Honour's reasoning thereafter was premised upon the jury having found that Mrs Younes believed that the imputation conveyed by the article was that others alleged that the appellant was derelict in her duties, not the more serious imputation that in fact the appellant was derelict in her duties. In the appellant's written submissions she appeared to take issue with this, contending that the jury had made no finding in relation to what imputations the respondent or Mrs Younes intended to convey and that his Honour had "confused the jury's finding on [further] question 1 with a finding that the jury found Mrs Younes' evidence to be true other than in relation to [further] question 2". This was disclaimed in the course of submissions. Mrs Younes had given evidence to the effect to the effect that she did not intend to convey that in fact the appellant was derelict in her duties, intended to convey that a significant number of people believed that the appellant was not performing her duties on the Ivanhoe Place Residents Association to the level she was expected to, and believed the latter imputation to be true. The appellant accepted that, by its answer to further question 1, the jury had found that Mrs Younes believed in the truth of the imputation for which the respondent had contended, that others alleged that the appellant was derelict in her duties, and it was said that it was not in dispute that Mrs Younes did not intend to convey the imputation found by the jury, that the appellant was derelict in her duties as secretary of the Ivanhoe Place Residents Association.

18 His Honour then set out a further passage from the judgment of Hunt AJA in Morgan v John Fairfax & Sons Ltd (No 2) at 387-8, in which there were stated out propositions supported by the decisions discussed in that case in relation to the requirement of s 22(1)(c) that the conduct of the defendant in publishing the matter must have been reasonable. The passage should be repeated here -

"(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the defendant's conduct in relation to the publication of that particular imputation. (2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro's case [ Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493], and perhaps also that discussed in Collins v Ryan [(1991) 6 BR 229]) have believed in the truth of that imputation.

(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish: (a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and (b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed. If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s 22(1)(c) as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood: Evatt v John Fairfax & Sons Ltd at 13-14 [Hunt J, 20 June 1985, unreported]; Makim v John Fairfax & Sons Ltd (1990) 5 BR 196 at 209; see also Wright v Australia Broadcasting Commission [(1977) 1 NSWLR 697] at 712 (whether the defendant 'knew whether he was likely to convey a misleading impression'); Austin v Mirror Newspapers Ltd [(1985) 3 NSWLR 354] (at 362) (Privy Council). (4) The defendant must also establish:

(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right (where appropriate) by making proper inquiries and checking on the accuracy of his sources; (b) that his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained; (c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and (d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers. The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one: cf South Suburban Co-operative Society Ltd v Orum [1937] 2 KB 690 at 700-701; White & Co v Credit Reform Association & Credit Index Ltd [1905] 1 KB 653 at 658, 660; see, also, Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 at 55-56. It is necessary to keep in mind that each of the matters referred to in par (4) are relevant to the reasonableness of the defendant's conduct; they do not raise questions independently of that issue. This is important in relation to the functions of judge and jury. If, for example, there is a dispute as to whether the defendant made a particular inquiry, that dispute is to be decided by the jury. But if there is a dispute as to whether reasonable conduct in the circumstances required inquiries to be made or as to whether the inquiries in fact made were sufficient, those disputes are to be decided by the judge as part of the ultimate question as to whether the defendant's conduct was reasonable in the circumstances." Immediately after setting out this passage his Honour said that "It is thus for me to determine whether the enquiries made by Mrs Younes prior to the writing and publication of the article were sufficient". 19 His Honour then referred to evidence from Mrs Younes that her enquiries involved her interviewing Mr Tilly and three other persons apart from the appellant (it will be recalled that the jury found in answer to further question 2 that Mrs Younes had not interviewed the appellant), and that she had available to her certain documents including complaints as to the appellant's performance as secretary of the Ivanhoe Place Residents Association Inc. He continued -

"Furthermore, tendered in evidence were notes kept by Mrs Younes relating to the inquiries she had made. In the light of the finding by the jury that Mrs Younes believed in the truth of what was published with the exception of her claim that she had interviewed the plaintiff (which the jury, of course, found not to be established) they must have found that Mrs Younes at least carried out a substantial number of the inquiries which she claimed to have made. Whether the imputation contained in the article is construed as found by the jury or as it was unsuccessfully contended for by the defendant, the fact remains that it was the plaintiff who was the key figure involved. Does then Mrs Younes' failure to interview her (as found by the jury) lead, in the circumstances of this case, to a consequential failure by the defendant to establish qualified privilege." 20 Having considered and rejected the respondent's submission that the imputation found by the jury was in fact true and so any failure to interview the appellant was not relevant, his Honour came to his conclusion -

"While, as I have said, the question of whether qualified privilege exists, depends as a general rule by reference to the actual facts, a bona fide, though mistaken belief, as to the circumstances can confer the privilege. In London Association for Protection of Trade v Greenlands [1916] 2 AC 15 at 42 Lord Parker said:

'It is therefore a principle of law that a person asked for information affecting the credit of another is justified in giving it, provided - 1. that he bona fide believes in the truth of the information which he gives; …'

See also Hunt AJA's analysis in Morgan's case . Here Mrs Younes did have (as found by the jury) a bona fide belief that what she had written gave rise to the imputation contended for by the defendant. While that was not the imputation found by the jury her belief was otherwise and (as also found) honestly formed. That belief could not have been in any way changed by an interview with the plaintiff which may have confirmed that the matters of dereliction of duty referred to in the article were allegations made by others which were to be raised at the meeting and not matters of historical fact. It is not difficult to visualise circumstances where the failure of a journalist to interview a plaintiff prior to the publication of a defamatory article will disentitle a defendant publisher from relying on a defence of qualified privilege. Those circumstances are obviously manifold. However, the jury's finding as to the belief of Mrs Younes in this case coupled with their finding as to the defamatory imputation leads me to the conclusion that the inquiries made by Mrs Younes were sufficient to satisfy the test as outlined by Hunt A-JA in Morgan's case . In short, that inquiry of the plaintiff would not have altered Mrs Younes' belief that what she had written was true." 21 His Honour's reasoning to his conclusion is tolerably clear. He focussed upon para 4(a) in the passage from Morgan v John Fairfax & Sons Ltd (No 2), the exercise of reasonable care by making proper inquiries. With the premise of a finding that Mrs Younes believed that the imputation conveyed by the article was that others alleged that the appellant was derelict in her duties, he asked whether the failure to speak to the appellant about the subject matter of the article before it was published, as found by the jury, spelt doom for the defence of qualified privilege. He thought that it did not because it was not unreasonable to fail to interview the appellant when "interviewing the appellant would not have altered Mrs Younes' belief that what she had written was true". Her belief was that what she had written "gave rise to the imputation contended for by the defendant", that is, the imputation that others alleged that the appellant was derelict in her duties as distinct from the imputation that in fact the appellant was derelict in her duties. Her belief so understood was reasonably founded in the other inquiries which the jury must have found she had made, and interviewing the appellant would not have altered that belief because the appellant could not usefully contribute to the facts showing that others alleged dereliction in duty.

22 The appellant's submissions included that his Honour had erred in his view that the jury must have found that Mrs Younes made the other inquiries, in implicitly finding in the making of the inquiries reasonable grounds for the belief that others alleged that the appellant was derelict in her duties, and in finding that, on the premise of that belief, inquiry by interviewing the appellant was not called for. Reference was made to a passage in the reasons of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574, a decision delivered after the hearing conducted by Newman J, in which it was said that a defendant's conduct will not be reasonable "unless the defendant has sought a response from the person defamed and published the response (if any) except in cases where the seeking of publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond".

23 The respondent answered these submissions by arguments to the effect that the jury must have found that Mrs Younes made the other enquiries, that in any event his Honour's reasons should be read as an independent finding by his Honour in accordance with what his Honour thought the jury must have found, that the making of enquiries (which included obtaining the minutes of the meeting and a record of so-called "resolutions" to be put to it) did provide reasonable grounds for the belief that others alleged that the appellant was derelict in her duties, and that the context in which the passage appeared in Lange v Australian Broadcasting Corporation detracted from its apparent endorsement of the need for inquiry of the appellant. It was emphasised that the circumstances in which defamatory matter was published could be infinitely various and no universal rule for reasonable conduct could be laid down (see for example Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 360; Morgan v John Fairfax & Sons Ltd (No 2) at 388), and an instance of conduct found reasonable in the circumstances without inquiry of the person defamed was suggested (Morgan v John Fairfax & Sons Ltd (Mathews J, 1 September 1989, unreported)).

24 All this maintained the focus upon the exercise of reasonable care by making proper enquiries, but the appellant's submissions also included that his Honour had erred in restricting his consideration of reasonableness in the circumstances in the manner he had. It was said that his Honour had wrongly given primacy to Mrs Younes' belief, and that consideration of reasonableness in the circumstances required regard to the more serious imputation found by the jury and the respondent's conduct in the publication of the article conveying that imputation. In my opinion this submission should be accepted, and his Honour's holding that the defence of qualified privilege had been made out can not stand. It is not necessary to resolve the competing submissions outlined in the two preceding paragraphs.

25 To revert to the passage from Morgan v John Fairfax & Sons Ltd (No 2) at 387-8 earlier set out, reasonable care in making proper enquiries is only part of what the defendant must generally establish. Paragraph 3 in the passage was concerned with reasonableness in a different respect, in particular where (as in the present case) the defendant did not intend to convey the imputation in fact conveyed. The correctness of what was stated in that paragraph was not contested in this appeal. Paragraph 3(b) showed that reasonableness in the circumstances included whether the defendant's conduct was reasonable "in relation to each imputation which he did not intend to convey but which was in fact conveyed".

26 Section 22(1)(c) is concerned with publication of "matter", by regard to s 9 of the Act being the article rather than the imputation found by the jury (see Morgan v John Fairfax & Sons Ltd (No 2) at 390). But the imputation conveyed by the article was still relevant to the reasonableness of the respondent's conduct (ibid). Newman J seems to have recognised this when he described the contentions as "whether the conduct of the defendant in publishing the article in question (and in particular the defamatory imputation) was reasonable in the circumstances". That the article conveyed the unintended imputation was itself part of the circumstances and threw up, amongst other issues, the questions described in the latter part of para 3 in the passage from Morgan v John Fairfax & Sons Ltd (No 2).

27 It was therefore relevant, and necessary, to ask whether Mrs Younes gave consideration to the possibility that the article would be understood as conveying the imputation found by the jury, that the appellant was derelict in her duties as secretary of the Ivanhoe Place Residents Association, and what was her belief in the truth of that imputation, rather than take as the premise her belief that the imputation conveyed was the lesser imputation that others believed that the appellant was derelict in her duties. The reason is obvious. To be accurate and fair, a journalist must endeavour to ensure that his or her work does not convey a misleading impression, and a defendant's conduct will not be reasonable in the circumstances if, through the journalist carelessly or irresponsibly failing to do so, the matter published conveys an unintended defamatory imputation. The respondent's particulars of the defence of qualified privilege indirectly acknowledged this. To confine the consideration of reasonableness to the journalist's belief could reward the carelessness or irresponsibility.

28 Although the passage from Morgan v John Fairfax & Sons Ltd (No 2) cited by his Honour included para 3, it does not appear that Newman J gave consideration to the significant aspect of reasonableness in the circumstances to which it refers. His Honour's consideration of reasonableness was confined to reasonableness in relation to the imputation intended to be conveyed, and did not extend to reasonableness in relation to the imputation found by the jury to have been conveyed. The respondent fairly acknowledged that it could not point to any such consideration in his Honour's reasons. Unless some reason can be seen for this, reasonableness in the circumstances was not properly addressed.

29 It may have been that his Honour focused upon para 4 in the passage because of further question 2 answered by the jury, and that in the conduct of the proceedings the question of reasonableness by inquiry of the appellant was seen as the key to reasonableness in the circumstances, to the exclusion of all else. But we were informed by counsel for the appellant, without dissent from counsel for the respondent, that a submission had been put to his Honour taking up the considerations in para 3 in the passage, and some ground for such a submission had been laid in the cross-examination of Mrs Younes -

"Q. Having covered, as you have told us, from time to time stories that involved police issues, have you also been involved in stories that may from time to time involve court proceedings? A. Yes. Q. You understand the difference between a statement of fact and an allegation? A. Yes. Q. Why did you not say in paragraph 5 that there was an allegation that there had been a failure to produce minutes? Do you understand that? Why is the word 'allegation' or some similar word not included there? A. I have no idea. Q. It suggests as a fact, doesn't it, she was asked to explain several of her actions, including the failure to produce minutes of previous committee meetings, and failure to send out letters as requested by the committee? A. That was what was on the schedule of the agenda that was to be discussed at the meeting. Q. Why didn't you put that in the article? A. I may have. Q. But it may have been left out? A. Not left out, subbed out. Q. Do you think in fairness the article should contain some such qualification? A. I think, considering it was listing the items to be discussed at the meeting, it is fair enough the way it is. Q. The person who was reading this article over their cornflakes or on the bus or whatever, would not know about the agenda, would they. A. They may not interpret it the way you are suggesting either. Q. But they may, may they not? A. It is purely a personal interpretation. It is a statement of fact as I understood it at the time." 30 Recognition that the article might convey the imputation as found by the jury - and the jury's finding indicates that it was there to be recognised - may have led to a change in the article as suggested in this cross-examination; it would also have been material to whether the conduct of the defendant had been reasonable in the circumstances in the absence of inquiry from the appellant.

31 The respondent did not submit that the conduct of the proceedings was such that reasonableness in relation to the imputation found by the jury was put aside. Its submission was to the effect that the circumstances in some cases can be such that a journalist reasonably does not foresee that the matter might convey the imputation which the jury finds was in fact conveyed, as the passage from Morgan v John Fairfax & Sons Ltd (No 2) seemed to envisage, and that his Honour must be taken to have found that the conduct of the respondent, through Mrs Younes, was in this respect reasonable. But in the present case so far as appears no consideration was given to the question at all. His Honour's assessment of satisfaction of s 22(1)(c) was flawed, and the respondent's muted submission that the error was not such as to bring injustice or warrant appellate intervention can not be accepted. Malice 32 The issue on appeal was whether a particular passage in the cross-examination of Mrs Younes provided some evidence of ill-will towards the appellant such that the question of malice should have been allowed to go to the jury. What was said to be the effect of the passage may not have been within the particulars of malice in the appellant's reply, but no point was taken: hence it was unnecessary to refer to those particulars.

33 The passage was part of cross-examination in relation to the article, and was -

"Q. And very shortly after publication you became aware that there was a complaint about it to Miss McCormack representing the whole Cumberland Group? A. I can't remember what stage I found out. I wasn't surprised I might add because Miss Evatt had been fairly verbal in her threats throughout the entire couple of months when I had been having conversations with her. Q. There had never previously been a complaint, had there? A. She had rung Wendy McCormack before that and she had come to the Eastwood Office to see the editor and she had rung the editor and myself several times about trying to stop the previous articles going to print. Q. So you were well aware, were you, that there may be a complaint in relation to this article? A. I wasn't well aware that there would be a complaint, no, because I believed I was providing a fair and accurate account of what happened. Q. The fact that a complaint may arise would not have surprised you? A. No, it did not surprise me." 34 It was later put to Mrs Younes that she was "antagonistic towards Ms Evatt because of some complaint that had been made in relation to previous stories": she denied it, adding "If I was to become antagonistic about every complaint that is received about every story I wouldn't be still in the industry".

35 Miss McCormack was the editor of the Northern District Times. The appellant submitted that there was to be found in this passage evidence of ill-will consisting of expressions of antipathy and hostility in the witness box based on alleged prior conduct of the appellant. It was said that the reaction of Mrs Younes in the witness box to the mere suggestion of complaint after publication, namely that the appellant had engaged in threats over the entire period, was in itself cogent evidence of ill-will, and that the ill-will was further open to be found because Mrs Younes had volunteered that the appellant had previously tried to stop her stories going into print. Citing Gatley on Libel and Slander, 9th ed, para 22.34 for the proposition "Anything that shows that the plaintiff and the defendant lived on bad terms may bear on the issue of malice", the appellant submitted that this was sufficient for the question of malice to go to the jury.

36 The question asked of Mrs Younes did not call for that part of her answer in which she said that she was not surprised about a complaint to Miss McCormack and gave the reason for her lack of surprise. In that sense she volunteered what she said, although I do not think it correct that she volunteered that the appellant had previously rung the editor and herself about trying to stop the previous articles going to print: that was part of a full answer to the question. But neither separately nor together, read as part of the overall cross-examination, do I think that Mrs Younes' responses to the questions revealed antipathy or hostility to the appellant. They were factual, and they were not inappropriate although in the case of the first answer going beyond what was called for in answer to the question. The questions may have suggested antipathy and hostility on the part of the appellant towards Mrs Younes, but the answers did not in my view entitle the jury to find that those feelings were reciprocated. The Consequences? 37 On the assumption that Newman J's holding as to the defence of qualified privilege could not stand, the appellant submitted that this Court could and should hold that the defence had not been made out, so that there should be judgment for the appellant in the amount of $20,000 assessed by the jury. On the same assumption, the respondent submitted that there would have to be a new trial, because this Court was not in a position to make findings necessary to assess for itself the reasonableness of the respondent's conduct. There was some discussion of whether the new trial should be on all issues, or limited to the defence of qualified privilege or in some other way.

38 The respondent's defence had pleaded that the article was published under qualified privilege both at common law and under s 22 of the Act. Newman J had upheld the statutory defence of qualified privilege, and it was unnecessary for his Honour to go further. In this Court the respondent did not suggest that, if this Court held that the statutory defence had not been made out, it could fall back on the defence at common law. The appeal was conducted, including in relation to the consequences of a conclusion that his Honour's holding could not stand, by regard only to the statutory defence.

39 The presently material element in the defence of qualified privilege, s 22(1)(c), requires an assessment of the conduct of the defendant in publishing the matter "in the circumstances". It is for the defendant to establish that its conduct was reasonable. While regard must be had to all the circumstances in which the matter was published, it may be that the deficiency in the defendant's conduct in a particular respect was so marked that, viewed with the other circumstances, the deficiency in that respect means that the conduct can not be found to have been reasonable. In my opinion that is so in the present case, and this Court can properly conclude that the respondent has not established that its conduct in publishing the article was reasonable in the circumstances.

40 Mrs Younes believed in the truth of what was published; she believed that the article conveyed that others alleged that the appellant was derelict in her duties, and intended to convey, and believed to be true, that a significant number of people believed that the appellant was not performing her duties in the Ivanhoe Place Residents Association to the level she was expected to. Her belief was founded on a course of making inquiries, including obtaining the minutes of the meeting and the record of so-called "resolutions" to be put to it. She did not intend to convey the imputation found by the jury. All this may be taken in the respondent's favour.

41 But the jury found that the article conveyed the more serious imputation, that the appellant was derelict in her duties as secretary of the Ivanhoe Place Residents Association, and it would be a rare case where a jury's finding did not carry with it that it was reasonably foreseeable that the imputation might be conveyed. In Evatt v John Fairfax & Sons Ltd (Hunt J, 20 June 1985, unreported), one of the cases referred to in para 3 of the passage from Morgan v John Fairfax & Sons Ltd (No 2), it was said that, in the absence of evidence from the defendant that it did not intend an article to convey certain imputations, "if the jury finds that the ordinary reasonable reader interpreted the matter complained of in that context, the journalist would have interpreted it in the same way". In Howard v Nationwide Publishing Services Pty Ltd (Hunt J, 26 February 1987, unreported) this was described as a case "where it was reasonably obvious that a particular imputation could be conveyed by what was published and where, although the author did not intend that imputation to be conveyed, he would not have acted reasonably (as required by s 22) unless he made certain - by some form of express disclaimer - that it was not intended to be understood in that sense".

42 In the present case Mrs Younes did give evidence that she did not intend to convey the imputation found by the jury. But so far as the evidence showed, save so far as may be inferred from her intention in relation to the lesser imputation, Mrs Younes gave no thought to the possibility of the more serious imputation. On the one occasion when she might have explained her conduct in that respect, the cross-examination set out earlier in these reasons, she did not say that she did not include the word "allegation" or some similar word in what was obviously enough the potentially most detrimental paragraph of the article because she had considered whether it could be read in the more serious way and was satisfied that it could not. She said, "I have no idea", and in the following exchange in the cross-examination seemed to accept the availability of the alternative reading while describing it as purely a personal interpretation.

43 It is a commonplace of life that words and phrases, and the sentences and paragraphs constructed from them, may have more than one meaning, and (to borrow from Austin v Mirror Newspapers Ltd at 365) an indulgent view should not be taken of the conduct of a journalist who fails to appreciate that his or her work conveys a defamatory imputation, or of the conduct of a publisher which in editing the journalist's work fails to appreciate that the editing causes it to convey a defamatory meaning. Some explanation of the conduct of the journalist or publisher is to be expected. Here there was none. Without finding fault in the other circumstances, in my opinion because of this deficiency in its conduct the respondent failed to establish that its conduct was reasonable in the circumstances.

44 It follows that the defence of qualified privilege is not made out, and I consider that the appellant should have judgment in the amount assessed by the jury.

45 I propose the following orders - 1. Appeal allowed. 2. Set aside the judgment for the defendant and the order for costs. 3. Judgment for the plaintiff for $20,000. 4. Order the respondent to pay the appellant's costs of the proceedings at first instance and of the appeal. ____________

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