6.7 " The position in relation to Brisbane is even worse."…
" Those things win and lose games."
6.11 " Well, I can only tell you what the people are saying."
81 In the same letter, the defendant's solicitors specified the following statements in the matter complained of to be fact.
6.1 " … all Brisbane matches played under Bill Harrigan, 33, penalties against, 14…points scored 108; points against 18."
6.2 "But when Bill Harrigan wasn't refereeing Brisbane, they only scored 72 points against the same teams, and there were 107 scored against them."
6.4 "Well, there are 13 matches he has controlled."
6.6 "Let me tell you, he's controlled 13 matches between ex-ARL teams and ex-Super League teams. The total penalties for the ex-Super League teams were 83. The total penalties for the ex-ARL teams, 56, a difference of 27 penalties, which is over two a match."
6.7 "The total penalties for Brisbane, 33 in four matches that they played under him; the total against, 14. The difference is up to five penalties a match."
82 It is, of course, the effect on the listener which is crucial to this issue. Would the ordinary reasonable listener of Mr Jones' broadcast have understood that, in using the words particularised as comment, he was stating his opinion rather than making a statement of fact? Although this is a question of fact, some assistance can be derived from the authorities. The following passage of Mahoney JA in Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 is particularly helpful (at p.196):
"The statements were essentially judgmentative. Whether a person is "unfit to be and remain a priest" may be affected by considerations essentially of a moral nature, or be the result of the weighing up of considerations otherwise of an imponderable character. Where a matter is described by use of terms such as "sham" or the like, the statement is open to be regarded as inherently one of opinion. It is not necessarily so: in Smith's Newspapers Ltd v Becker (1932) 47 CLR 279 at p 302, Evatt J saw "a German quack" as capable of being a statement of fact. But to say of a person that his "presence in the priesthood was a sham" is, in my opinion, to make a statement open to be seen as one of opinion. In the present case, there is one other relevant consideration. The statements in question are derived by implication from the material stated in terms in the two articles. They are not mere translations of the terms used in the articles, nor are they unexpressed steps in such processes of reasoning as are contained in the articles; they are derived as inferences or conclusions suggested by the material set forth in the articles. Statements of fact may, of course, be derived in this way, but statements in judgmentative terms so derived are, I think, particularly open to be seen as statements of opinion."
83 With this background, I turn to the terms of the broadcast itself. The first imputation (that the plaintiff carries out his duties as a referee in a biased manner) is particularly referable to the question posed by Mr Jones "Is there any kind of bias out there which is a hangover from the ARL Super League days? And what are you doing about it?" In one sense, the second question, "And what are you doing about it?" pre-empts the answer to the first question, in that it assumes the existence of bias. However I do not think that listeners would have taken this to alter the nature of Mr Jones' question. I think they would have taken it as Mr Jones in effect saying to Mr Whittaker: "This is what the figures show. On this basis, it appears to me that there must be bias on the part of Mr Harrigan. What do you say about that, and what are you doing about it?" The listener who took it this way would have understood Mr Jones to be expressing his opinion rather than making a statement of fact. Interpreted thus, the defence of comment would prima facie be available to the defendant.
84 It could possibly be argued that Mr Jones' question in paragraph 2 might have been taken by his listeners to mean: "Here are the figures. They show that Mr Harrigan is biased. What are you doing about it?" Taken this way, the imputation would have been conveyed as a statement of fact, rather than as Mr Jones' opinion.
85 On balance I think that the listener would have taken Mr Jones' observations in the first sense. In other words that they would have taken him to be expressing his opinion, based upon the statistics he provided, that Mr Harrigan was biased in favour of the ex-Super League teams. And although I cannot pretend to have reached this conclusion with a great degree of confidence, I am sufficiently satisfied of this matter to find, in favour of the defendant, that the first imputation was conveyed to Mr Jones' listeners in the form of comment.
86 The issues in relation to the remaining two imputations require separate discussion. I have already noted that, given the jury's finding that these imputations were defamatory of Mr Harrigan, they must denote something more than a simple statement that Mr Harrigan awarded more penalties to Brisbane and other ex-Super League teams than he did to their opponents. There is nothing in such a statement which could possibly be defamatory of Mr Harrigan. There must be a further element, of favouritism or partiality, involved in these imputations. And it is here that any comment, if comment there be, must lie.
87 In effect, Mr Jones was saying in his broadcast: Mr Harrigan has awarded significantly more penalties to ex-Super League teams, particularly Brisbane, than he has to their opponents. Brisbane has done much better in games refereed by him, than it has with other referees. It follows that there must have been some favouritism on his part.
88 The real question is whether this conclusion, of favouritism, was presented to listeners as a statement of fact or as Mr Jones' opinion. I am inclined to the view that it was the latter, although the question is by no means an easy one.
89 Accordingly, I find that the three imputations were conveyed to the listeners of Mr Jones' programme as his statements of opinion, based on facts stated by him, which consisted of the various statistics relating to Mr Harrigan's performance as a referee. Accordingly, the defence of comment is potentially available to Mr Jones.
90 Before turning to discuss the particular matters which need to be established to make good this defence, it is apposite to say something very briefly about the general nature of a comment defence.
91 The defence of comment in section 29 to section 35 of the Act has its origins in the common law defence of "fair comment on a matter of public interest". The philosophical basis for this defence is that all citizens have the right to express their views on matters of public interest. Listeners can then determine for themselves whether they agree with those views. It is axiomatic that listeners will not be in a position to make this assessment unless they have sufficient facts available to them to enable them to draw their own conclusions. Hence the rule that the facts upon which a defamatory comment is based must either be contained in the publication or otherwise be known or available to the listener.
92 In this case, Mr Jones referred in his broadcast to many of the statistics set out in Exhibit 3. The figures that he mentioned form the factual sub-stratum to be considered when determining whether the defence of comment has been made out. The remaining figures in Exhibit 3, not referred to by Mr Jones, were not available to his listeners, nor could they be expected to know of them. Accordingly, when considering the availability of this defence, the factual material upon which the comment was based must be confined to the facts stated by Mr Jones in the broadcast. Those facts, as particularised by the defendant's solicitor, are set out in paragraph 79 above.
93 The following issues need to be addressed under the defence of comment:
· Whether the comment was based on proper material for comment (s30 (2) and (3))
· Whether the comment in fact represented Mr Jones' opinion (s32 (2))
94 The requirement, in section 31, that the comment must relate to a matter of public interest is clearly met in this case, as Mr Evatt has conceded.
95 The question of whether the comment, as conveyed in the imputations, was based on proper material for comment is a difficult one in this case. This is because there were some factual errors or discrepancies in the broadcast, one of which was potentially very significant.
96 The first error relied upon by the plaintiff arises from Mr Jones' reference, according to the transcript, to "penalties points scored, 108; points against, 18" at the end of paragraph 6.1 above. There is no such thing as a "penalty point" in rugby league. Even if there were, the words used by Mr Jones, according to the transcript, were "penalties points", a phrase that makes no particular sense. Mr Jones was asked about this by Mr Evatt. Mr Evatt suggested to him that the transcript accurately conveyed what Mr Jones had said. Mr Jones, understandably, had no particular recollection of what he did say. He conceded that the word "penalties" might have been a slip of the tongue, but went on to say that the transcript did not make sense to him and he was certain he did not use those words.
97 I think it is very likely that there is an error in the written transcript of the broadcast, at least in the punctuation used. In fact, Brisbane scored 108 points in the matches referred to by Mr Jones, and its opponents scored 18. This had nothing to do with penalties. A possible explanation is that Mr Jones repeated the word "penalties" before turning to deal with the separate issue of points scored, so that there should have been a full stop between the words "penalties" and "points".
98 Had the tape of the broadcast been available, this matter would easily have been resolved. In the event, I cannot take the meaningless phrase "penalties points scored", as used in the transcript, as derogating from the substantial truth of the factual information conveyed by Mr Jones and used as a basis for his opinion.
99 Other errors in the facts cited by Mr Jones have been relied upon by Mr Evatt. Two of these do not, in my view, derogate from the substantial truth of the factual information conveyed in the broadcast. The third, however, is a significant error. It occurred in paragraph 6.2 above when Mr Jones talked about matches which Mr Harrigan did not referee which had been played by Brisbane "against the same teams" as referred to in paragraph 6.1. In fact, they were not the same teams at all.
100 In order to understand this and the other errors relied on by Mr Evatt, it is necessary to relate the figures used by Mr Jones in his broadcast with those contained in the document he had in front of him. (See Exhibit 3, annexed hereto.) In the first paragraph of the matter complained of (paragraph 6.1 above) Mr Jones referred to "all Brisbane matches played under Bill Harrigan" and said that 33 penalties had been awarded to Brisbane with 14 penalties against, and 108 points scored by Brisbane and 18 against. In fact, the penalty count of 33 to 14 was taken from four matches, but the point score of 108 to 18 from only three. The four matches which led to the penalty count of 33 to 14 were played by Brisbane against Manly, Norths, Newcastle and Melbourne. The total points scored in those matches were 142 to 34 in favour of Brisbane. The point score of 108 to 18 was taken from only three of those matches. The match against Melbourne was not taken into account. The penalty score in those three matches was 29 to 13 in favour of Brisbane.
101 Mr Evatt asked Mr Jones about this, and the following exchange occurred: (T.256)
"Q. Then forget the penalties points scored, you say 108 to 18. What I'm saying is it should actually be 142 to 34?
A. No, it shouldn't. Because I wasn't referring to that.
Q. But --
A. I'm submitting to you, and I have already to the court, that that is not a correct interpretation of what I said and we have that jumbled second last sentence. I don't believe I said that. I know exactly what 108 to 18 was about and that was about the matches that Bill Harrigan controlled against the ex ARL teams in the top ten which Brisbane were playing, and there were three of those and that is why my score is right. Because that takes Melbourne away from there, 34 from 42 is 8, in your document, and 16 from 34 is 18. And that is how you get 34 to 18.
Q. But that can't be right, because if you had deliberately excluded Melbourne from the 108 to 18 you have included Melbourne in the 33 to 14 penalty points?
A. That was of all the games, Mr Evatt, all the games that he refereed during the year. The reason that Melbourne was excluded was because that was when the ARL teams played the Super League teams in the top 10 and Bill Harrigan refereed three matches then.
Q. Why didn't you exclude Melbourne going from the 33 to 44 penalties?
A. Because the 33, the penalty count, I repeat, relates to Bill Harrigan's refereeing in the season. That is quite clear in the document that has been tendered here which is document exhibit 3, that in all the matches in 1998 Bill refereed Brisbane four times, one was Melbourne, 33 to 14. The 108 points to 18 refers to the final ten teams that made the "semi finals, "quarter finals" or whatever and in that Bill only refereed Brisbane three times and in those three matches the penalty count was 29 to Brisbane, and 13 to the opposition. The score 108 to Brisbane, 18 to the opposition.
Q. But Mr Jones, you don't say any of that to your listeners?
A. I'm submitting to you, Mr Evatt, and I've done this now three times and I will say it for the fourth time, my submission is that that is not what I said and that is proven by the fact that the second last line doesn't make sense."
(Mr Jones was referring there to the words "penalties points" in paragraph 6.1, which has already been discussed).
102 A further issue raised by Mr Evatt related to Mr Jones' inclusion of Melbourne as an ex-Super League team when he was comparing the penalties awarded by Mr Harrigan to ex-Super League teams and to ex-ARL teams (see paragraph 6.6). Melbourne was in fact a new team, and had not been in existence during the Super League/ARL split. However the evidence shows that Melbourne, although not part of Super League, was closely aligned to it. It was started by Mr Ribot (the initiator of Super League) and was financed by News Limited (the financer of Super League). Accordingly, if there were to have been an alignment of all NRL teams into ARL or Super League during the 1998 season, Melbourne would have been counted with the latter.
103 In all the circumstances, I do not consider that the errors or discrepancies discussed thus far can be taken to derogate from the substantial truth of the factual statements in Mr Jones' broadcast.
104 However, as I have mentioned, a more serious error occurred in paragraphs 6.1 and 6.2 of the broadcast. Here Mr Jones said that Brisbane matches refereed by Mr Harrigan resulted in a points score of 108 to 18 in favour of Brisbane, but when Brisbane played against the same teams under the control of different referees, there was a points score of 72 to 107 against it. The fact is, however, that the matches played by Brisbane which led to this adverse point score, were not against the same teams as the matches which had been refereed by Mr Harrigan and which had led to the 108 to 18 point tally. This is established by paragraph 4 of Exhibit 3 (annexed). The teams played by Brisbane which were controlled by other referees were Manly, Parramatta (twice), St George and Sydney City. Only one of those teams, namely Manly, had played Brisbane in the matches refereed by Mr Harrigan and referred to in paragraph 6.1. In other words, they were by no means the same teams.
105 Mr Jones was asked about this by Mr Evatt and the following exchange took place: (T.258)
"Q. But you can use either page 2 of your original figures or E3. You can see that the 72 to 107 penalty points for and total penalty points against, 70 to 107. You can see that there?
A. Yes I can.
Q. They are the results of Brisbane matches lost to Manly lost to Parramatta, won against St George, lost to Sydney City and lost to Parramatta again, is that right?
A. Correct.
Q. They are not the same teams to which you referred in the first paragraph when those teams, being Brisbane playing Manly, Norths, Newcastle and Melbourne…
OBJECTION …
QUESTION ALLOWED
Q. They are not the same teams?
A. They are to me because my argument in the course of this has been the generic basis on the conflict between Super League and ex ARL teams, and that is evidenced in the document you are referring to in the heading "Brisbane Matches Versus ex ARL". And the second heading says: "Brisbane Matches Against ex ARL". The only thing is Harrigan is refereeing the first lot and not the second.
Q. In the second paragraph it says against the same teams, and they were not?
A. Generically they are, they were ex ARL teams and that is the reference I was making.
Q. You didn't say that on the programme; "Oh, by the way listeners, I'm not speaking generically", did you?
A. No, I did not.
Q. I know they would all understand that, but nonetheless you didn't say it. Now, there's one further thing: Will you agree with me that nongenerically they are different teams?
A. Correct."
106 This is a serious error. The reference to the matches refereed by persons other than Mr Harrigan and played by Brisbane "against the same teams" immediately preceded Mr Jones' comment about Mr Harrigan's bias. The ordinary listener would have understood it to be an integral and significant component in the statistical ammunition which Mr Jones had obtained against Mr Harrigan. Accepting that these matches were not, in fact, against the same teams which were referred to in paragraph 6.1, it is impossible to conclude, in terms of section 30(2) that the statement of fact upon which the comment was said to be based, was a matter of substantial truth.
107 However, this is not the end of the matter. For it is in precisely this situation that, to use Mr McClintock's words, section 30(3)(b) kicks in. I am told that this provision has not yet been the subject of judicial scrutiny, at least in any reported cases, as determinations under this section have, until recently, been within the province of the jury.
108 As I understand it, this provision requires the decision maker to embark upon an exercise which involves notionally deleting any inaccuracies in the factual material referred to in the publication, so that what remains is substantially true. Then, in relation to the substantially true portion, one is to ask whether the comment, as conveyed in the imputation, represents an opinion which might reasonably be held on the basis of that material.
109 The inaccurate portion in this case consists of those few words "against the same teams" in paragraph 6.2. As it happens, one can notionally delete those words and still be left with a meaningful sentence which accurately represents the true picture. Accordingly, I am satisfied that, without those words, "against the same teams" the statements of fact contained in paragraph 6.1, 6.2, 6.4, 6.6 and 6.7 are matters of substantial truth and are therefore, to that extent, proper material for comment.
110 The real question is whether Mr Jones' comment that Mr Harrigan was biased and that he favoured Brisbane and other ex-Super League teams over their opponents was an opinion which "might reasonably be based on" that material.
111 The concept of reasonableness commonly has both an objective and a subjective component. However, the terms of section 30(3)(b) suggest that the test here is entirely objective. The question is not whether it was reasonable for Mr Jones to have reached a particular opinion on the basis of the material in his broadcast, but whether the opinion was such that it might reasonably be based on that material. This accords with the nature of the defence, for it is the impact upon the listener, and the listener's capacity to draw his or her own conclusions, which is central to the defence of comment.
112 I have already found, in relation to the section 15 defence, that statistics of the nature of those contained in Exhibit 3 are inadequate to support an imputation of bias or favouritism. This finding alone would probably be sufficient to dispose of the present issue in favour of the plaintiff. For if the statistics were inadequate to prove that Mr Harrigan was biased or was showing favouritism, then it is difficult to see how they could provide a reasonable basis for an opinion to the same effect, particularly as some only of the figures were mentioned in the broadcast and were thus available to support Mr Jones' opinion.
113 However, I would go further and say that, in addition to the incapacity of statistics generally to give rise to an opinion of bias, the particular statistics used in Mr Jones' broadcast did not support his opinion to this effect. In order to explain this, it is necessary to return to the facts of this matter.
114 The factual basis for the comments contained in each of the three imputations is the same. It consists of the following propositions as set out in the broadcast:
· In the Brisbane matches played under Mr Harrigan, 33 penalties were awarded to Brisbane and 14 against.
· In the Brisbane matches played under Mr Harrigan, Brisbane scored 108 points and its opponents scored 18.
· In the Brisbane matches played under other referees, Brisbane scored 72 points and its opponents scored 107.
· In the 13 matches between ex-ARL and ex-Super League teams which were refereed by Mr Harrigan, ex-Super League teams were awarded 83 penalties and ex-ARL teams were awarded 56.
115 The mere fact that a referee awards more penalties to some teams than to others cannot, in my view, provide a reasonable basis for concluding that he is biased or partial in awarding penalties. The evidence clearly shows that it is the discipline and skill of the various teams that normally dictates the award of penalties, not the predilections of the particular referee. This applies both to the matches played by Brisbane and to the matches played between ex-Super League teams and ex-ARL teams. As for the number of points scored by the teams involved in these matches, this is even more remote from the issue of the referee's fairness. It is difficult to see how any legitimate connection can be drawn between the point score of a game and the impartiality of the person who referees it. In this regard, I refer to Mr Mander's evidence quoted at paragraph 40 above. Moreover, in this case the sample was extremely small, comprising (so far as points are concerned) a comparison between three games refereed by Mr Harrigan and five games refereed by others.
116 Given the lack of connection between the possible bias or partiality of a referee and the points scored in matches refereed by him, the conclusion that Mr Harrigan was biased or partial was not one which might reasonably be based on the factual material which was stated in the broadcast. In this regard it must be noted that the only comparison which was made between matches controlled by Mr Harrigan and those controlled by other referees related to the points scored, not to the penalties which were awarded. The fact that three Brisbane matches which were refereed by Mr Harrigan resulted in an overall points score which resoundingly favoured Brisbane, says nothing at all about his impartiality. Similarly, the fact that Brisbane scored fewer points than its opponents (not being the same opponents) in matches controlled by other referees, says nothing whatsoever about either their impartiality or about Mr Harrigan's. Had the comparison between the matches refereed by Mr Harrigan and those refereed by others related to the same teams and been based on the penalties awarded, rather than the points scored, then the position might perhaps have been different. But in this case no comparison was drawn between the penalties awarded by Mr Harrigan and those awarded by other referees, only between the points scored by competing teams which were not in any event the same teams. This, as I have said, provided an entirely inadequate foundation for any adverse inference in relation to Mr Harrigan's fairness as a referee.
117 In my view, it was not reasonable to conclude, on the basis of the material summarised in paragraph 110 above, that Mr Harrigan was biased as a referee or that he favoured Brisbane or other ex-Super League teams against their opponents in the sense that he showed favouritism towards them.
118 It follows that the requirements of section 30(3) have not been made out and that the defence of comment is not available in this case.