John Fairfax Publications Pty Limited v Obeid [2007] NSWCA 73 | Case summary

John Fairfax Publications Pty Limited v Obeid [2007] NSWCA 73 | Case summary | Zoe

22 Information (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 the recipient 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. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (2A) In determining for the purposes of subsection (1) whether the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances, a court may take into account the following matters and such other matters as the court considers relevant: (a) the extent to which the matter published is of public concern, (b) the extent to which the matter published concerns the performance of the public functions or activities of the person, (c) the seriousness of any defamatory imputation carried by the matter published, (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (e) whether it was necessary in the circumstances for the matter published to be published expeditiously, (f) the sources of the information in the matter published and the integrity of those sources, (g) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the publisher to obtain and publish a response from the person, (h) any other steps taken to verify the information in the matter published. (3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.

CIRCUMSTANCES 6 Mr. Tucker and Mr. Ross were directors of a company Comptran Pty. Limited (Comptran) which, in 1997, published a newspaper called the Mullumbimby Star in the Byron Bay area. From January 1998, this newspaper was re-named the Saturday Star, and I will refer to it, under both appellations, as the Star. Echo Publications at all material times published the Echo, which was a rival newspaper in the Byron Bay area. 7 In 1997, Mr. Tucker was also a prominent local politician, being a councillor on the local Council; and Fast Buck$ was also politically active in the area. 8 In July 1997, Comptran employed Leanne Potts as an advertising saleswoman. That employment ended in December 1997. 9 On 3 December 1997, Ms. Potts wrote to Comptran claiming that she had not been paid at award rates between 27 July 1997 and 28 November 1997; and this was followed up by a solicitor's letter dated 16 December 1997. Comptran responded with a letter dated 17 December 1997, contending that for the time that Ms. Potts was employed, the status of her employment was variously casual, part-time and full-time. 10 On 18 December 1997, Ms. Potts filed in the Industrial Relations Commission a claim for relief for unfair dismissal, pursuant to s.84 of the Industrial Relations Act 1996. That matter came before the Commission at Tweed Heads on 30 April 1998. At that time, Ms. Potts was unrepresented, and Comptran was represented by a solicitor. It appears there was some attempt at conciliation, and leave was then granted to Ms. Potts to apply to have the matter re-listed. She did not do so, and on 29 January 1999 the matter was stuck out for want of prosecution. 11 Meanwhile, it appears that Ms. Potts had made a complaint about under-award payments. On 10 July 1998, a report was prepared by an industrial inspector Mr. Frost expressing the view that Ms. Potts was owed $2,982.00 as underpaid wages, $633.75 as non-paid holiday pay, and $2,379.80 as underpaid travel expenses. On the same day, a notice was served on Comptran requiring attention to this. 12 There was in evidence before the primary judge the following correspondence between Comptran and the Department of Industrial Relations, occurring in December 1998 and January 1999. 13 First, a letter dated 21 December 1998 signed by Mr. Tucker and addressed to the Manager, Award Enquiry Service Centre, as follows: On several occasions we have been advised by the department that our part time employees employed to sell advertising for our community paper are not covered by the above award.

The Saturday Star ceased publication on September 25. As of last Friday, Ms Potts had not received the sum owing to her, and neither had the fine been paid. Enforcement proceedings have been initiated against Comptran, which as of last Friday, was still registered with the Australian Securities Commission as a proprietary company. 19 A further reference to the matter occurred in an article in the Echo on 12 October 1999 concerning the local Council, as follows: … Cr Tucker's meal break was flavoured by the serving of a summons on behalf of Leanne Potts, who as a former employee of the defunct Saturday Star is owed $7,075 by the controlling company Comptran Pty Ltd, of which Cr Tucker is a director. The Councillor has been summoned to appear on November 23 at the Mullumbimby local court in order to be 'examined' for his ability to pay the debt. … 20 At about that time, Mr. Tucker and Mr. Ross had decided to close the Star as a weekly newspaper, and the last edition had been published on 25 September 1999. Commencing on 30 October 1999, Comptran published, under the same name, a monthly newspaper. The first edition contained the following article by Mr. Ross, which was read and approved for publication by Mr. Tucker: The New Look Saturday Star: For some weeks the closing of the Saturday Star as a tabloid has been the subject of all sorts of conjecture and reasoning especially by the Echo's David Lovejoy. The Echo's reporting and editorials blamed Ross Tucker [how strange] and the lack of business support. Therefore the starting of the paper was a mistake. Even Max Eastcott was to blame. The saviour of the Shire was out and about with large signs on his "bomb" during the election campaign. This had no influence on our decision to suspend activities. A lot of people in this Shire will always believe any sort of garbage they read about us but I will attempt to set the record straight. The Saturday Star ran for almost three years and would have battled on for a long time had it not been for the mad industrial laws in this country and one of our former employees. The ex-employee was employed to sell advertising on a casual basis and could work any time or day that she wished. Our first mistake!! She was in our employ for eighteen weeks in which she worked five days a week for 6 weeks, four days a week for 2 weeks, two days a week for 7 weeks and one week never worked at all. This ex-employee fought with every person in the office and eventually insisted that I sack two of our other employees or she would leave. When I refused she quit. She then took us to court for unfair dismissal, which was dismissed by the Magistrate of the Tweed Heads Court. Next we got a visit from a bureaucrat from the Dept of Industrial Relations who insisted we pay this former employee full wages for every week she was in our employ plus a car allowance of $187 per week plus holiday pay for the full eighteen weeks, even though only six full weeks of the eighteen were worked and one week she never worked at all. He advised that at the time of her employment there was no provision in the advertising sales award for part time employees and whatever hours worked she was to be paid as a full time employee. We offered an alternative payment. It was rejected, and we were taken to the Chief Magistrates Industrial Court in Sydney and ordered to pay approximately $8500 for the days the ex-employee did not work. As a direct consequence we decided to close down which resulted in five very faithfull (sic) and excellent employees losing their jobs. The Saturday Star is back in a new format and we will continue to keep residents informed of issues on a monthly basis. We will publish the new look Saturday Star at the end of each month, which means that we will be able to cover two Ordinary Meetings of council plus all the other meetings in between. This will no doubt upset anyone whether a developer, greenie, staff or straight who may try to sneak something through! We'll be watching!! 21 On 23 November 1999, a solicitor acting on behalf of Ms. Potts conducted a public examination of Comptran, represented by Mr. Ross, at Mullumbimby Local Court, in accordance with an Examination Summons issued by the Registrar on 12 October 1999. There followed some negotiations as to satisfaction of the amount owing by Comptran to Ms. Potts. On 24 November 1999, in accordance with instructions from Ms. Potts, the solicitor conveyed to Mr. Ross that "an up-front payment of $4,000.00 would satisfy the entire debt". On 25 November 1999, Mr. Ross indicated that the offer could be accepted. However, disagreements emerged as to the precise timing of the payment of the $4,000.00, and Comptran did not accede to a proferred document requiring payment of $4,000.00 within 7 days. 22 On 7 December 1999, the Echo published the article the subject of the proceedings. I will set the article out as transcribed in a schedule to the Statement of Claim, with the numbered paragraphs provided by that schedule: Advertisement "The ethics of journalism by Fast Buck$ "

Lets take a tiny portion of the spotlight away from those lovely chaps John Laws and Alan Jones for a moment and focus it on that august local publication the Saturday Star and its proprietors Ross Tucker and Harold Ross.

(h) That (Mr. Tucker) is a bully. 24 The jury also found that the following imputation (f) was not conveyed: (f) (Mr. Tucker) as a proprietor of The Saturday Star caused to be published defamatory misrepresentations about Mr. Tom Wilson such that he and Mr. Ross had to pay Mr. Wilson $10,000. 25 Echo Publication's Defence pleaded truth, contextual truth, qualified privilege and comment. In relation to contextual truth, the Amended Defence pleaded the following imputations in par.7(a): (xvii) (in relation to the plaintiffs imputation (e) only) that the plaintiff is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language; (xviii) that the plaintiff behaved abusively to an employee by shouting at her, insulting her, making sexist remarks and using obscene language; (xix) that the plaintiff conducted the affairs of the Saturday Star Newspaper so that it made under award payments to Leanne Potts; (xx) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to fail to pay Leanne Potts compensation in excess of $7,000 as ordered by the Industrial Relations Court for under award payments; (xxi) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to apply pressure on Ms Potts in order to delay and avoid paying her entitlements as ordered by the Industrial Relations Court for under award payments; (xxii) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to publish as article falsely claiming that the paper's closure/reduced circumstances were due to Ms Potts and "the mad industrial laws"; (xxiii) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to publish an article falsely claiming that Ms Potts was incompetent, disloyal and slack in her performance of her job; (xxiv) that the plaintiff as a proprietor of the Saturday Star Newspaper behaved in a ruthlessly unfair manner to Ms Potts. 26 Mr. Tucker's Reply relied inter alia on malice in relation to the defence of qualified privilege. 27 Some days into the hearing, Fast Buck$ sought to rely on a defence essentially in the same terms as the Echo Publication's defence. The primary judge permitted him to rely on truth, contextual truth and comment; but did not permit him to rely on a defence of qualified privilege at common law or under s.22 of the Act.

[30]

It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co ( The "Palitana" ): "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." 31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. 56 The principles to be applied when considering if absence of reference to evidence justifies a finding that reasons are inadequate are those set out in Mifsud v. Campbell (1991) 21 NSWLR 725 at 728: In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court (at 667) said that it was right to describe the giving of reasons as "an incident of the judicial process" although a normal but not a universal one. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (at 278) makes some comments upon that holding, and goes on to say (at 281) that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done.

Findings of the Chief Industrial Magistrate 57 Fast Buck$' submissions as to the effect of findings of the Chief Industrial Magistrate raised different issues. There is no question of res judicata or issue estoppel, because the parties to the present proceedings were not parties to the proceedings before the Chief Industrial Magistrate. However, there are principles concerning abuse of process that could be relevant. 58 In Hunter v. Chief Constable of the West Midlands [1982] AC 529 at 541, Lord Diplock characterised the proceedings before him as follows: The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made. 59 In Walton v. Gardiner (1993) 177 CLR 378 at 397, Mason CJ, Deane and Dawson JJ said this: … proceedings before a court should be stayed as an abuse of process, if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings. 60 And in Rogers v. The Queen (1994) 181 CLR 251 at 273-4, Deane J and Gaudron J say this: From earliest times, the principle embodied in the maxim res judicata pro veritatem accipitur has been seen as necessary to protect against "the scandal of conflicting decisions". Issue estoppel and res judicata or cause of action estoppel are mechanisms which protect against conflict of that kind. However, the principle has an existence beyond those mechanisms so that, for example, it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial. At least that is so unless there is a less onerous burden of proof or there is fresh evidence or proof of fraud. 61 I do not think these principles apply in this case, for two reasons. 62 First, it is not Comptran that is challenging the correctness of its conviction, but rather one of its directors. This distinction is important. Mr. Tucker was not a party to the proceedings before the Chief Industrial Magistrate, and took no personal part in those proceedings. 63 Second, although there is some overlap between the issues in this case and those before the Chief Industrial Magistrate, the issues in this case are considerably wider; and in my opinion the Court deciding this case should not be inhibited in reaching its own conclusions on credit-related matters because of a decision made in proceedings between other parties affecting only a part of the contested factual issues in this case. 64 So Fast Buck$' contentions on this matter fail. However, they do bring into focus what is and what is not decided by this case. This case leaves undisturbed and of full force and effect the finding made beyond reasonable doubt by a competent court and unchallenged on appeal, against Comptran, that it employed Ms. Potts as a full-time employee, and in breach of its legal obligations failed to pay her what it was legally obliged to pay her. This present case establishes nothing against Ms. Potts, because she is not a party to this case, any more than Mr. Tucker was a party to the proceedings before the Chief Industrial Magistrate. Assuming that the factual findings in this case remain undisturbed, this case merely establishes, as between Mr. Tucker on the one hand, and Echo Publications and Fast Buck$ on the other, that Mr. Tucker's version as to the terms of Ms. Potts' employment is the correct one, which must be applied in giving judgment in these proceedings. As between Ms. Potts and Comptran, however, her version of her employment remains, beyond reasonable doubt, the correct one, which it would be an abuse of process for Comptran to challenge otherwise than by appeal. 65 In one sense, these may be considered conflicting decisions; but in our adversary system, this cannot be entirely avoided where different parties are involved in different cases, because there are limits to what can be achieved by the principles of res judicata, issue estoppel and abuse of process.

Mr. Ross' Understanding and Ms. Campbell 66 There is force in the submission that it is implausible that Mr. Ross and Mr. Tucker could have believed, contrary to the fact, that the Chief Industrial Magistrate had decided the case against them on the basis that they had to pay part-time employees full-time award wages, because the award made no provision for part-time employees. 67 However, there is a suggestion to that effect in the report of 10 July 1998 prepared by Inspector Frost (Blue 63 OQ), and the correspondence of December 1998 and January 1999, particularly the letter of 28 January 1999, did not clearly refute that approach. Although Mr. Ross was present at the proceedings before the Chief Industrial Magistrate, he may not have understood what was happening. 68 The evidence of Ms. Campbell does not in my opinion take the matter much further. The primary judge accepted (judgment par.[223]) that the Chief Industrial Magistrate did in fact accept Ms. Potts' evidence that from the outset she was employed on a full-time basis; so to that extent the primary judge did act on Ms. Campbell's evidence. The only significant respect in which Ms. Campbell's evidence could take the matter further was her evidence of a discussion with Mr. Ross. Her oral evidence (Black 512 CD) was "he said that the issue was that she only worked two days, not full-time, which was our case"; and this reflected her note of the conversation (Blue 271 PQ) "Issue - only worked 2 days not F/T". However, neither her oral evidence nor the note shows that Ms. Campbell made it clear to Mr. Ross that the issue was whether or not Ms. Potts was in fact employed full-time, not whether the award required her to be paid on a full-time basis even if she did not in fact work full-time. 69 Accordingly, these matters do not, either alone or in combination with other matters, make the primary judge's decision contrary to incontrovertible facts, or glaringly improbable, or contrary to compelling inferences (Fox). Nor is the evidence of Ms. Campbell of such importance that failure to advert to it explicitly is a deficiency of reasons (Mifsud).

See also Amalgamated Television Services Pty. Ltd. v. Marsden [2002] NSWCA 419 at [1223]-[1224]. 79 I accept that, in at least some cases, a riposte to a response will not have the benefit of qualified privilege. The rationale of this aspect of qualified privilege is that the person allegedly defamed has, by attacking the alleged defamer in the media, invited or provoked a reply and thus implicitly consented to its publication to the audience to whom the initial attack was addressed; and this rationale is substantially undercut if it was the alleged defamer who began it all by attacking the person allegedly defamed, so that the latter's "attack" was itself a response having the benefit of qualified privilege. 80 The limits of this doctrine have not yet been clearly established. In Kennett, Nathan J talks about a "source defamation" and an "initial defamer", suggesting that the doctrine applies only if the person seeking to rely on qualified privilege of the kind in issue here had initially defamed the plaintiff. If that is correct, it would seem that a plaintiff seeking to defeat a defence of qualified privilege on this basis should put on a reply alleging the initial defamation, so that the question whether there was an initial defamation could be properly considered. Presumably issues of publication and defamatory imputation would arise, and the defendant could presumably put on a rejoinder raising issues such as absolute and qualified privilege. 81 Whether or not the initial publication was a defamation, a question could arise whether the plaintiff's response was not a defamation of the defendant because it had the protection of the same kind of qualified privilege as the defendant is seeking to rely on. It seems unlikely to me that a plaintiff could defeat a defendant's defence of qualified privilege on the basis of the Kennett doctrine unless its publication, in so far as it was defamatory of the defendant, was such as would itself have the protection of this same kind of qualified privilege. 82 None of these issues were raised by the plaintiff's pleading in this case. At first instance, no finding was sought or made as to whether Ms. Potts could be considered as having published the October Echo articles, whether they were defamatory of the Star and/or of Mr. Tucker, whether they would in any event be protected by absolute or qualified privilege, whether they could fairly be regarded as an "attack" on the Star or Mr. Tucker, or whether the Star's attack on Ms. Potts was a response to it such as would itself have the protection of qualified privilege. 83 Mr. Hale submitted to this Court that Ms. Potts gave the information in the October Echo articles to the Echo, knowing the Echo would publish the information and that it would suggest that the newspaper closed down in order to avoid paying her debt; and that accordingly, Ms. Potts did not have the benefit of qualified privilege on which the Echo could rely. However, no submission was made to the effect that anything in the October Echo articles was untrue, or would be defamations not having the protection of defences at common law or under the Act. 84 In my opinion, quite apart from the question whether the articles can be regarded as publications by Ms. Potts, for Mr. Tucker to have the benefit of the Kennett doctrine, it would have been necessary for him to show something that could fairly be regarded as an attack on the Star and/or Mr. Tucker. It is insufficient to point to what appears to be purely factual reporting of court proceedings and matters on public record, without suggesting any reason why that reporting would not have the protection of defences to claims in defamation. 85 For those reasons, in my opinion Mr. Tucker's appeal to the Kennett doctrine fails.

Were The Defamatory Imputations Ms. Potts' Response? 86 A person who has been publicly attacked is entitled to defend himself or herself before the same forum and to do so under qualified privilege: Bass v TCN Channel Nine [2003] NSWCA 118; (2003) 60 NSWLR 251 at [58] per Handley JA (Spigelman CJ and Wood CJ at CL relevantly agreeing). In this case, Mrs Potts was the person who had been attacked. The privilege Echo seeks to invoke is derived from, or ancillary to, Mrs Potts privilege; its purpose is "to provide a neutral forum for a reply so that the audience to which the person who now complains had addressed the original attack may hear the actual rely, being a reply that has the requisite connection with the attack": see Bass (at [15], [37]-[41]) per Spigelman CJ; (at 60] per Handley JA; (at [151] per Wood CJ at CL. 87 Because Echo's privilege was derived from Mrs Potts' privilege, it was necessary that the matter complained of was her response and not that of either Echo or Fast Buck$. The privilege would be lost if either took a position of their own; whether either did so was a question of fact: see Bass (at [78]-[81]) per Handley JA. If Fast Buck$ endorsed Mrs Potts' response so that the defamatory statements were made by him, not (or as well as) Mrs Potts, Echo will be liable for the defamatory imputations thereby conveyed and cannot rely upon the reply to an attack head of qualified privilege: see generally John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 at [87]-[121]. 88 The question whether defamatory imputations were Ms. Potts' responses involves three sub-questions: 1. Did the material conveying the defamatory imputations correctly reproduce something Ms. Potts gave as her response to the attack on her? 2. Did this material purport to be her response? 3. Did this material in its context amount to substantially more than a presentation of Ms. Potts' response, in that it was endorsed as to be believed in preference to the attack on her? 89 In my opinion, unless the first two sub-questions are answered yes and the third no, the material conveying the defamatory imputations is not protected by the qualified privilege that would attach to a response by Ms. Potts to the attack on her, because the material would not qualify as Ms. Potts' response. 90 In my opinion, this follows from the rationale of the privilege; and it has some confirmation by what was said by Clarke JA in the leading judgment in Radio 2UE Sydney Pty. Limited v. Parker (1992) 29 NSWLR 448, to which Handley JA referred with approval in Bass at [78]. That case concerned a radio broadcast responding to attacks on a Mr. Millner, involving an interview of Mr. Millner by the second appellant; and the jury found that defamatory statements were made in the course of this interview by the second appellant. At 461, Clarke JA said this: The privilege of the newspaper arises out of, and depends upon, that of the party who has been attacked and who is entitled to reply and extends to cover all that is relevantly said by that person in reply to the attack. The fact that in this case the radio station may have been protected by privilege in respect of the statements made by Millner during the interview is, as it seems to me, of little moment when the jury has found that the defamatory statements were made not by Millner but by the second appellant himself. 91 In my opinion, the same reasoning would apply to a case where a newspaper or broadcaster published defamatory statements by a person in response to an attack, and in so doing conveyed that those statements were to be believed in preference to the attack on the person. That is, the privilege would be lost if the material conveyed an endorsement of the attacked person's response: cf. Collins v. Ryan (1991) 6 BR 229 at 235; Horrocks v. Lowe [1975] AC 135 at 149-150; Barbaro v. Amalgamated Television Services Pty. Ltd. (1985) 1 NSWLR 30 at 50. 92 Mr. McClintock for Echo Publications submitted that any published reply to an attack conveys, at least inferentially, the message that the person replying is right and the original attacker is wrong, and he submitted that in Loveday v. Sun Newspapers Limited (1938) 59 CLR 503, the Sun article clearly sided with the Canterbury town clerk against the plaintiff and endorsed the town clerk's reply. 93 The first point to note is that it was not argued in Loveday that the newspaper had endorsed the Council's response to what was found to have been a communication authorised by the plaintiff. It could possibly be inferred from the circumstance that the Sun published the response in the same issue of the newspaper as the attack, and said that the town clerk had "refuted" the complaints, that the Sun was siding with the town clerk; but in my opinion, the article in question could not be read as conveying that the complainant was to be disbelieved and the town clerk was to be believed. In that case, as in most cases, it was the actual words of the attacked person that were published. I am not aware of any case in which the publisher or author of a published article has expressly or impliedly endorsed the attacked person's response as to be believed in preference to the attack. 94 Although I have some doubt as to the first two sub-questions, I consider each of them should be answered yes, in favour of Echo Publications, for the following reasons. 95 The evidence shows that Fast Buck$ approached Ms. Potts for her response to the Star article, and that she gave him information with the intention that he publish her version of events. In so far as her information was published, and purported to be from her, it was in my opinion her response. 96 However, at least some of the Echo article does not purport to be Ms. Potts' response, but rather to be comments and views of Fast Buck$ himself: see for example the paragraphs numbered 1-5, 11, 15, 17-21. Of the others, paragraph 6, 12-14 and 16 (apart from the parenthesis) purport to be based on information from Ms. Potts; while paragraphs 7-10 seem to be an amalgam of her information and his comments. 97 Imputation (e) was conveyed by paragraph 16, in the context of the whole article; and imputation (g) was conveyed by paragraph 6, again in the context of the article. I do not think the context provided by Fast Buck$' views and comments had a substantial effect on the meaning conveyed by paragraphs 16 and 6, and in my opinion the defamatory imputations do form part of Ms. Potts' response. Mr. Hale submitted that the two paragraphs do not reflect information provided by Ms. Potts as described in her evidence. However, Ms. Potts gave evidence to the effect of what is in those paragraphs, and to the effect that she told Fast Buck$ what she told the Court, and also that Fast Buck$ read parts of the article to her. She was not cross-examined to the effect that she was not the source of these two paragraphs, and it does not seem to have been submitted below that she was not the source of these two paragraphs. In those circumstances, I would infer that these paragraphs were not invented by Fast Buck$ but reflected what Ms. Potts had told him. 98 Mr McClintock also argued that no part of the matter complained of can be read as an endorsement by Echo of Mrs Potts' response. As I have already said, the privilege was lost if either Echo or Fast Buck$ took a position of its or his own. Once it is concluded that Fast Buck$ endorsed Mrs Potts' response, he was the publisher of the defamatory imputations and Echo no longer had the benefit of the derivative privilege. 99 However, in relation to the third sub-question, in my opinion the article as a whole conveyed the message that Ms. Potts was to be believed in preference to Mr. Tucker: see in particular par.18 and also (for example) pars.11 and 19. In my opinion it does not matter that there was no defamatory imputation found in those paragraphs: the effect of the whole article, including those paragraphs, was that pars.16 and 6 were not just Ms. Potts' allegations, but were assertions that should be believed in preference to the attack on her made by Mr. Tucker. In my opinion, Echo Publications did have a privilege to publish Ms. Potts' response, but not to publish Fast Buck$ vigorous endorsement of it. 100 For that reason, I do not think the defamatory imputations are protected as being Ms. Potts' response to the attack on her; and Echo Publications does not have the benefit of qualified privilege on this basis.

Were The Defamatory Imputations Relevant? 101 Because of my answer to the previous question, it is not necessary to answer this one. However, in case others may take a different view on the previous question, I will proceed to do so. 102 In order to consider this question, it is necessary to consider what was suggested against Ms. Potts in the Star article. In my opinion, the following suggestions were made: (1) Ms. Potts was employed for 18 weeks during which she worked only 6 full weeks. (However, I would comment that, on the findings of the primary judge, based on total acceptance of Mr. Tucker, it would appear that, after having worked 2-3 days per week for the first four weeks, Ms. Potts then worked 11 full weeks, apart from one half day off, and was off sick for 3 weeks). (2) Ms. Potts fought with every person in the office. (3) Ms. Potts resigned when she did not get her way about the sacking of two employees, then (impliedly dishonestly) claimed she had been unfairly dismissed, and this claim was dismissed. (4) Ms. Potts took advantage of mad industrial laws to make an (impliedly greedy) claim to be paid for long periods of time when she did not work; and the Star was ordered to pay about $8,500.00 for days when Ms. Potts did not work. (The Star was in fact ordered to pay Ms. Potts about $6,000.00 plus about $1,000.00 interest; and of the $6,000.00, only $2,982.00 was for underpaid wages). (5) Mad industrial laws and Ms. Potts directly caused the Star to close and five very faithful and excellent employees to lose their job. 103 In my opinion, paragraph 16 of the Echo article (and therefore imputation (e)) is relevant to suggestions (4) and (5). Paragraph 16 contests the suggestion that Ms. Potts was greedy, and also the suggestion that she caused the closure of the Star and the loss of five jobs. 104 As regards paragraph 6 (and imputation (g)), that is in my opinion relevant to suggestion (2), putting Ms. Potts' alleged fighting with everyone in the office into the context of a domineering and belittling management giving rise to unseemly confrontations. In my opinion, it is also relevant to suggestion (3), putting Ms. Potts' alleged unreasonable and purely voluntary resignation into a context of unseemly confrontations giving rise to an acrimonious departure. Mr. Hale submitted that it could not be relevant in this way, because Ms. Potts' allegation was that she was dismissed by Mr. Ross: however, I do not think Ms. Potts' evidence squarely asserts dismissal by Mr. Ross or otherwise suggests that confrontations arising from Mr. Tucker's behaviour were not an important factor in her departure. In my opinion, her evidence indicates that, whether Ms. Potts' departure was due to resignation or dismissal, such confrontations were a significant factor in it.

Malice 105 Mr. Tucker claims that Echo cannot in any event rely on qualified privilege, because the publication of the defamatory material was actuated by malice. 106 It is important to note here that qualified privilege is lost on this basis only if the defamatory material was published for a purpose foreign to the duty or interest that protects the making of the statement, in this case the interest of Ms. Potts in responding to an attack on her. In Roberts v. Bass [2002] HCA 57, (2002) 212 CLR 1, at [76], Gaudron, McHugh and Gummow JJ say this: 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. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication. 107 And at [104], they say this: 104. Finally, in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication. In Godfrey , Jordan CJ said: "It is of the utmost importance in the case of statements made on occasions of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of commonsense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla : Oldfield v Keogh . Any other approach to the subject would in substance destroy the doctrine of qualified privilege altogether." 108 In my opinion it is clear that what is relevant here is the motive of Echo Publications in publishing the defamatory material, not its motive in publishing other parts of the publication. Relevantly, the defamatory material is paragraph 6 and 16 of the article; and in my opinion, as submitted by Mr. McClintock, the content of those paragraphs would not, without more, support a finding that the dominant reason for publishing them was other than to give Ms. Potts' response to an attack on her. 109 However, the Court can have regard to other evidence in determining whether the dominant reason for publication of the defamatory material was other than to give Ms. Potts' response to the attack on her; and that other evidence can include other parts of the article itself. As noted earlier, paragraphs 1-5, 11, 15 and 17-21 of the article do not purport to be Ms. Potts' response; although some of those paragraphs, for example paragraphs 4, 11, 15 and 17, tend to support the view that the purpose of publishing paragraphs 6 and 16 was to give Ms. Potts' response. On the other hand, paragraphs 1, 5 and 18-21 could suggest that there was another purpose in publishing the article, giving rise to the question whether this other purpose was the dominant reason for the publication of paragraphs 6 and 16. 110 That question was not addressed by the primary judge. Because of my decision that Echo Publications does not have the benefit of qualified privilege on the basis claimed, it is not necessary for this Court to determine it.

SECTION 22 111 Mr. McClintock submitted that the primary judge gave no reason for rejecting the s.22 defence; and submitted that the defence was available to Echo Publications in accordance with principles set out in the following statement by Hunt J from Collins v. Ryan (1991) 6 BR 229 at 234-5: I am of the opinion that such an occasion of qualified privilege is arguably available (at least in its statutory form) in relation to letters to the editor and to other contributions from members of the public where the media provide a forum for their participation in the free discussion of matters of public interest. ...There seems to me to be a strong argument available to the second defendants that, as s.22 of the 1974 Act has substituted the reasonableness (in the circumstances) of the defendant's conduct in publishing the matter for the duly or interest which the common law principles of qualified privilege require (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797), it is reasonable in the circumstances for members of the media to provide a forum in which members of the public may not only express their opinions but also assert and debate factual issues even if the publisher does not himself honestly believe in the truth of the facts so asserted. 112 Mr. Hale noted that the primary judge had referred to the allegations against Mr. Tucker being quite unrelated to any possible attack on Ms. Potts, and to the article being a vehicle for Fast Buck$ and Echo Publications gratuitously to make extremely derogatory and unsubstantiated allegations against the Echo's competitor and its proprietor; and also referred to Echo Publications not having made any enquiries with a view to ascertaining whether the material contained in the subject article was true. Mr. Hale submitted that the primary judge correctly determined that the conduct of Echo Publications in publishing the material was not reasonable. 113 In order to decide whether error by the primary judge has been shown, it is necessary to look at the basis on which s.22 was argued below. 114 It was put that the conduct of Echo Publications was reasonable on the basis of the following: (1) The same factors as relied on for common law qualified privilege; (2) Mr. Tucker had adequate opportunity to respond in his own newspaper; (3) The facts asserted were in the major part true; (4) Mr. Tucker was a man of considerable substance, and had acted unreasonably in not paying Ms. Potts; (5) It did not matter that Echo had not checked the accuracy of the article; (6) The Echo provided a forum in which issues could be debated ( Collins ) particularly in a political context ( Roberts v. Bass ). 115 I have already dealt with reasons of the primary judge dealing with items (1) and (3). This leaves the question of whether he dealt adequately with matters (2) and (4)-(6). Although the question of the reasonableness of the publication (referred in s.22(1)(c)) was not explicitly referred to by the primary judge, he did in par.[254] of his judgment (see par.[29] above) hold that the community in the Byron Council area had no legitimate interest in receiving the publication, this being one of the alternatives set out in s.22(1)(a). Since Echo Publications gave no evidence as to its beliefs, it would not appear that the requirements of s.22(2) for the other alternative in s.22(1)(a), that of "apparent interest", could have been satisfied. 116 In my opinion, having regard to the way the case on s.22 was argued below, the primary judge's reasons were adequate. It may be that if reliance on Collins and Roberts v. Bass had been developed in submissions before him, the primary judge would have needed to address in more detail the role of a newspaper such as the Echo in providing a forum for persons such as Fast Buck$, and the question of public interest in being informed about alleged unethical conduct by a politician. 117 Thus it might have been put that the conduct of a prominent local politician, who was also a newspaper proprietor, could be considered a matter about which the readers of the Echo had an interest to be informed, where Mr. Tucker had approved the use of the newspaper of which he was a proprietor to make a damaging attack on a person not in the public eye, to denigrate the industrial laws of the State, and in doing so to make inaccurate statements as to the time worked by Ms. Potts (on the primary judge's findings), the amount ordered to paid and what it was ordered to be paid for, and (at least by implication) the basis of the Chief Industrial Magistrate's decision. However, in circumstances where the case on s.22 was not put that way to the primary judge or to this Court, this Court cannot hold either that the primary judge's failure to deal with such an argument amounted to a deficiency of reasons, or that he was in error in not acceding to it. 118 For those reasons, in my opinion the appeal concerning s.22 fails.

Decision 128 The question to be addressed, on each of these issues, is whether the jury's decision which no reasonable jury, properly directed, could have made: John Fairfax Publications Pty. Ltd. v. Rivkin (2003) 77 ALJR 1657. 129 As regards paragraph (f), the article does not state in terms that the misrepresentations that led to the payment of $10,000.00 in settlement of the defamation suit were misrepresentations published in the Star, although there was a fairly clear implication to that effect. It is also conceivable that the article's reference to "a defamation suit over misrepresentations they made about him" could have been interpreted as identifying the subject matter of the suit rather than squarely alleging that the representations were actually made. Having regard to the stringency of the test to be applied before a jury verdict is overturned, I am not prepared to find that no reasonable jury, properly instructed, could have failed to find the imputation (f) was conveyed. 130 Turning to imputation (h), namely that Mr. Tucker was a "bully", it seems to me that that is an imputation which, because of its vagueness, might possibly have been considered not likely to cause an ordinary reasonable person to think less of Mr. Tucker or to shun or avoid him. It is true that the circumstance that something might be considered "vulgar abuse" does not prevent it from being defamation; but the circumstance that this imputation may be considered mere abuse may permit a jury to conclude that the imputation is one which in the circumstances is not likely to cause ordinary reasonable persons to think badly of Mr. Tucker: cf. Mundey v. Askin [1982] 2 NSWLR 369 at 371-2; Bennette at [45]-[51]. 131 As regards imputation (c), set out in para.[22] above, this imputation is more specific, and involves what would appear to be serious wrong-doing by a newspaper proprietor, in not merely misrepresenting facts in virtually every article (which could be considered accidental or due to errors by reporters or editors) but doing so in abuse of his power of publication and in order to further personal causes - thus apparently excluding the possibility of anything other than personal and deliberate misrepresentations. In my opinion, a reasonable jury could not consider this to be other than defamatory: cf. Charlwood Industries Pty. Ltd. v. Brent [2002] NSWCA 2001. 132 In those circumstances, the usual remedy would be a re-trial on both the question of whether the imputation is conveyed and the question of whether it is defamatory (Charlwood at [36]-[48]) unless the Court thinks it appropriate to exercise the power under s.108(3) of the Supreme Court Act to enter a verdict. In the present case, neither party asked the Court of Appeal to take that course. In any event, I do not think it would have been appropriate: there is a real question whether the article does convey the imputation of deliberate abuse of power in order to further personal causes, so the jury's error on whether the imputation was defamatory suggests a significant possibility of compromise or some other error in the decision as to whether the imputation was carried: cf. Charlwood at [49]-[55]. 133 In those circumstances, in my opinion Mr. Tucker would be entitled to a new trial in relation to imputation (c).

John Fairfax Publications Pty Limited v Obeid

At a glance

Court

Decision date

Before

Source

Judgment (145 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (27)

Cited By (9)