McMullen v TCN Channel Nine Pty Ltd

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST DUNFORD J Tuesday, 3 OCTOBER 2000 21374/95 - Patrick McMULLEN v TCN CHANNEL NINE PTY LTD JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff sues the defendant for defamation alleged to arise out of the "Sunday" program broadcast on Channel Nine (and its relay stations) on 10 September 1995. On 8 February last, the jury pursuant to s 7A, Defamation Act 1974 ("the Act") found that the program conveyed two imputations defamatory of the plaintiff, namely Imputation (b) - That the plaintiff was so irresponsible as the Head Teacher of English at South Grafton High School that he jeopardised the prospects of the students by introducing new and untested teaching methods ; and Imputation (c) - That the plaintiff deliberately concealed from the parents of students at the school that the students were being taught by controversial and untested teaching methods. This judgment deals with the other issues arising out of the proceedings, namely the defences and damages.

FACTS 2 The plaintiff who was born on 20 May 1956 was a teacher who graduated with the degree of Bachelor of Arts from Sydney University in 1977 majoring in English, History and Psychology. The following year he obtained his Diploma of Education and commenced employment with the New South Wales Department of School Education as a teacher of English and Drama at Fairview High School, Canley Vale. Subsequent appointments followed including Endeavour, Bellingen (1984-93) and at the commencement of 1994, after being chosen by a selection panel, he was appointed Head Teacher of the English Department at South Grafton High School. 3 The plaintiff appears to have been an enthusiastic teacher who was prepared to apply a number of different approaches to teaching in order to reach students of different aptitudes and capacities. For example, in addition to traditional methods of lecturing and giving notes, he used methods described as Student Centred Teaching, Co-operative Learning and Collaborative Learning. Co-operative Learning involved getting students to work in small groups, while Collaborative Learning involved working collaboratively with the students so they were involved in decision making about what would be done and how etc. At the same time he saw the need for traditional teaching for more than fifty percent of the time. 4 At Bellingen High School he was involved in the implementation of Mixed Ability Teaching (putting more and less advanced students in the same class) which proved quite successful. He received a number of excellent reports from principals and supervisors. He also acted as Student Advisor, coached debating and sporting teams, and produced and directed theatrical performances by the students. 5 Whilst at Bellingen he became aware of the writings of Professor Howard Gardiner, an American educationalist, who postulated the theory of Multiple Intelligences to the effect that there are seven different forms of intelligence each with their own characteristics, that most children will have elements of a number of these intelligences and that different methods or techniques of teaching are more likely to be effective in respect of students of different intelligences; or to put it more simply, that children with different abilities and aptitudes are more likely to learn if taught differently, rather than the same uniform method being used in respect of all children. Professor Gardiner advocated a greater use of students' projects and experiences to further their learning of basic core subjects and referred to this as "individual centred education". The plaintiff did not isolate the learning styles, but taught all of them in the same class or unit, and did not tell the children what their individual learning styles were. 6 Over some years other persons had developed a number of theories and applied them to teaching basic literacy and numeracy skills to very young children (e.g. aged 5-6 years), which were described as Accelerative Learning (or to conform with the modern necessity for acronyms, "AL"). The proponents of these theories taught that the concept of the multiple intelligences should be applied so that children were encouraged to do activities which suited their particular intelligence, and those identified as having a body/kinaesthetic intelligence spent their time in running and ball games whilst those with a musical/rhythmic intelligence were more likely to spend time in singing and dancing activities. In some way these activities were said to help teach young children to read and write. 7 Other theories espoused by proponents of Accelerative Learning included that children from different racial and cultural backgrounds, e.g. Asians, Anglos, Aborigines, Arabs, generally have different preferred learning styles, that the preferred learning styles of individual children can be determined by watching the direction their eyes move when asked a question (Neuro Linguistic Programming); that the human brain has separate "reptilian", "paleo mammalian" and "neocortex" functions (the Triune Brain); and that under stress the "neocortex" can shut down, and then the "paleo mammalian" shuts down so that the "reptilian" takes over (Down Shifting); and a belief that the two hemispheres of the brain act independently and learning can be improved by exercises designed to get both hemispheres acting together (Brain Gym). 8 Whilst at Bellingen he had attended part of an in service training session on what was described as Accelerative Learning. The course referred to the writing of Eric Jensen, and included discussion that students came from different backgrounds and experiences, and therefore had different learning styles, and encouraged "co-creating the environment", i.e. making the classroom unusually stimulating, all of which fitted in with what the plaintiff believed and had been putting into practice. There were parts of the course he was not impressed with, such as singing songs and saying nice things to each other to get people motivated. He felt that from the course he had learnt the theory to match the practices he had already been carrying out, and which he had learnt from Corroborative Learning, Co-operative Learning, etc; and he felt he was a bit more aware of the multiple intelligences. Whilst at the course he heard no reference to concepts such as the Triune Brain, Reptilian Down Shift or Neuro Linguistic Programing. 9 In 1994 he (with Paul Gibson) conducted a workshop at Opal Cove for teachers at South Grafton High School entitled "Building Collaborative Learning Communities" which incorporated what might be described as the Co-operative Learning Program and included a small segment devoted to what he had picked up at the Accelerative Learning course he had done the previous year. Reference was also made to Professor Gardiner's theory of seven intelligences. For this seminar a brochure was prepared entitled "Building Collaborative Learning Communities" (Ex. H). 10 These Collaborative Learning techniques, although they may have been new at the time to some at South Grafton High, do not appear to have been very radical and had been known and used to a degree by some teachers such as Mrs Nelson for some time, and Ms Worthy was familiar with these techniques from her previous posting. Mr O'Connor said some of the techniques appeared to be new to South Grafton but he had been familiar with them some years previously when working in Western Sydney, including teaching to the preferred learning styles of different students. They involved things such as interrupting the lecture or class at appropriate times to have the students express a relevant thought or comment on the point of the text to the person sitting next to them, or having them act out a part of the text to better help them understand and memorise the text or scene. He also organised regular meetings of all the English teachers in the school, as part of this Co-operative Learning Program. 11 He appears to have got on well with his fellow teachers and with students, and his prospects of promotion in due course were excellent, probably leading ultimately to headmaster. He enjoyed his work as a teacher and had no desire to do anything else. 12 In the 1994 HSC examination, the 2 Unit Related English class, which was not a class taught by the plaintiff, got poor results, and this was featured in the local newspaper and later in metropolitan newspapers and on state wide television. Although he had not taught the class, the plaintiff as head of the English Department was subject to criticism and comment, although most of the references in the various newspaper articles referred to the class teacher (Mr Widseth) rather than to the plaintiff. 13 These results led to a departmental enquiry (Exs. L and O). The report did not suggest, directly or indirectly, that a contributing factor to the poor results was the introduction of Accelerative Learning or any other radical or unsatisfactory teaching method, but the investigation and its aftermath caused the plaintiff extreme stress. 14 On 20 February his wife left him taking the children. He was not eating or sleeping properly, was drinking to excess and became depressed, as a result of which he was admitted to the Richmond Clinic for 5 days as an involuntary patient. After 3 weeks sick leave he returned to teaching in March 1995. Shortly afterwards, his wife returned to him and they undertook family counselling. All of these matters were before the Sunday program, and by the time of the program he felt he was much better and seemed to have regained his old enthusiasm. 15 In late August 1995, the plaintiff was invited to and agreed to give an interview to Channel Nine about Accelerative Learning. There was no discussion about what the different parties to the interview meant by Accelerative Learning and the plaintiff claims (although this is denied) that he stipulated he did not wish to be questioned about the 1994 HSC results. The Channel Nine representatives told him that they wished to run a positive program on Accelerative Learning and Collaborative Learning and this is confirmed by soothing, encouraging remarks made to the plaintiff at the end of the interview. These remarks appear on the videotape (Ex. E) but not on the transcript thereof (Ex. E1). There was no hint or suggestion that the main program would ridicule or criticise Accelerative Learning. 16 In that interview the plaintiff commenced by saying that what he meant by Accelerative Learning was a learning theory and a learning practice that provided a much better quality of teaching in a classroom, and he made a number of points, including that tapping into the different intelligences of children made them better learners, that he did not see Accelerative Learning as a replacement for the teaching of reading and writing, that he did not use Neuro Linguistic Programming to determine what kind of learner a child might be, and that there were a lot of facets of Accelerative Learning which he did not use, but he saw Accelerative Learning as helpful when used with other techniques like Co-operative Learning and collaborative structures, that he was implementing it mainly in junior high school rather than HSC classes, and there was still a place for traditional teaching. 17 Notwithstanding what the plaintiff claims he thought was the understanding between them, the following exchange took place: Presenter: "I appreciate this is a sensitive issue but I'm sure a lot of people would want to know this. Was the class that was having a bit of problems with its HSC last year taught using AL methods? Plaintiff: No, you're not going to put that on, we agreed on that didn't we? Presenter: No, I haven't agreed not to raise this with you. I think a lot of people would want to know is the class that had difficulties with its HSC English exam last year, was that class taught using AL methods?

Plaintiff: No they weren't. Presenter: Not at all? Plaintiff: No."

18 Before the program went to air the defendant also interviewed Professor Howard Gardiner (Ex. M) who, although critical of a number of aspects of Accelerative Learning, remained positive about his own theory of seven intelligences, and how that might be utilised in the classroom. 19 When the broadcast went to air the following Sunday it ran for about 40 minutes and the plaintiff was only featured in the last 2 or 3 minutes of that. The program featured a number of aspects of Accelerative Learning which had not been adopted by the plaintiff and some of which he had never heard of. It commenced by describing it as "controversial" and said critics described it as "gobbledy gook that casts our kids in racial stereotypes". It showed young children doing physical exercises on the floor described as "brain gym exercises" and featured a primary school teacher saying that in such way they were joining both sides of their brain which they needed to do to read, and that throwing a ball around was just as important to the children as learning their arithmetic tables or reading. There was reference to the supposed different learning styles of different racial groups. It showed teachers at training courses turning to each other and saying things like, "I like your brain", "I love your suggestions", which tended to make it look like something of a cult. 20 The theories and practice of Accelerative Learning were described by educational academics as having no scientific basis and "completely wrong". Reference was made to Professor Howard Gardiner, but the point was made that there was a huge gap between his theory (of multiple intelligences) and how it was applied in the classroom, and it was said that Accelerative Learning was booming in poorer, socially disadvantaged parts of Sydney, and that in a public school in Western Sydney these theories were being applied to the extent that at an early age, children assessed as bodily kinaesthetic were put in a separate class to those assessed as logical-mathematical or linguistically-intelligent. The theories of the Triune Brain, Down Shifting and Neuro Linguistic Programming were described and criticised. 21 Then almost at the end of the program, reference was made to the fact that every student of one of the English classes at South Grafton High School failed the HSC exam the previous year, and that a subsequent enquiry found no fault in the school's teaching technique, but went on: - "Sunday accepts that finding, but wonders if the Government investigators knew that every English class at the school, including the class that failed, was taught using AL techniques. The teacher of the failed class told Sunday, this man, Patrick McMullen, the Head English Teacher did push him to use AL last year. Mr McMullen is an enthusiastic supporter of AL. . . . Patrick McMullen denies the failed HSC class was taught using any AL techniques, but we have confirmed with the actual teacher that he did use a limited amount of AL such as music, group work and acting out novels. . . . More concerning, McMullen admitted to us that parents aren't told in school reports that their child's being taught using AL methods."

and the program featured two short excerpts from the plaintiff's interview. 22 The program presented Accelerative Learning as "way out", unscientific, unproven and harmful to children's education, as contrasted with traditional teaching methods; and that the plaintiff was an advocate and proponent of Accelerative Learning as so described and had introduced and encouraged these methods at South Grafton High School, without notifying the parents that such a radical change in teaching methods had occurred, and that the HSC English class which had done so badly had been taught, partly using Accelerative Learning methods. 23 When he saw the program the plaintiff was shocked, upset and angry, he felt humiliated and embarrassed, he felt responsible for the bad results and felt that he was made to look totally irresponsible; he felt his reputation would be wrecked, he felt stressed and depressed, he could not eat or sleep and did not want to talk to others. He thought that what he had said in his interview had been distorted to the point where it made him look stupid. 24 He did not wish to go to school the following day, and when he did he was abused by the head mathematics teacher who accused him of making the school look like a complete shambles, and that the parents of the brighter students would be taking their children away and sending them to Grafton High School. From that time he believed that his credibility was in tatters. The District Inspector told him he had been approached by parents and the headmaster told him that he had been very foolish to speak to the media. In the following period parents and others approached him in the street and called him names and suggested he had caused the bad results and should not be the head teacher. He also noticed fellow staff members distancing themselves from him which wrecked the team building he had tried to build up in the English Department. He felt awful to be associated with anything like dividing children up according to race, something he would never do. 25 The plaintiff who until then had been an enthusiastic teacher also lost interest in teaching and began to hate it. He kept going until the Christmas holidays in 1995-6 but when a fellow teacher, Mrs Nelson saw him in late 1995 he struck her as physically and spiritually tired, cynical and very unhappy. His previous symptoms of depression re-occurred, except that on this occasion there was no-one whom he could talk to about it except his father, to whom he complained that he was hurt, angry and embarrassed, that he had been misrepresented and held up to ridicule. Shortly afterwards he drove to Orange and visited his father, and for the first time said he felt he did not wish to teach any more. He started to smoke and drink more and was abusive to his wife who left him again in December 1995 taking with her the two young children of the marriage. Acrimonious Family Court proceedings for access to the children followed. The English class which he personally taught for the 1995 HSC achieved very good results. 26 In 1996 he continued teaching but without his previous enthusiasm, until in May 1996 when there was in item in the Daily Telegraph concerning the marking of HSC English papers by country teachers which again made reference to the poor marks in English at South Grafton High School. The plaintiff described this as the straw which broke the camel's back and he resigned as a teacher and subsequently was medically retired on grounds of depression in 1997. He re-married in November 1998 and his wife is currently expecting their child. 27 Sarah Turner did the research for the defendant's program and said that in her initial telephone conversation with the plaintiff, he told her that he had spoken about Accelerative Learning at an in service course at school; that he was doing some of these things in his classroom, and had been talking to some of the teachers about it. In her notes she noted that he was not officially the co-ordinator of Accelerative Learning at South Grafton. She denied that in either the conversation on the telephone or before he came to Channel Nine studios he said he was not talking about HSC results but that immediately prior to the interview with him being taped, the plaintiff said, "Oh, of course I don't want to talk about the HSC results". She remembered that sort of threw the reporter Ross Coulthart and herself, and they said nothing, it was just left hanging then the interview began. Her understanding was that Mr Coulthart did want to raise the HSC results in the interview. 28 In cross-examination she agreed that the purpose of the interview with the plaintiff was to have him say positive things about Accelerative Learning, and she did not suggest to him that the program might be critical of Accelerative Learning but she did not say that it would be positive either, although she was aware about two weeks before the program went to air that it would be very critical, that some of the ideas and techniques were way out and quite laughable, and they intended to put some of the absurd and laughable segments on the program because they were so absurd. The reason why she contacted the plaintiff was because he came from South Grafton High which had had the bad results, but she did not mention the HSC results when she contacted him on the telephone. 29 Two weeks before the program she was aware that the term "Accelerative Learning" meant different things to different people and that the difference lay in which techniques people chose to use, not whether people thought some techniques were Accelerative Learning or not. 30 Dr Noble, a senior lecturer in Cultural Studies at the University of Western Sydney (Nepean), with an interest in Pedagogy, and Professor Gillam, a professor of psychology at the University of New South Wales, both gave evidence on behalf of the defendant. They were generally critical of Accelerative Learning, its theories and practices and also of teaching to different learning styles; but neither of them had significant experience in school teaching, and I do not find their evidence of great assistance. 31 Mr Weller, on the other hand, was a teacher and subsequently an inspector with the Department of School Education with many years experience. He said that he had heard of the theory that persons generally have preferred learning styles but had not seen any strong evidence for such notion. He would be "very, very, wary" about introducing a teaching technique based on the seven intelligences described by Professor Gardiner if it was a significant program, as he was unaware of any substantial scientifically validated corroborative evidence to indicate the existence of these seven intelligences. 32 He said that traditional teaching methods used a more teacher centred approach (which he considered essential), but stated that the idea referred to in Ex. E of Collaborative Learning, that is students working together to solve a problem, (for example to develop a class newspaper) is relatively old, having been used by teachers for a long time without necessarily having attached a label to it. He considered that it is essential to make students analyse a text for themselves, perhaps even to read it around the classroom, do some play acting, visit a theatre where the play is being held; so that there is an emphasis on student learning, not simply imparting knowledge from the teacher. 33 He agreed it would be very difficult for a teacher to get all students to contribute to class discussion and conceded that it might involve some innovative techniques to do so, but considered that the time needed to achieve such a thing would be a problem and that whilst it may be valuable to know what values students might bring to a particular unit of work he did not consider it a vital aspect of good teaching. 34 He agreed that each teacher is different and uses different teaching techniques, that different techniques may be used for dealing with slow compared to fast learners and that different techniques may impact on different students in various ways and in varying degrees. 35 He considered techniques such as passing a basketball around the room and students meditating in class with background music (Baroque music specifically) as unusual, but, if such techniques were used only occasionally, they were merely incidental to the basic teaching methods of the teacher or the school. 36 He considered that if any significant change was introduced into a school, the parents ought to be told, but not if it was merely a few innovative techniques used to supplement more traditional teaching methods. 37 Mr Widseth was (and still is) a teacher at South Grafton High School and was the class teacher of the 1994 2 Unit Related English class which did badly in the HSC examination. He stated that Ms Turner had telephoned him and told him that the "Sunday" program was intending to do a piece on Accelerative Learning and that when she asked him about Accelerative Learning he asked her to explain it to him, as he had heard of the term but did not really understand the ideas behind it. After she gave him an explanation of what it was, he told her that he had never used it and that he had never heard the plaintiff use the term. They then discussed other techniques that were used at the school, some of which he had used over the years, including group learning, co-operative learning, brain storming, mind mapping and the daisy wheel. Ms Turner asked him whether the plaintiff used Accelerative Learning, to which he replied "no", and he denied saying to her that the plaintiff pushed it. When reference was made to the results of South Grafton in 1994 he quickly ended the conversation. 38 He told Ms Turner that the plaintiff had encouraged the use of co-operative and collaborative skills through an in service training session with Miss Wells in 1994, and said that he understood that the use of such skills "was a necessary strategy in teaching mixed ability groups in junior English classes". The witness identified the ideas set out in exhibit H as being the ideas of Co-operative or Collaborative Learning which were discussed as teaching strategies during 1994 in the teachers' meetings. He understood the concept of "preferred learning style" but had no understanding of the concept of "multiple intelligences", and he had never used techniques such as students lying on the floor reflecting, listening to music and throwing an object around the room, and they were not techniques that were ever discussed in the teachers' sessions dealing with co-operative, collaborative and group learning or at the in service. He did not know of the terms "Brain Gym", "Neurolinguistic Programming" or "Down Shifting". JUSTIFICATION (TRUTH) 39 The defendant pleads that each of the imputations was a matter of substantial truth and related to matters of public interest (Defamation Act 1974, s 15(2)). 40 Imputation (b) involves three elements: (a) that the plaintiff introduced new and untested techniques; (b) that in doing so he jeopardised the prospects of the students; and (c) that in doing so he was irresponsible. 41 It is true that the plaintiff did include in his teaching methods, and encouraged other teachers to include in theirs, a number of practices and techniques commonly referred to as Co-operative Learning, Collaborative Learning, preferred learning styles, multiple learning techniques, group work, acting out drama texts and such like; but these were not new, many teachers were already using them in varying degrees and others had heard of them over some years, including Mrs Nelson, Ms Worthy and Mr O'Connor. The workshop at Opal Cove where these techniques were encouraged was jointly conducted with Paul Gibson, another teacher who was familiar with them, and was entitled "Building Collaborative Learning Communities". Although Pam Wells, said to be an advocate of the more unconventional aspects of Accelerative Learning, spoke at the Conference, her session was comparatively brief and from the extract of her book included in Ex. H, it appears to have been directed at catering for students with different styles of learning aptitude, with no references to such things as Neuro Linguistic Programming, the Triune Brain, different learning styles exhibited by different racial or ethnic groups etc, nor were any of the cult like practices such as Brain Gym, holding hands and saying things like, "I love your brain" referred to. 42 The various practices commonly described as collaborative learning, preferred learning styles, group work etc, were generally approved by Mr Weller, provided they were not overdone. He had reservations about such things as throwing a basketball to pupils in class, lying on the floor and listening to baroque music, but I am satisfied that the plaintiff only used these techniques occasionally and there is no evidence that he encouraged or persuaded other teachers to do so. 43 It appears that some of these techniques were also favoured in varying degrees by the adherents of the more unconventional aspects of Accelerative Learning, and some confusion developed in educational circles as to precisely what constituted Accelerative Learning and what were merely pre-existing techniques adopted by advocates of the new theories. Indeed, at the Accelerative Learning course, part of which the plaintiff attended whilst he was at Bellingen, there were some sessions which dealt with pre-existing practices such as multiple learning techniques etc. It would seem therefore that the plaintiff came to understand that some of these older techniques that he was using and encouraging other teachers to use could be described as Accelerative Learning, and he so described it when interviewed by the defendant (Ex. E). He also made clear in that interview that whilst he was enthusiastic about what he described as Accelerative Learning, there were other parts of it which he did not accept, adopt or utilise, e.g. Neuro Linguistic Programming. It is not without significance in the present context that following the Opal Cove in service in March 1994, the minutes of the teachers' meetings refer to Co-operative Learning and Mixed Ability Teaching, but there is no mention of Accelerative Learning. Some teaching techniques were common to both Accelerative Learning and other practices such as Co-operative Learning and preferred learning styles, but this was not what the telecast was about, it was about the more unconventional practices and the lack of scientific or psychological basis for them. 44 Senior Counsel for the defendant submitted that a definitional debate should be avoided and that what was shown and criticised in the subject telecast and what the plaintiff introduced into teaching practices at South Grafton High School were all described as Accelerative Learning, and accordingly were all the same thing. 45 In my view they were not. What was shown and criticised in the program was what was defined in the Particulars of Truth in the Further Amended Defence as Imputation 5(b) para (e). These were not teaching methods introduced into the school by the plaintiff. In so far as he introduced, or encouraged, different teaching methods, such teaching methods were not new or untested but had been used successfully in a number of schools, including by the plaintiff, for a number of years. What the plaintiff was doing at South Grafton was "light years" away from what was shown on the Sunday program as happening at Noumea Public School and at teacher training sessions. 46 Furthermore, I am not satisfied that any teaching methods introduced (or even encouraged) by the plaintiff jeopardised the prospects of the students. The plaintiff's classes in fact got very good results, and the 1994 2 Unit Related English class which did badly was not taught by the plaintiff, the teacher who taught that class (Mr Widseth) had not adopted any of the techniques advocated by the plaintiff, and in particular had not used any of the techniques referred to (accurately or otherwise) as Accelerative Learning - as both Mr Widseth and the plaintiff made clear to Channel Nine before the subject telecast. 47 The evidence indicates that the class failed because they had not been taught to think for themselves when writing answers, the very antithesis of what the plaintiff was trying to do. The Education Department investigation found no fault in the school's teaching methods. Although both the plaintiff and Mr Widseth told Channel Nine that the English class that had "failed" had NOT been taught using Accelerative Learning, the program pushed the line that it had. 48 It follows that imputation (b) has not been shown to be a matter of substantial truth and the defence of justification fails. For the same reason I am not satisfied that the students at the school were being taught by controversial and untested teaching methods, and so the defence also fails in relation to imputation (c). Similarly the various interstate defences based on the truth of the matter published also fail. 49 The plaintiff may have been foolish or naive to give an interview in the first place; and then to give the impression he was enthusiastic about Accelerative Learning when he knew very little about it; but that does not mean that he introduced new and untested teaching methods into the school - he himself said in that interview that he did not accept or use everything in Accelerative Learning. 50 Although the defendant devoted a lot of time at the trial to evidence about throwing the basketball around and listening to Baroque music, these were very minor aspects of the plaintiff's teaching (and were not used by the other teachers), and were not used by the plaintiff on the theoretical basis advocated by the proponents of Accelerative Learning, but as a supplement to his more conventional teaching methods. 51 As the defendant has failed to establish the truth of either of the imputations found by the jury, the defence of contextual truth also fails (s 16).

QUALIFIED PRIVILEGE 52 In relation to New South Wales, the defendant relies on the defence of qualified privilege at three levels: (a) at common law; (b) at common law as modified by the judgment in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; and (c) by statute: Defamation Act 1974 , s 22.

There are appropriate corresponding defences relied on in relation to the other States and Territories.

(a) Qualified Privilege at Common Law 53 Qualified privilege at common law arises on an occasion where the person who makes the communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it, such reciprocity being essential: Adam v Ward [1917] AC 309 at 334. 54 Ordinarily, the common law defence of qualified privilege is not available to media defendants: Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 772-792, Lange at 570. The defendant submits that this is an exceptional case in this regard because of the importance to, and, interest of, the general public in public education and the teaching methods being used in public schools. 55 Whilst some members of the public might have such an interest (e.g. parents of school-age or pre-school children) I do not accept that members of the public generally have such an interest; and in any event a media organisation is not entitled to publish a defamatory imputation about an individual merely because the statement is made in the course of dealing with a matter of public interest: Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 513. Accordingly the subject broadcast was not an occasion of qualified privilege at common law.

(b) Qualified Privilege as modified by Lange 56 In Lange at 571 the High Court held that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia, including discussion of such matters at State, Territory or local level, and that such interest extends the categories of qualified privilege so as to protect communications made to the public on a government or political matter. 57 The case law does not appear to have yet defined what constitutes "government and political matters" for the purpose of this defence, although a commentator has suggested that the concept is quite wide and it certainly is not limited to cases where the plaintiff is a politician or similar public figure: Sally Walker: Lange v ABC (1998) 6 Torts Law Journal 9 at 17, but as discussed hereunder in relation to reasonableness, the mere fact that part of published material relates to "government or political matters", does not extend qualified privilege to communications relating to individuals which do not relate to the discussion of "government or political matters" simply because they are included in material which does have that character: Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 at [27]. 58 I accept that the greater part of the program dealing with the more innovative and sensational aspects of Accelerative Learning as applied to primary school children could be classified as a discussion of "government and political matters" as it involved a discussion of how the state school system was being administered, and taxpayers' funds used for the introduction and use of improved and untested teaching methods; but whether that really had anything to do with the concluding section of the program, which related not to the teaching methods discussed earlier in the program but to the teaching of English in a specific High School where such methods were not being used, is best left to consideration when dealing with the reasonableness of the defendant's conduct.

(c) Statutory Qualified Privilege 59 As to qualified privilege under s 22 of the Act, the "interest" of the recipient in receiving the information is a wider concept than in relation to qualified privilege at common law: Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 358-9; and I accept that the viewers had such an interest or apparent interest in the general nature of the telecast relating to Accelerative Learning in general, but I am not satisfied that the matter concerning the plaintiff was published in giving information of that subject as required by s 22(1)(b). This is particularly so in relation to imputation (c) (that he concealed from parents that the students were being taught by controversial and untested teaching methods), but also in relation to imputation (b) (that he jeopardised the prospects of students by introducing new and untested teaching methods). What the parents were or were not informed about teaching methods did not in any real sense relate to the alleged deficiencies of Accelerative Learning as discussed in the major part of the program, but was of concern only to the parents of students at South Grafton High School; and the nationwide extent of the publication cannot be regarded as reasonable in relation at least to this imputation within the terms of s 20(3)(c). 60 As regards imputation (b) the subject on which the defendant purported to be giving information was the alleged deficiencies of Accelerative Learning as a method of teaching young children, but the teaching methods espoused by the plaintiff, as I have already shown in relation to the defence of truth, did not encompass Accelerative Learning in that sense, and therefore were not relevant to that subject matter. 61 In any event, to succeed in relation to qualified privilege under the statute, the defendant must show that it acted reasonably (s 22(1)(c)), and this is also relevant for the purposes of the expanded defence of qualified privilege discussed in Lange.

Reasonableness 62 The defendant's difficulties in relation to reasonableness are very similar to its difficulties in relation to truth, in that what was portrayed as Accelerative Learning in the greater part of the program was very different to what the plaintiff was referring to as Accelerative Learning when he was interviewed by the defendant. It is, in my view, no answer for the defendant to say that the plaintiff used the term Accelerative Learning and expressed enthusiasm for it. He was never given any indication of the thrust of the program, that it was setting out to ridicule Accelerative Learning in so far as that theory included attempting to teach five year olds to read by having them throw balls to each other, the theories of the Triune Brain, Down Shifting, Neuro Linguistic Programming, Brain Gym, the right brain/left brain theory and such like; and when the plaintiff indicated that he only used part of what he knew as Accelerative Learning, no attempt was made to ask him which parts he used, and whether he adopted or practised those aspects of it which the reporters knew were going to be ridiculed in the major part of the program. 63 I have no doubt that if he had been shown the first part of the program or had its contents indicated to him he would either have declined to be interviewed or else have said that what his school was doing bore no relationship to the theories and practices depicted in the program. Moreover, the plaintiff was admittedly chosen because he was in charge of the English Department in the school in which an English class, not one taught by the plaintiff, and not one in which Accelerative Learning had been used, had been unsuccessful in the previous years Higher School Certificate. 64 In this regard Ms Turner's conversation with Mr Widseth is illuminating. When she asked him about Accelerative Learning he asked her to explain the term. She described some aspects of it and he said that if that was what the technique was, he had not used it and the plaintiff did not use it, although he did use Co-operative Learning, including things like brainstorming, mind mapping etc, and he agreed that the plaintiff had promoted Co-operative Learning and group learning. It should therefore have been clear to Ms Turner that there was a definition problem, that Accelerative Learning meant different things to different people and that although the relevant HSC class had used co-operative and group learning it had not been taught using Accelerative Learning in the sense of the techniques depicted on the program. 65 There is a conflict in the evidence between the plaintiff and the reporter Ms Turner, as to whether she told him that the program would be positive about Accelerative Learning and whether he would be asked questions about the previous year's HSC results. Notwithstanding Ms Turner's contemporaneous notes, I consider that whether or not she told him the program would be positive about Accelerative Learning, she probably conveyed that impression, otherwise I doubt that the plaintiff would have given the interview. As to whether she told him he would not be asked about the results, Mr Widseth said that before the interview the plaintiff told him that if they did he would stop the interview, which does not seem consistent with having been given an assurance that the matter would not be raised. Ms Turner said that the plaintiff sought an assurance before the interview that the HSC results would not be raised and his query was ignored, deliberately. He should have been told that it would be raised; failure to do so in those circumstances was unfair and unreasonable. 66 The imputations found by the jury take their context from the balance of the program showing the more extreme techniques and theories of Accelerative Learning as practised in the primary schools of Western Sydney. The plaintiff was never asked whether he used those techniques or accepted those theories, yet the context of the program led to that impression. Actually the plaintiff had said in the interview he gave that he did not adopt it all, but was not given the opportunity to say which practices and theories of Accelerative Learning he adopted and which he rejected. 67 In relation to the "Lange" defence, it will not be regarded as reasonable unless the defendant has sought a response from the person defamed and published the response made, if any. In the circumstances of this case that would have involved at least showing the plaintiff the aspects of Accelerative Learning shown earlier in the program and inviting his comments on what he had said in the context of the earlier part of the program. 68 Finally, the conduct of the defendant was not reasonable in that the segments featuring the plaintiff were taken out of context. In the interview that the plaintiff gave to Channel Nine (which lasted about 25 minutes), the plaintiff said amongst other things (Ex. E pp 3-4) that catering to different intelligences gave pupils the impetus or desire to do their learning, and he did not see it as a replacement for teaching reading and writing. He also said (p 6) that he did not use Neuro Linguistic Programming and indeed there were a lot of facets of Accelerative Learning that he did not use, but he had taken those parts that he knew worked because he had tried them out, and coupled them with things like Co-operative Learning and collaborative structures, that he did not see Accelerative Learning as the be all and end all of everything, and (at p 11) that pupils were not only being taught by what had been identified as their preferred learning styles but that all the class were being taught by the different styles, thus catering to all, and (at pp 18-19) that there was still a place for traditional teaching. To omit all of these comments gave a totally false impression of what the plaintiff was saying, and viewers would naturally believe that he was espousing the "way out" theories and practices depicted early in the program. 69 He denied that the English class which had done badly the previous year had been taught using Accelerative Learning (p 14), as did the teacher, Mr Widseth. 70 Finally, the occasion giving rise to the qualified privilege was the discussion of the teaching methods in public schools and the expenditure of taxpayers' money in relation thereto. That was the matter of government policy involved and it was not reasonable to use such occasion to publish defamatory imputations concerning the plaintiff who was in no way involved in formulating or administering government policies on the subject: Adam v Ward at 326-7; Horrocks v Lowe [1975] AC 135 at 151; Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 at [31]. This last consideration is also evidence of malice. 71 Having regard to these considerations separately and in combination, the defendant has not established that it acted reasonably for the purpose of either the Lange defence of qualified privilege or under s 22 of the Act. In these circumstances it is unnecessary to consider malice separately in relation to these defences. 72 The defendant also pleads statutory qualified privilege under the Queensland Criminal Code s 377, now Defamation Act 1989 s 16 and the Tasmanian Defamation Act 1957 s 16, which are in similar terms. I consider that the telecast comes within s 377(3) and (8) and s 16(1) (c) and (h) respectively as a publication made in the course of the discussion of some subject of public interest, the publication of which was for the public benefit, but I am satisfied it was not made in good faith because it exceeded what was reasonably sufficient for the occasion in that the subject of public interest did not justify publishing defamatory material concerning the plaintiff.

COMMENT 73 I deal first with comment under the New South Wales Act, ss 29-35. Such defence must be directed to the imputations established and not to the material containing them, although to determine whether an imputation was a comment and not a statement of fact, regard may be had to the material alleged to give rise to the defamatory imputations: NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340. 74 To make good a defence of comment, the defendant must show: (a) that the imputation is a comment and not a statement of fact;

(b) that it relates to a matter of public interest; and

(c) that it is based on proper material for comment.

The defence will be defeated if the plaintiff shows that at the time the comment was made, such comment did not represent the opinion or honest belief of the defendant (s 32(2)) or of its servant or agent (s 33 (3)). 75 Imputation (b) contains a number of elements, namely that the plaintiff as Head Teacher of English: (i) introduced new and untested teaching methods;

(ii) by doing so he jeopardised the prospects of the students; and

76 In my opinion (i) and (ii) are clearly statements of fact, but I consider that the ordinary reasonable viewer would regard (iii) as a comment, namely an opinion expressed by the program based on the assertions in (i) and (ii). 77 I have some difficulty with the concept of public interest in relation to imputation (b). Whilst I acknowledge the public interest in the teaching methods being employed in the public school system generally, I have great difficulty in seeing what interest the public generally have in the results of a single school on the New South Wales Upper North Coast, except possibly as an example of what can result from the use of new and untested teaching methods. With considerable hesitation, I have come to the conclusion that imputation (b) in that sense does relate to a matter of public interest. 78 It must however also be based on proper material for comment, which must be a statement of fact or matter of substantial truth (s 30). The material relied on as proper material for comment was specified in the letter from the defendant's solicitors of 21 August 1996 (part Ex. FF) and summarised in its written submissions. It includes virtually the whole of the telecast including the practices identified as Accelerative Learning in the major part of the program, the comments of academics on such practices; that the plaintiff had introduced such methods into his own classes and had encouraged other English teachers at his school to do so, that the 1994 HSC English class had, in common parlance, failed, and that the teacher of that class had been pushed by the plaintiff to use such Accelerative Learning teaching methods and had to some extent done so. 79 These matters, however were not established as matters of fact. As already discussed, the term Accelerative Learning meant different things to different people and the teaching methods used and advocated by the plaintiff included very little of what was depicted and ridiculed in the major part of the program, and the 1994 HSC 2 Unit Related English class had not been taught using any Accelerative Learning methods, as the defendant's reporters had been told by both the plaintiff and Mr Widseth, but which they chose to ignore. Moreover, whichever methods the plaintiff used, the HSC classes taught by him had done quite well, and the following year did extremely well. In relation to imputation (b) the defence of comment is not made out. 80 Imputation (c) on the other hand is not in my view a comment but a statement of fact and would be so understood by the ordinary reasonable viewer. In any event, what was disclosed to the parents of pupils at South Grafton High School could not relate to a matter of public interest, and once again because of the difference between what was shown on the program and the teaching methods of the plaintiff, which he found were successful, the defendant has not shown that if imputation (c) was a comment, it was based on proper material for comment. It follows that in relation to imputation (c) also, the defence of comment fails. 81 In relation to the other States and Territories the defence of fair comment is pleaded to the whole program rather than to the imputations. Looking at the telecast as a whole I find it more difficult to see how the ordinary reasonable viewer would see the material as being or containing comment on the plaintiff's conduct as opposed to statements of fact; but in any event there is still the requirement that any comment be based on facts truly stated, and for reasons given in relation to New South Wales, this element is not satisfied. No submissions were made to the effect that the equivalent defence could succeed in any other State or Territory if it did not succeed in New South Wales.

UNLIKELIHOOD OF HARM 82 Section 13 of the Act makes it a defence if the circumstances of the publication complained of were such that the person defamed was unlikely to suffer harm. 83 The circumstances of the publication relied on were specified in the defendant's written submissions as follows: (a) the willing participation by the plaintiff in the interview with Mr Coulthart (Ex. E); (b) the statements made by the plaintiff in that issue; (c) the publicity, damaging to the plaintiff following the failure of the 1994 HSC class, including allegations and suggestions that the plaintiff bore responsibility for that failure (eg Ex. 4) and their repetition in the matter complained of (Ex. A); (d) the absence of any knowledge on the part of the defendant of the plaintiff having already (as at the time of the interview) suffered from clinical depression; and (e) each of the imputations (i.e. (b) and (c)), found established by the jury was substantially less serious than imputation (a), that the plaintiff had caused the 1994 HSC English class to fail, yet the plaintiff claimed that it was that imputation which caused him most upset and distress. 84 The apparent purpose of s 13 is to give a defence to, and hence discourage actions for, trivial defamation e.g. where there is limited publication, especially if oral: Chappell v Mirror Newspapers Ltd [1984] A Torts R ¶ 80-691 at 68,946, and it is difficult to see how it could ever be available to the mass media: Morosi v Mirror Newspapers [1977] 2 NSWLR 749 at 800. The section is directed to "the circumstances of the publication" and that alone, and the prior reputation of the plaintiff and any other quality concerning the plaintiff in existence prior to the publication are not "circumstances of the publication": Chappell v Mirror Newspapers Ltd, King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 at 308, 310. In this respect Singleton v John Fairfax Ltd [1983] 2 NSWLR 722 must be regarded as overruled. 85 It must be shown that the plaintiff was unlikely to suffer, not great or substantial harm, but any harm at all: King and Mergen Holdings Pty Ltd at 309. The participation by the plaintiff in the interview with Mr Coulthart and statements made by him in that interview, even if regarded as circumstances of the publication, far from leading to a conclusion that the plaintiff was unlikely to suffer harm, lead me to the opposite conclusion, namely a likelihood of substantial harm because of the failure to identify or define to the plaintiff before or during that interview what the program would depict as Accelerative Learning, and the false identification of the plaintiff in the program as using the more extreme practices and theories of Accelerative Learning, notwithstanding his statement in the interview that there were parts of Accelerative Learning which he did not adopt. 86 The publicity relating to the failure of the 1994 HSC English class is said to have been damaging to the plaintiff, but he had been cleared by the departmental enquiry and most of the adverse publicity had been directed at the actual class teacher. To put the imputations established forward in the context, as it was, that the failure was attributable in some way to the plaintiff's encouragement of Accelerative Learning in my view was certainly likely to lead to damage to his reputation and further hurt to his feelings. 87 In any event, this suggestion that his reputation was already tarnished as a result of the 1994 HSC results and the publicity such as is contained in Ex. 4 is simply another way of expressing a previously tarnished reputation, the very consideration which is not relevant under s 13. Similarly, the fact that the plaintiff had already suffered from clinical depression is a quality or circumstance concerning the plaintiff in existence prior to the communication, not a circumstance of the publication. Accordingly, the defendant has failed to establish a defence under s 13 to either imputation.

DAMAGES 88 Imputations (b) and (c) were very serious, reflecting as they did on the plaintiff's professional competency and responsibility as a teacher, and containing allegations that he used new and untested teaching methods, jeopardised the prospects of students, was irresponsible and deliberately concealed these teaching methods from the pupil's parents. The Sunday program is a serious current affairs program with a viewing audience said to be approximately 789,000. 89 Senior Counsel for the defendant drew my attention to the fact that the jury did not find imputation (a) established and submitted that most of the hurt to the plaintiff's feelings as perceived by the plaintiff was to be found in imputation (a). Whilst it is true that the plaintiff is not to be compensated for imputation (a), the references in the program to the 1994 HSC results cannot be ignored as they are part of the material which supports imputation (b) (jeopardising the prospects of students) although in rejecting imputation (a), the jury did not find that the plaintiff "caused" the class to fail. 90 I have already described the plaintiff's reaction to the program at paras [23], [24] and [25]. I am satisfied that before the program he enjoyed a high reputation as a capable and enthusiastic teacher and departmental head teacher who had good prospects of promotion to deputy principal and later principal. There had been some problems for the school following the 1994 HSC results, but after departmental enquiries which made no direct criticism of him, and after his time in the Richmond Clinic following that enquiry and the separation from his wife, he had returned to work and the position had settled down, including the return of his wife. Then came the broadcast and his reputation as a teacher and head teacher was greatly damaged. 91 The plaintiff also suffered considerable hurt to his feelings not only in the way described above, but he lost a lot of his enthusiasm for teaching and this was noticed by some of the other teachers who gave evidence, although the HSC English class which he taught in 1995 (2 unit general) got very good results. However, his wife left him again on the last day of the school year, taking the children with her. No doubt there were a number of factors leading to that, but I accept that the subject telecast and the reaction to it were contributing factors. 92 He returned to teaching at the beginning of the school year in 1996 but without a lot of his previous enthusiasm. He had for some time been campaigning to have country teachers involved in HSC marking. Not only had the department agreed to this and made arrangements for it, but a number of teachers from South Grafton High had agreed to take part. However, on 15 May 1996 the Daily Telegraph published an article stating that no applications had been received from South Grafton and again made reference to the bad results from the English class in 1994. This was too much for the plaintiff. He told the headmaster he was leaving immediately, and has not taught since. He was subsequently diagnosed as suffering from a Major Depressive Disorder, refired on medical grounds in 1996, and has since been receiving superannuation and workers' compensation. 93 The plaintiff is entitled to an award of damages which vindicates him in the eyes of the public and compensates him for the hurt to his feelings and damage to his reputation. 94 In the light of the whole of his history with the 1994 HSC results and the following departmental enquiry; the adjustment disorder and depression in February 1995; the breakdown of his marriage, involving as it did separation for a time from his children and acrimonious Family Court proceedings; the Minister's statement of June 1995; and the Daily Telegraph item of May 1996, it cannot be said that his subsequent diagnosis of Major Depressive Disorder in 1996 was due solely to the effects of the defendant's program; but I am satisfied that it was a contributing factor to a significant degree, each of the factors mentioned having a cumulative effect. The claim for special damages by way of loss of income, past and future as formulated, accordingly fails, but the effect of the program on his future as a teacher, including prospects of promotion, and the satisfaction it would have entailed is part of the hurt to his feelings and I have made an allowance for these factors in assessing general damages. 95 There is also a claim for aggravated damages arising from the circumstances of the publication and the conduct of the litigation. The defendant took no steps to ensure that Accelerative Learning as understood by the plaintiff was the same as the bizarre practices and theories depicted in the first part of the program; created the impression to the plaintiff that the program would be favourable and ignored his assertions that he only used some Accelerative Learning techniques (namely those which he found worked) and that the 1994 English class had not been taught using Accelerative Learning techniques. In that context the defendant actually used the plaintiff to defame himself. 96 In addition, the defendant up to and throughout the trial failed to recognise the difference between the plaintiff's perception of Accelerative Learning and what was depicted and ridiculed as such in the program, and accordingly persisted in attempting to justify the imputations found established by the jury. I am satisfied that all of these matters justify the inclusion of an amount for aggravated damages. 97 Taking all these matters into account I assess the plaintiff's damages in respect of imputations (b) and (c) at $150,000. I will therefore order the entry of judgment for the plaintiff on imputations (b) and (c), but before doing so I shall give the parties the opportunity of making submissions in respect of interest and costs. -----------------

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