As to the defence of fair comment the Master found that with one minor and, as he held, insignificant qualification the appellant established the truth of the facts referred to in the second editorial. The evidence, in my view, justified that finding. The Master described the comment that the editorial contained as "vigorous, even scathing criticism" of the respondent but he concluded, though obviously with little enthusiasm, that the comment must be regarded as fair within the meaning of the test. Mr Whitington for the respondent challenged this conclusion. He relied on a passage in Gatley (par.178) which makes the point that comment on facts inaccurately reported cannot be fair comment. He referred us to Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697, at 707. So, it was said, it was quite unreasonable for the appellant to criticize the respondent for not having read the Royal Commission's first report when the evidence showed that he did not have time to read it.

The report was tabled in the House of Assembly at 2.00 pm on 17 November 1992. The no confidence debate started about 2 o'clock the following afternoon and ended just after midnight. The second editorial appeared in The Advertiser of November 20. Central to the editorial's criticism was the respondent's statement to Parliament that he had read the report's "findings". The section of the report headed "Key Findings" consisted of eight pages out of about 400 pages with appendices. The respondent said in evidence that he was too busy to read any more than that, and he described his activities in the House and at home and in his electorate and on other official duties in the 24 hours between the tabling of the report and the start of the debate. The respondent presided over the debate. He made his statement about reading the findings just before the vote was taken. Mr Whitington likened the respondent's situation to that of a judge who is reported in the local paper, say, for having done "only five cases in a year when the other judges did twenty", without the explanation that the five cases each ran for two months. The analogy is, I think, unsound. As I understand the evidence it was not impossible for the respondent to read the report prior to the no confidence vote (and that did not necessarily mean every word of it); it was simply that he had other important things to do and, anyway, he was not expecting the no confidence debate to be called on that day. There would seem to have been a question of priorities and judgement involved -whether the respondent should have read more of the report the night he received it, or the next morning instead of spending as much time as he did on electoral affairs, or even during the debate itself as he had done, though with some difficulty, in the case of the findings the previous evening. The respondent may have had what he regarded, and probably many others would regard, as very good reasons for choosing to do other things instead of reading the report but we are not here in the area of impossibility or indisputable fact. It must be said, I think, that the criticism in the second editorial was severe, possibly unreasonable, but I do not think that in all the circumstances the editorial was one that a fair-minded person, though having the appellant's strong prejudices, could not have written. I have already dealt with the question of malice. In my opinion the learned Master came to the correct decision when he upheld the defence of fair comment to the second editorial.

For these reasons I would allow the appeal, set aside the award of damages and enter judgement in the action for the appellant. I would dismiss the respondent's cross-appeal.

JUDGE2 OLSSON J The Full Court has before it an appeal and a cross appeal in relation to a judgment in the sum of $88,200 damages for defamation entered by a Master of this court in favour of the respondent against the appellant. The appellant asserts that the claim against it ought to have been dismissed and that, in any event, the damages assessed against it are manifestly excessive. The respondent complains that certain elements of his claim ought not to have been dismissed and that the damages assessed are manifestly inadequate.

Before addressing the legal arguments arising on the appeals it is first necessary to attempt a resume of the salient facts.

As at November 1992 the respondent ("Peterson") was the Speaker of the House of Assembly of the Parliament of South Australia. Following an election held late in 1989 the then Labour Government was in a somewhat precarious situation. In the lower house it had 22 seats. The Opposition and the National Party combined had 23 seats. There were also two so-called "Independent Labor" members, namely Mr Martyn Evans and Peterson, who had announced general support for the Government.

Following the election of Peterson as Speaker, the Government and the Opposition had, in practical terms, an equal number of members. The Speaker did not have a deliberative vote, but was entitled to exercise a casting vote in the event of an equality on the floor. Unlike the situation in the House of Commons, the long established tradition in the South Australian Parliament was that the Speaker was entitled to (and did) exercise any casting vote according to his personal and political predilection.

The practical situation which therefore existed was that Peterson effectively held the balance of power in the House of Assembly and the Government was dependent upon his support to remain in office, assuming that Mr Evans continued to vote with the Government, as he normally did. Mr Evans had been appointed Deputy Speaker and Chairman of Committees.

For the sake of completeness it should also be mentioned that Mr Groom, who had been elected to the lower house as a Labor Party candidate, left the party during the life of the Parliament and therefore also sat as an Independent Labor member. However, like Evans, he invariably voted with the Government.

Early in 1991, following what became known as the "collapse" of the State Bank of South Australia ("SBSA"), due to imprudent lending policies and poor management, the Labour Government appointed a Royal Commissioner to investigate various aspects of the debacle and, in particular, the relationship which had existed between the SBSA and the Government and the reporting arrangements which had existed between the two entities.

The Royal Commissioner presented a series of three successive reports, the first of which was delivered to Her Excellency the Governor on 13 November 1992. That report ("the first report") was tabled in the House on 17 November 1992. On the same day, and prior to the formal tabling, the report was released to the media for perusal in a "lock up" situation.

The appellant ("Advertiser"), which was the sole daily newspaper circulating in South Australia, was heavily represented at the lock up. The evidence suggested that it had 8-10 members of the reporting staff, probably led by the Editor personally, who, as an orchestrated team, were assigned to dissect and analyse the report; and then produce written material from it for the purpose of potential publication.

On 18 November 1992, the Opposition moved a vote of no-confidence in the Government in the House of Assembly, based on the content of the first report. Peterson testified that this caught him somewhat by surprise, because he had not anticipated that it would be moved so soon after the tabling of the first report.

At the time of the motion the Government was led by Mr Arnold, as Premier; his predecessor, Mr Bannon - who was subject to personal criticism by the Royal Commissioner

• having resigned as Premier some two months earlier.

The no-confidence motion was debated from about 2.00 pm to just after midnight on 18 November 1992, at which time it was defeated on the casting vote of Peterson.

At the time of the vote Peterson had this to say:- "The SPEAKER: There are 23 Ayes and 23 Noes. As the votes are equal, it is necessary for me to give a casting vote. Before I do so, I would like to give my reasons for that vote. I apologise to the House for the length of my statement, but members will realise that my vote is significant both to the State and for me personally. I can fully understand and sympathise with the anger that the first report of the Royal Commissioner has generated. Many South Australians feel they have been let down; they are hurt, and they are seeking some outlet for their anger and rage. I have listened to the debate from both sides of the House, and I have read the findings of the report. I have no doubt that blame is to be laid at the foot of the former Treasurer, as clearly explained in the report and in this debate.

All members would be well aware that I have made strong public statements in the past in reference to the future of the former Premier and Treasurer. Indeed, I am on record

prior to his resignation as stating that he should 'give consideration to his future'.

Several references have been made in the debate to the collective responsibility of Government. I have referred to the House of Commons' practice, but it is a bit light on in detail. Therefore, like the Leader of the Opposition, I have referred to the House of Representatives' practice insofar as it explains the conventions inherited from Westminster. Paraphrasing from pages 86 to 89 of the second edition, I quote:

'Aspects of ministerial responsibility. Ministerial responsibility takes two forms - collective Cabinet responsibility (or Cabinet solidarity) and individual ministerial responsibility. Both concepts are governed by conventions inherited from Westminster and both are central to the working of responsible Government.

Collective Cabinet responsibility. Cabinet is collectively responsible to the people, through the Parliament, for determining and implementing policies for national Government. Broadly, it is required by convention that all Ministers must be prepared to accept collective

responsibility for, and defend publicly, the policies and actions of the Government or else resign. Most importantly, the convention also requires that the loss of a vote on a no-confidence motion in the House or on a major issue is expected to lead to the resignation of the whole Government.

Individual ministerial responsibility. During this century there has been a change in the perceptions of both Ministers and informed commentators as to what is required by the convention of individual ministerial responsibility.'

The 1976 report of the Royal Commission on Australian Government Administration reflects the current position, as follows: 'It is through Ministers that the whole of the administration - departments, statutory bodies and agencies of one kind and another - is responsible to the Parliament and thus, ultimately, to the people.

In recent times the vitality of some of the traditional conceptions of ministerial responsibility has been called into question, and there is little evidence that a Minister's responsibility is now seen as requiring him to bear the blame for all the faults and shortcomings of his Public Service subordinates, regardless of his own involvement, or to tender his resignation in every case where fault is found.

Resignation is still a valid sanction where Ministers have been indiscreet or arbitrary in exercising powers.

The responsibility of Ministers individually to Parliament is not mere fiction. An individual can be disciplined whereas the whole cannot.

When responsibility for a serious matter can be clearly attached to a particular Minister personally, it is of fundamental importance to the effective operation of responsible Government that he or she adhere to the convention of individual responsibility.'

I believe that the then Treasurer has accepted responsibility and has resigned from that office as is demanded under the Westminster system. If the member for Ross Smith had not taken this action, I would have had no alternative, on the basis of the royal commission report, than to have voted for his dismissal as Treasurer as I had promised. However, I do not accept that a case has been made out against the Government as a whole and I therefore give my casting vote for the Noes.

The SPEAKER: Order] Members have gone through this 'shame' exercise previously. I have warned before and I warn again: it is not acceptable. It is certainly against the traditions and custom of all Houses."

In the prominent "Editorial Opinion" column in the edition of its newspaper published on 19 November 1992, Advertiser had this to say:- "The Advertiser

The Government appears, not unexpectedly, to have survived the crisis that enveloped it with the publication of the first report of the Royal Commission into the State Bank - for now. It is hard to imagine any of what remains of the royal commission being more critical of the Government. We shall see.

There can be little doubt that it clings to office against the will of a large majority of South Australians who are angry, who feel betrayed, frustrated and contemptuous towards the political process and politicians, in particular the Government now masquerading as financial leaders who deserve our confidence.

Its survival is a hollow victory which leaves it intact but without honour. It is a mockery of public opinion. The erratic Speaker, Mr Norm Peterson, has allowed the Arnold Government to defy the dictates of decency which demand it puts public interest above self-preservation. At least we now know what we have long suspected, that Mr Peterson is capable of rationalising almost any political stance, however contorted or contemptible, if it suits his own ends.

It is one of the anomalies of the Westminster system of government that the party which has the confidence of the Lower House, sometimes called the People's House, cannot be forced to an early election. There is no doubt

• the ALP's own research confirms it - that the Labor Party would be thrown out by the people at any election held now. There is a palpable fury in the community about a financial debacle that has cost us $3.15 billion, so far, and has proscribed the futures of every citizen, including those not yet born.

It is just untenable for the Premier, Mr Arnold, blithely to pass off the scathing findings of Mr Samuel Jacobs, QC, as criticisms of individuals, of the former premier and treasurer, Mr Bannon, but not of the Labour Government which presided over the State Bank's massive losses.

As the Opposition Leader, Mr Dean Brown, pointedly asked in yesterday's long but futile parliamentary debate, are we to presume that for months, if not years, all the members of Cabinet sat mute, blind and deaf, like the proverbial three wise monkeys, as the disaster unfolded around them? If they did, they deserve to be driven from office; if they didn't, and were accomplices, they deserve the same fate.

There was an air of unreality about yesterday and last night's parliamentary debate. The outcome was known all along. The 'boy from the Port', only days ago bristling with indignation at the personal pressure he had been subjected to over WorkCover, and ready to bring down the Government, had capitulated on this vastly more serious issue before the first speaker stood up.

It is to be hoped that at the next election Mr Peterson will be remembered, even among the diehard Labor voters at the Port, for his duplicity. The Arnold Government will be remembered not only for its culpability in the State Bank losses but for its refusal to accept responsibility."

Peterson's evidence before the Master was to the effect that, up to the time at which he gave his casting vote, he had had limited opportunity to study the full detail of the first report, due to the suddenness with which the no-confidence motion came on for debate.

He had, he said, presided over the sitting of the lower House from the time when that report was tabled at 2.00 pm on 17 November up until just after 9.00 pm that night. On the following morning he had been occupied in duties at his electorate office, in his electorate and in calling on the Governor with bills to be signed.

Both on his way to and from Government House Peterson was accosted by a large contingent of media representatives who, inter alia, demanded to know whether he had read the first report. It is not disputed that he responded "No, I'll leave it to you experts to tell me what the contents are". He had made a somewhat similar remarks in the course of a telephone radio interview earlier in the morning.

It was clear from Peterson's evidence that, during the sitting of the House on 17 November 1992, Peterson had asked the Clerk to photocopy the nine pages of findings in the first report (and, he thought, another segment as well) and had read them during debate. He had not read any other portions of the first report prior to the debate on the no-confidence motion on 18 November. It was his evidence that he had simply not had any opportunity of doing so. His comments to the media that morning were directed at the fact that the media had enjoyed about 4-5 hours in the "lock up" on the previous day to assimilate the whole document.

Peterson told the Master that he was unaware that the no-confidence motion was to be moved until about an hour prior to the actual event. It was his assessment that the Opposition would have allowed several days for the media build up and development of public reaction, in which time he had proposed to read the report in full.

Be that as it may, on 20 November 1992, Advertiser published a further "Editorial Opinion" in its daily newspaper, which focused on the remarks which he had made to the media about not having read the first report in detail.

That editorial was couched in these terms:- "The Advertiser

It defies belief that the Speaker in the House of Assembly,

Mr Norm Peterson, has not even read the long-awaited, explosive first report of the Royal Commission into the State Bank.

How on earth can he properly discharge his weighty duty to the people of SA in one of the most important debates in the history of the Parliament, if he has not even read the full report that has given rise to the debate?

Asked by reporters before Wednesday's historic debate and motion of no confidence in the Arnold Government whether he had read it, Mr Peterson replied: 'No.'

Asked again, by reporters who could not quite believe what they were hearing, Mr Peterson again responded: 'No, I will leave it to you experts to tell me what is in it.'

Later, perhaps recognising the significance of his admission, he told Parliament he had read the key findings. This comprises nine pages of the 475-page report.

This is the judgment of the Royal Commissioner, Mr Samuel Jacobs, QC, for which we have all waited for 18 months with a mixture of impatience and apprehension, recognising that it would be the first, definitive insight into what went wrong at the State Bank, and why.

It is the document Mr Peterson himself has said, publicly, in the Parliament and elsewhere, that he would wait for, before making any judgment about the culpability or otherwise of the Bannon/Arnold Government.

When it is released, first to Her Excellency the Governor, Dame Roma Mitchell, then to the Government to allow it time to prepare for the inevitable onslaught, then to the media in a tightly-secured, Budget-style lock-up - each step in keeping with the great moment attached to one of the most important official documents commissioned in SA - what does the Speaker do?

In preparation for the imminent debate that will be filled with all the pent-up anger of South Australians whose futures have been seriously compromised by the State Bank's $3.15 billion losses, does he burn the midnight oil, poring over the tale of woe, the 'tragedy', as Mr Jacobs calls it?

Does he take independent legal advice on some of the subtleties, the minutiae of dense economic parlance, of legal argument?

Does he lose sleep worrying about lost businesses, wrecked finances and other dire consequences of the State's worst financial disaster, wondering what position he will take in the all-important parliamentary debate?

This must raise serious questions about his performance as Speaker.

It does nothing for the parliamentary process or for Mr Peterson's own pronouncements about calling this government to account if it became apparent Parliament had been misled.

How would he know if he didn't even read the report?

As it happens, there is a compelling case to be made for the view that Parliament was misled, more than once.

Mr Peterson compounded the situation yesterday by the manner in which he treated questions on the matter in Parliament.

Then he alleged a 'plot' between members of Parliament and the media.

There is no need for a conspiracy, or a 'plot' against this Speaker.

His own admission that he had read only a small part of the report is enough.

As revealed in a poll in The Advertiser today, less than half of his constituents in Semaphore supported his decision to back the Government early yesterday.

Mr Peterson is no stranger to power. He has been influential in the fate of the Government since its shaky re-election under Mr Bannon in 1989.

He accepted the Speakership with its status and higher salary but never abandoned a public profile as the Independent 'boy from the Port' who would be true to his electorate, his Labor roots, and the wider public interest.

Only days ago he was ready to bring down the Government because of a campaign of personal vilification against him by the United Trades and Labor Council over WorkCover reforms.

His failure even to read the Jacobs Royal Commission report raises serious doubts about his ability to grasp the real significance of the job people have a right to expect him to do.

The people of SA, saddled with a Government which will not accept responsibility for presiding over the State's worst financial disaster by resigning, now have every right to demand that the Speaker, Mr Peterson, stands down."

I digress, at this juncture, to record that, in the course of his reasons, the Master found that Peterson and the witnesses called by Advertiser "were manifestly witnesses of truth who attempted to give their evidence as clearly and accurately as possible". Problems of credibility did not, therefore, intrude into the situation.

Having so summarised the major outline events, it is necessary to regress somewhat, in point of time, for two successive purposes. First, it is desirable to focus upon the evidence bearing on how the editorials came to be written. Second, there is a need to reflect upon some historical evidence touching upon media reports as to the manner in which Peterson had expressed and conducted himself, as Speaker, specifically in relation to other legislation related to WorkCover. Both topics assumed a prominent role in the debate before the Master.

The primary evidence bearing on the first of those topics was that given by the Advertiser witness Rex Jory ("Jory"). He was, as at November 1992, the deputy editor of the newspaper.

He told the Master that, at that time, it was the practice to convene an editorial conference at 11.00 am each day in relation to the edition of the newspaper to be published on the following day. The conference was routinely attended by the editor (one Blunden), the deputy editor, the chief of staff, the pictorial editor, the chief artist and a senior reporter designated, for the time being, as the editorial writer (one McEwen).

The primary purpose of the conference was to determine the format and general thrust of the next edition and to allocate priorities to stories being, or to be, worked upon by journalists. In that context agreement would be reached as to what topics would be developed in the "Editorial Opinion" column and the attitude which would be adopted in that column, apropos selected topic or topics. In that regard the final decision was solely that of the editor personally, although this would be the end product of a "round table" discussion by those attending the conference.

It is of some importance to keep firmly in mind that neither Blunden nor McEwen were called by Advertiser as witnesses at the trial. The sole evidence as to the evolution of the two editorials was that given by Jory, who, in certain respects, could do little more than speak of general practice. He did not write either editorial, he could not recall suggesting any amendments to drafts of them and he was unable to say to what extent, if at all, Blunden had a personal hand in the final form adopted.

According to Jory, the normal practice was that, once the daily editorial conference concluded, it was McEwen's task to draft the material for the "Editorial Opinion" segment on computer. This was then available for perusal, on screen, by both Blunden and Jory. Jory normally reviewed it independently, and, occasionally, inserted suggested alterations on the computer, for consideration by Blunden. However, it was Blunden's responsibility to conduct a personal review of the material written by McEwen and to alter and/or accept it. As editor, he had the final say.

Jory had no clear memory of the nature and extent of his personal involvement in the actual production of the two columns in issue, nor could he recall whether Blunden made any alterations to McEwen's draft. All that Jory was able, affirmatively, to say was that he was in agreement with the sentiments expressed in the editorials, as finally published. Clearly, his involvement in the writing process, on the occasions in question, was relatively peripheral. He was, of course, unable to do other than testify as to his own state of mind in relation to the content of the editorials. Certainly he did not, in the relevant legal sense, stand in the shoes of Blunden, who made all final decisions concerning the direction and modes of expression of the subject editorials. No attempt was made to explain the absence of Blunden or McEwen as witnesses at trial.

I next turn to the evidence bearing on relevant historical coverage by Advertiser of Peterson in his role as Speaker. The evidence bearing on this was quite extensive and a good deal of it related to his expressed attitudes to the WorkCover legislation.

The appeal books contain copies of a substantial number of articles published by Advertiser in the above connection and it is impractical to attempt to reproduce them in these reasons. They speak for themselves. However, these features clearly emerge:- - The expression "boy from the Port" appearing in the two editorials derived from an earlier, general article titled "The Premier's Advisor", written by a Peter Hackett and published on 18 July 1992. That article purported to quote Peterson as saying "I am just a boy from the Port trying to do a job ... I am only an ordinary sort of bloke who found himself in Parliament". On Peterson's own evidence the reference to "the Port" is to Port Adelaide, which fell in his electorate and was the district in which he was born and employed in his early days.

• Peterson had, on a number of occasions, been reported as to his expressed attitude towards support of the Labor Government. Many of those reports were actually written by Jory, who had enjoyed an excellent rapport with him. For present purposes citations of particular significance were these:- (1) On 6 December 1989, Advertiser quoted Peterson as saying:- "If the Bannon Government goes off the rails, I will use my position to vote against it".

"I will support them but if there a (sic) conditions or issues that badly effect my area or the State, I will vote against them."

(2) In a newspaper article published on 7 August 1991, concerning a then pending censure motion against the Bannon Government, for what was said to have been financial incompetence, Peterson was reported as commenting:- "I told the Premier I would not be supporting it.

"The State Government Insurance Commission situation has been covered by a report. There are some shortcomings and the Premier deserves a small smack on the fingers ..."

In the same report Jory wrote:- "Mr Peterson said what the motion was doing was asking Parliament to hang the Government now while the royal commission into the State Bank continued."

He then went on to cite Peterson as adding:- "If they later found someone had totally misled the Government would we give them back Government?

"It seems to me there is no reason to defeat the Government at this stage. If a decision comes from the Royal Commission that the Government misled Parliament I would withdraw my support."

(3) On 31 August 1991, he was quoted, apropos the SBSA debacle, as saying:- "I do support the Government at this stage as far as the budget is concerned".

"It is a reasonable situation. "But the State Bank issue is very different.

"If the Premier did know about the extent of the debt and didn't act, then I would withdraw my support. If he did know he obviously misled us but that is the subject of the Royal Commission.

"The WorkCover issue must also be fixed. I am not impressed with the way that has been handled."

(4) In an article published on 24 May 1992 Peterson was quoted as making the point:- "I can see the Premier remaining in office only until the State Bank Royal Commission hands down its findings.

(5) Writing in an article published on 30 June 1992 Jory quoted Peterson in these terms:- "At this time, with the Royal Commission still sitting, it would be wrong of me to withdraw my general support for the Government.

"But I am concerned and obviously, from the letters I receive, many other people are concerned.

"The outcome of the Royal Commission at the end of the year will clarify the position."

(6) That was followed by an article written by Jory and published on 9 July 1992, in which Peterson was reported as saying:- "I think Bannon should consider his future as leader now, for the good of the Labor Party.

Jory further reported Peterson as reiterating that he had no intention, at that stage, of using his vote to bring down

(7) In follow on articles published by the Advertiser on 18 July 1992 and 29 August 1992 respectively Peterson was said to have reiterated his statement that he would, in effect, reserve his judgment until after the publication of the report of the Royal Commissioner.

• Those reported statements need to be considered as the background against which other reported events, bearing on contentious legislation related to the WorkCover scheme, took place in October and November

1992. These, of course, followed the resignation of Mr Bannon as Premier and statements by Evans, Groom and Peterson, at the time, that

they were prepared to support the new Government led by Mr Arnold.

The Master described the situation which had developed as under:- "Between the 20th October 1992 and 20th November 1992 the defendant published a number of articles (D13) regarding reforms to the WorkCover legislation. They portray the stance taken from time to time by the plaintiff in relation to those reforms which eventually became legislation on the 19th November 1992. It appears that when the Arnold Government could not obtain sufficient union backing for its reforms as a result of strong opposition from left wing Unions, the plaintiff put forward his own amendments which were not dissimilar to those propounded by the Government. The same section of the union movement opposed the amendments put forward by the plaintiff and expressed its opposition by picketing his electoral office and harassing the plaintiff and his staff. The plaintiff took exception to this conduct. He publicly stated that if the Unions did not support his WorkCover amendments, he would withdraw his support from the Government."

As Jory and the Advertiser witness Kerin well knew and was a matter of public record, an extraordinary sequence of events took place.

Peterson's bill for Workcover reforms had been opposed by Government members in the Lower House, at the urging of the trade union movement, but was passed by virtue of the support of the Opposition and Peterson's casting vote. Peterson had been subjected to very considerable vilification at the hands of the left wing unions, which had actually instigated a picketing of his electorate office.

When the bill went to the Upper House Peterson publicly threatened to withdraw his support of the Government if it was returned to the Lower House in an amended form. He having made that threat, the Democrats, who held the balance of power, announced support for the bill. The Government members, at that stage, were likely to vote against it, in line with their colleagues in the Lower House.

Peterson having made his threat, the Opposition in the Upper House, who had initially indicated support for the bill, announced that they proposed to vote to amend and return it to the Lower House. This was obviously a tactical move designed to cause Peterson to unseat the Government.

In the event the ALP Council was ultimately forced, as a consequence of urgent representations by Mr Arnold (who was obviously fearful that Peterson would carry his threat into effect), to withdraw opposition to the bill, so that the way would be clear for Government members in the Upper House to support the bill, as they then did. The need for Peterson to execute his threat thereupon abated.

I have dwelt upon this history at some length, because it is highly relevant to the issue of the consistency of Peterson's conduct at all relevant stages - a question which assumes vital significance in light of the assertions in the editorials already adverted to.

As a consequence of publication of the two editorials Peterson initiated the present proceedings, in which he claimed damages against Advertiser for defamation of him in those publications. The trial before the Master occupied some ten sitting days, after which he published admirably detailed and analytical reasons for decision. Those reasons were ultimately published on 8 September 1994, that is to say, a few weeks prior to the publication, by the High Court, of its judgments in Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 68 ALJR 713 ("Theophanous") and Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 68 ALJR 765 ("Stephens").

It follows that the Master did not take into account the concepts espoused in those cases and his conclusions require re-examination in light of them. Without objection, various amendments to pleadings were permitted in the course of the hearing before this Full Court, to ensure that they were adequately aligned with the concepts in question.

In his reasons the learned Master, not surprisingly, came to the conclusion that each of the editorials impugned contained material which was defamatory of Peterson.

As to the first editorial he concluded that the words:- "The erratic speaker, Mr Norm Peterson, has allowed the Arnold Government to defy the dictates of decency which demand it puts public interest above self preservation. At

least we now know what we have long suspected, that Mr Peterson is capable of rationalising almost any political stance, however contorted or contemptible, if it suits his own ends."

and the words:- "There was an air of unreality about yesterday (sic) and last night's parliamentary debate. The outcome was known all along. The 'boy from the Port', only days ago bristling with indignation at the personal pressure he had been subjected to over WorkCover, and ready to bring down the Government, had capitulated on this vastly more serious issue before the first speaker stood up.

"It is to be hoped that at the next election Mr Peterson will be remembered, even among the diehard Labor voters at the Port, for his duplicity.", in their totality, necessarily gave rise to the imputations that Peterson:- - is erratic; - has defied decency; - is self-seeking; - is motivated by self-interest or self-preservation to the detriment of the public interest; - is lacking in principle;

• places his own electoral political survival above all else;
  • adopts positions which are contemptible or contorted as a matter of political or personal expediency;
  • is hypocritical;
  • succumbs to pressure;
  • is duplicitous; and

• is unworthy of re-election and were, thereby, plainly defamatory of him. That finding is not disputed.

As to the second editorial, the learned Master found that, read as a whole, it conveyed the following imputations against Peterson, namely that he:- - determined his position on the no-confidence motion without considering the issues or evidence; - was too lazy or incompetent to read the report; is indifferent to the report and its findings; - was too lazy or incompetent to seek independent legal advice; - is unconcerned about the welfare of this State and its citizens; - is unconcerned about the matters the subject of the report; - is unworthy of the office of Speaker; - has not been true to his electorate; - has not been true to his Labor roots; - has not been true to the wider public interest; - does not and cannot understand his role and function as a Member of Parliament; - is not a fit and proper person to be a Member of Parliament; - is not a fit and proper person to be representative of the Electorate of Semaphore; - is not fit to be Speaker; - should not be re-elected by the electors of Semaphore.

He also found that such imputations were defamatory of Peterson. Once again that finding was not challenged on this appeal.

By its defence Advertiser asserted that the defamatory statements were not actionable at the instance of Peterson by virtue of:- (1) qualified privilege (2) the freedom of speech implied by the Commonwealth Constitution and the Constitution Act, 1934 (SA) (3) the fact that they constituted fair comment on a matter of public interest

In relation to the defences of qualified privilege and fair comment the learned Master was required to reflect upon a plea of express malice raised by Peterson in his Reply, as to both editorials.

In the event, the learned Master rejected the defence of qualified privilege on the basis that the occasions of publication in respect of both editorials were not occasions giving rise to the defence of qualified privilege. After reviewing the authorities he concluded that it could not be said that, on either occasion, there was vested in Advertiser a relevant interest or duty to communicate the content of its editorials to the public at large, or that the public at large had a corresponding interest or duty to receive it. The requisite reciprocity of interest or duty, in the sense adverted to in Adam v Ward (1917) AC 309 ("Adam") was absent.

He further rejected the constitutional immunity defence, having first embarked upon an analysis of the decisions of the High Court in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 66 ALJR 658 ("Nationwide") and Australian Capital Television Pty ltd v The Commonwealth (No 2) [1992] HCA 45; (1992) 66 ALJR 695 ("Australian Capital Television").

The learned Master then proceeded to a consideration of the defence of fair comment, successively as to each editorial.

In relation to the first editorial he held that the assertion of fact that Peterson had been erratic had not been shown to be true and that, even if it had been, the comments made were not fair. As to the latter aspect, he reasoned:- "... It is obvious from the first editorial that the defendant espoused the view that the content of the report of the Royal Commissioner was such that any honourable Government would have resigned and that any steps taken by the plaintiff to relieve the Government of that responsibility must be regarded as similarly dishonourable. Had the comment been pitched in such terms a convincing argument could be put forward that the comment was fair within the meaning of the rule. However, the comment actually made was totally condemnatory of the plaintiff. The comment did not merely express an opposing view and the reasons for such a view, but attributed to the plaintiff in an unqualified way, the basest of motives behind the exercise of his casting vote in favour of the Government. The comment does not therefore consist of gross exaggeration

or the maintenance of obstinate or prejudiced views. They go well beyond such statements. Because they go beyond fair

comment, the plaintiff has established a further basis for holding that the defendant has not made out the defence of fair comment in relation to first editorial."

Upon a review of the second editorial the learned Master pointed out that the main focus was a scathing attack on Peterson for failing adequately to read the first report prior to giving his casting vote on the no-confidence motion. His major concern in that regard was that:- "... I have been concerned about, not so much the facts that are stated in the article, but about the facts that are not stated in it. No mention was made as to whether or not the plaintiff had time to read the report before being called upon to exercise his casting vote. No mention was made about the speed with which the opposition brought on the motion of no-confidence. No mention was made of the plaintiff's need to attend to his Parliamentary duties between the release of copy of the report to him and the completion of the debate on the no-confidence motion. There was no mention of the support given by the two other independent labour members. These matters, if they had been mentioned in the 2nd editorial, would have presented a balanced picture of the position of the plaintiff. As against that, the plaintiff did not help himself by publicly stating on two occasions that he would leave it to the journalists to tell him about the content of the Royal Commission. On the second of those occasions he made the comment sarcastically in reaction to the aggressive media attention to which he was then subject. However, his earlier comment to the same effect appears to have been made dispassionately. The defendant might therefore be forgiven for thinking that the plaintiff had taken a somewhat cavalier attitude to ascertaining the contents of the first report of the Royal Commission. Nevertheless, it must be borne in mind that both of those comments were made before the plaintiff was aware that the opposition would bring on a no-confidence motion that afternoon. He had heard during the course of the morning rumours to that effect, but he did not think that the opposition would do so at such an early stage. It is also to be noted that the comments were made

prior to the plaintiff obtaining a copy of the report of the Royal Commission."

Having made the point that, in the circumstances of this case, it was difficult to know where to draw the line, he finally came to the view that, on balance, the comments made in the editorial were fair in the legal sense.

That being so, the learned Master proceeded to consider whether, nevertheless, Peterson had discharged his onus of making good his plea, in relation to the second editorial, that the Advertiser had been actuated by express malice. For reasons which he expressed and, do not, at this point, require recitation, the learned Master found that the onus had not been discharged.

So it was that he assessed damages and interest in the sum earlier mentioned in relation only to the first editorial. He allowed Peterson the full costs of the action, for reasons which he separately expressed.

By its notice of appeal Advertiser challenges the propriety of the finding that the defence of fair comment failed as to the first editorial, complained that the learned Master fell into error in rejecting the so-called "constitutional defence" related to the freedom implied by both the Australian and State Constitutions and asserted that the defence of qualified privilege ought to have been upheld. Complaint was also made as to the quantum of damages assessed and the allowance to Peterson of his full costs of action.

For his part Peterson cross appeals against the finding of fair comment as to the second editorial and asserts that the quantum of damages allowed is too low.

In examining those contentions it is necessary, first, to direct attention to the reasoning of the High Court in the cases of Theophanous and Stephens. In so doing I propose, as a matter of convenience, to advert to the joint judgments of Mason CJ, Toohey and Gaudron JJ as "the majority judgment". Whilst it is true that, in Theophanous, Deane J took a somewhat broader view of the impact of the relevant constitutional freedom, nevertheless, having regard to the division of opinion evidenced in the views expressed by the members of the Court, he was prepared to concur in the responses which they proposed to the case stated which was before the Court. In Stephens he was constrained to say:- "... In Theophanous v Herald and Weekly Times Ltd, I explained the reasons which caused me to conclude that the Constitution's implication of freedom of political communication and discussion precluded the application of State defamation laws to impose liability in damages for statements or comments made about the suitability for office or official conduct of a member of the Commonwealth Parliament or other holder of high Commonwealth office. Those reasons would also lead me to conclude that the constitutional implication, which extends to political communication and discussion in relation to all levels of government including State government and which applies to confine the laws and legislative powers of the States as well as the Commonwealth, precludes the application of State defamation laws to impose liability in damages for statements or comments about the suitability for office or official conduct of a member of a State Parliament or other holder of high State public office. My views did not, however, prevail in Theophanous to the extent that they would attribute a less qualified operation to the constitutional implication in such cases than that accorded it by Mason CJ, Toohey and Gaudron JJ. In view of the division between the other members of the Court, it would, to that extent, be inappropriate for me to adhere to them for the purposes of this case."

Theophanous arose from the publication, by a daily newspaper, of a statement attributed to the President of the Victorian Branch of the Returned and Services League in which he was extremely critical of Dr Theophanous, who was then chairperson of the Joint Parliamentary Standing Committee on Migration Regulations of the federal Parliament. It castigated Dr Theophanous for what were said to have been his views as to immigration policy and was asserted to be defamatory of him.

In the course of an action for defamation questions arose as to the extent and nature of the freedom of communication implied in the Commonwealth Constitution, as recognised in Nationwide and Australian Capital Television. The action was removed into the High Court and a case was stated for the consideration of the High Court. Having regard to the diversity of views eventually expressed it is important to note that the case stated raised these questions:- "1. Is there a freedom guaranteed by the Commonwealth Constitution to publish material: (a) discussing government and political matters; (b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; (c) in relation to the suitability of persons for office as members of the Parliament?

2. If yes to any part or parts of question 1, is any such freedom subject to a condition that the publication will not

be actionable under the law relating to defamation if: (a) the publication be without malice; (b) the publication be reasonable in the circumstances; (c) the publication not be made without any honest belief in the truth of the material published or made with reckless disregard for the truth or untruth of the material published; or (d) the publication be made at a time when it was publicly anticipated that a federal election was about to be called?

3. If yes to any part or parts of question 1, is any such publication a publication on an occasion of qualified privilege: (a) if published at a time when it was publicly anticipated that a federal election was about to be called; (b) if published at a time when it was not publicly anticipated that a federal election was about to be called?

4. Are the defences pleaded in paragraphs 11 and 12 of (the first defendant's) Further Further Amended Defence bad in law?"

By majority, the High Court held that the following answers should be given to those questions:- Question 1 Answer: There is implied in the Commonwealth Constitution a freedom to publish material: (a) discussing government and political matters; (b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; (c) in relation to the suitability of persons for office as members of the Parliament.

Question 2 Answer: In the light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable under the law relating to defamation if the defendant establishes that: (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances.

Question 3 Answer: A publication that attracts the freedom implied in the Commonwealth Constitution can also be described as a publication on an occasion of qualified privilege. Whether a federal election is about to be called is not a relevant consideration.

Question 4 was simply responded to in the negative, as a logical consequence of the other answers.

The case of Stephens, which was determined by the High Court at the same time, also by way of removal and case stated, arose from an action for defamation instituted in Western Australia. It concerned a newspaper article which was severely critical of a member of the State Parliament and certain of his parliamentary colleagues, who were asserted to have gone overseas at public expense on what was alleged to have been an unjustified "junket of mammoth proportions". The newspaper sought to rely, by way of defence, on a freedom of communication implied both by the federal Constitution and the State Constitution.

The High Court held that, as in the case of the Commonwealth Constitution, the State Constitution, based, as it was, on a system of representative democracy, necessarily implied a freedom of communication of the nature of that discussed in Theophanous; and that this extended to criticism of the conduct, performance and fitness for office of a member of the State Parliament. It also ruled that a defence of qualified privilege, of the nature of that recognised in Theophanous, was available to the newspaper, if it desired to rely upon it.

During the course of the present appeal considerable contention arose concerning what was said to be the practical effect of the majority judgments in Theophanous and Stephens, as applied to the circumstances of the instant case. It was, however, accepted that, for present purposes, the reasoning in Stephens was directly pertinent to this case, on the footing that it could be accepted that there was no material difference between the Constitution Acts of both Western Australia and South Australia.

It is plain from the two decisions that the publisher of material defamatory of a member of the State legislature, inter alia, as to the mode of performance by him of his parliamentary duties or in relation to his suitability for office as a member of the Parliament, is entitled, in proceedings for defamation based on the relevant publication, to rely, by way of defence, upon the implied constitutional freedom to publish material bearing on such topics. That defence will succeed if the publisher discharges its onus of establishing that:- - it was unaware of the falsity of the material published; - it did not publish the material recklessly, that is, not caring whether it was true or false; and - the publication was reasonable in the circumstances.

Considerable contention arose before this Court as to whether that formula, as espoused by the majority judgment, was intended to apply or be capable of applying to defamatory material which consisted only of expression of opinion, divorced from assertions of fact.

This is an interesting argument, as to which the Solicitor-General, who appeared for the Attorney-General as statutory intervener, invited our attention to the manner in which, in relation to the First Amendment, the United States Supreme Court has approached a consideration of statements of opinion which do not have a provably false factual connotation (whether stated or implied). On the basis of the reasoning in authorities such as Milkovich v Lorain Journal Co [1990] USSC 117; (1990) 111 L Ed 2d 1 ("Milkovich") and Ollman v Evans [1984] USCADC 463; (1984) 750 F 2d 970 ("Ollmann") he advanced the following propositions:- - On the basis of the latter authority an analysis must first be made as to whether utterances are fact or opinion. For that purpose four factors are applied to the totality of circumstances, namely:- (i) the specific language used (ii) whether the statement is verifiable (iii) the general context of the statement (iv) the broader context in which the statement appeared

• If the utterance contains an assertion of fact then it falls to be tested against the three criteria expounded in the majority judgment in Theophanous.

• A statement of opinion related to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection. However, care must be taken to recognise the situation that expressions of "opinion" may often imply an assertion of objective fact; and there is no "wholesale defamation exemption for anything that might be labelled 'opinion'". Where a statement of "opinion" reasonably implies false and defamatory facts regarding public figures or officials, the publisher must show that the statements were made without knowledge of their false implications or without reckless

disregard of their truth; and that publication was reasonable in the circumstances.

In this regard the learned Solicitor-General contended that, once it be demonstrated that an expression was only one of bare opinion, it is not necessary for a publisher to demonstrate that, in the circumstances, it was reasonable to express that opinion. He contended that, if it was otherwise:- "... once you take that position you seem to be driven back to searching for facts and relating the opinion to facts, and, almost unavoidably, reintroducing this objective assessment of the opinion. The thrust of Theophanous and Stephens seems to be to avoid that.

He went on to argue that, if the contrary proposition:- "... is right the defendant, who has to prove that it was reasonable to publish his opinion, it would seem, is driven yet again to proving some facts and, in relation to them presumably, either saying 'They are right, and whether my opinion is right or not I could reasonably express an opinion in the light of those facts', or the defendant would say, 'Even if the facts I have proved aren't right' driven back to the first step. So Mr Whitington's submission is perfectly logical. You are driven to saying 'I honestly believed those facts, and, in the light of them, it was reasonable of me to express the opinion I did'.

This highlights that, really, it becomes a relatively

objective assessment again, and, far from one finding that, as it were, political discourse is protected, what one finds

is that it is still going to be scrutinised by the court.

Mr Whitington goes on ... to make it clear that he really takes the common law and moulds it somewhat, but he still requires some facts to be identified, the honest belief, and then that the publication was reasonable. That is the point at which we differ from him.

What we submit is that if something is clearly an opinion and just that, then it is protected, whether or not the substratum of facts can be proved, and whether or not it was reasonable in the light of certain facts, because it seemed necessary to quantify by 'reasonable', in regard to the facts, whether or not one can prove whether or not it was reasonable to express the opinion."

So it was that the learned Solicitor-General urged upon this Court that the implication of Theophanous is that a bare expression of opinion of the relevant type attracts absolute immunity. He argued that it was "difficult to make sense of Theophanous" unless it was seen as "focussing or concentrating attention on factual allegations, and not dealing with things that are ultimately identified as just opinion".

At the basis of his argument was his submission to the effect that:- "... the beauty of the American position, at least in retrospect, one can see now is this: That the onus is on the plaintiff to prove a false assertion of facts and malice. If you think about it, under that onus, if the plaintiff cannot identify out of material one or more assertions of fact, it will fail. So anything that he cannot establish or prove as an assertion of fact, as it were, falls on the safe side of the line.

The American position has a kind of appealing logic to it, because, the onus being on the plaintiff, if he fails to prove the thing is factual, the defendant has nothing he needs defend."

Whilst I appreciate the reasoning involved in those contentions I find myself unable to accept them. Given the approach of the High Court and the reversal of onus implicit in it, there seems to me to be nothing inconsistent or difficult with the concept that, even where a publication involves no express statement or implication of fact, it still rests upon the publisher to demonstrate that the publication was reasonable in the circumstances, so as to require the taking of some adequate steps to establish a proper justification for the publication. In that regard it is appropriate to examine the language used in the context of the whole publication and draw such inferences as reasonably arise from it, inter alia, concerning the issue of reasonableness.

At the end of the day there is great force in the contention of Mr Whitington that it must be borne in mind that there will always be a potential spectrum of statements which range from, at one end, assertions of pure fact to, at the other end, expressions of pure opinion in the intellectual sense; and that, as one approaches the far end of the spectrum towards pure opinion, it becomes difficult to envisage how an abstract opinion can be defamatory in any event. Until one approaches that situation what purports to be an opinion will, in most instances, of necessity, carry with it some factual connotation which must run the gauntlet of the Theophanous tests. Thus, the more that it can fairly be said that a statement is imbued with factual connotations, the more it will be necessary to dwell on the issue of reasonableness as contemplated in the majority judgment. I consider that Mr Whitington was plainly correct when he argued that, in Theophanous, the majority were patently "posing a test for all seasons". If it had not intended to do so one would have expected it to say so. In its judgment it simply expressed the criteria which had to be met by the publisher without qualification.

Considerable debate also ensued before this court as to what was intended to be conveyed by the majority of the High Court in its discussion under the heading of "The constitutional implication of freedom and qualified privilege", where it was said:- "The defence pleaded in the further further amended defence is not bad in law. Because it derives from the Constitution, the defence is available in all Australian jurisdictions, whether the law to be applied is the common law or statute law. Its availability will inevitably have the consequence that the common law defence of qualified privilege will have little, if any, practical significance where publication occurs in the course of the discussion of political matters.

Common law qualified privilege must now be viewed in the light of the implied constitutional freedom. That does not necessitate a review of its essential feature, namely, publication on an occasion of qualified privilege, or of the common law requirement that publication be without malice. It does, however, require some consideration of the notion of reciprocal interest and duty. The public at large has an interest in the discussion of political matters such that each and every person has an interest, of the kind contemplated by the common law, in communicating his or her views on those matters and each and every person has an interest in receiving information on those matters. It is an interest which exists at all times; it is not confined to situations where it is publicly anticipated that a federal election will be called. It follows that the

discussion of political matters is an occasion of qualified privilege. Even understood in this light, the common law defence does not conform to the constitutional freedom. As already explained, the freedom requires no more than that the person who publishes defamatory matter in the course of political discussion does not know that it is false, does not publish recklessly, and does not publish unreasonably, in the sense earlier explained."

Mr Harris, of counsel for Advertiser, contended that those dicta indicate that, not only does the common law defence of qualified privilege remain open to a publisher, if it desires to rely upon it in relation to statements of relevant political nature, but that the orthodox principles of the common law as to that defence have, in relation to such statements, been modified in two important respects.

First, he said, the concept of reciprocity of duty and interest is inapplicable. All that a publisher need do is to demonstrate that, as a matter of fact, the impugned statement concerns the performance by a member of Parliament of his or her parliamentary duties or his or her suitability for parliamentary office.

Second, he argued, it is now the situation that "Certain of the heads of malice ... are no longer relevant to defeat common law qualified privilege". It is, he declaimed, an implication of the constitutional freedom that certain situations "from which malice could be inferred, must go". In this regard he instanced the issue of inference derived from use of extravagant and severe language, because of what he was pleased to describe as the normally "robust" exchanges which typically occur within the political environment. He contended that the notion of improper motive was deemed to be modified, so that an inferred predominant motive to injure in a political scenario, arising from mere severe or extravagant language, would be insufficient to constitute malice.

Mr Harris went on to submit that, "because the common law has to conform ... (with the implied freedom) ... it can't operate to impose the greater burden on the publisher than the freedom the immunity provides. It is, therefore, arguable ... that the common law defence of qualified privilege is now easier to discharge, for a defendant, than the constitutional immunity. The reason relates to the differing onuses that exist in respect of either, discharging the constitutional preconditions, or, proving malice".

In my view such reasoning is fallacious and does not derive support from the majority reasoning in Theophanous. On the contrary, the retention of the common law concepts in this regard is the very reason why the majority made the comment that the existence of the constitutional defence is likely to leave the defence of qualified privilege with little, if any, practical significance. That remark arose because the High Court rightly saw the constitutional defence, where it was available, being much easier to mount than that of qualified privilege, for the very reason that the latter may not, in many instances, be able to clear the traditional hurdle of express malice

even given that the onus of proving malice is borne by a plaintiff. Indeed the majority expressly made the point that, whilst the defence of qualified privilege must be modified as to the concept of reciprocity of interest and duty, nevertheless, "that does not necessitate a review of its essential feature, namely, publication on an occasion of qualified privilege, or the common law requirement that publication be without malice". (The emphasis is mine.) Had the majority intended to convey that the common law notion of malice was impliedly watered down to some extent it would clearly have done so. It did not. Moreover, the content of the final paragraph in the majority judgment in Stephens re-enforces the conclusion which I have expressed.

It only remains to note that there was nothing in either Theophanous or Stephens to indicate that, quite separately and apart from the constitutional defence and that of qualified privilege, the common law defence of fair comment remains other than alive and well, without qualification of its well accepted incidents. There is simply no logical support for the contrary assertion advanced by Mr Harris.

Having so identified the legal principles to be applied, it becomes necessary to re-assess the evidence in this case in light of them.

It is convenient, initially, to direct consideration to the first editorial, exhibit P3.

In addressing that editorial (and also the second editorial, exhibit P4) it is not unimportant to do so against the background of what was written in the "Editorial Opinion" column on the preceding day. In the course of a discussion of the impact of the first report, it was said:- "Unhappily, an element of ambivalence in the report on whether it was the Government, or just the former Treasurer, and Treasury, which could be blamed politically for the many appalling lapses detailed by Mr Jacobs, left Mr Brown in the familiar role of shouting at the wind."

As Mr Whitington fairly pointed out, this not only represented the spontaneous reaction of the Advertiser editorial group to the report of the Royal Commissioner, but was also an accurate reflection of the reaction of an ordinary reader of the document. It essentially focused upon the sins of Mr Bannon personally and the relevant Treasury officers, but did not, in any sense, deal with any fault of the Cabinet or the Government, as such. As has already emerged, Mr Bannon had already paid the appropriate political price for his defaults.

I have already recited that Peterson based his case, as to exhibit P3, on two specific excerpts from it.

It will be recalled that the first was expressed in these terms:- "The erratic speaker, Mr Norm Peterson, has allowed the

Arnold government to defy the dictates of decency which demand it puts public interest above self preservation. At least we now know what we have long suspected, that Mr Peterson is capable of rationalising almost any political stance, however contorted or contemptible, if it suits his own ends."

The first task is to divine the extent to which that paragraph contains statements of fact, by way of contrast with mere expressions of opinion. In such an exercise this Court stands upon an equal footing with the learned Master. In any event, as, with the wisdom of hindsight, it now appears that he unwittingly erred in law in relation to the so-called constitutional defence and its implication in relation to the concept of qualified privilege, it necessarily falls to this court to consider the issue afresh.

The exercise is, as the authorities reveal, by no means an easy one in settings of the type in question. Resort may be had to the type of approach espoused in Milkovich. Various facets of that approach actually find separate expression in a series of English and Australian authorities. Some concepts adverted to in those authorities are worthy of mention at this stage.

It has repeatedly been accepted that the proper characterisation of statements depends very much upon the context in which they appear and the general subject matter under discussion. In Kemsley v Foot and Ors (1952) AC 345 at 356-7 ("Kemsley"), Lord Porter commented:- "... I find my view well expressed in the remarks contained in Odgers on Libel and Slander (6th ed., 1929), at p.166. 'Sometimes, however,' he says, 'it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that "such conduct is disgraceful", this is merely the expression of his opinion, his comment on the plaintiff's conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new

and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact.'

But the question whether an inference is a bare inference in this sense must depend upon all the circumstances. Indeed, it was ultimately admitted on behalf of the appellant that the facts necessary to justify comment might be implied from the terms of the impugned article"

It is but a short progression from that reasoning to conclude, as did Jacobs and Mason JJA in O'Shaughnessy v Mirror Newspapers Limited (1970) 72 SR(NSW) 347 at 361 ("O'Shaughnessy"), that:- "... defamatory matter which appears to be a comment on facts stated or known but is not an inference or conclusion which an honest man, however biased or prejudiced, might reasonably draw from the facts so stated or known will not be treated as comment, but, because it simply does not flow and is not capable of being regarded as flowing from the facts, will be treated as an independent allegation of fact."

It only remains to be said that I agree with the conclusion of the learned Master that statements that might otherwise be regarded as statements of fact should be treated as comment if it is apparent that they are inferences drawn from other facts which have been either specifically stated or referred to, or are notorious (Lefroy v Burnside (1879) 4 LR Ir 556, O'Brien v Marquis of Salisbury (1889) 54 JP 215.)

In the course of his reasons the learned Master made a careful analysis of exhibit P3. In essence I agree with the approach which he adopted. Specifically, I consider that he was correct when he indicated:- "... I have come to the conclusion that a fair reading of the first editorial does not give rise to the inference that the ordinary reasonable reader would have realised that the comment made by the defendant in the editorial was made by reference, in part, to the previously widely reported positions taken by the plaintiff in relation to his continued support for the Government once the first report of the Royal Commission was issued. If anything, the reader's attention, in my view, would have been deflected from such a consideration and directed more specifically to such matters as the WorkCover reforms and the inappropriateness, in the opinion of the defendant, of the plaintiff exercising his casting vote to support the Government notwithstanding the contents of the first report of the Royal Commission. It is with these conclusions in mind that I approach the task of deciding whether the first editorial consist entirely of assertions of fact, entirely of comment or of a combination of both."

On a dispassionate reading of the editorial I agree with the learned Master that the words "The erratic Speaker, Mr Norm Peterson" must, in context, be taken as an assertion of fact. As he pointed out, there is nothing in the editorial which suggests that it is an inference drawn from other facts by reference to which the editorial must be read; and it cannot be characterised as comment in any other way.

The learned Master was of opinion that all other defamatory material in the editorial including that in the paragraph:-

"There was an air of unreality about yesterday (sic) and last night's parliamentary debate. The outcome was known all along. The 'boy from the Port', only days ago bristling with indignation at the personal pressure he had been subjected to over WorkCover, and ready to bring down the Government, had capitulated on this vastly more serious issue before the first speaker stood up.

It is to be hoped that at the next election Mr Peterson will be remembered, even among the diehard Labor voters at the Port, for his duplicity." was essentially comment, because it was plainly reflective of the manner in which Peterson had exercised his casting vote or consisted of mere sardonic comments:- "... they expressed the opinion of the defendant in light of the contents of the first report of the Royal Commission, the exercise of the plaintiff's casting vote in favour of

the Government, and the inferences to be drawn from those two matters that the plaintiff was capable of rationalising almost any political stance however contorted or contemptible, in turn required the conclusion that the plaintiff had made up his mind as to the exercise of his casting vote before the commencement of the Parliamentary debate. It is a most serious defamatory comment."

Whilst he accepted that the second impugned paragraph commenced with a series of factual statements, he was of the view that the statement attributing duplicity was comment, in that it was an inference of fact drawn from the stance which Peterson had taken in relation to the Workcover legislation; and that that issue had a lesser significance than the content of the first report.

Mr Whitington strongly attacked such reasoning. He contented that:- - first, the statements that Peterson would do anything to suit his own ends and, that he had been guilty of duplicity were assertions of fact in the sense discussed in Milkovich, because they exhibited a provable, factual connotation, and/or necessarily implied assertions of objective fact.

• secondly, in the alternative, the learned Master had been seduced by the notion that the relevant statements appeared to be inferences, but had overlooked the fact that they were patently illogical inferences and, thus, were not inferences at all (O'Shaughnessy).

These issues are not simple of resolution, the more so when it is borne in mind that, as was stressed by Herron CJ in O'Shaughnessy at p351, assertions related to corruption, dishonesty, immorality and the like "are usually regarded as defamatory statements of fact and not as mere comment".

According to its normal dictionary meaning the word "duplicity" connotes deceitfulness in conduct and double-dealing. It is a strong word which carries with it distinct overtones akin to corruption or dishonesty. Moreover, there is force in Mr Whitington's point that an allegation of "duplicity" is a patently illogical inference from the facts referred to.

I would hold, on the reasoning indicated by Herron CJ, that the reference to the duplicity of Peterson was a statement of fact and not one of opinion.

On the other hand it seems to me that the reference to Peterson rationalising almost any political stance if it suits his own ends, when it is read in the context of what precedes it, falls on the other side of the line. I consider that the learned Master was correct in assessing it in the manner in which he did. As His Honour said:- "... I think this passage may be characterised as comment based on the fact of the exercise of the casting vote and the content of the first report of the Royal Commission. Whilst I accept that the use of the passage 'we now know' connotes an assertion of fact, it seems to me that the passage, taken as a whole, is a factual inference drawn from the fact of the exercise of his casting vote by the plaintiff the previous day and the content of the report of the Royal Commission."

102. The learned Master rightly emphasised that this editorial necessarily falls to be viewed in light of the historical events which gave rise to it; and which, in large measure, are adverted to in the editorial itself. Plainly the document consists of an admixture of fact and comment.

103. There is, I think, no real difficulty, in the case of this editorial, in dissecting out what purport to be statements of fact and what constitutes mere comment. Indeed, no argument was directed to the contrary. What was, however, pointed up by the learned Master was the legal significance of what relevant facts were not stated. However, that aspect arises for consideration a little later.

104. Having made the foregoing analysis, I now proceed to a consideration of the legal implications flowing from it. Once again, it is necessary to review the two editorials separately and successively.

EXHIBIT P3 105. It is convenient, initially, to consider the claimed constitutional immunity and to view the editorial against the three tests postulated in Theopanous.

The onus lies on Advertiser to establish that:- - it was unaware of any falsity of the factual material published; - it did not publish the material recklessly; and - the publication was reasonable in the circumstances.

An immediate problem which confronts Advertiser in this regard is the paucity of evidence which it led. As a corporate entity, its state of mind and understanding was necessarily that of its employees who were involved in an executive capacity in the evolution and publication of the editorial. If authority be required for such a trite proposition it may be found in Spedley Securities Ltd (in liq) and Anor v Western United Ltd (in liq) and Anor (1992) 7 ACSR 271. (See also other comments of their Lordships in Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354 at 363 ("Austin").)

As already emerges, the only relevant witness called in this regard was Jory who, in reality, was not shown to have had more than a peripheral involvement in the detailed content of either editorial. Based almost solely on normal practice and procedure, he thought that he probably viewed the draft prepared by McEwen. He did not recall whether he made any suggestions as to possible amendments.

True it was that Jory was party to the original editorial conference, but all that can be said with confidence is that McEwen drafted the editorials and Blunden either settled or approved those drafts. Neither were advanced as witnesses for Advertiser and the court was left bereft of information as to their respective degrees of knowledge and states of mind. There is much to be said for Mr Whitington's comment that Jory was put forward as a "sanitized" frontman, to avoid the possibility of an adverse and possibly damaging cross examination of either McEwen or Blunden. Certainly there is ample warrant for the view that their knowledge was no more extensive than that which was in the public domain, much of which was evidenced by articles published in their own newspaper. Moreover, it is difficult to see how it can properly be concluded that Jory's personal state of mind equated to that of Advertiser, when he was not the person who either wrote the editorials, or finally settled and approved them for publication.

In my opinion, in relation to exhibit P3, the defence based on Theophanous patently fails dismally. The allegation of duplicity (taking that word in its normal accepted sense) was a statement which was palpably false and, as a moment's consideration indicated, was not warranted by the circumstances known to Advertiser. Alternatively the publication of it was, at the very least, reckless, in that it was made without any discernible justification. Furthermore, it was quite unreasonable in the circumstances, both because it reflected a patent failure to check and consider the relevant facts and also because, even on the known facts, it imputed a notion of at least moral dishonesty which was not warranted by them.

Equally the assertion, in exhibit P3, that Peterson had been erratic, in the sense projected by the editorial, was no less unsustainable, as to the constitutional defence.

There is logic in the submissions to this Court that, in promoting the test of reasonableness, the majority of the High Court clearly had in mind the line of authorities bearing on section 22 of the Defamation Act, 1974 (NSW).

In this regard it is convenient to commence with the following dicta of the Privy Council, to be found in Austin at 363-5:- "... The media has enormous power both for good and ill and it would be a sorry day if newspapers were encouraged to believe that under the shield of qualified privilege the reputations of individuals could be attacked by slip-shod

journalism that would provide no defence of comment because the facts on which the attack was based were not true. Where the defence of comment has failed because the jury has found the facts to be untrue, a judge should examine the circumstances leading up to the publication of those false facts very closely before concluding that it was reasonable to publish them. ...

There will of course be cases in which despite all reasonable care the journalist gets the facts wrong, but a

member of the public is at least entitled to expect that a journalist will take reasonable care to get his facts right

before he launches an attack upon him in a daily newspaper. In on inquiry it is found that the facts are not true and that reasonable care has not been taken to establish them courts should be very slow to hold that the newspaper is protected by statutory qualified privilege. The public deserve to be protected against irresponsible journalism. The defence of comment provides such protection by insisting upon the newspaper establishing the substantial truth of the facts upon which it comments. It cannot surely have been the intention of the legislature that this protection should be substantially stripped away by the introduction of the statutory defence of qualified privilege. But this will be the result if a newspaper is able to hide behind the actions of a careless or an irresponsible journalist or if the court takes too indulgent a view of the conduct of a journalist who failed to check his facts."

What was there said was, of course, the product of a particular statutory environment, but the broad sentiments expressed are no less applicable to the tests postulated by the High Court.

Assistance is also to be gleaned from the judgment of the Court of Criminal Appeal in Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 at 797, where it commented:- "The limited application of the common law principles of qualified privilege to publications in newspapers has already been discussed. Section 22 was designed to enlarge the protection afforded by these principles to defamatory publications generally, and it has a particular relevance to publications in newspapers; but it gives no carte blanche to newspapers to publish defamatory matter because the public has an interest in receiving information on the relevant subject. What the section does is to substitute

reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established.

Newspaper publications are made to the public at large, and the conduct of a publisher in publishing defamatory matter

in a newspaper must be reasonable having regard, inter alia, to that wide publication. Any person published defamatory

matter should be careful to ensure that it is proper for him to make the publication, no matter how limited in extent it

is. Since s.22 provides a defence, the onus is upon the publisher to show that he is entitled to its protection. To satisfy this onus, a newspaper publisher must establish circumstances, or point to proven circumstances, which make it reasonable to publish the defamatory matter to the world at large. It is rarely, if ever, that this onus would be satisfied by the terms of the publication alone: cf Wright v Australian Broadcasting Commission; it is possible that, in some cases, it would be satisfied by the evidence of witnesses called by the plaintiff; but commonly its satisfaction would require the publisher to call evidence to establish what care he had taken. In satisfying this onus, a newspaper publisher is in no different position to a private citizen in possession of the same information. The fact that the publisher has sources for his information, and that he has made the best check possible in the time to ensure that the defamatory matter is accurate does not, of

course, necessarily make reasonable the publication of that matter in a newspaper."

Quite apart from any issue related to awareness of truth or recklessness, publication of the assertion that Peterson was erratic was, as has been demonstrated, simply in obvious discord with those facts which Advertiser had, itself, previously published. In this regard Jory's evidence was of limited value because of his peripheral involvement in the publication.

As was the situation in Wright v Australian Broadcasting Commission and Anor (1977) 1 NSWLR 697 ("Wright"), there is no evidence whatsoever as to the state of mind of the principal actors. Reasonableness of conduct falls, in large measure, to be considered having regard to the text, the nature of the publication and the then notorious facts. To the extent that Advertiser can draw comfort from Jory the inevitable conclusion to be derived is that the highly defamatory publication could not, in any sense, be said to be the reasonable end product of a view fairly and rationally come to on the known facts. What was conveyed was, patently, a quite misleading impression to the public at large, there having been no apparent attempt at a careful review of the significance of the known facts. This was, on its face, irresponsible journalism of the type condemned by the Privy Council in Austin.

I would reject the constitutional defence raised in relation to exhibit P3.

I move on to the defence of qualified privilege.

The classic formulation of this defence is to be found in Adam, which now needs to be modified to accord with what fell from the High Court in Theophanous and Stephens.

To succeed in such a defence, in the instant case, the onus lay on Advertiser to prove that the publication was of material of the political nature of that adverted to by the High Court in Theophanous and Stephens. This it plainly did.

It then fell to Peterson to discharge the onus of rebutting that conditional defence by demonstrating express malice in the recognised legal sense. Express malice goes to the motive of the publisher and focuses upon the issue of whether or not the method of exercise of the privilege exceeds the reasonable needs of the occasion. The privilege will, for example, be lost if a defamatory statement is published for an improper purpose.

A defamed person may potentially demonstrate malice by showing that the publisher did not entertain a positive belief in the truth of the statements in question. As was said in Clark v Molyneux (1877) 3 QBD 237, save in exceptional circumstances, one who knowingly asserts a falsehood must be taken to be using the privileged occasion for a dishonest or improper purpose.

The authorities also establish that reckless indifference as to truth or falsity is equated with a lack of belief in truth. Recklessness is, of course, not to be confused with mere carelessness, impulsiveness or irrationality (Horrocks v Lowe (1975) AC 135 at 149-150). As Lord Diplock stressed in Horrocks v Lowe, the motive with which defamatory matter is published can only be inferred from what the publisher did, or said, or knew.

In the case at bar there can be no question that the publication of exhibit P3 was on an occasion of qualified privilege in the above sense; and that the learned Master was incorrect in coming to a contrary conclusion.

The question which arises is as to whether Peterson succeeded in demonstrating express malice. In my view he did, within the meaning of the authorities to which I have referred.

Here also Advertiser must bear the consequences of its failure to call either McEwen or Blunden. The evidence of Jory, properly understood, does not assist its situation in significant degree, for reasons upon which I have already dilated.

On the totality of the evidence, there was simply never any warrant for resorting to the epithet "duplicity", with all that such word conveys. Nowhere is there to be seen any factual basis for averring deceitfulness or double dealing, in the dishonest sense which that word conveys according to its normal meaning. At best it was a word recklessly used. At worst Advertiser could not reasonably and possibly have considered the facts known to it to support the concept conveyed - even given Jory's state of mind.

In relation to the reference to "erratic", we simply do not know what was in the minds of McEwen and Blunden - certainly no rational consideration of the facts could have led them to a justified use of the word. True it is that Jory professed some personal belief of truth, but, in cross examination, he was quite unable to sustain its logic. That does not necessarily negate the existence of a genuine belief of truth on his part, but the fact remains that the evidence fell short of demonstrating that the actual persons responsible for the publication - who must be taken to have been aware of the sequence of previous articles published over time - could possibly have entertained a genuine belief in the truth of what was written. An inference of at least recklessness on their part inevitably arises, which is rendered all the stronger by the extravagant nature and tone of the editorial.

In my view a finding of express malice was inevitable on the evidence and this negated the privilege which would otherwise have been available to Advertiser.

There only remains, in relation to exhibit P3, a consideration of the defence of fair comment.

In his reasons the learned Master correctly adopted the following statement of the elements of the defence:- "The main principles relating to the defence of fair comment may be stated as follows:- (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can consist of or include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any fair-minded man honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice."

He noted that Peterson conceded, at the outset, that the element of public interest had been made out.

Much was said, in the course of the appeal, as to the issue of fair comment.

In addressing the above elements in the context of this case it is important to bear in mind the following propositions:- - Important questions to be posed are whether there is subject matter indicated in the publication with sufficient clarity to justify the comment being made; and whether the comment actually made was such as an honest, though prejudiced, person might make (Kemsley).

• Defamatory matter which appears to be a comment on facts stated or known, but is not an inference or conclusion which an honest person, however biased or prejudiced, might reasonably draw from the facts so stated or known, is not comment at all and will, as earlier indicated, be treated as an independent allegation of fact (O'Shaughnessey).

• It is not necessary that all facts on which a comment is based be expressly stated in the defamatory article. If a

sufficient substratum of fact can be implied from the language used, that may, in whole or in part, support a plea of fair comment (Kemsley).

• An imputation of corrupt or dishonourable motives will render a comment unfair unless such imputation is warranted by the facts truly stated or referred to (that is, an inference which a fair minded person might reasonably draw from such facts, and represents the honest opinion of the writer) (Campbell v Spottiswoode (1863) 3 B and S 769,

Coetzee v Union Periodicals Ltd and Ors (1931) WLD at 43).

I have already expressed the opinion that the phrase "the erratic Speaker" was, in context, a statement of fact. It was the obligation of Advertiser to prove the truth of that assertion (cf Hawke v Tamworth Newspaper Co Ltd (1983) 1 NSWLR 699 at 716-7 and the authorities therein discussed).

I consider that it has simply not done so. Furthermore, for reasons which I have already given, the defence mounted in that regard also necessarily founders on the rock of express malice.

Insofar as exhibit P3 employs the expression "duplicity", for the reasons which I have already given, it, too, has not been demonstrated to reflect the truth and, in any event, manifestly constitutes an assertion of dishonourable motive rendering it unfair in terms of the authorities to which I have above referred. (See also Christie v Robertson (1889) 10 NSWLR 157 at 163.)

It follows, then, that the defence of fair comment must be rejected as to exhibit P3.

EXHIBIT P4 140. The issues arising from this publication are of simpler compass.

141. In my opinion those statements which are of fact and the expressions of opinion are readily capable of separate identification.

142. Peterson has not sought to attack this editorial on the bases adumbrated in either of the first two prongs of the Theophanous test. I have already adverted to some aspects related to the third prong. Additionally, it is asserted that the constitutional defence is not available to Advertiser because the material published is remarkable not so much for the facts which it does refer to, as for its glaring omission to present relevant facts which, if stated, would dramatically alter the whole factual scenario in a manner which would expose the invalidity of the comments made. The facts stated were, it was said, to that extent, quite misleading.

143. This contention was based upon the reasoning of Moffitt P in Wright at 707, where the learned President made the point:- "... to publish the facts on which the guess was said to be based, with an omission of matter, which, if published, would have deprived the guess of weight, provided an additional reason why publication of the defamatory matter in the form it was, was unreasonable."

144. The importance of ensuring that the relevant facts are adequately and accurately stated, so as not to be misleading by omission, is that, as Lord Porter accepted in Kemsley, the reader of the article is thereby enabled to judge for himself or herself how far any comment expressed is well founded.

145. This aspect of the case obviously troubled the learned Master, for, in discussing the defence of fair comment, he said:- "The references in the 2nd editorial such as, 'It defies belief ...', 'How on earth can he properly discharge his weighty duty ...', 'How can he expect the public to feel that he is fulfilling his own, self appointed duty of passing judgment on this Government ...', 'The people of

South Australia deserve better.', 'Does he burn the midnight oil?', 'Does he take independent legal advice ...', 'Does he

lose sleep worrying about lost businesses, wrecked finances and other dire consequences ...', 'This must raise serious

questions about his performance as Speaker.', and the criticisms which follow all may be taken as vigorous, even scathing, criticism of the plaintiff in the context of having read only 9 pages of the report and having then voted in favour of the Government when he had previously stated that he would look at the first report of the Royal Commission to see whether or not he would continue to support the Labor Government.

On such a basis, a respectable argument might be put that the comment was fair within the meaning of the test previously referred to. However, I have been concerned about, not so much the facts that are stated in the article, but about the facts that are not stated in it. No mention was made as to whether or not the plaintiff had time to read the report before being called upon to exercise his casting vote. No mention was made about the speed with which the opposition brought on the motion of no-confidence. No mention was made of the plaintiff's need to attend to his Parliamentary duties between the release of copy of the report to him and the completion of the debate on the no-confidence motion. There was no mention of the support given by the two other independent labour members. These matters, if they had been mentioned in the 2nd editorial, would have presented a balanced picture of the position of

the plaintiff. As against that, the plaintiff did not help himself by publicly stating on two occasions that he would leave it to the journalists to tell him about the content of the Royal Commission. On the second of those occasions he made the comment sarcastically in reaction to the aggressive media attention to which he was then subject. However, his earlier comment to the same effect appears to have been made dispassionately. The defendant might therefore be forgiven for thinking that the plaintiff had taken a somewhat cavalier attitude to ascertaining the contents of the first report of the Royal Commission. Nevertheless, it must be borne in mind that both of those comments were made before the plaintiff was aware that the opposition would bring on a no-confidence motion that afternoon. He had heard during the course of the morning rumours to that effect, but he did not think that the opposition would do so at such an early stage. It is also to be noted that the comments were made

prior to the plaintiff obtaining a copy of the report of the Royal Commission.

In the circumstances of this case, it is difficult to know where to draw the line between legitimate and vigorous public debate about a matter of public interest and that which goes beyond the realm of fairness, as the cases define the concept of fairness, for the purposes of this defence."

146. Insofar as the constitutional defence is concerned I am driven to the conclusion that it founders when it comes to the hurdle of reasonableness. At best there was a failure to check the true facts, as outlined by the learned Master. At worst what was said was a deliberate distortion of the real situation. These were, as the Master correctly assessed, scathing public criticisms of a prominent public figure, deliberately designed to occasion him electoral harm. In making them it behoved Advertiser to present a factual scenario which was not so unbalanced as to be positively misleading to the average reader. It did not do so.

147. As to the defence of qualified privilege the real issue is whether Peterson made out express malice, so as to destroy it. In this regard it seems to me that the same scenario as I have just portrayed, coupled with the very extravagance of the language employed, a failure even to mention the role of the other independent members in the Lower House, and a demand that he stand down as Speaker all combine to give rise to an unmistakable inference of malice in the legal sense. Moreover it is arguable that the article strongly exhibited such a reckless indifference as to truth or falsity in its inferences that this should, on the basis of Horrocks v Lowe be equated with a lack of belief in truth.

148. The defence of qualified privilege must therefore be rejected.

149. The foregoing reasoning also spells the death knell to the defence of fair comment. The existence of express malice alone is sufficient in that regard. In any event it is well established that comment cannot be said to be fair if it is based on facts which are patently distorted.

150. To establish the defence of fair comment the requirement is not merely that the facts stated are true. Rather, it is that they be truly stated (Sutherland and Ors v Stopes (1925) AC 47 at 62-3, Thompson v Truth and Sportsman Ltd [1932] NSWStRp 86; (1932) 34 SR(NSW) 21 at 25).

151. The omission of a series of relevant facts, having the result that the factual scenario represented in a publication is quite unbalanced and potentially misleading to the average reader, results in a situation that the facts have not, relevantly, truly been stated.

152. That was the situation in the present case apropos exhibit P4.

153. On the reasoning which I have above expressed I would dismiss the appeal insofar as it relates to the issue of liability. I would allow the cross appeal to the extent that it complains of the acceptance of the defence of fair comment in relation to the second editorial and substitute for it a finding as to liability in respect of that editorial in favour of Peterson.

154. Both parties complain of the quantum of damages. Advertiser asserts that the assessment made was over generous and out of step with general levels of awards related to personal injury. (See Carson v John Fairfax and Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 57-60, accepted in Theophanous at 722.)

155. Damages for defamation are intended to recognise compensation for hurt experienced, reparation or solatium for harm done to reputation and an allowance by way of vindication of reputation. (See Carson v John Fairfax and Sons Ltd at 60.) Some assistance, in a general way, may be derived from Buick v Duncan (1986) 127 LSJS 277 and Humble v Cornwall (1988) 145 LSJS 101.

156. Had the assessment made merely stood on the basis of the findings of the learned Master I would have considered it somewhat generous. However, given my conclusions as above expressed and the gravity of the defamatory material and its obvious impact on the reputation of Peterson, I consider that it cannot be characterised as either manifestly excessive or inadequate.

157. I would therefore dismiss both the appeal and the cross appeal as to damages.

158. It logically flows from my conclusions that the appeal against the order as to costs must be dismissed as no basis for the appellant's complaint remains.

159. Since writing the foregoing reasons I have had the advantage of reading the reasons for decision of Mullighan J in draft. Having done so I would merely wish to add that, insofar as he has elaborated on any issue raised in my reasons or has developed additional bases of arrival at the conclusions to which he has ultimately come, with respect, I agree with him. Specifically, I agree that proper significance must be attached to the evidence of Mr Jory to the effect that he considered the respondent a man of integrity and independence and the implications which necessarily flow from that evidence.

JUDGE3 MULLIGHAN J I am grateful to Olsson J for his description of the evidence and issues in this appeal.

As to the evidence, I only wish to add a mention of the evidence about the character and reputation of the respondent. The Master accepted the evidence of Mr Halliday which was unchallenged. He is well acquainted with the respondent and many of his constituents. The respondent is widely known in his electorate and enjoys an outstanding reputation for honesty and integrity. Mr Halliday had never heard any adverse comment about his general reputation. The respondent was involved in many aspects of the affairs of his local community and with ordinary people and the evidence permits the conclusion that he was a hard working and highly respected member of Parliament. Mr Jory, the only witness called by the appellant to speak as to its motives and policies in publishing the editorials, the subject of this litigation, had known the respondent for over ten years. He enjoyed friendly relations with him and socialised with him on occasions, although only in the context of the relationship of politician and political journalist. According to him, a feature of their relationship was mutual trust and the keeping of confidences. He regarded the respondent as a man of his word, and of integrity and independence and proudly so, and who, in general terms, was not lacking in courage.

It is against that background, as well as all of the matters recited by Olsson J, that the issues on this appeal must be resolved.

The Master found that both the first editorial and the second editorial were defamatory of the respondent and those findings are not challenged on this appeal. The following words of the first editorial gave rise to most of the imputations pleaded by the respondent: "The erratic Speaker, Mr Norm Peterson, has allowed the Arnold Government to defy the dictates of decency which demand it puts public interest above self-preservation. At least we now know what we have long suspected, that Mr Peterson is capable of rationalising almost any political stance, however contorted or contemptible, if it suits his own ends."

"There was an air of unreality about yesterday and last night's parliamentary debate. The outcome was known all along. The 'boy from the Port', only days ago bristling with indignation at the personal pressure he had been subjected to over WorkCover, and ready to bring down the Government, had capitulated on this vastly more serious issue before the first speaker stood up."

"It is to be hoped that at the next election Mr Peterson will be remembered, even among the diehard Labor voters at the Port, for his duplicity."

Those imputations are set out in the reasons for judgment of Olsson J. The Master found that it was the whole of the second editorial which conveyed imputations against the respondent, which are also set out by Olsson J. It may be seen with respect to both editorials that these imputations reflect in a serious way upon the respondent both personally as a member of the Parliament and, in particular, in the discharge of the duties of the high office of Speaker of the House of Assembly and his suitability to hold that office.

The issue on this appeal is whether any of the defamation defences have been made out.

The defence derived from the freedom to publish political discussions implied in the Commonwealth Constitution requires no more than that the publisher does not know that the defamatory matter is false, does not publish it recklessly and does not publish it unreasonably: Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 68 ALJR 713 at pp725-729 and Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 68 ALJR 765 at p769. This freedom of communication is also implied in the Western Australian Constitution Act: Stephens. As there is no material difference, in this respect, between the Western Australian Constitution and the South Australian Constitution, the defence is available with respect to political discussion at a State level in this State. It was not disputed that both editorials are the publication of political discussion and attract consideration of this defence. The scope of the defence in the realm of political discussion includes criticism of the conduct, performance and fitness for office of a member of Parliament, because criticism of that nature "is at the very centre of the freedom of political discussion": Theophanous at p717 and Stephens at p769.

Of course, this constitutional defence does not provide total immunity from liability on occasions of political discussion. The concept of the defence does not require that the publisher of a statement "be protected from the consequences of making a defamatory statement which is knowingly false ... (is) made with reckless disregard for the truth or untruth of the material published ... (and) the public interest to be served does not warrant protecting statements made irresponsibly": Theophanous at p723. Later in their joint reasons for judgment, Mason CJ, Toohey and Gaudron JJ, after discussing what is required by the publisher by way of enquiry and reasonableness, went on to say, at p725: "At the same time, it cannot be said to be in the public interest or conducive to the working of democratic government if anyone were at liberty to publish false and damaging defamatory matter free from any responsibility at all in relation to the accuracy of what is published."

So, the publisher must establish the three matters which have been mentioned.

The Solicitor-General submitted for our consideration that the tests in Theophanous and Stephens do not seem appropriate for expressions of opinion or for comment which, in principle, he contended, should be protected. He referred to the position in the United States of America, where the courts appear to give unqualified immunity to expressions of opinion without a proven false factual connotation: Flemming 8th Ed 586.1, Gertz v Welch [1974] USSC 144; (1974) 418 US 323 at 339-340, Avins v White [1980] USCA3 483; 627 F 2d 637 (1980) at 642-644, Ollman v Evans [1984] USCADC 463; 750 F 2d 970 (1984) at 974-975, Milkovich v Lorain Journal Co et al [1990] USSC 117; (1990) 111 L Ed 2d 1, 497 US 1 especially at 17-19 (L Ed), 17-21 (US). He contended that it would be consistent with Theophanous and Stephens and the American approach, to give protection to statements of bare opinion (unrelated to any facts) unless defamatory facts were implied by the opinion and also, opinions upon facts which are stated, may be implied or are sufficiently indicated or notorious. In these circumstances he submitted that the protection could be absolute or available, if the publisher shows that the opinion was honestly held.

I do not think this approach should be adopted for the resolution of this appeal. The High Court considered the reach of the constitutional defence in Theophanous and established the circumstances in which it is available. The Court did not draw any distinction between fact and comment or opinions, even though the alleged defamatory material giving rise to the case stated was substantially comment. If the Court had considered it appropriate to protect comment absolutely or in any way other than by the tests which were laid down, it would have done so. Furthermore, Mason CJ, Toohey and Gaudron JJ, in Theophanous, at p718, acknowledged that it was necessary to treat Canadian and United States judicial decisions dealing with general guarantees of freedom of speech with some caution as their constitutional provisions are not the same as ours. Also, it may readily be seen that in their observations as to what type of discussion would be protected by the constitutional freedom, their Honours included defamatory publication by way of comment. The constitutional defence to be considered in this appeal must be resolved by the tests in Theophanous and Stephens which must be applied to comment or opinion as well as statements of fact.

The learned Master took the view that the defamatory statements in the first editorial were largely comment or opinion. It was only the reference to the respondent as "the erratic Speaker", which was a statement of fact. It is widely recognised that the distinction between an allegation of fact and an expression of opinion may not always be easy to make, but in this case I think the position is clear. The words "At least we know what we have long suspected, that Mr Peterson is capable of rationalising almost any political stance, however contorted or contemptible, if it suits his own ends" and that it is to be hoped that he "will be remembered, even among the diehard Labor voters at the Port, for his duplicity" are essentially statements of fact. They are not mere comment or expression of opinion.

There were no stated facts upon which it might be said that these statements were conclusions and therefore comments or expressions of opinion. True it is that there had been the statements published earlier by the appellant with respect to the WorkCover issue. It is unnecessary to set out the details of those publications. They recorded the stance taken by the respondent. He threatened to withdraw his support for the Government if his amendments to WorkCover legislation were not supported by the Government. The impasse between the Government and trades unions was resolved so that, in general terms, the former had its way on the proposed reforms. The respondent stood up to the unions and was subject to much vilification and intimidation. Nevertheless he stood firm. His amendments were carried in the Parliament and his threat did not have to be carried through. His stance on the WorkCover issue was similar to that of the Premier and a section of the Parliamentary Labour Party. A sensible observer may well have thought that the respondent had made the threat in the hope of achieving what he thought was right and on that issue he was not at odds with the Government.

It might also be said that his stance on this matter reflected his personal characteristics which were accepted by the Master and acknowledged by Mr Jory and which include integrity and courage. His stance on this issue when compared with his stance in refusing to support a vote of no confidence in the Government following the announcement of the State Bank crisis and later when the report of the Royal Commission was tabled could not, in my view, be regarded as "erratic" or, even inconsistent. The respondent's attitudes were in the public domain and perhaps mainly through publications of the appellant. He had said what he would do if it was the case that the former Premier Mr Bannon had misled the Parliament. He had said that he would wait and see what were the findings of the Royal Commission. By the time the report was tabled the former Premier had gone. The occasion to support or not support him did not arise.

I think it was patently false to assert: "At least we now know what we have long suspected, that Mr Peterson is capable of rationalising almost any political stance, however contorted or contemptible, if it suits his own ends."

Such a statement does not accord with the proven general character and reputation of the respondent within the community or with Mr Jory's view of the respondent. Mr Jory was the only member of the editorial committee called. Regardless of how he attempted to justify the editorial, the evidence discloses that it does not accord with his own view of the respondent at the time. There was simply no basis for the appellant to hold the view that it had "long suspected" anything seriously adverse to the respondent, let alone what is asserted in the first editorial. I think the unexplained absence of the Editor, Mr Blundon, and the author of the editorial, Mr McEwin, permits the inference that their evidence on this matter would not have assisted the appellant. Also, it was simply untrue to say that the respondent had engaged in "duplicity". The meaning of that word, according to the Shorter English Oxford Dictionary, includes "deceitfulness" and "double dealing". Such an allegation, on the evidence, was simply untrue and, in my view, to the knowledge of the appellant. Any attempt to explain away the significance of Mr Jory's views about the characteristics of the respondent on the ground that the respondent had changed, is entirely unconvincing.

It follows that the constitutional defence falls at the first hurdle. The appellant cannot establish that it did not know that the defamatory matter was false. Also it cannot establish that it did not publish the first article unreasonably. In Theophanous Mason CJ, Toohey and Gaudron JJ said, at p726: "Whether a publisher has acted reasonably must be a question

of fact in every case. It will depend upon the standards and expectations of the community as to whether the allegations needed to be investigated. Reasonableness is a concept with which the law is familiar."

Their Honours made the comparison with the consideration of reasonableness in s22 of the Defamation Act 1974 (NSW) as discussed in Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697, Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 and Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354. S22(1) of the Defamation Act provides the circumstances in which the defence of qualified privilege exists and includes that "the conduct of the publisher in publishing that matter is reasonable in the circumstances": s22(1)(c). In Wright Reynolds JA said, at p712: "Section 22(1)(c) calls for the consideration of a wide range of matters. Some are to be found in the published material itself and the manner and extent of its publication, and others from the whole of the surrounding circumstances. The connection between the subject and the defamatory imputation remains relevant. It may be tenuous, or it may be real and substantial. If what was said includes comment, it is relevant to consider whether it was fair and whether it followed logically from facts known or

stated. Questions of the exercise of care before the defamatory utterance are also relevant, and questions as to whether the maker of the statement knew whether he was likely to convey a misleading impression. These are but examples of what I conceive to be involved in the inquiry to be made by the judge in order to determine whether the defendant has satisfied him that it was reasonable of him to defame the plaintiff in the way he did."

These observations were approved in Morosi at p796. In Austin the Privy Council observed, at p360: "A newspaper with a wide circulation that publishes defamatory comments on untrue facts will in the ordinary course of events have no light task to satisfy a judge that it was reasonable to do so. Those in public life must have broad backs and be prepared to accept harsh criticism but they are at least entitled to expect that care should be taken to check the facts upon which such criticism is based are true."

It follows that if the publisher knows facts to be untrue or publishes recklessly, not knowing whether or not they are untrue, he or she has had not published reasonably. The evidence established that the appellant wanted the Government to fall and for there to be an immediate election. It was no impartial commentator about matters of public interest.

Upon consideration of all of the circumstances of the publication of the first editorial, including Mr Jory's knowledge of the personal characteristics of the respondent, the motives of the appellant and the publication of facts known to be untrue, it could not be said that the appellant published reasonably.

If I am wrong in the characterisation of what is fact and what is opinion in the first editorial, and the learned Master was correct in concluding that only the statement that the respondent was the "erratic Speaker" is an allegation of fact, I would reach the same conclusion about the constitutional defence. In my view the evidence discloses that the appellant was aware of the falsity of what it asserted and even though comment, if that is the case, the publication of them could not be regarded as being reasonable. They were false and, in my view, knowingly so and were made irresponsibly. The constitutional defence must fail.

I now turn to the second editorial which is set out in full in the reasons for judgment of Olsson J. The learned Master found that the facts stated in the editorial were true with only minor qualifications. Those qualifications were that prior to the first editorial, the respondent did not make public utterance of support for the "Bannon/Arnold Government", but had said that he would await the first report of the Royal Commission before making any judgment or otherwise about the Bannon Government. After the resignation of Mr Bannon, he said he would support the Arnold Government. The learned Master took the view that this inaccuracy in the second editorial did not detract from his finding that the appellant had established the truth of the facts in the second editorial. The words "It is the document (the report) Mr Peterson himself has said, publicly, in the Parliament and elsewhere, that he would wait for, before making any judgment about the culpability or otherwise of the Bannon/Arnold Government" constitute that factual assertion.

The second editorial is not only significant for the nature and strength of the attack upon the respondent but also for the facts, known to the appellant, which are not included in it. The imputations against the respondent conveyed by this editorial as found by the learned Master, are a very serious reflection upon the respondent. This was no mere strident criticism. This was an attack upon him with the clear imputations of laziness, incompetence, lack of concern for the welfare of the State, unfitness to hold office and the taking of a stance without taking the time to be properly informed. Nowhere in the editorial is there any reference to important facts which were in the knowledge of the appellant.

As the learned Master observed, there is no mention as to when the respondent received the report and as to whether or not he had time to read it before being called upon to exercise his casting vote. No mention is made of the speed with which the motion of no confidence was moved and brought on for debate. Nothing is said about the other duties which the respondent discharged and was obliged to discharge since receiving the report and of the support for the Government by the other two independent members. The appellant well knew of the resources which it had devoted to the reading and understanding of the report, which involved many staff in the lock up situation. In the context of considering the common law defence of fair comment, it might be said that fair minded persons were deprived of all facts necessary to enable an honest opinion to be expressed.

Given the knowledge of the appellant of the respondent, the facts known to the appellant which it deliberately chose not to publish and its desire for an early election, the constitutional defence is not made out with respect to the second editorial. It is reasonable to conclude that the omission of relevant and important facts from the editorial is so distorted the factual basis of the comment and opinion expressed, as to render them false and to the knowledge of the appellant and therefore unreasonable to be published.

It is necessary to consider the other grounds of the appellant's appeal with respect to the first editorial. The learned Master rejected the defence of qualified privilege because, as the law stood at that time, there was no privileged occasion, ie the necessary duty to publish the defamatory material and the corresponding duty or interest on the part of readers to receive them was absent: Adam v Ward (1917) AC 309 and Morosi. Since Theophanous, it may be accepted that the required reciprocity will exist in cases of political discussion. In my view the publication of the first editorial must now be regarded as an occasion of qualified privilege. Nevertheless that defence is defeated by proof that the appellant was activated by express malice.

Malice in that sense may be inferred from the publication or from any facts which show that the publisher was actuated by spite or some indirect motive: Adam v Ward (supra). To destroy the privilege this malice must be the dominant or some improper purpose for the publication. The onus of proof is upon the person defamed and the motive can only be inferred from what the publisher said, did or knew. Lack of belief in what was published is generally conclusive of express malice. Recklessly publishing without considering or caring whether the defamatory material is true, is to be equated with lack of belief: see Horrocks v Lowe (1975) AC 135 per Lord Diplock at pp149-150.

In my view malice is established by the respondent. As I have observed, facts or comments, if that is what they are, asserted in the editorial were not only untrue but quite contrary to Mr Jory's view of the respondent. As he was the only participant in the drafting and publication of the editorial called by the appellant, it is reasonable to accept his long held views of the respondent as those of the appellant and to accept that the appellant did not believe that the defamatory statements were true. As I have said, the suggestion that the respondent may have changed in some way is worth but momentary consideration before rejecting it. It is also reasonable to attribute to the appellant the dominant motive in publishing the article the desire to attack the respondent because he had frustrated the appellant's own political agenda, the fall of the Government and an early election. In all the circumstances, that is an improper motive. I do not accept that robust and extravagant political discussion and the need for politicians to have thick skins should deny a finding of express malice where it exists. The defence of qualified privilege must fail.

Next, it is necessary to consider the defence of fair comment. I reject this defence on the ground that the defamatory context of the first editorial is not comment but fact. I respectfully disagree with those who take a contrary view, including the learned Master. If I am wrong in this conclusion, I would conclude that the comments were not fair comment. The allegation of an "erratic" quality and "duplicity" are, as Mr Whitington argued, essentially comparative. They imply, inter alia, inconsistent conduct on different occasions. The factual basis for such comment was not stated or otherwise identified. To succeed, the appellant must prove one or more facts to justify the comment. As McHugh J observed in Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309, at p340: "The difference between identifying the subject matter or substratum of fact of the comment and the facts which justify the comment is vital. The comment must indicate the subject matter or substratum of fact of the comment."

In my view no such facts were identified or proven. The same must be said with respect to the other defamatory statements within the first editorial. There is substance in the submission that the editorial descended from criticism to mere invective and could not be regarded as fair comment.

I now turn to the common law defences in the context of the second editorial. They are qualified privilege and fair comment. The reciprocity of duty and interest is established and the defamatory statements were in the nature of comment. The learned Master rejected the contention that editorials had been actuated by express malice. With respect to his careful reasoning I do not agree. The second editorial presented a distorted factual basis contrary to the true position which was known to the appellant. That matter, along with the established knowledge of the appellant of the respondent and its own political stance, justify a finding of malice. The defence of qualified privilege should be rejected.

With respect to the defence of fair comment, these matters preclude a finding that the comment was fair in the circumstances. The appellant well knew that it had withheld important facts from the editorial. If the true facts as to when the respondent received the report and the timing of the other significant events were made known, the test "Could any fair-minded person honestly express that opinion on the proved facts?" (Rocca v Manhire (1992) 57 SASR 224 per King CJ at p229), would have to be answered in the negative.

In my view the defence of fair comment was not established with respect to the second editorial and the learned Master erred in deciding to the contrary.

It remains to consider the appeals against the assessment of damages. Both parties complain. The appellant contends that the award is excessive and the respondent contends that the award is manifestly inadequate. The learned Master correctly identified the principles to be applied in assessing damages, including that there were no factors in mitigation. He rejected the suggestion that the appellant had aggravated the damage suffered by the respondent in the manner in which it conducted the trial. He, correctly in my view, regarded the first editorial as the more serious defamation. The appellant's newspaper had widespread circulation and was likely to attract great public interest. The learned Master took the view that aggravated damages should be awarded because the appellant failed to retract the defamatory statements and apologise to the respondent, as had been requested.

I think appellate courts should be slow to interfere with assessments of this nature. The learned Master had every opportunity to assess the respondent and the effect upon him of the defamatory statements and correctly accepted that there is a significant subjective element involved: Cassell and Co Ltd v Broome and Anor [1972] UKHL 3; (1972) AC 1027 per Lord Hailsham LC at pp1070-1071.

The appellant complains of paucity of evidence as to the extent of the injury to the respondent's feelings. However, there was sufficient evidence, including the nature of the defamatory material and the personal characteristics of the respondent which permitted the learned Master to assess accurately this subjective element.

Of course, the Master had rejected the respondent's claim with respect to the second editorial and consequently had assessed damages only on the basis of the first editorial. Had he not done so, he would have had regard to the defamatory material in that editorial when assessing damages. However, in that event I do not think the award should have been increased substantially by reason of that editorial. The award made by the Master is high by standards in this State. I do not say that it is manifestly excessive or that it was made erroneously or unreasonably. However, considering the impact of both editorials, I think the award which he made is not unreasonable for both of them. For that reason I agree with the approach taken by Olsson J.

The appellant also appeals against the order for costs of the action in favour of the respondent. Given the conclusions which I have reached about the defences with respect to the second editorial, there is no basis to interfere with the order made by the learned Master. Even if the appellant had succeeded with respect to the second editorial, I would not have interfered with the discretion as exercised by the Master. It was acknowledged that the length of the trial had not been materially affected by the respondent proceeding with respect to both editorials and the order made by the learned Master was within the proper exercise of discretion.

It follows that I would dismiss the appeal, including the appeal as to damages and costs. I would allow the cross-appeal in so far as it relates to the defences with respect to the second editorial. The cross-appeal as to damages should be dismissed.