NORMAN PETERSON (RESPONDENT) v ADVERTISER NEWSPAPERS LIMITED - [1995] SASC 5018 - SASC 1995 case summary — Zoe

SASASC

NORMAN PETERSON (RESPONDENT) v ADVERTISER NEWSPAPERS LIMITED

[1995] SASC 5018

Supreme Court of SA|1995-06-29|Before: Mr J, Olsson J, Cox J

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At a glance

Source facts

Court

Supreme Court of SA

Decision date

1995-06-29

Before

Mr J, Olsson J, Cox J

Source

Original judgment source is linked above.

Judgment (330 paragraphs)

[1]

For the reasons I have given I am of the opinion that the appellant should succeed in its appeal on the first editorial.

[2]

That leaves the second editorial. It is set out in the reasons of my brother Olsson. The respondent has cross-appealed against the learned Master's rejection of his claim with respect to this editorial. I can express my reasons for rejecting the cross-appeal quite shortly.

[3]

The defence of qualified privilege was established, in my opinion, with respect to the second editorial for reasons that are substantially the same as those applicable to the first editorial. The subject matter of the editorial was within the field of political discussion and so was protected by the privilege. The respondent failed to prove to the Master's satisfaction that the appellant was actuated by malice in publishing the second editorial. That finding was made a subject of the respondent's cross-appeal. Reliance was placed on such matters as the extravagance of the comments, the failure to explain to the readers what little opportunity the respondent had had to read the report, the appellant's reliance on Mr Jory (the sanitized front man, as Mr Whitington called him) instead of the editor and the leader writer to repel an inference of (it was said) at least recklessness, and the want of any subsequent apology or withdrawal. The Master thought that the comment in the second editorial went beyond the bounds of fairness but that it did not establish malice. I referred earlier in these reasons to the burden of proof and the courts' hesitation in making a finding of malice in defamation cases. I would uphold the Master's decision on this point.

[5]

The report was tabled in the House of Assembly at 2.00 pm on 17 November
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.

[132]

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

[139]

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."

Parties

Applicant/Plaintiff:

# NORMAN PETERSON (RESPONDENT)

Respondent/Defendant:

ADVERTISER NEWSPAPERS LIMITED

Cases Cited (29)

NORMAN PETERSON (RESPONDENT) v ADVERTISER NEWSPAPERS LIMITED (APPELLANT) No. SCGRG 93/462 Judgment No. 5018 Number of pages - 56 Defamation - newspapers and printing (1995) 64 SASR 152 [1995] SASC 5018 (29 June 1995)

Commonwealth Constitution; Constitution Act, 1934 (SA) and Defamation Act, 1974 (NSW) s22. Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 68 ALJR 713; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 68 ALJR 765; Kemsley v Foot and ors (1952) AC 345; O'Shaughnessy v Mirror Newspapers Limited (1970) 72 SR (NSW) 347; Lefroy v Burnside (1879) 4 LR Ir 556; Wright v Australian Broadcasting Commission and Anor (1977) 1 NSWLR 697; Clark v Molyneux (1877) 3 QBD 237; Horrocks v Lowe (1975) AC 135; Campbell v Spottiswoode (1863) 3 B and S 769; Coetzee v Union Periodicals Ltd and Ors (1931) WLD at 43; Christie v Robertson (1889) 10 NSWLR 157; Sutherland and Ors v Stopes (1925) AC 47 and Carson v John Fairfax and Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, applied. Milkovich v Lorain Journal Co (1990) 111 L.Ed.2d.1; Ollman v Evans (1984) 750 F.2d.970; Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 and Hawke v Tamworth Newspaper Co Ltd (1983) 1 NSWLR 699, discussed.

This case was tried and judgement delivered before the High Court's decisions in Theophanous and Stephens were handed down. The learned Master considered that the implied constitutional right of freedom of expression that was discussed in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 did not affect the law of defamation. He therefore devoted the greater part of his long and careful reasons for judgement to the defences of qualified privilege and fair comment. For the purpose of the appeal and with the consent of the respondent the defence has been amended to enable the appellant to plead the constitutional defence conformably with Theophanous and Stephens. Rather than simply examine the evidence and the Master's findings in the light of the constitutional defence, I think it convenient to go first to the common law defences that the Master rejected.

I start with the first editorial, published in The Advertiser on 19 November 1992, and the defence of qualified privilege. Until Theophanous it was considered that a newspaper could not generally avail itself of this defence because it could not show that its published statements were made in pursuance of a duty to make them with a corresponding duty or interest on the part of its readers to receive them. Adam v Ward (1917) AC 309. However, the joint judgement in Theophanous makes it plain that the reciprocity requirement will be sufficiently supplied in the case of political statements by the interest of the public at large in a parliamentary democracy in the discussion of political matters. In other words, political discussion is an occasion of qualified privilege. Political discussion includes discussion of the conduct, policies and fitness for office of members of parliament. See Theophanous at
There is no extraneous matter in the first editorial that would take it outside the defence's protection. A common law defence of qualified privilege will be defeated by proof that the defendant was actuated by malice, that is, that he did not believe that his defamatory statement was true or that he was reckless as to its truth or falsity or that he made the statement with ill-will or some other improper motive in the sense of its being the sole or dominant motive for the publication. It may be that, in the case of political discussion, malice now has to be more narrowly defined than this if it is to defeat a defence of qualified privilege (see Theophanous at 726-7) but it is unnecessary to reach a decision about that for the purpose of this appeal. Even on the assumption that the appellant's qualified privilege defence could be defeated by proof of malice as the common law understands that term, the necessary proof in this case was lacking. The language of the first editorial may have been severe and its criticism of the respondent wrong-headed, but this was not a case in my opinion in which malice could be inferred from the contents of the document itself and I do not think that the other evidence upon which the respondent relied as evidence of malice took the matter any further. Had this been a case in which the onus of proof was carried by the appellant, it would have counted against it that it relied predominantly on Mr Jory to prove the newspaper's relevant state of mind and evidently took care to keep the editor and the leader writer out of the witness box. However, malice is not to be inferred lightly. Horrocks v Lowe (1975) AC 135, at 150-1; Calwell v Ipec Australia Ltd ; , at 332. It was for the respondent to prove it, not for the appellant to disprove it. In my opinion it failed to do so. That was the conclusion, indeed, of the learned Master with respect to both editorials and on the appeal the appellant did not challenge that finding as to the first editorial.

It must be said that the rigid distinction that is drawn between fact and comment in the law of defamation - that a word or statement must be one thing or the other - is as unsatisfactory as the like distinction between fact and opinion in the law of evidence. It assumes a dichotomy that it may be very difficult to apply in practice. Many disparaging terms are hybrids, with elements of both fact and opinion about them, and it hardly seems ideal to classify them all as facts even where the factual content is relatively minor. Sometimes it will be possible to classify a word or statement as fact or comment according to the context in which it is used or the circumstances of its publication (Gatley on Libel and Slander (8th ed.) pars.697-706; O'Shaughnessy v Mirror Newspapers Ltd [1970] HCA 52; (1970) 125 CLR 166, at 172 ff), but often a degree of ambiguity or uncertainty will remain. I think one may venture the generalization, however, that the courts should not be quick to identify one of these mixed or ambiguous expressions as being a statement of fact where it occurs in a newspaper editorial, the very place where the reader will expect to find expressions of opinion rather than statements of fact, particularly on political subjects.

It is also of the nature of a newspaper editorial that it assumes a degree of topical factual awareness on the part of the reader. Those who are interested in the political opinions of an anonymous leader writer or the publisher who employs him are hardly likely to have ignored the news pages upon which those opinions are probably based. The State Bank affair and the Royal Commission and their effect on the Government of the day and, indeed, the question of the Government's survival were front-page news at this time and little was needed in this particular editorial to link the comment it contained with the substratum of fact upon which the comment was based. Cf. Kemsley v Foot (1952) AC 345; Pervan v North Queensland Newspaper Company Ltd [1993] HCA 64; (1993) 178 CLR 309. The learned Master deals with these background matters in his reasons. The respondent had promoted changes to the WorkCover scheme and had been correctly reported in The Advertiser earlier in November 1992 as threatening to withdraw his support for the Government because of the union reaction to his proposed amendments. A reader of the editorial would also have known that "yesterday's long but futile Parliamentary debate" was the debate on the Opposition's motion of no confidence which was lost on the casting vote of the respondent. It is in the light of these facts and circumstances that a classification of the words "the erratic Speaker" in this editorial is to be made.

Thirdly, politics in Australia is not a cloistered occupation. Political debate in and out of Parliament is carried on in a vigorous not to say colourful way. Examples of this at the highest level are legion. As Windeyer J said, a man who chooses to enter the arena of politics must expect to suffer hard words at times (Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185, at 210). There is a long tradition in this country of strong criticism and modes of expression in political discussion and that includes the alleged shortcomings of members of Parliament. As long as published comment deals only with a member's political views and actions and even within limits his political motives, he may have to lump, if not like, some pretty harsh public expression of hostile opinion. That does not mean that politicians may be defamed with impunity. It does mean, however, that whether any particular words spoken of a politician are actionable may have to be judged in the light of his occupation - its environment of snap judgments and point-scoring and uncomfortably plain speaking including at times vehement denunciation - and the public's expectations with respect to it. For that reason a criticism of occupational inconsistency is unlikely to be actionable when made of a politician, though it may be if made of a University examiner.

(1995) 64 SASR 152

(1994) 68 ALJR 713

(1994) 68 ALJR 765

(1977) 1 NSWLR 697

(1889) 10 NSWLR 157

(1993) 178 CLR 44

(1977) 2 NSWLR 749

(1983) 1 NSWLR 699

(1994) 68 CLR 765

(1992) 177 CLR 1

(1992) 177 CLR 106

(1975) 135 CLR 321

(1970) 125 CLR 166

(1993) 178 CLR 309

(1992) 57 SASR 224

(1966) 117 CLR 185

(1992) 29 NSWLR 448

(1992) 66 ALJR 658

(1992) 66 ALJR 695

(1985) 3 NSWLR 354

(1992) 57 SASR 224