The Publications Complained Of
85 It is against this background that the Frank Belan Team campaign office despatched the two publications which are the subject of these actions (Exs B and C). They were sent to 5,000 Food 1 Division members in the one envelope. They were not attached to each other. The first document (Ex B) is a letter dated 27 July 1994 on the letterhead of the Frank Belan Team. It is signed in facsimile by Mr Belan. The text of the letter was as follows: (Ex B)
"ATTENTION ALL FOOD 1 MEMBERS
A MESSAGE FROM THE STATE SECRETARY
Dear Members,
Recently, you may have received a pamphlet which I believe was issued by Ted Palmer. This pamphlet contains the misleading and deceitful statement that I, as State Secretary of this union, permitted the officials of the old Millers' union to pay an unjustifiable and indeed wrongful retirement benefit when in fact, they had continuation of employment under the amalgamated union.
I would like to bring to your attention the statement made in this pamphlet - "Belan Set Me Up". Indeed, at no time did I ever Set Palmer Up.
The FACTS are:
- By the abovementioned statement, Palmer confirms that there was some questionable and indeed dubious decisions made regarding the amalgamation with the NUW.
- If Palmer in hindsight believes that his statement is true, then why doesn't he simply pay the money back to the union?
- Why didn't he settle this matter with the union solicitors rather (than) fight bitterly to keep the money?
- Why didn't he direct the other union officials involved to repay the large sums of money involved?
- In fact, it was Ted Palmer who authorised those payments to union officials involved - NOT ME.
By making these ridiculous claims, Ted Palmer is trying to distance himself from a situation he was responsible for, could have corrected at any time, but chose not to.
In light of this, it is little wonder that I as State Secretary no longer have any confidence or trust in Ted Palmer's ability to look after the interests of Food 1 Division members.
Indeed, I believe Ted Palmer is NOT supported by any other official in the National Union of Workers NSW Branch, and they would be foolish to give him support.
In a week's time you will be voting for a person to represent your union. I ask you to support a candidate with commitment to the union cause and workers' rights.
SUPPORT ARTHUR CASEY FOR THE POSITION OF SECRETARY FOOD 1
Yours fraternally,
FRANK BELAN" (emphasis in original)
86 The letter was accompanied by a two sided leaflet (Ex C). The leaflet, on side 1, was in these terms:
"IMPORTANT NUW FOOD 1 MEMBERS
PALMER AND BONER
YOU BE THE JUDGE
THE COURT CASE
Palmer & Boner commenced the court action to stop the Committee of Management looking at their use of union funds.
You now have that opportunity to judge - do you think what they did was right?
THE PAYOUTS
- Palmer and Boner, where Millers (now Food 1) Officials, paid themselves redundancy even before the amalgamation was declared.;
- Blank pre-signed cheques were used;
- They took redundancy payments but did not have one day off work;
- After paying themselves redundancy they kept working full time as Federal and State Officials of the NUW; and
- They used union funds to re-imburse tax deducted from their payments.
ISN'T IT TIME FOR A CHANGE
VOTE 'x' ARTHUR CASEY & THE FRANK BELAN TEAM" (emphasis in original)
87 The other side of the leaflet (Ex C) was as follows:
"SOMETIMES YOU JUST CAN'T BELIEVE YOUR EARS!
'I AM NOT A CROOK …'
Richard Nixon
'I DID NOT INHALE …'
Bill Clinton
'…NO CHILD WILL BE LIVING IN POVERTY'
Bob Hawke
',BELAN TOLD ME TO PAY OUT ALL THE OFFICERS …'
Palmer
Palmer doesn't deny taking $46,525.51 out of the union
He just wants you to blame Frank Belan
Palmer doesn't deny commencing the court case over members money
He just want you to blame Frank Belan for trying to get the money back for union members
Palmer says don't vote for candidates that only look after themselves!
Did Palmer tell you about his $46,525.51 payout?
If you don't know who
to believe …
Isn't it better to stick with
the team you can trust?
VOTE THE FRANK BELAN TEAM"
The Imputations
88 Only Mr Palmer sued in respect of the letter. The following imputations were said to arise from that publication:
(a) The plaintiff deliberately and dishonestly misappropriated union moneys.
(b) The plaintiff to hide his misappropriation of union moneys deliberately and falsely implicated an innocent person as being responsible for the misappropriation of union money.
89 Messrs Palmer and Boner sued both Mr Belan and Mr Casey in respect of the leaflet accompanying the letter (Ex C). The imputations relied upon, in each case, were as follows:
(a) The plaintiff as a union official stole moneys from his union.
(b) The plaintiff deliberately commenced court action to stop his stealing of union funds being detected.
(c) The plaintiff to hide his stealing of union funds deliberately and falsely implicated an innocent person as being responsible for such stealing of union funds.
90 The defendants challenged the capacity of each publication to give rise to these imputations. Levine J found that each publication was capable of giving rise to the imputations pleaded (although he rejected an earlier version of imputation (c) in Ex C) (unreported, 29 March 1996; unreported 3 April 1996).
91 The issue for the Court is whether the imputations do in fact arise. In determining that issue, the publications themselves, and the context within which they were published, are relevant.
92 Should the two documents be regarded as two publications, or one? The actions have been pleaded upon an assumption that Exhibits B and C are separate publications, giving rise to separate imputations. In the action by Mr Palmer, the imputations said to arise from the letter (Ex B) are similar to the imputations said to arise from Ex C (paras (a) and (c)). The wording is slightly different ("misappropriation" being the key word in respect of Ex B, whereas "stealing" is asserted in Ex C), but they are otherwise the same. In circumstances where both publications were included in the same envelope, where nothing else was in that envelope, and both dealt with the same subject matter, should not the two documents be regarded as the one publication? Counsel for the plaintiff and the defendant submitted that, for practical purposes, it does not matter which way the issue is resolved. The damages, were the plaintiffs to succeed, ought to be the same. If they were the one publication, the plaintiffs would have to acknowledge there was no substantial difference between the imputations alleged in respect of Ex B, and those alleged in paras (a) and (c) in respect of Ex C. The better view, in my opinion, is that the two documents together should be regarded as the one publication. However, at the urging of the parties, I will approach the matter in the way in which it has been pleaded, namely, as two separate publications.
93 Examining the publications, as would an ordinary reasonable reader, without a morbid or suspicious mind, and without being avid for scandal (Farquhar v Bottom (1980) 2 NSWLR 380, per Hunt J at 385/386) what impression is made? Each publication must be looked at in its entirety. In determining whether the imputations arise, one is not bound by the literal meaning of the words used. Imputations may arise by insinuation, as well as by direct statement. Hunt J summarised the principles in these words in Farquhar v Bottom at 385/386:
"The ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd ([1964] AC 234 at 258); Jones v Skelton ([1963] SR (NSW) 644 at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408."
94 In Lewis v Daily Telegraph Ltd, referred to by Hunt J, Lord Devlin made the following observation at 277:
"It is very difficult to draw the line between pure construction and implication, and the layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The laymen reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory…"
95 Lord Devlin added (at 285):
"It is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done."
96 Dealing, first, with the letter (Ex B), the context is important. The letter was published to working men and women who were members of a trade union, the National Union of Workers, Food 1 Division. It may be assumed that they are persons who had paid their yearly subscription of union fees. Mr Palmer is the subject of Exhibit B. He was a person standing for election to the position of the Secretary of Food 1 Division.
97 The publication drew attention to a payment made to Mr Palmer as a retirement benefit. The payment was branded "unjustifiable and, indeed, wrongful". The defendant acknowledged, in argument, that "wrongful" was capable of suggesting criminal conduct.
98 The letter dealt with the attempts by Mr Palmer to justify his actions. Essentially he asserted that he was acting upon superior orders, namely those of Mr Frank Belan. That statement was condemned in various ways:
· It was described as "misleading and deceitful".
· It was contradicted by stating that it was "Ted Palmer who authorised those payments to union officials involved - NOT ME" (emphasis in the original).
· It was described as a "ridiculous" claim.
99 The ordinary reasonable reader, in the context of a trade union, with a certain amount of loose thinking, and reading between the lines, would have the broad impression that Mr Palmer had taken union money to which he was not entitled. Moreover, he had invented a story to cover up his crime. He had blamed Mr Belan for something which was his own doing. I am persuaded by the plaintiff that the imputations do arise.
100 The defendant argued that the unstated premise of the letter (as well as the leaflet, Ex C) was that there had been a court case, which Mr Palmer had won. I am not persuaded, however, that the ordinary reasonable reader would have that understanding. The court case is not given much prominence in Exhibit B (unlike Ex C). There is an oblique reference to it in "Fact (4)". The impression is given that Mr Palmer fought bitterly, no doubt by resorting to lies, to avoid having to give the money back.
101 If one examines Exhibit B against the background of Exhibit C (which was in the same envelope, and therefore part of the context), the impression of lies to cover up wrongdoing is reinforced. Indeed, it is not clear from that publication (Ex C) that the court case had been concluded, and that Mr Palmer had won.
102 Turning to Exhibit C, and dealing with the imputations in paragraphs (a) and (c) (being, broadly, those equivalent to the imputations said to arise from Ex B), the context is the same. What is the broad impression which the leaflet would make upon the ordinary reasonable reader, being a trade unionist in the midst of an election? The imputations use the word "stealing". Stealing is taking something that does not belong to you. Relevantly, the suggestion is that the plaintiffs have taken union funds belonging to members ("members' money"). The leaflet uses the words "took", and "taking". Under the heading "The Payouts" it exposed the plaintiff's method, namely:
· They "paid themselves redundancy even before the amalgamation was declared".
· They used "blank pre-signed cheques".
· They used union funds to reimburse tax deducted from their payments.
103 On page 2, again, the word "taking" is used. The leaflet included the following:
"Palmer doesn't deny taking $46,525.51 out of the union" (emphasis in the original)
104 The leaflet also exposed the absence of any justification for taking union funds. It said this:
· They took redundancy payments but did not have one day off work.
· After paying themselves redundancy, they kept working full time as Federal and State officials of the NWU.
· Under the heading "Sometimes you just can't believe your ears" the leaflet recites a number of famous "lies" ("I am not a crook … ", Richard Nixon; "I did not inhale … ", Bill Clinton; "… No child will be living in poverty", Bob Hawke). In that context they include the statement by Mr Palmer "Belan told me to pay out all the officers", with the clear implication that it was false.
· "Palmer doesn't deny taking $46,525.51 out of the union. He just wants you to blame Frank Belan."
105 The defendants argued, first, that there was no accusation of stealing. The plaintiffs were already in control of the funds. However, I believe that the ordinary reader would regard a person as having stolen funds, whether or not those funds were under his control, if he diverted them improperly to his use. Lawyers may call such conduct misappropriation, or by some other label. An ordinary reader, who is a trade union member, would regard taking funds that do not belong to you as stealing.
106 Secondly, the defendants again assert that the assumption behind the article is that the plaintiffs had taken court action and won. The leaflet invites the membership to make an independent judgment upon that result. However, as already explained, I believe that there are difficulties in that suggestion. It is not clear that the court case is over, and has been won.
107 I am persuaded that imputations (a) and (c) do arise from Exhibit C.
108 Imputation (b) combines two ideas. I have dealt with the first already, namely whether the leaflet, as a whole, suggested that the plaintiffs had stolen union funds. I believe that imputation does arise. The second idea is that, having done that, the plaintiffs took defensive action to avoid being found out. The leaflet opens with these words:
"Palmer and Boner commenced the court action to stop the Committee of Management looking at their use of union funds."
109 The defendants made the following submission in respect of this imputation:
"In addition to the difficulties discussed above in relation to 'stealing', this imputation confronts the fact that the words of the publication do not speak of 'detection' but of 'looking at' - implying that the payments were already known."
110 However, the clear implication, arising from the leaflet, is that the Committee of Management wanted to follow the money trail to detect and expose the wrongdoing which the leaflet then does expose. I believe that imputation (b) also arises.
111 The defendants conceded that, were I to find (as I now have) that the imputations arose, that they were defamatory of each of the plaintiffs.
The Publication by the Defendants
112 In Webb v Bloch ([1928] 41 CLR 331), Isaacs J quoted with approval the following, on the issue of publication: (at 364)
"In Parkes v Prescott ((1869) LR, Ex 169 at p 173), Giffard QC quotes from the second edition of Starkie: 'All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.' In R v Paine ((1696) 5 Mod 163 at p 167) it is held: 'If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide." (emphasis in original)
113 Here, Mr Belan acknowledged his responsibility for the dissemination of both the letter and leaflet (Exs B and C). They were shown to him. He read them. He gave his approval. He signed the letter. It was his expectation that they would be distributed to members of the Food 1 Division.
114 The actions against Mr Casey arise out of the publication of the leaflet, Exhibit C. Mr Casey made no concession that he was responsible for the distribution of that document. He acknowledged that he was responsible for the preparation of the letter, Exhibit B. His campaign manager, his brother Thomas, prepared that letter, which was then shown to Mr Belan for approval. However, his brother had not prepared the leaflet, Exhibit C. He did not know who had.
115 Mr Casey did, however, recall having seen Exhibit C before its distribution. It was shown to him at the campaign office of the Frank Belan Team by a campaign worker. He believed it was shown as a matter of courtesy. The decision had already been taken by Mr Belan to distribute the leaflet.
116 Mr Casey recalled folding the letters (Ex B) so that they could be placed in envelopes, and thereafter sent to Food 1 members. He saw other campaign workers folding other material. However, at no time, in his view, did he personally authorise the distribution of the leaflet, Exhibit C.
117 The recollection of Mr Belan, as to the involvement of Mr Casey was somewhat different. Both Exhibit B (the letter) and Exhibit C (the leaflet) were designed to assist Mr Casey, by denigrating his rival, Mr Palmer (as well as Mr Boner in the case of Exhibit C). The leaflet, indeed, included these words:
"VOTE 'x' ARTHUR CASEY AND THE FRANK BELAN TEAM"
118 Mr Belan gave the following evidence: (T 113)
"Q. Before the adjournment your evidence was pretty clear, wasn't it, that both documents were given to you by Mr Arthur Casey, weren't they?
A. And authorised by me, yes.
Q. That was your clear recollection before the adjournment, wasn't it?
A. Yes, still is."
119 I believe, as a matter of probability, that Mr Belan's version is correct. Mr Casey was the beneficiary of both documents. He took it upon himself to arrange a response to Exhibit 1. The two documents, Exhibits B and C. are said to be that response. Both documents went out together in the same envelope. Mr Casey's assertion that he arranged one, but not the other, and had no idea who arranged the other, even though it dealt with the same subject, and he was the beneficiary, is improbable.
120 Mr Casey's responsibility for the publication of the leaflet is apparent from other evidence which he gave. He said this: (T 154)
"Q. You understood that you were agreeing to Mr Belan on occasions during the campaign putting out brochures on behalf of the Frank Belan team which would be included on your behalf?
A. Frank put out - the word we use is campaign material on behalf of the entire team."
121 Elsewhere, Mr Casey said this: (T 155)
"Q. You were prepared to go along with Mr Belan deciding to spend funds on your behalf?
A. I was prepared for Frank, as a member of the team, to get campaign material out that would protect my position."
122 I believe, in these circumstances, that Mr Casey published Exhibit C.
123 The plaintiffs, therefore, have established that the defendants published defamatory imputations concerning them. I shall now deal with the defences raised by the defendants.
Defence under s 13 of the Defamation Act 1974
124 The defendants, late in the hearing, with the consent of the plaintiffs, filed amended defences in each action. The defences, in each case, pleaded the defence provided by s 13 of the Defamation Act 1974, that, in the circumstances of publication of the matter complained of, the person defamed was not likely to suffer harm.
125 Counsel for the defendants, in submissions, did not seek to support that defence (T 160). The defendants, of course, bear the onus. The publication concerned rival candidates in an election. The imputations were serious. The plaintiffs were each accused of stealing union funds, and falsely implicating an innocent person in their crime. The issue was known by the defendants to be sensitive. Serious harm to the plaintiffs was likely. The defence, therefore, is not made out.
Qualified Privilege at Common Law
126 The defendants rely upon the defence of qualified privilege at common law. It is said to arise in two ways:
· First, the statements were made on a subject matter in which both the defendants, and the persons to whom the statements were made, had a legitimate common interest.
· Secondly, the statements were made in reply to an attack, namely the publication of the document bearing Mr Palmer's photograph (Ex 1).
Qualified Privilege Through a Common Interest
127 The letter (Ex B) and leaflet (Ex C) were, of course, published during a union election. They were described as "campaign literature". Broadly, they deal with the conduct of rival candidates. They were, if true, relevant to the fitness for office of such candidates. The publications were distributed by mail to Food 1 members. They were distributed, therefore, to electors in the forthcoming election, and to no-one else.
128 The defendants submitted that communications to electors by candidates in the course of an election are quintessentially communications on an occasion of qualified privilege. The law presumes that the defendant believes the truth of the assertions being made (Radio 2UE Pty Limited v Parker (1992) 29 NSWLR 448 at 462, per Clarke JA).
129 Attention was drawn to Braddock v Bevins (1948) 1 KB 580, where the Court of Appeal took what The Australian Defamation Law and Practice described as a "robust" approach to the issue (Tobin & Sexton para 14,025). The plaintiff was a member of the House of Commons. She was also an active supporter of a particular candidate running for office on the Liverpool City Council. The rival candidate published an election address to the electors of the relevant Ward. The plaintiff alleged the address defamed her. On the issue of qualified privilege, the Court of Appeal said this: (p 590)
"In principle, and quite apart from such assistance as can be derived from authority, we should have thought it scarcely open to doubt that statements contained in the election address of one candidate concerning the opposing candidate, provided they are relevant to the matters which the electors will have to consider in deciding which way they will cast their votes, are entitled to the protection of qualified privilege. The electors clearly have an interest in receiving a communication of that kind. Indeed, the task of the electors under democratic institutions could not be satisfactorily performed if such a source of relevant information bona fide given were to be cut off by the fear of an action for libel. As will be seen, there is a good deal of authority for the view that qualified privilege extends to communications by one elector to another in relation to a candidate at an impending election. It would be curious if the interest and duty subsisting between one elector and another were to be rated higher in this respect than the interest and duty subsisting between an elector and a candidate, and we are unable to see any ground for such a distinction …"
130 In Lang v Willis (1934) 52 CLR 687, the High Court was more circumspect. Statements were made in the course of a parliamentary by-election to the press. They characterised the leadership of the New South Wales Labor Party as a "dictatorship". Evatt J said this: (at 672)
"One further matter: I disagree with the opinion expressed in the Supreme Court that the facts proved showed that the occasions of all seven speeches were 'unquestionably privileged' (Maxwell AJ). Of course it is possible that a privileged occasion will arise in relation to a speech at a public or an election meeting. But the common law warrants no such general doctrine of privilege as was here asserted on behalf of the defendant, and apparently by the majority of the Full Court. The general question of privilege I had occasion to discuss in the recent case of Telegraph Newspaper Co v Bedford ((1934) 50 CLR 632). In my opinion the theory that privilege attaches to every occasion upon which speakers at election meetings choose to broadcast before large gatherings opinions or information about one or other of the candidates cannot be supported."
131 Here, of course, the publication was confined to the members of the Food 1 Division. The material was published only to those people who had a common interest (cf Guise v Cauvelis (1947) 74 CLR 102).
132 In Howe v Lees (1910) 11 CLR 361, O'Connor J said (at 377):
"The interest relied on as the foundation of privilege must be definite. It may be direct or indirect, but it must not be vague or insubstantial. So long as the interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rules."
133 In Austin v Mirror Newspapers (1985) 3 NSWLR 354, the Privy Council defined the common law requirement in these words:
"… an interest material to the affairs of the recipient of the information such as would, for instance, assist in the making of an important decision or the determining of a particular course of action."
134 Applying that test, the occasion would appear to be one of qualified privilege. However, the plaintiff drew attention to the remarks of O'Connor J in Hay v The Australasian Institute of Marine Engineers (1906) 3 CLR 1002: (at 1016)
"The privilege here, if it is to be of any value at all, is to publish, not an expurgated edition, but a complete report of the resolutions of the conference as they were arrived at, to all the members of the Institute, in order to give them that right which they possess as members to have placed before them a full and accurate account of everything said and done. If that is the nature of the occasion, prima facie it is the duty of the Institute to publish to members of the Institute the determination of the resolutions of the conference just as they were passed."
135 The authorities emphasise the importance of the particular circumstances in each case. Evatt J (in Telegraph Newspapers Co Limited v Bedford (1934) 50 CLR 632 at 657) described the characterisation of the occasion as one of "extreme delicacy to determine whether, in any given circumstances, the claim of privilege should be allowed". No doubt the electors had an interest in receiving an accurate account of the competing versions of the court action, and what the court had found. The plaintiff submitted, however, that the electors could have no interest in a misleading, expurgated version of those facts.
136 The submission has some attraction. It can hardly be in the interests of electors that they should receive misinformation. In the case already referred to (Telegraph Newspapers Co Limited v Bedford) Evatt J said this: (at 655)
"Considerations of public good and public policy run through all the common law cases on this topic. In the year 1837, in Todd v Hawkins ((1837) 8 C&P 88 at 93, 173 ER 411 at 413), Alderson B said: 'It is for the common good of all that communications between parties situated as those were, should be free and unrestrained.'"
137 The importance of considerations of public policy were also identified by Jordan CJ in Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 362:
"Whether or not an occasion is one of qualified privilege depends upon considerations of public policy. The cases on this point were collected by Evatt J in Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 655-658. All the circumstances in which the defamatory statement for which privilege is claimed was made must be taken into account, and, in the light of them, it must be determined whether it is in the interest of the community, that is, the good of society in general, that the statement, though defamatory, should be made with impunity. It is of course not necessary that the facts of the particular communication should be of interest to the public at large. It is necessary only that it should be for the general good of the community that such a communication should be made with impunity so far as the law of defamation is concerned. Howe v Lees (1910) 11 CLR 361 at 368-9; Austin Digest 404."
138 I believe that the plaintiffs' submission, in the end, amounts to a requirement that the defendant establish the truth of what has been said, and that they behaved reasonably in the circumstances (cf s 22(1)(c) Defamation Act 1974) before they can claim privilege. Ordinarily these are not requirements of an occasion of qualified privilege. Falsity, and extravagance may be relevant in the context of malice. But that is a different issue. I therefore believe that the publication was made on an occasion of qualified privilege.
Reply to Attack
139 I should deal with the second basis upon which the defendants put their case. Upon the analogy of the criminal law, a person may defend himself against written or verbal attacks. As with the criminal law, however, the response must be reasonably commensurate with the attack, although "no nice scales will be used" (Adam v Ward (1917) AC 309, per Lord Dunedin at 330).
140 Here, a number of issues arise:
· First, can the original document (Ex 1) be characterised as an attack?
· Secondly, if it can, whose attack was it, and does it matter?
· Thirdly, do the documents, Exhibits B and C, amount to a reply to an attack?
141 Dealing with these issues, Exhibit 1 (supra p 32), was a documents which, itself, was said to have been produced because Mr Palmer had been "slandered" in the rice growing area, where there were many Food 1 members. The document included a photograph of Mr Palmer, and a statement attributed to him. The balance of the leaflet was highly critical of Mr Belan's administration, and was unquestionably an attack. The documents ultimately published by Mr Belan, however, (the letter (Ex B) and leaflet (Ex C)) were not directed towards these criticisms. Rather, they responded to the quotation attributed to Mr Palmer.
142 That quotation asserted that Mr Belan had directed Mr Palmer to pay out the officers of the Millers' Union in accordance with the rules. It also said that "Mr Belan set me up". The statement concluded with a warning (from Mr Palmer) that members "should not be misled by what Belan and his henchmen have been saying".
143 I believe these words amounted to an attack upon Mr Belan, and his administration. The imputation was that Mr Belan, through his allies, was spreading lies concerning certain payments to officers of the Millers' Union; that, in fact, he had ordered those payments, and later denied his involvement, thereby setting up Mr Palmer.
144 It is not necessary that the defendants, in order to claim the privilege, need to respond to the whole of the attack, or do so on the one occasion. Provided the response (Exs B and C) can be characterised as a reply to the attack within Exhibit 1, or any part of it, that, in my view, is enough.
145 Whose attack was it? The document, Exhibit 1, does not identify a publisher. It carried the photo of Mr Palmer, and a statement attributed to him. It was otherwise anonymous. The campaign slogans in the lower part of the document resembled other literature promoted by the Rank and File Team.
146 Mr Belan, in his letter, Exhibit B, opened with these words:
"Recently, you may have received a pamphlet which I believe was issued by Ted Palmer."
147 There is no suggestion that Mr Boner had anything to do with the production or publication of Exhibit 1. However, Mr Palmer, before its publication, discussed the desirability of producing a document with members of the Rank and File Team. It came to his notice, through that team, that accusations of dishonesty were being made against him. He did not compose the leaflet, Exhibit 1, nor furnish the photograph or quotation which were used. Nonetheless, he discussed the nature of the response which should be put out (T 45). He knew a document would be produced (T 47). He assumed that he would be shown that document before it was disseminated. Although in some respects he waivered in his answers, I accept the following evidence which he gave: (T 53)
"Q. You didn't ask them to show it to you after the approval before they put it out, did you?
A. I was an ex-union official. You always want to see anything that's put out under presumably your signature or under your - so I'm quite certain in my own mind I had said, 'You let me see it before it goes out?' I'm certain I would have asked to see it before it went out, but I didn't get to see it."
148 He was not shown the document before its dissemination, and was disappointed when he saw it. He would have worded differently the quotation attributed to him (T 60), although he did not disown the accuracy of the words "Belan Set Me Up". There was, incidentally, no evidence before Hill J, or before me, that, in giving the direction to discharge liabilities, Mr Belan had deliberately led Mr Palmer into a trap. Rather, it appears, as will be discussed below, that Mr Belan may not, when giving the direction, have appreciated the monetary implications under Rule 54 of the Millers' rules.
149 Was Mr Palmer responsible, in these circumstances, for Exhibit 1, such that it may be characterised as his attack? With some hesitation, I believe that he was. He discussed its production. He gave his approval to the production of a document. He assumed he would be shown a copy of the draft. In the context of an election, where time was of the essence, the adoption of a passive role, where he made no inquiry, and did not supervise what was being done in his name, does not, in my view, relieve him of responsibility for what was produced.
150 I, therefore, move to the third question: can the publications, Exhibits B and C, be characterised as a reply to an attack? There is little doubt that each purported to be a response to Exhibit 1. Exhibit B specifically quoted the words "Belan Set Me Up" and dealt with the general subject matter of retirement benefits. Likewise, Exhibit C repeated words taken from the quotation attributed to Mr Palmer, namely:
",BELAN TOLD ME TO PAY OUT ALL THE OFFICERS .."
Palmer
151 The leaflet, Exhibit C (unlike Ex B), repeatedly named Mr Boner as well as Mr Palmer. Although Mr Boner had nothing to do with the attack, the victim may, in his response, deal with the complicity of third parties, provided the allegations against them are not wholly unconnected with the defence (Gillooly, The Law of Defamation in Australia and New Zealand, p 178). In Loveday v Sun Newspapers Limited (1938) 59 CLR 503, Dixon J said: (at 520)
"But, if A attacks B and in order to defend himself B reasonably publishes defamatory matter of C, who has been no party to the attack, B's privilege will protect him as against C (Coward v Wellington ((1836) 7 Car & P 531; 173 ER 234)."
152 The plaintiff submitted that the privilege was a shield and not a sword, whereas the publications, which were supposedly a response to Exhibit 1, were in the nature of a counter offensive, not warranted by the attack. Attention was drawn to News Media Ownership v Finlay (1970) NZLR 1089, where North P said this: (at 1095)
"Mr McKay was right when he submitted that while violence of language is not in itself enough to take away privilege even though it may provide evidence of malice, yet privilege is lost if the reply becomes a counter attack raising allegations against the plaintiff which are unrelated or insufficiently related to the attack he made on the defendant. In other words he cannot claim the protection of privilege if he decides to bring fresh accusations against his adversary."
153 When responding to an attack, it is sometimes difficult to distinguish between response and counter attack. Indeed, Dixon J in Penton v Calwell (1945) 70 CLR 219, appeared to contemplate that a measure of counter attack was permissible. He said this: (at 233)
"When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion." (emphasis added)
154 The publications complained of and the response dealt with the same subject (Ex 1). They dealt with the payment of benefits to former officers of the Millers' Union, and the court action. They did not introduce fresh allegations. The response (Exs B and C) certainly had considerably more punch than the attack. Nonetheless, I believe it was within permissible limits.
155 I further believe that the defence is available to both defendants, not simply Mr Belan. The attack (Ex 1) named Mr Belan. However, it was a document issued in the context of an election in which Mr Belan was leading the Frank Belan Team. An attack upon him was an attack upon the team. Mr Casey was a member of that team. He was entitled to participate (by publication) in the response.
The Inclusion of Irrelevant Material
156 The privilege attaches only to statements relevant to the occasion, or which are in reply to the attack. The following statement in Exhibit B seems to me to be irrelevant to any attack in Exhibit 1:
"Indeed, I believe Ted Palmer is NOT supported by any other official in the National Union of Workers NSW Branch, and they would be foolish to give him support."
157 However, that statement may be regarded as material which the defendants were entitled to communicate to electors, protected by their common interest.
158 Exhibit C, in the reference to $46,525.51, included payments for accrued leave, sick pay, holiday pay and other entitlements. The sum relating to the retirement benefits under Rule 54 was, in the case of Mr Palmer, $21,368.72. The inclusion of the higher amount was, implicitly, the inclusion of irrelevant material.
159 However, I believe, subject to the plaintiff establishing malice, that the defence of qualified privilege at common law has been made out.
Qualified Privilege Under the Defamation Act 1974
160 The defendants rely upon s 22 of the Defamation Act 1974. It is in these terms:
"22(1) Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving to him information on that subject; and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication."
161 It is convenient to move directly to a consideration of s 22(1)(c). The matters relevant to the satisfaction of that requirement were considered in Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697, where Reynolds JA said this: (at 712)
"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 reasonable 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."
162 A helpful analysis has also been provided by Hunt AJA in Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374, where his Honour said this: (at 387)
"In my opinion, all of those cases support the following propositions in relation to the requirement of s 22(1)(c) that the conduct of the defendant in publishing the matter was reasonable in the circumstances;
(1) The conduct must have been reasonable in the circumstances to publish each imputation fround to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. ….
(2) If the defendant intended to convey any imputation in fact conveyed, he must … have believed in the truth of that imputation.
(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish:
(a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and
(b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed."
163 Having given a number of illustrations, his Honour continued: (at 388)
"(4) The defendant must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;
(b) that his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers."
164 Turning to the evidence, broadly, there are two possibilities. The first is that Mr Belan, as he proclaimed, was ignorant of the evidence before Hill J, and the judgments given by his Honour in respect of the merits and costs (apart from the orders made). On this view, Mr Belan had failed to undertake what may be thought to be basic research before publishing Exhibits B and C.
165 The second alternative is the one that I favour as a matter of probability (supra p 26). Mr Belan was well aware of the evidence of Mr Palmer. He was well aware of the critical findings of Hill J, both as to the merits of his dispute with the former officers of the Millers' Union, and the order for costs. Notwithstanding that awareness, he nonetheless published Exhibits B and C.
166 In either case, it appears to me plain that Mr Belan is not able to satisfy the stringent requirements of the test formulated in respect of s 22(1)(c). The documents published, in the conclusions they offer, are, in a number of respects, inaccurate. I will deal more fully with those inaccuracies in the context of the defence of Comment below. The documents complained of (or at least Ex C) purported to deal with the court case, and the retiring allowances, and yet omit the following matters (which appear in the various judgments of Hill J), which I regard as fundamental to an accurate and reasonable presentation of the facts:
(a) That the retirement allowances related to past service.
(b) That no provision had been made to carry forward such benefits in the new Union.
(c) That, in these circumstances, his Honour had found that Mr Belan had directed the Millers' Union, as one would expect, to discharge all liabilities before the amalgamation took place.
167 To publish the imputations contained in Exhibits B and C, in circumstances where these matters were omitted, was misleading and unfair. Mr Belan knew only too well that the impression created was misleading. His conduct, as publisher, in these circumstances, was, therefore, not reasonable in my view.
168 Is Mr Casey able to take advantage of the defence provided by s 22? Mr Casey gave evidence that he relied upon Mr Belan for the facts. He saw some transcript of the court case. He also was shown certain ledgers. However, he did not read the judgments of Hill J, although he had been put on notice of its terms, having read the plaintiffs' pamphlet (Ex G).
169 I do not believe that Mr Casey's conduct in publishing Exhibit C was reasonable, he having not done what I regard as basic research. I am not satisfied that either defendant has made out the defence of Qualified Privilege under the Defamation Act 1974.
The Defence of Comment
170 It is convenient to postpone, for the moment, the consideration of whether the plaintiffs have proved that the publications were actuated by malice, and to consider, instead, the defence of Comment which is also raised.
171 The defence is dealt with in Division 7 of the Act. A number of conditions must be satisfied before the defence is available,.
172 First, the defendants must establish that the imputations were conveyed as a comment, rather than as statements of fact (Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448, per Clarke JA at 468). This is done by establishing two matters (Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474) per Hunt J: (at 490)
"(a) whether the ordinary reasonable reader would have understood the statement as having been intended by its author to be an expression of opinion upon sufficiently indicated material; and
(b) whether the opinion is one which an honest man might have held on that material."
173 Secondly, the comment must satisfy one or other limbs of s 30(3), which is in these terms:
"30(3) The defences under this Division are available as to any comment if, but only if:
(a) the comment is based on proper material for comment; or
(b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment."
A statement of fact which is substantially true is proper material for comment (s 30(2)). Hunt J in Bob Kay Real Estate v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505, explained the difference between the requirements of s 30(3)(a) and (b) in these terms: (at 517)
"The point made is that, where the defendant has established that the whole of the basis for the comment is proper material for comment, what was published is comment if the opinion is one which might honestly be based on that material; but where the defendant has only established that part of the basis for the comment is proper material for comment, what was published can be defended as comment only if the opinion is one which might reasonably be based upon that which has been established to be proper material for comment. The difference between the two concepts is substantial: cf Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 461. It is obvious from what was said there, I suggest, that a jury would be quite lost if the trial judge did not tautologically use the word 'honest' in order to draw a distinction between the two concepts involved."
174 Thirdly, the comment must relate to a matter of public interest (s 31).
175 Having satisfied these requirements, the defence may yet be defeated if the plaintiff were able to show that, at the time the comment was made, it did not represent the opinion of the defendant (s 32(2)).
176 Dealing with these issues somewhat out of order, it is convenient to dispose of the third condition, namely that the comment must relate to a matter of public interest. A useful commentary upon the concept of public interest was provided by Lord Denning in London Artist v Littler (1969) 2 QB 375 at 391:
"I would not myself confine it within narrow limits. Whenever a matter is such as to effect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or to others, then it is a matter of public interest on which everyone is entitled to make fair comment."
177 See also Bellino v Australian Broadcasting Commission (1996) 185 CLR 183 at 215.
178 In the context of a union election, the candidates were entitled to have their say, and the electors, no doubt, were interested in what they had to say. I believe comments relating to the union election were comments relating to a matter of public interest within the meaning of s 31.
179 Turning next to the second condition, the plaintiff asserted that a number of statements in Exhibits B and C were false, so that the defendants were obliged to satisfy the more stringent requirements of s 30(3)(b). I will now deal with that suggestion.
180 In respect of Exhibit B, the letter signed by Mr Belan, the plaintiff asserted that the following facts within that letter were false:
(a) "This pamphlet contains the … statement that I, as State Secretary of this union, permitted the officials of the old Millers' union to pay …. (a) retirement benefit when in fact, they had continuation of employment under the amalgamated union."
(b) "In fact, it was Ted Palmer who authorised those payments to union officials involved - NOT ME."
(c) "… Ted Palmer … was responsible for" (the payments).
(d) (Ted Palmer) "fought bitterly to keep the money".
181 I have dealt with the first three matters (paras (a) to (c)) already (supra pp 17-19). I am satisfied, as a matter of probability, that Mr Belan told Mr Palmer to pay out the officers of the Millers' Union before amalgamation, as required by law (in respect of annual holidays etc), and the union rules (in respect of retirement benefits under Rule 54). I accept, therefore, that the defendants have not demonstrated, as a matter of probability, that the statements in (a), (b) and (c) are substantially true.
182 In respect of para (d), the plaintiff asserted that it was simply untrue to suggest that Mr Palmer had fought bitterly to keep the money. On 19 October 1992 (supra p 13, para 31), Mr Palmer spoke to Mr Belan concerning the repayment of the money. A special meeting of Branch Secretaries was convened. Mr Palmer was advised that, even were the money repaid, no guarantee could be given that charges would not be laid (Ex E, p 478). That conversation took place before charges were laid on 28 October 1992 (supra p 13). Indeed, Hill J made the following comment before determining that it was appropriate to award indemnity costs (Ex E, p 478):
"In my view the applicants made all reasonable attempts to settle the matter; and they made those attempts prior to the institution of these proceedings and indeed prior to the actual laying of charges by Mr Belan - which were laid on 28 October 1992 in accordance with the resolution of the COM on that day."
183 The defendants, therefore, have not satisfied me that the matter asserted in para (d) is substantially true.
184 Accordingly, in respect to the publication of Exhibit B, para (a) to (d) cannot be regarded as proper material for comment.
185 Turning, then, to the leaflet, Exhibit C, the plaintiff asserted the following facts were false (Ex R):
(a) "Palmer & Boner commenced the court action to stop the Committee of Management looking at their use of union funds."
(b) Under a heading "The Payouts", the publication asserted that the plaintiffs "paid themselves redundancy", "took redundancy payments" and did certain things "after paying themselves redundancy".
(c) "They used union funds to re-imburse tax deducted from their payments."
(d) The statement "Belan told me to pay out all the officers … Palmer" in the context of the heading "Sometimes you just can't believe your ears!", and the three "great lies" which were recited. The plaintiffs say that it was false to suggest that Mr Palmer's statement was a lie.
(e) "Palmer doesn't deny taking $46,525.51 out of the union", where only $21,368.72 related to payments under Rule 54. Only that sum, and the tax related to it ($339.19), formed the basis of the charges, and the case before Hill J. It was false to suggest the higher sum.
(f) The statement that "the court case" was commenced "over members' money" is false. That was not the reason for the court case, and it was not members' money.
186 Dealing with each of these matters, in respect of para (a), the plaintiff asserted that the court action was to prevent oppression, and a departure by the union from its Rules. The order sought was to restrain the Committee of Management from proceeding to hear the charges. It was not aimed at preventing the Committee from examining, if it chose, the use of union funds by former officials of the Millers' Union.
187 There is some merit in that submission. However, the Committee of Management was proposed to examine the use of union funds by Messrs Palmer and Boner (and another officer). They had in mind doing so, no doubt, in the context of the charges which had been preferred. On balance, I believe that the statement is substantially true, and accordingly is proper material for comment.
188 Turning next to para (b), Rule 54 referred to these payments as a "retiring allowance". The difference in the nomenclature is important. A retiring allowance suggests a payment for past service. That is precisely what Hill J found was the nature of the payment. The word "redundancy", coupled, as it was on two occasions in Exhibit C, with a statement (which was true) that the officials did not have a day off work, was quite misleading (cf R v Lord Kylsant (1932) 1 KB 442). It may be permissible to use the word "redundancy" loosely to describe the payment (cf McNally & Co letter 29 October 1991 (supra p 9, para 23)), provided that it is made clear, first, that the payment was, under the union rules, an accrued benefit based upon past service; secondly, that no provision had been made for it to be carried forward into the National Union of Workers; and, thirdly, that the officers had no security of tenure in that union, but held office subject to being re-elected every four years. I believe that, in the context in which it was used in Exhibit C, the word "redundancy" was false. The defendants, therefore, have not persuaded me that it was substantially true, and therefore, proper material for comment.
189 The statement in para (c) was also false. Tax was deducted which the auditors advised should not have been deducted. The responsibility for the payment of tax rested with the individual officers, not the union. It was not true to describe the money paid for the purposes of reimbursement as "union funds". That statement falsely suggested that the officers had used money to which they were not entitled to discharge a liability which was truly theirs. I do not, therefore, regard the statement in para (c) as proper material for comment.
190 Paragraph (d) has been dealt with. It was false to suggest that Mr Belan had not told Mr Palmer to pay out all the officers. He had. The statement, likewise, was not proper material for comment.
191 Dealing with para (e), it was not substantially true, in the context of the court case, and the reference to "redundancy" (being Rule 54 payments) to speak of Mr Palmer "taking $46,525.51". He was paid $21,368.72. It is repeated at the end of the same page ("Did Palmer tell you about his $46,525.51 payout?"). The reference to "payout" is a reference to "the payouts" described on page 1 of the leaflet. They, in turn, are referable to the court case, and Rule 54. The figure in the leaflet, therefore, is false. The statements which include that figure are not proper material for comment.
192 Finally, para (f) is a misdescription of the nature of the court case, and the entitlements of Messrs Palmer and Boner to payments under Rule 54. It was false to describe such monies as "members' money". Accordingly, that statement is not proper material for comment.
193 Accordingly, the defendants have not satisfied s 30(3)(a). For the purposes of dealing with s 30(3)(b) it is convenient to assume, in the defendants' favour, that the imputations to which the publications gave rise were conveyed as comment, rather than as statements of fact. The issue then becomes whether, based on the material within Exhibits B and C which is substantially true, the comment made by the defendants represents an opinion which might reasonably be based upon such material. Both publications are emasculated when one disregards that material which is not proper material for comment. I do not believe, based upon what remains, that it can be said that the defendants have established that the comments made represent an opinion which might reasonably be based upon such material.
194 Finally, there are issues arising under s 32(2). The principle is encapsulated in Gillooly The Law of Defamation in Australia and New Zealand, in these words: (at 140)
"Where the defendant is the maker of the comment, the s 32 defence will only be forfeited if the plaintiff proves that 'the comment did not represent the opinion of the defendant' (s 32(2)). The motives of the commentator (including whether he or she is actuated by malice) are irrelevant - the issue is whether the commentator genuinely believed in the truth of the comment (Bickel v John Fairfax & Sons [1981] 2 NSWLR 475 at 491, 493). Hence if a defendant asserts that he or she did not intend to convey the imputation found by the tribunal of fact to have been conveyed by way of comment, then the defence must fail since 'a person who states that he did not intend to convey a particular defamatory imputation cannot reasonably be taken to have held the opinion represented by that imputation' (Lloyd v David Syme (1985) 3 NSWLR 728 at 736, per Lord Keith)."
195 Here the defendants may each be regarded as the maker of the statements. The plaintiffs' administered interrogatories to each defendant, asking whether they intended to convey each of the imputations which the Court has now found were conveyed. Each defendant responded in the negative. This is a further reason why the defence of Comment is not made out.
Was the Publication Actuated by Malice?
196 Having found that the defence of qualified privilege at common law was established by the defendants, it is necessary to consider whether the plaintiffs have established that the defendants were actuated by malice.
197 The onus rests upon the plaintiffs to prove malice. Judges and juries are enjoined "to be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege …" (per Lord Diplock, Horrocks v Lowe [1975] AC 135 at 149).
198 The motivation of the defendant, in publishing the defamatory material, is crucial. Lord Diplock, in the same case, said this: (at 149)
"So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. 'Express malice' is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove."
199 Knowledge that someone will be injured by the publication is not enough, if the defendant is nevertheless acting in the bona fide protection of his own legitimate interests.