Supreme Court of SA|2000-09-08|Before: Per Williams J, Prior J, Martin J

ROBERTS & CASE v BASS No. SCGRG-00-325 [2000] SASC 297 (8 September 2000)

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE DAMAGES Per Williams J (Prior J concurring) Natural and ordinary meaning of published words - defendants' obligation to deal with meaning alleged by plaintiff - right of defendant to propose and justify alternative meaning - application of Poly Peck principle. Honest belief as a necessary element in the defence of qualified privilege - effect of recklessness - identification of improper dominant motive and its relevance to qualified privilege. Damages - circumstances of aggravation - exemplary damages and effect of successful prosecution. Assessment of damages in case of related publications during course of Parliamentary election campaign. Held - dismiss appeals by first and fourth defendants with respect to liability - dismiss cross-appeal by plaintiff in respect of damages ($5,000) awarded against fourth defendant - allow cross-appeal by plaintiff in respect of award of damages against first defendant - increased to $100,000 in respect of three publications. Martin J. Whether first and fourth defendants possessed a dominant motive to injure plaintiff - whether defence of qualified privilege failed due to fourth defendant publishing untrue defamatory matter recklessly. Held: dismiss appeals by first and fourth defendants - dismiss cross-appeal by plaintiff in respect of damages awarded against fourth defendant - allow cross-appeal by plaintiff in respect of award of damages against first defendant.

Electoral Act 1985 (SA) s 113(2)(4), referred to.
Horrocks v Lowe [1975] AC 135;
Barbaro v Amalgamated Television Services (1985) 1 NSWLR 30;
Triggell v Pheeney (1951);
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44;
Peterson v Advertiser Newspapers [1995] SASC 5018; (1995) 64 SASR 152;
Poly Peck (Holdings) PLC v Trelford [1986] 1 QB 1000;
Woodger v Federal Capital Press (1992) 107 ACTR 1;
AB v South West Water Services Ltd [1993] QB 507;
Potts v Moran (1976) 16 SASR 284, applied.
Khashoggi v IPC Magazines Ltd & Anor [1986] 1 WLR 1412;
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519;
Adam v Ward (1917) AC 309;
Angel v HH Bushell & Co Ltd [1986] 1 QB 813;
Lange v ABC [1997] HCA 25; (1997) 189 CLR 520;
Thompson v Commissioner of Police [1997] EWCA Civ 3083; [1997] 2 All ER 762, discussed.
Chakravarti No 2 (1998) 72 SASR 361, considered.
Horrocks v Lowe [1975] AC 135;
Devries v Australian National Railways Commission (1993) 177 CLR 472, applied.

Counsel: MR P HEYWOOD-SMITH - Solicitors: DAVID WILSON

Counsel: MR D TRIM QC - Solicitors: LEMPRIERE ABBOTT MCLEOD

Judgment No. [2000] SASC 297

1 PRIOR J: I agree that these appeals should be dismissed and the cross appeal allowed but only with respect to the amount of damages awarded against Roberts.

2 The published material was defamatory of the plaintiff having the defamatory meanings contended for and found made out at the trial. The defences of qualified privilege failed. It is plain from the findings made by the trial judge that neither appellant had an honest belief in the truth of what was published. Case was properly found to be recklessly indifferent to the truth or falsity of the material he published. Roberts was properly identified as a person with an improper motive and no honest belief in the truth of what he published.[1]

3 As for the question of damages. I agree that the awards made by the trial judge against Roberts are manifestly inadequate. I agree with the award of $20000 in respect of the postcard, $35000 in respect of the pamphlet and $45000 in respect of the How To Vote card. The circumstances surrounding each publication by Roberts are factors properly going to the proper quantification of damages. In each case the timing and manner of publication is relevant. The submission that Roberts sought to cause maximum damage to the respondent is well made out and relevant to each assessment against him.

4 The increase in the award for the first occasion is warranted in light of the good reputation the respondent enjoyed and the trial judge's findings with respect to that. The differences in the amounts awarded should be understood as reflecting the degree of aggravation resulting from the persistence in a course of conduct notwithstanding intervention by the Electoral Commissioner and the finding of the trial judge that this appellant had no care or concern whether the matters he alleged were true or false so long as his sole aim of removing the respondent from office was achieved. (Judgment pars 196 and 197) The failure to retract statements known to be false and the impact of the publications are also significant factors going to the issue of aggravated damages.[2] The increase in the damages awarded against Roberts gives proper recognition to the gravity of the libels and the other purposes to be served by the award of damages for defamation, consolation and vindication.[3]

Not without some hesitation, I agree with Williams J that an award of exemplary damages is inappropriate for the reasons he gives. I agree that as against Case the award of damages has not been shown to be manifestly inadequate given the circumstances proved with respect to the publication by him of the material prepared by Roberts.

5 WILLIAMS J. The defendants Roberts and Case have appealed against the judgment of a District Court Judge given on 24 March 2000 upon claims for defamation. The Trial Judge found each of these defendants separately liable for the publication of defamatory statements about the plaintiff. The Trial Judge awarded the plaintiff $64800 (including $5000 exemplary damages and $4800 interest) against Roberts and $5400 (including $400 interest) against Case. The defendants now appeal against liability. The plaintiff has cross-appealed complaining that the damages are inadequate.

6 The topics argued upon appeal may be subsumed under four broad headings:

1. The right claimed by the defendants to rely upon the authority of the principle in Poly Peck (Holdings) Plc v Trelford [1986] 1 QB 1000 to assert and then justify meanings for the publications which are different from those pleaded by the plaintiff and as an answer in law to the plaintiff's case.

2. The natural and ordinary meaning attaching to the words of which the plaintiff complains.

3. The significance of a finding by the Trial Judge as to the absence of honest belief on the part of the defendants as to the truth of the publications.

7 The plaintiff is the former Member for Florey in the South Australian House of Assembly. He was elected in 1993, but was an unsuccessful candidate at the State General Election held on Saturday 11 October 1997. He served as Acting Speaker during his Parliamentary term. Upon the findings of the Trial Judge Mr Bass is a man of utmost integrity. He had a successful and distinguished career for 33 years in the South Australian Police Force and served for a period as Secretary of the Police Association. He demonstrated a high standard of ethics in the discharge of his Parliamentary duties and otherwise. He carried out his responsibilities as a Member of Parliament in an exemplary way and was hard working in meeting the demands of his constituents. Upon the findings of the Trial Judge, there was no basis whatsoever for the attacks made upon his reputation by the defendants.

8 Ms Frances Bedford was elected as the Member for Florey in the 1997 general election. The defendant Roberts had known her for some years before this and decided to assist her candidature. Roberts claimed in evidence to have become disenchanted with the plaintiff. Case was a member of a group calling itself the Modbury Hospital Local Action Group which was opposed to the State Government's policy involving the privatisation of the Hospital administration. The Hospital is within the Florey electoral district.

9 Roberts was responsible for producing three documents which reflected upon the plaintiff. The first document was in the form of a postcard, the second document was a four page pamphlet and the third document was a "How to Vote" card. Roberts was responsible for distributing copies of the postcard to each of about 12000 households in the electorate in about late July 1997; he employed a professional delivery service. He was responsible for similarly distributing the pamphlet in the week preceding the election. Prior to polling day he also was responsible for printing and publishing the How to Vote card. There were approximately 12500 copies of this lastmentioned document produced. A more complete description of these documents is as follows:

This card shows on its face (printed in colour) a picture of a Nauru Hotel and carries the endorsement "Greeting from Nauru".

This is the postcard your politician Sam Bass should have sent you from the Pacific island paradise where he is enjoying a winter break at your expense.

The postcard is addressed, "To All Taxpayers Seat of Florey Adelaide SA" and in the customary place for a postage stamp displays a rectangle endorsed "Delivery Paid by You". It carries the endorsement "Authorised by Geoff Roberts, 22 Noritake Road, Modbury Heights 5092 Printed by DJ Print, 7/42 Davies St., Willaston 5118"

This pamphlet (printed in three colours - red, black and white) comprises four pages headed "Free Travel Times". The front page also shows a cartoon of the plaintiff relaxing on his back at a Nauru resort and carries an endorsement "Parliamentary Traveller of the Year". It says that Sam Bass, Member for Florey [is] "Flat out working for you".

The second page shows a copy of a purported activity statement of account of "Mr Sam Bass Parliament House Adelaide" (as a member of "Frequent Flyer") on the supposed letterhead of Ansett Australia; the statement dated 28 September 1996 (and with some details obscured) is a forgery. It is overprinted with a banner "Bring the Frequent Flyer back to Earth!"

The third page is headed, "How Sam Bass travelled the world and how taxpayers picked up the tab". It then says, "When you are a Member of Parliament you get a lot of privileges. No one knows this better than SAM BASS who has visited places around the world for free. The list below is only a sample of his travels". It has another heading "The remarkable free travels of Sam Bass" and says that "The list below is only a sample of his travels". There follows the details of Mr Bass' itinerary for two overseas visits. It is also endorsed:

"Of course, the number of Frequent Flyer points ticked up on these free trips used for other travel for himself or his family is not on the public record."

The fourth page shows a collage of supposed newspaper headlines. For example:

MPs pack their bags for trips to a warmer climate, at our expense

This page again carries the banner "Bring the Frequent Flyer Back to Earth!" and "On Saturday put Sam Bass LAST."

(The newspaper headlines carry in some cases, reference to the date of newspaper publication). At the foot of the fourth page is the endorsement "Authorised by Geoff Roberts, 22 Noritake Rd, Modbury Heights 5092

Printed by DJ Print, 7/42 Davies St, Willaston 5118".

"3 things Sam Bass has done as Member for Florey:

1. Had numerous junkets at your expense including trips to the United Kingdom and Nauru

2. Stood by and did nothing to stop "secret deals" at the Modbury Hospital

3. In spite of the Port Arthur Massacre: he put gun rights ahead of your family's safety

"3 things Sam Bass will do if you vote him back in:

1. Qualify to spend another $32,000 of taxpayers' money on overseas travel

2. Get $154,000 per year and a big white car if he is elected Speaker

3. And if he does become Speaker spend even less time in the electorate

Why reward someone who takes advantage of the system?

Printed and authorised by G Roberts 22 Noritake Road Modbury Heights 5092."

The How to Vote card was distributed at a polling booth on polling day by Mr Case for about two hours.

The Appellants' Reliance upon the "Polly Peck principle"

10 Counsel for the defendants assert that the natural and ordinary meaning to be given to these three documents respectively is as follows:

"The Plaintiff is off on a junket to a Pacific island. It's all very well. We need our MP here. Don't vote for him."

"The Plaintiff has availed himself of the perks of office. In doing so he has no doubt enjoyed himself. In doing so he has no doubt inter alia accumulated frequent flyer points. He's just another MP taking advantage of the perks of office. Don't vote for him. We want someone who's a cut above that."

"The Plaintiff has had junkets as an MP. The Plaintiff has supported the party line on Modbury Hospital and done nothing to prevent a secret deal with the company who has contracted to run it. The Plaintiff opposed the gun legislation. If the Plaintiff is re-elected there will be more of the same. Don't vote for him."

11 Mr Roberts relies upon these meanings in respect of the postcard and pamphlet; both defendants rely upon the meaning put forward with respect to the How to Vote card. Those meanings are different from those advanced by the plaintiff. In denying the meanings pleaded by the plaintiff and asserting these alternative meanings, (which the defendants claim to be justified by the facts) the defendants rely upon the principle in Polly Peck (Holdings) PLC and Ors v Trelford and Ors [1986] 1 QB 1000. In that case it was recognised that a defendant in some circumstances might justify the sting of a libel by reference in its context to a meaning different from that pleaded by the plaintiff but which the defendant alleges to be the natural and ordinary meaning (see O'Connor LJ at 1023 and 1032).

12 In Woodger v Federal Capital Press (1992) 107 ACTR 1 at 23-24 Miles CJ identified and restated two principles to be found in Polly Peck. According to His Honour,

"Where the plaintiff alleges several distinct defamatory meanings but there is arguably a "common sting" to them upon which the plaintiff does not expressly rely, then the defendant may seek to justify the common sting and the plaintiff is not entitled to restrict the defendant to seeking to justify the several meanings selected by the plaintiff."

"Where the plaintiff alleges a defamatory meaning or several distinct defamatory meanings but the defendant denies the meaning or meanings alleged by the plaintiff and asserts an arguable claim that in the context of the whole publication a different defamatory meaning or several different defamatory meanings from that or those alleged by the plaintiff arise, the defendant may seek to justify that different defamatory meaning or meanings and again the plaintiff is not entitled to restrict the defendant to seeking to justify the meaning or meanings selected by the plaintiff."

13 The appellant now complains that the Trial Judge refused to recognise or apply the principles to be found in Polly Peck. I note that in his reasons the Trial Judge quoted the so called first principle, whereas upon appeal I understood counsel to be relying on the second principle.

14 In my opinion the present case is not one to which such principles have any application.

15 In cases where the plaintiff in the statement of claim has chosen to ignore part of the publication so as to alter its true meaning, the defendant is allowed to rely upon the totality of the publication to identify the natural and ordinary meaning. It may be debatable in such circumstances as to what extent literal error in a publication may be overlooked, and whether the matter of the plaintiff's complaint can be fairly severed from other parts of the publication. (see Polly Peck at 1032 and Khashoggi v IP Magazines Ltd & Anor [1986] 1 WLR 1412).

16 A defendant is, of course, entitled to join issue with the plaintiff as to the meaning pleaded by the plaintiff. This may involve the defendant in seeking as a consequence, to justify some alternative meaning which itself may be defamatory. However, a plea of justification with respect to an imputation not raised by the statement of claim, is not in itself a good defence to the claim. How the defendant should plead an alternative meaning and the justification thereof is a matter of some controversy. The differing points of view as to practice is to be found in Chakravarti v Advertiser Newspapers ([998] 193 CLR 519 at 527 (per Brennan CJ and McHugh J) and at 543 (per Gaudron and Gummow JJ). The point is not relevant to the present appeal.

17 For present purposes, the general principle is as stated by Bray CJ in Potts v Moran (1976) 16 SASR 284 at 305-6.

"It is clear law that for a plea of justification to be a complete defence to an action for defamation every defamatory allegation must be justified.

"When an action is brought for a libel, to make a good plea to the whole charge, the defendant must justify everything that the libel contains which is injurious to the plaintiff. If the libel charges the commission of several crimes, or the commission of a crime in a particular manner, the plea must justify the charge as to the number of crimes or the manner of committing the crime. If the crime is charged with circumstances of aggravation,...the plea is clearly bad if it omit to justify that."

(Helsham v Blackwood [1851] EngR 604; (1851) 138 ER 412 at 419 per Massle J).

There are two ways, however, in which what has been called "the sting of the libel" can be justified so as to be a complete answer. One is where all the defamatory allegations of fact are proved to be true and all that remains are general rhetorical expressions of disapproval or denunciation which do not contain in themselves any additional allegations of fact. So in Morrison v Harmer, where the defendant had referred to the wholesale system of poisoning pursued by certain sellers of medicines and had described them as scamps and rascals, it was held that by proving that the plaintiff's medicines had indeed killed two people, as a result of which they had been convicted of manslaughter, the defendants had justified the libel and that they did not have to prove more specifically that the plaintiffs were scamps or rascals. It was said by Tindal CJ that:

"If these terms of invective and reproach contain any ground of charge or imputation against the Plaintiffs, substantially distinct in its nature or character, from that which forms the main charge, or gist, of the libel, and the truth of which has been justified by the plea, the consequence above contended for on the part of the Plaintiffs [that the plea was bad] would justly follow; - for the plea, upon that supposition, would not contain an answer to so much of the declaration, as by the commencement of the plea it expressly undertakes to justify."

The second is that slight inaccuracies of detail which do not affect the substance of the charge will not prevent the success of the plea. Thus it was held a sufficient answer to a charge of libel in stating that the plaintiff had been convicted of riding in a train without an appropriate ticket and fined £1 or three weeks' imprisonment in default to prove that he had been so fined £1 but only sentenced to fourteen days imprisonment in default; Alexander v North Eastern Railway Co. ((1865) [1865] EngR 378; 122 ER 1221)".

18 Bass has relied upon the whole of the relevant publications, (without a blue pencil), and there is no literal error identified in the publications which the defendants might seek to treat as immaterial to the real sting. The plaintiff puts forward a meaning for each of the publications and alleges that each document contains very damaging incorrect statements of fact concerning the plaintiff. The defendants join issue thereon. If the natural and ordinary meaning of the words used in each case is established to be that relied upon by the plaintiff, then any defence of justification must deal with that meaning and not with some other meaning which the defendants might put forward. It becomes irrelevant to consider other possible imputations and the possible justification for a sting not pleaded by the plaintiff.

19 In the circumstances of this case, the defendants raise a false issue in seeking to rely upon Polly Peck when the dispute is simply whether or not the meaning alleged by the plaintiff is the natural and ordinary meaning. A defendant cannot alter the issue by proposing meanings which differ from those relied upon by the plaintiff.

20 The first issue in this case as applied to each publication is whether an elector of Florey, as a "reasonable reader" or "right thinking member of society", would understand the publication in the way suggested by the plaintiff. The defendants assert that when the rhetoric is cleared away, the meaning in each case is that which I have recited and they seek to justify that alternative meaning by reference to some limited facts. The defendants cannot obscure the issue in this way. The question at trial was whether the published words have the defamatory meaning which the plaintiff seeks to attribute to them; if so, the defence of qualified privilege stood to be examined in relation to that meaning, and not some other meaning put forward on behalf of the defendants. The availability of qualified privilege as a defence is dependent upon the further issue as to the state of mind of each of the defendants and whether malice in the legal sense had been proved against either of them.

21 The Trial Judge decided that all three publications reflected adversely upon the plaintiff. The Nauru postcard portrayed the plaintiff as an elected member who misused public monies for his own personal benefit and to the detriment of his constituents. The postcard implied that Bass was in Nauru to holiday rather than carry out his Parliamentary duties. (The choice of the expression "enjoying a winter break" as used in the postcard seems to me to be significant). The four page pamphlet (by its words and supported by the cartoon) painted the plaintiff as a person who misused his position as a Member of Parliament in relation to travel and in regard to the discharge of his elected duties; he improperly used his access to frequent flyer membership for the benefit of himself and his family and in a way which was not on the public record. By association he was suggested to be one of a group who blatantly misused their Parliamentary allowances.

22 As regards the How to Vote Card, the Trial Judge adopted the meaning as pleaded by the plaintiff:

"(a) That the plaintiff had spent $32,0000.00 of taxpayers' money on overseas travel.

(b) That the plaintiff had spent $32,000.00 of taxpayers' money for overseas travel for the purpose of his own enjoyment and not

for the proper purpose of such travel, namely to enhance the plaintiff's knowledge of issues relevant to the better performance of his role as a member of Parliament.

(d) That the plaintiff had taken numerous overseas trips for his own benefit and enjoyment and not for the intended purpose of such trips, namely to enable him to better serve the interests of the Parliament of South Australia and the members of this electorate.

(e) Contrary to his responsibility as the member of Parliament for Florey failed to take appropriate steps to prevent clandestine arrangements being put in place in respect of the management of the Modbury Hospital, contrary to the interests of the members of the electorate of Florey and the public of South Australia generally.

(f) That the plaintiff had put the rights of those interested in the right to possess and utilise guns ahead of the safety of members of ordinary families.

(g) That the plaintiff had not spent sufficient time in his electorate to properly discharge his duties as the member of the seat of Florey.

(h) That the plaintiff was not spending sufficient time in the electorate of Florey to enable him to adequately fulfil his duties as the member for Florey.

(i) That if the plaintiff was elected to the member of Florey and then subsequently elected as Speaker of the House of Assembly then he would spend less time than the time that he was currently spending in the electorate."

23 In my opinion, the natural and ordinary meaning of the publications in each case was correctly identified by the Trial Judge. The meaning put forward by counsel for the defendants is watered down and overlooks the real sting of each publication. All three documents imply discreditable conduct on the part of Mr Bass in discharge of his Parliamentary responsibilities which would warrant the electors of Florey putting "Sam Bass last" when voting. However, in fact, there was no evidence at trial of any occurrence to the discredit of the plaintiff and, under cross-examination neither Roberts nor Case was able to point to anything which arguably could have provided a basis for their attacks. The Trial Judge found that the plaintiff discharged his Parliamentary responsibilities in an appropriate fashion and that there was no basis for criticism for his use of Parliamentary travel arrangements or entitlements. His two overseas visits were properly authorised; the visit to Nauru was to represent the Speaker at a meeting of Presiding Legislative Officers. His approach to gun control legislation displayed a thorough and commendable approach in an area in which he was knowledgeable. He set out to make the legislation workable. With respect to the Modbury Hospital, the Trial Judge offered no criticism of the manner in which the plaintiff represented his constituents and dealt with their enquiries. It was inevitable upon this state of the evidence that the Trial Judge should find that there was not a factual basis to support a defence of fair comment. The appellants abandoned argument with respect to fair comment for the purposes of the appeal although the matter was raised in the appeal notice.

24 A defence of qualified privilege was raised in each case upon the basis that there was reciprocity of interest or duty as between the defendants and the electors of Florey as regards the dissemination and receipt of the published material. (See Adam v Ward (1917) AC 309 at 334). Those defences must now be assessed in the light of the defendants' beliefs.

25 Mr Bass made complaint to the State Electoral Officer as to the Four Page Pamphlet; the Electoral Officer by letter to Roberts dated 3 October 1997 required him to publish a retraction upon the ground that it was misleading. There was evidence that the distribution continued until 7 October 1997 and no attempt was made by Roberts to comply with the request which was made in accordance with s 113(4) of the Electoral Act 1985 (SA). The Electoral Officer's letter placed Roberts on notice of the true situation as to the fact that the plaintiff was not a member of a frequent flyer club. On 3 October 1997, a letter from the plaintiff's solicitors was hand delivered to the defendant dealing in detail with the imputations of the four page pamphlet and drawing attention in some detail to their lack of truth. Mr Roberts' solicitor responded the same day with an intimation that steps would be taken to stop distribution of the four page pamphlet. In fact nothing happened. By letter dated 3 October 1997 Roberts' solicitor also responded to the Electoral Commissioner who set a timetable for the distribution of an appropriate form of retraction which he settled in conjunction with Roberts' solicitor. No retraction was published but excuses were offered. The Trial Judge considered that Roberts had made no real effort to publish a retraction. There was argument upon the appeal as to what steps were open to Roberts in the time available. Although I consider that the conclusions of the Trial Judge were justified by the evidence, Roberts' attempts in the witness box to explain away his conduct provides a valuable insight into his attitude and motivation.

26 On the day of the election, the Electoral Commissioner again wrote to Roberts at short notice regarding the How to Vote Card in accordance with the Electoral Act s 113(4).

27 Roberts was subsequently dealt with in the Holden Hill Magistrates Court upon complaint laid at the instigation of the Electoral Commissioner in respect of two breaches of s 113(2) of the Electoral Act to which he pleaded guilty. The gravamen of the offence in each case was the authorisation of publication of an electoral advertisement containing inaccurate and misleading information; the charges respectively related to the pamphlet and How to Vote card.

28 The Trial Judge found that neither defendant believed that which he published to be true. His Honour further found that the defendants published the defamatory material without considering or caring whether it be true or not. According to the Trial Judge, the defendants were each motivated to remove Bass as a Member of Parliament using any available means to achieve this end, and without "any concern for the factual base". The Trial Judge considered that although Case was not as reckless as Roberts, both men were motivated to remove Bass from office without any concern for the truth so long as their aims were attained.

29 The Trial Judge relied upon Lord Diplock's statements of principle in Horrocks v Lowe [1975] AC 135 at 149-151 to support his finding of express malice.

30 For the purposes of argument, counsel for the appellants relied upon an outline of the facts which he supplied to the Court. That document is at variance with the findings of the Trial Judge in that the outline seeks to attribute to the defendants honest beliefs which the Trial Judge rejected when discussing his findings. The Trial Judge said:

"Counsel urged that I should accept the evidence of Mr Roberts as a base for a finding that he held an honest and genuine belief of the matters of the plaintiff given that they might be founded on ignorance or prejudice. Counsel further urged me to find that Mr Case also honestly held the opinions that he expressed and referred me to the decisions of Pooley v Duncan (1978) 80 LSJS 58-60 and Whitford v Clark (1934) SASR 134. Such cases are authorities for the proposition that the widest possible latitude must be given in interpreting political criticism as politicians' conduct must be open to searching criticism and the freedom of criticism must be maintained as a security for the proper discharge of public duties."

"The defendants also pleaded that actual malice on the part of the defendants had not been proved by the plaintiff, and urged a finding that the defendants' evidence should be accepted as they honestly believed in the truth of their statements that negatived the allegation of malice."

"...at no stage did either defendant take any steps to check the accuracy of the impugned material. Furthermore, there is no evidence that the defendants inquired of the plaintiff as to the truth or otherwise of the words complained of, nor did they give the plaintiff an opportunity to answer the allegations.

I am also unable to see why the defendants should have reasonable grounds for believing the imputations to have been made to be true. What is more, I find that the defendants did not believe the imputations to be [un]true sic. The nature of their conduct shows, in my opinion, that they could not have believed the imputations to be true. This is particularly so in the case of the first defendant [Roberts]. After the publication of the Nauru postcard, the first defendant became aware of the plaintiff's contentions about it. However, despite that objection, he proceeded to prepare with substantial assistance, and caused to be published, [the four page pamphlet] containing a mock-up or forged document without any enquiry as to its accuracy. Then, in spite of the Electoral Commissioner's directives to withdraw from distribution the said publication and to issue a retraction, which he did not in any way undertake, he proceeded to prepare, have printed, and arranged for the distribution of the election day pamphlet. [The How to Vote Card].

In my view, the first defendant could not possibly have believed the imputations to be true.

With regards to the fourth defendant, I am also of the same view. Mr Case's whole rationale of his actions and view of the conduct of the plaintiff was totally flawed and governed mainly by the aim of "targetting" the plaintiff. He made no enquiries but proceeded to hand out the [How to Vote Card] not caring whether the stated matters were true or false."

32 These are strong findings; in my opinion they are adequately supported by the evidence. Roberts was told that his allegations lacked foundation some eight days before polling day, but he persisted with the thrust of his allegations of impropriety. Case acknowledged that the plaintiff had been selected because he was a "soft target". He could not provide any basis for a belief in the allegations. I reject the submission made on the part of the appellants that they should be treated as having honest beliefs in the relevant respect.

33 In my opinion, a defence of qualified privilege is not available in circumstances where the plaintiff establishes that at the time of the act of publication, the defendant did not have an honest belief in the truth of the published statement.

34 The position is summarised by Hunt J in Barbaro v Amalgamated Television Services (1985) 1 NSW LR 30 at 50-51:

"...A defence of qualified privilege will be defeated where the plaintiff is able to establish that, at the time of the publication, the defendant's state of mind was not that which the law requires for a publication upon an occasion of qualified privilege. The law requires that the defendant use the occasion for the purpose for which the privilege is given and that (other than in the exceptional case where the defendant is under a duty to pass on, without endorsement, defamatory reports made by some other person) he have an honest belief in the truth of what he published. Where the defendant has established that he published the matter complained of upon an occasion of qualified privilege, these two states of mind are presumed in his favour unless and until the contrary is proved by the plaintiff. If the plaintiff shows either that the defendant has used the occasion to publish the matter complained of for a purpose other than that for which the privilege is given (which is usually described as an indirect or an improper or a foreign motive ) or that the defendant did not have an honest belief in the truth of what he published, the defence of qualified privilege is defeated. Express malice is the term of art which is used to describe what the plaintiff must prove to defeat the defence of qualified privilege. In some of the older authorities, an absence of honest belief on the part of the defendant is treated merely as some evidence of an indirect motive which alone is said to constitute express malice, but the better view, in my opinion, is to treat the two as different kinds of malice. A belief in the truth of what was published will not be sufficient to save the defence of qualified privilege if the defendant nevertheless misused the occasion for a purpose other than that for which the privilege is given - for example, if he has published the matter complained of in order to injure the plaintiff or some other person, or to vent his spite or ill-will towards him, or to obtain some private advantage unconnected with the privileged occasion upon which he made the publication. That is the way in which the law has been expressed by the House of Lords in Horrocks v Lowe (at 149-151)..."

35 It was common ground between the parties that the publications took place on privileged occasions, and that in the circumstances malice is not to be presumed but is a matter required to be proved by the plaintiff.

36 In the course of argument, Counsel for the appellants put an argument in the following terms:

"People actually sit down, spin doctors, associated with political parties, they sit down at a round table and they plot to see how they can defeat their opponents. There is nothing wrong with that. That doesn't mean that there is malice. That is how our system of government works."

37 That statement does not bring to account a requirement of honest belief as an essential element of the defence of qualified privilege. The defendants argue that malice in the mind of a defendant is irrelevant unless it is proved to be the sole or dominant motive for publishing the defamatory matter. They argue respectively that their dominant, (and perhaps only), motive was to assist in bringing about the electoral defeat of the plaintiff.

38 The Trial Judge reached the conclusion that the dominant purpose of each defendant "went far beyond the mere desire to foil the plaintiff's prospects of re-election". His Honour concluded that their main intention was to injure the plaintiff by damaging his reputation. The Trial Judge appears to have concluded that the defendants misused the privileged occasion for some improper purpose.

39 If the plaintiff has established an absence of honest belief then it becomes unnecessary to identify the dominant motive of a defendant. The presence of improper or foreign motive, (to use the language of Hunt J), will destroy privilege, but so also will the absence of honest belief by the defendant in the truth of what he published.

40 I reject the appellants' submission insofar as it would imply that in the present circumstances, a defence of qualified privilege can be available in the absence of the defendant's honest belief in the truth of the published statement. The appellants rely upon passages in Lord Diplock's speech in Horrocks v Lowe to support their argument, but that argument does not bring to account Lord Diplock's over-riding requirement for the presence of honest belief as being an essential element in the defence. Lord Diplock said:

"...no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

41 With respect to the question of liability, it becomes unnecessary for me to pursue the question as to the dominant purpose of either defendant in view of the fact that neither had an honest belief in the truth of the information which he was publishing. Nevertheless, as the Trial Judge's finding with respect to motive or dominant purpose was challenged by the appellants, I will indicate my views thereon.

42 Upon the evidence I am unable to identify any improper purpose attaching to the actions of either defendant and in this respect I would disagree with the conclusion of the Trial Judge. The typical case of dominant improper purpose might be one where the defendant unnecessarily uses a privileged occasion simply to vent his spleen upon the plaintiff; see for example in Angel v HH Bushell & Co Ltd [1968] 1 QB 813 (see especially at 831), where the defendant sought to gratify feelings of animosity arising out of a failed business transaction by reporting the facts to a business referee who had previously recommended the plaintiff as trustworthy. Another example of improper motive would be where the defendant is seeking to obtain some private advantage unconnected with the privilege (see Horrocks v Lowe at 150).

43 The privilege for matter published in an election campaign is based upon an interest or duty of informing the electorate of the merit (or lack of merit) of a candidate and this privilege extends to statements made on behalf of other candidates. In my view the facts are consistent with the defendants becoming over enthusiastic in the support of their electoral cause. They do not appear to have any special desire to hurt the plaintiff otherwise than in terms of his prospects of re-election. The plaintiff bore the onus of proof on this matter. I would not uphold the Trial Judge's finding as to improper motive, although Roberts' intransigence when faced with the true facts is not to his credit.

44 An appellate court must be cautious about overturning a finding of the kind now in question which may be based in part on the Trial Judge's assessment of the witnesses. However, I can find nothing in the evidence which would lead me to the conclusion that it is possible to identify a particular desire by either defendant to injure the plaintiff, except with respect to his electoral prospects.

45 The grounds of appeal raise questions as to the meaning of malice and its elements in relation to qualified privilege. In my opinion these matters are fully addressed in the exposition of Lord Diplock in Horrocks v Lowe. It is sufficient for present purposes to observe that good faith requires that those who publish allegations about a candidate in the course of an election campaign, should at least have a positive belief in the truth of their assertions, if they are to obtain the protection of qualified privilege. Even then, the privilege may be defeated if improper motive not related to the privileged occasion, can be established.

46 The Trial Judge considered the extension of the principles of qualified privilege as dealt with by the High Court in Lange v ABC [1997] HCA 25; (1997) 189 CLR 520 at 573. That development of the law imports a test of reasonableness of conduct as an element in providing a defence in the circumstances there addressed, where common law privilege would be inapplicable. Upon hearing of the appeal, the Court was told by counsel for the appellants that we need not be concerned with this defence. (The Trial Judge decided that the defendants did not act reasonably).

47 In my opinion the liability of each defendant has been established; their appeals should be dismissed.

48 The question of damages remains to be considered upon the cross appeal of the plaintiff who complains as to the inadequacy of the amounts awarded.

49 So far as Mr Case was concerned, he distributed the How to Vote Card in a limited way for about two hours on the morning of polling day at the St Agnes West Primary School. As pleaded, his responsibility for publication on 11 October 1997 is to be distinguished from the publication effected by Roberts. This distinction was maintained at trial and in the approach of the Trial Judge. It has not been challenged on appeal. The evidence does not disclose how many electors took a How to Vote Card from Case. The Trial Judge awarded $5000 against him. In my opinion, it has not been demonstrated that this assessment is a wholly erroneous estimate of the damage suffered. It does not appear that the Trial Judge has misapprehended the facts, or brought to account irrelevant factors or applied a wrong principle of law. I would not interfere with the Trial Judge's award against Case.

50 In the case of Mr Roberts I consider that the award of $55000 (including aggravated damages), is wholly inadequate for compensatory damages.

51 Damages awarded for defamation in South Australia were for many years out of kilter with awards in other parts of Australia. In Chakravarti v Advertiser Newspapers [1998] 193 CLR 519 Kirby J at 603 described as "parsimonious", the approach of this Court (which has subsequently reappraised the general level of damages for defamation). In Chakravarti No. 2 (1998) 72 SASR 361 at 375-378, Doyle CJ, (speaking for the Full Court), reached the conclusion that it would be appropriate to increase the level of damages awarded in this State for defamation. I do not consider that the effect of the Chief Justice's statement is sufficiently reflected in the Trial Judge's assessment of the compensatory damages flowing from Roberts' publications. As against the defendant Roberts, the Trial Judge awarded $10,000 in respect of the postcard, $25,000 in respect of the pamphlet, and $20000 in respect of the How to Vote Card.

52 In my opinion, the three publications for which Roberts was responsible should be viewed as part of one campaign in which each publication had its part to play in eroding the plaintiff's reputation within the electorate of Florey. He must have been very considerably discredited in the eyes of the electorate as a person worthy of representing it in Parliament; the smear which was cast upon the plaintiff must have been very painful to one who had such an excellent record of service to the community.

53 I find it difficult to differentiate between the three publications in terms of their effect which the Trial Judge summarised as follows:

"The Nauru postcard had implied that the plaintiff, amongst other things, had deliberately neglected his duties to embark on a holiday at the taxpayers' expense. Both the [Pamphlet] and [How to Vote Card] had implied that he misused public funds for his own use. The [How to Vote Card] went even further, suggesting that the plaintiff had deliberately refrained from properly carrying out his duties. The publications reflected poorly on the plaintiff's integrity and would have resulted in the diminution in the esteem in which others would hold him."

54 Although Roberts was placed on notice on Friday 3 October 1997 that his published assumptions were seriously in error, he was relentless in pursuit of the aim of unseating the plaintiff. There is a common theme running through all three publications as to the plaintiff's capacity to take improper advantage of his position as the elected member. The publications respectively were timed to be published near the beginning, during, and then at the end of the campaign. To reflect upon the plaintiff, (albeit in a slightly different way), may not have the same force when repeated as when first published. On the other hand, the successive publications may have reinforced in the minds of the electors an impression of Mr Bass which was wrong. Each publication must have provided electors with food for thought and fuel for discussion. Treating Roberts' actions as steps in the one campaign I am prepared to use the evidence of Mr Roberts' intransigence in response to the Electoral Commissioner, and as demonstrated in his oral evidence, as reflecting adversely upon him at each stage of the campaign. A case is made out for the award of aggravated damages.

55 In my view, a proper award of damages against Roberts would be $20000 in respect of the publication of the postcard, $35000 in respect of the pamphlet, and $45000 in respect of the How to Vote Card. There is a degree of artificiality in this exercise where the effect of the various statements might be regarded cumulatively. I have therefore looked at each publication standing alone and also at the combined effect of Roberts' actions in publishing the three documents. Whichever way the question is approached, I consider that $100,000 in total is a fair reflection of the damages which the plaintiff should receive from Roberts. If any of the three individual amounts are considered to be too high, then it may be that the other elements of the award should be treated as correspondingly too low. Arguably, the amount awarded in respect of the postcard might be regarded as modest, but this depends upon an assessment of the repetitive effect of the verbal punches which were thrown at the plaintiff's reputation. The later blows may have been more effective by reason of the first. I am satisfied that there has not been any double counting in the approach which I have taken. However, it is also relevant to bring to account the aggravation associated with the later publications by reason of the notices given by the Electoral Commissioner and the plaintiff's solicitor.

56 In view of the fact that Roberts has been otherwise dealt with in the Magistrates Court, not at the instigation of the plaintiff, but upon formal complaint of the Electoral Commissioner, I would not award exemplary damages. Although this defendant has behaved in an outrageous manner, I consider that the amount of $100,000 compensatory damages is sufficient in the circumstances to mark the Court's disapproval, and to act by way of deterrent in light of the successful prosecution which carried its own penalties. In my view there is sufficient nexus between the subject matter of the prosecution, and the present cause of action for the Court to be concerned about the possibility of an injustice, if an award of exemplary damages were made after Roberts had been penalised upon conviction. In AB v South West Water Services Ltd [1993] QB 507 at 531, Sir Thomas Bingham MR, described as anomalous, the award of exemplary damages where the conduct in question had already attracted the sanctions of the criminal law. In the same case at 527 Stuart-Smith LJ said:

"...there is the further complication to which I have already referred of the conviction and fine of the defendants. These problems persuade me that there would be a serious risk of injustice to the defendants in this case if an award of exemplary damages were to be made against them. There is no injustice to the plaintiffs in refusing to permit such an award; they are not foregoing compensation to which they are entitled, but an additional windfall based solely on the defendants' alleged improper conduct."

57 In Thompson v Commissioner of Police [1997] EWCA Civ 3083; [1997] 2 All ER 762 at 777, Lord Woolf MR commented upon the possibility of future disciplinary proceedings being a relevant consideration upon the question as to whether exemplary damages should be awarded in proceedings against police for false imprisonment.

58 I would discharge the award of exemplary damages in the present case; however that award will be overtaken by the increase in the compensatory damages against Roberts.

59 In my opinion the formal orders should be as follows:

1. The appeal by each defendant against liability is dismissed.

2. The cross appeal by the plaintiff is allowed for the purpose of increasing the award of damages against the defendant Roberts to $100,000 upon the footing that only compensatory damages be payable; this amount comprises an assessment of $20000 damages in respect of the publication of the postcard, $35000 damages in respect of the publication of the pamphlet and $45000 in respect of the publication of the How to Vote Card.

60 The parties should be heard upon the adjustment of the calculation of interest and upon the question of costs.

61 MARTIN J. This is an appeal against awards of damages for defamation given in respect of the publication of three documents during the lead-up to the 1997 Parliamentary Election in South Australia. As against the first defendant, Mr Roberts, the learned trial Judge awarded a total of $64 800, inclusive of interest. His Honour awarded a total of $5 400, inclusive of interest against the fourth defendant, Mr Case. The plaintiff has cross-appealed asserting that the awards are manifestly inadequate.

62 The relevant facts of this matter are adequately set out in the judgment of Williams J. I agree with the substance of his Honour's reasons for upholding the findings of the learned trial Judge as to the meanings of the statements in each of the first and second documents and why those statements were defamatory of the respondent ("the plaintiff"). However, as I have reached a different view with respect to some issues, it is necessary that I explain my reasons for reaching my conclusions.

63 As to the statements on the third document, the How to Vote Card ("the Card"), in my opinion not all of those statements were defamatory of the plaintiff. The Card was printed on two sides. On its face it read:

"3 things Sam Bass has done as Member for Florey:

1. Had numerous junkets at your expense including trips to the United Kingdom and Nauru

2. Stood by and did nothing to stop "secret deals" at the Modbury Hospital

3. In spite of the Port Arthur Massacre: he put gun rights ahead of your family's safety

"3 things Sam Bass will do if you vote him back in:

1. Qualify to spend another $32,000 of taxpayers' money on overseas travel

2. Get $154,000 per year and a big white car if he is elected Speaker

3. And if he does become Speaker spend even less time in the electorate

Why reward someone who takes advantage of the system?

Printed and authorised by G Roberts 22 Noritake Road Modbury Heights 5092."

65 There is no doubt that the tenor of the Card was highly critical of the plaintiff. It is important to bear in mind, however, that it was distributed in a political context and that the ordinary and natural meaning of the words is to be determined by considering the document in isolation from the previous two publications.

66 The statement that the appellant had undertaken "numerous junkets" at the expense of the taxpayer was clearly meant to be disparaging of the plaintiff. However, it is not uncommon for political commentators, members of the public or those engaged in vigorous political debate to refer to trips taken by Members of Parliament as "junkets". Usually, it is reasonable to conclude that those using that expression intend it to be understood as a remark critical of the Members. However, it does not follow that such statements necessarily carry with them a defamatory imputation that trips were taken for an improper purpose. The context in which such statements are made will be of particular importance to a determination as to whether the statements are defamatory. Such statements could be understood as meaning that the Member is concerned only with personal pleasure rather than with duties as a Member. In some contexts, however, they will fall short of the imputation of an improper purpose and be recognised as a criticism that although the member is entitled to take the trip, it is an unnecessary trip and the interests of the taxpayer would be better served if the member remained in the electorate attending to electorate business. In my opinion, given the common usage of the word "junket" in the political context, this Court should not adhere to the view that every time a politician is criticised for taking a "junket" at taxpayers' expense, the statement to that effect is defamatory. Each statement must be considered in the context in which it is made and the critical question asked as to what interpretation would be placed on the statement by the ordinary reasonable reader who is a person of fair, average intelligence.

67 The statement on the Card alleging "numerous junkets" was made in the context of other statements which, read in their entirety, had the effect of impugning the integrity of the plaintiff. In particular the statement that, if voted back in, the plaintiff would "qualify to spend another $32 000 of taxpayers' money on overseas travel", was particularly significant. That statement implied that the plaintiff had previously spent $32 000 of taxpayers' money on overseas travel. It was an incorrect statement of fact. Considered alone, that incorrect statement did not carry with it the ordinary and natural meaning that the travel was solely for the purpose of the plaintiff's own enjoyment and not for a proper purpose related to his role as a Member of Parliament. However, considered in conjunction with the first statement that the plaintiff had undertaken "numerous junkets" at taxpayers' expense including trips to the United Kingdom and Nauru, in my opinion those statements were defamatory of the plaintiff. The clear implication of the statements considered together and in the context of all the statements on the Card was that the plaintiff had misused public monies by taking numerous trips for an improper purpose, namely, personal pleasure and not for a proper purpose associated with his duties as a Member of Parliament.

68 The statement that the plaintiff "stood by and did nothing to stop 'secret deals' at the Modbury Hospital" was an incorrect statement of fact and was critical of the plaintiff. It does not, however, convey the meaning that the plaintiff was part of the 'secret deals'. It would be understood as meaning he did nothing to stop such deals being agreed by other persons. The learned trial Judge found that the statement possessed the following meaning:

"Contrary to his responsibility as the Member of Parliament for Florey failed to take appropriate steps to prevent clandestine arrangements being put in place in respect of the management of the Modbury Hospital, contrary to the interests of the members of the electorate of Florey and the public of South Australia generally."

69 Members of Parliament are frequently accused of inaction or a lack of adequate action. In some circumstances, an inaccurate allegation of inaction might carry with it a defamatory imputation. However, although my mind has vacillated on this question, I have reached the view this single statement, read in the context of the Card considered in its entirety, was not defamatory of the plaintiff. It was critical of him and implied that he should have taken action to prevent what had occurred. In the context of a political contest, however, the ordinary reasonable reader who read between the lines would recognise the statement for what it was, namely, a political criticism by a person supporting an opposition candidate. Viewed in this way, the statement did not contain imputations which tended to lower the plaintiff in the estimation of right-thinking members of the society or which were calculated to bring the plaintiff into hatred, contempt or ridicule or which had the effect of making people shun or avoid the plaintiff.

70 As to the statement that the plaintiff "put gun rights ahead of your family's safety", the evidence established that the statement was both inaccurate and an unfair reflection upon the plaintiff's approach to this controversial issue. The learned trial Judge found that the statement had the following meaning:

"That the plaintiff had put the rights of those interested in the right to possess and utilise guns ahead of the safety of members of ordinary families".

71 The statement carried the clear implication that Mr Bass was a person of such a character that he relegated the safety of families to an inferior position to that of gun rights. In my opinion, notwithstanding the political context in which the statement was made, the statement crossed the line between vigorous political debate and defamation. It contained imputations which tended to lower the plaintiff in the estimation of right-thinking members of the society. I agree with the learned trial Judge that the statement was defamatory of the plaintiff.

72 The statement that, if elected, the plaintiff would receive $154 000 per year and a big white car if elected as Speaker was not a defamatory statement. As to the proposition that if the plaintiff was elected speaker he would "spend even less time in the electorate", if the statement was considered in isolation, in my opinion it would not have been defamatory. While it carried the implication that the appellant did not spend sufficient time in his electorate, in isolation it would have been understood as a general political comment of little or no significance. However, the statement did not stand alone. It followed on statements that the appellant had taken numerous junkets at taxpayers' expense and, if elected, would become qualified to spend another $32 000 of taxpayers' monies on overseas travel. It was in that context that the learned trial Judge found the following meanings were conveyed in the Card:

"(g) That the plaintiff had not spent sufficient time in his electorate to properly discharge his duties as the Member of the seat of Florey.

(h) That the plaintiff was not spending sufficient time in the electorate of Florey to enable him to adequately fulfil his duties as the Member for Florey.

(i) That if the plaintiff was elected to the Member of Florey and then subsequently elected as Speaker of the House of Assembly then he would spend less time than the time that he was currently spending in the electorate."

73 I have found this a difficult issue to resolve. However, on balance, I agree with the learned trial Judge.

74 For these reasons, I agree that some of the statements on the Card were defamatory of the plaintiff. In essence, I agree with Williams J that, considered in its entirety, the Card implied discreditable conduct on the part of the plaintiff in the discharge of his Parliamentary responsibilities which would warrant the electors putting him last when voting. That implication was untrue. It was contrary to the evidence and the findings of the learned trial Judge.

75 As to the defence of qualified privilege, I agree that the publications occurred on privileged occasions. I also agree that, for Mr Roberts, the defence failed as he did not possess an honest belief in the truth of the published statements. In addition, in my opinion the learned trial Judge was correct in finding that Mr Roberts possessed an improper motive. In this respect, I differ from Williams J.

76 The learned trial Judge found that both defendants were motivated by "malice". His Honour found as follows:

"[T]he defendants' dominant purpose went far beyond the mere desire to foil the plaintiff's prospects of re-election. Their main intention was to injure the plaintiff and to lower his estimation in his fellow persons by making them think less of him. All three publications were part of a strategy designed to have this effect. Clearly this is not a proper motive.

Various other factors also point to a conclusive finding that the defendants intended to injure the plaintiff."

77 The learned trial Judge also found that the evidence established that the defendants published the defamatory material without "considering or caring whether it be true or not". He referred to Mr Roberts having prepared the publications "in spite of his indifference to the truth of their content" and found that Mr Case "displayed a similar indifference" in relation to the Card. His Honour said:

"In fact, he [Mr Case] admitted to having handed out that [Card] without any research and purely on the basis that its contents "sounds right". Both defendants thus admitted to having not made enquiries to check the accuracy of the relevant publications."

78 His Honour then expressed his conclusion as follows:

"A failure to make inquiries does not, of itself, constitute malice but is nevertheless relevant in establishing an intention on the part of the defendants to injure the plaintiff (Uren v John Fairfax and Sons Pty Ltd (1966) 177 CLR 118 at 125). I accept that the defendants did not make any enquiries as to the truth or otherwise of the words complained of, and, for reasons which I will expand on later, this failure to verify the accuracy of the defamatory material together with other considerations establishes malice on the part of the defendants."

79 After referring to the conduct of Mr Roberts concerning the publication of the first and second documents and to his reaction to the requests by the Electoral Commissioner for a retraction of a statement in the second publication, the learned trial Judge found that the conduct of Mr Roberts "was tantamount to using any area of apparent criticism of the plaintiff to injure his reputation and cause him to lose office." His Honour expressed the view that such a purpose was not a proper motive. However, Williams J disagrees with these findings. In his opinion the evidence does not identify any improper purpose attaching to the actions of either defendant.

80 Persons who wish to engage in political debate and electioneering are entitled to do so with vigour and passion. In this context, the law recognises that even though statements made may be untrue and defamatory, if they are published in good faith on a privileged occasion such statements are not actionable. However, the privilege is qualified. As Lord Diplock explained in Horrocks v Lowe [1975] AC 135 at 149, the qualified privilege will be lost "if the occasion which gives rise to it is misused". His Lordship then made some observations which are of particular relevance to the issues under consideration:

"...For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.

So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. 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. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, 'honest belief". If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true. The law demands no more.

Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.

Judges and juries should, however, 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 unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found.

There may be evidence of the defendant's conduct upon occasions other than that protected by the privilege which justify the inference that upon the privileged occasion too his dominant motive in publishing what he did was personal spite or some other improper motive, even although he believed it to be true. But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on, and the only evidence of improper motive is the content of the defamatory matter itself or the steps taken by the defendant to verify its accuracy, there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity. Juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied." (my emphasis)

81 Applying those principles to the defence of qualified privilege advanced by Mr Roberts, if the plaintiff proved that the dominant motive of Mr Roberts for the defamatory publications was a desire to injure the plaintiff, the defence failed. In my opinion, the evidence was sufficient to justify the conclusion reached by the learned trial Judge that Mr Roberts possessed a dominant motive to injure the plaintiff. Mr Roberts engaged in a course of conduct over some months which was demonstrative of his ill will toward the plaintiff. His conduct when faced with requests by the Electoral Commissioner to correct his errors confirmed his ill will as did the tenor and content of his evidence. In my opinion, therefore, in this respect the finding of the learned trial Judge should be upheld.

82 As to Mr Case, in addition to the findings to which I have already referred, the learned trial Judge said:

"Furthermore, I am also of the view that the fourth defendant's actions in the distribution of the PSBL pamphlet on the day of the election was motivated by actual malice. The actions of the fourth defendant were not as recklessly blatant as that of the first defendant's. However, it is my opinion that he was so imbued with the purported ideal of public ownership of the administration of the Modbury Hospital that there was a complete failure on his part to enquire into any relevant factual issues with the result that his reasoning on various topics was patently flawed. Again, his dominant motive was to injure the plaintiff's reputation and remove him from office and, as such, it was an improper motive. I view his conduct as malicious."

83 The election occurred on Saturday 11 October, 1997. Mr Case is a teacher of long standing. He joined the Labor Party after 1975, but that membership lapsed when he went overseas in 1993. He was a supporter of a former Member for Florey, Ms Byrne. He travelled overseas in 1993 and, on his return in January 1994, became involved in the public opposition to issues related to the privatisation of the management of the Modbury Hospital. He was a member of a group that actively campaigned against the policy of the Government with respect to that hospital. Mr Case acknowledged in evidence being quite passionate about the Modbury Hospital issues.

84 In 1995, as spokesperson for the group, Mr Case sought a meeting with the Minister for Health. The request was refused on the basis, as Mr Case understood it, that Mr Case was biased. As a consequence he wrote to three Members of Parliament, including the plaintiff, about the group's concerns. The plaintiff replied by letter of 13 October 1995 inviting the group to communicate to him in writing about any concerns they had associated with the hospital. He stated he would have those concerns investigated by the appropriate authorities. The letter also referred to the refusal of the Minister to meet with Mr Case and supported the stand taken by the Minister.

85 Mr Case said he couldn't believe that the plaintiff had been so arrogant as to suggest that he would not assist the local people to secure a meeting with the Minister. He said he believed that the plaintiff had a duty to assist the people in the area to organise a meeting. The group continued to maintain its campaign and to bring to the attention of the public problems in the administration of the Modbury Hospital. When it became common knowledge that an election would occur in the latter half of 1997 the group continued its activities and decided as a group that it would "target" the plaintiff. Mr Case gave the following evidence:

"Q. That was in July of 1997, in the lead up to the election, did your group discuss participating in the election process in any way.

Q. Was any decision taken by your group, as to its involvement in the election process.

A. Yes, we decided as a group that we would target, in particular, Sam Bass in the electorate of Florey.

Q. What was the reason for that decision, do you recall.

A. The reason we decided to target Sam Bass, as opposed to the other two members in that district, was because we felt that Sam Bass was, to put it bluntly, an easy target. We believed that his record was such that we would be able to campaign and would have a good chance of success in having him defeated at the election. There were two aspects to that. One was that Sam Bass had actively taken actions and spoken out against the interests of the group, which was to restore the Modbury Hospital to public hands. So we felt that as a local member in that district, that the interests of returning the Modbury Hospital to public hands would be best served by getting rid of Sam Bass. That was one reason. Another reason was that Sam Bass's record on the hospital issue was one that we could argue quite easily, because on two occasions he had refused to help us in the issue of the privatisation. So we could categorically go to the electorate and say that he wasn't doing what he should be doing as the local member, and therefore you people out there shouldn't be voting him back in. That was in regard to the hospital. We were also aware that he tripped off overseas in the death knock of his term of office, when everybody was saying there is going to be election next week, or next month, or whatever, and in the face of all of the stuff about politicians going overseas, he went overseas. We just thought that was like jam on our toast. It would mean the public, and it was all over the place, that the public were already going to be against him on that issue, and there was that. And the third issue was in regard to the gun legislation where he actively opposed the Howard propositions and he was publicly known for doing that. So all we were doing was adding the Modbury Hospital action stuff to it, and we figured we would defeat him. That would benefit us in two ways. One is, we would get rid of a local member that was no good to us or, in fact, no good to the electorate, as we believe, and it would also bring greater attention to the Modbury Hospital issue, because we could claim that as a group that issue had been significant in defeating him and therefore if the Liberals got back into power, that would put more pressure on them to actually do something about the Modbury Hospital contract."

86 The group was responsible for a pamphlet which urged electors to reclaim the public hospital and put public health first "by putting Sam Bass, Liberal, last". That pamphlet was distributed during the campaign. Mr Case was overseas for ten or eleven days prior to Thursday, 9 October, 1997. During that time the group also campaigned against the re-election of Mrs Dorothy Kotz.

87 Following his return to South Australia on Thursday 9 October 1997, Mr Case contacted the group and was allocated a polling booth. He was told to attend at 8 am and the material for distribution would be available at the booth. When he attended on the morning of the election he saw for the first time the two pamphlets he was to distribute. The first was the pamphlet produced by the group. The second was the Card which is the subject of these proceedings. Mr Case said that when he read the Card there was nothing in it that caused him any concern. He distributed the Card from about 8 am until 10 am.

88 As to some of the statements on the Card, Mr Case gave the following evidence:

"Q. Just look at P4 again. Do you see that on the front side, it commences - the things Sam Bass has done as the member for Florey.

Q. And number 1 says - had numerous junkets at your expense, including trips to the United Kingdom and Nauru. Do you see that.

Q. Did you have a belief on that day, as to the truth of that assertion.

A. Of course, I mean he basically just got back from Nauru less than a month, or whatever.

Q. Is that right. When did you understand he went to Nauru.

A. I thought it was only a matter of months prior to the election.

A. Yes, something like that, isn't it about that. I mean certainly in my mind he had not long got back.

A. Yes, I mean I was aware that he had been to the United kingdom on a trip, and the Nauru one, and I was aware that he had done other things, but I didn't know what they were particularly.

Q. Did you see the second thing. That he had stood by and did nothing to stop secret deals with Modbury Hospital.

Q. Did you have a belief as to the truth or accuracy of that statement.

A. Yes, I mean in fact he had done no more than that. When we had asked him for help, he had said no, so I mean he was well into the 'did nothing', I can tell you.

Q. In respect of the third matter, did you read that.

ROBERTS & CASE v BASS No. SCGRG-00-325 [2000] SASC 297

At a glance

Court

Decision date

Before

Source

Judgment (317 paragraphs)

ROBERTS & CASE v BASS No. SCGRG-00-325 [2000] SASC 297 (8 September 2000)

Parties

Legislation Cited (2)

Cases Cited (11)