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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Defamation - publication of defamatory material in newspaper in each State and both mainland Territories - imputations.Defamation - defence of qualified privilege.
Defamation - defence under Defamation Act 1974 (NSW) s.22 - meaning of "interest" - whether conduct of publisher reasonable in the circumstances - onus of proof.
Defamation - damages - injury to reputation and injury to feelings - no separate head of damages for vindication to reputation - aggravated damages.
Defamation - damages - assessment - publication of defamatory material in each State and both mainland Territories.
Gorton v. Australian Broadcasting Commission (1973) 1 ACTR 6 at p.11
Farguhar v. Bottom and Anor (1980) 2 NSWLR 380 at p.386
Adam v. Ward (1917) AC 309
Morosi v. Mirror Newspapers Ltd. (1977) 2 NSWLR 749
Hook v. John Fairfax and Sons Ltd. (1982) 42 ACTR 17, 47 ALR 477
Australian Broadcasting Commission v. Comalco Ltd. (Federal Court of Australia, unreported, 11 September 1986, per Smithers J. at p.44 and per Pincus J. at p.9)
Barbaro v. Amalgamated Television Services Pty. Ltd. (1985) 1 NSWLR 30 per Hunt J. at p 40
Wright v. Australian Broadcasting Commission and Another (1977) 1 NSWLR 697
Austin v. Mirror Newspapers Ltd. (1985) 63 ALR 149; (1986) AC 299
Brigshaw v. Brigshaw [1938] HCA 34; (1938) 60 CLR 336
Redmond v. Uebergang (1984) 1 NSWLR 311
Uren v. John Fairfax & Sons Pty. Ltd. [1966] HCA 40; (1965) 117 CLR 118
Lamb v. Readers Digest Services Pty. Ltd. [1982] HCA 4; (1981) 150 CLR 500
Broome and Another v. Cassell & Co. Ltd. [1972] UKHL 3; (1972) AC 1027 at 1125
Triggell v. Pheeney [1951] HCA 23; (1951) 82 CLR 497 at p.514
Allsopp v. Incorporated Newsagencies Co. Pty. Ltd. (1975) 26 FLR 238 at p 241
Comalco Ltd. v. Australian Broadcasting Corporation (1985) 64 ACTR 1
HEARING
CANBERRACounsel for the Plaintiff T.K. Tobin Q.C. and I.A. Curlewis
Solicitors for the Plaintiff: MacPhillamy Cummins & Gibson
Counsel for the Defendant: W.H. Nicholas QC and J.S. Wheelhouse
Solicitors for the Defendant: Stephen Jaques Stone James
ORDER
There be judgment for the plaintiff in the sum of $46,250 plus interest in the sum of $7,125, making a total of $53,375.00.The defendant pay the plaintiff's costs as taxed or agreed.
There be a stay of proceedings of the judgment of this Court for a period of 21 days from 10 April 1987.
Upon the filing of a Notice of Appeal to the Federal Court of Australia the stay of proceedings continue until the appeal is disposed of or until the Federal Court of Australia otherwise orders on terms that the defendant pay to the plaintiff an amount equal to one-half of the judgment immediately following the filing of the Notice of Appeal.
DECISION
The plaintiff sues the publisher of the Sun Herald newspaper for damages for defamation. The publication in question is an article appearing on the front page and the third page of the newspaper published on 6 June 1982. The plaintiff relies on the publishing of the article in each of the Australian States as well as in the Australian Capital Territory and the Northern Territory. Publication is admitted.2. It is appropriate to set out the terms of the article. The article as pleaded in the statement of claim has had added to the text a number alongside each paragraph, and it is convenient to retain these numbers for later ease of reference.
3. That part of the article which is on the front page is as follows:
"1. GOVT BUNGLE HITS HOME SAVERS
2. Vice-regal protocol and bureaucratic bungling4. The headline "Govt Bungle Hits Home Savers" is in bold print about five centimetres high, appearing partly above and partly on the lefthand side of the text. Immediately below the words "Govt Bungle" appear the words "from Neil O'Reilly". Those words are omitted from the statement of claim. A photograph of Senator Chaney appears on the righthand end of the words "Govt Bungle". A photograph of Michelle Todd and Greg Sheather is placed on the righthand side of the text of the article. Paragraph 2 is in bolder and heavier print than the remainder of the article. The article, including the headline, occupies more than half of the front page, the rest of the page being taken up with the banner of the newspaper itself and references to other material within the newspaper, such as a liftout tax guide, a super bingo game and a holiday competition.
have denied hundreds, and possibly
thousands, of young couples the right to
Federal Government home-savings grants.
3. The full extent of the amazing mix-up was
discovered only on Friday when a young
Sydney couple, Michelle Todd and Greg
Sheather (right), applied for the $2,000
grant.
4. They believed they were well within the
deadline when the Governor-General, Sir
Zelman Cowen, was to have given Royal Assent
to changes in the Government's housing
scheme, including a new means test.
5. But Sir Zelman signed the document last
Wednesday - days earlier than expected -
despite intervention by the Minister for
Social Security, Senator Fred Chaney.
6. Senator Chaney wanted the signing delayed
until June 9 so more couples eligible under
the old scheme could still apply. But
Government House officials refused.
7. It meant the young couple who'd been saving
for years and had been rushing to meet the
deadline, failed to qualify because they
didn't sign their house contract until
Thursday - 16 hours after Sir Zelman's Royal
Assent changed the rules.
8. It's feared thousands more will miss out for
the same reason, although up to 100,000
could still be eligible provided their house
contracts were completed before last
Wednesday."
5. The remainder of the article, appearing on page 3, is as follows:
"9. MISSED HOME GRANT BY ONE DAY.6. Before the commencement of the text on page 3 appear the words "by Neil O'Reilly". These words are not referred to in the statement of claim. A further photograph of Ms. Todd and Mr. Sheather appears on the righthand side of the text of the article. The headline "Missed home grant by one day" in letters some two to three centimetres high is in the middle of the text of the article. The article occupies more than one half of page 3. The rest of the page is taken up by photographs and articles relating to a murder, a fatal shooting and an advertisement for a portable hot water service.
10. COUPLE ANGRY.
11. Young Sydney couple Greg Sheather and his
fiancee Michelle Todd, were still dismayed
yesterday over 16 hours - and some
bureaucratic bungling - which cost them a
$2,000 Federal home savings grant.
12. They failed to qualify by just 16 hours
because the Governor-General, Sir Zelman
Cowen, gave Royal Assent earlier than
expected to the Commonwealth Government's
new savings grant scheme, which includes a
means test.
13. Sir Zelman signed the document, despite
intervention by the Minister for Social
Security, Senator Fred Chaney, who now fears
that many other young couples will miss out
for the same reasons.
14. Couples eligible for a $2,000 grant under
the old scheme (which had no means test)
were warned a few weeks ago that time was
running out for them to qualify.
15. RULES CHANGED.
16. But many, like Greg and Michelle, believed
they still had time to meet the deadline,
because Sir Zelman wasn't expected to give
Royal Assent, thereby changing the rules,
until sometime next week.
17. After some hectic organising - and years of
saving - Greg and Michelle, finally signed a
contract for their new home last Thursday.
18. Believing they still had time to qualify
they applied for the grant on Friday only to
be told it was too late because Sir Zelman
had given Royal Assent to the legislation on
Wednesday.
19. Had they signed their house contract on
Wednesday instead of Thursday they would
have qualified.
20. Senator Chaney had tried to delay the bill
receiving Royal Assent until June 9 to give
young couples more time to apply.
21. But Government House had objected, saying
the legislation would have to be treated "in
the normal way" and be signed as soon as
possible.
22. The predicament of Greg Sheather and
Michelle Todd began soon after the
Treasurer, Mr. John Howard, announced
details of the Government's new housing
package in March.
23. Miss Todd said yesterday: "We contacted the
then Housing and Construction Department and
were told that under the new legislation we
would not be entitled to a grant because our
combined income exceeded the $417 a week
limit."
24. Two weeks ago they read in the Sun-Herald
that there was still about a two weeks'
deadline to qualify for the old home savings
grant scheme, provided they signed a
contract before the legislation received
Royal Assent.
25. Miss Todd said: "I took time off work to
try to complete all the arrangements for
signing the contract within the deadline."
26. The Sun-Herald was told two weeks ago that
the Government could not put a precise time
on the signing of the bill because it
depended on when the Governor-General was
available.
27. Inquiries last week revealed that Senator
Chaney, realising the problem had wanted the
signing of Royal Assent to be postponed
until June 9.
28. Government House officials had overruled him
on protocol grounds.
29. Senator Brian Harradine sought to have the
legislation amended to allow more time for
the old home savings grant scheme to
operate.
30. But the majority of the Australian Democrats
would not support the proposition and the
amendment failed.
31. The Bill was passed and was sent to
Government House in the normal way despite
Senator Chaney's misgivings.
32. The problem about accepting Senator
Harradine's amendment was that the Bill
would have had to go back to the House of
Representatives before it could have become
law.
33. The House had adjourned for the winter
recess and the Government did not believe it
important enough to recall the House to deal
with only one amendment.
34. Government sources said the problem could
have been averted had the Parliamentary
draftsman not insisted on making it
operative from the date of Royal Assent.
35. Greg Sheather said yesterday: "I believe
we've been given a raw deal because we were
originally misinformed by somebody in the
Sydney office of the old Department of
Housing and Construction."
36. The Government is about to mount a big
publicity campaign to ensure that people
still eligible for the old home savings
grants apply before the cut-off date of July
2.
37. The Government estimates that more than
100,000 eligible couples have not yet
applied."
7. The amended statement of claim (referred to herein as "the statement of
claim") alleges that the article gives rise to the following
imputations:
"(a) the plaintiff acted with callous disregard8. In its amended defence, the defendant denied that the article identified the plaintiff, denied that the matter complained of was defamatory and relied on a defence of qualified privilege. An additional ground of defence was pleaded under s.22 of the Defamation Act 1974 of New South Wales relating to publication in that State.
for the welfare of young couples by refusing
to delay the Royal Assent for several days
to enable them to become eligible for home
savings grants;
(b) the plaintiff was guilty of bureaucratic
bungling in arranging for the Royal Assent
to be given prematurely thereby causing
numerous young couples to be denied the
benefit of a home savings grant;
(c) the plaintiff was guilty of gross
incompetence in the execution of his duties;
(d) the plaintiff was responsible for
bureaucratic bungling whereby the Royal
Assent was given to legislation earlier than
expected, thereby causing young couples to be
denied the benefit of a home savings grant;
(e) the plaintiff acted without compassion for
the welfare of young couples by objecting to
a delay in the Royal Assent to legislation
as a result of which young couples were
denied the right to a home savings grant;
(f) the plaintiff was inefficient in the
performance of his official duties with
respect to the signing of the legislation
concerning home savings grants;
(g) the plaintiff had been unco-operative to the
point of being obstructive in the
implementation of Government Policy whilst
carrying out his duties as Official Secretary
to the Governor-General."
9. The plaintiff filed an amended reply which was concerned with the defence of qualified privilege and the defence under s.22(1) of the Defamation Act 1974 of New South Wales. I shall deal with the amended reply at a later stage.
10. Before going on to deal with the issues in the case I shall state something of the factual background, first as to the plaintiff himself and secondly as to the matters the subject of the article in question. These factual matters were mostly not the subject of dispute, but if there was a dispute in relation to any of them, I find the facts established as I am about to state them.
11. The plaintiff was aged 53 years at the time of hearing, and married with three adult children. Since January 1973 he has held the position of Official Secretary to the Governor-General. He joined the Public Service of the Commonwealth in Melbourne 1953 and came to Canberra in September 1957. He remained an officer of the then Department of the Interior for more than ten years. At the end of his first year in Canberra he was appointed Private Secretary to the Minister for the Interior and Minister for Works, a position which he occupied for some five years. In 1963 he became the Administrative Assistant to the Head of the Department until September 1967 when he transferred to the Department of the Prime Minister. In 1969 he became the Senior Adviser in the Government Branch of the Parliamentary and Government Division of that Department. In 1971 the plaintiff was appointed Secretary of the Executive Council and Assistant Secretary, Government Branch, of the Parliamentary and Government Division. He occupied that latter position until his appointment as Official Secretary to the Governor-General in January 1973. It is well known that the plaintiff was the Official Secretary to the Governor- General in November 1975 when the Whitlam Government was dismissed, and that it was the plaintiff who read the proclamation of dissolution from the steps of Parliament House on the afternoon of 11 November 1975.
12. The first task of the Official Secretary is, as the plaintiff himself put it, to act as "the Governor-General's Chief of Staff". In mid-1982 there were about 75 persons on that staff and the Official Secretary had the responsibility of administering what was in effect a small department of government. The other and distinctive aspect of the role of the Official Secretary lies in his personal responsibility to the Governor-General. Of particular relevance for the purposes of this case is the role of the Official Secretary in providing liaison between the Governor-General and the elected government of the day. In practical terms this means that the Official Secretary acts as the means of communication between the Governor-General and individual ministers. There is no other official at Government House to whom falls the task of performing that particular duty.
13. It is necessary to consider the procedure whereby a bill passed by the Parliament receives the Royal Assent. There was a considerable amount of unchallenged evidence on this subject. I shall summarize it briefly. The normal procedure is that a number of copies of the bill are sent to the Official Secretary under cover of a letter from the Clerk of the House in which the bill originated, together with further copies under cover of a letter addressed to the Governor-General by the presiding officer of the House in which the bill originated. All copies are held by the Official Secretary until a letter is received from the Attorney-General certifying that the bill does not require to be reserved for the personal assent of the Queen and that there is no formal objection to the bill being presented to the Governor-General for Royal Assent. Upon receipt of that letter from the Attorney-General, the Official Secretary or his deputy attends upon the Governor-General who places his signature upon the bill. The Official Secretary then arranges for a message to go to both Houses of Parliament reporting that the Royal Assent to the bill has been given. From the time of the arrival of the letter from the Attorney-General certifying that the bill is in order to be presented to the Governor-General until the time that the bill is in fact placed before His Excellency for signature, the only lapse in time which may be expected to occur will be due to any temporary personal unavailability of the Governor-General. However, there is a convention that if a number of bills are received, then they are placed before the Governor-General in the order in which they are received. Hence some delay might be caused if the letters from the Attorney-General do not reach the Official Secretary in the same chronological order as that in which the bills were received. This may be productive of some delay but not, so it seems, for more than a few hours. Apart then from the question of the Governor-General's personal availability and the receipt of the appropriate letter from the Attorney-General, a bill is required to be taken by the Official Secretary to the Governor-General for his signature immediately upon its receipt. The Official Secretary has no discretion as to whether he will or will not immediately present the bill to the Governor-General. He has no power to delay that presentation once the Attorney-General's letter has been received and the Governor-General is available to place his signature on the bill.
14. In 1976 there was established by the Home Savings Grant Act a scheme of financial assistance to first home buyers who satisfied certain eligibility conditions relating to savings. In May 1982 legislation in the form of two Bills was introduced into the Parliament to abolish this scheme and replace it with a new scheme to be established under the Home Deposit Assistance Act. The new scheme differed from the old scheme in certain important respects, one of which was that applicants under the new scheme were subject to a means test. When the legislation was in the final stages of debate in the Senate, there was debate about the position of persons who had been saving under the old scheme, possibly for some years, but who had not yet satisfied all the eligibility requirements. In particular consideration was given to the position of persons who had met the requirements as to their savings, but who had not yet acquired the right to a grant of assistance by the signing of a contract for the purchase or construction of a home. Several senators, on both sides of the Chamber, made the point that such persons ought to be given some time in order to finalise arrangements for the purchase or construction of a home and so render themselves entitled to a grant. Despite these misgivings, the Bills were finally passed without amendment on 27 May 1982, one of the circumstances being that it was impractical to send the Bills back to the House of Representatives for amendment because the House had already adjourned for the winter recess. The new legislation which introduced the new scheme and brought the old scheme to an end provided that it should come into effect on the day upon which it received the Royal Assent. The decision to provide in the legislation that it should come into effect on the day upon which it received the Royal Assent was a deliberate one taken by the Legislative Committee of Cabinet.
15. At about the same time that the new scheme was under consideration in the Parliament, a decision was made within the government that the administrative arrangements for the carrying out of the new scheme should be transferred from the Department of Housing and Construction to the Department of Social Security. The Minister for Social Security, Senator Chaney, was given the responsibility for the passage of the Bills in the Senate.
16. Prior to the eventual passing of the Bills in the Senate, Mr. Neil O'Reilly, the Canberra correspondent of the Sun Herald, had become aware of the problem faced by persons who had been saving under the old scheme but who might be precluded by the means test from obtaining a grant under the new scheme. In the Sun Herald of 23 May 1982 there appeared an article written by Mr. O'Reilly in which it was stated that couples who wanted a federal government home savings grant would need to have signed a contract for a purchase of a home "within two weeks" as that was when the current home savings grant scheme would end in order to make way for the new home deposit assistance scheme. The article further stated that the new scheme would receive Royal Assent "in about two weeks".
17. Once it became apparent to the government that the legislation would be passed without amendment and would come into effect upon the receipt of Royal Assent, consideration was given as to whether, in the interests of persons who had been saving in order to obtain a grant under the old scheme, there might be some delay in the giving of the Royal Assent. Advice was received from the Attorney-General's Department that the circumstances justifying the withholding of the Royal Assent, to which I have previously referred, did not exist.
18. The Bills arrived at Government House from the Senate by parliamentary courier on the morning of Monday, 31 May 1982. In the late morning Mr. Ian Fletcher, Secretary to the Minister, Senator Chaney, telephoned the plaintiff at Government House. He enquired as to whether it was possible to delay the Royal Assent and, if so, what needed to be done to that end. The plaintiff replied that the Royal Assent could not be given until receipt of the Attorney-General's letter, which at that stage had not yet arrived, but that once the letter arrived, further delay would not be possible. The plaintiff suggested to Mr. Fletcher that any question of delay should be taken up with the Attorney-General.
19. Some time after 6 p.m. on the evening of Tuesday, 1 June, Senator Chaney telephoned the plaintiff to enquire as to whether there was any way in which further delay in obtaining the Royal Assent could be achieved. It was during the course of this telephone conversation that the letter (or letters) from the Attorney-General certifying that the Bills were appropriate to go to the Governor-General for Royal Assent arrived at Government House. The plaintiff explained that because of the lateness of the hour, the absence of office staff, and the fact that the Governor-General had retired for the day meant that it was not appropriate to approach the Governor-General for his signature until the following morning. The plaintiff added that he would not place the Bills before the Governor-General until 9.30 a.m.
20. Between 9 and 9.30 a.m. on Wednesday, 2 June 1982, Mr. Allen, Acting Private Secretary to the Minister, telephoned the plaintiff and informed him that the Minister and the Attorney-General had conferred, the Attorney-General advising the Minister that the Attorney-General could not advise the Governor-General to delay or withhold the Royal Assent. Within minutes of this conversation the plaintiff placed the bills before the Governor-General and the Bills received the Royal Assent. The old Homes Savings Grant Scheme had come to an end.
21. Amongst the persons affected by the abolition of the old scheme were Mr. Gregory John Sheather and Ms. Michelle Todd, who were engaged to be married. They had apparently met the requirements of the old scheme regarding savings and some time prior to 23 May 1982 Mr. Sheather had made application to the Department of Housing and Construction for a grant. Ms. Todd was told, by whom it is not clear, that the scheme was subject to a means test which made them ineligible for a grant. This advice, of course, was quite inaccurate as the new scheme had not yet come into operation and the old one had not been abolished. Nevertheless, after reading the article of 23 May 1982 Mr. Sheather and Ms. Todd decided that they would make a further application for a grant under the old scheme and they signed contracts for the purchase of a house on Thursday, 3 June 1982. However, by then the old scheme had been abolished and the means test rendered them ineligible for a grant under the new scheme.
22. The first issue to be determined is that of identification, that is to say, whether the material complained of was published of and concerning the plaintiff. It was properly conceded during the course of argument that the plaintiff had to succeed on this issue. There was uncontroverted evidence of persons who had read the article and who had taken it to refer to the plaintiff as the person in charge of affairs at Government House concerning the procedures as to the obtaining of Royal Assent to the Bills in question. The extent of the identification amongst the readers to whom the article was published is, however, another issue which relates to damages. I shall deal with that further issue in due course.
23. I turn now to the question whether the publication carries a defamatory meaning. At the outset I should observe that some time was taken during the course of submissions as to whether the words were capable of bearing a defamatory meaning. Such a question may be important in a jury trial where, if the words are incapable of bearing a defamatory meaning, the judge must take the case from the jury and direct the entry of judgment for the defendant. Where there is no jury, the question may arise at the end of the plaintiff's evidence if the defendant wants to move for a non-suit without calling evidence. But if the question is raised in a trial without jury only after the completion of all the evidence, it seems to me a little academic. In any event I have no hesitation in finding as a matter of law that the publication in question is capable of bearing the defamatory imputations alleged and I move immediately to the issue of fact as to whether as the tribunal of fact I am satisfied that the imputations have been proved.
24. The standard to be applied is what would be understood by the ordinary reasonable reader (referred to henceforth in this judgment as simply "the reader"). But in this case the plaintiff relies upon publication not only in the Australian Capital Territory but in all the Australian States and the Northern Territory as well. During the hearing I raised the question as to whether the understanding of the reader in, say, Western Australia would be the same as that of the reader in the Australian Capital Territory. Counsel for the defendant accepted, and counsel for the plaintiff did not demur from the proposition that in these proceedings in this Court the standard to be applied in respect of publication throughout Australia is the standard of the reader in the Australian Capital Territory, and it is that standard which I shall apply without regard to any separate question of what the reader in other parts of Australia might understand by the words published.
25. It is always difficult for a judge sitting alone to decide what the hypothetical reader would take to be the meaning of words alleged to be defamatory, thereby casting aside the judge's own personal understanding of those words. In Gorton v. Australian Broadcasting Commission (1973) 1 ACTR 6 at p 11 Fox J. said "what I believe the hypothetical ordinary man would take from the words used can only be a matter of impression".
26. In the context it is important to bear in mind that the reader, although taken to have a smattering of knowledge of legal principle and the workings of the law, is not a skilled lawyer. The subject of the article in question raises a number of matters of law and matters pertaining to parliamentary and constitutional practices. It is important for the purposes of the present case to determine, difficult as that may be, how far the reader would have knowledge of the parliamentary and constitutional procedures and conventions relating to the obtaining of the Royal Assent to a bill which has passed through Parliament, and how far that knowledge might be aided or assisted or confused by the article in question. I would take the ordinary reasonable reader in Canberra to know, particularly since November 1975, that in general terms there is a distinction between the official but personal duties of the Governor-General and the function of the government of the day, and of its individual ministers. I would also expect that reader to know, again in a general and somewhat imprecise way, that there are certain functions of state in which the Governor-General and ministers together play a part but I would not expect that reader to know, for instance, the exact composition or function of the Executive Council. These matters may again seem somewhat academic but in view of the submissions put on behalf of the defendant I think it is desirable to indentify as far as possible the approach of the reader, insofar as it may be distinguished from that of one trained and experienced in the law.
27. It was said by Hunt J., citing authority, that the ordinary reasonable reader does not live in an ivory tower, that he or she can and does read between the lines in the light of general knowledge and experience of worldly affairs but that it is important to bear in mind that such a reader is not a lawyer and that such reader's capacity for implication is much greater than that of the lawyer: Farquhar v. Bottom and Another (1980) 2 NSWLR 380 at p 386. His Honour drew attention to the extent to which the reader of a sensational article in a newspaper would be prone to engage in a certain amount of loose thinking and to the likelihood that the article would not be the subject of close analytical attention. Moreover, where the words published are imprecise, ambiguous, loose, fanciful or unusual, the words published have a substantial capacity to convey particular imputations.
28. Viewed in this light I think that the reader in Canberra would have known that the plaintiff was the Official Secretary to the Governor-General at the time in question and that he had responsibility for communication between ministerial and parliamentary officers on the one hand and the Governor-General on the other. However, the reader, in my view, would not have known the precise limits of the Official Secretary's discretions and powers. The reader would not have known in particular that there was no capacity in the Official Secretary to delay the presentation of a bill to the Governor-General for Royal Assent. That reader would not have had positive knowledge that, although an official of government in the broad sense, the plaintiff was immune from control or direction of the elected Government of the day and of its ministers. Hence, the reader was susceptible to an implication that there were at the disposal of the Official Secretary to the Governor-General certain powers or discretions and, in addition, to an implication that those powers or discretions had been exercised in a certain way. I reject the submission on behalf of the defendant that the reader would have been aware of any significant distinction between the Vice-Regal function insofar as it affected the duty and the power of the plaintiff, and the function of the elected government. Although the reader would have been aware of some vague distinction, his or her knowledge would have been insufficiently precise in detail and insufficiently firm in conviction to resist the implication that it lay within the power of the Official Secretary to do something which would have had the effect of delaying the Royal Assent to a bill.
29. It was in this state then of incomplete knowledge that the reader faced the front page of the Sun Herald of 2 June 1982. The presentation of that article on the front page with its bold headlines did not invite the reader to consider its contents in an analytical way. The tone was both arresting and accusing. Paragraph 2 appears in larger and heavier type than the remainder of the article. It blames a combination of "vice-regal protocol and bureaucratic bungling" for the denial of the "right". Paragraph 3 speaks of an amazing mix-up. Paragraphs 4 and 5 identify the act which deprived the young couples of their right as the giving of the Royal Assent by the Governor-General to changes in the Government's housing scheme, an impact which occurred days earlier than expected and despite intervention by the Minister. Paragraph 6 asserts that the Minister wanted the signing delayed so that more couples eligible under the old scheme could still apply but asserts that "Government House officials refused". In this way the context is set for the reader to read the remaining paragraphs on page 1 and to turn to page 3 to read the rest of the article.
30. In my view, the reader would, upon completing a reading of the article, be left in the position where there was no distinction drawn between the role played by "Government House officials" and that played by other official persons in bringing about the situation faced by Ms. Todd and Mr. Sheather, and others like them. The reader would be left with the clear impression that an injustice had been done to Ms. Todd and Mr. Sheather and "hundreds and possibly thousands" of home-savers like them, that Senator Chaney representing the latter day thinking of the government on the issue had sought to avoid that injustice and that his efforts had been frustrated. In that situation the reader was invited to look for the culprits and would, in my view, have concluded that amongst the culprits were those officials at Government House who had refused to accede to the request of the Minister that there be a delay in obtaining the Royal Assent. I do not think that the reader would have come to the conclusion that the only culprits were those at Government House. If he had paused to reflect on where the greater share of the blame should lie, the reader may have been in some confusion but I do not think it is necessary for me to decide what conclusion the reader would have drawn if he had asked himself that question, assuming that he had been able to reach a conclusion.
31. It was submitted on behalf of the defendant that the distinction between "vice-regal protocol" and "bureaucratic bungling" on the other hand was made in the opening words of the article and maintained throughout. I do not accept this submission. In paragraphs 20 and 21 the assertion is repeated that Senator Chaney had tried to delay the Royal Assent but that "Government House had objected". Paragraph 21 attributes to "Government House" a statement that the legislation would have to be treated "in the normal way" and be signed as soon as possible. Paragraphs 27 and 28 repeat a similar assertion, namely that "Government House officials" had over-ruled Senator Chaney "on protocol grounds".
32. Accordingly, although the opening words of the paragraph may, upon their face, appear to distinguish between the vice-regal function on the one hand and the bureaucratic function on the other hand, the repeated reference to "Government House" and to "Government House officials" blurrs this distinction. Moreover, paragraph 21, taking it as a reference to the plaintiff as I find it to be, asserts that he "had objected". Paragraph 28 asserts that the plaintiff had "over-ruled" the Minister. Whilst I would accept that it would be unusual to speak of a bureaucrat over-ruling a minister, the assertion in paragraph 21 not only that the plaintiff "had objected", but also that he had said that the legislation would be treated "in the normal way" and be signed as soon as possible, is suggestive of the behaviour of the stereotype of the intransigent bureaucrat, concerned with form and not substance. Again, despite the submissions of counsel for the defendant, I do not think that the use of the word "protocol" would alert the reader to the proposition that the plaintiff was insisting upon the proper constitutional conventions rather than that his concern was for undue formality and ceremony.
33. I turn now to consider whether the plaintiff has proved the imputations relied upon, bearing in mind that the plaintiff is entitled to succeed upon any defamatory imputation proved which is not substantially different from those pleaded. In this respect I should state that it is my view that some of the imputations pleaded in paragraph 5 of the statement of claim do not differ in substance from each other and I propose to treat them in this light.
34. Sub-paragraph (a) alleges that the plaintiff acted with callous disregard for the welfare of young couples by refusing to delay the Royal Assent for several days to enable them to become eligible for home savings grants. Sub-paragraph (e) alleges that the plaintiff acted without compassion for the welfare of young couples by objecting to a delay in the Royal Assent to legislation as a result of which young couples were denied the right to a home savings grant. I propose to treat these two imputations as one and the same.
35. Sub-paragraph (b) alleges that the plaintiff was guilty of bureaucratic bungling in arranging for the Royal Assent to be given prematurely thereby causing numerous young couples to be denied the benefit of a home savings grant. Sub-paragraph (d) alleges that the plaintiff was responsible for bureaucratic bungling whereby the Royal Assent was given to legislation earlier than expected, thereby causing young couples to be denied the benefit of a home savings grant. Again I propose to treat these two imputations as one and the same.
36. Sub-paragraphs (c) and (f), in my view, ought to be treated as substantially the one imputation. They allege respectively that the plaintiff was guilty of gross incompetence in the execution of his duties and that the plaintiff was inefficient in the performance of his official duties with respect to the signing of the legislation concerning home-savings grants.
37. The remaining imputation is alleged in sub-paragraph (g), namely that the plaintiff was unco-operative to the point of being obstructive in the implementation of Government Policy whilst carrying out his duties as Official Secretary to the Governor-General.
38. As to sub-paragraphs (a) and (e), as I have already indicated, the article leaves the reader with the impression that it lay within the power of the plaintiff to delay the Royal Assent for sufficient time to enable a number of home savers, including Ms. Todd and Mr. Sheather, to apply for and obtain a home savings grant. The article does not ascribe any motive to the plaintiff in refusing to exercise his power to delay the Royal Assent. It simply states that the plaintiff's attitude was that the legislation had to be treated "in the normal way", that the bills should be signed as soon as possible. The further statement is that the refusal was based on "protocol grounds" which in the context of the article, I think, would have been taken by the reader to mean an insistence upon formalities which should have been waived in the interests of home buyers. In my view the ordinary reader would have taken all this to lead to a conclusion that the plaintiff did indeed act with callous disregard and without compassion for the welfare of young couples who would have otherwise been eligible for home savings grant.
39. The imputations pleaded in sub-paragraphs (b) and (d) assert that the plaintiff was guilty of "bureaucratic bungling". As I have already indicated, I think that the article does not sufficiently distinguish between the function of the plaintiff and the function of others concerned in the governmental process to leave the reader with the impression that the allegation of bureaucratic bungling is not aimed at the plaintiff. After all, the ordinary reader in Canberra would know, as is the fact, that in a sense Government House does contain its own bureaucracy which is presided over by the Official Secretary himself. The nature of the duties of the officials at Government House, including the Official Secretary, is such that they would be regarded in the general community, and by the reader, as public servants, although public servants in a distinctive area of public service and with particular duties. I do not think that the reader of the article would have had any difficulty with the notion that the Official Secretary was a bureaucrat and, in my view, he or she would have read the article in the belief that the Official Secretary was one of the bureaucrats whose bungling had led to the injustices perpetrated upon young home buyers.
40. The imputations pleaded in sub-paragraphs (c) and (f) are that the plaintiff was grossly incompetent and inefficient in the execution of his duties. For the purpose of proof of these imputations it would be, in my view, sufficient to show that the imputations under sub-paragraphs (b) and (d) had been proved in that if the plaintiff was responsible for bureaucratic bungling, he was necessarily guilty of gross incompetence and inefficiency. However, in the event that it might be considered that the imputation of bureaucratic bungling on the part of the plaintiff has not been proved, I should state that it is my view that the imputation of inefficiency and incompetence has been proved independently. The reader would take the article to mean, in my view, that the plaintiff did not know that he had the power to delay the obtaining of the Royal Assent as requested by the Minister or alternatively that he acted recklessly in obtaining the Royal Assent before it was necessary to do so, without caring about the consequences. In this situation, having drawn to the conclusion that the plaintiff either did not know the extent of his powers or used them recklessly, I think the ordinary reader would be driven to the further conclusion that the plaintiff was incompetent and inefficient in the execution of his duties.
41. The final imputation pleaded is that the plaintiff was unco-operative and obstructive in the implementation of government policy. I have greater difficulty in deciding whether or not this imputation has been proved. As a lawyer it is difficult to rid one's mind of the proposition that it was no part of the plaintiff's function to act towards the implementation or towards the frustration of the policies of the government of the day. At least in the policy areas that are relevant to this case, that is to say, in matters relating to housing and government funding of housing the plaintiff had no role to play at all. If it had been the policy of the government that the constitutional conventions relating to the Royal Assent should be ignored or overthrown and that the Official Secretary or the Governor-General or both should be subject to the direction of the elected government or a minister to delay or withhold Royal Assent, then the Official Secretary in carrying out his proper duties to the office of Governor-General might well have sought to oppose government policy, but I do not read the imputation pleaded to mean this. In any event, there was no such government policy. In the light of the evidence I take the allegation to be that there was an imputation that the plaintiff was obstructive to government policy in relation to housing and government financing of housing. In this respect despite what a lawyer might have thought, I think that the reader would have taken the article to mean that the plaintiff used his powers to stand in the way of a government policy that the change in the legislation which was to end the old scheme of home assistance grants should be delayed as long as possible, or conversely that the plaintiff was concerned to use his powers to ensure that the new legislation was brought in as soon as possible contrary to the desire of the government to prolong the old scheme. I find the imputation pleaded in sub-paragraph (g) proved.
42. I turn now to the defence of qualified privilege. The defendant relies on the defence of qualified privilege in all places of publication, and in addition, in New South Wales, the defence provided by s. 22 of the Defamation Act of that State.
43. It was, however, but faintly argued on behalf of the defendant that the defence of qualified privilege was available. There is overwhelming authority to the effect that as between newspaper publisher and a newspaper reader there does not exist that reciprocity of intrest in transmitting and receiving information which is necessary to given rise to the availability of the defence of qualified privilege: see Adam v. Ward (1917) AC 309; Morosi v. Mirror Newspapers Ltd. (1977) Comalco Ltd. (Federal Court of Australia, unreported, 11 September 1986, per Smithers J. at p 44 and per Pincus J. at p 9). It is therefore not necessary for me to go on further to consider whether the defence of qualified privilege is defeated by the proof of malice on behalf of the defendant publisher.
44. I should mention that counsel for the defendant conceded that as far as publication in Tasmania and Queensland was concerned, the defendant did not press any defence in the nature of qualified privilege under the defamation laws of those States which was different from the defence of qualified privilege at common law. In other words, it was conceded that if the defence of qualified privilege failed in the common law States then it failed in Tasmania and Queensland also.
45. I turn now to the defence raised under s.22 of the Defamation Act 1974 of
New South Wales. That section provides as follows:
"22(1)Where in respect of matter published to any46. The word "interest" in this section has a meaning wider than the type of interest which is necessary to establish as part of the defence of qualified privilege at common law. In the section the word "interest" is used in the "broadest popular sense": Barbaro v. Amalgamated Television Services Pty. Ltd. (1985) 1 NSWLR 30 per Hunt J. at p 40. In Wright v. Australian Broadcasting Commission and Another (1977) 1 NSWLR 697 Reynolds JA with whom Glass J.A. agreed, held that the general public had an interest within the meaning of the section in having information "on the subject of public affairs". In Morosi v. Mirror Newspapers Ltd. (1977) 2 NSWLR 749, the Court of Appeal of New South Wales drew a distinction between the interest forming an ingredient of the defence of qualified privilege at common law and the broad interest referred to in s.22, a distinction which was referred to with approval by the Privy Council in Austin v. Mirror Newspapers Ltd. (1985) 63 ALR 149; (1986) NSW Court of Appeal at p 797 it was said:-
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."
"The limited application of the common law47. To adopt the words of Reynolds J.A. in Wright v. Australian Broadcasting Commission, the general public who formed the readership of the Sun Herald had an interest in having information on the subject of public affairs, including the termination of the home savings grant scheme, its effect on persons who had been saving in order to qualify for such a grant, and the circumstances in which the scheme came to an end by the giving of Royal Assent to the legislation.
principles of qualified privilege to publications
in newspapers has already been discussed. S.22
was designed to enlarge the protection afforded by
these principles to defamatory publications
generally, and it has a particular relevance to
publications in newspapers; but it gives no carte
blanche to newspapers to publish defamatory
matter because the public has an interest in
receiving information on the relevant subject.
What the section does is to substitute
reasonableness in the circumstances for the duty
or interest which the common law principles of
privilege require to be established."
48. Accordingly, I have little difficulty in finding (and there was really no dispute between the parties) that the defendant has established the matters required to be proved under s.22(1)(a) and 22(1)(b). The remaining issue is whether the conduct of the publisher in publishing the matter is reasonable in the circumstances in accordance with s.22(1)(c).
49. It is firmly established that the onus lies upon the defendant to prove the reasonableness of its conduct in publishing the defamatory matter: see Austin v. Mirror Newspapers Ltd. (1985) 63 ALR 49 at p 155, Morosi v. Mirror Newspapers Ltd. at p 796 and Wright v. Australian Broadcasting Commission at p 700. It is perhaps a curious exercise to enquire as to whether a party has proved that his conduct is reasonable, unless there are recognized criteria against which the reasonableness or otherwise of the conduct can be measured: for instance, for the purposes of the law of self defence, the reasonableness of the conduct of the defendant will be measured against the seriousness of the danger with which he believed he was confronted. S.22 does not lay down any criteria by which the reasonableness or otherwise of the defendant's conduct is to be assessed. In Austin v. Mirror Newspapers Ltd. the Privy Council said at p 155 that "in considering whether the conduct of the publisher is reasonable, the Court must consider all the circumstances leading up to and surrounding the publication. These circumstances will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be".
50. There would be, perhaps, comparatively little difficulty in instructing a
jury along the lines laid down by the Privy Council,
but the task for a trial
judge who is required to decide the facts as well as the law requires a
statement to be made as to what
are the particular facts among "all the
circumstances" which he finds to be relevant and ultimately decisive on the
issue of reasonableness.
Some assistance is provided in the judgments of the
New South Wales Court of Appeal in Wright v. Australian Broadcasting
Commission
where Reynolds JA said at p 705:
"Section 22(1)(c) calls for the consideration of a51. Reynolds JA further said on p. 712 that "the reasonableness of the conduct had to appear, if at all, from the text, the facts of the publication and from the plaintiff's unchallenged version of antecedent events".
wide range of matters. Some are to be found in
the published material itself and the manner and
extent of its publication, and others from the
whole of the surrounding circumstances. The
connection between the subject and the defamatory
imputation remains relevant. It may be tenuous, or
it may be real and substantial. If what was said
includes comment, it is relevant to consider
whether it was fair and whether it followed
logically from facts known or stated. Questions of
the exercise of care before the defamatory
utterance are also relevant, and questions as to
whether the maker of the statement knew whether he
was likely to convey a misleading impression.
These are but examples of what I conceive to be
involved in the inquiry to be made by the judge in
order to determine whether the defendant has
satisfied him that it was reasonable of him to
defame the plaintiff in the way he did".
52. In Morosi v. Mirror Newspapers Ltd. in the judgment of the Court of
Appeal of New South Wales at p 797, it was said as follows:
"Newspaper publications are made to the public at53. I do not think that it is of assistance in the present case for me to discuss whether in the circumstances the onus is a heavy one or a light one. It would seem to me that the onus is to be discharged by the defendant on the balance of probabilities, and the task which the defendant will face in any particular case will be more or less difficult according to the circumstances of the case. In any event I do not think that it could be said, indeed it was not argued, that the onus cast upon the defendant goes beyond the ordinary civil standard to the extent required in such cases as, for instance, Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336. For the purposes of s.22(1), the law is that on the face of it the conduct of a person publishing defamatory matter is unreasonable and it is for that person to prove otherwise.
large, and the conduct of a publisher in
publishing defamatory matter in a newspaper must
be reasonable having regard, inter alia, to that
wide publication. Any person publishing
defamatory matter should be careful to ensure that
it is proper for him to make the publication, no
matter how limited in extent it is. Since s.22
provides a defence, the onus is upon the publisher
to show that he is entitled to its protection. To
satisfy this onus, a newspaper publisher must
establish circumstances, or point to proven
circumstances, which make it reasonable to publish
the defamatory matter to the world at large. It
is rarely, if ever, that this onus would be
satisfied by the terms of the publication alone:
cf. Wright v. Australian Broadcasting Commission
(1977) 1 NSWLR 697; it is possible that, in some
cases, it would be satisfied by the evidence of
witnesses called by the plaintiff; but commonly
its satisfaction would require the publisher to
call evidence to establish what care he had
taken. In satisfying this onus, a newspaper
publisher is in no different position to a private
citizen in possession of the same information.
The fact that the publisher has sources for his
information, and that he has made the best check
possible in the time to ensure that the defamatory
matter is accurate does not, of course,
necessarily make reasonable the publication of
that matter in a newspaper. And it is difficult
to see how publication in a newspaper of
"understandings", "speculation", "beliefs" or
rumours that a person has been guilty of
discreditable conduct can ever be reasonable; but,
if a newspaper wishes to establish that it is, it
will bear a heavy onus indeed."
54. I should observe at this stage that in his amended reply, the plaintiff responded to the defence under s.22 by alleging that the defendant's conduct in publishing the matter complained of was unreasonable. The amended reply went on to furnish particulars of the unreasonableness relied upon, namely the knowledge of the defendant that the defamatory matter was untrue, or alternatively the recklessness of the defendant to the truth of the defamatory matter. Certain particulars of malice alleged in reply to the defence of qualified privilege were repeated and I do not propose to set them out here. The particulars were of some assistance in defining the issues in a practical sense but in my view they were gratuitous and I doubt whether the plaintiff could strictly be held to them. Where the onus is on the defendant to prove the reasonableness of its conduct I would think that it is the defendant who should furnish the particulars of reasonableness. It would be of assistance to the trial judge.
55. If I understood the submission correctly, it was suggested on behalf of
the defendant that the honest belief of Mr. O'Reilly
in the truth of the
publication was sufficient to establish the reasonableness of the conduct of
the publisher. It may be that the
judgment of Hunt J. in Redmond v. Uebergang
(1984) 1 NSWLR 311 can be read so as to contain that proposition, and the
headnote to
the case states as much. However, I do not think upon a proper
reading of the decision Hunt J. can be taken to have intended that
such a
proposition was to be laid down. The application before Hunt J. was an
interlocutory one concerning interrogatories and the
particular question that
arose was whether the plaintiff could be interrogated as to the objective
truth of the matter complained
of. His Honour held that the plaintiff could
not be so interrogated because the objective truth of what was published is
not an issue
under s.22. Be that as it may, I think that the passages from the
judgments in Morosi v. Mirror Newspapers Ltd. and Wright v. Australian
Broadcasting
Commission are sufficient to show that the test of reasonableness
goes well beyond the belief of the writer in the truth of the matter
complained of, although that belief will be a factor to be taken into
consideration. In Austin v. Mirror Newspapers Ltd. at p 155
the Privy Council
said as follows:
"But, where a jury has rejected a defence of fair56. In this case the defence of fair comment has not been raised, and the truth of the imputations pleaded has not been raised directly as an issue. Nevertheless as I have already indicated, it is my view that the proof of the imputations requires the acceptance by the ordinary reasonable reader of the implication in the article that it lay within the power of the plaintiff to delay the Royal Assent to the bills. Again, as I have already indicated, that implication is untrue as a matter of fact. Indeed it was not claimed by Mr. O'Reilly, who wrote the article, that he believed in the truth of the implication. On the contrary he denied that the implication was to be drawn.
comment upon the ground that the facts upon which
the comment is based are not substantially true,
the starting point of the inquiry must be the
ascertainment of those facts which the jury has
found to be untrue. A newspaper with a wide
circulation that publishes defamatory comments on
untrue facts will, in the ordinary course of
events, have no light task to satisfy a judge that
it was reasonable to do so. Those in public life
must have broad backs and be prepared to accept
harsh criticism but they are at least entitled to
expect that care should be taken to check that the
facts upon which such criticism is based are
true."
57. In support of its claim of reasonable conduct, the defendant called a number of witnesses including Mr. O'Reilly, and Mr. Peter Robert Allen, who was the editor of the Sun Herald at the time. It is necessary to say that I do not accept the whole of the evidence of either Mr. O'Reilly or Mr. Allen without reservation. However, I should deal with Mr. O'Reilly's evidence in some little detail.
58. Mr. O'Reilly, who was retired by the time he gave his evidence, is an experienced journalist of some forty years in the profession. Thirty of those years he spent in Canberra and ten of them as the political correspondent for the Sun Herald.
59. On or shortly before Friday, 21 May 1982 Mr. O'Reilly became aware of the proposed legislation which was to change the home-savings grant scheme. On that day he telephoned a Mr. Max Rogers who was the officer in the relevant department, namely the Department of Housing and Construction at that stage, who dealt with enquiries from the press. However, despite his experience, Mr. O'Reilly had not had any previous dealings with Mr. Rogers.
60. Acting on what he was told, Mr. O'Reilly then wrote an article which was
subsequently published in the Sun Herald on the following
Sunday, 23 May 1982.
This is what that article said:
"TWO-WEEK DEADLINE FOR HOME GRANT61. The article of 23 May 1982 accurately set out the eligibility conditions of the new and old schemes but was less than clear about when the change was to take place. The article accurately reported what Mr. O'Reilly had been told by Mr. Rogers, namely that the new scheme would receive Royal Assent "in about two weeks". The article further accurately stated that those eligible for the old grant would have to sign a contract for the purchase of the dwelling "by the day the legislation receives the Royal Assent". This appears also to have been based on what Mr. O'Reilly was told by Mr. Rogers as he does not appear at any stage to have actually read the Bills.
Couples who want a Federal Government
home-savings grant will need to have signed a
contract for purchase of a home within two weeks.
This is when the current home-savings grant
scheme ends to make way for the Government's new
home deposit assistance scheme.
Those eligible for the old home-savings
grants will not necessarily qualify for the new
scheme - thus the urgency for last-minute
applications.
The new home deposit assistance scheme
legislation will receive Royal Assent in about two
weeks.
Those eligible for the old home-savings
grant will have to sign a contract for the
purchase of their dwelling by the day the
legislation receives Royal Assent.
They will have another month after this to
lodge their applications.
The Federal Government is anticipating a
late rush of applications.
Extra Bonus
The new scheme is means-tested, whereas the
old home-savings grant scheme was not.
Any couple with a joint taxable income
exceeding $363 a week will be eligible for only a
partial grant, and those with a joint taxable
income of more than $417 a week will not be
eligible.
But many of these couples will be eligible
for the old home savings grant provided they buy a
dwelling before the new legislation receives Royal
Assent.
The old home-savings grant provided for a
maximum of $2,000 on the basis of $1 for every $2
saved over a three-year period.
The grant is not means-tested.
The new scheme provides for a grant of
$2,500 for couples who have held savings of $2,500
for two complete years.
An additional bonus of $500 will be payable
for families with one dependent child and $1,000
for families with two or more dependent children,
including a child born or adopted after the
acquisition of a home.
A couple who have a second child within 11
months of acquiring a home will be eligible for
the full family bonus.
The means test provides that a couple with a
joint taxable income of no more than $363 will be
eligible for the full grant."
62. However, the use of the phrase "within two weeks" in the opening paragraph contrasts with the phrase "in about two weeks", used later in the article when referring to the likely date of Royal Assent. The use of the phrase "within two weeks" conveyed the impression that the home buyers would have had all of two weeks from the date of the article to sign their contracts, but no more than two weeks. The use of the term "in about two weeks" was much vaguer, indicating that the purchasers had a period which could have been a little bit less or a little bit more than two weeks in which to sign their contracts. It was quite evident from the answers given by Mr. O'Reilly in evidence, particularly while under cross-examination, that he did not appreciate this distinction, or alternatively that if he did appreciate the distinction he was not prepared to say so because it would involve an admission of error on his part.
63. The article of 23 May 1982 was mentioned by Senator Harradine in the Senate debate on the bill on 27 May 1982, when Senator Harradine unsuccessfully moved an amendment to the bill for the purpose of enabling home buyers to have a longer period in which to finalise their affairs in order to become eligible for a home-savings grant under the old scheme.
64. On 4 June 1982 Mr. Sheather, the man mentioned in the article of 6 June 1982, rang Mr. O'Reilly and informed him of the fact that he and his fiancee, Ms. Todd, had failed to obtain a home-savings grant under the old scheme, because they had signed their contract on Thursday, 3 June 1982 only to be told that the Royal Assent had been given to the bill abolishing the old scheme the previous day, Wednesday, 2 June 1982. Mr. Sheather also informed Mr. O'Reilly of what was in fact the case, namely, that Ms. Todd had on an occasion prior to 23 May 1982 made enquiries of the Department of Housing and Construction in relation to their application for a home-savings grant under the old scheme but had been told that they no longer qualified because they fell outside the means test. Nowhere in the evidence is the officer who gave this information identified, nor indeed is the place from which the enquiry was made. Mr. Sheather was acting on what his fiancee had told him about what she had been told, so at that stage the information was far from firsthand. Nevertheless, for the purposes of this case, I am prepared to assume that Mr. O'Reilly was acting reasonably when he assumed that someone in the Department of Housing and Construction had wrongly advised Ms. Todd that she and Mr. Sheather were ineligible to apply for a home-savings grant because their income exceeded that allowed by the means test. If she had been given that information, it was clearly in error, because the old scheme had not at that stage been abolished. If someone within the Department of Housing and Construction gave that advice, then that officer could justifiably be described as having made a bureaucratic bungle. Mr. Sheather's account to Mr. O'Reilly of what his fiancee had told him was substantially confirmed by her when Mr. O'Reilly spoke to Ms. Todd on Saturday, 5 June.
65. Armed with this information, and knowing that Senator Harradine was interested in the plight of people like Mr. Sheather and Ms. Todd, Mr. O'Reilly went to the office of Senator Harradine in Parliament House on the afternoon of Friday, 4 June. He there spoke to Senator Harradine's private secretary, a Mr. Strangman. Mr. Strangman informed Mr. O'Reilly that he knew that the government was very worried about similar cases and that Senator Chaney had rung Government House seeking to have the Royal Assent deferred until 9 June so that people in this predicament would not be deprived of home-savings grants.
66. Mr. O'Reilly then attended Senator Chaney's office in Parliament House. The Senator was not present and he spoke to Mr. Fletcher, the Senior Private Secretary. Mr. Fletcher expressed a view similar to that of Mr. Strangman and added the information that "Government House could not do it because the Bills had to be signed in the order in which they were received from the Senate". According to Mr. O'Reilly's evidence, Mr. Fletcher said "it had to follow the normal channels and it was just protocol". Mr. O'Reilly said in his evidence that he was also told by Mr. Fletcher that at the time the request had been made to Government House for deferral of the Royal Assent, the Governor-General was available and there was nothing more that could be done, that Mr. Fletcher expressed the fear that there would be "many people who would be deprived of home-savings grants" and also that the "problem could have been solved had the Parliamentary Counsel specified the date of proclamation rather than the date of Royal Assent" as the date of the commencement of the legislation terminating the old home-savings grant scheme. Mr. O'Reilly then attempted to contact Mr. Rogers at the Department of Housing and Construction. He was not able to contact that particular person but spoke to someone else in the same office and was told that the problem of Ms. Todd and Mr. Sheather was the sort of problem that had caused worry and that "many thousands more" were expected to be affected. This person also stated, according to Mr. O'Reilly, that he would appreciate it if the Sun Herald could give publicity so that people who had signed contracts within time but had still not made application for a grant could do so. Mr. O'Reilly stated that he would do what he could to assist. It was in those circumstances that Mr. O'Reilly wrote the article as it appeared on page 3 of the Sun Herald of 6 June 1982.
67. In his evidence Mr. O'Reilly stated the source of information in each of the paragraphs of the article and asserted that the contents were true or at least he believed them to be true on the basis of what he had been told from dependable sources. The truth of what was asserted is not directly in issue but, as the belief of the writer in the truth is relevant to the issue of reasonableness of the conduct of the defendant in publishing the defamatory imputations, so the relationship of the belief to the objective facts may be relevant. The evidence of Mr. O'Reilly was confirmed as far as it could be by that of Mr. Strangman himself. However, the evidence of Mr. Fletcher, the Senior Private Secretary to Senator Chaney, which I accept, differed in significant respects. In particular Mr. Fletcher said that he told Mr. O'Reilly that the decision that the legislation should take effect from the date of the Royal Assent was one deliberately made by the Legislative Committee of Cabinet. Mr. Fletcher further told Mr. O'Reilly that the government had taken advice from the Attorney-General's Department and also from First Parliamentary Counsel on the question of possible deferral of the Royal Assent and had been advised that it was only in exceptional circumstances, which did not apply in the present case, that such a deferral could be recommended. Mr. Fletcher also told Mr. O'Reilly that there was a constitutional convention that Government House had no power to "change the process". Mr. Fletcher denied that he used the word "protocol" during the conversation with Mr. O'Reilly.
68. Under cross-examination Mr. O'Reilly said that the bureaucratic bungling that he had in mind when writing the article was the wrong information which was given to Ms. Todd prior to 23 May by the Department of Housing and Construction. Although his evidence on the point was not very clear, it appears also that Mr. O'Reilly had in mind that there was some further bungling of a bureaucratic nature in relation to what he saw as "an insistence" that the date of the commencement of the new scheme would be on the date of the Royal Assent rather than on a date to be proclaimed. However, in this regard Mr. O'Reilly was shown not to have understood what he was told by Mr. Fletcher and what appeared in a speech by Senator Chaney reported in Hansard and which Mr. O'Reilly claimed to have read, namely that the decision to make the legislation operative from the date of Royal Assent was not taken in bureaucratic circles and was not made as a result of a slip or error, but was taken quite deliberately in Cabinet.
69. Furthermore, as far as paragraph 21 was concerned, where Mr. O'Reilly wrote that Government House had said that the legislation would have to be treated "in the normal way", Mr. O'Reilly insisted in cross-examination that the use of the inverted commas was a conventional and justified journalistic technique for attributing a statement to a person, even though the person had not used the precise words, so long as they bore the general meaning of what the person had said. However, in his evidence-in-chief Mr. O'Reilly had already claimed that it was Mr. Fletcher who had said that the Royal Assent "had to follow the normal channels and it was just protocol". In view of the evidence of Mr. Fletcher, which I accept, either Mr. O'Reilly was quite confused about this aspect or he was seeking an excuse to justify the use of the inverted commas in paragraph 21.
70. The contents of that part of the article which appears on the front page of the Sun Herald of 6 June 1982 constitute what is called in the newspaper trade a "write-off". It was a re-writing by the editor in summary form, with some additions and alterations, by the editor of what the journalist had written in what was the original article appearing on page 3. Indeed the significance of the words "from Neil O'Reilly" appearing under the headline on the front page, contrasted with the words "by Neil O'Reilly" which appear at the top of the article on page 3, is that whilst Mr. O'Reilly is acknowledged as the author of what appears on page 3, he is acknowledged only as the source of the material appearing on the front page. That source material was "dealt with" by the editor, Mr. Allen, as he said, in order "to emphasise the main points and also to make it tidy to fit on the front page". There was some difficulty in evaluating the evidence given by Mr. Allen because cross-examination was abandoned owing to his illness. Nevertheless it is necessary to say that the evidence of Mr. Allen both in chief and under what cross-examination was conducted showed that he did not fully understand what his colleague had written. Mr. Allen said that the reference in the first paragraph, written by himself, to the possibility of thousands of young couples being denied home-saving grants was based upon paragraph 37 in Mr. O'Reilly's article where it was stated that "the government estimates that more than one hundred thousand eligible young couples have not yet applied" for the old home-savings grants. That paragraph 37, however, was not concerned with the date upon which contracts for purchase of homes were signed. When it was put to Mr. Allen that he did not understand how the legislation operated, his reply was that he did not need to know how the legislation worked because he was simply re-writing material from an experienced reporter. He did not know that a necessary condition for eligibility for a home-savings grant was to have signed contracts by a certain date. Furthermore, Mr. Allen was unable to see any inconsistency between paragraph 8, which he wrote, and paragraph 19 upon which it was apparently based. In other words he was not able to distinguish the difference between the requirement for completion "before last Wednesday" and the requirement for completion "on Wednesday". When he finally conceded that that was an error, he said that he did not consider it to have been an important error. Mr. Allen did not know at the time of the hearing whether Ms. Todd and Mr. Sheather had been deprived of a grant under the new scheme or under the old scheme and he was not able to remember whether he understood the difference at the time of writing the material on page 1. I conclude that Mr. Allen's understanding of significant parts of Mr. O'Reilly's article was, at the time of the "write-off", quite deficient.
71. In the light of these findings I am not persuaded that the defendant's conduct in publishing the material complained of was reasonable. I bear in mind that the onus lies on the defendant. I am not prepared to speculate as to how I would have found if the onus were on the plaintiff to prove positively that the defendant's conduct was unreasonable. However, there are a number of factors which stand in the way of my finding that the defendant has proved that its conduct was reasonable. Underlining that conduct is the implication contained in the article that it lay within the power of the plaintiff to delay the Royal Assent to the legislation and thus assist persons who had been saving under the old home savings grant scheme. Whilst Mr. O'Reilly was aware that the plaintiff had no such power, neither he nor the defendant was entitled to assume that that knowledge lay with the ordinary reasonable reader. Mr. Allen, the editor of the Sun Herald, who wrote what appeared on page 1 and what he considered to be an accurate summary of what appears on page 3, said nothing about his own knowledge of the powers of the Official Secretary, and in the absence of any such evidence I am not prepared to draw the conclusion that he had that knowledge. Reasonableness, in my view, required that the article be written in such a way that the attention of the reader was drawn to the fact that the Official Secretary had no power to delay the legislation and that the plaintiff's conduct was in accordance with established constitutional convention. The confusion between the vice-regal function and the bureaucratic function achieved the opposite result, as did the use of the word "protocol". In view of the likely identification of the plaintiff as one of those responsible for depriving young home buyers like Ms. Todd and Mr. Sheather of the right to a home-savings grant, it would have been reasonable for Mr. O'Reilly to enquire of the plaintiff prior to publication what his side of the story was. The plaintiff was well known to Mr. O'Reilly and easily accessible.
72. Furthermore, there are within the article errors and distortions of fact which, although they cannot be relied upon by the plaintiff to constitute the defamatory meaning, are nevertheless relevant to be taken into consideration on the question of the reasonableness of the defendant's conduct. The article published on 2 June 1982 states that the Royal Assent was obtained "days earlier than expected" although it does not identify the persons who held the expectation. The fact was, however, that Mr. O'Reilly had been told on 21 May 1982 that the Royal Assent could be expected in about two weeks from then and the evidence of Mr. O'Reilly established clearly in my view that he knew that the date of Royal Assent was uncertain. Indeed, his answers to questions in cross-examination established, in my view, that he did not have any clear idea himself as to what it was he intended to say in the article of 23 May 1982 about the expected date of Royal Assent. The headline to that article "Two week deadline for homes grant", was deceptively precise in view of the information at that stage available that Royal Assent was likely in about two weeks. The first paragraph in the article was similarly deceptive in its statement that applicants needed to sign a contract "within two weeks". The article of 23 May 1982 is not, of course, the publication sued on but the state of mind of Mr. O'Reilly at the time of writing the earlier article reflects on his state of mind at the time of writing the subject article.
73. However, I think the final touches to the subject article which were added by Mr. Allen in his "write-off" appearing on page 1 provide the most substantial impediment to the defendant establishing that its conduct was reasonable in the circumstances. Mr. Allen indicated in his evidence that he did not understand the issues that were involved in the article itself. He said that it was not necessary for him to know how the legislation worked because he was simply re-writing material by an experienced reporter. Mr. Allen could not appreciate that there was an inconsistency between his writing that the contracts had to be completed before Wednesday, 2 June and Mr. O'Reilly writing that the contracts had to be signed on Wednesday, 2 June. Mr. Allen did not know what sort of a grant it was of which Ms. Todd and Mr. Sheather had been deprived, whether under the old scheme or under the new scheme. He was unable to give any convincing evidence as to how the material written by Mr. O'Reilly led to the conclusion that hundreds and possibly thousands of young couples would lose the right to a home-savings grant.
74. Mr. O'Reilly acknowledged that he had promised Mr. Rogers that he would do what he could to assist the Department in giving what publicity could be given to the predicament of persons who had been deprived of a home-savings grant by the introduction of the new legislation. Mr. O'Reilly wrote the article having made that promise. It may have been reasonable to write an article which drew attention to the unfairness brought about by the abolition of the old home-savings grant and in drawing attention to such unfairness it may well have been legitimate to search out the persons who were responsible for that situation. Indeed, it may have been reasonable to assume that somebody somewhere had bungled and to try to identify who it was who had done the bungling. If the article had been published in a learned journal of political science or constitutional law, however, it would have to be judged a failure. On close and cool analysis by one versed in the niceties of parliamentary and constitutional procedures and conventions, there are only two persons who are identified in the article as responsible for acts of bungling. They are, first, the unidentified person in the Department of Housing and Construction who told Ms. Todd some time prior to 23 May that she and her fiance had been rendered ineligible for a grant by the means test and, second, the parliamentary draftsman who had made the new legislation effective upon the obtaining of the Royal Assent when the draftsman should, presumably, according to the tenor of the article, have made it effective on some other and later date. The terms in which the article was eventually couched and the way in which it was presented to the reader would not have left the reader with the conclusion that the bungling was restricted to those persons but rather that there was a confused situation to which bungling and unnecessary insistence upon formalities at Government House, had contributed by the obtaining of the Royal Assent at a time when a proper handling of the matter at Government House would have led to delay in the obtaining of the Royal Assent.
75. The defence under s.22 of the Defamation Act 1974 of New South Wales fails.
76. I turn now to the question of damages.
77. The plaintiff submitted that damages fell under three heads, namely,
injury to reputation, injury to feelings and vindication
of reputation. It was
further submitted that the conduct of the defendant was such that the
plaintiff was entitled to aggravated
damages. I am not sure whether it is
correct to say that there is a separate head of damages awarded to a defamed
plaintiff in which
a sum is assessed as proper to vindicate the plaintiff's
damaged reputation. Uren v. John Fairfax & Sons Pty. Ltd. [1966] HCA 40; (1965) 117 CLR 118
at p 150 Windeyer J. said as follows:
"It seems to me that, properly speaking, a man78. This widely accepted passage suggests that the sum awarded to a plaintiff for injury to reputation should be sufficient for both purposes of compensation and vindication, that is to say, inclusive of both. My attention has not been drawn to any case in which a sum was assessed for compensation and another sum for vindication. Furthermore, I should think the question of whether or not the plaintiff should receive what is called aggravated damages does not depend upon him succeeding in establishing an entitlement under a further head of damages, but goes merely to increase the total sum of damages awarded. This results in the end, I think, in there being only two true heads of damages in an action for defamation, the one damages for injury to reputation and the other damages for injury to feeling.
defamed does not get compensation for his damaged
reputation. He gets damages because he was
injured in his reputation, that is simply because
he was publicly defamed. For this reason,
compensation by damages operates in two ways - as
a vindication of the plaintiff to the public and
as consolation to him for a wrong done.
Compensation is here a solatium rather than a
monetary recompense for harm measurable in money."
79. I therefore intend to approach the question of damages by seeking to assess a proper sum for injury to reputation and a further sum for injury to feeling and in either case to consider whether the sum awarded would be increased because of the plaintiff's entitlement to aggravated damages by reason of the conduct of the defendant.
80. There was a considerable amount of evidence as to the plaintiff's reputation in the Australian community prior to the publication and this evidence was not challenged. It is unnecessary to set it out in detail. The evidence clearly established that the plaintiff was held in the highest repute with regard to the way in which he had over many years conducted himself as Official Secretary to the Governor-General. It is to be remembered that the plaintiff served a number of persons holding vice-regal office and during changes of Government in 1972, 1975 and 1982. Senator Chaney spoke of the plaintiff as having something of "an institutional quality" about him. Professor Manning Clarke spoke of the dignity with which the plaintiff had carried out his difficult tasks during the controversial events of November 1975 and how his reputation for dignity and integrity had, if anything, increased in the years since then amongst people of all shades of political opinion.
81. In addition to establishing that the plaintiff had a reputation throughout Australia in respect of his position as Official Secretary, the evidence established further that in the Canberra community the plaintiff was well known for his activities in other areas of community life, for instance the Scouting Movement, St. John's Ambulance, the Council of the Order of Australia, the Friends of the Canberra School of Music and the Canberra Symphony Orchestra. A number of witnesses were called to give evidence not only of the plaintiff's reputation but the effect that the article had on them insofar as it affected what they thought of the plaintiff. I am not convinced, however, that any of the witnesses formed any lasting view that his estimation of the plaintiff was lowered as a result of reading the article. In the case of each of the witnesses, so it seems to me, what happened was that the plaintiff's good reputation was called into question, and some of the witnesses indeed sought out the plaintiff for reassurance that there was no truth in the allegations made against him. It was submitted on behalf of the plaintiff that I should take the approach that was referred to in Lamb v. Readers Digest Services Pty. Ltd. [1982] HCA 4; (1981) 150 CLR 500.
82. In that case Brennan J., with whom the other Judges of the Court agreed
on this point said at p.507:-
"In making its assessment, a jury is properly83. Whilst evidence to this effect was admitted, I do not in the end find it persuasive for the purposes for which it was called. I am not convinced that the plaintiff's reputation suffered any lasting harm of any substance among the members of what might be called the higher echelons of the community, those persons who moved in the particular official circles in which the plaintiff also moved in the course of his official duties. Nevertheless, I am satisfied that his reputation was in that circle called into question for a limited period and further that within that circle there are probably some in whose minds there is still a lurking suspicion that there might be some truth in the imputations which I have found to be established. At the same time it is important to bear in mind that during the time the plaintiff's reputation was called into question to any substantial extent the allegations which hung in the air were of the most serious kind and were such that as Sir Richard Kingsland said in his evidence, if they were true they called for the plaintiff's immediate dismissal from office.
assisted by evidence that the making of the
defamatory imputation found by them had an
especially adverse impact upon the plaintiff's
reputation in the eyes of some group or class in
the community. Of course, care must be taken to
ensure that evidence of the attitude of particular
groups of classes is not misused: it is neither
material to nor admissible upon the issue of the
defamatory nature of the imputation made. The
defamatory nature of an imputation is ascertained
by reference to general community standards, not
by reference to sectional attitudes. But if the
imputation is defamatory according to the
standards of the community generally, a particular
impact of the defamatory imputation may be
proved."
84. Another group in the community amongst whom it was likely in my view that the harm to the plaintiff's reputation was likely to continue for some time was that comprised by such as were described by the plaintiff's son, Richard Smith, educated and intellectually active officers in the Public Service, who sought to keep themselves informed on public affairs in Australia.
85. Beyond that there was, of course, the general readership of the Sun
Herald which derived from in excess of 695,000 copies of
the newspaper
distributed throughout the country. The figures distributed in the various
areas were as follows:
1. Australian Capital Territory - 16,68486. This distribution meant, according to the submission on behalf of the plaintiff, that there was likely to be a readership of over one million people, and this I accept. However, I do not accept that each one of those readers was likely to have read the article to its conclusion, and in that respect one has to exclude from the persons amongst whom the plaintiff's reputation was likely to suffer harm, those who merely read the headlines or glanced through the article. It is, of course, impossible to say exactly how many people read the article to a conclusion, but bearing in mind that it was on the front and third pages of the issue of 2 June 1982, I think it likely that a high proportion of the readers read the article to its end and could be categorised as representing the ordinary and reasonable reader. Although there was no evidence called from particular readers as to their identification of the plaintiff apart from persons who knew him well in any event, I am satisfied that a high proportion of the readership would have understood the article to refer to the plaintiff. It is among the general readership rather than amongst the persons who knew the plaintiff well, or who took a particularly active and informed interest in public affairs, that the plaintiff's reputation was likely to suffer the most and the longest lasting harm.
2. New South Wales - 642,225
3. Victoria - 16,100
4. Queensland - 14,500
5. Western Australia - 350
6. South Australia and the Northern Territory -
2,200
7. Tasmania - 2,950.
87. It was submitted on behalf of the defendant that the defamatory effect of
the article, if any, was substantially reduced if not
effectively cancelled
out by the publication in the issue of the Sun Herald of 13 June 1982 of a
further article which, it was submitted,
contained a retraction or correction
of any error that might have been contained in the article of 2 June 1982.
This assumed a particular
importance in the case. The plaintiff relied upon it
to support his claim for aggravated damages and to support his claim for
injury
to feelings, which may or may not be the same thing. The defendant
relied upon the subsequent article as, in effect, cancelling out
the
defamatory effect, if any, of the article of 2 June and further as obviating
any need for an apology. It is necessary to consider
not only the content of
the subsequent article but also the events leading up to it. I shall deal
later with the circumstances in
which this later article was written but it is
appropriate at this stage to set out what it said:
"MOVE TO PAY HOME GRANTS88. In my view, the words contained in the square brackets amount to a substantial correction or retraction of the implication contained in the defamatory article to the effect that it was within the power of the plaintiff to delay the Royal Assent. It was open to an informed and industrious reader to refer back to the defamatory article (and the succeeding three paragraphs) compare it with the words appearing in the square brackets and come to the reasonable conclusion that in view of the withdrawal of the implication the defamatory imputations were not intended and were in fact incorrect. However, I do not think that more than a tiny minority of the readership would have taken that course. The ordinary reader was more likely to take the attitude that the defendant conceded that there was some error in the defamatory article and that the strength of the allegations against the plaintiff was accordingly reduced, but he or she would be left in a state of some confusion as to exactly what it was that was alleged against the plaintiff and what it was that was withdrawn. Furthermore, not all those persons who read the defamatory article would have read the article appearing on 13 June 1982 which was printed on page 9 of that issue of the Sun Herald. In short then, I think that what was published on 13 June 1982 was likely to have substantially reduced the defamatory effect of the original article amongst those persons who knew the plaintiff well, to have reduced it less substantially amongst those readers who did not know the plaintiff well but who took a particular interest in public affairs, and to have reduced the defamatory effect only slightly amongst the vast majority of readers.
The Minister for Social Services, Senator
Fred Chaney, is investigating ways of paying home
savings grants to couples who missed because of
the time limit.
Senator Chaney expects to receive advice
this week on whether he can make the payments.
The Sun Herald last week reported that
Senator Chaney had wanted to delay legislation
receiving the Royal Assent so couples eligible
could still apply.
(The Sun Herald reported that Government
House officials had refused to delay the signing.
Mr. David Smith, the Governor-General's private
secretary, said yesterday this might have given
the impression that Government House officials
could have delayed Royal Assent. This was not the
case, and The Sun Herald did not mean to give this
impression.
Senator Chaney's request was too late.
Government House officials, although appreciating
his problem, had to follow constitutional
parctice.
On the advice of the Attorney-General, the
officials said that bills had to be signed in the
order that they had been passed by the Senate.
The process of sending the bills to Government
House had already started when Senator Chaney made
his request, and Government House officials had no
alternative but to follow the normal constitutional
requirements.
The Sun Herald revealed last week that one
couple, Greg Sheather and his fiancee, Michelle
Todd, had missed out on a $2,000 grant because
they had signed their contract the day after the
Governor-General, Sir Zelman Cowen had given Royal
Assent to the bill.
Mr. John Mountford (Lab. NSW) who is
Mr. Sheather's local Federal MP wrote to Senator
Chaney asking him to make an act-of-grace payment
under section 34(a) of the Audit Act.
Senator Chaney asked his department to
investigate ways of doing this.
Mr. Sheather and his fiancee were the
victims of some bureaucratic bungling - they were
told in March that they did not qualify for a
grant because they earned too much.
Three weeks ago the Sun Herald reported that
the old grants scheme would operate until the
legislation for the more generous scheme received
Royal Assent.
Mr. Sheather and Miss Todd then sought to
sign their contract before Royal Assent was
given. They missed out by a day.
The Government believes that more than
100,000 couples who signed contracts before June 2
are still eligible for the old home savings grant,
and have not applied.
Those who signed their contracts before
June 2 have until July 2 to make an application.
The new scheme provides for grants of $2500
for couples, with additional grants for those with
children.
The new, means-tested grant will be payable
to couples with a combined taxable income of less
than $417 a week."
89. It is necessary to make factual findings regarding the events between the date of publication and the following Sunday, 13 June 1982. There was a good deal of evidence on this particular aspect. There is a conflict between what the plaintiff says about certain conversations between himself and Mr. O'Reilly and what Mr. O'Reilly says about those conversations. Other things being equal, where there is such a conflict I accept the plaintiff's evidence. In general terms the evidence of Mr. O'Reilly was far less impressive than that of the plaintiff, and in certain areas indicated that Mr. O'Reilly was quite confused.
90. I summarize what the plaintiff had to say. The plaintiff said that when he first spoke to Mr. O'Reilly he told Mr. O'Reilly that he was very unhappy with the article and that it was totally untrue. Mr. O'Reilly asked on more than one occasion what was wrong with the article. The plaintiff replied that it portrayed him as objecting to a minister's request, refusing to do as a minister asked and over-ruling a minister on protocol grounds. The plaintiff asked Mr. O'Reilly why he did not check with him the account given by the departmental officers to whom Mr. O'Reilly said he had spoken. The plaintiff said that Mr. O'Reilly's response was that he thought he had all the information he needed and did not need to come to the plaintiff for anything further. The plaintiff said that he told Mr. O'Reilly that he wanted "a correction and an apology" to which Mr. O'Reilly replied that he could see that he had got a couple of things wrong, that he was sorry and would write something for next week "to set the record straight". The plaintiff insisted to Mr. O'Reilly that he wanted a correction and an apology in the next edition of the Sydney Morning Herald to which Mr. O'Reilly responded that the two newspapers were separate and that he could not see that anything would be published in the Sydney Morning Herald but added these words, "I will write something for next week and set the record straight". The plaintiff said that Mr. O'Reilly declined his request for a front page correction but said that he, Mr. O'Reilly, would do the best he could for the plaintiff. The plaintiff said that the conversation concluded by his informing Mr. O'Reilly that he had not over-ruled the Minister, but that he had done what he could to help the Minister. The plaintiff added that during the course of the conversation he outlined the procedure of the way in which the Royal Assent was normally obtained, and that the allegation that it was open to the Governor-General or the Government House officials to control the procedure for obtaining the Royal Assent was simply not true. When cross-examined, the plaintiff denied that there had been a further conversation with Mr. O'Reilly on Friday, 11 June on any subject at all although he did recall his solicitor, Mr. Hohnen, telling him on that date that Mr. Hohnen had spoken to Mr. Deamer, solicitor for the defendant, and was given information to the effect that something was going to be published by the defendant but there would be no apology. In re-examination the plaintiff said that it was his practice to take notes of official telephone conversations and that he had produced his diary notes for Friday, 11 June 1982. He did not say, however, to whom it was that the notes had been produced and no further mention of them was, curiously enough, made during the case.
91. Mr. O'Reilly's evidence was that he received a telephone call from the plaintiff late on the Tuesday after the publication. He said that the plaintiff complained that the story written on the Sunday was completely wrong, that he asked the plaintiff to tell him exactly where it was wrong, that the plaintiff replied, "the Governor-General had no alternative but to sign that legislation on the advice of the Attorney-General". Mr. O'Reilly said that he responded by saying "that is what is meant by vice-regal protocol". Mr. O'Reilly said that the plaintiff insisted that it was not a matter of protocol but that it was "a matter of constitutional law". According to Mr. O'Reilly there was some discussion between them then as to the meaning of the word protocol, that he had never intended to create any impression that Government House had done anything improper, that his aim was to help the persons who had missed out on the home loan grants and that those concerned at Government House "were merely carrying out what was necessary under the protocol or constitutional law". Mr. O'Reilly went on to say that he told the plaintiff "if you feel this way about it, I'll talk to the editor tomorrow and suggest to him that we give your side of the story in greater detail because you feel that the story has put you in a bad light" and that the plaintiff responded to the offer by saying that he would be grateful if that were done. Mr. O'Reilly denied that the plaintiff had raised the three particular objections with him to which the plaintiff referred in his own evidence. Mr. O'Reilly denied that he said anything about setting the record straight.
92. Mr. O'Reilly went on to say that he had a further conversation with the plaintiff early in the afternoon of Friday, 11 June 1982 after he had spoken to his solicitor and he said that he read to the plaintiff the four paragraphs which he had written in accordance with what had been said between them the previous Tuesday night. I would observe that those four paragraphs are the third, fifth, sixth and seventh paragraphs of the article that was subsequently published on 13 June 1982. According to Mr. O'Reilly, he asked the plaintiff "Are you happy about that?" and the plaintiff replied, "Yes". Mr. O'Reilly said that he never offered to apologise and that in fact he was never prepared to apologise and was still not prepared to apologise at the hearing.
93. In support of the evidence of Mr. O'Reilly as to the conversation on Friday, 11 June, the defendant sought to rely upon the evidence of Mr. Adrian Deamer, the solicitor referred to. It is clear that on Thursday, 10 June the plaintiff's solicitor had made demand for an apology by means of telexes sent shortly before 10 a.m. Mr. Deamer's evidence was that on Friday, 11 June at about 12.15 p.m. he rang Mr. Hohnen, solicitor for the plaintiff, who told him that the plaintiff objected to the use of the word "protocol". Mr. Deamer said that he suggested to Mr. Hohnen that Mr. O'Reilly should speak direct to Mr. Smith. Mr. Deamer went on to say that at about 3.40 p.m. on the same day Mr. Hohnen rang him and, to the best of his knowledge, said that Mr. O'Reilly had been in touch with the plaintiff and that the plaintiff had rung Mr. Hohnen and was concerned that there was no correction. He said that Mr. Hohnen read to him the words of a proposed apology and that he told Mr. Hohnen that he would get instructions from Mr. O'Reilly relating to the terms of the apology. Mr. Deamer said that he spoke to Mr. O'Reilly and then at about 4.55 p.m. again rang Mr. Hohnen and said that he had spoken to Mr. O'Reilly in Canberra and that they had come up with a form of words which they thought would be suitable. The words that he read to Mr. Hohnen were those which later appeared in the third, fifth, sixth and seventh paragraphs of the article published on 13 June. I make the observation that they were the same paragraphs that Mr. O'Reilly said that he read to the plaintiff on the same day. Mr. Deamer added that he told Mr. Hohnen that those paragraphs would appear in a longer article which Mr. O'Reilly was in the course of writing. Mr. Deamer said that a further conversation occurred at 9.15 a.m. on Saturday, 12 June 1982 when he rang Mr. Hohnen at his home in Canberra and read the whole of the article which was published in the Sun Herald of the following day. He said that Mr. Hohnen stated that the article was "pretty good as far as it goes" but that the plaintiff "needs an apology" and that the plaintiff would not "leave it at that". Mr. Deamer repeated that no apology of the kind indicated by Mr. Hohnen would be published. Mr. Deamer said that the words in the fourth paragraph of the article of 13 June 1982 and appearing in square brackets were written by him in consultation with the acting editor of the Sun Herald.
94. Mr. Hohnen was not called on behalf of the plaintiff. Mr. Deamer refreshed his recollection by reference to contemporaneous notes. With the exception of one part of his evidence, I have little hesitation in accepting what Mr. Deamer had to say. The exception is that in his evidence about what was said in the conversation at about 3.40 p.m. on Friday, 11 June, Mr. Deamer qualified his evidence that Mr. Hohnen had told him that Mr. O'Reilly had been in touch with Mr. Smith by saying that the evidence as to that part of the conversation was given by him "to the best of my memory". Mr. Deamer went on to read from his notes as to what was said in the subsequent part of the conversation, from which I infer that he had no note of the earlier part of the conversation as to communication between Mr. O'Reilly and the plaintiff. I bear in mind that Mr. Hohnen has not given evidence and I am prepared to infer in favour of the defendant that if he had it would not have assisted the plaintiff's case on this issue. Nevertheless, in view of the express denial by the plaintiff that there was any conversation between him and Mr. O'Reilly on that day, I am not satisfied that Mr. Hohnen told Mr. Deamer that such a conversation had taken place. Although I am satisfied as to the remainder of the conversation between Mr. Deamer and Mr. Hohnen as deposed to by Mr. Deamer, I am not persuaded that it leads to a conclusion that there was any conversation that day between Mr. O'Reilly and the plaintiff. Furthermore, the assertion by Mr. O'Reilly that the plaintiff said that he was "happy" with the paragraphs that Mr. O'Reilly read to him is quite inconsistent with the rest of the evidence. There was nothing in the four paragraphs that Mr. O'Reilly claims to have read to him which would have caused the plaintiff any particular satisfaction. The only part of the article that subsequently appeared on 13 June 1982 which expressly did anything to "set the record straight" were the words appearing in the fourth paragraph and within square brackets. There is no evidence that the fourth paragraph was read to the plaintiff by Mr. O'Reilly. The evidence is to the contrary. As the plaintiff himself said in answer to questions put on behalf of the defendant, if this paragraph had been read to him he would have objected to being described as "the Governor-General's private secretary" and it was likely that that mis-description of his office would have been remembered by him. I think that it is likely that Mr. O'Reilly has confused the conversation between himself and Mr. Deamer with a supposed conversation with the plaintiff, which I find did not in fact take place.
95. In the light of those findings I find that at the end of the conversation on Tuesday, Mr. O'Reilly had given the plaintiff to understand that he would use his efforts to try to secure the publication of a statement which would "set the record straight" to the effect that it would remove the defamatory imputations contained in the article of 6 June.
96. Accordingly, in summary I draw the conclusions first that the subsequent article reduced but slightly the defamatory effect of the article sued upon, and secondly, that in the circumstances neither was it intended as an apology nor was it accepted by the plaintiff as or in the place of an apology nor would the reader have taken it to be an apology.
97. I turn now to that component to the award of damages referable to the
injury to the plaintiff's feelings resulting from the publication
of the
defamatory matter. This is an important aspect of the plaintiff's claim. He
spoke at length of it in the witness box and,
in my view, despite
cross-examination and the tendering of certain correspondence between
solicitors, I was well convinced as to
the genuineness of the plaintiff's
complaint. As Lord Diplock observed in Broome and Another v. Cassell & Co.
Ltd. [1972] UKHL 3; (1972) AC 1027 at 1125:
"The harm caused to the plaintiff by the98. At page 1071 Lord Hailsham referred to the matters that may be taken into account in assessing damages for this aspect of a claim for damages by a defamed person:
publication of the libel upon him often lies more
in his own feelings, what he thinks other people
are thinking of him, than in any actual change made
manifest in their attitude towards him."
". . . . . factors for injury to the feelings, the99. It may be introducing an unnecessary complication into the case if I were to investigate the possibility of malice on the part of the defendant, but the other factors referred to by Lord Hailsham are present in this case.
anxiety and uncertainty undergone in the
litigation, the absence of apology, or the
re-affirmation of the truth of the matters
complained of, or the malice of the defendant."
100. In approaching this question of damage to the plaintiff's feelings I bear in mind the submission on the part of the defendant that a person who occupies a position in public life ought to be able to withstand a measure of criticism of the way he conducts himself in that official position. Furthermore, I accept that the plaintiff probably is a person who is more sensitive to criticism than many other persons who occupy public positions. But I see no reason why the ordinary tortious principle that a defendant must take the plaintiff as he finds him should not apply in the field of defamation as it applies in other fields of the law of tort. Furthermore, the plaintiff's sensitivity was not a matter of personal idiosyncrasy but flowed in part from the particular nature of his office. That office, although a public one, was one which was not normally exposed to the glare of publicity. The plaintiff was particularly sensitive to this aspect as it had been the office and not only the plaintiff in person which had been so exposed in November 1975. In his evidence the plaintiff said that when he read the Sun Herald article at home on the morning of Sunday, 2 June 1982, his immediate reactions were first anger and outrage deriving from the falseness of the charges made against him, secondly, embarrassment and humiliation about what persons in official positions and others would conclude about his behaviour and thirdly, personal anguish because he feared a repetition of the distress caused to himself and his family in 1975.
101. Furthermore, there was his concern at the reaction of the Governor-General himself. This concern was not dispelled by a telephone call from His Excellency at about 7.30 p.m. on the day of the publication. The plaintiff said that he felt "dreadfully exposed and vulnerable" because he was called upon to explain his actions to the Governor-General in circumstances where in fact he had nothing to explain or for which to apologise. The plaintiff said that he tried to make a number of telephone calls to Mr. O'Reilly but was not able to contact him for some time. The plaintiff said that he spoke to Mr. O'Reilly on late Sunday or on the Monday. Mr. O'Reilly said that the telephone call was received by him on late Tuesday at his home. My finding is that it was either the Monday or the Tuesday, and nothing turns on that. This particular concern on the part of the plaintiff about the attitude of the Governor-General continued until the day after the conversation with Mr. O'Reilly when the Governor-General told the plaintiff that he had spoken to Senator Chaney in the meantime and the account of the Minister had tallied with the account given by the plaintiff to His Excellency. The plaintiff informed the Governor-General that he did not wish the Minister to issue a press statement to confirm the plaintiff's version of events, and I accept that the plaintiff's reason for taking that attitude was partly because he did not wish the Minister to be drawn into the matter and also because the plaintiff at that stage expected there would be a correction and a statement in the nature of an apology by the defendant through Mr. O'Reilly. Furthermore, I accept that the plaintiff's attitude in this regard was a reasonable one, and indeed it was not submitted on behalf of the defendant that his damages should be reduced by any failure to accept the offer of a press statement by Senator Chaney. I do not think, however, that the particular anguish and embarrassment felt by the plaintiff with regard to the attitude of the Governor-General continued for any substantial period beyond this second conversation with His Excellency.
102. I am further satisfied that the plaintiff was particularly concerned as to his reputation amongst those people with whom he was in contact in his official duties and in his other public activities. This is confirmed by the evidence, for instance, of Sir Frederick Deer and Sir William Keyes which it is not necessary to refer in detail. I accept further that the plaintiff's hurt was contributed to by a feeling on his part that the article was unfair in that he had not been consulted by Mr. O'Reilly prior to its publication. There is, of course, no general principle that a publisher of defamatory matter is under a duty to act according to the rules of natural justice and to afford an opportunity to the person defamed to give an explanation of his conduct prior to publication. However, each case has to depend upon its merits and in the present case I am satisfied that the position of the plaintiff and his relationship with the Canberra press gallery was such that if imputations were to be made against him of the nature contained in the subject article, then the hurt to his feelings was likely to be greater in the event of the publication proceeding without prior consultation with him.
103. The plaintiff understood and believed that a statement in the nature of an apology was going to be made and he did not accept, and in my view he did not have to accept, the article of 13 June 1982 as constituting an apology. As I have already observed, it was not a substantial retraction of the imputations that had been made, although its defamatory effect was reduced somewhat. On the other hand, it is perfectly understandable that the plaintiff saw the article of 13 June as amounting to a reiteration of what had been alleged against him in that it attributed to him a statement which he had never made and which was not in accordance with what he had said to Mr. O'Reilly when he called for an apology. I accept further that the plaintiff felt at the time of originally reading the article a sense of physical illness and of helplessness in that he was powerless to prevent people out in the community from reading what he was reading there and then. I accept also that he felt that it was like a re-opening of the old wound of 1975. It was particularly painful for him to receive the telephone call from his son Richard on the morning of Monday, 7 June when he was informed that his son's attention had been drawn to the article by fellow officers in the Department of Foreign Affairs. Having observed the plaintiff when he gave evidence, I am in no doubt that the plaintiff was genuinely and deeply distressed as a combination of all these factors at the time of the original publication, that the hurt to his feelings has continued to some extent although it has overall diminished. It was clear from his evidence that even now when reminded of particular aspects, notably the effect that he feared that the article would have on his family, that the plaintiff still has moments of a sensation of deep hurt. On the other hand, it must be remembered that he has continued to perform the duties as Official Secretary to the Governor-General with distinction and, in my view, his original fear that his reputation would suffer substantially, although justified at the time, has been dispelled by subsequent events.
104. It was submitted on behalf of the plaintiff that the anxiety and uncertainty of litigation is a factor that should be taken into account in assessing his damages. This was one of the factors referred to by Lord Hailsham in Broome v. Cassell. Every case, however, depends upon its circumstances. I do not think that Lord Hailsham had in mind that the damages awarded to a plaintiff in a libel action should include a component similar to that commonly encountered in claims for damages for personal injuries and sometimes referred to as litigation neurosis or functional overlay. In any event there is no medical evidence in this case to support such a claim. What I think the law covers and what the evidence in this case does allow is a component to allow for the hurt which the plaintiff must have suffered from time to time during the course of the litigation when called upon to cast his mind back to distressing events. This would have occurred prior to the trial when giving instructions to solicitors and the like and observably did occur during the trial, particularly during cross-examination.
105. In the light of the above, I think it is necessary to deal only briefly with the claim for so-called aggravated damages. It is clear that what entitles the plaintiff to aggravated damages, as distinct from damages for injured feelings arising from the publication itself, is something in the nature of the conduct of the defendant not only in and around the publication but in the events which followed, including the conduct of the litigation. That conduct must in some way be unjustifiable, improper or lacking in good faith: see Triggell v. Pheeney [1951] HCA 23; (1951) 82 CLR 497 at p 514. In the circumstances of the present case, I think that there should be an element of aggravated damages. It arises from the fact, which I find established, that Mr. O'Reilly did indicate to the plaintiff that he would do his "best" and write something to "set the record straight". An apology, however, was not made and what was contained in the article of 13 June 1982 did not amount to an apology. Mr. O'Reilly conceded that the article would be read to refer to the plaintiff as the person at Government House who was responsible for what happened there in relation to the delaying of the Royal Assent and, in my view, in declining to go further than to state that the plaintiff had subsequently said that the article "might have given the impression that Government House officials could have delayed the Royal Assent", the defendant's behaviour, in my view, was such that there was a degree of high-handed conduct and lack of good faith on the part of the defendant damages is called for. I do not mean that there was any lack of good faith on the part of Mr. O'Reilly when he indicated that he would try to do his best to "set the record straight", rather that in the light of what Mr. O'Reilly said to the plaintiff, and his concession in his evidence that he knew that the plaintiff would probably be taken by the ordinary reader to be the person referred to in the offending article that the defendant must bear the consequences of the failure to publish an apology. Moreover, it was not completely true to say that the plaintiff had said that the article "might have given the impression" that the Royal Assent could have been delayed, and in the light of the evidence of Mr. Allen, I am quite unable to accept the statement that "the Sun Herald did not mean to give this impression". Mr. Allen simply did not really know what impression was likely to be conveyed.
106. It remains then to fix a sum of damages which will properly compensate
the plaintiff for the damage suffered to his reputation
which will vindicate
that reputation and which will compensate him for the injury to his feeling
caused by the publication. In fixing
a sum for which the plaintiff is at
liberty to enter judgment, it is to be observed that although the plaintiff
has claimed in respect
of publication in each of the States and the two
Territories, his claim has been pleaded as if he relied on one single cause of
action.
However, as Blackburn J., as he then was, observed in Allsopp v.
Incorporated Newsagencies Co. Pty. Ltd. (1975) 26 FLR 238 at p 241:
"The statement of claim alleges distribution of107. In Comalco Ltd. v. Australian Broadcasting Corporation (1985) 64 ACTR 1, his Honour observed at page 89 that damages should not be duplicated but properly proportioned to the extent of the publication in the jurisdictions in which the causes of action are claimed. This observation was not the subject of criticism when the matter went on appeal to the Federal Court and Pincus J. observed at p.37 of the unreported judgment (11 September 1986) that the legal conclusion arrived at by Blackburn CJ. was plainly correct. Nevertheless, the members of the Full Court reduced the total damages awarded by his Honour from $295,000 to $100,000 without disclosing what damages were awarded in respect of each of the three causes of action in the Australian Capital Territory and the States of Victoria and South Australia respectively. Such a broad brush approach accords entirely with common sense, if I may say so, but I do not think that it is one which is appropriate to be applied by a judge at first instance. I think that what I have to do is try to ascertain an appropriate sum of damages to award in respect of the loss of reputation in each of the jurisdictions in which the publication took place, having regard to the numbers of copies sold in each of the jurisdictions and having regard also to the fact that the plaintiff was probably better known in this Territory and in New South Wales and in Victoria than he was elsewhere. I note that distribution figures for South Australia and the Northern Territory are not differentiated and those parts of Australia will have to be treated as one jurisdiction. As far as damages for injury to feelings are concerned, I think it is quite unreal to try to ascertain how much of the loss was sustained by reason of the publication in any one particular jurisdiction. It is appropriate to arrive at one sum for injury to feelings and, if necessary, that sum may be broken up into the proportions appropriate to the numbers of copies of the publication sold in each jurisdiction. The component of aggravated damages will be incorporated into the sums awarded under these heads and not expressed separately. Accordingly I find that an appropriate award for loss of reputation in each of the jurisdictions is as follows:
the offending material throughout Australia, and
evidence was given of circulation of the issue in
question in the various States and Territories.
The plaintiff's claim is thus based not merely on
the commission of a tort within the jurisdiction
but on the commission of as many torts as there
are jurisdictions. There are several claims for
several torts, and each has to be considered
separately."
Australian Capital Territory $5,000108. To this I would add the sum of $10,000 for injury to feelings. I have borne in mind the need to avoid overlapping. The total damages to be awarded is therefore $46,250.
New South Wales $25,000
Victoria $3,000
Queensland $2,000
South Australia and the Northern
Territory $500
Tasmania $500
Western Australia $250
Total $36,250
109. Counsel for the defendant expressly asked me to defer deciding the question of interest until after I had announced what damages, if any, were to be awarded to the plaintiff. Counsel for the plaintiff did not oppose that course and accordingly I refrain from directing that judgment be entered for the plaintiff until the parties have had a chance of addressing me on the question of interest. I shall also deal with the question of costs.
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