Russell John Bainton v John Fairfax and Sons Ltd and John Slee [1991] ACTSC 99 (14 November 1991)

SUPREME COURT OF THE ACT

RUSSELL JOHN BAINTON v. JOHN FAIRFAX AND SONS LTD and JOHN SLEE
S.C. No. 253 of 1988
Defamation - Fair and Accurate Report - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Defamation - Plaintiff senior Barrister - Newspaper article - Article purporting to be a serious analysis by a specialist reporter of legal affairs - Quality daily newspaper - Imputations - Whether conveyed - Allegations not assertions - Imputations of perjury.

Fair and Accurate Report - Fair protected report - Imputation of perjury - Misstatement of facts - Comment/Fair Comment - Qualified privilege - Information on matter of public interest - Lack of good faith - Relevance of bias - Negligence - Collateral motive - Vicarious liability.

Damages - Failure to correct or apologise - Reckless indifference to truth - Unreasonable failure to acknowledge the obvious - Loss of reputation - Ethical obligations of counsel - Injury to feelings including aggravated damages.

Defamation Act 1974 (NSW), s.22, s.24, s.33

Defamation (Amendment) Act 1909, s.5(d)

David Zalmon Baffsky v John Fairfax and Sons Limited (ACTSC; No. 1417 of 1987; Higgins J.; 20/9/90; unreported)

Bik v Mirror Newspapers (1979) 2 NSWLR 679

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293

Wake v John Fairfax and Sons Ltd (1973) 1 NSWLR 43

ABC v Comalco Ltd (1986) 12 FCR 510

Moore v TWT Limited (ACTSC; Higgins J.; 31/10/91; unreported)

Cook v Alexander (1974) 1 QB 279

Thompson v Truth and Sportsman Ltd (1932) 34 SR(NSW) 21 (PC)

Illawarra Newspapers Pty Ltd v Butler (1981) 2 NSWLR 502

Lloyd v David Syme and Co Ltd (1985) 3 NSWLR 728

Hook v Fairfax (1982) 42 ACTR 17

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30

Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354

Morgan v John Fairfax and Sons Ltd (NSWCA; Hunt AJA; 17/7/91; unreported)

HEARING

CANBERRA
14:11:1991

Counsel for the Plaintiff: Mr I. Callinan QC, with Mr McClintock

Instructing solicitors: Messrs Gallens Crowley and Chamberlain

Counsel for the Defendant: Mr Winnecke QC with Mr Basten

Instructing solicitors: Messrs Mallesons Stephen Jacques

ORDER

There be judgment for the plaintiff in the sum of $75,000.00.

DECISION

On 16 February 1988 an article was published which purported to report and comment on proceedings between the plaintiff, a prominent Sydney QC, and Leszek Rajski, described in the article as a "computerist". It was published in the Sydney Morning Herald. The first defendant owns that newspaper. The second defendant wrote the article. It is under his by-line.

2. The article was in the following terms:-
1. "The attempt by computerist Leszek Rajski to have the courts

put to trial his allegations against various lawyers
representing his opponents in the Tectran v Raybos litigation continues.
2. The judgment in Rajski v Bainton, given last November, ruled
against a trial of Dr Rajski's allegations against
Mr Russell Bainton, QC, the senior counsel for many of
Dr Rajski's opponents since June 1984.
3. Justice Clarke struck out, as manifestly groundless, an
action by Dr Rajski alleging a conspiracy between Mr Bainton and
Dr Rajski's opponents to abuse the processes of the court and
pervert the course of justice.
4. Justice Clarke did accept that the original breach of
contract action brought against Dr Rajski and his computer
company Raybos Pty Ltd could well prove to be very weak indeed.
And he did not disturb Justice Miles's findings in June 1985 of
a prima facie case of conspiracy to abuse the process against
some of the solicitors who mounted that original action on
behalf of Tectran Pty Ltd.
5. But he said the evidence on which Dr Rajski had sought to
have Mr Bainton tried for a similar offence "does no more than
show that (Mr Bainton) has represented his clients with vigour".
6. Dr Rajski has appealed. (Yesterday he was in the NSW Court
of Appeal seeking, pending the appeal, a stay of the $44,000
costs Mr Bainton now claims.)
7. Later this year, the Court of Appeal will decide whether
Justice Clarke was right to refuse to allow the allegations
against Mr Bainton to go to trial.
8. One of the most serious of these allegations was that in
late November 1984, Mr Bainton defied a court order and breached
a court-sanctioned inter-party agreement by advising his clients
to take certain computer discs, at the time under a court order,
and to copy their contents.
9. During the hearing, Justice Clarke left no doubt to anyone
sitting in his court that he accepted there was evidence
Mr Bainton had breached the inter-party agreement.
10. Yet in his judgment he said that anyone reviewing the
correspondence between solicitors on the opposing sides in
Tectran v Raybos would conclude there was no inter-party
agreement to prevent Tectran's solicitors copying the discs.
Mr Bainton's advice, especially in the light of a possible issue
of breach of copyright by Dr Rajski, was sound.
11. To one who observed the Rajksi (sic) v Bainton hearing with
some attention, this ruling came as a surprise.
12. It is often said that a judge who appears to be inclined to
accept one side's case during a hearing frequently rules against
that side when the time for judgment arrives. But usually in
such cases, it is made clear in the judgment why the apparent
shift occurred.
13. In this case the judgment is not helpful in that respect.
14. The disputed inter-party agreement concerned access to the
tapes and discs which recorded the computer software system
called Raybol, which Dr Rajski had supplied under the contract
he and his company, Raybos, had with Tectran Pty Ltd.
15. In oral evidence, Mr Bainton said he had no knowledge that
the discs had been used on or about November 20, 1984. But in
later written submissions Mr Bainton said he had advised that
the discs be copied and inspected by his son at that time.
16. This was after Dr Rajski had produced evidence to contradict
Mr Bainton's oral testimony, including a record in Tectran's
bill of costs of payment to Mr Bainton for such advice.
17. In considering whether Mr Bainton's advice to copy the discs
breached any undertaking, Justice Clarke said the correspondence
between the two sides did not paint a clear picture on whether
there was an agreement between them on the discs. But, he said,
"the very last letter", dated September 25, 1981 from Allen,
Allen and Hemsley to Dr Rajski's solicitors at the time, Abbott,
Tout Creer and Wilkinson, gave an "unequivocal denial of the
existence of an undertaking".
18. In his appeal, Dr Rajski has referred to a later letter to
Allens from Abbott Tout dated September 30, 1981, reasserting
the inter-party agreement.
19. During the hearing Mr Bainton denied ever having seen the letter.
20. But, as Justice Clarke said in his judgment: "It is not
open to me to proceed on the basis that I am bound to accept
everything (Mr Bainton) said in evidence. I must bear in mind
at all times, firstly that there is an onus on (Mr Bainton) to
demonstrate the absence of any arguable case and, secondly, that
in determining that matter, I should draw those inferences
supported by evidence which are favourable to (Dr Rajski)."
21. It will be for the Court of Appeal to decide whether
Justice Clarke has applied this prescription to the question of
the correspondence on the inter-party agreement. The transcript
records his having read the September 30 letter, yet,
inexplicably, he made no reference to it in his judgment.
22. Justice Clarke spent an unusually long time on Rajski v
Bainton - from May until November, with 21 sitting days. That
should be a reason for confidence that thorough deliberation has
led him to the right decision.
23. But could it also be an indication that the issues raised by
Dr Rajski were indeed substantial and that Justice Clarke, while
purporting to deny that, should have sent them for a proper
trial? The Court of Appeal, later this year, will decide."
(The paragraphs are numbered for convenience.)

3. The plaintiff complains that the article conveys a number of imputations which are defamatory of him.

4. They are as follows:-

"(a) That the plaintiff had unlawfully participated in a
conspiracy to pervert the course of justice and to abuse the
process of the Supreme Court.
(b) That the plaintiff had so conducted himself as to
warrant the well founded suggestion that he had unlawfully
participated in a conspiracy to pervert the course of justice
and to abuse the process of the Supreme Court.
(c) That the plaintiff had participated in a criminal
conspiracy to pervert the course of justice and to abuse the
process of the Supreme Court.
(d) That the plaintiff had so conducted himself as to
warrant the well founded suggestion that he had participated in
a criminal conspiracy to pervert the course of justice and to
abuse the process of the Supreme Court.
(e) The plaintiff had committed a contempt of court by deliberating
breaching an order of the Supreme Court of New south Wales.
(f) That the plaintiff had so conducted himself as to
warrant the well founded suggestion that he had deliberately
breached an order of the Supreme Court of New South Wales.
(g) That the plaintiff had knowingly given false evidence
in proceedings before the Supreme Court of New South Wales.
(h) That the plaintiff had so conducted himself as to warrant the well
founded suggestion that he had knowingly given false evidence in
proceedings before the Supreme Court of New South Wales.
(i) That the plaintiff had seriously abused his position
as a Queen's Counsel and senior member of the New South Wales
legal profession."

5. The defendants deny that the matter complained of conveys any defamatory imputation. Insofar as that defence might fail, they seek to rely on the common law and, insofar as publication in New South Wales is relied upon, defences under the Defamation Act 1974 (NSW). The defendants rely upon comment (s.22, Defamation Act 1974 (NSW)), fair and accurate report (common law and/or s.51(d) Defamation (Amendment) Act 1909 (ACT)); that it was an abstract or summary of the proceedings and/or judgment of Clarke J. in the matter referred to. However, it seems to me that any issue raised by that defence is co-extensive with the "fair report" defence. Indeed, for reasons I discussed in detail in David Zalmon Baffsky v John Fairfax and Sons Limited (ACTSC; No 1417 of 1987; 20/9/90; unreported), there is no real difference between the "fair and accurate report" granted qualified privilege at common law and the "fair protected report" provided for under the Defamation Act 1974 (NSW). In this Territory, s.5(d), Defamation (Amendment) Act 1909 is relevant if construed as applying to court proceedings in New South Wales rather than merely those in the Territory. However, the substance of that defence is no different from the common law defence I referred to in Baffsky v Fairfax (supra).
DEFAMATORY MEANING:
(i) Criminal Conspiracy:

6. The article does not assert that the plaintiff was guilty of conspiracy. It does report that Dr Rajski had so alleged. It is true that Clarke J. is referred to as declaring that the allegations against the plaintiff lacked substance. He finds that the evidence adduced to support those allegations "does no more than show that (Mr Bainton) has represented his clients with vigour". The "bane and antidote" principle referred to in Bik v Mirror Newspapers (1979) 2 NSWLR 679 might well have applied had the matter been left there. However, the remainder of the article is, plainly, directed towards suggesting that the correctness of Clarke J.'s decision is in question and that Dr Rajski's allegations against the plaintiff did have sufficient substance to warrant the action going to trial. Nowhere does the article do more than suggest that. I do not believe the article is capable of suggesting, nor does it do more than suggest, that the plaintiff could reasonably be thought to have been guilty of the conspiracy mentioned (see Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293). It does not suggest that the allegations are considered to be true or are likely so to be found by any Court.

7. It is no answer to the action for defamation to say that the article does no more than cite Dr Rajski's allegations. (See Wake v John Fairfax and Sons Ltd (1973) 1 NSWLR 43; ABC v Comalco Ltd (1986) 12 FCR 510.) However, I have some doubt as to whether a suggestion that the truth of a defamatory accusation warrants testing in court is per se defamatory. It is otherwise if the suggestion is supported by material suggesting that guilt may reasonably be suspected by responsible authorities (c.f. Moore v TWT Limited (ACTSC; Higgins J.; 31/10/91; unreported).

8. I am satisfied that imputation (b) could arise from the matter complained of. I do not consider (a) so arises. The meanings (c) and (d) are not, in terms, defamatory. It does not reflect adversely on a person to say that, otherwise than unlawfully, they have "participated in a criminal conspiracy". An allegation of participation may, of course, convey unlawful participation but it is, in my view, only if it does so that it is defamatory.

9. I do not consider, however, that the article suggests that there are reasonable suspicions entertained on reasonable grounds that the plaintiff was guilty of any wrongdoing as alleged by Dr Rajski.
(ii) Breach of court order or agreed undertaking:

10. In the proceedings before Clarke J., Dr Rajski relied on an allegation that the plaintiff gave advice which, he said, circumvented the effect of a confidentiality order in relation to certain computer software recorded on tapes or discs the effect of which had been referred to by another barrister in earlier proceedings between the plaintiff's client and Dr Rajski. That barrister, rightly or wrongly, had conceded that there was an obligation of confidentiality. Although he was unable, due to legal professional privilege, to acknowledge this in terms, it appeared, before Clarke J., that the plaintiff had advised his client's solicitors that the computer material could be copied for forensic purposes without breaching any applicable order or agreement.

11. The article clearly suggests there is substance to such allegations (see paras 8-14 particularly). It does not assert that they are true or should be so found by a Court.

12. I think that imputation (f) is capable of being conveyed by the matter complained of, but not (e).

13. The terms of paragraphs 8-14 does convince me that the imputation is conveyed by the matter complained of. It suggests Clarke J. found the imputation of breach of an order or undertaking to be reasonable in the circumstances.
(iii) Knowingly giving false evidence:

14. In paragraphs 15 and 16 it is stated, in sequence, that the plaintiff asserted one thing in his evidence (it would be taken to be "sworn" or "affirmed") and contradicted that in submissions. That contradiction, it is alleged, followed the production of evidence contradicting the plaintiff's evidence by Dr Rajski. I think that would convey, to the average reasonable reader, that the plaintiff gave false evidence and corrected it only after its untruth was shown and he had no credible choice left but to acknowledge it.

15. There is no doubt that such a reader would think that the plaintiff, as a QC, had committed perjury.

16. It follows that imputations (g) and (h) are conveyed by the matter complained of, though (h) is necessarily a sub-set of (g).

17. Guilt of imputation (g) would also imply guilt of imputation (i) but I do not think that imputation adds anything to (g).

18. It follows that the pleaded defences need to be considered. Truth, total or substantive only, is not suggested.
DEFENCES:
(i) Fair and accurate report:

19. Of course, it is not any inaccuracy which will lead to a conclusion that this defence is unavailable. The inaccuracy (or unfairness) must be such as gives rise to a relevantly complained of defamatory inference. It must be an inference (or imputation) that would not have been conveyed had the report in question been fair and accurate. Once again, the answer to the question relies upon the perception of the ordinary reasonable reader. I will not again elaborate on that test. It was considered in Baffsky v Fairfax (supra), 39-40.

20. A reasonable person attending the hearing would, in my opinion, gain the impression that Dr Rajski could well have succeeded in establishing that there was a real question to be tried as to whether the plaintiff had or could be found to have advised the breach of an undertaking given between the parties and affirmed by counsel in court. If that was found, it would be possible to conclude that such conduct was wrongful and, that in turn, could support a conclusion that the plaintiff had become part of a conspiracy to injure the plaintiff by unlawful means.

21. The very fact that the learned trial judge reserved his decision for a long time is some indication of the difficulty in determining whether Dr Rajski's allegations should have been regarded as sufficiently cogent to be tried on their merits.

22. Of course, none of those considerations would suggest to the ordinary reasonable reader that the plaintiff was guilty of any of the misconduct alleged against him by Dr Rajski. The reader would suspend judgment. There would be a question mark, not a black mark, against the plaintiff's reputation.

23. Does the fact that Clarke J. ultimately concluded that Dr Rajski's allegations against the plaintiff had no substance make a difference?

24. Clarke J.'s judgment is criticised by the second defendant in the matter complained of. It may be that it even imputes some inconsistency on the part of the judge. Having read the judgment and those portions of the transcript of the hearing to which I was referred, I would certainly reject such a criticism.

25. However, whilst the ordinary reasonable reader (or listener) would take account of the final judgment he or she is not obliged to agree with it or to modify an impression previously formed.

26. That part of the matter complained which calls the decision of Clarke J. into question is really a comment on the correctness of Clarke J.'s ruling. The ruling itself is fairly reported. It does not really distort the impression an observer might reasonably form about the substance of the allegations made by Dr Rajski which such an observer would retain that the author comments critically on it.

27. Whilst accepting that, subject to appeal, the allegations were not only unproven but had been rejected by a court, an observer could, I believe, have fairly concluded that the allegations were reasonably capable of being entertained and, possibly, established adversely to the plaintiff notwithstanding the decision of Clarke J. to the contrary.

28. The matter before Clarke J. ultimately turned on the construction and effect of the previous barrister's statement to the Court and on the terms of correspondence passing between the parties relating to the so-called inter-party agreement.

29. I consider, therefore, that the reasonable observer might well have concluded, as did the second defendant, that the allegations in question before Clarke J. were not frivolous but deserved a determination on their merits.

30. There were a number of criticisms levelled at the second defendant's writing. For the most part, the use of terms such as "trial", "charges", "not disturb Justice Miles's findings" were, to a lawyer, both inappropriate and inaccurate. Although the second defendant has a legal qualification, it does not seem that he has ever practiced. He has, of course, observed many court cases. However, he was writing, not for lawyers, but for the ordinary person interested in news concerning legal matters. I do not consider that these inaccuracies, exaggerations or flourishes would together or in combination have altered the sense of what was reported as a fair report of, and comment on, what happened in the case.

31. One example is the reference to the allegation that the plaintiff had "defied" a court order and "breached" a "court sanctioned inter-party agreement". It is not true to say as the plaintiff submitted, that there was "never a court order". Tectran, for whom the plaintiff later appeared, had sought access to the Raybol tapes. (These contained the disputed soft ware.) It was also agreed that they should be uplifted only on the joint requests of the parties. Tectran applied for access but Dr Rajski effectively stalled that question by applying to strike out Tectran's claim against him. Unbeknown to Dr Rajski and before that time Tectran had secured copies of the contents of the tapes. Those copies were then sealed by order of Yeldham J. subject to mutual consent or further order. Such an order was applied for by Tectran but refused. The solicitors then acting for Tectran had custody of those discs and copies. Tectran's counsel told Yeldham J. that Tectran had undertaken to Dr Rajski not to let anyone else see the discs. Yeldham J. declined to permit inspection at that time.

32. It was certainly assumed, before Yeldham J., that access required a court order. Such an order had been sought and refused. Yet, as Clarke J. found, the plaintiff advised that some documents or tapes in Tectran's control be inspected by experts engaged by Tectran. As it happened, the recommended expert was the plaintiff's son. In those circumstances, it was no wonder that Dr Rajski considered that something illegal had happened when it appeared, in part from Tectran's solicitors' Bill of Costs, that copies had been taken of some relevant documents and tapes which were submitted to the plaintiff's son for report.

33. Of course, when the plaintiff advised that the process undertaken be carried out, it is plain that he advised that it was lawful to do so. It is not clear at all that the copying was of material the subject of the previous proceedings for access. It could have been a copy of some additional copy not covered by any order. Whether that material, if it existed, was used or whether it should have been discovered or should have been subject to an agreement or order as to access, I cannot say. Nor could the plaintiff. He was bound by his client's legal professional privilege not to explain his advice or the material on which it was based. His counsel, before Clarke J., could only point to other evidence and the exculpatory inferences to be drawn from it. The plaintiff could, and did, assert that he had not (as Clarke J. noted) "done anything in defiance of a court order or inter-party undertaking".

34. Clearly there was conflicting material as to whether there was an obligation of confidentiality binding the plaintiff's client (Tectran) not to copy material which, though not then subject to a court order, as was other similar (or allegedly similar) matter, was subject to this disputed undertaking.

35. As Clarke J. found, it is not open to conclude on this material that the plaintiff had knowingly advised defiance of any legal right.

36. It would be very difficult to encapsulate Dr Rajski's allegations briefly. However, Dr Rajski did allege a breach of a court order, although, as it transpired, it seemed that his case, before Clarke J., turned on whether he could show that there had been a breach of an inter-party undertaking. To call that a "court sanctioned agreement" is not accurate. However, the inaccuracy in that description of it is not important. It was an undertaking which counsel had said, before Yeldham J., prevented use of certain material. Yeldham J. did no more than note that there was such an agreement or undertaking. Yet, even so, it is clear that knowingly to advise the breach of such an agreement or undertaking would be improper.

37. It is also clear that the second defendant did not correctly understand the reasoning process which Clarke J. adopted. The judgment Clarke J. gave does not deny that the plaintiff's advice may have involved the breach in fact of an "inter-party undertaking".

38. The correspondence between solicitors, however, denied, on behalf of Tectran, that there was any relevant undertaking. Dr Rajski asserted the contrary.

39. That was not, however, the question Clarke J. had to decide. He had to decide if the facts alleged by Dr Rajski would support an inference that the plaintiff's advice was knowingly to breach such an agreement so as, in turn, to provide evidence to support the allegation that he had conspired to injure Dr Rajski.

40. Expressing the view that evidence, which would support an inference that the plaintiff's advice in fact breached an inter-party agreement, should have sufficed to support the finding for which Dr Rajski contended is a comment of the second defendant. Its existence does not, in my opinion, render the report of the case by the second defendant inaccurate or unfair. To hold otherwise would, in my opinion, require undue deference on the part of commentators, whether lay or professional, to judicial pronouncements.

41. It is also no answer to say that the second defendant was biased. He clearly did favour Dr Rajski. Nor does the fact that he was not as diligent in attending the hearings as he gave the impression in his article that he had been, render his writing inaccurate. It may be, of course, that the second defendant, effectively relying on Dr Rajski for the "flavour" of the case, could be led into inaccuracy or unfairness, but I do not think, in general terms, that his report of the facts, as opposed to his comment thereon, was adversely affected thereby.

42. There is, however, a major exception. In paragraphs 15 and 16 of the matter complained of, the second defendant reports three facts in sequence:

(i) That "in oral evidence, Mr Bainton said he had no
knowledge that the discs had been used on or about November 20,

1984";

(ii) That then, "Rajski ... produced evidence to contradict
Mr Bainton's oral testimony, including a record in Tectran's
bill of costs of payment to Mr Bainton for such advice" (that
is, advice to copy the discs in Tectran's solicitors' custody); and
(iii) Then, (and presumably as a result) "... in later written
submission aid he had advised that the discs be copied and
inspected by his son at that time".

43. I have already noted the defamatory inference that report conveyed. The first statement was accurate. It reflected what the plaintiff had said in evidence.

44. As to the second statement, it is true that Dr Rajski, during the hearing before Clarke J., referred to the Bill of Costs, entries in which supported the proposition that the plaintiff had advised copying material held by Tectran's previous solicitors. Those entries also indicated that copying had taken place. Dr Rajski had referred to this material in detail and even tendered it well before the plaintiff gave evidence. Whether it was tendered "to contradict" the plaintiff or not is, in that sense, unclear. Whether it did "contradict" the plaintiff is a matter of opinion. Nevertheless, the second defendant was not necessarily guilty of any substantive inaccuracy in characterising the effect of that material as being to "contradict" the plaintiff's evidence.

45. To say, however, that the material was tendered after the plaintiff gave evidence seriously misstated the true position.

46. It was also inaccurate to say that the plaintiff's written submissions contradicted the plaintiff's testimony.

47. Paragraph 10 of those submissions made it plain that the plaintiff was submitting that, although, due to legal professional privilege, he could do no more than deny personal knowledge of the actual source of copies of the disc referred to as he had done in his evidence. It was then contended that evidence from non-privileged sources showed those copies had in fact been derived directly or indirectly (that is, via a further copy) from the disc in question. There was thus no relevant issue about that. The fact that the plaintiff's evidence was constrained by legal professional privilege was not referred to by the second defendant.

48. The second defendant was criticised by counsel for the plaintiff for that omission but I do not think he can be blamed for that. In an article the length of that complained of, not every issue raised in a 21 day trial, resulting in an 85.5 page judgment, could be mentioned. To select a part only for attention does not render a report unfair (see, for example, Cook v Alexander (1974) 1 QB 279).

49. Nevertheless, the result was that, as the second defendant reported it, the plaintiff appeared to make a denial of a fact which seemed from documents produced by Dr Rajski to be clearly otherwise. It was not pointed out that there was a good reason for that apparent contradiction. It should not have been suggested that the plaintiff gave evidence denying knowledge of the source of particular copy documents in ignorance of the fact that Dr Rajski was in a position to produce apparently contradictory evidence. That gave the false impression that the plaintiff had been "caught out" and was then forced to admit the truth. His submissions, in fact, clearly assert a consistency between the plaintiff's evidence and the documents produced by Dr Rajski.

50. The average reasonable observer at the hearing who perused the submissions and documents would, I think, have been left with a quite different impression than that conveyed by the article. That hypothetical observer would certainly have wondered how the plaintiff's denials could be reconciled with the evidence Dr Rajski had produced. He or she would understand, after reading the submissions and the judgment, that the apparent contradiction could be reconciled. It would not, I think, have occurred to that observer that the plaintiff had been "caught out" in a lie.

51. The false impression conveyed would lead the reader of the matter complained of, I think, to view the report of the plaintiff's denial of having seen the letter dated 30 September 1981, referred to in paragraph 18 of the article, with a degree of suspicion which otherwise would not have attached thereto. To follow that reference with a quote from Clarke J., somewhat out of sequence (see para 20), implies an additional slur upon the plaintiff's credibility.

52. There is a clear inference from the matter complained of that the plaintiff had committed perjury. That inference would not have followed from a fair and accurate report of the proceedings.

53. The plaintiff's solicitors wrote to the defendants in the week following the article. They referred expressly to the inaccuracies in the article which, they said, gave rise (inter alia) to an imputation that the plaintiff had, knowingly, given false evidence.

54. The response on 1 March 1988 itself contained some inaccuracies. In particular, it indicated (in para 3, p 2) a perpetuation of the misunderstanding the second defendant had of the difference between an undertaking to the court and an inter-party undertaking of which a court is informed. That does not, of course, affect the false evidence issue. The response declined to concede the patent inaccuracy in the presentation of that aspect of the case. It seemed to miss the point. It assumed that if there was an apparent contradiction between the evidence of the plaintiff, the plaintiff's submissions and the evidence of an undertaking, then the article must be accurate. It further, and, more significantly, denied that the article bore, inter alia, the defamatory inference that the plaintiff gave false evidence. The author of the letter (Mr Deamer) apparently saw the article as conveying only that the plaintiff and Dr Rajski had produced contradictory evidence and, in that event, the case should go to trial.

55. Mr Winnecke QC, for the defendants, put the submission from the outset that no defamatory inference arose from the article.

56. The second defendant, in evidence, denied that he had intended any defamatory inference. In particular, he said that he did not consider that pointing to the apparent contradictions, as he did, conveyed the inference that the plaintiff had committed perjury. In cross-examination, the second defendant conceded that the apparent contradiction was clarified by the plaintiff's written submissions. He conceded that there was no implication from what Clarke J. had said or written that the plaintiff had committed perjury. He did not accept that he, as the author of the article, had conveyed such an imputation. He agreed no such imputation was warranted.

57. If, as I find, the article misstates the facts it purports to report, the defence of "fair protected report" pursuant to s.24, Defamation Act 1974 (NSW) and "fair and accurate report" under s.5(d) Defamation (Amendment) 1909 (ACT) must both fail. Those defences are, in my opinion, essentially co-extensive with the common law qualified privilege to report and comment upon proceedings in a recognized court of justice. It is the inaccuracy in reporting the facts in paragraphs 15 and 16 which conveys the imputation of perjury and lends the flavour of that imputation to the reported denial in paragraph 19 of the article.

58. The facts stated in the article are to that latter extent not fairly reported.
(ii) Comment/Fair Comment:

59. It follows from what I have stated above, that the defence of "fair report" only succeeds in relation to such imputation or imputations as arise from a report of Dr Rajski's allegations and the implication that such an imputation worthy of trial insofar as those imputations were defamatory of the plaintiff.

60. The latter imputations are conveyed, at least in part, by means of comment on Clarke J.'s decision to dismiss Dr Rajski's allegations as unsubstantiated. The comment was, as I have said, based on a failure properly to understand the issue before Clarke J.

61. I have found that insofar as the report conveyed those imputations, it was a fair report, at least in the sense that no significant inaccuracy was committed.

62. Insofar as the report was comment and by criticising Clarke J.'s decision implied that the allegations were more worthy of consideration than found by him, a question of fair comment would arise.

63. In the context of this case there is little or no difference between the "comment" protected under s.33 Defamation Act 1974 (NSW) and "fair comment" at common law.

64. The "comments" made by the second defendant can be reasonably readily discerned:

- The characterisation of the allegation referred to in para
8 as "one of the most serious";
- The "surprise" expressed in para 11; - The suggestion conveyed in paras

12 and 13 that the

judgment failed to make clear why the ruling was made;
- The use of the word "inexplicably" in para 21; - The question formulated

in para 23.

65. Thompson v Truth and Sportsman Ltd (1932) 34 SR(NSW) 21 (PC) makes it plain that, whilst "fair report" and "fair comment" are different defences, it is open to a defendant to comment on facts truly (that is, fairly and accurately) stated in the course of what is otherwise a report of judicial proceedings. In that case, the report was not fair and accurate. It followed that the defence of fair comment also failed. The converse, of course, does not necessarily hold.

66. I should mention, at this point, a matter raised by counsel for the plaintiff. It was said that because the defendant denied any defamatory imputation was conveyed, fair comment could not be relied upon whether it be a common law defence or the defence under s.32 of the NSW Act.

67. Illawarra Newspapers Pty Ltd v Butler (1981) 2 NSWLR 502 and Lloyd v David Syme and Co Ltd (1985) 3 NSWLR 728 were cited in support of that proposition.

68. However, it seems to me that this difficulty only arises where there is no doubt that the imputation conveyed is defamatory and a defendant denies in evidence that he or she believed it to be conveyed by the opinions expressed. Then the defendant cannot claim to have honestly held the opinion disavowed by him or her.

69. In this case, the second defendant said he did hold the view that Dr Rajski's allegations as to conspiracy and breach of an order or agreement had sufficient substance to be worthy of trial. He declined, however, to agree that such an opinion was defamatory of the plaintiff.

70. I have no doubt it was an opinion honestly held by the second defendant. I do not think that the defence of comment or fair comment is excluded because the defendant (or the person whose comment is relied upon) refuses to accept that the imputation which arises from the statement of opinion should be characterised as defamatory.

71. The contrast is made clear by reference to the perjury imputation. The second defendant denies that the imputation follows from the matter complained of but he does not dispute that such an imputation would be defamatory if it arose from the article. It follows that if that imputation arose in whole or in part from the comment of the second defendant upon facts, even if truly stated, the defence would fail because the imputation conveyed by the comment was not congruent with the honest opinion of the second defendant.

72. It follows, it seems to me, that the defence of fair comment succeeds insofar as the comments I have identified convey the imputations pleaded in paragraphs 5(b) and (f) even if those imputations are both correctly categorised as defamatory.

73. The defences of comment/fair comment cannot succeed in relation to paragraph 5(g). The facts are not truly stated and the imputation conveyed does not, in any event, truly represent the opinion of the second defendant.
(ii) Qualified Privilege:

74. The common law qualified privilege relied upon is not identified in the Statement of Claim. It should have been but the plaintiff does not appear to have taken the point. It is clearly intended to be a different head of qualified privilege than that pleaded in paragraph 5(c) of the defence ('fair report of public proceedings of a court of justice').

75. It is enough to say that I accept the submission of the plaintiff that there is no privilege for an inaccurate and defamatory report of judicial proceedings.

76. As Blackburn J. noted in Hook v Fairfax (1982) 42 ACTR 17, there is no general privilege for newspapers publishing matter that is, only in a general sense, of "public interest".
Section 22 Defamation Act 1974 (NSW) - Qualified Privilege:

77. This defence applies only to publication in New South Wales.

78. It protects the publication of matter where:-

(i) the recipient has an interest (or apparent interest)
in having information on some subject;
(ii) the "matter" (that is the matter conveying the
defamatory imputations) is published to the recipient in the
course of giving such information;
(iii) the conduct of the publisher in so doing is "reasonable
in the circumstances".

79. It should be noted that the defence is relevant only if the imputation complained of is conveyed by the matter complained of and is false and defamatory.

80. The terms "information" and "subject" in s.22(1) are quite wide. "Interest" is not construed as narrowly as the common law would construe it in the context of qualified privilege. As Hunt J. noted in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 40:

"The word "interest" is not used in any technical sense; it is
used in the broadest popular sense, to connote that the interest
in knowing a particular fact is not simply a matter of
curiosity, but a matter of substance apart from its mere quality
as news ... The interest must be definite; it may be direct or
indirect, but it must not be vague or insubstantial - so long as
the interest is of so tangible a nature that it is expedient to
protect it for the common convenience and welfare of society, it
will come within the privilege afforded by the section..."

81. It is, I think, clear enough that the conduct of the Rajski litigation and of the plaintiff as one of her Majesty's counsel are matters of "interest" to the public as represented by the first defendant's readership.

82. The next question, then, is whether the conduct of the defendants in publishing "the matter" was "reasonable in the circumstances".

83. The purpose of the section is to prevent liability attaching where, in the course of providing information on a matter of public interest, the publisher makes an honest but reasonable mistake which conveys an untrue defamatory imputation against a person. In this case, the mistake goes to the fundamental question of the truth of the matter conveying the imputation of perjury as well as to the perception that such an imputation was, in fact, conveyed. The second defendant did not believe that the events in paragraphs 15 and 16 of the matter complained of occurred as represented in those paragraphs and failed to perceive that those paragraphs conveyed an imputation of perjury. He had no belief that the plaintiff had knowingly given false testimony.

84. The onus is on the defendant to establish reasonableness. It is also fair to conclude that the more serious the imputation conveyed, the greater the duty to ensure accuracy.

85. In Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354, the Privy Council (per Lord Griffiths) made certain apt comments on this defence:

(364) "There will of course be cases in which despite all
reasonable care the journalist gets the facts wrong, but a member of
the public is at least entitled to expect that a journalist will
take reasonable care to get his facts right before he launches an
attack upon him in a daily newspaper. If on inquiry it is found
that the facts are not true and that reasonable care has not been
taken (365) to establish them courts should be very slow to hold
that the newspaper is protected by statutory qualified privilege.
The public deserve to be protected against irresponsible journalism.
The defence of comment provides such protection by insisting upon
the newspaper establishing the substantial truth of the facts upon
which it comments. It cannot surely have been the intention of the
legislature that this protection should be substantially stripped
away by the introduction of the statutory defence of qualified
privilege. But this will be the result if a newspaper is able to
hide behind the actions of a careless or an irresponsible journalist
or if the court takes too indulgent a view of the conduct of a
journalist who failed to check his facts."

86. A lack of honest belief in the truth of the imputation in fact conveyed is not necessarily fatal. If an unintended imputation is conveyed, a question will arise as to whether the defendant should reasonably have foreseen that such an imputation would be conveyed. It will be relevant to enquire whether the defendant took adequate steps to prevent such an imputation from being conveyed. (See Morgan v John Fairfax and Sons Ltd (NSWCA; 17/7/91; unreported; per Hunt AJA; pp 17-20.)

87. In this case, the facts are not accurately presented. There was no intention on the part of the second defendant to convey an imputation of perjury. However, paragraphs 15 and 16 of the matter complained of very clearly convey such an imputation. It follows, in my opinion, that the defendants have failed to demonstrate that it was reasonable to publish that matter. They could point to no excuse other than carelessness for the inaccuracy in the factual material presented in those paragraphs.
MALICE:

88. I have no doubt that the second defendant was not actuated by malice in publishing the matter which implied that the allegations Dr Rajski made against the plaintiff were, the opinion of Clarke J. notwithstanding, substantial enough to warrant their trial.

89. That was a view I am convinced he honestly held.

90. It is true that the second defendant was advocating a cause. He was biased. The article was not balanced. It contained colourful and exaggerated language. The conclusion to which he obviously came was not, however, so bizarre or outrageous as to compel the conclusion that he had no real belief in it. It was not improper for him to "take sides".

91. However, the imputation of perjury conveyed by paragraphs 15 and 16 stands in a different light. Of course, I have held that the defences raised fail in respect of this imputation. It is, therefore, unnecessary to consider malice. I do so, however, in case I am incorrect in assuming that the defences of qualified privilege, comment and fair report fail. Express malice (or lack of good faith) will defeat those defences. The onus is on the plaintiff to demonstrate it. (See Baffsky v John Fairfax and Sons Ltd (supra) 58.)

92. There is no doubt in my mind that the second defendant was at least negligent. For an experienced journalist to fail to perceive the inference of perjury he had conveyed when he says he did not intend so to do is surprising.

93. Whilst I am prepared to assume that the second defendant did not intend to convey the imputation of perjury, I am persuaded that he did intend to belittle the plaintiff by showing him up as having indulged in self-contradiction and showing Dr Rajski as having cleverly exposed that contradiction. This intention on the part of the second defendant lead to his failure correctly to reflect the facts of the matter in paragraphs 15 and 16. He was clearly indignant about the treatment meted out to Dr Rajski. There is, therefore, material upon which a tribunal of fact could conclude that in misstating the facts as he did, the second defendant was actuated by malice for which the first defendant was vicariously liable.

94. The terms of the letter from the first defendant are also relevant in determining whether that inference should in fact be drawn. It was written in accordance with information provided by the second defendant. In paragraph 4 of that letter, responding to the similarly numbered paragraph of the letter from the plaintiff's solicitors of 23 February 1988, the inaccuracy in paragraphs 15 and 16 of the matter complained of, though raised by the plaintiff's solicitors, is simply not addressed. It would be expected that once it was pointed out that an imputation of perjury had been perceived, at least by the plaintiff, the second defendant would, in terms, at least disclaim that intention. If an unintended error in reporting the sequence of events had been made, even if it was still not perceived that that error conveyed the defamatory inference of which the plaintiff complained, I would have expected that the defendants would have had sufficient professional integrity to have corrected the error in reporting once it was pointed out. If the second defendant simply could not see his mistake even when it was pointed out to him, it can only be concluded that his desire to cast Dr Rajski in a better light blinded him to the inaccurate way he had presented the facts in paras 15 and 16 and to the further and more serious imputation it unjustifiably made against the plaintiff.

95. I think the latter state of mind is, more probably than not, that which the second defendant entertained. I also consider that state of mind constitutes express malice or want of good faith. The first defendant is vicariously responsible for it through both the second defendant and Mr Deamer.

96. I turn now to damages.
DAMAGES:

97. If the plaintiff had indeed been guilty of any of the conduct alleged by Dr Rajski, it would be very damaging indeed. The matter complained of did not, of course, convey such an imputation. The most damaging allegation in fact conveyed was of that of knowingly giving false evidence in court proceedings. It is an allegation which, levelled against anyone, is serious enough. It is very grave indeed when levelled against a senior and respected member of the inner bar.

98. Mr Neville Wran QC, Mr Barry O'Keeffe QC, Mr Richard Conti QC and Sir Maurice Byers QC all testified to the seriousness of the accusation of perjury in respect of the plaintiff. I did not, of course, need evidence to be satisfied as to that. They also testified to the plaintiff's talents and high reputation. None of the eminent witnesses to whom I have referred believed the imputations cast by the article. However, I must bear in mind that some who merely knew of the plaintiff by repute or from the article itself might well believe or, at least, doubt whether the plaintiff deserved to enjoy the high reputation he apparently did.

99. The plaintiff says that when he first read the article it left him "seething" with rage. The first thing that struck him was the accusation that he had lied in his evidence. Then he noted the accusations which he interpreted as being of breaching or defying court orders. No doubt he was also aggrieved by the fact that the second defendant saw substance in allegations which Clarke J. had rejected as untenable.

100. I have, of course, found the second of those two matters does not create liability in the defendants. It is difficult, however, to see how the hurt to the plaintiff's feelings would have been significantly less if it was only the accusation of perjury that had been perceived by him as being conveyed.

101. Over the next few days following the publication, enquiries were directed to the plaintiff about the article. The plaintiff's wife told him that friends of hers had asked what he, the plaintiff, had been up to. He had to persuade her that there was nothing that he had done which he ought not to have done. He described that episode as "a near disaster". I formed the view that it was, even at the hearing, extremely painful for the plaintiff to recall that time.

102. The plaintiff for some time was understandably concerned that his reputation and practice would suffer.

103. The imputation that the plaintiff had given false testimony had no substance or foundation. The response from the first defendant did nothing to mollify the plaintiff's wounded feelings or vindicate his reputation.

104. There is no claim that the plaintiff suffered any special or pecuniary loss. I infer that, at least amongst his colleagues in the law, the plaintiff's reputation has not been noticeably diminished by this libel.

105. The plaintiff has invited the court to consider awarding aggravated damages. In many respects, the question of damages in this case is remarkably similar to Baffsky (supra). At pp 66-70 of that judgment, I discussed the applicable principles and I will not here repeat them.

106. The failure to correct or apologise, the well-known obligation of senior counsel to behave honestly and properly, must aggravate the damage to the plaintiff. There was also an element of reckless indifference to the truth as well as an unreasonable failure to acknowledge the obvious, as I have found in discussing the issue of malice. Those are also matters of aggravation.

107. The circulation figures for the issue of the Sydney Morning Herald in question were 775,258 in New South Wales and 14,106 in the Australian Capital Territory.

108. The article in question purported to be a serious analysis by a specialist reporter of legal affairs. The newspaper itself is a quality daily. Its usual reputation for accuracy and ethical standards makes its departure from those standards on this occasion all the more serious in its impact on the plaintiff.

109. For loss of reputation I award $45,000.00. For injury to feelings, including aggravated damages, I award $25,000.00. The total is $70,000.00. For interest I add $5,000.00 in round figures.

110. There will be judgment for the plaintiff in the sum of $75,000.00. I will hear the parties as to costs.