Graham Charles Evans v John Fairfax Group Pty Limited (Receivers and Managers Appointed); Alan Ramsey and John Alexander [1993] ACTSC 7 (12 February 1993)

SUPREME COURT OF THE ACT

GRAHAM CHARLES EVANS v. JOHN FAIRFAX GROUP PTY LIMITED (RECEIVERS AND MANAGERS
APPOINTED); ALAN RAMSEY and JOHN ALEXANDER
No. SC 243 of 1990
Number of pages - 47
Defamation

COURT

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

CATCHWORDS

Defamation - Statements amounting to defamation - Ordinary reasonable reader test applied to pleaded imputations.

"Constitutional Law", 6th ed, p.86-7, Wade and Phillips Halsbury, 4th ed, vol 8, par 1306

"Political Activities of Civil Servants", March 1953 (Cmnd 8783) annexures 1, 2

"Guidelines on Official Conduct of Commonwealth Public Servants", 1987, 8.1, 8.2, 8.3

Defamation Act 1974 (NSW), s.9

"Gatley on Libel and Slander", J C C Gatley, 8th ed; #40 p 19-20

Freedom of Information Act 1982 (Cth), s.48

Readers Digest Services Proprietary Limited and Another v Lamb [1982] HCA 4; (1982) 150 CLR 500

Hepburn v TCN Channel Nine Pty Ltd (1983) 2 NSWLR 664

Lewis v Daily Telegraph Ltd (1964) AC 234

Jones v Skelton (1963) 63 SR(NSW) 644

Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd (1979) 1 NSWLR 16

Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 677

Farquhar v Bottom (1980) 2 NSWLR 380, 385-7

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

Cairns v John Fairfax and Sons Ltd (1983) 2 NSWLR 708

A v IPEC Aust Ltd (1973) VR 39

Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35

Hewitt v IJA Newspapers (1976) 17 ACTR 15

Bik v Mirror Newspapers Ltd (1979) 2 NSWLR 679

Fairbairn v John Fairfax and Sons Ltd (1977) 21 ACTR1

Youssupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581

Livingstone-Thomas v Associated Newspapers (1969) 90 WN (NSW) (Pt 1) 223

Murphy v Australian Consolidated Press Ltd (1968) 3 NSWR 200

Jolly v Fry [1931] UKHL 1; (1931) AC 333

HEARING

CANBERRA, 1, 2 and 3 December 1992
12:2:1993

Counsel for the Plaintiff: Mr T. Hughes QC, with Mr B Connell

Instructing solicitors: Messrs Macphillamy Cummins and Gibson

Counsel for the Defendants: Mr H. Nicholas QC, with Mr M. Lynch

Instructing solicitors: Messrs Freehill Hollingdale and Page

ORDER

THE COURT ORDERS THAT:
1. There be a verdict for the defendants.

DECISION

HIGGINS J. The plaintiff is a distinguished and respected public servant. As at the date on which this action was heard he was Secretary of the Commonwealth Department of Transport and Communications.

2. His career has been a very successful one.

3. He was born on 22 January 1943 at Williamstown, Victoria. In 1963 he graduated Bachelor of Arts (Hons) from the University of Melbourne. In 1964 he obtained a Diploma of Education and from 1965 to 1967 was a lecturer at the Teachers' College and a tutor at the University of Melbourne. He also obtained a Master of Arts degree in history.

4. In January 1968 he became a trainee diplomat with the Department of Foreign Affairs. In November 1968 he was posted to Manila. He returned to Australia in August 1970 to the position of Executive Assistant to the then Departmental Secretary, the late Sir Keith Waller, remaining in this position until February 1972. He was then posted to Bangkok as Second Secretary at the Australian Embassy.

5. By the end of that posting in April 1974, the plaintiff had been promoted to First Secretary. He was appointed to the Policy Planning Group and, in November 1974, promoted to Section Head, (Indo-China).

6. In 1976, the plaintiff established the United States of America Section, being appointed its Head. He also completed a Bachelor of Economics degree at the Australian National University.

7. His next posting was to the Australian Embassy, Washington, USA, as Counsellor.

8. It appears that during 1976 the plaintiff became a financial member of the Australian Labor Party. He believes that his membership lapsed, probably about 1979. He is sure that his membership had expired by 1983. He has not, subsequent to 1983, been a member of any political party.

9. The posting to Washington ended in December 1980. During that time the plaintiff met Mr Bob Hawke on one occasion when the latter was visiting Washington. The plaintiff's recollection is that the visit was prior to Mr Hawke's resignation from the position of ACTU President to take up office as the Federal MP for Wills.

10. During 1981, the plaintiff was awarded a Public Service scholarship to the John Hopkins School of Advanced International Studies. He was awarded a Master's degree in International Policy Planning.

11. In 1982 he was promoted to the rank of Assistant Secretary, International Development Finance Branch, Overseas Economic Relations Division, Department of the Treasury. After 12 months, he was requested by the then Secretary to the Treasury, Mr John Stone, to transfer to the Overseas Economic and Trade Branch as its head. He did so. From time to time the plaintiff was chosen by Mr Stone to act in the office of First Assistant Secretary when the permanent occupant of that office was absent.

12. During mid-1982 Mr Hawke, then Opposition spokesman on Employment and Industrial Relations, offered the plaintiff a post on his staff as an adviser. The plaintiff declined the offer. He saw himself as a career public servant and did not wish to be diverted from that career path.

13. Mr Hawke then became Opposition Leader. This was shortly after the then Prime Minister, Mr Malcolm Fraser, had requested the then Governor-General to dissolve the Parliament and call a general election. On 5 March 1983, Mr Hawke's Party won the election. He became Prime Minister. He requested the plaintiff to accept appointment as his Principal Private Secretary.

14. That request was, it seems, not only a recognition of the plaintiff's administrative skills but also of his broad policy advising skills and capacities.

15. Notwithstanding that, the plaintiff, apparently, gave anxious consideration to whether he should accept the position. He was concerned lest he be perceived by his Public Service colleagues and others as engaging in political activity or, at least, as politically partisan.

16. In the English Civil Service there is a convention that,
"... any civil servant who, however remotely, may be regarded as

the agent of (or in contact with) a Minister must abstain from
active participation in politics, lest his loyalty to his party
should bring him into conflict with his loyalty to his Minister."
(Wade and Phillips, "Constitutional Law", 6th ed, p.86-7.)

17. There is a general code of conduct for English Civil Servants. That code includes, according to Halsbury (4th ed, vol 8, par 1306), that,

"... if his work involves advising Ministers or carrying out
Ministers' policies, he must retain a proper reticence in matters
of public and political controversy, so that his impartiality is
beyond suspicion."

18. (See also "Political Activities of Civil Servants", March 1953 (Cmnd 8783) Annexes 1, 2.)

19. I was told that it is usual practice, in England, for private secretaries to Ministers, including the Prime Minister, to be civil servants who are apolitical. This is confirmed, of course, by the popular series "Yes Minister".

20. That was, it seems, the practice adopted by Ministers in Australian Governments until the Gorton Government. From then on it became the practice for the Prime Minister and some Ministers to choose as private secretary a person who not only had the desired administrative and academic skills but also was politically active in or, at least, politically inclined towards, the Government party.

21. The 1987 "Guidelines on Official Conduct of Commonwealth Public Servants", deals with political participation of public servants in the following terms:-

"8.1 There are no legislative provisions restricting political
activity by public servants. Public servants are free to become
members of, and hold office in, any political party. Attention
is drawn to sub-section 33(3) of the Public Service Act which
prohibits discrimination in respect of appointments, transfers
and promotions on the ground of political affiliation, among
other things. However there may be some political groups,
membership of which may affect a public servant's security
assessment, depending on individual circumstances.
8.2 The Board accepts political participation by public servants
as part of their general involvement in community affairs.
Public servants often have their own views on policy or party
issues whether or not they are members of political parties, and
unless there is evidence to the contrary it is accepted that they
can separate those views from the performance of their official
duties. However, where a public servant publicly promotes party
views on certain issues and where his or her duties as a public
servant are involved directly in advising on or directing the
implementation or administration of government policy on those
issues, the potential for conflict of interest arises.
8.3 Public servants involved in the political arena,
particularly as spokespersons for political parties, should bear
in mind the potential for conflict of interest, and should be
aware that if such conflict arises it may be necessary either to
withdraw from the public political arena or from the area of duty
which gives rise to the conflict. When a Secretary is concerned
that there may be, or could appear to
be, a conflict between a public servant's duties and his her role
in a political party, the issue should be discussed in as open
and frank a manner as possible before any final decision relating
to a selection or allocation of duties is taken."

22. Those Guidelines reflect the position as it has been since at least 1973.

23. It follows that it would not have been unethical or lacking in propriety for the plaintiff to have adopted a politically partisan stance provided that he conformed to those guidelines.

24. More significantly, I do not consider that the general public would regard unfavourably a public servant who had shown political commitment but acted in conformity with those guidelines.

25. The plaintiff consulted several senior and experienced public servants before taking up Mr Hawke's offer. Mr John Stone advised the plaintiff that he could, after a period of service in the Prime Minister's private office, return to the Treasury. Sir Geoffrey Yeend, then Secretary to the Department of Prime Minister and Cabinet, advised that service as Principal Private Secretary to the Prime Minister would certainly be regarded as "worthwhile experience".

26. Shortly before April 1986 when the plaintiff's term of office as Principal Private Secretary was, by arrangement, about to expire, he sought a suitable public service position. There was a vacancy advertised as Deputy Secretary, Department of Prime Minister and Cabinet. He applied for it. The application was considered by a Merit Selection Board. The plaintiff deliberately refrained from advising the Prime Minister of his application. He requested no reference from the Prime Minister in support of his application.

27. Such restraint might seem strange to persons outside the Public Service. However, the plaintiff explained that he did not wish it to be perceived that he was being assisted by the Prime Minister in obtaining high office in the Public Service. He felt, apparently, that such assistance could, somehow, be portrayed or perceived as unfair by other public servants who had not had the advantage of working closely with the Prime Minister.

28. The plaintiff was successful in obtaining the Deputy Secretary's position. He was, undoubtedly, the best available applicant. The process of selection in no way involved the Prime Minister.

29. Subsequently, prior to November 1986, the plaintiff acted as Secretary of the Department of Prime Minister and Cabinet on at least two occasions. That selection was also based on his perceived merit. It did not depend on any request or recommendation from the Prime Minister.

30. In November 1986, on the recommendation of the Acting Chairman of the Public Service Commission, Cabinet put the plaintiff's name forward to the Governor-General for appointment as Secretary, Department of Resources and Energy. He was appointed accordingly. His appointment was greeted as well-deserved by numerous persons, including Mr David Connolly MP, then the relevant Shadow Minister. It is clear that the plaintiff was seen as meriting his advance to the rank of Secretary by virtue of his qualities as a senior and experienced public servant. Such an appointment is, of course, political in the sense that it is recommended by the politicians who are members of Cabinet and of the Government party or parties. It is apparent, however, that the plaintiff's objectivity and professionalism would have equally commended him to a Cabinet comprised of persons of different political persuasion.

31. Following the Federal election held in May 1987, there was a major re-organisation of the Australian Public Service. The Departments of Primary Industry (under Mr John Kerin, MP) and Resources and Energy (under Senator Gareth Evans) were to merge. The new mega-department was called "Primary Industry and Energy". Mr Kerin was appointed its Minister.

32. Mr Kerin expressed a wish that the previous Secretary of the Department of Primary Industry, Mr Geoffrey Miller, be appointed Secretary of the combined Department. Cabinet, however, did not agree.

33. Although both men, the plaintiff and Mr Miller, were highly regarded and eminently suitable for appointment, the advice tendered to Cabinet and accepted by its members was that the plaintiff was the preferable candidate.

34. The plaintiff was, accordingly, appointed Secretary, Department of Primary Industry and Energy in July 1987. It was agreed that, out of deference to Mr Kerin's desire to have Mr Miller as his permanent head, the plaintiff would, after about 12 months, be offered another suitable Department assuming a suitable vacancy should arise. It was expected that Mr Miller would then be available to head Primary Industry and Energy.

35. The amalgamation of the two previous departments was a daunting task. Nevertheless, the plaintiff attacked that task to the apparent satisfaction of Mr Kerin. Indeed, Mr Kerin, it seems, expressed himself to be well pleased with the plaintiff's competence and achievement. Their relationship was always cordial.

36. In May 1988, the plaintiff became aware that the then Secretary of the Department of Prime Minister and Cabinet, Mr Mike Codd, and the Prime Minister were considering the plaintiff for appointment to the Department of Defence. At that time, it was believed that the then Secretary of that Department, Mr Alan Woods (since deceased), would retire early.

37. The plaintiff asked that he not be considered for that post. He said that he had some doubts as to whether his management experience was sufficient to manage such a large department. He preferred a department within the economic area.

38. He had another difficulty which seems to have arisen as a result of a conversation on 18 May 1988 between the plaintiff and one of his colleagues.

39. That person claimed, according to the plaintiff's report of it to Mr Codd:-

"... (a) that I was involved in trying to pressure Alan Woods to
leave the Public Service; and
(b) that it all harked back to a "special deal" that I had from
the Prime Minister."

40. The plaintiff asserted to Mr Codd that he had,

"... gone to great pains, both while I was in the Office (of the
Prime Minister) and subsequently, to ensure that there could be
no basis for claiming I had received any preferential treatment."

41. Of course, the plaintiff's request, if granted, would, probably, have delayed the fulfilment of Mr Kerin's desire that Mr Miller be appointed as Secretary of his department. Of course, the "colleague" was not being inaccurate in describing the arrangement with the plaintiff as a "special deal". However, the "deal" was not one that particularly advantaged the plaintiff nor did the plaintiff seek to use or obtain any preference from the Prime Minister in relation to it, irrespective of whether it would have been inappropriate for him to have done so.

42. Later in that year the plaintiff was transferred to the Department of Transport and Communication as its administrative head. He was so appointed, on the recommendation of Cabinet, in September 1988. Senator Gareth Evans was then its Ministerial head. However, by the time the plaintiff took up his new office on 1 October 1988, Senator Evans was no longer the Minister having become Minister for Foreign Affairs and Trade. The plaintiff has been Secretary of Transport and Communications since that time.

43. On 14 April 1990, the plaintiff read an article in the Sydney Morning Herald, a newspaper published by the first defendant. It was an article written by the second defendant, a well-known political journalist.

44. The article was entitled "COSY IN THE CORRIDORS OF POWER".

45. In it, certain references were made to the plaintiff. He claims, in these proceedings, that those references are defamatory of him. I will refer to those statements in more detail later. The plaintiff was angry and indignant at what Mr Ramsey had written. He felt frustrated and depressed that such matter had been published. The plaintiff perceived the article as conveying the imputation that his attainment of high office in the Public Service had been due to the patronage of the Prime Minister rather than to his own abilities. There were, he considered, significant errors and omissions in the article tending to support that imputation. He also perceived the article as suggesting that he had accepted a position in the Prime Minister's Office with a view to advancing his career by gaining patronage rather than by gaining relevant experience and skills.

46. The plaintiff was aware that persons who knew him well would not believe those imputations to be true. He was concerned, however, that some persons who did not know him well might give credence to those perceived imputations.

47. The plaintiff was further offended by the suggestion in the article that he had never "got on" with Mr Kerin. He considered that suggestion to imply that he and Mr Kerin had an unworkable relationship and that Mr Kerin had lacked confidence in him. That imputation, he considered to be damaging to his reputation as a senior public servant.

48. Over the following week, the plaintiff sought and received various reactions to the statements concerning him in the article. His wife, Mrs Anne Evans, herself a senior public servant, agreed with the plaintiff's perception of the article as damaging to him.

49. A Deputy Secretary, Primary Industry and Energy, Mr Brian Hill, told the plaintiff he regarded the article's references to the plaintiff as "scurrilous", "totally inaccurate" and "very damaging", particularly because of the portrayal of the plaintiff's relationship with Mr Kerin.

50. The plaintiff was particularly upset at that perception of the article. He was further caused concern by Mr Hill's advice that the article had been widely read by officers of Primary Industry and Energy.

51. Mr David Lyle, a television producer, described the article to the plaintiff as "certainly damaging". The plaintiff was surprised that Mr Lyle had read it. He got the impression that Mr Lyle had given some initial credence to the suggestion that the plaintiff owed his advance in the Public Service to the patronage of the Prime Minister rather than his own abilities.

52. A number of other public servants spoke to the plaintiff and expressed similar views. They included Mr Mike Codd, then Secretary, Prime Minister and Cabinet, Mr Graham Glenn, Secretary, Industrial Relations, the late Mr John Enfield, then Public Service Commissioner, Dr Michael Keating, then Secretary, Finance, Mr Tony Cole, Secretary, Treasury, Mr Dennis Ives, Deputy Secretary, Primary Industry and Energy, Ms (now Justice) Deirdre O'Connor, then Chairman, Australian Broadcasting Tribunal and Mr Peter McGee, representative of Westpac in the ACT.

53. As a result of that reaction, the plaintiff instructed his solicitors to write to the first defendant. They did so on 18 April 1990. They described the plaintiff's perception of the article in the following terms:-

"Mr Evans is distressed by the clear imputation that he was
appointed as departmental head not on the basis of ability but
rather because of his political connections.
Mr Evans is also particularly distressed by the statement that he
did not get on with the then Minister, John Kerin, and that the
Minister had not wanted Mr Evans as his departmental head..."

54. The first defendant was requested to respond with an offer of apology by 23 April 1990. Attached to the letter from the plaintiff's solicitors was a letter written by Mr John Kerin. That letter made it abundantly clear that the claim that Mr Kerin and the plaintiff "didn't get on" was false.

55. The first defendant failed to respond to this communication. It made no offer of correction or apology even though what had been published was, apparently, inaccurate in a significant respect. As a result of the lack of response, the plaintiff considered that he had no alternative but to cause a writ to be issued and served. The lack of any offer of apology or correction and the fact that his concerns were simply ignored by the first defendant, added to the plaintiff's distress.

56. His sense of outrage was, the plaintiff said, more deeply felt because the second defendant, whom he had met on two occasions, had not condescended to contact him before publication to check the facts with him. He was annoyed that there were, as he perceived it, errors of fact concerning the details of his career as well as the error concerning his relationship with Mr Kerin.

57. Since then, the pendency of the litigation, the need to sue or let the article stand unchallenged and the need to approach witnesses to give evidence to this Court, have all continued the plaintiff's sense of offence.

58. Before I turn to the text of the article, it is useful to review the supporting evidence called.

59. Senator Bob Collins, the current Minister for Transport and Communications, attested to the plaintiff's high reputation for competence and professionalism amongst public servants and politicians. He also attested that he considered that it was very damaging to a senior public servant if it was believed that he or she had only advanced in rank due to patronage. It would also be regarded negatively if it was believed that he or she had a bad relationship with their Minister.

60. In cross-examination, Senator Collins agreed that the plaintiff's reputation remained high notwithstanding the article. He further agreed that he drew no adverse inference himself from the fact that the plaintiff had been appointed to Mr Hawke's office and had then gone on to other high office. He would have expected service, such as the plaintiff had with Mr Hawke, to have been a "big plus" for any public servant. He agreed that it was hard to imagine anyone but a person of great ability being appointed to head a Prime Minister's office.

61. Mr Mike Codd also attested to the plaintiff's high reputation. He said that he was regarded as "the epitome of the professional, ethical public servant of high integrity". He confirmed the apparent hurt and distress suffered by the plaintiff as a result of the perceived inferences that he had not enjoyed Mr Kerin's confidence and had received favoured treatment. Such inferences would, Mr Codd said, be regarded as "very damaging". Mr Codd also observed that, whereas the appointment of principal private secretaries had been of politically aligned (but still most able) persons under the Whitlam and Fraser Governments, Mr Hawke, and most of his Ministers, preferred the more traditional Westminster model of appointing apolitical public servants to such posts.

62. If it had been perceived and accepted that a public servant was "politically partisan" it could be "very damaging", he said. It was certainly made abundantly clear by Mr Codd that the plaintiff had been appointed to each post offered to and accepted by him solely on the basis of his ability. Even though Cabinet, and, more particularly, the Prime Minister and the relevant portfolio Minister would have considerable influence in deciding the outcome, in each case involving the plaintiff he had been the person most preferred by the person or persons in the Public Service making the recommendation to Cabinet. Accordingly, not only was "patronage" not called upon to support the plaintiff's advancement, it would have been wholly unnecessary even if it had been available to him.

63. Mr Codd also recounted, in the context of discussions had with the plaintiff in May 1988 concerning his possible move to Defence, the pains the plaintiff went to to avoid the appearance that he had obtained any unfair advantage from his term as Mr Hawke's Principal Private Secretary. Indeed, it is quite apparent from "briefing notes" tendered in evidence that all concerned were aware that questions might arise as to whether, after leaving Mr Hawke's office, the subsequent promotion of the plaintiff might be seen, albeit wrongly, as the result of political influence.

64. Mr David Hoare also gave evidence. He was a banker and company director. He has held a number of public appointments as well. He had known the plaintiff since 1981. He said that, until the article in question was published, he had heard of the plaintiff only in most favourable terms. The article had caused him to wonder whether the plaintiff's reputed ability as a public servant was as great as had been previously suggested.

65. He then had the opportunity to work with the plaintiff, due to their mutual professional interest in Aussat, in early 1990. His initial concerns as to the plaintiff's real talents and his capacity to "get on" with Ministers were dispelled.

66. In cross-examination, Mr Hoare conceded that he had not noticed that the article had referred to the plaintiff's appointments as Secretary as being by "Cabinet". He felt that if he had, he would have been reassured at least as to the merit of the appointment. Mr Hoare's greater concern seems to me, however, to have been the inference he drew from the article that the plaintiff might not be able to be used as an effective advocate with his Minister if he did not "get on" with him.

67. Both Mr Dennis Ives, the current Public Service Commissioner and Mr Roger Beale, Associate Secretary, Transport and Communications, gave evidence concerning the plaintiff's high reputation and the need for public servants to maintain a perceived political impartiality. It was consistent with similar evidence given by others which I have already detailed.

68. It is clear from all the evidence called for the plaintiff that he was deeply distressed and concerned by the article so far as it referred to him. He became aware that it was perceived by public servants, and by persons who dealt professionally with public servants, as reflecting adversely on his professionalism and abilities as a public servant directly advising Ministers.

69. The central question is whether the matter published is defamatory of the plaintiff. The defendants, at the hearing, expressly abandoned qualified privilege as a defence.

The Article
70. I set out below the text of the article as it appeared in the first defendant's newspaper.

"Cosy in the corridors of power
ALAN RAMSEY
Two days after the elections, John Singleton hosted a Labor
victory party at his Sydney restaurant. Bob and Hazel Hawke were
there. So were a lot of other people from the Labor campaign.
Some bizarre things happened that night.
One was the spectacular arrival of a horse and rider in the
restaurant. Another was Hazel Hawke's objection to sitting
opposite the wife of a particular Labor adviser. The couple
moved.
A third was Bob Hawke's speech.
What some people remembered later was Hawke's extravagant praise
of Sandy Hollway, the bureaucrat who runs his Canberra office,
and Hawke's failure to make similar mention of Geoff Walsh, his
staff political adviser. The lapse generated a lot of Labor
gossip.
So did the incident of the seating arrangements.
Hollway is a career public servant. Walsh is a Labor loyalist.
Insiders say Walsh's role in the campaign was crucial as a
restraining influence and conduit between the campaign
organisation and Hawke. Hollway, as always, was the office chief
of staff, the efficient smoother of office administration.
Well before the campaign, Hollway's promotion as a Deputy
Secretary within the Department of Prime Minister and Cabinet was
confirmed, even though he remained on Hawke's staff. Yet he
surprised some people as to how involved politically he seemed to
be in the Hawke campaign. Hollway chaired the small group that
put together the initial draft of Hawke's policy speech. And he
flitted back and forth between Canberra and the campaign caravan.
Had Labor lost the election, Hollway was secure in his promotion
to his new position in the Prime Minister's Department - as
distinct from the Prime Minister's personal staff - where he
would serve his new political master, Andrew Peacock. In the
meantime, he was helping write the campaign speech for Peacock's
opponent.
A delicate business.
Before polling day, Geoff Walsh had been thinking about his
future, irrespective of whether Labor won or not. Apparently
Hawke was unaware of this until a senior minister mentioned it to
him. Hawke is said to have been upset Walsh had not told him
first he might go.
Whatever the reason, the absence of Walsh's name was apparent
when Hawke that night singled out various people, particularly
Sandy Hollway, for special mention. The incident soured more
than a few Labor people. Meanwhile, Walsh is out of Canberra on
a couple of weeks' leave.
If Geoff Walsh goes, his departure would accelerate the turnover
of people from Hawke's staff which is about to take place.
Having done his stint in the King's personal service, Hollway is
now due to take up his new post in the upper reaches of the
Department of the Prime Minister and Cabinet (PMC).
Also leaving are two other career officers: Hawke's economics
adviser, Rod Sims who also becomes a Deputy Secretary in PMC, and
his
foreign policy adviser, John Bowan, who is returning to Foreign
Affairs.
Bowan is one of the last of the originals who joined Hawke's
staff back in 1983. So is Walsh, although Walsh's service,
unlike Bowan's, has not been continuous. Walsh, Hawke's first
press secretary, went off to the ILO in Geneva at the beginning
of 1986 and didn't return until early 1988.
If Walsh now leaves, only Hawke's personal secretary, Jean
Sinclair, who came with him from the ACTU, would be left of the
old gang. And even Jean Sinclair, who had major surgery for
cancer last year, may not stay on.
One of the intriguing constants of the Hawke office is its status
as a transit house for those who pass through on their way to
bigger and brighter things. That may well be a barometer of how
well Hawke recruits. It may also say something about the
enhanced power and influence of his department.
Whatever the case, working for Bob Hawke damages nobody's career,
least of all the public servants. Chris Conybeare is just
another example.
Conybeare was Sandy Hollway's predecessor as Hawke's chief of
staff. He, like Hollway, joined Hawke from PMC and, as Hollway
now plans, left Hawke to return as a Deputy Secretary to his old
department. That was in 1988. This week, a fortnight after the
elections, Conybeare became the Government's newest departmental
head when Cabinet appointed him Secretary of the Department of
Immigration, Local Government and Ethnic Affairs.
A great career path, isn't it?
Graham Evans came first.
Evans, from Foreign Affairs, was Hawke's original principal
private secretary in 1983. Three years later, Cabinet appointed
Evans departmental head of Energy and Resources. After the 1987
elections, when Hawke and Mike Codd, the head of the Prime
Minister's Department, reorganised the entire public service
structure, Evans got the top job in the amalgamated Primary
Industries and Energy portfolio.
It didn't last. Evans and his minister, John Kerin, didn't get
on. Kerin hadn't wanted Evans
as his departmental head and their relationship never improved.
So Cabinet accommodated Graham Evans as head of Transport and
Communications under his old ministerial boss, Gareth Evans.
Evans major and Evans minor had worked together in Energy and
Resources before the 1987 reorganisation. Graham Evans is still
running Transport and Communications, now in tandem with Kim
Beazley, while Gareth Evans has moved on to save the world in
Foreign Affairs.
Now Conybeare, who followed Graham Evans into Hawke's office, has
followed him up the escalator to departmental head status. And
Sandy Hollway, who replaced Conybeare, is on his way too.
Other old Hawke Faithfuls haven't done badly either.
Peter Barron, an original staff political adviser, left to become
an executive assistant to Kerry Packer in 1986. Bob Sorby,
Barron's successor, has been an executive in Alan Bond's shaky
empire since late 1988. It's as cosy there as it is in the PM's
department. Two former Hawke advisers teamed up with two old
media mates, one now trying to eat the other.
There's another coincidence.
The swaggering factional heavy, Graham Richardson, hand-picked
both Barron and later Sorby from his NSW Labor network for
Hawke's staff. Richardson in 1983 named Barron one of his two
closest personal friends (the other was Laurie Brereton). And
guess what portfolio Graham was keen - some might even say
desperate - to have in the new Government? Transport and
Communications. Some colleagues say Richardson is still in a
foul mood at being lumped with unglamorous Social Security.
Other Hawke staffers over the years have also kicked on. Cabinet
appointed Hawke's first economics adviser, Ross Garnaut,
Ambassador to China. Steve Sedgwick, Garnaut's successor, became
a Deputy Secretary in Finance. Allan King, a private secretary,
is now a lobbyist for the Seven television network. Jeff
Townsend, Bob Mitchell and David Buckingham, all of them seconded
from the public service, all have senior posts in the
bureaucracy.
And then there's Mike Codd.
Codd was the public servant Labor didn't want in 1983. Ralph
Willis and the ACTU saw Codd as tainted by Fraser. So Labor
shuffled him out of his sensitive post as departmental head of
Industrial Relations and into the relative backwater of the
Industries Assistance Commission.
Codd was back in favour within two years, aided by the subtle
manoeuvring of his public service patron, Sir Geoffrey Yeend,
head of the Prime Minister's Department and, at the time, the
most powerful figure in the bureaucracy. By 1985 Codd was again
a departmental head. A year later he was Yeend's successor at
PMC - the pinnacle of bureaucratic power these days. It's as
much a measure of Codd's ability as it was Yeend's clever playing
of the politicians that Mike Codd achieved all this in little
more than three years. No department has more influence with
this Government than the Department of Prime Minister and
Cabinet. And it is an influence exercised by Codd, as it was by
Yeend, through his influence with Hawke.
Malcolm Fraser regenerated the bureaucratic power of PMC in the
late 1970s. Yeend and Codd simply continued the trend through
their influence with Fraser's successor. Who leads whom might be
a nice exercise in Yes, Prime Minister. And maybe that's as it's
always been.
Ron Brown may not agree.
Mick Young, as Immigration Minister, recruited Brown in 1987 from
his job as executive director of SBS to head up the Immigration
Department. Bob Hawke announced last Tuesday Brown "intended to
make a career change" and "retire" in July from the Commonwealth
Public Service. The same announcement handed Brown's job to
Chris Conybeare, Hawke's old chief of staff.
Ron Brown isn't saying much at all.
But on Tuesday night others in the Government were saying
unpleasant things about how Brown, post-election, was being
levered aside by pressure from professional ethnic groups and the
Office of Multicultural Affairs in Hawke's department to
re-establish their influence in favour of a more flexible
immigration policy.
Cosy but nasty."

71. The general theme of the article is that persons who have been selected to serve the Prime Minister on his personal staff have, after leaving it, gone on to bigger and better things. It is suggested that it is to a public servant's advantage to be so selected. It is likely to lead to promotion.

72. Of course, none of that is controversial. No doubt, as the second defendant expressly noted in the article, the Prime Minister would be concerned to recruit the best available persons to serve on his personal staff. No-one would expect otherwise. If, therefore, a person such as the plaintiff was known to have been selected by the Prime Minister it would imply that he was perceived as professionally able. He would also, if he served the Prime Minister well, as it appears the plaintiff did, be thought likely to be favourably regarded for suitable promotions. It would also be believed of him that he would be assured of the Prime Minister's support in relation to such jobs. It might also be thought of him, by the average reader, that his political views were, at least, consistent with those of the Prime Minister.

73. Great play was made, for the defendants, of the fact that the appointments of the plaintiff to the various offices of Secretary to which he was appointed were said to have been "by Cabinet". This does not remove the implication that the Prime Minister supported or proposed the appointments in question. It does not remove the implication that the political views held by the plaintiff were consistent with those of the Prime Minister.

74. Of course, those implications were not accurately applicable to the plaintiff. He was not chosen for his political views, whatever they might have then been. He did not seek or obtain any special assistance from the Prime Minister in gaining promotion.

75. There was a further implication arising from the article. It emerges that the second defendant seems to disapprove of persons such as the plaintiff being given a career boost by gaining appointment to the Prime Minister's personal office. That implication commences with the use of the term "cosy" in the title. The article refers to the power of Prime Minister and Cabinet and the influence of its respective Secretaries, Sir Geoffrey Yeend and Mr Mike Codd in the making of senior appointments. It clearly was to be inferred by the reader that such power was undesirable. It could lead to "favouritism". The fate of Mr Brown, referred to in the article, implies that Secretaries of Prime Minister and Cabinet are likely to give a boost to the careers of public servants favoured by them. The second defendant apparently disapproves of such "favouritism". Of course, that "favouritism" is a natural consequence of the responsibility given to the Secretary, Prime Minister and Cabinet, for advising the Prime Minister and the Cabinet on the senior appointments in the Public Service. That system must, as the second defendant implies, give a clear advantage to persons favourably regarded by such Secretary.

76. That advantage, the reader is expected to infer, is regarded by the second defendant as not only "cosy" but also "nasty", in the words chosen to end the article.

77. The article clearly infers that the best candidate for a vacant office of Secretary might fail to be appointed either because the Secretary of Prime Minister and Cabinet or the Prime Minister (or both) favourably knew a person who had worked with and for, either or both of them. It does not, however suggest that the person in fact so favoured would lack proper qualifications for the post in question. It does not imply that a person so appointed had improperly influenced anyone to obtain the appointment in question.

78. Nevertheless, those implications which the article did convey concerning the plaintiff were, to a significant extent, false. The evidence does not suggest that any influence had been exerted by the Prime Minister to advance the plaintiff's career. Indeed, it was the plaintiff's concern, shared by Mr Codd, to avoid any suggestion that he was politically "tainted" or favoured. Such a perception, he was aware, could have arisen within the Public Service and, possibly within the Opposition in the Commonwealth Parliament by reason of his service in the Prime Minister's office. He took great pains to ensure that there was no factual basis for that suggestion.

79. The suggestion that Mr Kerin and the plaintiff did not "get on" was false. Nevertheless, the article does not state or imply that it was due to any fault of the plaintiff that he and Mr Kerin did not "get on". Any such implication is one which has been read into the article by the plaintiff and other persons such as public servants, politicians and public office holders familiar with the public service.

The Test
80. The meaning or meanings conveyed by the matter complained of is not to be judged from the stand point of what the author intended to convey nor is it to be judged by reference to what the plaintiff and his associates believed was conveyed. It is what the "ordinary reasonable reader" would have perceived to be conveyed (see Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500; Hepburn v TCN Channel Nine Pty Ltd (1983) 2 NSWLR 664). If, by that standard, the matter complained of is defamatory, it is permissible to have regard to evidence that some groups of persons would regard the imputations conveyed more adversely than the ordinary reasonable reader. The reader is not confined to the literal meaning of the words complained of. If the average or ordinary reasonable reader would infer that the author is conveying a meaning "between the lines", it is open to the tribunal of fact to find that meaning to be conveyed by the matter complained of even though there is no express statement to that effect in it (see Lewis v Daily Telegraph Ltd (1964) AC 234).

81. The evidence in this case satisfies me that a public servant would infer from the second defendant's choice of words that proper merit procedures for promotion had been either by-passed or degraded by reason either of political influence or of the empire-building machinations of the Secretary, Prime Minister and Cabinet. Saying that the plaintiff and Mr Kerin did not "get on" seems to convey to public servants an implication that Mr Kerin lacked confidence in the plaintiff's capacity to carry out his duties to the Minister's satisfaction.

82. Two questions, then, arise. The first is what meanings the matter complained of in fact convey to the ordinary reasonable reader. The second is whether those meanings or any of them, are defamatory of the plaintiff.

83. The plaintiff has firmly contended that the imputations pleaded would be conveyed to that reader.

84. In support of that submission, the plaintiff calls in aid the tone of the article as well as its direct statements. The analogy between the Prime Minister and a "King" was called in aid. Mr Hughes QC, for the plaintiff, contended it portrayed the Prime Minister as "playing favourites". A similar role was portrayed for Mr Codd, although without the regal analogy.

85. These "favourites" are said to be portrayed as the beneficiaries of a comfortable but objectionable system of appointment based on favour rather than merit. The latter imputation, it was submitted, is conveyed by the omission of any direct reference to the plaintiff's merits. The second defendant omitted all reference to the merit based appointment the plaintiff gained as Deputy Secretary, Prime Minister and Cabinet. The false description of the plaintiff's relationship with Mr Kerin, it was submitted, portrayed the plaintiff as some kind of "misfit" who needed to be accommodated by being transferred to Transport and Communication.

86. Mr Nicholas QC, for the defendants, did not seriously dispute that the article imputed that the plaintiff had benefitted from "patronage". He contended, however, that such an imputation had not demeaned the plaintiff in the eyes of the average reasonable reader. It did not imply that the plaintiff was not an appropriate appointee. There was no implication that any such appointment had been attended by any unfairness or impropriety. Each appointment had been expressly referred to as having been made by Cabinet.

87. The reference to Mr Kerin was conceded by Mr Nicholas to have been factually incorrect. He contended, however, that it did not imply to the ordinary reasonable reader that Mr Kerin had doubted the plaintiff's competence or suitability to be a departmental head.

88. There was not, as it happens, any reference in the article to any code of ethics or conduct peculiar to public servants, referred to in the article, against which it was alleged that the plaintiff had offended. Indeed, the plaintiff, through his counsel, expressly rested his case on the contention that the article in its natural and ordinary meaning conveyed the defamatory imputations pleaded.

89. It is necessary, therefore, to determine what the article really conveys to the ordinary reasonable reader.

90. That is a question of fact for me to determine.

91. (See, for example, Jones v Skelton (1963) 63 SR(NSW) 644; Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd (1979) 1 NSWLR 16, 18; Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 677; Farquhar v Bottom (1980) 2 NSWLR 380, 385-7; Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR, 293; Readers Digest Services Proprietary Limited and Another v Lamb (supra); Cairns v John Fairfax and Sons Ltd (1983) 2 NSWLR 708.)

92. In determining what the ordinary reasonable reader would understand, I accept that the statements of witnesses who have said that they understood the article as implying that the plaintiff lacked competence and was appointed because of patronage, does not establish that to be the meaning conveyed to the ordinary, reasonable reader. Their evidence was admitted only to demonstrate the level of distress caused to the plaintiff by their communication to him of that understanding.

93. The evidence could have been used, I suppose, to show that the matters recounted in the article conveyed particular meanings to a particular class of persons, for example, public servants. However, Mr Hughes QC, for the plaintiff, expressly eschewed any reliance on a "true innuendo". Accordingly, although the plaintiff may well have been defamed in the eyes of his colleagues and those who deal with them, that fact is relevant only if the matter complained of would also convey a defamatory meaning to the ordinary, reasonable reader. Then, of course, the fact that the matter is regarded as more defamatory by some readers, either because of their knowledge of the plaintiff or because of their particular values or knowledge of the plaintiff's values, is a matter which may well go to exacerbate damages.

94. I turn, therefore, to the imputations pleaded by the plaintiff. The Imputations

(a) The plaintiff's career advancement in the Commonwealth Public Service was only the result of the patronage from the Prime Minister.
95. This is another way of saying that the plaintiff lacked competence. The key word is "only". However, a lesser imputation conveying the sense that without the patronage referred to the plaintiff would not have been regarded as competent for the offices to which he was appointed would still, I accept, be defamatory and within the case pleaded. This is not true of publication in New South Wales where the imputation pleaded is itself to be regarded as the cause of action (see s.9 Defamation Act 1974 (NSW).

96. In A v IPEC Aust Ltd (1973) VR 39, 52 (40-50), for example, Menhennitt J upheld as libellous an imputation that a plaintiff had been unfit to hold an office he had previously, but did not, at the time of publication, then hold.

97. I accept that the article did impute that the career advancement of the plaintiff was advanced, inter alia, by reason of the "patronage" of the Prime Minister. In so accepting that proposition I take the word "patronage" to be used in the sense of the power to give jobs or favours, or to name persons to hold government jobs. There is no doubt that, as head of Government, the Prime Minister has, and would be expected to have, the power to propose, and certainly to express approval, of candidates for appointment to the office of Secretary of a Department. A person favourably known to and, hence, approved by the Prime Minister for appointment could not, in my view, be deemed unworthy of such office or thought to be appointed only for that reason because he or she enjoyed such a favourable opinion. It would not be surprising that an able officer would come to favourable notice as a result of service on the Prime Minister's personal staff. I cannot see anything in such a suggestion which would adversely affect the reputation of that officer in the eyes of an ordinary, reasonable person.

98. There is nothing in the article published which persuades me that it would convey to the ordinary reasonable reader the "patronage" enjoyed by the plaintiff was the only reason for his appointment as a Secretary. If it did so, it might impute a lack of competence. The article does not suggest that patronage was the only reason for the plaintiff's advancement.

99. It may be that to public servants and their associates it is regarded as improper and demonstrative of a lack of competence to be the recipient of any patronage at all. That is, however, not a matter within this pleading.

100. This imputation, as pleaded, is not, in my view, conveyed to the ordinary reasonable reader, nor does the article convey that patronage rather than competence was responsible for the plaintiff's advancement.

(b) The plaintiff, in his capacity as Secretary of the Department of Primary Industry and Energy, lacked the confidence of his Minister, Mr John Kerin.
101. The expression of lack of confidence, that is that a person might lose office as a result thereof, can be defamatory.

102. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 is an example of that. The plaintiff was then Secretary, Department of Foreign Affairs. The defendant published reports of speculation that he would soon leave that post. He was said in the article to be regarded as politically partisan and, in effect, to have used that political association to gain that office by "lobbying". Associated with that was a suggestion that he was lacking in relevant skills. He was also alleged to have engaged in inappropriate political activity by criticising the then Opposition Leader. The allegations of imminent removal, coloured as it was by the suggestion that the plaintiff was not suitable for the post and not the sort of person the Government wanted there.

103. Although not entirely on all fours, the case of Hewitt v IJA Newspapers (1976) 17 ACTR 15 provides some assistance. The plaintiff resigned as Secretary, Department of Minerals and Energy to take up a post of Chairman of the Qantas Board. The defendant published an article suggesting that the plaintiff was "removed" from the Department and shifted to Qantas. It was open to the interpretation that the shift had been due to unsatisfactory performance. He was also alleged to be insufficiently qualified for the new post. Franki J had no doubt that the article conveyed those imputations and that they were, in fact, defamatory.

104. Accordingly, if the article does convey a lack of confidence by Mr Kerin in the plaintiff, that allegation would be capable of imputing a lack of skill and capacity to the plaintiff. It would be defamatory of him.

105. That defamatory inference would arise if, and only if, the ordinary reasonable reader would conclude that the "lack of confidence" arose from lack of skill and capacity. If it was made clear, for example, that a Minister who expressed a lack of confidence in a departmental head was doing so by reason of a personal whim, not because of any lack of competence or performance in the officer, the defamatory sting which might otherwise arise would be drawn (see, for example, Bik v Mirror Newspapers Ltd (1979) 2 NSWLR 679).

106. The article does not use the expression "lack of confidence". It asserts that Mr Kerin had a personal aversion to the plaintiff. It could be inferred that this was due to disappointment that the plaintiff was foisted upon Mr Kerin as his departmental head. He was not, according to the article, made welcome by Mr Kerin.

107. Whether the alleged personality clash was due to a lack of tolerance on Mr Kerin's part or not, it does not seem to me to signify to the ordinary reasonable reader, not familiar with the nuances a public servant might read into the suggestion, that there was any lack of competence or performance on the part of the plaintiff which was responsible for him and Mr Kerin allegedly not "getting on".

108. Of course, what was said of the relationship between the plaintiff and Mr Kerin was a lie. It lacked any foundation other than that Mr Kerin had expressed and, indeed, maintained a personal preference for Mr Miller as his departmental head. It was a lie that was no doubt hurtful to both the persons referred to. Notwithstanding that its falsity was demonstrated to the defendants, they refused to correct it. They stubbornly persisted in maintaining that lie but made no attempt to justify it. That attitude was, in my opinion, gravely reprehensible. A quality journal, such as the Sydney Morning Herald, should have had the good grace to apologise for a proven inaccuracy, particularly one perceived to be both hurtful and damaging.

109. Nevertheless, a lie, even though both hurtful and damaging, is not defamatory unless it would tend to lower the reputation of the subject of it in the esteem of the ordinary reasonable reader, (see "Gatley on Libel and Slander", J C C Gatley, 8th ed; #40 p 19-20).

110. To my mind, the ordinary reasonable reader would not regard the article as conveying the imputation pleaded. There is nothing in the article that suggests, to the ordinary reasonable reader, that Mr Kerin had any doubt about the plaintiff's competence or performance. The most that could be drawn by such a reader would be that their personalities clashed.

111. No doubt there ought to be a remedy, such as exists under the Freedom of Information Act 1982 (Cth), s.48, wider than malicious falsehood enabling a public correction of inaccuracies such as those of which the plaintiff complained. However, no such remedy is currently available.

(c) The plaintiff was a person whose successful career in the Public Service was due more to his enjoyment of a nasty system of patronage than to anything else. 112. I take that alleged imputation to refer by the words "anything else" to proper qualifications and competence. That is, the article is claimed to impute that without the "patronage" referred to, the plaintiff would not have been promoted to the rank of Secretary.

113. This imputation is a lower level of (a) (supra). The plaintiff's advancement is not to be considered to have been "only" the result of patronage but "more ... than ... anything else".

114. There is also the reference to the system of patronage being "nasty". The description of the system of appointment as "patronage" was, no doubt, accurate. If senior appointments are made on the advice of the Secretary, Prime Minister and Cabinet and the Prime Minister, then those persons will have a great influence in selecting the range of candidates and in choosing between them. That is the system. It would be incredible if they did not favour persons they considered be best for the post or posts in question rather than persons that, for example, the second defendant might favour. The same process of appointment, not necessarily involving the same office-holders applies to the appointment of most statutory offices.

115. Of course, the ordinary reasonable reader would assume that those advising the appointment of persons to high office would recommend persons who, having come to their notice, were considered by them to be appropriate. To suggest that those persons would not be so motivated would, of course, be defamatory of them if it was implied that they acted without regard for the due performance of the office or offices in question.

116. The question is, however, whether to say of a person that he has been the beneficiary of such a system, with the capacity to be used to favour the less well qualified candidates, defames the candidate.

117. In Renouf (supra), Blackburn C.J. accepted that it was defamatory of a senior public servant,

(42) "... to say that he publicly demonstrated his sympathy with
a political party with a view to receiving a higher appointment
from the Government formed by that party."

118. That imputation was accepted as defamatory by reason of the implication that the plaintiff had attempted to openly demonstrate his political acceptability to the Government. That allegation assumed, of course, that the Government in question made such appointments on the ground of political acceptability.

119. In the present case, the article depicts the plaintiff as a favoured recipient of preferment. It is not suggested he improperly sought it, as was the defamatory allegation in Fairbairn v John Fairfax and Sons Ltd (1977) 21 ACTR 1.

120. The second defendant does impute by the references to "cosy" and "nasty" and to the references to favouritism that the "system" of appointment will not necessarily throw up the best candidate but rather those who, whether they are the best or not, will be those who appeal to the key persons making the recommendations.

121. The imputation is not that the plaintiff lacked merit or sufficient skill and capacity but rather that his appointment was made on grounds other than merit.

122. The author's air of cynical righteousness would lead to the conclusion, that, if the plaintiff was appropriately qualified his more attractive attribute was his acceptability to the Prime Minister.

123. It may be defamatory of a person to say that favouritism played a part in their advancement but that is not the plaintiff's case. It may be that other public servants would regard any intrusion of favouritism as derogatory of the beneficiary of such a system. That is not the plaintiff's case either.

124. Certainly, the plaintiff and his senior colleagues all realised that his advancement after he left the Prime Minister's Office could be perceived as being a result of favouritism. Those participating in the process of promoting the plaintiff took great care to ensure that the plaintiff and other candidates were carefully evaluated according to their merits. However, it could not reasonably be thought improper or unfair that the plaintiff's service with the Prime Minister or the latter's assumed high regard for him should have been an advantage to him. The ordinary reasonable reader would, I think, consider it overly scrupulous, even eccentric, that the plaintiff would not even seek an appropriate supporting statement of his previous employer when he applied for the post of Deputy Secretary.

125. The article did over-state the role of the Prime Minister in the plaintiff's career advancement, but it did not impute any unfair or improper conduct to him nor suggest he did not merit such advancement. It did not convey the imputation pleaded. That would require the article to assert that the plaintiff's qualifications and experience were less important than the favour of the Prime Minister. It clearly does not do that.

(d) The plaintiff was prepared to advance his career through cronyism rather than on the merits of the performance of his duties. 126. Of course, this imputation, if conveyed to the ordinary, reasonable reader by the article complained of, would be defamatory. For this purpose, I take "cronyism" to refer to a practice of appointing close friends to government posts regardless of their merits or experience. It is the phrase "regardless of their merits or experience" which renders an otherwise neutral proposition, one alleging reprehensible conduct. It follows, of course, that the phrase as pleaded "rather than on the merits of the performance of his duties" is redundant. Nevertheless, the meaning of the imputation is clear enough.

127. No imputation that the plaintiff obtained advancement through cronyism arises as I have already found. There is no suggestion I can perceive that the plaintiff sought any such advantage. I do not consider that the ordinary reasonable reader would infer from the article that the plaintiff accepted any post which he believed, even wrongly, to have been offered to him as a result of "cronyism". Indeed, the suggestion is that the "nasty" system of patronage favours some able persons over other able persons. Amongst such persons favourable notice by the Secretary, Prime Minister and Cabinet and/or the Prime Minister will result in advancement, the absence of such favour will result in a lack of advancement. That is "patronage" but not "cronyism".

128. Of course, what upset the plaintiff was that, not only did "cronyism" play no part in his advancement, but he had declined to use the favourable opinion of him held by the Prime Minister. He had declined transfer to the Department of Defence, not only because it might be perceived as an unmerited advance in his career, but also because he considered that he did not have the necessary experience. The second defendant's article gave him no credit for those efforts. It was thus both false and hurtful to him. It also lessened his reputation amongst his colleagues as one who had attained his current position without the aid of patronage.

129. However, the failure to extol the merits of the plaintiff does not render what was said of him defamatory to the ordinary reasonable reader who would not have been aware of those matters.

Generally
130. It follows from the above that none of the pleaded imputations are made out as arising from the natural and ordinary meaning of the matter complained of.

131. It also follows that, so far as publication in New South Wales is concerned, the plaintiff's claim must fail.

132. It would be open to find for the plaintiff in each of the other States and Territories if some other defamatory inference arose, whether pleaded or not.

133. It is possible for persons to be defamed without any allegation of misconduct on their part. To say of a woman that she was the victim of rape has been held defamatory (see Youssupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581). So also, to say of a person that he or she is afflicted by mental illness, though not, perhaps, that a relative was so afflicted (see Livingstone-Thomas v Associated Newspapers (1969) 90 WN (NSW) (Pt 1) 223).

134. To say of a senior public servant that he or she owed their advancement to patronage, even without suggesting they sought or accepted such patronage and without any suggestion of unfitness for office may be disparaging. It is even possible that it may be defamatory. It is the most that the ordinary reasonable reader would infer against the plaintiff. Of course, however much the plaintiff might have sought to avoid it, he may, in fact, have benefitted from "patronage".

135. Whether such an imputation would be defamatory was not pleaded. The plaintiff chose to base his case expressly on the imputations as pleaded. It would not be appropriate, therefore, to make any finding other than that the pleaded imputations are not made out.

136. It is quite likely some groups with special sensitivity or knowledge, such as public servants, would have considered that the article accused the plaintiff of benefitting from political patronage. Although such patronage is inherent in any process of appointments by politicians, they would expect apolitical, career public servants to take active steps to avoid even the appearance of political favour. They would, of course, have considered that the plaintiff acted properly, had they been aware of all the relevant facts. The article did not so present it and would have led such persons to question the propriety of the appointments he had attained.

137. I note that a question was raised by Walsh JA in Murphy v Australian Consolidated Press Ltd (1968) 3 NSWR 200 as to whether a statement made, disparaging a plaintiff amongst his professional colleagues but not amongst the community generally, would be defamatory (see p.206). However, that suggestion seems, prima facie, to be at variance with

Readers Digest Services Proprietary Limited and Another v Lamb (supra).

138. It may be that the plaintiff's true complaint is on the basis of true innuendo, as in Jolly v Fry [1931] UKHL 1; (1931) AC 333.

139. However, the plaintiff expressly declined to put his case on that basis. It follows that I am precluded from finding a verdict for him on that basis. That conclusion is regrettable because I have little doubt that an experienced political journalist such as the second defendant would have been aware of the adverse inferences that the plaintiff's public service colleagues might well have drawn.

Damages
140. If any of the pleaded defamatory imputations had been made out the question of damages would have arisen.

141. The hurt to the plaintiff's feelings was genuine and understandable. It was aggravated by the opinions expressed by his colleagues that the article was damaging to his reputation. Indeed, it obviously was so regarded within the Public Service. That was the main area of damage.

142. I would have awarded, for hurt to feelings and damage to reputation within the Public Service, $25,000.00 for the former and $30,000.00 for the latter.

143. It was not a case for punitive damages. Indeed, I expressly refrain from making any finding of malice. There were, however, matters which were said to aggravate the damages which would otherwise be awarded.

144. Those were, briefly:-

. The false assertion concerning the plaintiff's relationship with
Mr Kerin.
. The disapproving tone of the article.
. Omission of facts supporting the inference that the plaintiff was
promoted solely on merit, for example, the merit appointment,
solely on non-political recommendation, to the rank of Deputy
Secretary.
. The implication that he was sent back to his "old boss" Senator
Evans, rather than to Mr Willis.
. The failure to respond to the request for apology and correction,
a request both reasonable and moderate in its terms. It did not
require capitulation, only negotiation.
. The defendants did not seek to enquire of the plaintiff (or Mr
Kerin for that matter) as to the truth about their relationship.
. There were various other articles published by the first
defendant pursuing the theme that the plaintiff and others had
obtained advantage by having worked for the Prime Minister. Each
of those articles were couched in condescending and cynical
tones.

145. Those matters are properly matters of aggravation.

146. I would have added $15,000.00 to the general damages otherwise by reason of these matters.

Costs
147. I propose to hear the parties as to costs. I wish only to observe that it is by no means obvious to me that costs should, in this case, follow the event. Nor it is obvious that, given the unreasonable attitude of the first defendant in failing to contemplate an appropriate correction, thus obliging the plaintiff to sue to vindicate the truth, the defendants should merely be denied their costs.