Szuty v Smyth [2004] ACTSC 77 (1 September 2004)

Last Updated: 16 September 2004

SZUTY v SMYTH

[2004] ACTSC 77 (1 September 2004)

Defamation - defendant is current Leader of the Opposition - plaintiff was working in real estate but had approached defendant as an advocate for a Housing Trust tenant - plaintiff gave defendant her business card with a "caveat" - defendant sent letter to Real Estate Institute of the ACT concerning plaintiff - occasion of qualified privilege - defence of fair comment - damages

Defamation Act 1901 (ACT)

Human Rights Act 2004 (ACT), s 16

Australian Capital Territory (Self Government) Act 1988 (Cth), s 24(3)

Parliamentary Privileges Act 1987, s 16

Bill of Rights 1688, Article 9

Legislative Assembly Precincts Act 2001 (ACT)

Legislative Assembly (Broadcasting) Act 2001 (ACT)

Barbaro v Amalgamated Television Services (1985) 1 NSWLR 30

Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 (31 July 1987)

Beach v Freeson [1972] 1 QB 14

Pearce v Hailstone (1992) 58 SASR 240

Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1

Horrocks v Lowe [1975] AC 135

Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1

Carleton v ABC [2002] ACTSC 127 (18 December 2002)

Kemsley v Foot [1908] HCA 28; [1952] AC 345

Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321; [1994] 3 All ER 407

Thomson v Broadley & Ors [2000] QSC 100 (Unreported)

Szwarcbord v Gallop [2002] ACTSC 28; (2002) 167 FLR 262

Erglis v Buckley & Ors [2003] QSC 440 (24 December 2003)

R v Murphy (1986) 5 NSWLR 18

Church of Scientology of California v Johnson-Smith [1972] 1 QB 522

Mees v Roads Corporation [2003] FCA 306; (2003) 128 FCR 418

No SC 459 of 2001

Judge: Higgins CJ

Supreme Court of the ACT

Date: 1 September 2004

IN THE SUPREME COURT OF THE )

) No SC 459 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: HELEN SZUTY

Plaintiff

AND: BRENDAN SMYTH

Defendant

ORDER

Judge: Higgins CJ

Date: 1 September 2004

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the defendant against the plaintiff.

1. This is an action for damages for defamation. The plaintiff, a former independent member of the Australian Capital Territory Legislative Assembly, sues the defendant, currently the Leader of the Opposition in the Assembly, over the content of a letter he sent on or about 8 July 1998 to Mr Adam Moore, general manager of the Real Estate Institute of the Australian Capital Territory concerning the plaintiff.

2. The plaintiff's evidence was largely undisputed. She had been a member of the Assembly between 1992 and 1995. She lost her seat in the election held that year. She had been elected as a member of the "Michael Moore Independent Group". By the time the letter was written Mr Moore had become Minister for Health and Community Care in a Liberal Government, though not as a Liberal Party member. The defendant was Minister for Urban Services.

3. By then, the plaintiff had, on 21 February 1998, unsuccessfully stood for re-election to the Assembly, again in association with Mr Moore. Between 1995 and that date, the plaintiff had served as a lay member on the Professional Conduct Board of the ACT Law Society, appointed by Mr Gary Humphries MLA, then ACT Attorney-General (now ACT Senator). She had also acted as Executive Director of the Alzheimer's Association of Australia.

4. After her defeat, the plaintiff, having resigned from the Professional Conduct Board to contest the 1998 election, turned to the real estate industry. On 30 March 1998 she started work with Elders Real Estate (Belconnen) as a sales consultant on a commission only basis.

5. During April 1998 she was invited by Mr Humphries to confirm her availability for reappointment to the Professional Conduct Board. However, that was not finalised before 8 July 1998 and the plaintiff concluded, reasonably in my view, that the failure of that appointment to eventuate was a result of the matters referred to by the defendant in his letter to Mr Adam Moore.

6. During May 1998, the plaintiff was given responsibility for becoming familiar with the real estate market in the suburb of Spence. On 3 May 1998 she inspected a house at Broadby Close, Spence. It had, she noticed, been modified to permit use by disabled persons. It was listed for sale by June Kirk of Richardson and Wrench Real Estate.

7. The plaintiff was, at that time, well aware of conjunctive arrangements between listing and other agents. That is, whether through a formal agreement, such as constituted by membership of "Multilist" or otherwise, an agent with a prospective buyer would contact the listing agent to introduce the prospective buyer on terms that the resultant commission, if any, should be shared.

8. As at 3 June 1998, the plaintiff was still with Elders Real Estate. She had secured only one sale but it was still incomplete. She had commenced negotiations with Cec Hodgkinson Real Estate to move to that agency. At that time she was contacted by Ms Gerda Hamilton, through an acquaintance, Mrs Helen Lam.

9. As a result of conversations with those persons the plaintiff understood that she was being approached as a former MLA to assist Ms Hamilton to improve her housing situation. Ms Hamilton was a Housing Trust tenant. One of her four sons (aged 16), one of twins, developed a hip condition requiring operative treatment followed by wheel chair confinement for three months and, thereafter, some months dependent on crutches. There was a possibility of further operative treatment if that treatment was not successful.

10. The plaintiff was provided with documentation which showed that Ms Hamilton had, on 7 April 1998, applied to ACT Housing (the trading name of the Trust) seeking transfer to a property that would be suitable for wheelchair access. On 16 April 1998, ACT Housing declined that request. The officer dealing with the matter pointed out that the prognosis was that wheelchair access would only be needed temporarily.

11. It was agreed between Ms Hamilton and the plaintiff that the plaintiff would arrange an appointment for Ms Hamilton to see the defendant to put to him her case for improved housing. The defendant had ministerial responsibility (inter alia) for ACT Housing.

12. On 4 June 1998, the plaintiff spoke with Mr Michael Hopkins, the defendant's private secretary, to request an appointment with the defendant. She explained the purpose of it to him. She told Mr Hopkins that, since leaving the Assembly, she had not engaged in advocacy for (former) constituents but felt Ms Hamilton's case was "of an exceptional nature". She outlined it generally.

13. An appointment was made for Tuesday 9 June, 1998 at 5.30 pm.

14. It was agreed between Ms Hamilton and the plaintiff that Ms Hamilton should read a prepared statement and present medical information to the defendant.

15. The meeting commenced about 6.00 pm. Ms Bernadette Maher, a member of the defendant's staff who was an officer with ACT Housing was present and took notes.

16. The plaintiff's account of that meeting was that she referred to her role as an advocate and spokesperson to assist Ms Hamilton. Her service in the Assembly had not over-lapped with that of the defendant but he had, during her term, been elected as an MP for Canberra. He had known the plaintiff as a result of his political activities as a former Member of the House of Representatives and then as a colleague of Mr Michael Moore, who was then a fellow member of the ACT Executive.

17. Ms Hamilton recited her statement. A discussion of possible options then ensued, including that of an appeal against the initial decision to decline a transfer.

18. During this discussion the question of a "spot purchase" by ACT Housing was raised by the plaintiff. The term "spot purchase" referred to a purchase by ACT Housing from the private market of a dwelling which would then be leased to a public housing tenant, such as Ms Hamilton.

19. Ms Maher stated, "In exceptional circumstances this could sometimes be done". The plaintiff then said words to the effect that:

During the course of my work in real estate, I have come across a possibly suitable property in Spence which has been modified to accommodate disabled access. I first visited the property, listed by June Kirk of Richardson and Wrench Real Estate, when it was open for exhibition to the public in May.

20. The plaintiff then gave the defendant a copy of the "flyer" she had obtained during the inspection.

21. It was obvious that a question might be raised as to whether, as a real estate sales consultant herself, the plaintiff might benefit if a sale was arranged. Of course, there could be no objection to such a situation, though it would be ethically incumbent on a consultant such as the plaintiff to make his or her commercial interest apparent, if it was not already obvious. The plaintiff recognised this and addressed this question by saying:

I want to play no personal part in the sale process, should ACT Housing consider the spot purchase of this property to be an appropriate response to Ms Hamilton's circumstances.

22. The defendant did not comment upon, or request clarification from the plaintiff as to the effect of this statement if he entertained any doubt as to its meaning or effect. As appears later, it seems that he was not in any doubt as to what the plaintiff had attempted to convey.

23. However, the defendant confined himself to commenting that Ms Hamilton should avail herself of the right to appeal to the Housing Review Committee.

24. The meeting concluded shortly thereafter. As she was about to leave the plaintiff left her business card with the defendant, "to facilitate the process of the appeal", by enabling the defendant's officers to contact her, if necessary. Ms Hamilton, not unexpectedly, did not have business cards.

25. The card contained contact details for "Elders Real Estate" as well as for the plaintiff personally.

26. The plaintiff left the employ of Elders and transferred to Cec Hodgkinson Real Estate as a sales consultant on 15 June 1998. She continued to assist Ms Hamilton. On 18 June 1998 she spoke to her former political running mate, Mr Michael Moore MLA, then the Minister for Health. He agreed also to raise Ms Hamilton's plight with the defendant. The plaintiff, further, attended with Ms Hamilton on 24 June 1998 before the Housing Review Committee and put Ms Hamilton's case to the Committee.

27. The appeal was unsuccessful. On 26 June 1998, having been so informed, the plaintiff met with Ms Hamilton and agreed to speak again with Mr Moore and with The Canberra Times further to pursue the matter. The plaintiff did so but, although reporters from The Canberra Times took details and interviewed Ms Hamilton, the story was not published. Consequently, with Ms Hamilton's approval, the plaintiff issued a press release dated 3 July 1998. It stated:

MEDIA RELEASE

CHARNWOOD FAMILY NEEDS PRIORITY HOUSING

SZUTY CALLS ON MINISTER FOR HOUSING TO TAKE IMMEDIATE ACTION

Former Independent MLA, Helen Szuty, today called on the Minister for Housing, Brendan Smyth, to take immediate action in allocating priority housing for a Charnwood family of 5 in desperate need.

One of the younger sons, John, underwent major surgery in May, necessitating him being completely immobile and confined to a wheelchair for 3 months, to ensure a successful and complete recovery. The government house originally allocated to the family over 15 years ago is now completely unsuitable for their needs, having been allocated when the two older boys were toddlers and the twins babes in arms. The house has no fittings or fixtures suitable for disabled access in the short term, the internal doorways of the house being in many cases too narrow to allow any access by the wheelchair at all, and access outside being almost impossible unless great care is taken by John's mother, Fiona, and one of the older sons.

Any fall, injury or accident to John in the next 2 months could result in him being permanently incapacitated for the rest of his life. His family are and will continue to care for him, but need a more suitable house to provide full and appropriate care for him.

Over the course of the last few weeks, I have accompanied John's mother, Fiona, in representations to the Minister for Housing, Brendan Smyth, the Minister for Health, Michael Moore, and to a hearing of the Housing Review Committee, to secure priority housing. All these efforts have thus far been unsuccessful. I am now publicly calling on the Minister to make a decision regarding priority housing which will meet the family's needs. It is simply not good enough for a public housing tenant, who has always paid her rent on time for 15 years, to remain unassisted in her time of greatest need in caring for John and the other boys in her family, with the threat of permanent incapacity for John hanging over all of their heads. Only an understanding and compassionate decision by the Minister for Housing, Brendan Smyth, may prevent tragedy from occurring. I call on him today to make that decision.

CONTACT: HELEN SZUTY PHONE: ...

DATE: 3 JULY, 1998 MOBILE: ...

(*NOTE: Pseudonyms have been used to protect the identities of family members.)

28. Clearly, this release would reasonably be understood as a criticism of the defendant and of his department. It was followed up by various radio interviews on 2CC, 2CN and 2CA. The defendant responded on 2CN. As might be expected, the defendant supported the decision, making the point that Ms Hamilton's son was not expected to be permanently disabled and that community groups such as Koomari could assist with temporary modifications.

29. That interview was followed by the letter from the defendant to the Real Estate Institute of the ACT dated 8 July 1998 in respect of which this action was commenced. The envelope was marked "in confidence". The text was:

It is with regret that I find it necessary to write this letter.

On 9^th June 1998 Helen Szuty contacted my office requesting an urgent appointment regarding an ACT Housing tenant. She said that since leaving the Assembly she had not been in the habit of carrying out the work of an advocate, but that she felt this case was of an exceptional nature. My diary was rearranged and an appointment was made for later that day, and subsequently took place.

At the meeting the tenant, who was quite nervous read a statement outlining her problem. One of her sons, had recently undergone surgery that was to confine him to a wheelchair for three months. The tenant had approached ACT Housing asking to be relocated to a larger house with wheelchair access. ACT Housing declined her application on the basis that no suitable house was immediately available, and, that her son's incapacity was for a reasonably short period. The fourth person involved in the meeting, Ms Bernadette Maher, the departmental liaison officer presently on secondment from ACT Housing to my office said that the decision could be appealed. She offered to take the letter as an appeal, and put the process in motion. Ms Szuty then asked if ACT Housing had funding available to make spot purchases of housing stock. Ms Maher replied that in exceptional circumstances this could sometimes be done. Ms Szuty then stated that she had been assisting the tenant to locate a suitable property, and they had been able to find one. With that she handed me her real estate business card.

At this point I was unsure as to whom Ms Szuty was hoping to assist; the tenant or herself. I reiterated ACT Housing's appeal procedure, and the ladies left my office.

The tenant's appeal was subsequently heard on 17 June 1998 by the Housing Review Committee and declined.

On the 14^th June 1998 Ms Szuty is known to have shown the tenant the property in question.

I believe, not only has Ms Szuty showed [sic] a sad lack of ethics by her behaviour, but just as importantly she has raised the tenant's expectations to an unrealistic level, thus making the unsuccessful appeal even harder to accept.

I trust that you will see that Ms Szuty's questionable actions are investigated and that the principal of her firm is appraised.

Yours sincerely

Brendan Smyth MLA

30. Subsequently, on 17 July 1998, the plaintiff was advised that her then current retainer with Cec Hodgkinson Real Estate would be terminated. She would continue to be employed by the agency but on a "commission only" basis. At the conclusion of the discussion concerning her retainer, the plaintiff was advised that the defendant had complained about her conduct in some respect that was not then specified.

31. It should be noted that it is not established that this change to the plaintiff's terms of employment was caused by the defendant's letter of complaint. Indeed, the plaintiff had completed only one sale during her real estate career and it is quite understandable that a "business decision" explained the change in her terms of employment.

32. On 21 July 1998, the plaintiff confirmed that the complaint had indeed been received and that it had been forwarded to Elders Belconnen, on the assumption she still worked there, and subsequently to Cec Hodgkinson Real Estate, her then current employer.

33. The plaintiff did not receive a copy of the complaint of 8 July 1998 until 27 July 1998.

34. The plaintiff suffered some distress upon reading the terms of the letter, both because it did not refer to her "caveat" that she would take no part in any sale of the Spence property if it occurred and because it had been disclosed to her former and present employers as well as to the Institute. She, reasonably, drew the conclusion that the complaint had caused the adverse change to her terms and conditions of employment.

35. On 29 July 1998, the plaintiff wrote to the defendant in the following terms:

Dear Minister,

On Friday 17 July, 1998, I was informed that a complaint had been made by yourself about my conduct to the Real Estate Institute of the ACT. On Tuesday 21 July, 1998, I met with Mr. Adam Moore of the Real Estate Institute who confirmed that a complaint had been made by yourself about my conduct and that the complaint had been made "in confidence". Subsequent to further discussions and I understand with your consent, the complaint has been made available to me. I received it by fax on Monday 27 July, 1998.

I have since sought legal advice, and on the basis of that legal advice, I am writing to you requesting that you withdraw your remarks about my conduct, as I believe that your grounds for complaint about my conduct are unfounded. My recollection of the circumstances of my meeting with you and Ms. Bernadette Maher on 9 June, 1998, and of related events is as follows:

On Thursday 4 June, 1998, I contacted your office and spoke with your Private Secretary, Mr. Michael Hopkins, requesting an urgent appointment with you regarding an ACT Housing tenant. I confirm that I stated that since leaving the Assembly (1995) I had not been in the habit of carrying out the work of an advocate, but felt that this situation was of an exceptional nature. An appointment was made for Tuesday 9 June, 1998, at 5.30 pm. On Monday, 8 June, 1998, I visited the tenant in question and we discussed our approach to the meeting with you (notes available) and what she would say to describe her circumstances.

At the beginning of the meeting on 9 June, 1998, I explained what my role was, which was to act as an advocate and a spokesperson for the tenant, assisting her in presenting her case to you for improvement in her circumstances.

One of her sons had recently undergone surgery that was to confine him to a wheelchair for a minimum of 3 months (medical certificate available and provided directly to you at the time of the meeting). The tenant had approached ACT Housing asking for a transfer to another property of a similar size. ACT Housing declined her application on the basis that her son's incapacity was temporary and that she had not demonstrated that exceptional circumstances existed for a transfer. (see letter from ACT Housing, in response to application 142296 of 7/4/98 available and provided directly to you at the time of the meeting)

Following introductions and the reading of her lengthy statement by the ACT Housing tenant, (the statement she read to you was also provided directly to you at the time of the meeting) general discussion occurred about what could be done to respond to the tenant's circumstances.

The option of urgent improvements to her current ACT Housing house was discussed. It was felt that this option could be expensive, inconvenient and impractical given the size of the house. The option of a possible transfer to another ACT Housing property in the same area was discussed and the tenant nominated Charnwood, Dunlop, Fraser, Flynn, Melba, Spence or North Latham; Belconnen suburbs she would be prepared to relocate to. (this is indicated at the conclusion of her prepared statement read to you and provided directly to you at the time of the meeting)

Ms Bernadette Maher, the departmental liaison officer present at the meeting did indicate that the earlier decision by ACT Housing not to grant priority transfer could be appealed and she did offer to take the statement provided, as an appeal, and put the process in motion. This subsequently occurred. However, discussion did occur at the meeting on 9 June, as to the length of time this process would take and whether it was appropriate for the ACT Housing tenant to remain in her current circumstances for any longer than was necessary.

I did ask whether ACT Housing had funding available to make spot purchases of housing stock. Ms. Maher did reply that in exceptional circumstances this could sometimes be done. I said that in the course of my work in real estate, I had come across a possible suitable property in Spence which had been modified to accommodate disabled access. I provided details of the property at the meeting. I first visited the property listed by Ms. June Kirk of Richardson and Wrench Real Estate, when it was open for exhibition to the public on Sunday 3 May 1998. I also stated categorically at the meeting on 9 June, 1998, that should ACT Housing consider the spot purchase of this property to be an appropriate response to the tenant's circumstances, I wanted no part of the sale process, as I worked in real estate and recognised that a conflict of interest existed.

When the meeting of 9 June, 1998, concluded and all options of assisting the ACT Housing tenant had been explored, I provided you with my business card which had my contact details on it. The tenant did not have a business card of her own.

The tenant's appeal was subsequently heard on 24 June, 1998, by the Housing Review Committee and declined.

On Sunday 14 June, 1998, I did visit the Spence property with the ACT Housing tenant, one of her sons and a close friend. She had not seen the property before this and as I had suggested its purchase as an option for ACT Housing to consider at the meeting on 9 June, 1998, believed it opportune to visit the property with her to discuss its suitability in addressing her circumstances. (notes available) The property was open for exhibition to the public on that day and no separate appointment was made by myself to inspect the property. At no time, have I approached the listing agent, Ms. June Kirk of Richardson and Wrench Real Estate for a conjunction on the sale of the property. This has been confirmed to my by June herself, earlier today, 29 July, 1998.

On the basis of this statement being a true and accurate recollection of the meeting with you on 9 June, 1998 and of related events, I believe that I have no case to answer and that your grounds for complaint to the Real Estate Institute of the ACT about my conduct are unfounded.

I also note that the date of your complaint to the Real Estate Institute of the ACT is Wednesday 8 July, 1998, four weeks after the date of my meeting with you on 9 June, 1998, from which your complaint arises. Since the date of that meeting, I have also made representations with the ACT Housing tenant to the Minister for Health, Mr Michael Moore, ... accompanied the tenant to the appeal before the Housing Review Committee, (24 June, 1998) and issued a media release (3 July, 1998), drawing the attention of the community to the tenant's circumstances and asking for appropriate action to be taken: hardly the behaviour of someone "hoping to assist herself".

I hereby request that you write to Mr. Adam Moore, of the Real Estate Institute of the ACT withdrawing your complaint about my conduct, that you provide a copy of this letter to me, and that you do this within a 14 day period and certainly before Friday, 14 August, 1998.

Yours sincerely,

(signature)

Helen Szuty

36. The defendant did not reply.

37. The plaintiff also wrote to Mr Adam Moore in response to the complaint. There was no adverse finding or comment concerning her conduct made by the Real Estate Institute.

38. It was Ms Hamilton's recollection that the terms of the "caveat" uttered by the plaintiff before proffering her business card were `to the effect that "I would have no interest in the sale".'

39. On 2 September 1998, the issue was raised in the Legislative Assembly. Mr Bill Wood MLA defended Ms Szuty from the criticism that had been levelled at her by the defendant in his letter to Mr Adam Moore. The defendant responded on 3 September 1998. That response cannot, by reason of parliamentary privilege, be used adversely to the defendant.

40. There was a report in The Canberra Times concerning the proceedings in the Assembly. It was dated 5 September 1998 and in the following terms:

Ex-MLA Victim of misunderstanding: Wood

A former member of the ACT Legislative Assembly, Helen Szuty, is new to selling real estate but she could do without the kind of publicity she received this week.

After just three months as a saleswoman with a real-estate agency in Belconnen, the former Independent MLA was the subject of a complaint by the Minister for Urban Services, Brendan Smyth, to the Real Estate Institute, alleging a conflict of interest.

The institute passed on the complaint to Ms Szuty's employer, who downgraded her position, prompting Labor MLA Bill Wood to take up her case in the Assembly, saying it was all a misunderstanding.

According to Mr Wood, Ms Szuty was helping a family in need of priority housing when Mr Smyth confused a request she made for him to help the family by buying a suitable house with an attempt to sell the Government that house.

Mr Wood said that when Ms Szuty handed the minister her business card she was not trying to sell him a house.

"I got one too," Mr Wood said. "If the minister misunderstood this gesture, I can assure him it was intended only as a convenient way of advising her telephone numbers and not in connection with her work."

Mr Wood said the minister's complaint to the institute had been made in confidence and not relayed to Ms Szuty until some weeks after the institute had passed it on.

Ms Szuty has now left the agency and is unemployed.

Mr Wood called on the minister to "put things right". He said most MLAs who had served with Ms Szuty would put her "at the top of the list" of colleagues regarded for honesty and integrity.

Mr Wood's regard for Ms Szuty was echoed by former election running mate and now minister Michael Moore. "It looks to me that this is an unfortunate mistake," he said.

Mr Smyth confirmed Mr Wood's description of events but said he had not considered Ms Szuty's behaviour appropriate at the time and still did not. He said the institute had dealt with the issue. "As far as I'm concerned the matter is now closed."

A spokesman for the real-estate agency which downgraded Ms Szuty's status said his actions were unrelated to the minister's complaint.

Ms Szuty is in the process of being reappointed to the ACT Law Society's Professional Conduct Board, an appointment Mr Wood said was at odds with the minister's complaint against her.

41. Subsequent attempts by the plaintiff to gain a "retainer for three months" appointment to a real estate agency between then and 16 November 1998 failed. Thereafter, she attempted to meet with the defendant to resolve their apparent differences. Those attempts were rebuffed by the defendant. It is apparent the defendant did not wish to meet with the plaintiff. That certainly was the plaintiff's perception.

42. By 15 December 1998, the plaintiff had unsuccessfully contested the 1998 Legislative Assembly elections. She had not been re-appointed to the Professional Conduct Board of the ACT Law Society. That she perceived as being a result of the defendant's opposition. She had experienced a lack of enthusiasm to being appointed a sales consultant in real estate. There had been concern expressed to her by one agency as to her ongoing dispute with the defendant. She decided to leave the ACT and try her luck in South Australia. She perceived her lack of success in obtaining a position as being a result of the defendant's perceived hostility towards her.

43. I consider the plaintiff's perception of the connection between the defendant's letter to Mr Adam Moore and these consequences to be reasonable and productive of distress and hurt to her feelings.

44. The defendant has never resiled from the complaint he made nor offered any correction or apology. Indeed, in his evidence before me, the defendant clung to his original opinion despite, by then, having heard the plaintiff's sworn evidence.

45. On 30 March 1999, the plaintiff left the ACT for South Australia. As might have been expected, her efforts to break into the real estate market in South Australia, despite references and contacts offered from her ACT contacts, were unsuccessful.

46. The plaintiff did not press any case for damages by reason of actual economic loss. She has re-directed her talents to the production of a tourist magazine. I accept that she felt her credibility had been unfairly undermined and that was her reason for re-locating to South Australia.

47. In cross-examination the plaintiff had apparent difficulty in giving direct answers to relatively simple questions. I do not believe she was being evasive. It may have been a habit acquired during her career as a politician or a natural difficulty. I do not consider it adversely affected her credit. She impressed me as an honest witness. She believed she had acted honourably and was seriously hurt and offended at the attack upon her character by the defendant launched, as she perceived it, without reasonable cause.

48. The plaintiff conceded that there had been no communication of the offending letter or its contents beyond the Real Estate Institute and the two agencies who had then employed her save for the further publication generated by her efforts to persuade the defendant to withdraw his complaint.

49. The plaintiff stated that she had visited the property at Spence on 14 June 1998 with Ms Hamilton so that Ms Hamilton could see how the house had been modified for a person with a disability. The plaintiff signed the visitor's book, as she believed Ms Hamilton to have done.

50. Whether or not, if ACT Housing had purchased the house, some claim might have been made for commission by the plaintiff or one or other of her employers was not something the plaintiff said that she had turned her mind to. She did not tell either employer of the connection she had with the property in any event.

51. Mr Bill Wood MLA, presently the Minister for Urban Services, gave evidence of the high reputation for propriety that the plaintiff enjoyed. He had attempted unsuccessfully to mediate the dispute between the plaintiff and the defendant.

52. The defendant called a number of witnesses. Curiously, the defendant was himself called as the final defence witness, he having first heard the evidence of each of the preceding defence witnesses. This procedure, as I pointed out to Mr Blackburn SC for the defendant, was quite unsatisfactory. It gave the impression that the defendant was seeking to shape his evidence to avoid or, at least, minimise conflict with the witnesses who gave evidence on his behalf.

53. This was particularly significant when, as was conceded from the outset, an important issue was whether the defendant had been actuated by malice in complaining as he did.

54. First to give evidence for the defendant was Mr Christopher Bienke, at the time a political adviser to the defendant. He had not been present at the meeting on 9 June 1998 but recalled a meeting the next day. His recollection was that the defendant had then referred to the meeting of 9 June 1998. The defendant, he said, mentioned that the plaintiff had accompanied Ms Hamilton, as her advocate. The plaintiff, he was told, had referred to the Spence property. An Elders business card was produced. The plaintiff had asked if ACT Housing would buy such a property to meet Ms Hamilton's needs.

55. The defendant, he said, stated:

... that during the meeting he became unsure whose interests Ms Szuty was there representing, whether it was Ms Hamilton's or her own.

... the Minister said that he wanted to give it some thought before deciding what action, if any, would be taken.

56. About a week later, Mr Bienke raised the matter again with the defendant. They agreed that Mr Bienke would ring Mr Adam Moore for advice as to how to proceed.

57. In his affidavit Mr Bienke said that the defendant told him that he had considered that the plaintiff's purpose was "primarily to make a sale of a house". He said that he had felt uncomfortable and compromised and was "very surprised" at her actions.

58. Mr Bienke thought it was a week or so after that conversation that he drafted the letter of complaint. The letter was corrected by the defendant a day or so later. Presumably, it was despatched shortly afterwards.

59. In that conversation with Mr Bienke, the latter said, the defendant made no reference to the plaintiff's statement that she would have no interest in any sale of the house. Nor did Ms Maher, who had also been present on 10 June 1998 mention that "caveat". Mr Bienke did, however, concede that he subsequently became aware that such a "caveat" had been given.

60. He had known of that caveat when he spoke with Mr Adam Moore and, hence, when he drafted the letter of complaint for the defendant to sign. It did not, however, appear in the final draft of the letter. Presumably it did not appear in any earlier draft.

61. Mr Bienke agreed in cross-examination that the first draft of the letter was produced around 20 June 1998. He could not explain why no reference was made in the letter of complaint to the "caveat" the plaintiff had made. He agreed that, with hindsight, it would have been fairer to the plaintiff to have referred to that "caveat" in the letter to Mr Moore.

62. He was pressed as to when the final draft had been ready for signature. He agreed it would have been about 25 or 26 June 1998. It was suggested to Mr Bienke that the precipitating event for the drafting of the letter was the media release critical of the defendant which had been issued by the plaintiff on 3 July 1998. He did not agree with that proposition.

63. Mr Bienke was unable to explain why, if the letter was finally drafted around 23 June 1998, it was not signed and despatched until 8 July 1998. He agreed that, on hearing of the plaintiff's "caveat" he, having himself been a real estate salesperson, recognised that it was a denial that there would be a "conjunction sale" that is, a shared commission between the plaintiff and the selling agent. However, he did not place any weight, it seems, on the plaintiff's disclaimer. His basis for accepting that the plaintiff, nevertheless, might personally benefit, even though she had said otherwise, was, he said, that "people involved in the real estate industry aren't normally working for nothing".

64. It was apparent that Mr Bienke adopted a rather cynical view of the plaintiff's motives. He agreed that if the disclaimer had been accepted at face value then there could have been no ethical complaint against the plaintiff.

65. Ms Jo Elsom was next. She had been the Media Adviser to the defendant. The purport of her evidence related to the handling of the adverse publicity generated by the plaintiff's media release. She did not, however, regard that issue as "politically significant". This was relevant to whether the defendant was motivated by malice in writing the letter complained of.

66. Mr Michael Hopkins was then called. He had been the defendant's Senior Adviser. He said that the defendant, after the meeting of 9 June (he was not present at it), had decided that a letter should be written to the Real Estate Institute. Mr Bienke was delegated to write it. He did not believe that the letter was related to any media release from the plaintiff. That course, that is, writing a letter of complaint, had, he said, been determined "within days" of the meeting of 9 June 1998.

67. He saw the defendant soon after that meeting. The latter was, he said, `livid'. He considered that the proposal, which he said that the plaintiff had made, had not been "appropriate".

68. The ordinary reasonable observer may have wondered at this reported reaction from the defendant, given he was aware of the role the plaintiff said she was undertaking, that is, as a voluntary advocate, and aware also of the disclaimer the plaintiff had made in relation to any personal gain.

69. Mr Hopkins recalled that latter conversation as occurring in the presence of Mr Bienke. Ms Maher was also present. He did not believe it was on 10 June 1998 but on 9 June 1998.

70. He did later enquire as to the progress of the letter. He said that occurred during the week before he went on leave. He recalled, on return from leave, being "greeted" by the plaintiff's media release. He believed that he had not taken up the issue of the letter with Mr Bienke before 23 June 1998. He was probably still on leave as at 3 July 1998. The letter might not have been prepared, on his recollection of it, until 7 July 1998.

71. Ms Bernadette Maher was a senior departmental liaison officer seconded to the defendant's office from 3 June 1998 to mid-June 1999. She attended the meeting with the plaintiff and Ms Hamilton to advise the defendant on the housing issues which, it is apparent, the plaintiff had foreshadowed she wished to raise with the defendant.

72. She recalled the plaintiff mentioning the house at Spence as being, possibly, a suitable house for Ms Hamilton's needs. Ms Maher replied that it would be unlikely that ACT Housing would agree to purchase it. That accorded with the plaintiff's evidence.

73. Later, on 14 June 1998, Ms Maher said that she had seen the plaintiff and Ms Hamilton at the Spence property. It was at the end of the meeting on 9 June 1998, she confirmed, that the plaintiff gave the defendant her business card. That, again, was in accord with the plaintiff's evidence.

74. Afterwards, she said, the defendant had expressed concern at being given a business card at the meeting. She could recall nothing further concerning that aspect of the meeting. She had no recollection of any meeting on 10 June 1998 about the matter. I consider Mr Hopkins to have been in error when he recalled meeting with the defendant, Mr Bienke and Ms Maher on 9 June 1998.

75. The defendant was then called. His account of the aftermath of the meeting with the plaintiff and Ms Hamilton was that he called Mr Hopkins in to his office after Ms Hamilton and the plaintiff had left. Ms Maher, he said, was in the process of leaving. He recalled saying to Mr Hopkins (Mr Bienke was not present):

Look I just want to tell you that I think something has happened that gives me rise to concern (sic) and that is that a meeting's just been held where Ms Szuty asked to come to my office for a meeting with a housing trust tenant to be an advocate and halfway through the meeting - or through the meeting a business card was proffered that revealed that Ms Szuty was a real estate agent and I thought that that had changed the whole tone of the meeting and it left me with a feeling of great unease.

76. It is apparent that this summary contains significant inaccuracies. First, the plaintiff revealed herself as a real estate worker as soon as the Spence property was mentioned by her. Second, the plaintiff did not proffer her card (as Ms Maher confirms) till the end of the meeting and, third, the disclaimer or "caveat" proffered by the plaintiff is not mentioned.

77. That disclaimer would, to a fair-minded observer, have made it clear that the plaintiff was not seeking to "make a sale" and that her conduct could not rationally have given rise to any "unease", "great" or otherwise.

78. The defendant's claim that he felt "somewhat ambushed and compromised" is, on the face of it, difficult to accept.

79. The defendant did acknowledge, in his affidavit, that the plaintiff had uttered the disclaimer, that is, that she would not be involved in any sale that might take place to provide alternative accommodation to Ms Hamilton and her family. The defendant acknowledged that he had not referred to that disclaimer in his letter to Mr Adam Moore.

80. His explanation for regarding that disclaimer as irrelevant was that he regarded the report he received (via Ms Maher) that Ms Szuty had been seen at the Spence house with Ms Hamilton on 14 June 1998, as a breach of that disclaimer.

81. How that conclusion could be said rationally to follow is unclear. Certainly, a fair-minded observer might conclude that, if there was a possibility of the house being purchased for Ms Hamilton or modifications such as there existed being replicated in her current premises, an inspection would be a prudent course.

82. The defendant himself agreed that, given her disclaimer, the plaintiff's visit to the premises was not necessarily incompatible with that disclaimer. He did not inquire as to whether the plaintiff had been acting as a real estate agent pursuing a sale in visiting the Spence property.

83. It was his evidence, however, that it was only after he was told of Ms Maher's observation that he decided to take the matter further.

84. It appears from the evidence of Messrs Bienke and Hopkins that Mr Adam Moore was not contacted (and then without specific mention of the plaintiff) till about a week later, which would be after 14 June 1998 being the date when Ms Maher saw the plaintiff at the Spence property. That sequence of events is not consistent with any state of uncertainty about the plaintiff's role such that, on 9 or 10 June, after the 6.00 pm meeting on 9 June, the defendant would be "livid", (Mr Hopkins), though it is consistent with Mr Bienke's evidence that the defendant had merely expressed doubt as to the plaintiff's role. Ms Maher had observed only that the defendant had appeared concerned that he had been given the plaintiff's business card, though no reason was advanced for that concern, particularly in view of the disclaimer the plaintiff had uttered.

85. The defendant did attempt to explain this apparently surprising reaction. He said that, even on 9 June 1998, he was "not convinced" by the plaintiff's disclaimer of interest. Inconsistently with his previous evidence, that is, that it was only after he heard of the plaintiff's visit to the Spence house of 14 June 1998 that he decided to get Mr Bienke to prepare a letter of complaint, he said that his decision to complain was not made in consequence of Ms Maher's information:

No, my memory is that that [the information] came later.

How much later? (he was asked)

... A couple of days after having spoken to Chris [Bienke] about at least getting from the REI some indication of who to complain to and what was the appropriate format, then came the information that Ms Maher had seen Ms Szuty at the property.

86. He had not been given that information, he said till a few days after 14 June. However, the defendant also stated that it was not until after that information was received that he instructed Mr Bienke to go ahead.

87. The draft, he recalled, was certainly presented to him before the end of June. That was inconsistent with Mr Hopkins' evidence. Some corrections were made. He got the final draft back, he estimated, two to four days later. Even on that account of it, the delay in signing the letter remains unexplained.

88. That the date of signing was 8 July 1998 is not open to doubt. The date "8 July 1998" is written below the defendant's signature. That was clearly the actual date of signature and despatch.

89. The defendant said that he did not see the plaintiff's press release of 3 July 1998. He was, however, made aware of the substance of it in order to do a radio interview in reply to it. He said that he did not regard the subject of Ms Hamilton as a significant issue, nor a "political embarrassment". Thus, he deposed, the decision to write to Mr Adam Moore about the plaintiff's allegedly unethical conduct was not related to any adverse publicity generated by the plaintiff on and about 3 July 1998.

90. The defendant agreed that he had been approached by Mr Bill Wood MLA who asked for a meeting to sort out the questions raised by the letter of 8 July 1998 but, as he understood the plaintiff was seeking an apology, he declined to meet her if it involved an apology.

91. There was a sustained attack on the defendant's credibility over his failure to give prominence, in summarising his discussion with the plaintiff, to the latter's disclaimer of interest. His answers to interrogatories were, in that respect, objectively misleading but, in view of the defendant's express acknowledgement of the disclaimer, it does not seem to me that they were intentionally so. However, it is concerning that the defendant was not, it seems, made aware that interrogatories are to be answered after due inquiry, for example, of Ms Maher, who was present, yet no such inquiry was made. Nevertheless, it is not clear to me that such inquiries would have made a significant difference.

92. A significant issue was whether the letter of complaint, the subject of these proceedings, was, in effect, a retaliation for the plaintiff's action in creating adverse publicity for the defendant.

93. The defendant's rebuttal of that suggestion relied essentially on two propositions. The first was that he had, shortly after the meeting in question, expressed doubt and concern as to the plaintiff's role in the meeting and the propriety of it. The second was that the letter of complaint, albeit delayed in despatch by the Budget process, had been prepared before 3 July 1998 and not (at least substantially) re-drafted after that date.

SUBMISSIONS

94. The plaintiff's claim is that the letter of 8 July 1998 conveyed three defamatory imputations:

(a) that the plaintiff had behaved unethically as a real estate sales/marketing consultant by seeking to exploit the misfortune of a member of the public for personal gain;

(b) that the plaintiff had behaved deceptively by purporting to act as an advocate for a member of the public, while actually seeking to advance her (the plaintiff's) own interests;

(c) that the plaintiff's conduct as a real estate sales/marketing consultant deserved to be investigated by the Real Estate Institute of the Australian Capital Territory.

95. The defendant denied that these imputations were conveyed or that the matter complained of was defamatory of the plaintiff. Despite this, the defendant's answers to Interrogatories (Q4) concede that the defendant both intended to convey those imputations and believed that he had done so by the letter of July 8, 1998.

96. Further, in his submissions, Mr Blackburn SC for the defendant, expressly conceded that imputation (c) was conveyed and that it was defamatory of the plaintiff.

97. I have no doubt that the ordinary reasonable reader would have considered that imputations (a) and (b) were conveyed to them and that they were defamatory to the plaintiff.

98. The statement by the defendant that he believed that the plaintiff had shown "a sad lack of ethics by her behaviour" obviously conveyed imputations (a) and (b). It is true that the "lack of ethics" referred to is not expressly related to deception, that is, gaining a meeting by pretending to be a disinterested advocate or to the exploitation of a deserving case to achieve a personal benefit but it does seem that the defendant's statement must be taken as conveying both imputations. He certainly acknowledged that he intended so to do.

99. Clearly it would not have been unethical for a real estate salesperson, even if he or she might benefit from a commission, to urge a purchase on behalf of a housing trust tenant in need of a transfer. The "sad lack of ethics" would attach only if there was an element of deception either of the Minister, in this case, or of the client.

100. The defendant effectively concedes that the statement was defamatory. In his evidence he maintained his assertion that he believed that the plaintiff was seeking to advance her own interests despite her disclaimer and despite her sworn testimony to the contrary. However, curiously, justification was not pleaded. Instead the defendant has relied only upon "fair comment" and "qualified privilege".

101. It should be said, firmly, that I am satisfied, and not merely on the balance of probabilities, that the plaintiff was genuinely acting as a voluntary advocate for Ms Hamilton. The disclaimer of personal interest was genuine. There was no rational reason for the defendant to have doubted her veracity or selfless intentions. The mere proffering of her business card and showing Ms Hamilton the house to which she had referred could not reasonably have warranted the adverse conclusion stated in the defendant's letter of 8 July 1998.

102. Does the fact that the defendant clings stubbornly to an irrationally uncharitable view of the plaintiff's motives and intentions bespeak a lack of honesty in his assertion that he genuinely holds that opinion?

103. In many cases that may be so. The timing of the letter of 8 July 1998 is, at least, suspicious, following as it does the adverse publicity relating to the defendant. It is no answer to say that it was a small issue. The very fact that the defendant might take offence at the proffering of a business card bespeaks a lack of proper perspective which might well cause him to react disproportionately to even mild criticism.

104. It is also apparent that the defendant omitted from his complaint a fact objectively of central significance. That is, the terms of the disclaimer or caveat uttered by the plaintiff in the context of her reference to the Spence property. It was obvious that, unless that statement was a deliberate lie, it rendered her proposal perfectly proper. True, the defendant was entitled to state if it was his state of mind, that the proffering of the business card and the visit to the property of 14 July 1998 had caused him to reject the veracity of the statement. However, no person in the position of Mr Adam Moore would have failed to recognise that the defendant's stated view was rationally unsupportable and to have rejected it accordingly. The defendant, therefore, has defamed the plaintiff without justification.

105. I therefore turn to the pleaded defences.

OCCASION OF QUALIFIED PRIVILEGE

106. It was conceded that, if the defendant had a genuine concern, whether well-founded or not, concerning the plaintiff's conduct as a real estate sales person, he was entitled to bring it to the attention of Mr Adam Moore and, in my view, any employer of hers.

107. The applicable legislation, the now repealed Defamation Act 1901 (ACT), leaves the common law to govern the situation. The common law version of this privilege was recognised in Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361.

108. In Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, the test was re-formulated as follows: (572)

`At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication (287). But, apart from a few exceptional cases (288), the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected (289). Because privileged occasions are ordinarily occasions of limited publication - more often than not occasions of publication to a single person - the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory.' (footnotes omitted)

109. The matter complained of in this case was not a communication to the general public or even a section of the public. The area of publication by the defendant was no wider than the occasion required. This is subject to the question of publication by virtue of the reporting of a debate in the Legislative Assembly to which I will later refer more specifically.

110. It follows that the defendant does not lose the privilege merely because the statements he made were false and defamatory. Indeed, unless they were privileged they would not be relevant. Truth and public benefit (justification) would suffice. The question, therefore, is whether the occasion of privilege was not used `honestly and without malice for the purpose for which it is given' (supra).

111. The plaintiff submitted that the occasion must have been abused because the defendant had, and he did not contend otherwise, failed to make any inquiry of the plaintiff concerning her intentions as he had perceived them to be before publishing the defamatory matter. That is, he did not say to her what his perception of her conduct had been and seek her response to that.

112. That submission sought to rely upon a passage in Lange (supra) (574):

But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond (295). (footnote omitted)

113. However, that comment related to the communication of the matter complained of in that case to a wide audience. It cannot be the case that, before complaining to a proper authority, a complainant needs to undertake the kind of investigation that the authority complained to would be expected to make - see Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 (31 July 1987); Beach v Freeson [1972] 1 QB 14; Pearce v Hailstone (1992) 58 SASR 240.

114. Honesty is a requirement that is not to be equated with a positive belief in the truth of an accusation. There may be cases where a person is under a duty to pass on an accusation where it raises a matter that ought to be investigated even if the publisher has no positive belief in the truth of the accusation (see - Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1).

115. It is important to distinguish facts from opinions in that context. The facts stated by the defendant in this case are not capable of a defamatory inference. The defamatory inferences arise from the defendant's stated construction of or opinion concerning those facts.

116. It is those opinions ("I was unsure whose interests ... Ms Hamilton's or her own") ("a sad lack of ethics") which are defamatory and those opinions which, if the defendant did not honestly hold them, could lead to a finding of malice.

117. Even a desire to injure will not destroy the privilege otherwise applicable if, notwithstanding that desire, the defendant nevertheless acted in response to a sense of duty or for the bona fidè protection of his legitimate interests - see Horrocks v Lowe [1975] AC 135 at 149 G; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1.

118. As Gaudron, McHugh, Gummow JJ recognised in the latter case, a foreign purpose, such as a desire to injure, should not be confused with malice. At page 31:

... leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. ...

119. Further, their Honours state:

... even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. ...

120. Thus, it seems to me, that to establish malice and hence defeat the defence of qualified privilege, I would have to conclude that the defendant's dominant purpose was not to draw attention to any concern he had about the plaintiff's behaviour as a real estate salesperson, whether or not that concern was well-placed, but to cause injury to the plaintiff. To do so I would need to conclude, in this case, that he had no such concern, for, if he did, I cannot conclude that his desire to injure the plaintiff was the primary reason for his complaint. I do not accept that a desire to injure the plaintiff played no part in the defendant's decision to publish the matter complained of, but it may well have been a negative role in that it caused the defendant no longer to entertain any doubt as to whether he should send the letter in question.

121. I have also the evidence of Ms Maher, Mr Hopkins and Mr Bienke. While I accept the latter two may have, with hindsight, exaggerated the defendant's reaction, as he reported it to them of his interview with the plaintiff, it is clear that the defendant did, apparently, consider the plaintiff's approach to him to have been "questionable". It is true that his conclusion was unreasonable but that does not mean it was not genuine. It might therefore have been the case that he would have complained in any event. Further, I cannot conclude that there were no instructions given to write a letter of complaint before 3 July 1998. I accept that it may have been "firmed up" after 3 July 1998 but I have no evidence from which I can conclude that it was changed from being a harmless missive to the defamatory diatribe it was.

122. My major concern is the apparently deliberate omission by the defendant of the plaintiff's disclaimer of interest. The defendant's claim that he did not regard that statement as genuine is, on the face of it, astonishing. There was no reason for him to doubt it, save perhaps the extraordinarily cynical view taken by Mr Bienke, which the defendant appears to have shared, that no one in the real estate industry acts otherwise than in their own financial interests. That is a biased and prejudiced view but that does not deny the role that it played in the decision to write the letter complained of as opposed to a desire to injure the plaintiff.

123. The words of Hunt J in Barbaro v Amalgamated Television Services (1985) 1 NSWLR 30, 51E are apt:

Express malice is not established where the defendant's belief in the truth of what he published is the result of carelessness, impulsiveness, irrationality or prejudice, or where the defendant has relied upon intuition instead of reasoning, or where he has leapt to conclusions upon inadequate evidence, or where he has failed to recognise the significance of material which might cast doubt upon the validity of the conclusions which he has reached.

124. It must be remembered that the plaintiff bears the onus of proof of malice and, whilst it might have been otherwise had the onus been reversed, I cannot conclude positively, on the balance of probabilities, that the publication (the letter complained of) was actuated primarily by malice.

125. The further requirement of "reasonableness" applicable to the Lange test is certainly absent in this case, but in my view, it is not required in this category of qualified privilege.

126. The defence of qualified privilege therefore succeeds.

FAIR COMMENT

127. If I am wrong on that latter point it would be necessary to consider the defence of "fair comment".

128. It was not disputed that the behaviour of real estate salespersons in the ACT was a matter of public interest, even though it came to "public" attention only by reason of the report of certain Parliamentary proceedings.

129. I referred to the scope of the defence of `fair comment' in Carleton v ABC [2002] ACTSC 127 (18 December 2002) [212] - [216]. The defence supports the right of a person freely to express his or her opinions. That right is now further supported by s 16 of the Human Rights Act 2004 (ACT) ("Human Rights Act").

130. The defence is not defeated by reason of the fact that the comments made were "prejudiced, exaggerated and wrong opinions".

131. However, the relevant facts upon which the opinions are expressed must be, substantially, accurately stated. That is a reasonable protection for reputation (see s 12(b), Human Rights Act.

132. Generally, the statements of fact contained in the subject letter are substantially true so far as relevant. It is true that the statement:

Ms Szuty then stated that she had been assisting the tenant to locate a suitable property, and they had been able to find one. With that she handed me her real estate business card.

somewhat conflates the events referred to.

133. "They" is ambiguously reported. Ms Szuty had said she had seen a suitable property. That was not said to be the result of any search by her or her agency. Nor had she said that there had been any ongoing prior search. Importantly, her disclaimer of personal interest was not mentioned.

134. That summary of the facts, whilst the inaccuracies do not suffice to show malice, is misleading. It prevents the reader from making a fair assessment of the opinions expressed by the defendant.

135. As Lord Oaksey said in Kemsley v Foot [1908] HCA 28; [1952] AC 345, 361:

A comment based on facts untruly stated cannot be fair.

136. Had the defendant correctly stated the facts, at least including a reference to the disclaimer, I could not have rejected the expressions of opinion, albeit unreasonably adopted, as being an opinion that no fair-minded person, albeit one who views the motives and intentions of others with cynicism and suspicion, could have formed.

137. However, as the facts are not correctly stated, in substance I must reject the defence of fair comment.

DAMAGES

138. I appreciate that, on my findings, this assessment would be necessary only if the defence of qualified privilege had not been made out.

139. It is necessary first to consider the relevance, if any, of the debate concerning the letter the subject of these proceedings in the ACT Legislative Assembly. There was a report of those proceedings in The Canberra Times on 5 September 1998.

140. The starting point is s 24(3) of the Australian Capital Territory (Self Government) Act 1988 (Cth). That provides:

Until the Assembly makes a law with respect to its powers, the Assembly and its members and committees have the same powers as the powers for the time being of the House of Representatives and its members and committees.

(save for the power to fine or imprison a person (s 24(4))

141. The word "powers" is defined by s 24(1) to include "privileges and immunities".

142. That engages s 16 of the Parliamentary Privileges Act 1987 (Cth). In turn, that section applies article 9 of the Bill of Rights 1688 but expressly provides, in s 16(3):

In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

143. Section 9 of the Bill of Rights 1688 simply provides:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

144. There has been no relevant alternative provision save, perhaps, the Legislative Assembly Precincts Act 2001 (ACT) and the Legislative Assembly (Broadcasting) Act 2001 (ACT). Those provisions are not inconsistent with the above provisions.

145. Plainly, the effect of these provisions is not to preclude the publication of proceedings in Parliament. Nor do they prevent commentators from criticising the statements so made and casting aspersions upon the person or persons making them. However, a member (or witness before a committee), it is clear, cannot be held accountable in a court of law for things said or done in the course of debates or proceedings in Parliament. The distinction is, in my opinion, properly expressed by Blackburn CJ in Comalco Ltd v ABC (supra), dealing with an imputation, the subject of defamation proceedings, that the plaintiff had broken a promise. The promise was referred to in Hansard by a Cabinet Minister. Could its existence be proved from Hansard? His Honour said:

Let it be assumed that here the statement that a promise was broken is a statement of fact. What was proved by the defendant was not that the promise was made, but only that a Cabinet Minister said that it had been made. I ruled that the relevant passage in Hansard could be admitted into evidence to prove what the Minister had said (see (1983) 50 ACTR 1). But the defendant has failed to prove that the promise was made, not only because the statement of the Minister is obviously hearsay, but also because to make an inference from what was said in Parliament (whether the inference be that what was said was true, or whether it be that what was said was false) would, in my opinion, be a breach of Art 9 of the Bill of Rights 1689, and of the privileges of the Parliament of Queensland. It is not for the courts to assess the weight or truthfulness of a statement made in Parliament; to do so must surely be to "impeach or question" the "proceedings in Parliament". Counsel for the defendant went so far as to suggest that for a court not to accept the truth of what a member said in Parliament might be a breach of privilege; in other words, that this court was bound to accept the Minister's statement, as proved by Hansard, as evidence that the promise was made by the plaintiff. I cannot believe that Art 9 means that, or that the privileges of Parliament so extend; moreover, the hearsay rule still stands in the way. There is no authority, so far as I know, to support the existence of such an exception to it.

146. The questions remains, given there is no blanket prohibition on reference being made to things said or done in Parliament, as to what use can be made in defamation proceedings of such things said or done.

147. For example, if a person is falsely and maliciously attacked in Parliament can they defend their defamatory reply to that attack by pleading qualified privilege arising from the right to reply to such an attack?

148. In Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321; [1994] 3 All ER 407 references by the defendant to statements made in the New Zealand Parliament were struck out as they were tendered to support an inference that the plaintiff had by false and misleading statements procured certain legislation to be passed.

149. That was so notwithstanding that the statements were relied on by the defendant to defend the action of the plaintiff brought against it for defamation.

150. There were, however, some caveats. At p 338:

Their Lordships are of the opinion that there may be cases in which the exclusion of material on the grounds of Parliamentary privilege makes it quite impossible fairly to determine the issue between the parties. In such a case the interests of justice may demand a stay of proceedings. But such a stay should only be granted in the most extreme circumstances. The effect of a stay is to deny justice to the plaintiff by preventing him from establishing his good name in the courts. There may be cases, such as Wright's case, 53 SASR 416, where the whole subject matter of the alleged libel relates to the plaintiff's conduct in the House so that the effect of Parliamentary privilege is to exclude virtually all the evidence necessary to justify the libel. If such an action were to be allowed to proceed, not only would there be an injustice to the defendant but also there would be a real danger that the media would be forced to abstain from the truthful disclosure of a member's misbehaviour in Parliament, since justification would be impossible. That would constitute a most serious inroad into freedom on speech.

151. In Thomson v Broadley & Ors [2000] QSC 100 (Unreported), the defendants had been attacked in Parliament, allegedly falsely, based on information provided by the plaintiff. That provoked defamatory allegations from the defendants of and concerning the plaintiff. The defendants counter-claimed and raised qualified privilege. The plaintiff sought to strike out the counter-claim, relying on parliamentary privilege. The defendants sought to rely on the statements in Parliament and, consequently, in the media, not as constituting the cause of action, the cause of action was the plaintiff's publication to the MP in question, rather it was said to be relevant to the question of damages.

152. Jones J noted that the speech in Parliament attracted absolute privilege and a fair report thereof attracted statutory privilege. It was contended that the statements by the plaintiff to the MP were similarly protected by virtue of article 9 of the Bill of Rights 1688. That contention was rejected, though it was accepted that qualified privilege would be attracted. The publication in the Parliament was a foreseeable outcome of the plaintiff's communication and, therefore, was relevant to damages claimed against the plaintiff.

153. In that case, of course, there was no claim against the MP to which the statements he made in Parliament might be relevant.

154. In Szwarcbord v Gallop [2002] ACTSC 28; (2002) 167 FLR 262, proceedings were taken by persons named adversely in a report tabled in the ACT Legislative Assembly. The Speaker appeared, by counsel, to raise a question of parliamentary privilege. The applicants were seeking to challenge the adverse comments contained in the report. The report itself, or a copy of it, had been tabled in the Assembly, though the copy tendered in evidence was not that particular copy nor was it derived from that copy.

155. The contention that the other previously prepared copies of the report did not attract parliamentary privilege was consistent with Thomson v Broadley (supra).

156. Crispin J, correctly in my respectful view, held that whilst a copy retained by the Chief Minister for the purpose of tabling it in the Assembly would attract parliamentary privilege that did not render other copies, not derived from the privileged copy, themselves privileged. As his Honour noted, at 268 [22]:

It is for this reason that the tabling or retention of copy of a newspaper can not prevent the continued circulation of the paper or the receipt in evidence of another copy.

Further at [23]:

... a Member of Parliament sued for defamation in respect of the publication of a letter for purposes unrelated to parliamentary business could not effectively prevent the maintenance of the proceedings against him [or her] by the simple expedient of tabling the only copy of the offending letter.

157. I have to say that there is a question of evidence remaining to be addressed in that latter example. The original letter, in my view, could be prevented from production unless the Assembly permitted it but that would not prevent secondary evidence of its content being given by persons to whom it had otherwise previously been published. Its publication by tabling could not be relied upon against the member who tabled it as exacerbating damages claimed against him or her.

158. In Erglis v Buckley & Ors [2003] QSC 440 (24 December 2003) the factual situation was similar to that in Thomson v Broadley (supra). A copy of the allegedly defamatory document was tabled in the Queensland Parliament. That was sought to be relied upon as a republication

159. By way of distinction from the present case, the persons publishing the originally defamatory document could have foreseen that the Minister to whom it was sent would table it in the Parliament. The defendant, in this case, did not initiate nor could he foresee, the debate in the Legislative Assembly concerning his letter to Mr Adam Moore.

160. In Erglis v Buckley, Philippides J noted that in R v Murphy (1986) 5 NSWLR 18 it had been opined that the privilege was limited to cases where the case being made at law was against the maker of the statement in the relevant Parliament, a so-called "narrow view" of the privilege. That view his Honour rejected in favour of the "wide approach" in Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 at 161. That latter view, the "wide approach" was that extracts from Hansard might be admitted into evidence but only to prove that a particular person on a particular date had referred to particular matters but not so as to prove or permit any inference which would reflect on the maker of any statement in the House of Parliament.

161. Thus, Philippides J held, it was not permissible to use such a statement to prove what had been done and said in the parliament (Legislative Assembly) in order to seek that inferences be drawn therefrom or to make submissions concerning the adverse consequences for the plaintiff arising from the conduct of the Minister making the statement in question. At [26]:

The plaintiff thus seeks to prove inferences which reflect on the propriety of the Minister's conduct in that it is sought to be asserted that the plaintiff was adversely affected by that conduct because it exacerbated the damage to her reputation.

162. In that case the damages were not being sought against the Minister, but other parties.

163. In truth, the plaintiff was seeking to "question" the Minister's conduct in the Assembly by rendering the defendants liable for it. His Honour said at [27]:

A member must not be inhibited from speaking freely in the Assembly and taking part in proceedings in the Assembly because of the risk that such conduct may result in an increased award of damages against another.

164. A fortiori is that statement applicable when the member is a defendant in such proceedings even if the defendant parliamentarian is not initiating the discussion but, as in this case, responding to another member's statement or question.

165. The question that remains is whether the defendant can rely on what was said in the Assembly as a matter mitigating the damages otherwise assessable?

166. In Mees v Roads Corporation [2003] FCA 306; (2003) 128 FCR 418, the applicant sought an injunction to restrain the construction of certain roads on the ground that false and misleading information had been provided to avoid the Transport Minister having to refer the road construction proposal to the Environment Minister for approval. It was sought to tender ministerial statements in the Parliament denying that there was any intention to build such roadways to support an inference that there were no plans to build the roadways which the proceedings sought to restrain.

167. Gray J, at 444 [81], noted that to use a statement made in Parliament in such a way:

... On one view, this would be far removed from impeaching or questioning the statement. It would be accepting the correctness of the statement. The difficulty is that such a use of a statement to Parliament would operate to the disadvantage of the party against whom it was used. That party would be unable to contend for the absence of the truth of the facts stated without impeaching or questioning the statement itself. ...

168. How could this be resolved? Plainly, a statement by the defendant that he acted in good faith in writing as he did to Mr Adam Moore, could not be relied upon to show that he did. What of the statements by Mr Wood? Could they be used to show that the plaintiff enjoyed a good reputation and that the allegations of the defendant against her were baseless? Could the defendant rely on Mr Wood's statement in the Assembly in mitigation of damage yet not be faced with evidence of his own adverse statements in reply? Can the newspaper report of the statements made in the Assembly be relied on to mitigate, to the extent it was in favour of the plaintiff, the damage to her reputation?

169. In Mees (supra), Gray J concluded that, though it was open to the respondents to tender the Hansard statements, at p 445 [86]:

... Those records can only be tendered for the purpose of establishing that those words were said to Parliament. The court is not able to accept the truth of anything stated in them for the purpose of determining the issue before it, namely whether the referral to the Environment Minister contains misleading information. ...

170. The Court could not find or draw any inference that any person making a statement to Parliament had misled Parliament.

171. It is apparent that what was said in the Assembly by Mr Wood or by the defendant could and should not be used to the advantage or disadvantage of either party in these proceedings. However, there was a report in The Canberra Times. It, on balance, was favourable to the plaintiff. It seems to me to ignore reality if it is not noted as having that effect. It is not able to be used to establish the truth of anything stated therein, merely to conclude that it would have lessened the injury to reputation and hurt to feelings the plaintiff otherwise would have suffered (if any). If conversely, there had been an adverse effect, that report could not be used as evidence to the disadvantage of the defendant.

DAMAGES

172. The area of publication and of foreseeable republication of the matter complained of was small, albeit significant. The defamatory statements were directed to the plaintiff's then professional body and her employers. Had the defendant's complaints been taken seriously, the plaintiff could have lost her employment and her prospects for future employment. Short of that, even the fact that she had, somehow, displeased the Minister for Urban Services, even if those examining the letter of complaint could not see how such a consequence was reasonable or deserved, would have an adverse effect on the plaintiff's career. There is no evidence that in fact it did so. Indeed, it may be that a real estate career had not been the plaintiff's best option. Nevertheless, it had been her ambition at the time, she had spent much energy and study to prepare herself for that career. She had high hopes. The defendant's inexplicable hostility threatened all that. It was not to the point that the complaint was objectively frivolous. The plaintiff could not know that others would view it so.

173. In part, of course, the plaintiff provoked the publicity given to her dispute with the defendant but it was reasonable for her to attempt to resolve it as she did. In so doing she, to some extent, mitigated any damage to her reputation amongst her real estate peers. However, the injury to feelings and consequent loss of confidence was such that she felt obliged to leave the Territory and relocate to South Australia. I accept this was largely due (though perhaps not exclusively) to the unwarranted attack made upon her professional reputation by the defendant.

174. I accept that, objectively, little, if any, damage was done to the plaintiff's reputation. Indeed, the letter probably, if correctly understood, reflected more unfavourably upon the defendant than the plaintiff.

175. I would have awarded the plaintiff $10,000, principally by way of vindication of her reputation. Some damage is presumed. I would have awarded $15,000 for hurt to the plaintiff's feelings, a total of $25,000.

I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 1 September 2004

Counsel for the plaintiff: Mr A Anforth

Solicitor for the plaintiff: Canberra Lawyers

Counsel for the defendant: Mr T Blackburn, SC with Ms Kenny

Solicitor for the defendant: ACT Government Solicitor

Dates of hearing: 10, 11 and 12 May 2004

Date of judgment: 1 September 2004