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Supreme Court of the ACT |
Last Updated: 23 December 2008
CHRISTOPHER LAMONT v PHILLIP DWYER
[2008] ACTSC 125 (21 November 2008)
DEFAMATION – defendant sent two letters to the Prime Minister – the contents of one letter reported in The Australian –allegation that the plaintiff, as chief of staff to a Minister, failed to report the representations made by the defendant to his Minister and blocked any action on the part of his Minister to progress them – allegation that the plaintiff failed to act as motivated by a desire for personal gain – imputations held defamatory.
DEFAMATION – defendant undischarged bankrupt – s60 Bankruptcy Act 1966 (Cth) does not prevent the action being prosecuted even if enforcement of any money judgment proves difficult or unproductive.
DEFAMATION – defence of truth – s135 Civil Law (Wrongs) Act 2002 (ACT) – evidence establishes the allegations made by the defendant are untrue – this defence fails.
DEFAMATION – defence of qualified privilege – s139A Civil Law (Wrongs) Act 2002 (ACT) – matter must be false and defamatory – community of interest between publisher and recipient – Lange test – publisher must “honestly” believe in the truth of his or her accusation – category where communication to the general public and politicians warranted – public interest in the issue of builders’ warranty insurance – conduct of defendant must be reasonable in all the circumstances – defendant held an honest belief on reasonable grounds – defence of qualified privilege succeeds unless malice established.
DEFAMATION – defence of qualified privilege – malice – primary indicator – knowledge of the falsity of the imputations or the facts supporting them – defence not defeated by malice.
DEFAMATION – defence of honest opinion / fair comment – s139B Civil Law (Wrongs) Act 2002 (ACT) – imputations partly expressions of opinion but presented as facts – it is a fact that the plaintiff adequately briefed his Minister – reasonable opinion as to the reason the plaintiff was recruited – this defence fails.
DEFAMATION – reputational damage and hurt to feelings – damage claimed to plaintiff’s reputation as lobbyist and future political prospects – judgment as vindication.
Bankruptcy Act 1966 (Cth), s 60
Civil Law (Wrongs) Act 2002 (ACT), s 123, s 134, s 135, s 139A, s 139B
Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Carleton v Australian Broadcasting Corporation [2002] ACTSC 127
Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211
Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183
Evatt v Nationwide News Pty Ltd [1999] NSWCA 99
Horrocks v Lowe [1975] AC 135
Calwell v Ipec Australia Ltd [1975] HCA 47; (1975) 135 CLR 321
No. SC 453 of 2006
Judge: Higgins CJ
Supreme Court of the ACT
Date: 21 November 2008
IN THE SUPREME COURT OF THE )
) No. SC 453 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: CHRISTOPHER LAMONT
Plaintiff
AND: PHILLIP DWYER
Defendant
ORDER
Judge: Higgins CJ
Date: 21 November 2008
Place: Canberra
THE COURT ORDERS THAT:
1. The claim be dismissed.
2. There be judgment for the defendant.
1. This is a claim for damages for defamation by Christopher Shaun Lamont (the plaintiff) against Phillip John Dwyer (the defendant).
2. The matter proceeded before me ex parte as the defendant, contending that he lacked the resources to appear, even self-represented, declined to participate, though he forwarded a number of documents which have been disclosed to the plaintiff.
3. An additional feature is the status of the defendant as an undischarged bankrupt. However, s 60 of the Bankruptcy Act 1966 (Cth) does not prevent an action such as the present from being prosecuted even if enforcement of any money judgment may prove difficult or even unproductive.
4. The plaintiff, at the time of the publication of the matters complained of, was Chief of Staff to a Federal Minister, the Hon Fran Bailey. The defendant is the National President of the Builders’ Collective of Australia (BCA), an organisation purporting to represent medium to small scale builders.
5. The first publication sued upon was a letter dated 11 April 2006 (though further distributed with the date 12 April 2006), from the defendant to the then Prime Minister, the Hon John Howard. The main theme of the letter was to protest at the power and influence of the Housing Industry Association (HIA), particularly in relation to the insurance activities of “HIA Insurance Services” allegedly the HIA’s “own broker”, and the provision through it of mandatory builders’ warranty insurance in those jurisdictions which have made such a provision. The main thrust of the letter was expressly stated to be “to discredit the HIA, their executive and their directors”. One of his complaints was the “capture of Government and bureaucracy” by the HIA. He chose to illustrate that point by referring to the plaintiff in the following passages:
The capture of Government and bureaucracy was never more evident than that exposed within the department of your own Minister for Small Business Fran Bailey. In April last year I was to meet with the Minister however was directed to her chief of staff Chris Lamont. Mr Lamont was attentive and responsive and undertook to investigate our issues further and to fully brief the Minister. We heard nothing in the ensuing months until I received a HIA press release celebrating the appointment of the same Chris Lamont to the executive staff of the Canberra HIA office – in charge of Federal Relations.It is obvious that Mr Lamont gave no time nor attention to our submission last April as he was already fully captured by the HIA and was quite prepared to ignore our pleas in favour of his prospective employer. This issue has been directly raised with the Minister and I have since personally met her at her electorate office in Healesville. She knew nothing of our situation or submission given 12 months ago to Mr Lamont and she gave a personal undertaking to report back to me within three weeks. That was nearly eight weeks ago and as no contact has been forthcoming it appears that the Minister has decided to simply ignore me. This is most disturbing as I believe that this Chris Lamont scenario points to nothing short of corruption of a Government department for financial gain. Mr Lamont has mislead the Minister and is now profiting handsomely for his trouble.
I believe the capture of Mr Lamont is too blatant and has crossed the line of genuine lobbying and evidences HIA arrogance to believe they can, and will continue to remove any impediment to reform that would any way hinder their financially advantaged and protected position. Any opposition will be met with full force and Mr Lamont is exhibit A in how far they will go – ie: they will buy him or anyone else if they have to. They created a completely new position to absorb him into their lobbying machine and he is the only winner, the national domestic building industry is the loser.
6. The letter also contained a statement that it would be “forwarded to the media today”. In fact, that occurred the following day.
7. On 21 April 2006, a further letter was sent by the defendant to Mr Howard. It was a response to a letter from the HIA threatening legal proceedings against the defendant. That letter, dated 18 April 2006, also complained of the imputations made against the plaintiff. They were alleged to be:
8. The further letter to Mr Howard would, of itself, have added little to the effect of the original publication. However, on 2 May 2006, The Australian newspaper published an article by-lined by Mr Maurice Dunlevy reporting the content of the letter of 11 April 2006 and its references to the plaintiff. That was consistent with the intimation contained in the original letter.
9. That article, relevantly, stated, concerning the letter to the Prime Minister:
The letter alleges that former government adviser Chris Lamont, now the HIA’s federal relations director in Canberra, effectively buried a submission critical of the HIA-dominated compulsory insurance scheme.At the time, Mr Lamont was chief-of-staff to Small Business and Tourism Minister Fran Bailey.
In his letter to Prime Minister John Howard, Mr Dwyer claims he met the former chief-of-staff in Parliament House last April, but subsequently heard nothing back from the minister’s office. “When I finally got to meet the Minister in February this year, she knew nothing of our situation or the submission,” Mr Dwyer said.
“Mr Lamont was attentive and responsive and undertook to investigate our issues further, and to fully brief the minister.
“We heard nothing in the ensuing months until I received an HIA press release celebrating the appointment of the same Chris Lamont to the executive staff of the Canberra HIA office in charge of federal relations.”
Mr Lamont, who joined the HIA in January, will not comment on the allegation.
A spokesman for Fran Bailey told The Australian the former chief-of-staff had raised the matter with the minister, who later wrote to state ministers with responsibility for builders warranty insurance, expressly raising the concerns of the BCA.
10. The statement of claim also claims exemplary/aggravated damages said to flow from the known falsity of the matter complained of and the apparent desire of the defendant to damage the plaintiff.
11. The defendant, on 30 March 2007, filed and served a defence to the amended statement of claim. He admitted sending to the Prime Minister the letters dated 11 April 2006 and 21 April 2006. He claimed that they were protected by qualified privilege. He asserted a belief in the truth of the matters asserted as well as his legitimate interest in the issue concerning builders’ warranty insurance. He also admitted providing a copy of his letter of 11 April 2006 to Mr Dunlevy “in confidence”. He sought “damages” and costs, though the basis for the former claim is unspecified.
12. Paragraph 2 of the defence admits the sending of the two letters to the then Prime Minister and, in paragraph 6, providing a copy to Mr Maurice Dunlevy “in confidence”.
13. It is, however, only in the “Particulars” to paragraph 2 that any substantive defence is pleaded. Clearly, that pleading is defective but no application to strike it out was made. Most of the particulars relate to the ‘builders’ warranty insurance issue. That is relevant as being a matter of public interest, supporting a claim that the letters of complaint to the Prime Minister raised an issue of genuine public interest. The particulars are set out below:
PARTICULARS
(a) The defendant sent letters of complaint dated 11 April 2006 and 21 April 2006 against a Federal Government Minister and her senior staff directed to the Prime Minister of Australia, Right Hon. John Howard.(b) The letters are protected by Qualified Privilege.
(c) The Defendant had a duty of interest to pass on the information of considerable public interest contained in the letters dated 11 April 2006 and 21 April 2006 to the Prime Minister; and the Prime Minister had a duty of interest to receive the information.
(d) Under the circumstances, the letters of complaint were reasonable in their intent and communicated in good faith and in the public interest.
(e) The defendant denies that the contents of the letters were defamatory as everything stated in the letters is true.
(f) Since the collapse of HIH in March 2001, thousands of Australians, which includes consumers and builders, have been financially impacted by Builders Warranty Insurance. HIA Insurance Services held over 90% of the market at that time and overnight doubled premiums to its builder members, the defendant included.
(g) HIA Ltd began lobbying State governments on behalf of their underwriting insurer in 2001 for the introduction of last resort Warranty Insurance which would only pay a claim if the builder disappeared, died or became insolvent.
(h) Last resort Builders Warranty Insurance became law in July 2002 and the Victorian Minister for Finance has since confirmed the key role of HIA in the lobbying and policy development process.
(i) HIA Ltd continued to receive a commission on all warranty insurance sold. These policies were sold through the 100% HIA owned company Home Owners Warranty Ltd.
(j) Since 2001, the defendant in his role of National President of the Builders Collective Australia has been constantly lobbying Federal and State governments to have last resort Builders Warranty Insurance at the very least reformed or replaced.
(k) During 2004 and 2005, the defendant had a number of meetings with the Federal government including Minister Bailey’s staff and in particular Mr. Christopher Lamont.
(l) Mr. Lamont as Chief of Staff promised in May 2005 on behalf of Minister Bailey that the Minister would respond to the Builders Collective’s concerns.
(m) Neither Mr. Lamont nor Minister Bailey responded to the Builders Collectives intense lobbying and concerns despite the Minister’s staff claiming a letter was sent to all State Ministers requesting a National forum on the impact of Builders Warranty Insurance.
(n) The Defendant continually attempted to contact Minister Bailey through Mr. Lamont, however, the Plaintiff failed to return or acknowledge the Defendant’s calls. The only contact was an email from Mr Lamont on the 17th May 2005 declining the defendant’s invitation for Minister Bailey to attend a small business meeting in Shepparton at a time of her convenience. This email confirmed that the Minister would write to all State Ministers and the defendant would be provided with a copy of that correspondence.
(o) Further, FOI requests to the Victorian Government have failed to locate any such letter having been sent and senior bureaucrats with carriage of these issues are unaware of any such correspondence.
(p) In January 2006, the Housing Industry Association announced it had appointed the Plaintiff Mr. Christopher Lamont as its Executive Director for Federal Relations.
(q) The letters on 11 and 21 April 2006 summarised the Defendant’s frustration and serious concern in regards to the lack of action of the Minister and her staff, and in particular, Mr Lamont, as the Ministers [sic] Chief of Staff in regards to an issue that for many years had severely impacted upon thousands of Australians and become a Federal and State political football.
14. It is apparent that, save for the publication to Mr Dunlevy, the only publication alleged is to the Prime Minister, his staff and, presumably, the Hon Fran Bailey, her staff and relevant public servants. So far as those persons are or were, concerned, they were able to be and were, I infer, accurately informed of the truth of the matter so far as both the action taken by the plaintiff in response to the defendant’s representations and how he came to take up employment with HIA. That conclusion is reinforced by the terms of the article by Mr Dunlevy complained of in paragraphs 6-13 of the statement of claim.
15. The terms of that article are:
THE Housing Industry Association has threatened legal action over a letter sent to the Prime Minister complaining that a former Howard Government staffer failed to properly deal with a submission seeking changes to the controversial home-owners warranty scheme. Lawyers acting for the HIA have asked for a complete withdrawal and retraction of the letter, sent by Builders’ Collective of Australia president Phil Dwyer.The letter alleges that former government adviser Chris Lamont, now the HIA’s federal relations director in Canberra, effectively buried a submission critical of the HIA-dominated compulsory insurance scheme.
At the time, Mr Lamont was chief-of-staff to Small Business and Tourism Minister Fran Bailey.
In his letter to Prime Minister John Howard, Mr Dwyer claims he met the former chief-of-staff in Parliament House last April, but subsequently heard nothing back from the minister’s office. “When I finally got to meet the Minister in February this year, she knew nothing of our situation or the submission,” Mr Dwyer said.
“Mr Lamont was attentive and responsive and undertook to investigate our issues further, and to fully brief the minister.
“We heard nothing in the ensuing months until I received an HIA press release celebrating the appointment of the same Chris Lamont to the executive staff of the Canberra HIA office in charge of federal relations.”
Mr Lamont, who joined the HIA in January, will not comment on the allegation.
A spokesman for Fran Bailey told The Australian the former chief-of-staff had raised the matter with the minister, who later wrote to state ministers with responsibility for builders warranty insurance, expressly raising the concerns of the BCA.
The BCA has stepped up its three-year campaign seeking changes to the mandatory last-resort home-owners warranty insurance scheme introduced by most state governments after the 2001 HIH collapse.
HIA Insurance Services, acting as a broker for Vero and CGU, is Australia’s largest provider of insurance under the scheme, estimated to cost consumers almost $360 million a year.
All states except Queensland and the Northern Territory require insurance for building work above $12,000, and builders unable to obtain cover cannot renew their building licences.
The BCA claims thousands of small builders, denied insurance because they are unable to meet onerous financial criteria laid down by insurance companies, have been forced out of the industry.
16. It will be observed that the article makes two points favourable to the plaintiff. First, that the consultation the defendant had with the plaintiff was in April 2005. It was not till January 2006 that he joined HIA and the Hon Fran Bailey contradicted the defendant’s claim that “she knew nothing of our situation or the submission”. Further, that, contrary to the defendant’s assertions, the plaintiff had raised the issue with the Minister who had, in turn, drawn the defendant’s concerns to the attention of relevant State and Territory Ministers.
17. It does assert, and the defendant admits, that a copy of his letter to the Prime Minister was sent to Mr Dunlevy, albeit “in confidence”. It is the plaintiff’s case that, in consequence, the defendant is liable for the publication, so far as it defames the plaintiff, in The Australian on 2 May 2006.
18. The defence was filed on 30 March 2007 by the defendant in person. The defendant expressly admits the publications to Mr Howard and to Mr Dunlevy albeit “in confidence”.
19. He denies that the matter published was defamatory of the plaintiff but asserts in the “Particulars” annexed to and forming part of that denial, that (inter alia) the letters are protected by “Qualified Privilege”. In truth, that is not a particular of lack of defamatory meaning, but rather a defence to the publication of defamatory matter. The same comment may be levelled at the assertion that “everything stated in the letters is true”. That, again, assumes defamatory meaning but raises the defence of truth.
20. There is, also, an assertion that the letters were “reasonable in their intent and communicated in good faith and in the public interest”. That seems like an assertion of “fair comment on a matter of public interest”.
21. Given the lack of any application to strike out the defence and the fact that the defendant was not represented or present, it seems to me that the defence should be accepted as asserting:-
• truth;
• publication on an occasion of qualified privilege;
• fair comment on a matter of public interest.
22. By a late reply (18 June 2008), the plaintiff raised malice as an answer to the qualified privilege defence raised by the plaintiff. By email later that day, the defendant confirmed that he was, by his defence, intending to raise fair comment and qualified privilege and was contending that he was not actuated by malice.
23. The first inquiry is as to defamatory meaning.
The factual background
24. The defendant, in his letters to the Prime Minister, raised two matters of concern. The first was as to his meeting with the plaintiff and its aftermath. He complains that his concerns about builders’ warranty insurance and the HIA’s role in it were not taken seriously, indeed, he suggests that the plaintiff ‘buried’ the issue. His second concern, which he links to the first, is the plaintiff’s employment by HIA after he ceased to be employed by Ms Bailey. He appears to characterise that as a ‘pay-off’ for the burial alleged.
25. The evidence before me, the plaintiff having been given leave to proceed ex parte, commenced with the evidence of the plaintiff. He stated that he was aged 33 years. He had graduated in Economics from James Cook University, Townsville, Queensland in 1997. In 1998, he obtained employment as a graduate with the Department of Defence. After 12 months, he obtained a more senior position in Brisbane. He came back to Canberra in 2002, having been promoted to an executive level.
26. Straight after the 2004 federal election, he was appointed Chief of Staff to the Hon Fran Bailey, MP, who was then Minister for Small Business and Tourism. That role continued until January 2006 when he left to take up a position with HIA. He had signed a contract to do so in December 2005, pursuant to discussions, initiated by HIA, in August 2005. Up to that point, the plaintiff had contemplated taking up employment overseas. That objective was abandoned because of a combination of family illnesses and the offer then received by him from HIA.
27. The discussion with the defendant occurred in April 2005.
28. He confirmed that the meeting arranged by the Prime Minister’s office was with him as Ms Bailey was in Victoria. The defendant was accompanied by Mr Russell Joseph, who was introduced as a member of BCA. He understood the issue raised by the defendant related to the Home Owners Builders’ Warranty Scheme, run in various States and Territories in conjunction with the licensing of builders. Fundamentally, various insurers provide insurance cover for consumers engaging a licensed builder in respect of default by the builder not able to be pursued against that builder because of death, bankruptcy or other good reason.
29. The defendant objected to most of those schemes (other than for Queensland) as they were “last resort” schemes. That is, the consumer had first to pursue the builder and then claim against the policy of insurance. Queensland had a “first resort” scheme. It covered the consumer and then pursued the builder. There was no scheme at all in Tasmania.
30. From the perspective of builders, the defendant complained of the cost to builders of the insurance cover they had to obtain, particularly given the low level of consumer protection afforded by it.
31. The plaintiff pointed out the limited role of the Commonwealth in the building industry, but undertook to advise the Minister to write to the States and Territories without adequate schemes. The plaintiff then arranged for letters to be drafted for the Minister to send to her counterparts in the States and Territories. It was not intended to write to the Queensland Minister as the Queensland scheme was not considered defective but that letter went anyway prompting a response from the Queensland Minister “extolling the virtues of the Queensland scheme”.
32. It is apparent from the correspondence there referred to, copies of which were tendered as exhibit 4, that the plaintiff honoured his undertaking to the defendant both to brief the Minister and to cause her to write to relevant State and Territory Ministers.
33. Apart from an invitation for the Minister to attend a BCA hosted function, the next the plaintiff heard of the matter was from Mr Dunlevy. He rang the plaintiff and told him that he had received a letter from the defendant alleging misconduct on his part when he had been Chief of Staff to Minister Bailey. Quite properly, the plaintiff told Mr Dunlevy that he could not comment on the advice he had given to the Minister when he was her Chief of Staff. As I have noted, it appears that Mr Dunlevy obtained from the Minister the refutation he published in his article of the suggestions that the plaintiff had “buried” the defendant’s concerns.
34. Mr Dunlevy provided the plaintiff with a copy of the defendant’s letter to the Prime Minister. The plaintiff’s first reaction on reading it, he said, was “shock”. That was understandable as it was apparent that he had processed the defendant’s representations and obtained his Minister’s agreement to make representations to the State and Territory Ministers concerned with the issue of builders’ warranty insurance. It does not seem that the “discrediting” of HIA was, or ever had been, part of the representations to Minister Bailey though, of course, it was the main thrust of the defendant’s letter to the Prime Minister. The second aspect of the letter of which the plaintiff complains is the suggestion that not long after he received the defendant’s submission, the plaintiff joined the ranks of the defendant’s protagonist, the HIA. That suggestion of connection between the plaintiff’s service with Minister Bailey and his engagement by HIA was not refuted in the article by Mr Dunlevy.
35. The plaintiff himself acknowledged that for a person to go from employment in government in a relevant area to employment in a senior capacity with an industry interacting with that area of government might well give rise to the suspicion that the person in question was employed, not merely for their demonstrated capacity, but for their contacts within government, be they departmental or political.
36. That is, under current arrangements, a perfectly lawful transition and a reasonable objective for an organisation like HIA to make its lobbying activities more effective. Of course, it may be seen to be contrary to the public interest in that it raises a reasonable perception, as was embraced by the defendant, albeit erroneously in this instance, that officials or politicians may conduct themselves so as to attract lucrative offers beyond their then current employment in the public sector. It is a perception that gives rise to the suspicion there may have been a conflict of interest in the person concerned.
37. The matter the plaintiff found “offensive” was the accusation by the defendant that he had misled his Minister and then, by choosing to act in that way, profited by his behaviour.
38. Notwithstanding that The Australian article was favourable to the plaintiff, the repetition of the untrue allegations concerning the fate of the defendant’s submissions had a profound effect on the plaintiff’s feelings. He said that he would not attend a national policy congress of HIA. Instead, he took legal advice resulting in letters of demand to the defendant. He felt that that publication damaged his reputation as a lobbyist and his future political prospects. Even a refuted suggestion of unethical or underhand dealing, he felt, might damage his career prospects.
39. The plaintiff’s letter of demand was written by Chamberlains law firm on behalf of both HIA and the plaintiff. The letter of 21 April 2006 addressed to the Prime Minister was the defendant’s response. In it he complained that he was being persecuted and threatening to sue the Prime Minister and his staff for forwarding a copy of his letter to HIA.
40. This response was, in its terms, paranoid and petulant. There was a direct response, dated 5 May 2006, to Chamberlains foreshadowing a response by 12 May 2006 to the “threatening and intimidating letter”.
41. On 12 May 2006, the foreshadowed response was made. It was in the following terms:
As it is unclear who is actually representing Mr Lamont in this matter I will address this email to both of you as you both claims [sic] to act on behalf of Mr Lamont in relation to comments made by me in writing to the Prime Minister on 11th April.As I have already responded to Mr Chamberlain via email on 21st April, and Mr Lamont has given Mr Will a copy of that correspondence, it would be pointless to repeat its contents again here. Suffice to say that the offers and suggestions made to your client and the HIA via Mr Chamberlain are now also extended to Mr Will. That is, I am now prepared to include Mr Lamont to participate in a meeting between Dr Silberberg, the Prime Ministers office and the Builders Collective where the purpose of this meeting will be to resolve the issues raised in my letter of 11th April to the Prime Minister. Again, if all my claims made to the Prime Minister are proven to be factually incorrect at that meeting then I will retract them.
On another important matter raised in both your letters, I can now confirm that there was no distribution of the Prime Ministers letter of 11th April to any party other than the Prime Ministers advisors, the Minister for Small Business and her advisors, as well as interstate representatives of the Builders Collective. I have since had confirmed in writing that none of our representatives forwarded or distributed that letter to any other party. All public discussion and media over this issue has occurred AFTER Mr Chamberlain sent his letter to me on 18th April. That is, AFTER your clients had taken possession of my 11th April letter to the Prime Minister and had themselves delivered that letter into the public domain by handing it to both of you for threatened legal action against myself and the Builders Collective.
Consequently, and before we enter into any discussions with your client(s) I ask you to first explain how my letter to the Prime Minister dated 11th April came to be in the possession of either the HIA and/or Mr Lamont. Again, since my original correspondence was with the Prime Minister, I again ask your client(s) to respond via the Prime Ministers office should they require any additional information, clarification or if they wish to arrange a meeting in order to resolve these issues.
42. It may be observed that the defendant, in this communication, fails to acknowledge his provision of the original letter to Mr Dunlevy, which plainly occurred before 2 May 2006. He claims it followed the letter of demand of 18 April 2006 but that in itself was prompted by Mr Dunlevy’s inquiry of the plaintiff and his provision of the copy, already in his possession, of the letter of 11 April 2006 sent by the defendant to the Prime Minister. Indeed, exhibit 5 discloses it was sent to Mr Dunlevy by the defendant on 12 April 2006. In so far as that represents the defendant’s recollection of the sequence of events, it was clearly mistaken.
43. Exhibit 10 discloses further distribution of the letter of 11 April 2006, though dated 12 April 2006, to the Hon Greg Hunt, MP on 13 April 2006 and, per exhibit 11, to a variety of other persons, including, apparently, a member for Bass in the Tasmanian Parliament (exhibits 12, 13). It is plain that those publications are not the basis for any separate cause of action. They simply demonstrated the self-delusion in which the defendant engaged so as to avoid responsibility for his campaign to discredit HIA and, by way of a secondary target, the plaintiff.
44. Those communications have another relevance. The defendant, in his correspondence of 12 May 2006, seemed to suggest that it was improper for the plaintiff to have obtained access to the original letter of 11 April 2006 to the Prime Minister. This, given the fact of the apparently wide circulation of it engaged in by the defendant, further outraged the plaintiff.
45. That vein of correspondence continued on 4 January 2007. The defendant wrote to the Department of Prime Minister and Cabinet (Mr Paul Johnson) asserting his complaint against Minister Bailey and her office was “totally justified” and calling for a departmental inquiry. At the same time his major complaint remained with HIA and the builders’ warranty insurance.
46. On 2 February 2007, Mr Johnson responded outlining the avenues for raising the general issue about consumer protection and noting that any “evidence” about the plaintiff could be adduced in these proceedings.
47. It appears that the defendant made a submission to the Productivity Commission on 21 March 2007. Part of it complained of the legal action against him by the HIA. The defendant conveniently ignored the fact that it had been his allegations against the plaintiff which caused the latter at least to sue for damages for defamation. Nor does the defendant acknowledge that he disseminated his “private” letter to the Prime Minister quite widely. He referred to the issue in the following terms:
The Supreme Court action against myself and the Builders collective is based on my private letter written to the Prime Minister complaining of the failure of his Minister for Small Business to support the small building businesses of the nation and the fact her Chief of Staff with whom we were dealing with [sic] chose to ignore our representations and accept a prominent executive position with the HIA, the very entity we were complaining about.
48. The spread of the defendant’s allegations, including his false representation that the plaintiff’s possession of the letter complained of was somehow unlawful, led to some crank responses (for example, exhibit 16) being addressed to the plaintiff. Although irrational, these responses added to the plaintiff’s annoyance and distress. However, I have no evidence as to how the author of those communications, a Mr Blums, became aware of the dispute between the parties to this litigation. It may have been through the Hansard of the Tasmanian Parliament or of the Victorian Parliament or Mr Dunlevy’s article. The first publication mentioned by Mr Blums was the first I have referred to. It is not appropriate to have regard to or place weight upon statements in parliaments as constituting either a cause of action or exacerbating damages.
49. Exhibits 18 and 19 (correspondence with the Hon Greg Hunt, MP) illustrate that the defendant will not acknowledge that there was any response to the endeavours of Federal Ministers when he receives a favourable response but insists on embracing a paranoid delusion that his representations are being ignored. I assume that this is what he believes when he writes but it is clearly delusional. Indeed, my impression is not that the defendant is a liar but rather that his world is influenced by delusional thinking leading to paranoid and apparently far fetched conclusions which appear reasonable to him at the time he embraces them.
50. That correspondence also indicates that the defendant, consistently with his apparent paranoia, suffers delusions of grandeur. He has plainly exaggerated the importance of his “Collective”. That is not to say that the issue he has been obsessed with is not a matter of genuine public interest nor that his criticism of it is ill-founded. To the contrary. However, he does appear to consider that lack of progress on the issue is the consequence of plotting by ill-disposed and self-interested persons. One of those he regards as being the HIA.
51. As a consequence of this continuing campaign of harassment by the defendant, the plaintiff asked to be and was taken out of the lobbying role he had initially been engaged to undertake. He was also upset by the lack of support, as he perceived it, from Minister Bailey.
52. It was apparent that, though the defendant was genuinely concerned about a real issue, he pursued that issue without regard to balance or the reasonable position of others. He had a network of contacts, no doubt persuaded by his view of the builders’ warranty insurance issue and likely to fall prey to his conspiracy theories.
53. The plaintiff’s case was supported by the evidence of Dr Ron Silberberg, managing director of HIA. He had met the plaintiff when the latter was Minister Bailey’s Chief of Staff. He was impressed by him and offered him a position with HIA. The plaintiff commenced work in February 2006. Dr Silberberg became aware of the defendant’s allegations concerning the plaintiff through The Australian article (exhibit 6). It was his impression that the plaintiff was “devastated” by the article and felt his intended career was over. The suggestion that HIA had in any way suborned the plaintiff in his performance of his duties with Minister Bailey he firmly rejected.
54. For six months thereafter, the plaintiff at his own request, but with the agreement of Dr Silberberg, withdrew from the representational role he had been employed to undertake. It was Dr Silberberg’ understanding that the defendant and Mr Joseph comprised all, or nearly all, the members of the “Builders’ Collective of Australia”. He had endeavoured to reassure the plaintiff that, though vocal, the defendant really only represented himself but the plaintiff remained sensitive to the criticism the defendant had levelled at him and repeated to others.
55. The Hon. Ian MacFarlane, MP, former Minister for Industry, Tourism and Resources, also gave evidence. He had, before entering Parliament, been employed as a lobbyist for the National Farmers’ Federation. The Hon. Fran Bailey had been his junior Minister with responsibility for Tourism and Small Business. He met the plaintiff in his capacity as her Chief of Staff when he took up that position.
56. He gave the following assessment of the plaintiff’s reputation:
Chris had a good reputation within the Ministerial wing. I only hesitate because Fran Bailey could at times be a difficult Junior Minister and in doing so, Chris Lamont’s job was to ensure that any difficulties that existed from time to time for whatever reason between my office and Fran’s office were resolved in a professional way. And Chris was very good at ensuring that if I, as her Senior Minister, required her to follow a line of policy or to pursue a line of policy development, that that was carried. Now, that’s not always an easy task if the Minister has an alternate view or disagrees entirely, but Chris, to his credit, always rose to that challenge and he had a very good reputation in our office as being not only professional but straightforward and could be trusted in that regard.
57. That was, he said, the general view of those who dealt with the plaintiff.
58. He acknowledged that he had also received and responded to representations from the defendant concerning the issue of builders’ warranty insurance. He, too, made the point to the defendant that it was, primarily, a State and Territory issue not a Federal issue. He referred to a response to the defendant from Minister Bailey on 19 April 2006.
59. It is apparent that when the defendant wrote to the Prime Minister on 21 April 2006, complaining of lack of response from Minister Bailey and blaming the plaintiff for it, he was already aware that she had responded. It is apparent that the defendant simply does not hear or acknowledge any response that does not deliver the outcome he desires. Perhaps he revels in the role of one “crying in the wilderness”.
60. Mr MacFarlane also endorsed the view that, for a lobbyist, a reputation for underhand dealing, or lack of honesty would be fatal. It would, further, be “terminal” for a lobbyist, tainted with that reputation, who had political aspirations. It was not uncommon in his experience for exchanges of personnel between Ministers’ offices and the private sector, particularly of persons as well regarded as was the plaintiff.
61. Mr MacFarlane did acknowledge that there were different views concerning the propriety of Ministers becoming lobbyists upon leaving that position but had not been made aware of similar reservations concerning staff to Ministers.
62. The plaintiff’s partner, Samantha Ward, also gave evidence. She confirmed the personal distress caused to him by the defendant’s allegations.
63. I accept that the distress of which the plaintiff gave evidence was genuine and I understand that he felt that the possible slur upon his reputation would never go away. It is apparent that, though it may well appear that the defendant is unbalanced and vexatious, not all who receive communications from him would realise that his “Collective” is, effectively, a pseudonym for himself. Nor would they realise that his allegations were contrary to any reasonable view of the facts, so far as the allegations of inaction were concerned, and an incorrect inference so far as the second allegation of being suborned into (non-existent) breach of duty to his Minister by the HIA.
64. Mr Malcolm Roberts was at the time of these events Chief of Staff to then Minister MacFarlane. He recalled that the plaintiff, after receiving a copy of the defendant’s letter of 18 April 2006, had been greatly incensed by it. There were, he recalled, questions asked about the issues raised by the defendant concerning the plaintiff. He was, himself, concerned to have no dealings with the defendant, forming the view that the defendant was a person who would make baseless allegations simply because he did not achieve immediate results which he regarded as satisfactory. Even being the subject of allegations, baseless though they may be, could, he believed, be damaging to the subject of them.
65. The final witness was Mr Shane Goodwin. He was General Counsel with HIA. He met the plaintiff after the latter was recruited to HIA. He recalled The Australian article by Mr Dunlevy. That followed the letter that the defendant had sent to the Prime Minister being revealed to the plaintiff. The plaintiff was personally upset by it.
66. There were a number of documents forwarded by the defendant. Although I could not accept them as sworn testimony, I have had regard to them. They were all copied to the plaintiff’s legal advisers on receipt.
67. There was correspondence with the Hon Greg Hunt, MP, dated 18 April 2005 (exhibit 27). Mr Hunt forwarded to the defendant a letter from Minister Bailey to him which made it quite clear that she was aware of the defendant’s concerns regarding home owners’ warranty insurance. That could only have arisen from the plaintiff’s report to her of the defendant’s representations.
68. On 17 May 2005, the defendant received an email from the plaintiff promising action after their meeting.
69. It is clear that the defendant could not, as he appeared to claim in his letter of 11 April 2006, have been unaware that the plaintiff had caused his Minister to make representations in response to his submission. He may have considered that action to have been inadequate. Of course, he could not be expected to know whether HIA had, in April 2005, formed a relationship with the plaintiff with a view to recruiting him. In fact, it had not, but that might not have been obvious to a person in the position of the defendant.
The defamatory imputations
70. It is the letter of 11 April 2006 that is alleged to be defamatory of the plaintiff. It makes two accusations. First, that the plaintiff did not properly brief his Minister on the representations made by the defendant and, second, that he did so because he was minded to accept or procure an executive position with HIA, an opponent of the defendant’s proposals.
71. This gave rise to a number of pleaded imputations:
(a) The plaintiff, as chief of staff to a Federal Minister, gave a false undertaking to the Builders’ Collective of Australia to investigate issues they raised with him about the Housing Industry Association during a meeting in April 2005, when he had no intention of doing so;(b) The plaintiff, as chief of staff to a Federal Minister, was corrupt in that he used his position to bury the Builders’ Collective of Australia’s submission to that Minister which was critical of the Housing Industry Association, because he knew he was going to be employed by that Association;
(c) The plaintiff abused his position as chief of staff to a Federal Minister by placing his own financial gain ahead of his obligations in that position;
(d) The plaintiff, as chief of staff to a Federal Minister, allowed himself to be bought;
(e) The plaintiff is unethical, in that he continued to work as chief of staff to a Federal Minister when he had accepted an executive position with the Housing Industry Association whose interests he knew could be affected by decisions of that Minister;
(f) The plaintiff is dishonest in that he misled the Federal Minister to whom he was chief of staff.
72. To assert, as the defendant did, that the plaintiff failed to report the defendant’s representations and blocked any action on the part of his Minister to progress them, is clearly defamatory. (See, for example, Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1.)
73. To add to that, the imputation that the failure to act, as he had represented to the defendant that he would, was motivated by a desire for personal gain is also clearly defamatory.
74. I find, therefore, that the letter of 11 April 2006 is defamatory of the plaintiff in those respects. I now turn to the defences raised.
Truth
75. This can be readily disposed of. The fact is, and I am positively satisfied of this, that the plaintiff not only faithfully conveyed the defendant’s case on builders’ warranty insurance to Minister Bailey, but ensured that she conveyed those representations to relevant State and Territory counterparts.
76. I also accept that the action taken was in no way negatively influenced by HIA. At that time, neither HIA nor the plaintiff had in contemplation the plaintiff’s employment with HIA.
77. The allegations made by the defendant of and concerning the plaintiff are untrue. I note that by reason of s 123 of the Civil Law (Wrongs) Act 2002 (ACT) (Civil Law (Wrongs) Act), the substantive law to be applied is “the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection”. The substantive complaint arises from the letter sent to the Prime Minister at Parliament House, Canberra. It concerned the plaintiff’s then employment at Parliament House. At the time of the publication the plaintiff was still employed in the Territory, albeit by HIA.
78. The defences available under the Civil Law (Wrongs) Act are declared by s 134 to be:
... additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.
79. Section 134(2) preserves the liability for certain defences to be “defeated by proof that the publication was actuated by malice”.
80. However, the defence of justification is unqualified. Section 135 of the Civil Law (Wrongs) Act provides:
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
81. The evidence, as I have noted, establishes the contrary. This defence fails.
Qualified Privilege
82. This defence is now defined by s 139A of the Civil Law (Wrongs) Act:
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—(a) the recipient has an interest or apparent interest in having information on some subject; and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes, on reasonable grounds, that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a) the extent to which the matter published is of public interest; and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c) the seriousness of any defamatory imputation carried by the matter published; and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f) the nature of the business environment in which the defendant operates; and
(g) the sources of the information in the matter published and the integrity of those sources; and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i) any other steps taken to verify the information in the matter published; and
(j) any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
83. This defence can only arise if the matter published is both false and defamatory. If it is true, even if defamatory, it is protected by the defence of truth.
84. The nature of the qualified privilege in the present case is, in the first instance, the interest of the Prime Minister and relevant members of his staff and colleagues in knowing that the plaintiff had failed in his duty to his Minister as her Chief of Staff and that he had been suborned by an interest group, namely, the HIA. There is also an interest in relation to the activities of HIA, although that corporation is not a party in these proceedings.
85. The defence can only apply if there is a community of interest between the publisher and the recipient. This is clearly so in respect of the communication to the Prime Minister. Nor is that occasion misused if staff members and colleagues are part of the communication circle. They share that interest.
86. However, it is clear that the defendant has distributed his defamatory letter more widely than that. It has gone to members of Parliament, State and Federal. The effect of the uniform defamation law is that all of those publications give rise to a single cause of action in this Territory. There was publication to Mr Dunlevy and, perhaps, other journalists with the result that the defamatory imputations, albeit offset by their denial, so far as the first was concerned, appeared in The Australian newspaper. No other publication to the public was established save for State Hansards, though, for reasons of Parliamentary privilege, I must disregard those publications.
87. It is clear that the defendant is a campaigner for his model of builders’ warranty insurance. It is a reasonable objective appropriate for public discourse and only achievable through political action, indeed, concerted political action at State and Territory levels.
88. That species of qualified privilege, at common law, has been re-formulated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 572, and, adopting the quotation I cited in Carleton v Australian Broadcasting Corporation [2002] ACTSC 127, (18 December 2002) at [148] – [150]:
In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication.
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. (footnotes omitted)
89. The Lange test is plainly reflected in s 139A of the Civil Law (Wrongs) Act.
90. The first requirement is that the publisher “honestly’ believes in the truth of his (or her) accusation.
91. In this case, I have no difficulty accepting that the defendant honestly believed in the truth of his two accusations. There is simply no reason why he would make them if he knew them to be untrue. He was lobbying the Federal Government for action on an issue of concern to him. He saw the HIA as his principal opponent. It is true that he was apparently unaware of the difficulty of persuading State and Territory governments to his point of view and the limited role of the Federal Government in that process, nevertheless that does not make his statements of frustration and attribution of blame for it dishonest.
92. It also seems to me that this is a case within the category referred to by McHugh J in Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211, 264-6 where communication to the general public as well as politicians is warranted. Thus the wider distribution to politicians and journalists is not outside the scope of the privilege.
93. As in Carleton v ABC (supra), this is a case in which, had the accusations been true, it was in the public interest that they be communicated to those who could influence the political process at both Federal and State or Territory levels.
94. The primary matter of public interest was, of course, the issue of builders’ warranty insurance, but the conduct of the HIA and, hence, the plaintiff was a necessary corollary of that discussion of the primary issue: see Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183.
95. There is a requirement that the conduct of the defendant be reasonable in all the circumstances.
96. For a journalist, as Giles JA noted in Evatt v Nationwide News Pty Ltd [1999] NSWCA 99, it may require the offer of an opportunity to reply to or correct the imputations made, to the person or persons adversely affected thereby.
97. It is clear that the defendant did not enquire of Minister Bailey or the HIA or the plaintiff as to the truth of his assertions. Mr Dunlevy did. He was a journalist and had a duty to check his story. I do not consider it was unreasonable of the defendant to leave it to others to ask for a reply to his assertions. He might have thought that the Prime Minister would. He would not have considered Minister Bailey, the HIA or the plaintiff to be a reliable source. Given his perspective, that was not unreasonable.
98. It is, of course, for the defendant positively to establish reasonableness.
99. Has he done so? I am persuaded that, though mistaken and misguided, the defendant did honestly believe that the HIA and the plaintiff had conspired together to block or mute his representations to Minister Bailey and the Federal Government generally. He further believed that the subsequent hiring of the plaintiff by HIA was connected to that unfavourable outcome. He was incorrect in that belief, even paranoid to embrace it, but it was an honest belief on reasonable grounds. Some, like Mr MacFarlane, would consider movement from a Minister’s office to an industry lobby interacting with that portfolio reasonable, even beneficial; others might consider it unethical. It reasonably gives rise to the kind of suspicion the defendant embraced, albeit incorrectly.
100. I do acknowledge that by 11 April 2006, the defendant was aware that Minister Bailey had written to State and Territory counterparts on the issue of builders warranty insurance. His complaint that his representations were ignored, therefore, could not mean that nothing happened. To “ignore” a representation, however, may reasonably convey that it was not taken into account and acted upon. Clearly, nothing did happen either federally or at State/Territory level to rectify the situation complained of by the defendant so that he might honestly believe that his case had been put at a less persuasive or even unpersuasive level to relevant governments. That may be drawing an unfair conclusion but it was, I think, reasonably open to the defendant to form the view that the lack of positive response, he being convinced that his case was unanswerable, was a result of opposition from within Minister Bailey’s office.
101. It follows that the defence of qualified privilege must succeed, unless malice is proved.
Malice
102. The plaintiff points to the defendant’s express statement that his intent was to damage HIA. However, a primary indicator of malice is knowledge of the falsity of the imputations or the facts supporting them.
103. The classic statement is to be found in Horrocks v Lowe [1975] AC 135, per Lord Diplock, at 149-150:
The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe what he published was true this is generally conclusive evidence of express malice ...
104. That is subject to the qualification his Lordship expresses, at 150:
Even a positive belief in the truth of what is published on a privileged occasion – which is presumed unless the contrary is proved – may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames.
105. I am not persuaded that the defendant had no honest belief in the truth of his two assertions. I would not elevate them to the level pleaded. They are, simply, that the plaintiff blocked or diminished the defendant’s representations to Minister Bailey and the Federal Government and did so because he was to be recruited by HIA.
106. As the defendant conceded, his choice of language was “robust” but I bear in mind that it was in the course of political exchanges albeit intended to be shared with a significant section of the public. See, for example, Calwell v Ipec Australia Ltd [1975] HCA 47; (1975) 135 CLR 321 at 332-5 per Mason J (at 332):
At common law it has been repeatedly said that a court should not be quick to find evidence of malice in the terms of defamatory material published on a privileged occasion because so to do would restrict considerably, if not defeat, the protection which the law confers on privileged communications.
107. Bearing those warnings in mind, I am not persuaded that the plaintiff has made out a case of malice on the part of the defendant. The defendant’s focus was, and remained, on the reform of the builders’ warranty insurance issue, an issue that he considered was opposed by HIA for reasons of its own self-interest. Whether that was true or not, it was, in itself, a reasonable conclusion.
108. It follows that the defence of qualified privilege is not defeated by malice.
Honest Opinion
109. Section 139B of the Civil Law (Wrongs) Act provides for this defence. It is a re-formulation of the traditional defence of fair comment. It provides:
(1) It is a defence to the publication of defamatory matter if the defendant proves that—(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(2) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(3) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or
(b) in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or
(c) in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a) is substantially true; or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(c) was published on an occasion that attracted the protection of—
(i) a defence under this section, section 138 (Defence for publication of public documents) or section 139 (Defences of fair report of proceedings of public concern); or
(ii) the defence of fair comment at general law.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper matter if the opinion might reasonably be based on such of the material as is proper material.
110. The two imputations conveyed by the matter complained of are partly expressions of opinion but are presented as facts.
111. It is either a fact or not that the plaintiff did not adequately brief Minister Bailey on the defendant’s representations.
112. In fact he did. It follows that this defence cannot be made out in respect of the first imputation.
113. The second imputation is, also, not saved by s 139B. The opinion that HIA was recruiting persons to give it an unfair advantage over the defendant is undoubtedly a reasonable opinion. The defence succeeds in respect of that opinion. The plaintiff was recruited to make HIA a more effective lobbyist. It could hardly be otherwise. However, whilst an opinion that this was “improper” or “unethical” is covered by s 139B, the imputation in its more extended form is based on the twin false factual premises that the plaintiff blocked or distorted the defendant’s representations and that his recruitment by HIA was either to influence that outcome or a reward for it.
114. To that extent this defence fails.
General
115. As the defence of qualified privilege succeeds, the plaintiff’s claim must be dismissed.
116. This is not a conclusion which should be regarded as satisfactory. A plaintiff may be, as this plaintiff has been, hurt and embarrassed by allegations concerning him that were false as well as defamatory. There may be serious damage to reputation particularly amongst persons unaware of the falsity of those allegations. It should be open to a plaintiff to have a judicial declaration to this effect even if damages are not available against a defendant who may rely on either privilege or honest opinion (fair comment).
117. To that, this plaintiff is entitled. These reasons should stand as such a vindication.
118. If the defence had not succeeded, I would have awarded $30,000.00 to mark the harm done to the plaintiff’s reputation and hurt to feelings.
119. However, in the circumstances, I dismiss the claim and enter judgment for the defendant.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice
Associate:
Date: 21 November 2008
Counsel for the plaintiff: Mr A T S Dawson
Solicitor for the plaintiff: DLA Phillips Fox
Counsel for the defendant: No appearance
Solicitor for the defendant: No appearance
Date of hearing: 18, 19, 24 June 2008
Date of judgment: 21 November 2008
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URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2008/125.html